Based on the constitutional law principle of Equality (New Developments).pptx

constitutional law

1. Equality: New Developments

2. Can reservation exceed the 50% cap?

3. In the Indra Sawhney case, the Chief Justice M.N. Venkatachaliah stated the following: “810. While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas, the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.” What was the ‘means test’ that was laid out in the Indra Sawhney case?

4. Should the economically weaker sections, be provided with reservation?

5. Should the economically weaker sections, who are socially and educationally advanced, be provided with reservation?

6. What factors would you want to take into consideration?

7. 103 rd Constitution Amendment Act of 2019 2. In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:— ‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of this article and article 16, "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.’. 3. In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:— "(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4) , in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.".

8. Some issues with such a criteria, Data?* 50% cap Economic v. social &/or educational backwardness *Statement of object, “ The economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.”

9. How will you decipher the constitutionality of such an amendment?

10. A. The test of arbitrariness and Formal Equality Three impacts arise on the inclusion of Articles’ 15(6) and 16(6), which strike at arbitrariness and substantive equality. Firstly, through the amendment, ‘economically weaker section’ of the forward castes and the members of the backward class are treated at par with each other by providing them with reservation. A person belonging to the backward class under Article 15(4) is disadvantaged on three parameters- social, economic and educational. On the other hand, the class introduced under Article 15(6) would only be disadvantaged economically. Secondly, explanation to Article 15(6) states that the ‘economically weaker section’ shall be notified by virtue of ‘family income’. If a threshold limit is prescribed to determine the family income, then a person who falls below the poverty line and a person who falls below the prescribed threshold but above the poverty line would be treated alike. Thirdly, Article 16(6) provides for reservation in jobs for the economically weaker section without any requirement of proving the ‘adequacy’ of representation , while on the other hand Article 16(4) states that a person belonging to backward class, to be eligible for reservation, has to prove that his class is not adequately represented. Therefore, for a person to be eligible for reservation under Art 16(4), he will have an extra obstacle to surpass, unlike the reservation provided under Art 16(6).

11. B. Violation of Substantive Equality Is reservation solely based on economic criteria (which is a conception of equality (and substantive equality)), a basic feature? In Indra Sawhney, the bench made two observations on using economic determinants for the purpose of reservation.  Firstly, economic criteria cannot be solely used to determine ‘backward classes’ under Art 16(4). Secondly, reservation solely based on economic criteria will not be permitted under Art 16(1) . The Supreme Court in  MN Thomas  held that Art 16(4) is not an exception to Art 16(1), but is one of the methods for achieving equality under Art 16(1). Art 16(1) prescribes substantive equality, wherein positive actions are to be taken to establish factual equality. Therefore, 16(1) prescribes the facet of equality – substantive equality, and Article(s) 16(4) and (the impugned) 16 (6) are conceptions of substantive equality. Conception of substantive equality can only exist to the extent of which is permissible under Art 16(1) (the facet) since Art 16(1) is an all-encompassing provision- with regard to reservation in jobs. Any observation on Art 16(1), would hence be applicable to the different conceptions of reservation. Therefore, if reservation based on economic capacity cannot be brought under Art 16(1), it cannot be included through 16(6).

12. Reference: https://indconlawphil.wordpress.com/2019/09/19/guest-post-the-103rd-amendment-and-a-new-typology-of-the-basic-structure/