EFFICACY OF 103RD CONSTITUTIONAL AMEDNMENT ACT AND THE BASIC

STRUCTURE CHALLENGES

Akshay Singh* & Siddharth Singh*

ABSTRACT

Parliament has passed the 124th constitutional Amendment bill1 on 9th January 2019 which provides 10%
reservation in the admission into higher education institutions and government jobs to Economically
Weaker Section (EWS) of the general category who are ineligible under the existing quota. The legislation
will be in addition to the 49.5 % reservation already provided for SC, ST and OBCwhich will take the total
reservation to 59.5 % breaching the debatable limit of 50%2. Also, being a pro-private government they
extended this quota to private education institutions, though the validity of which was left unanswered in
the case ofAshokThakur v. Union of India & Ors.3This amendment has been hugely criticized for being an
“election stunt” which delivered, but the question of its legal validity has opened many previous settled
legal positions. While it has to pass the test of basic structure, ithas also raised pertinent questions
regarding the existing system of reservation and the deep resentment for it in general caste people. This
paper aims to highlight the possible basic structure question that will decide the validity of the
amendment.

I. ECONOMIC RESERVATION: AN AFTERTHOUGHT OF POLICY OR POLITICS?

Affirmative action or reservationin its simplest sense is a facet of social justice 4 to make a more
egalitarian society5. The core idea of the affirmative policy6 is uniform throughout the world i.e.the
presupposition of immeasurable disadvantaged position of a group on account of their social economic,
educational or governmental conditions in society. Indian constitution being a bulwark of an equalitarian
society 7 envisages it to give representation to those sections of society who either did not have adequate
representation or who faced historical discrimination8.The socio-discrimination based model of
Indianreservation system has the basic principle that‘a person from a lower caste is so socially and
educationally backward and underrepresented that he was naturally economically backward whereas the

*
VI Semester, B.A.LL.B(Hons.),National Law University, Patiala.
*
VI Semester, B.A.LL.B(Hons.),National Law University, Patiala.
1
The Gazette of India, The Constitution (One Hundred And Third Amendment) Act, 2019,Jan 9,2019,
http://egazette.nic.in/WriteReadData/2019/195175.pdf
2
The Wire,Explainer: The 1993 SC Judgment Capping Quotas at 50%, Disallowing Them for the Poor, (Jan.12, 2019, 4:41 PM),
https://thewire.in/law/supreme-court-indra-sawhney-reservation
3
AshokThakur v. Union of India & Ors.,AIR 2007 4 SCC 361.
4
KarthikNagrajan, Compensatory discrimination in India Sixty years after Independence: A Vehicle of Progress or a tool of Partisan
Politics?Washington and Lee Journal of Civil Rights and Social Justice(2009)15, p. 483,
https://scholarlycommons.law.wlu.edu/crsj/vol15/iss2/6/.
5
State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
6
John W. Dietrich,The International Spread of Affirmative Action Policies: What is True Equality?ISA,(2013,5:06 PM),
https://pdfs.semanticscholar.org/354a/9be159360cc216e389130a118f2e5f2d4fcc.pdf.
7
Scott Grinsell, Caste and the Problem of Social Reform in Indian Equality Law, The Yale Journal of International Law,(2010, 2:33
PM) p. 199,https://digitalcommons.law.yale.edu/yjil/vol35/iss1/6/.
8
Indira Shawney v. Union of India, AIR 1993 SC 477.

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other assumption being that if a person is from upper caste his ability, connections and social
acceptability makes it a lot easier to make way up out of the poverty.’9

The current economic model may be wrapped and presented as to take “social justice” to a whole new
level but it’s ramifications has unsettled many settled legal debates. Politically, reservation as it stands
today in India, post Mandal, has become a toy of majoritarianism. Therefore, the current change in
constitution is criticized for being a “political gimmick”,a result of a political afterthought, not a policy
afterthought.But whatsoever may be the motive behind bringing, it is settled position of law that mala fides
cannot be attached to a law. Still, whether it fit in the existing jurisprudence behind reservation system is
a debatable question.10

The existing jurisprudence behind the principle of equality asenshrined in Article 14 to 18 states that
“equals must be treated equally and unequals must be treated unequally.”11 This scheme not only
negates any arbitrariness but states arbitrariness in whatsoever form is antithetical12 to the essence of the
right to equality. The advent of any reservation has always been tested on the parameter laid down in the
constitution i.e. reasonable classification having a rational nexus with the object sought to achieve. The
moot point here is that does this constitutional amendment has to satisfy this test being an amendment?
And if it has to satisfy does it satisfies the same? Therefore, the validity of the constitutional amendment
remains a moot point until decided by the Supreme Court.

