103rd Constitutional Amendment Act

The One Hundred and Third Amendment of the Constitution of India, officially known as

the Constitution (One Hundred and Third Amendment) Act, 2019, introduces 10%
reservation for Economically Weaker Sections (EWS) of society for admission to Central
Government-run educational institutions and private educational institutions (except for
minority educational institutions), and for employment in Central Government jobs. The
Amendment does not make such reservations mandatory in State Government-run
educational institutions or State Government jobs. However, some states have chosen to
implement the 10% reservation for economically weaker sections.

Introduction:-

A whopping 10% of economic based reservation has been introduced in India by the 124th
Constitutional Amendment Bill [now the Constitution (103rd Amendment) Act]. The Act aims
to provide for a 10% reservation for economically weaker sections of the society. The
President of India, Shri Ram Nath Kovind gave his assent to the said Constitutional Act, on
the 13th of January 2018, as notified in the Official Gazette by the Central Government. The
Constitutional Bill, 2019 was passed in the Lok Sabha by the 326 members who were present
and voting; with 3 members voting against it and consequently, the same was passed by the
Rajya Sabha as well. The main highlight of this bill is to provide reservations to the
economically weaker sections of the upper caste in the job sector as well as in government and
private institutions of education. The quota of reservation introduced is “in addition to the
existing reservation and subject to a maximum of ten per cent of the posts in each category.”1

Attempts have been made earlier to chisel out a substantial amount of quota for the EWS, but
have ultimately failed because the same was not able to pass legal assemblage. In 1991, the P.
V. Narasimha Rao government had proposed 10% reservation for the poor among the forward
castes.2 But to this, the court held that a provision for separate reservation for economically
poor among forward class was invalid as Article 15(4) provided for only socially and
educationally backward classes and not economically backward classes. Henceforth, the
attempt made by the Narsimha Rao’s government fell flat on to its face as it violated the
judicially evolved doctrine of 50% ceiling. The same line of opinion was followed in the case
of Indra Sawhney v. Union of India.3 A Constitutional Bench of the Supreme Court
comprising of nine-judges pointedly answered the question “whether backward classes can be
identified only and exclusively with reference to the economic criterion.” The bench uniformly
held that the reservation cannot be provided on the basis of economic grounds only. Then, in
August 2016, the Gujarat government set out a similar ordinance, of providing 10% quota to

1
 The Constitution (103rd Amendment) Act, 2019.
2
 https://www.jagranjosh.com/current-affairs/union-cabinet-approves-10-per-cent-reservation-for-economically-
weak-among-upper-caste-1546925703-1 
3
Indra Sawhney v. Union of India,(1992) 3 SCC 217.
upper castes. However, the Gujarat High Court quashed the ordinance on the ground that there
is no provision in the Constitution empowering State to provide reservations to EWS.

Features of the Act:-

There has been an amendment in Article 15 and Article 16 respectively. By the virtue of this
Act, Article 15(6) is added along with Article 16(6). Article 15(6) caters reservation to the
economically weaker section of the upper caste and the 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. This respective Amendment aims to provide reservation to those who do not
fall in Articles 15(5) and 15(4) (effectively Scheduled Castes, Scheduled Tribes and Other
Backward Classes). Article 16(6) is aimed at providing reservation to people who belong to
the economically weaker section of the society. The parameter of judging the economic
weakness shall be decided on the basis of “family income” and other “indicators of economic
disadvantage” and as such, would be notified by the State from time to time. Unlike the
historical debates, the “economic criterion” today is not proposed as a competing idea to
caste and community, but as an allied one.4 The amendment brought about in the Constitution
aims to fulfill the duty that has been enshrined under Article 46 of the Directive principles of
the State policy. The economically weaker sections of the society have not been able to
benefit from the fruits of the policies of the government whereas, on the other hand, the
socially disadvantaged and marginalized sections have considerably enjoyed the same via the
policy of reservation. The state of Gujarat has become the foremost state to implement the
10% quota reserved for the economically weaker section as under the 103rd Constitutional
Amendment.

The definition of Economically weaker section (hereinafter, EWS) as under Article 15(6) is
“as may be notified by the State from time to time on the basis of family income and other
indicators of economic disadvantage.”

