RESEARCH PAPER OF INDIAN CONSTITUTION

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RESERVATION LAW IN INDIA.

ADITI

ABSTRACT
After the India independence the legitimacy of the Indian government was closely linked to its
ability to integrate the large, historically marginalized population into INDIAN political
institutes. Prior to independence ,Indian leaders favored preferential treatment for groups that
experienced economical and social determination as a result of the caste system. The 1951
Indian constitution (1th Amendment) mandated the representation of Scheduled castes and
Scheduled tribes by reserving quotes for them in educational institution . over the
years ,constitutional changes are added and revised the reservation law system for provided
social justice and now in 2021 new OBC act ,2021 105 th AMENDMENT EXPLAINED. AND in 2019
it made amendments to provide reservation for the economically backward sections of the
society which is seen as an act of Economic Justice too. This study deals with the awareness
and opinions of the law collage student in Dehra dun about 103 and 105 amendment act of
2019 and 2021. In 105 amendment we explained the restored the power of state government
to recognise socially and educationally backwards classes (SEBCs). This study indicates the
awareness and opinions of the people about uplifting the economically weaker sections of the
society.

Keyword : RESERVATION, Backward section, constitution of India, discrimination, societal

part of Indian constitution.

INTRODUCTION
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The age –old caste system of Indian is responsible for the
origination of the reservation system in the country. In simple
terms, it is about facilitating access to seats in the government
jobs, educational institutions, and even legislatures to certain
sections of the population. This section have faced historical
injustice due to their caste identity. As a quota based affirmative
action , the reservation can also be seen as positive
discrimination. In India , As the constitution stands amended, the
only constitutional challenge left is conformity to the basic structure
doctrine. So far, it has become an established principle that reservation
shall have a cap of 50%.  These stipulations first arose in M.R Balaji v.
State of Mysore1 when court stated that reservation above 50% would imply
dominance over section 16(1). The government notification providing 10%
reservation to weaker economic sections of society was struck down in
Indra Sawhney v. UOI2. However, it is noteworthy that these rulings were
given in relation to a law or subordinate legislation and have never been
discarded in violation of Basic Structure Doctrine. Moreover, the
amendment only provides reservation to the extent of 10%. , however, the
existing articles 15(4), 15(5) and 16(4) do not mention that reservation shall
be 50% explicitly, by way of legislation. Consequently, any challenge
pertaining to violation of basic structure does not seem to have a stand.

A writ petition has been filed by Youth for Equality contending that 103rd
amendment violates the basis structure doctrine. Economic reservation
finds its ground in terms of equality. It is difficult to see how economic
reservation damages or destroys the concept of equality, and consequently
Basic Structure. Therefore, the fact how equality and social justice is
presently understood in Constitution, shall be no ground for striking it down
while I agree that the 103rd amendment has created a logical mess and
had put group determine, social and educational backwardness at war by
inclusion of article 15 (6) and 16 (6)..

The Constitution (One Hundred and Fifth Amendment) Act, 2021-

restored the power of State governments to recognize socially and
educationally backward classes (SEBCs). SEBCs, which Includes the
groups commonly known as Other Backward Classes (OBCs), are

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communities for which the State can provide 'special
provisions' or affirmative action in India. The 105
Constitutional Amendment Act restored the state
governments’ power to prepare the list of Socially and
Educationally Backward Classes (SEBC). The 102
Constitutional Amendment Act that gave constitutional
status to the National Commission for the Backward Class
(NCBC) by adding Article 338B. The 105 Constitutional
Amendment Act restored state governments’ power to
prepare the Socially and Educationally Backward Classes
(SEBC) list. As per the Supreme Court, the 102
Constitutional Amendment Act implied that the state
governments did not have the authority to identify the
SEBC.
 105 Constitutional Amendment Act also stated that
the National Commission for Backward Classes'
powers and responsibilities (consulted on all policy
issues and honor) did not apply to the independent
State lists. It indicated that States do not require to
consult the National Commission. To restore this
power, the 105 Constitutional Amendment Act was
passed. Both the amendment are compulsory for
change in constitution of India . With the
combination of Article 366 and Article 338B, the
States were now obliged to consult the NCBC
and could not declare SEBCs independently.