Here, whichever way the validity goes, one question that begs an answer and none is provided is that:
whether government failed to recognizethe irony in this policy ?, As a matter of fact this policy would be of
little concrete benefit as the criterion laid down for determining the upper caste poor will cover 95% of
population13. Even if it passed the judicial scrutiny it will, at best, make millions of people compete for
abysms the situation ally small number of posts14. Thus if it fails to make an impact then it would be
another glaring example of travesty characterizing political discourse and constitution when it comes to
reservation.

9
De Frank Zwart, The Logic of Affirmative Action: Caste, Class and Quotas in India,ActaSociologica(2000, 3:01 PM), pp. 235–
249, www.jstor.org/stable/4201209.
10
Sushma Yadav, Reservation and Inclusive Growth, Indian Institute of Public Administration, (2010),
https://iipa.org.in/upload/theme%20paper-2010.pdf.
11
Sujit Choudhry, Madhav Khosla, Locating Indian Constitutionalism: Introduction, Oxford Handbook of Indian Constitution (OUP,
2016).
12
Ibid.
13
FaizanMustafa, Slipping on Quota, The Indian Express, Jan 9,2009, at page 3.
14
BandyopadhyayAnirban ,General Category Quota: Why Reservation Delivers Little Concrete Benefit, The Economic Times,
Jan9,2019, at page 1.

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 A. The Precedents FromThe Past

Old wine in a new bottle? It is more like a spoilt wine in a leaking bottle. The efforts to put the reservation
on economic basis are neither novel nor innovative.15 The supreme court in Balaji case16 highlighted that
the ‘backwardness, social and educational, is ultimately and primarily due to poverty.’ While the court did
not deny the caste based reservation criterion, the damage had been done. In aftermath of this, VP singh
lead Janta Party government in the year 199017, in a conciliatory gesture, offered a constitutional
amendment for reserving seats for those who are economically poor irrespective of the caste,but the
opposition was hell bent on this and therefore it was withdrawn. Following this Narsimha Rao government
in its official memorandum18 introduced “10% vacancies in civil posts and services under the GOI” with
exclusive reference to “other economically backward section of the people who are not covered by any of
the existing schemes of reservation”.

This proposal was held constitutionally invalid in the landmark Mandal case19for the very fact that the
constitution does not provide reservation on the basis of economic backwardness alone or poverty alone.

B. Article 15, 16 And 46: Stretching Welfare Too Far?

Article 14 to 18 provides right to equality20 and it is should be constructed harmoniously. The relationship
between the articles 14, 15 and 16 is often oversimplified and distinguished. The Article 15(4) and 16(4)
which gives special provisions for “backward class” was considered as the exception of general rule of
equality given under 15(1) and 16(1), but its conceptual meaning fundamentally changed and evolved into
emphatic statement of equality21 and not exception. The proposed amendment in the article 15 and 16 i.e.
inclusion of new clauses 15(6) and 16(6) for implementing reservation on grounds only of economic
backwardness will not be similar to the criterion of reservation provided in 15(4) 22 and 16(4)23 because the
latter is the result of settled proposition of law which in past has discarded “economic basis” as the sole
criterion for measuring backwardness of people.

Hence, these new clauses, if passes the test of judicial scrutiny, might be in virtual contradiction of
rationale behind article 15(4) and 16(4)24. Article 46, a directive principle of state policy, requires the state