The proposed 124th Constitutional Amendment Bill (which is now Constitution 103rd
Amendment Act) defines EWS as one having:

· Annual household income below Rs. 8 lakh;

· Agriculture land below 5 acres;

· Residential house below 1000 sq. feet;

· Residential plot below 100 yards in notified municipality; and

· Residential plot below 200 yards in non-notified municipality area.

Legal Challenges to 103rd Constitutional Amendment Act, 2019:-

4
https://thewire.in/politics/despite-its-ressurection-economic-criterion-remains-an-inadequate-determiner-of-
reservations 
The constitutionality of 103rd Constitutional Amendment Act, 2019 has already been
challenged before the Apex Court. Some of the grounds on which the Amendment has been
challenged are listed below:

 Absence of requirement of inadequacy of representation:

Under Article 16(4), State can grant reservation in favor of Backward Classes only if it
is satisfied that they are inadequately represented in the services. This preposition was
further strengthened by the Apex Court in the case of M Nagaraj v. Union of India5
wherein it was held that inadequacy of representation is a constitutional requirement
without which the structure of equality of opportunity would collapse. Article 16(6)
added by the recent amendment does not contain the limitation of the inadequacy of
representation of EWS in public services as a condition to granting them the
reservation. As a result, this argument can be put up against reservation on economic
basis as introduced by Article 15(6) and Article 16(6).

 Arbitrariness:-
The 103rd Constitutional Amendment can be attacked upon the grounds of
arbitrariness i.e., the family income criterion has no relation with the goal of
reservation. In simple words reservation is not the remedy to the problem of poverty
(reservation is about compensating for social and institutional barriers to
representation). This makes mandating reservation on economic disadvantage
arbitrary.6

 Economic Reservations and Basic Structure:

In order to determine whether the Economic Reservations provided under
103rdConstitutional Amendment are violative of the Basic Structure or not, the
Supreme Court needs to examine the principles on which affirmative action is based
upon. As per M Nagraj and Others v. Union of India, the Courts needs to apply two
tests in order to check whether the Reservation policy is constitutional or not.

First is the width test, which is based upon the boundaries of the amending power.
The width test includes examination of four issues — (i) Quantitative limitations, for
e.g.: violation of the 50% ceiling for all reservations taken together; (ii) Exclusion of
creamy layer or qualitative exclusion (iii) Compelling reasons such as backwardness
of the economically weaker sections for whom this reservation has been made; and
(iv) Overall administrative efficiency is not obliterated by the new reservation.7

The second is the identity test, wherein the Apex Court needs to examine that whether
the new amendment would alter the identity of the Constitution or not. If yes, then the

5
M Nagaraj v Union of India, (2006) 8 SCC 212 .
6
https://indconlawphil.wordpress.com/2019/01/13/is-the-103rd-amendment-unconstitutional/
7
https://indianexpress.com/article/explained/10-percent-quota-reservation-economically-weaker-section-
supreme-court-5538470/
 Court will strike down the Amendment as unconstitutional, or else, the Amendment is
constitutionally correct.

The court in this case need to examine the equality code of the Constitution and check
whether the state has considered and valued the circumstances justifying it, to make
reservation. This would require that the state’s decision is rational and non-arbitrary.
The state needs to show quantifiable data to satisfy the court as to inadequacy of
representation of economically backward classes. If the Government proves the same
then the 103rd Constitutional Amendment Act, 2019 is constitutionally correct.

Conclusion:-

There are many hefty arguments which are against the policy of reservation that is based
purely on economic basis, but it must be viewed from a bird’s eye that the basic structure
challenge to a constitutional amendment has to meet a greater pedestal of unconstitutionality. 

The ambit of the policy of reservation is not confined only to caste grouping but can be
extended and made flexible to other weaker sections that have endured social injustice
because of their economic and educational backwardness and inability to climb the ladder of
economic up gradation.

The admits that we have reached the point in the human history to do away with ancient,
traditional caste-based approach of backwardness, however, the aim and objective of the
policy of reservation is and should not be stooped to the level of poverty mitigation
programme or a step towards assuage the general public.