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DETAIL
Detail of 103 and 105 amendment of
Indian constitution.
103 amendment.
As a result of the 103 Constitution Amendment Act, the Economically Weaker
Sections (EWS), Other Backward Classes, Scheduled Castes, and Scheduled
Tribes now have a 10% reservation for admission to central government and
private educational institutions, as well as recruitment into central government
jobs.
Private unaided educational institutions are also covered by the clause, except
minority educational institutions. Economic backwardness is measured based
on household income.
This is in response to a Public Interest Litigation (PIL) that asks
the Supreme Court to intervene so that the 10% EWS quota can be
implemented in Tamil Nadu and Karnataka without disrupting the existing
reservation framework, which includes the Scheduled Castes (SC), Scheduled
Tribes (ST), Backward Classes (BC), and Most Backward Classes (MBC).
The Amendment Act’s ten percent reservation is in addition to the current ten
percent reservation. It does not affect or infringe on anyone’s basic rights to
equality but instead grants the EWS equal participation and representation.
The Centre notified the Supreme Court that it has no role in deciding any state
government’s reservation policy. The reservation under Articles 15(6) and 16(6)
must be decided by the affected state governments.
Background of 103 Constitution Amendment Act:
According to the mandate of the 103rd Constitutional (Amendment) Act,
2019, the Supreme Court issued a notice to the Centre on a PIL seeking
direction to Karnataka and Tamil Nadu to implement a 10% quota in jobs and
education for EWS.
Neither Tamil Nadu nor Karnataka, according to the plea, had adopted the
modification.
It further noted that in Tamil Nadu, 69 percent of jobs and school seats are

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reserved for SC’s, ST’s, BC’s, and MBC’s, compared to 70 percent in
Karnataka.
The 2019 Constitutional (103rd Amendment) Act:
It amended Articles 15 and 16 to create an economic reserve. It amended the
Constitution to include Articles 15 (6) and 16 (6), allowing reservation for the
economically disadvantaged in the unreserved category.
Furthermore, it was passed to help the poor who were left out of the 50 percent
reservation policy for SC’s, ST’s, and Socially and Educationally Backward
Classes(SEBC).
Not only that, but it empowers both the Centre and the states to grant
reservations to the society’s laws.
Because this is federal legislation affecting issues on which both the states and
the federal government have jurisdiction (employment and education), state
governments must approve it before it can be implemented locally.

Examining the 103 Constitution Amendment Act:

The problem when the Constitution was modified was fulfilling the fundamental structure
doctrine’s standards. Since it was an established notion that reserve should be limited to
50%, the Supreme court in Mr. Balaji vs. the State of Mysore held that if the quota
exceeded 50%, it would suggest dominance over Section 16(1) of the Constitution. The
Indian government established a 10% reserve for the poorest 10% of the population.
Indira Sawhney vs. Union of India resulted in its removal.
All of these decisions were made with the law and legislation in mind, which have never
been disregarded in contravention of the fundamental structural theory. Only a ten
percent reserve appears to be provided by the amendment. Using the law, Articles 15(4),
15(5), and 16(4) do not specifically state that the reserve must be 50%. As a result, any
challenge based on a breach of the fundamental structural concept is invalid. A writ
petition was filed by Youth for Equality, stating that the modification appears to
contravene the fundamental structural concept.
Advocate Pawan and advocate Deepak have filed two further petitions. Given that the
amendment was framed with equality in mind, it’s difficult to understand how the
reservation undermines the principles of equality and basic structure. 
Note:
In the case of Kesavananda Bharati vs. the State of Kerala, the Supreme Court said
unequivocally that no law may be issued in the Indian Gazette that undermines or
damages the fundamental framework of the Indian Constitution.  As a result, it may be
argued that the 103rd Amendment was properly crafted and effectively combated
educational and social inequity by incorporating Articles 15(6) and 16(6).

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105 amendment.

The 105 Constitutional Amendment Act restored state governments’ power to

prepare the Socially and Educationally Backward Classes (SEBC) list. As per the
Supreme Court, the 102 Constitutional Amendment Act implied that the state
governments did not have the authority to identify the SEBC.