15
The Supreme Court earlier in the ‘K.C. Vasanth Kumar v. State of Karnataka, 1985 AIR (SC) 1495’, has already held that:
Therefore, a time has come to review the criterion for identifying socially and educationally backward classes ignoring the c aste
label. The only criterion which can be realistically devised is the one of economic backwardness. To this may be added some
relevant criteria such as the secular character of the group, its opportunity for earning livelihood etc. but by and large ec onomic
backwardness must be the loadstar.
16
M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
17
Ashok Kumar Thakur v Union of India, 1995 SCC (5) 403.
18
Singh Vikram, ‘IndraShawney v. Union of India: A review,
Manupatra,http://docs.manupatra.in/newsline/articles/Upload/3DCF631B-7243-41DA-92A3-D6EAE7EBFCCB.pdf.
19
IndraSawhney v Union of India, A.I.R. 1993 S.C. 477.
20
IndianConst. art. 14 to 18.
21
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
22
Indian Const. Amend. Act, 1951, in aftermath of the judgement given in State of Madras v. ChampakamDorairajan, AIR 1951 SC
226.
23
Mehbubul Hassan Laskar, Rethinking reservation in Higher Education in India, ILI Law Review,(2010), p. 25,
https://ssrn.com/abstract=1597863.
24
S. Malik, Fundamental Rights: The Critics Speak, (1sted.1975).

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to make beneficial legislation for the promotion of educational and economic of the weaker section of the
society. The constitution has not given any exclusive definition of “weaker section” of the society
anywhere, but it evidently, forms the genus for the “backward class” 25 used in article 15 and 16. The word
“weaker section” used in this article has a broader meaning than “backward class”, it refers to ‘all the
sections of the society who are rendered weak due to various causes including poverty and natural and
physical handicap.’26

But whether 103rd amendment can be justified on the ground that it is a form of beneficial legislation to
benefit the weaker sections? Or is it too costly to accept it while compromising the existing scheme of
reservation? The complexity in whole would be a hard nut to crack, depending upon how the apex court
sees the reservation and interpretation of different facets of equality.

II. THE ONLY LEGAL CHALLENGE – THE BASIC STRUCTURE!

The 103rd amendment has been passed by parliament. Now, before examining its validity the ambit of
power of the judiciary is restricted in the sense that: firstly there is a presumption of constitutionality in
favor27 of it since it has been passed by a competent authority. Secondly, the fact that this scheme of
reservation has been brought by a “constitutional amendment” and a constitutional amendment can only
be struck down on the ground that it violates the basic structure of the constitution.28

A. The Basic Structure

Basic Structure is the very foundation on which our constitution stands. It is a brake in absence of which
the engine of the amending power may overrun the spirit of the constitution.29Now, as it stands, the
amendment act30 is already passed and therefore it can only be struck down on the ground that it violates
the basic structure. But, here comes the main problem, i.e. basic structure of constitution is not defined
and there is no hard and fast rule to interpret it31. Originally, the doctrine of basic structure was
propounded in Keshavananda Bharti case32 where it was held that:

In the exercise of the power of amendment, Parliament could not destroy the structure of the
Constitution but it could only modify the provisions thereof within the framework of original
instrument for its better effectuation. In other words, the provisions of the Constitution could
undoubtedly be amended but not so as to take away or abridge the Fundamental Rights.

25
For both SC and ST, the President of India is empowered to list the castes, races, tribes or groups to be categorized as SC and
ST for each state. The parliament is also vested with the powers to modify the President’s list.
26
Id. at 19.
27
Presumption of Constitutionality is a constitutional law principle according to which: if a law has been made by the competent
authority then the judiciary shall presume it to be valid unless clear transgression of fundamental rights is shown.
28
Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268.
29
UpendraBaxi, Courage, Craft and the Contention: The Indian Supreme Courts in the Eighties68(NM Tripathi, 1985).
30
The Constitution (One Hundred and Third Amendment) Act, 2019.
31
Sunder Raman, Amending power of the Constitution of India: A Politico-legal Study, (ELH, 1990).
32
KeshavanandaBharati v State of Kerala, A.I.R. 1973 S.C. 1461

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Here, it is important to note that the Keshavananda Bharti case did not impose restrictions on modifying
or altering with the provisions of constitution but it has restricted this power of amendment in the sense
that it cannot tinker with the ‘basic philosophy’ or ‘essence’ behind the provisions.33This position was
further clarified in the Nagraj case where the test of “width and identity”34 was laid down to check validity
of a constitutional amendment.The twin test of width and identity examines whether in a particular case
the inherent constitutional limit is breached35 and thereby defeated the very essence of a right. Now, there
are various grounds on which these amendments has been challenged namely inconsistent with the
judgement of the supreme court, violating the fundamental right of equality, breaching the cap of 50% on
reservation etc. But does these challenges are big enough to raise a basic structure violation? The
possibilities offer anequivocal answer examined hereunder.

