Article 15(6): The Economically Weaker Sections

The challenge and the answer

In Janhit Abhiyan v. Union of India, (2023) 5 SCC 1, decided on 7 November 2022 by a Constitution Bench of five: Lalit C.J.I., Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J.B. Pardiwala JJ. Facts. The Amendment was challenged as violating the basic structure on three grounds: that reservation on ECONOMIC CRITERIA ALONE is impermissible; that EXCLUDING the existing beneficiary classes offends the Equality Code; and that it BREACHES THE FIFTY PER CENT CEILING.

Held. By THREE TO TWO the Amendment was upheld.

The majority. That reservation structured SINGULARLY ON ECONOMIC CRITERIA does not violate any essential feature or damage the basic structure. That excluding the classes covered by articles 15(4), 15(5) and 16(4) BALANCES NON-DISCRIMINATION AGAINST COMPENSATORY DISCRIMINATION and does not damage the basic structure. And that ten per cent in addition to existing reservations does not breach the ceiling, because the FIFTY PER CENT LIMIT IS NOT INFLEXIBLE and in any case APPLIES ONLY TO THE RESERVATIONS ENVISAGED BY ARTICLES 15(4), 15(5) AND 16(4).

The dissent. Lalit C.J.I. and Bhat J. held sections 2 and 3 of the Amendment UNCONSTITUTIONAL AND VOID as violating the basic structure.

Why the third holding is the most consequential. Until 2022 the fifty per cent rule was treated as a rule of general application to reservations. The majority's answer confines it to the reservations under articles 15(4), 15(5) and 16(4), so a reservation under a different clause does not count towards it. That reasoning changes the arithmetic of every State's reservation policy and is worked further in the chapter on the ceiling.

What the Amendment does to the earlier law

On Indra Sawhney. Among the answers of the nine-judge Bench in Indra Sawhney v. Union of India, AIR 1993 SC 477; 1992 Supp (3) SCC 217, was that a backward class cannot be identified ONLY AND EXCLUSIVELY BY ECONOMIC CRITERIA. The Amendment does not contradict that: it does not identify a BACKWARD CLASS by economic criteria; it creates a different category, economically weaker sections, under a different clause, and expressly excludes the backward classes from it. Stating the distinction precisely is what separates a good answer from a confused one.

On the ceiling. Indra Sawhney also held that reservations should not ordinarily exceed fifty per cent, subject to extraordinary situations. M. Nagaraj v. Union of India, (2006) 8 SCC 212; AIR 2007 SC 71, held that in exercising the power under article 16(4A) the State must collect quantifiable data on backwardness, inadequacy of representation and efficiency of administration, and that the ceiling of fifty per cent, the creamy layer and the sub-classification limits continue to apply. The majority in Janhit Abhiyan did not overrule either; it held that the ceiling attaches to the clauses those cases were about.

On the character of reservation itself. The Amendment answers a question the Constitution had never answered: whether reservation is a remedy for HISTORICAL AND SOCIAL DISADVANTAGE, or a remedy for POVERTY. Until 2019 the Indian answer was the first. Article 15(6) adds the second as a separate scheme, without merging them.

The arguments, stated properly

For the Amendment. Poverty is a real and measurable disadvantage; a citizen who is poor and not backward has no access to any special provision at all; the exclusion is necessary because the excluded classes already have their own; and the ten per cent is a modest addition expressly capped.

Against it, and this is the dissent's ground. That the Equality Code of the Constitution treats reservation as a remedy for discrimination, not for poverty, so a reservation founded on economic criteria alone is a different thing wearing the same name. That the EXCLUSION is the vice: a poor person from a backward class is poorer on average than a poor person outside it, and to exclude the first from a benefit given to the second on the ground that they already have another is to discriminate against them on the ground of caste. And that a ceiling which can be exceeded whenever Parliament creates a new clause is no ceiling.

A candidate should also notice the practical point. The benefit is available only to those who are NOT covered by articles 15(4), 15(5) and 16(4), so the eligible pool is the general category, which is why the measure has been described as a reservation for the poor among those who were not previously reserved for.

A worked example

A State reserves fifty per cent of seats for the Scheduled Castes, Scheduled Tribes and Other Backward Classes, and a further ten per cent for economically weaker sections. A general category candidate challenges the total of sixty per cent.

First, the source of the ten per cent. Article 15(6)(b) for admissions, or article 16(6) for posts, each expressly permitting the reservation "in addition to the existing reservations" and capping it at ten per cent.

Second, the ceiling argument. On the majority in Janhit Abhiyan the fifty per cent limit is NOT INFLEXIBLE and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4). The ten per cent under a different clause does not count towards it, so the total of sixty per cent is not for that reason bad.

