Economically Weaker Sections
Chapter Forty-Six
Syllabus topic 3, "Right to equality : privatisation and its impact on affirmative action".
Pages 209 to 212 of 304
In one line
The 103rd Amendment made poverty by itself a ground of reservation for the first time, excluded the backward classes from it, and was upheld by three judges against two.
In the wording a student can write in an exam: the Constitution (One Hundred and Third Amendment) Act, 2019 inserted clause (6) in article 15 and clause (6) in article 16. Article 15(6) enables the State to make any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5), including special provision relating to their admission to educational institutions, aided or unaided, other than minority educational institutions under article 30(1), subject to a maximum of ten per cent of the total seats, which is in addition to the existing reservations. Article 16(6) enables reservation of appointments or posts in favour of any economically weaker sections other than the classes mentioned in clause (4), subject to a maximum of ten per cent, in addition to the existing reservation. The Explanation provides that economically weaker sections shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.
Why it was a departure
Three settled propositions had to be displaced, and naming them is how an answer shows what the amendment did.
Economic criteria alone were not enough. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges, held that a backward class of citizens cannot be identified only and exclusively with reference to economic criteria, though identification on the basis of occupation-cum-income without reference to caste is permissible. On that ground it struck down the reservation of ten per cent for other economically backward sections made by the office memorandum of 25 September 1991.
Reservation was for the socially disadvantaged. The whole architecture of articles 15(4) and 16(4) rests on social backwardness, of which economic condition is evidence. The 103rd Amendment separates the two and makes economic condition sufficient on its own.
Fifty per cent was the ceiling. The new reservation is expressly "in addition to the existing reservation", which on the arithmetic takes the total past fifty in most States.
So the amendment does not extend an existing power. It creates a new one, resting on a different justification.
The three grounds of challenge
One, economic criteria alone. The petitioners said reservation is a facet of the equality code, that the code compensates for discrimination, and that poverty is not discrimination. On that view reservation for the poor as such is not affirmative action at all but a welfare measure, and using the reservation power for it damages the basic structure.
Economically Weaker Sections
Two, the exclusion of the backward classes. The benefit is confined to those NOT covered by articles 15(4), 15(5) and 16(4). So a poor member of a Scheduled Caste is excluded from a benefit available to an equally poor person of the general category. The petitioners said an exclusion defined by caste, operating on a criterion of poverty, is discrimination on a prohibited ground.
Three, the ceiling. Ten per cent in addition breaks the fifty per cent rule, which the petitioners argued had become part of the basic structure through more than fifty decisions over sixty years.
The decision
Facts. Janhit Abhiyan v. Union of India, decided 7 November 2022 by five judges. Challenge to the 103rd Amendment on the three grounds above, and on its extension to admission in private unaided institutions.
Held. By 3:2 the amendment was upheld.
On economic criteria. Reservation is an instrument of affirmative action to ensure an all-inclusive march towards an egalitarian society, and it is an instrument not only for the inclusion of socially and educationally backward classes but for the inclusion of any class or section so disadvantaged as to answer the description of a weaker section. Reservation structured singularly on economic criteria does not violate any essential feature and does not damage the basic structure.
On the exclusion. Excluding the classes covered by articles 15(4), 15(5) and 16(4) from the benefit is in the nature of balancing the requirements of non-discrimination and compensatory discrimination, and does not violate the Equality Code or damage the basic structure.
On the ceiling. Ten per cent in addition does not damage the basic structure on account of a breach of the fifty per cent limit, because that ceiling limit itself is not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4).
On private unaided institutions. The challenge fails for the same reasons, read with the decision upholding article 15(5) in relation to such institutions.
Why it matters. Three separate propositions of general importance come out of it: economic disadvantage alone can found a special provision; the fifty per cent rule is not inflexible and is confined to the backward-class provisions; and the fifty per cent rule is therefore not part of the basic structure.
