Economically Weaker Sections

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.