Introduction– Economic weaker section is a section of society which has less income than eight lakh rupees and does not belong to scheduled caste, scheduled tribe or other backward classes. “The one hundred and third amendment act” 2019 enabled the “Reservation” particularly for the ““economically weaker section””. After India got independent there was the principle of “Reservation” applied only to the community of SC/ST. This particular section only has under its ambit the people who have less income than the specified criterion or the people below poverty line but there is no certain definition of it laid anywhere or in any statute. After the amendment through which this specified section of the society got added, section 15(6) and 16(6) was added in the “Constitution of India”. There is no certain explanations given for this section hence, it is quite difficult to give it a certain definition. As every aspect has both, its positive and negative side of the aspect, similarly the “Reservation” of economic weaker section “Reservation” also has its pros and criticism. Critically analysing the aspects gives us the basic insight of the topic, and makes us aware about it. Hence, under this paper I would be critically analysing the “Reservation” system of India regarding “economically weaker section”.
103rd CONSTITUTION AMENDMENT
This amendment was done in the year 2019 and was considered to be the 103rd amendment of the constitution after it came into force in the country. This amendment threw light on the economic weaker section by providing it with the “Reservation” under the ambit of article 15(6) and article 16(6). The bill to amend the constitution for adding the “Reservation” for “economically weaker section” got introduced in India in January 2019 and was passed by both the houses. The economic reserve was created by this amendment act by amending article 15 and 16 of the Indian constitution. After it the 10% “Reservation” was laid in the field of “admission to central government and private educational institutions, as well as recruitment into central government jobs” and it also covered the “Reservation” in Private unaided educational institution under its ambit. The constitution was India explains 15(6) as “nothing in the article 15 or sub clause(g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the state from making”-“Any special provision for the advancement of any “economically weaker section” of citizen other than the classes mentioned in clause(4) and (5)” and any special provision for the advancement of any “economically weaker section” of citizens other than the classes mentioned in clauses(4) and (5) in so far as such special provision relate to their admission to educational institution including private educational institution, 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 “Reservation” and subject to a maximum of ten percent. Of the total seats in each category.” And article 16(6) states that “nothing in this article shall prevent the state from making any provision for the “Reservation” of appointments or post in favour of any economic weaker section of citizen other than the classes mentioned in clause (4) ,in addition to the existing “Reservation” and subject to a maximum of ten percent of the post in each category”.
NEED FOR THE “RESERVATION” ON THE BASIS OF ECONOMIC CONDITION-
India is a country where all the backward and forward classes exist. As poverty is increasing and “economically backward classes are lagging behind those who earn well off. The opportunities which the people with love income and people of below poverty line are getting is very much less than the people with high income. When we question the system regarding the need of “Reservation”, it is not for increasing the gap between the sections of society or increase the discrimination but it is mainly to uplift the backward classes. Economic backwardness is something by which many people of the country are suffering due to the increasing population and less resources. That is why in today’s generation not only we need the “Reservation” on the basis of caste but also on the basis of income. “Reservation” on the basis of economic backwardness is very much necessary to break the system of inequality which is very much prevalent in our country. The “Reservation” will bring all the haves and haves not on the equal footing thus decreasing the inequality. As to judge people on the basis of their merit, it is very much necessary to bring them to equal level.
GROUND OF “RESERVATION” OF THE ECONOMIC WEAKER SECTION-The ground on which the “Reservation” is provided to the “economically backward classes is solely based on income of the household and not on who lies above or below the economically backwardness line. Hence, to determine the eligibility of the “Reservation” criteria these conditions should be taken into consideration.
- This EWS “Reservation” is only allocated to the people who does not belong to any other backward class like OBC, SC, ST etc. Those who are wanting “Reservation” should be of general category.
- The annual family income should be below 8 lakh Indian rupees. Then only he/she would be eligible for the “Reservation”.
- The family’s residential land should not be more than 1000 Sq/ft, otherwise it could be difficult to get the “Reservation”.
- The family should not have the agricultural land more than 5 acre otherwise it will be difficult to get the “Reservation”.
- Most importantly, the individual applying for the “Reservation” should not belong to any other category to which the “Reservation” system is already allocated. Which means that if and individual belonging to SC/ST/OBC would not be entitled to get “Reservation” also in “economically weaker section” exclusively.
PROOF FOR ENTITLEMENT OF EWS “RESERVATION”
For getting entitled to the EWS “Reservation” a person needs to prove that he/she belongs to the “economically weaker section”. In order to prove it he/she should have ‘Income assets certificate’ to show income record of the family. This certificate remains valid for only an year and needs to be re-issued every year. This is the necessary component to being eligible for the EWS “Reservation”.