B. Can Indra Sawhney Raise A Basic Structure Challenge?

Mandal judgmentplays the role of “grundnorm”36where reservation is concerned. It hasnot only laid down
a rational approach for the reservation of seats but also come up with principles to abide by, until
unnecessary. The economic basis for reservation has been specifically dealt in this case. By a majority of
6-3, Mandal bench, wholeheartedly rejected economic basis for reserving seats and also capped the total
reservation to the 50% of the total seats.37 Justice Jeevan Reddy while negating the economic basis
observedthat: ‘A backward class cannot be determined only and exclusively with reference to economic
criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can
never be the sole criterion.’38

However the only legal challenge against the validity of constitutional amendment is the violation of basic
structure of the constitution.39Indira Sawhney judgment therefore itself cannot be a basic structure
challenge. It is important to mention that, economic criterion which was previously rejected40 in Indra
Sawhney was rejected owing to the fact that there is no basis for it in the constitution at that point of time.

Indra Sawhney did not negate the “economic backwardness” on the grounds that it violated of the basic
structure of the constitution. Moreover, conclusions drawn in IndraSawhney are inapplicable to the
present case as the said judgment was delivered while determining the constitutional validity of certain
Office Memorandums41 issued by the Government of India in the year 1990, which provided for
reservations for the backward classes of citizens in services under the State. Indra Sawhney case did not

33
D. Conrad, Amendment and Basic structure of the constitution: A Critical Reconsideration18(DLR,1977).
34
M. Nagaraj v Union of India, (2006) 8 S.C.C. 212.
35
Sujit, supra,Chapter 14,p.3.
36
Milan Dalal, India’s New Constitutionalism: Two Cases That Have Reshaped Indian Law, 31 (2008).
37
The memorandum effectively contemplated reservations of 59.5 per cent in Central Government p osts: 22.5 per cent for SC/ST
(which was already in place), 27% for the OBCs and 10 per cent for other economic backward sections.
38
Id. at 34.
39
Raju Ramchandran, The Supreme Court and the Basic Structure Doctrine’ in Supreme But Not Infallible: Essays in Honor of the
Supreme Court of India 108 (OUP, 2000).
40
Ibid.
41
Id. at 19.

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discuss the validity of a constitutional amendment. Hence the applicability of the said judgement solely
remains on the interpretation of the court.

C. Does 50% Limit Forms The Part Of Basic Structure?

The 50% cap which was first observed in Balaji case42 was reaffirmed in the judgement of Mandal case.
But the origin and reason behind choosing 50% limit remains unknown, till date. The origin of the limit can
be traced back to B R Ambedkar constitutional assembly speech where he observed that the concept of
equality of opportunity requires that the reservations should limited to minimal seats.43. The limit is a
“reasonable limit” balancing the competing interest of reservation and equality.44 While adopting the
above statement Justice Thommen in Indira Shawney observed that “any attempt to over emphasize its
compensatory aspects and widen the scope of reservation beyond ‘minority of posts’ is to practice
excessive and invidious reverse discrimination.”45

The limit of 50% reservation is a benchmark. There have been incidents where states tried to breach the
limit and increased reservation. For example, the state of Tamil Nadu has reservation policy of 69% of the
total seats.46 This 69% reservation had been implemented through the “Tamil Nadu Reservation of Seat
for Backward Classes Act 1994” which was saved from judicial cleansing by putting it into the 9th
Schedule of the constitution47 of India. The laws which are placed under the 9th schedule of the
constitution of India had the immunity from being challenged in the court till the year 2007. But in Coelho48
case it was held that “Laws placed under 9Th schedule are ‘partially open’ for judicial scrutiny because it
comes under basic structure doctrine.” Now, the case against the act is pending before the honorable
Supreme Court.

Conclusively, a balance should be maintained between the aspect of social justice and the equality of
opportunity. Over emphasizing any of the aspect and widening the scope of reservation can wrought the
balance. Inadequacy and administrative efficiency are its essential requirements, failure to adhere to
them, will result in obliteration of equality of opportunity. In M.Nagaraj case the constitution bench while
upholding the validity of Article 16(4A) and article 335 unanimously stated that: ‘We reiterate that the
ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in Article 16 would collapse.’

