- The 10% quota for economically weaker sections has been challenged in the Supreme Court on grounds of violating the ‘basic structure’ of Constitution.
- The 124th Constitutional Amendment has been recently passed by the parliament.
- This amended two fundamental rights:
- Article 15
- The Bill seeks to add clause 15 (6) which permits the government to provide special provisions for the advancement of “economically weaker sections”.
- Further, up to 10% of seats may be reserved for such sections for admission in educational institutions except minority educational institutions.
- Article 16
- The Bill seeks to add clause 16 (6), which permits the government to reserve up to 10% of all posts for the “economically weaker sections” of citizens.
- It also makes a note of the Article 46, which asks the government to promote the educational and economic interests of the weaker sections of the society.
- Thisconstitutional amendment has been challenged by an NGO, Youth for Equalityon the ground of violating the basic structure of the Constitution.
- This article explains the relation between 124th constitutional amendment and Basic structure doctrine.
Evolution of concept of Basic Structure
- The idea of basic structure was originally suggested by Justice M Hidayatullah& Justice J R Mudholkar in Sajjan Singh (1965).
- It has been borrowed from Germany.
- In Shankari Prasad (1951) and Sajjan Singh (1965), SC conceded absolute power to Parliament in amending the Constitution.
- In Golaknath (1967) held that Parliament does not have the power to amend the Constitution.
- In KesavanandaBharati (1973), the Supreme Court held that Parliament can amend the Constitution but does not have power to change its “basic structure”, which is yet undefined.
- From the various judgements, the following have emerged as elements of theBasic structure:
- Supremacy of the Constitution, Sovereign, democratic and republican nature of the Indian polity, Secular character of the Constitution, Separation of powers between the legislature, the executive and the judiciary and federal character of the Constitution.
- Unity and integrity of the nation, Welfare state (socio-economic justice), judicial review, harmony and balance between Fundamental Rights and Directive Principles, Principle of equality, Independence of Judiciary, and Limited power of Parliament to amend the Constitution, etc.
- Significance of Basic structure doctrine
- It works as a safety valve against majoritarianism and authoritarianism.
- It safeguards citizens’ liberties and preserves the ideals on which the Constitution is based.
Application of Basic structure doctrine on 124th constitutional amendment
- To decide any element of basic structure, the Supreme Court looks into the intent of the constitution makers for any provision of the constitution.
- For the intent of reservation under article 15 and 16 the Supreme Court can look into the basic philosophy behind reservation.
- All the provisions related to the reservation whether, article 15, 16, 17, 46, 338, 338 (A), 339 and 335 are based on social and educational backwardness and not on economic backwardness.
- While the 124th Amendment makes departure from social and educational backwardness by extending reservation to the economically disadvantaged.
Violation of basic structure by 124th amendment
- To determine this, the Supreme Court has to examine the principles on which affirmative action is based.
- Firstly, as per M Nagraj (2006), the amendment act has to justified on following grounds-
- Quantitative limitations such as violation of the 50% ceiling for all reservations taken together.
- Exclusion of creamy layer or qualitative exclusion.
- Compelling reasons such as backwardness of the economically weaker sections for which this reservation has been made.
- Overall administrative efficiency is not obliterated by the new reservation.
- Secondly, Supreme Court will examine if the amendment alters the identity of the Constitution.
- Equality has to be maintained in order to protect identity of the constitution.
- This would require that the state’s decision is rational and non-arbitrary.
- The amendment can only sustain if SC doesn’t considers past injustices and social backwardness necessary for affirmative action.
- The government has to provide empiral evidences to prove backwardness of advance classes, as it was done by Mandal commission.