Third, is the fifty per cent itself good? That is a separate question, decided by Indra Sawhney and worked in the next chapters: fifty per cent is the rule, subject to extraordinary situations, and the creamy layer must be excluded.

Fourth, the exclusion. A candidate who is both poor and a member of a backward class cannot claim under the ten per cent, because the clauses exclude the classes mentioned in articles 15(4), 15(5) and 16(4). That exclusion was upheld by the majority as balancing non-discrimination against compensatory discrimination, and held unconstitutional by the two dissenting judges.

Fifth, a private unaided college. Article 15(6)(b) reaches it. A minority educational institution under article 30(1) is excepted.

Distinctions

What it does NOT mean

It does not mean Indra Sawhney was overruled on economic criteria. That case held a BACKWARD CLASS cannot be identified only by economic criteria. Article 15(6) does not identify a backward class at all.

It does not mean the fifty per cent ceiling has gone. It means the ceiling attaches to the reservations under articles 15(4), 15(5) and 16(4), and that it is not inflexible even there.

It does not mean a poor person from a backward class benefits. They are excluded by the clause itself, and that exclusion is what the dissent was about.

It does not mean private colleges escape. Article 15(6)(b) reaches private institutions, aided or unaided; only minority institutions under article 30(1) are excepted.

And it does not mean the question is closed. A three-to-two decision of five judges on the basic structure is not the last word in Indian constitutional law, and the reasoning about the ceiling in particular has consequences that later Benches will have to work out.

Quick revision

One Hundred and Third Amendment 2019, in force 14 January 2019, inserting articles 15(6) and 16(6). Article 15(6): special provision for economically weaker sections OTHER THAN the classes in clauses (4) and (5); for admissions it reaches private institutions aided or unaided, excepts minority institutions under article 30(1), is IN ADDITION to existing reservations and is capped at TEN PER CENT of the total seats in each category; it overrides articles 19(1)(g) and 29(2). Article 16(6): reservation of appointments or posts for the same sections other than the classes in clause (4), in addition to existing reservation, capped at ten per cent of the posts in each category.

Janhit Abhiyan, 7 November 2022, five judges, three to two, upholding the Amendment. Majority: economic criteria alone do not damage the basic structure; excluding the existing beneficiary classes balances non-discrimination against compensatory discrimination; and ten per cent in addition does not breach the ceiling, the fifty per cent limit being not inflexible and in any case applying only to the reservations envisaged by articles 15(4), 15(5) and 16(4). Dissent, Lalit C.J.I. and Bhat J.: sections 2 and 3 unconstitutional and void.

Relation to earlier law: Indra Sawhney held a BACKWARD CLASS cannot be identified only by economic criteria, which article 15(6) does not contradict; M. Nagaraj required quantifiable data and preserved the ceiling, the creamy layer and the sub-classification limits for article 16(4A).

Test yourself

1. Which amendment inserted the clauses, and when did it come into force? The Constitution (One Hundred and Third Amendment) Act 2019, in force from 14 January 2019.

2. Who is eligible under article 15(6), and who is excluded? Economically weaker sections of citizens OTHER THAN the classes mentioned in clauses (4) and (5), so a person covered by the existing backward class, Scheduled Caste or Scheduled Tribe provisions is excluded.

3. What is the cap, and how is it expressed? Ten per cent of the total seats in each category under article 15(6), and ten per cent of the posts in each category under article 16(6), in both cases expressly IN ADDITION to the existing reservations.

4. State the three grounds of challenge and the majority's answer to each. That economic criteria alone are impermissible, answered by holding that such a reservation does not violate any essential feature. That excluding the existing beneficiaries offends the Equality Code, answered by holding that it balances non-discrimination against compensatory discrimination. That it breaches the fifty per cent ceiling, answered by holding that the ceiling is not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4).

5. What did the dissenting judges hold? Lalit C.J.I. and Bhat J. held sections 2 and 3 of the Amendment unconstitutional and void as violating the basic structure.

6. Does the Amendment contradict Indra Sawhney on economic criteria? No. Indra Sawhney held that a BACKWARD CLASS cannot be identified only and exclusively by economic criteria. Article 15(6) does not identify a backward class; it creates a separate category under a separate clause and excludes the backward classes from it.

7. Why is the ceiling holding the most consequential part of the judgment? Because it confines the fifty per cent rule to the reservations under articles 15(4), 15(5) and 16(4), so a reservation made under any other clause does not count towards the limit, which changes the arithmetic of every reservation policy.