PAST JUDGEMENTS IN REGARD WITH EWS “RESERVATION” IN INDIA
“JANHIT ABHIYAN” V UNION OF INDIA 2022”
BRIEF ACTS- There was the enactment of “one hundred and third constitutional amendment act 2019” by the parliament of the India in which the state was being allowed to make decision on granting “Reservation” in the field of public employment and high education on the basis of economic criteria there was the addition of 15(6) and 16(6) in 2019 through the one hundred and third amendment. This amendment was being opposed by many petition filed against it as this amendment resulted in providing ten percent “Reservation” to the “economically weaker section” of India under educational institution both aided and unaided institution except the institution protected under article30(1) and “Reservation” in appointment was also included under article 16(1) this also increased the ceiling of ten percent into the “Reservation” cap which was already existing.
Issue Raised-
- Is the “Reservation” based on economic factor solely is justifiable?
- Does the one hundred and third amendment violate the fundamental element of the fifty percent ceiling limit which was set by supreme court?
- Can ST/SC/OBC and SEBC shall be excluded from “Reservation” entitled to economic weaker section?
JUDGEMENT- One of the important landmark judgements related to EWS “Reservation” in India is “Janhit Abhiyan v. Union Of India” In this case there was a 5 judge bench. The court held in 3:2 judgement upheld the constitution 103rd amendment and that exclusion of SC/ST/OBC and other classes under the ambit of economic “Reservation” is not the abrogation of basic structure of the constitution of India as these categories are already having the benefit of the “Reservation” as per the Indian constitution and are getting the reserved quota already for them. The court also held that “Reservation” could not only be granted solely on economic criteria as “Reservation” based on caste in India is very much needed otherwise it will be Injustice to other backward classes of society.
“Indira Sawhney v Union Of India”1992
ISSUE RAISED-
- whether the report given by the mandal commission regarding “Reservation” was valid or invalid?
- What was the scope of article 16(1) and 16(4) whether cast constitutes an altogether different class and whether economic criteria could be one of the determinants of the class?
In this case the court held that backward classes which are mentioned under article 16(4) of the Indian constitution cannot be solely identified on the basis of economic criteria but caste is also needs to be taken into consideration. That means that the economic criteria cannot be the sole determinant of the backwardness and the concept of “creamy layer” was also given which meant that which meant the person who belonged to the backward classes but was well off in other criteria like economically, educationally and socially.
M.R Balaji vs State of Mysore (1962)
ISSUE RAISED
- Whether the order issued by government of Mysore was acted in according to article 15(4) of Indian constitution?
- Whether it was justified by the state into classifying the backward classes into “backward classes and “more backward classes”?
- Whether the “Reservation” of sixty eight percent of the seats reasonable?
JUDGEMENT
In this case it was held by the supreme court the “Reservation” should not the exceed the ceiling of fifty percent and the distinction which is lead between backward and less backward class is invalid and the factor like poverty should be taken into consideration while determining the backwardness of the class and fifty percent ceiling limit should not exceed as it will violate the fundamental right but it also said that cast cannot be sole bases for the determination of backwardness but other factor should also be considered like poverty and occupation. The court also said that the “Reservation” of sixty eight percent of seats in the technical institution would be injustice for the constitution and also the people of the country
RECENT DVELOPMENTS-
Since 2019 there have been no measure agreement in relation with the “Reservation” for economic weaker section but recently two of the judges who were dealing the case “Janhit Abhiyan vs union of India” in which ten percent (10%) percent “Reservation” was granted to economic weaker section observed that “there is a need to revisit the system of “Reservation” after the seventy five year of independence and “Reservation” cannot go on for a indefinite period” as according to their view the “Reservation” system is to remove the inequality and injustice and it should not be used by the people unjustly. So according them if there is a person who has qualified to the level of proper employment should now be removed from the class of economic weaker people. The criteria for identification to determine who is really economic weaker should be reviewed for revised and it should be also taken into consideration whether the criteria which was set to identify the backwardness is still helpful or matching the current scenario and Justice Pardi Wala quoted that “Dr.BR Ambedkar to state that the idea was to bring social harmony by introducing “Reservation” for only ten years. However, it has continued past 7 decades”. In relation with one of the cases named as “Md Imran Ahmad vs union of India” the supreme court seeked for the response from government and fifteen state and union territory to respond in the plea which is the demand through PIL which was related to “Reservation” of twenty five percent “Reservation” of the entry into the seats for the “economically weaker section”. As this is the very recent amendment therefore there has not been very much development in this regard.