The dissent, which an LL.M. answer should give
Two of the five would have struck the amendment down, and the reasoning is worth reproducing because it is the strongest form of the objection.
The dissent's central point was not that poverty is an unworthy ground. It was that the exclusion is the vice: a measure for the economically weak which excludes the poorest precisely because they belong to castes that suffer the deepest disadvantage inverts the purpose of the equality code. On that view the amendment practises the discrimination it claims to remedy, and it is the exclusion, rather than the economic criterion or the ten per cent, that damages the basic structure.
Economically Weaker Sections
An answer that gives only the majority is incomplete, and MU's questions on this topic ask for critical examination.
What follows in practice
The two reservations are counted separately. The fifty per cent ceiling is tested against the article 15(4), 15(5) and 16(4) group; the EWS ten per cent stands outside it. See the worked example in [The Ceiling on Reservation].
Identification is by notification. The Explanation leaves economically weaker sections to be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage, so the criteria are executive and variable rather than constitutional.
The creamy layer has no application, because the class is defined by economic condition in the first place: the exclusion of the advanced is built into the criterion instead of being an exception to it.
Nobody is obliged to make it. Like every other clause in articles 15 and 16, clause (6) enables and does not oblige.
A worked example
A State notifies that economically weaker sections are those whose family income is below a stated figure and who do not hold agricultural land or urban property above stated limits. A candidate belonging to a Scheduled Caste, whose family income is below the figure, applies under the EWS quota and is refused. He challenges the exclusion under articles 14 and 15(1).
Is he within the class? No. Article 16(6) confines the benefit to economically weaker sections "other than the classes mentioned in clause (4)", and article 15(6) likewise excludes those covered by clauses (4) and (5). His caste puts him outside by definition.
Is the exclusion discrimination on a prohibited ground? That is exactly the second ground of challenge in Janhit Abhiyan, and the majority answered it: the exclusion balances non-discrimination against compensatory discrimination and does not violate the Equality Code. He is excluded not because his caste is disfavoured but because he is already within a scheme of compensatory provision.
What is his real complaint, and does the answer meet it? His complaint is that he receives nothing from the EWS quota while remaining subject to the fifty per cent competition within his own quota, so a poorer person of the general category may be better placed than he is. The dissent thought that unanswerable. The majority's answer is that the two schemes rest on different justifications and are not to be compared seat for seat.
Economically Weaker Sections
How should he have framed it? Not as an attack on the amendment, which has been upheld, but on the notified criteria if they are arbitrary, or on the operation of the scheme if the ten per cent is in practice being taken from the seats otherwise available to the reserved categories rather than from the general pool. The second is a factual question and it is where such challenges now go.
Quick revision
- The 103rd Amendment 2019 inserted articles 15(6) and 16(6): up to ten per cent for economically weaker sections OTHER than those covered by 15(4), 15(5) and 16(4), in addition to existing reservations.
- It displaced three settled propositions: economic criteria alone were insufficient, reservation was for the socially disadvantaged, and fifty per cent was the ceiling.
- Indra Sawhney had struck down an identical ten per cent in 1992 for economically backward sections.
- Janhit Abhiyan upheld it 3:2. Economic criteria alone are permissible; the exclusion balances non-discrimination against compensatory discrimination; the ceiling is not inflexible and applies only to the backward-class provisions.
- The dissent's point was the exclusion, not the criterion: a measure for the poor which excludes the poorest by caste inverts the equality code.
- The creamy layer has no application; identification is by executive notification; the clause enables and does not oblige.
Test yourself
1. Name the three settled propositions the 103rd Amendment displaced, and give the authority for each.
2. State the three grounds of challenge in Janhit Abhiyan and the majority's answer to each.
3. What did the case decide about the fifty per cent ceiling, and what follows for the basic structure argument?
4. Set out the dissenting objection in its strongest form.
5. Why does the creamy layer doctrine have no application to the EWS reservation?
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.