105 Constitutional Amendment Act also stated that the National Commission for
Backward Classes' powers and responsibilities (consulted on all policy issues and
honor) did not apply to the independent State lists. It indicated that States do not require
to consult the National Commission. To restore this power, the 105 Constitutional
Amendment Act was passed.

Need for the 105 Constitutional Amendment Act

Following are the reasons why there was a need for the 105 Constitutional Amendment
Act. The Constitution has given the Union and States the authority to mark the Socially
and Educationally Backward Classes.

However, when the 102 Constitutional Amendment Act giving constitutional

status to the National Commission for the Backward Class (NCBC) was passed,
it was interpreted by the Supreme Court that the 102nd Amendment had taken
away the States’ right to identify the SEBCs.

This fact came to light when a month after the passing of the 102nd Amendment,
the Maharashtra government’s law granting the Marathas a Socially and
Economically Backward Classes status was challenged in the Supreme Court,
and the Supreme Court, for the first time, held that 102nd Amendment had taken
away States’ powers to recognize SEBCs.

The reason given by Justice S Ravindra Bhat is that the Parliament had added
Article 342 A.

With the combination of Article 366 and Article 338B, the States were nowobliged to
consult the NCBC and could not declare SEBCs independently.

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If the 102nd Amendment had only inserted Article 338B, the power of
identification of the Socially and Educationally Backward Classes would have
remained with the States.

Hence, there was a requirement for modification in the 105 Constitutional Amendment
Act.

Significance of the 105 Constitutional Amendment Act

The Bill aims to restore the power of State governments to recognize OBCs that are
socially and educationally backward.

The Union government has argued that the purpose of the 105 Constitutional
Amendment Act is to create a Central List that would be applied only to the
Central Government and its institutions.

It had nothing to do with the State Lists of backward classes or the State
governments’ powers to declare a community backward.

The Bill will benefit around 671 OBC communities because if the state list got
canceled, these number of OBC communities would have lost access to
reservations in appointments and academic institutions.

This Bill furthers social empowerment.

It also reflects our Government’s commitment to assuring dignity, opportunity,

and justice to the marginalized sections.

The Corrective Course of the 105 Constitutional

Amendment Act
The Union government tried to sort the matters out. It argued that the 102nd
amendment act intended to enable the Union government to identify SEBCs and would
only apply to the Central government and the institutions governed by it.

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It did nothing to remove the State governments’ power to label the SEBCs.

All political parties favored restoring the States’ power as early as possible.

There was unanimous demand to repeal the Supreme Court’s verdict.

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Hence, the 105 Constitutional Amendment Act was introduced in Parliament and
passed unanimously in both houses.

Not a single member voted against it in the Lok Sabha.

Thus, the Parliament restored the provisions providing States with authority to
identify SEBCs.

Conclusion
The system of reservation is not entirely based on casteism and thus
divides the society leading to discrimination and conflicts between different
categories. It is the converse of a communal living. Reforms in reservation
system is the need of the hour. The reservation system has mostly led to a
conflict between the reserved and the unreserved categories of the country.
Observing from a neutral perspective it can be stated that although reservation
is needed for the country but at the same time there is a need to create a
system which supports affirmative action more than appeasement politics. Any
negative aspect of reservation should not serve as a hurdle for the development
of rapidly growing economy of India.”

The present amendment is violative of the principle of Equality as it damages

the constitutional identity of the Articles enshrined in the Equality Code and the
Parliament has acted has made excessive use of their legislative powers to
enact this Amendment. Furthermore, the Amendment violates the 50% Rule
which is part of the Basic Structure. Also, the Present Amendment destroys the
principle of Substantive Democracy by granting reservation to well represented
classes.

Thus, the 103rd Amendment has the effect of enhancing and cementing the
representation of those who are already over-represented in the public services
relative to other population, who own a disproportionate percentage of the
country’s wealth. This does violence to the concept of equality as is commonly
understood and changes it beyond recognition and fails the “identity test”
prescribed in M. Nagaraj.  

A Constitutional amendment can be struck down by the Supreme Court if it has

the effect of destroning or abrogating the “basic structure” of the Constitution s
given in Parliament.
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