Therefore, the state while making reservation has to show the existence of compelling reasonsof
backwardness, inadequacy of representation. Moreover, the bench it was also observed that even after
showing the existence of compelling reasons the state cannot breach the limit of 50% or it will result in

42
Id. at 16.
43
Constituent Assembly Deb,Nov.30,1948,volume VII, part I.
44
Association of Unaided Private Schools of Rajasthan v Union of India & Anr.,(2012) 6 SCC 1.
45
Id. at 19.
46
ArunShourie, Falling Over Backwards: an Essay on Reservations, and on Judicial Populism143(ASA, 2006).
47
The Const. (First Amend.) Act, 1951, § 14.
48
IR Coehlo v State of Tamil Nadu, AIR 2007 SC 861.

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excessive reservation.49It is made clear that even if the State has compelling reasons, as stated above,
the State will have to see that its reservation provision does not lead to excessiveness so as to breach
the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Yes? No? The decision would be purely depends upon how Supreme Court consider the importance of
50% limit. As a matter of fact the above bar was set up by a nine judge bench which can be overruled by
a bigger judge bench, but this position looks unlikely to change. However, unless it is proved that this limit
forms the part of basic structure this limit cannot form a basis to stop a constitutional amendment.

III. CONCLUSION

The question of validity of 103rd amendment act is still pending before the SupremeCourt. The three judge
bench of the Supreme Court headed by CJI Bobde has referred this matter to a constitutional bench.50
But ever since this case was referred, there is no development in this regard. Here, it is important to note
thatthe ten percent reservation is brought by the way of a “constitutional amendment”and unless it is
proved that it is destroying the very spirit of constitution;its chances of being struck down by the apex
court is ata low if we see the track record. Why? Because only one time in history of judicial review the
apex court has struck down the validity of a constitutional amendment in entirety51. How is it relevant? It
shows the significance of constitutional amendments and how much weightage and pressure itcarries, if
challenged in court.

Anyways, the arguments against 103rd constitutional amendment are stretched to the extent that this
amendment will not be able to solve the problem it isintended for.52Because, reservation cannot be used
as a poverty alleviation measure. But, even if this argument is true,still, the Supreme Court will not
interfere in it, as it will amount to supplanting the wisdom of parliament. This entire situation shows that
the vagueness of basic structure doctrine has come back to bite its own. The Supreme Court is helpless
to go beyond its own set parameters to stop the government from using it as a solution to poverty.

At time, when economy does not seem to be high spirited, a quota for economically backward will not
only deepens the existing fault lines but also increases resentment among the weaker section specially
the OBC. What would be the answer to the demand of OBC that has been haunting for a long time that
the 50% cap should be breached to accommodate OBCs to in proportion53 to their population? In any
case, the government may argue that this amendment is perfectly valid and it will widen the horizons of
equality by including even the economically backward.

49
Ashoka Kumar Thakur v Union of India, ((2008) 6 SCC 1).
50
Shruti Mahajan, Economic Reservation challenge: Supreme Court reserves order on reference to Larger Bench, Bar &
Bench,(31stJuly 2019, 1:05 PM),https://www.barandbench.com/news/economic-reservation-challenge-supreme-court-reserves-
order-on-reference-to-larger-bench.
51
Supreme Court Advocates-on-Record Assn. vUnion of India, (2016)5 SCC 1p. 451-52.
52
Leaving the NJAC case which was a clear cut case of overreaching by the legislature in the area of judiciary no other amendment
has been removed in ante.
53
SonaldeDesai, Reimagining the OBC Quota, The Hindu, Sept.19 2017, at page 2.

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But where lays the root cause of the entire problem which everyone failed to address? There are twin
problems that India is facing. Neither Indian economy is able to create sufficient numbers of jobs54 nor
Indian education system producing employable graduates55. These failures increase dissatisfaction
among the educated upper caste groups like Rajputs in Rajasthan56 for a quota of reservation for them. In
these circumstances, the authors are of the firm opinion that this way of solving the problem of poverty is
misplaced.

54
Das Gautam, Jobonomics: India’s Employment Crisis and What the Future Holds, (2019).
55
N V Varghese, Nidhi S. Sabharwal, C M Malish, India Higher Education Report 2016: Equity, (2016).
56
JangamChinnaiah, BJP and Reservations: Quota Politics or Electoral Convenience?Economic and Political Weekly, (2003)pp.
3143–3145, www.jstor.org/stable/4413824.

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