CRITICAL ANALYSIS OF THE EWS “RESERVATION” SYSTEM
The “Reservation” for economic weaker section is a good way to decrease the economic inequality prevalent in the country and can improve the condition, and is a better kind of “Reservation”. But it has several criticisms as well. There are certain lacunas that is needed to be improved. But before going into the lacunas, it is important to look into its advantages as well. First and foremost, advantage is this quota will only be for the section who are economically weaker and have less income, and the section who is already getting an “Reservation” through another kind of quota or being in another backward classes will be excluded from this. Secondly, this is the only “Reservation” for which the general categories are also eligible that means this is the only “Reservation” which could be applicable to general category people of India. Thirdly, the people belonging to the “economically weaker section” will be uplifted and will have more opportunities, this will enhance their level socially as they are the main beneficiaries of this kind of “Reservation” hence will bring down the educational and income based inequality. As the amendment in the constitution will lead to the constitutional recognition of the “economically weaker section”. It is also eventually removing the stigma attached to the “Reservation” system of India that the particular caste is getting unfair advantage and now the “Reservation” is not only based on caste but it is also based on the economic condition of the particular section. But, as it is said that no system could be without any hole in it, the same way EWS “Reservation” also has few holes in it. The income eligibility criteria which prescribe 8 lakh of family income I quite flawed as the major section of Indian society falls into these criteria and which is not suited for the country like India which has high poverty rate, so the 8 lakh income criteria should be brought down. As the 50% ceiling limit or the “Reservation” cap which has been prescribed in the case of “Indira Sawhney” is challenged or to some extent has been breached by the 103rd amendment as due to this particular kind of “Reservation” the ceiling criteria would exceed, hence challenges the judicial decision. Another criticism is that, determining the economic backwardness is very much difficult in the county like India which has very large population and very large population of the “economically backward class” too. This system is not really benefitting the poverty stricken or “economically backward class” as the benefit is not reaching to them, and is getting used by the upper caste of the society. People show the fake income certificate and get easily entitled for the “Reservation”. It is also increasing the difficulties and challenges for the people who are not economically, socially backward and neither belong to any of the backward classes, as these reservations are decreasing the importance of merit-based selection, people belonging to the well-off section are facing struggle in order to compete with the section who are already getting the benefit of “Reservation”. According to the poverty situation of our country 8 lakh family income is not considered to be as poverty stricken or economically weak as according to the data nearly 1% of the India have the family income more than 10 lakh, hence it is making the eligibility absurd and making the idea of social and economic justice go into haste. This system of “Reservation” lays greater emphasis on the income based backwardness rather also laying emphasis on the unemployment, family size, and poverty. Another lacuna is that the family income is 8 lakh which is set for the condition of getting the “Reservation” but there is no emphasis on the family size, even if the family is of three people the 8 lakh income is the minimum income and even if the family size is fifteen the minimum income is still 8 lakh, but if we look into this practically the people with family size of fifteen people are more economically backward than the people belonging to the family of three people with 8 lakh income. The “economically weaker section” in India is too broad and large, as majority of the population falls into the category of “economically weaker section”. These criteria od “Reservation” does not include the people belonging to the category of SC/ST/OBC/SEBC who are considered to be the most backward and poor classes of the society from the history of India, excluding them is very unjust as the people belonging to these categories even after being poverty stricken or economically backward are not able to avail the “Reservation” due to their exclusion from the same. This system is haste as, this was the subject concerning the public at large still this act was passed very quickly within 48 hours only, but it needed to be discussed thoroughly in the parliament as it is not the matter or any minor issue or debate, this issue was of the public at large and the amendment in the constitution should not be taken into this much hurry. There should have been proper and wide discussion and committee discussion. The bill did not go through the proper scrutiny of parliament thus questioning the system as a whole. The statement during the introduction of the amendment was given as “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.” But there was no proper data given to support the statement, thus the topic of such greater importance should not have been taken this much lightly. This was just a guessing game given, as there was no proper data or survey results has been given.
CONCLUSION
As judiciary is the evolving concept the laws and amendment changes with the changing of society and the court’s decision can be challenged anytime considering the evolution of the concept of “Reservation”, but still the granting of ten percent “Reservation” to “economically backward class” is considered to be justified and valid das well. It is true that “Reservation” was evolved as the concept to end the social justice which was present in the history of India but as with the passing of time the concept of inequality and backwardness is becoming broad the economic inequality and economic backwardness should be picturized in the process of granting “Reservation” which will make the system of “Reservation” more efficient and beneficial the economic “Reservation” is truly justified but the elimination of the people of SC/ST/OBC/SEBC is from the EWS “Reservation” is a matter of reviewing and debate as the “Reservation” was the process of eliminating inequality the emphasis should be laid equally on all kind of “Reservation” whether it be economic based “Reservation” and caste based “Reservation”. The supreme court in the case of “Janhit Abhiyaan” was very apt in upholding the one hundred and third amendment of the constitution as it was very necessary step to eradicate the economic inequality and bringing people who belong to economic backwardness out of the pit. As per my analysis the criteria of eight lakh income are questionable as in our country majority of the people have income of less than 10 lakh per annum. And also, the one hundred and third amendment goes against the ceiling limit of fifty percent which was laid down in “Indira Sawhney” case, hence it shows that this amendment itself goes against the judiciary. As per the data available of various portal the one hundred and third amendment was passed into hurry as the parliament did not even get reasonable time to go through the principle of amendment thoroughly.
Article written by
NAME – PRAGYA SINGH
COLLEGE– SYMBIOSIS LAW SCHOOL NAGPUR
INTENRSHIP PERIOD– 20th June to 20th july
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