RESEARCH PAPER

SCHEME OF RESERVATION UNDER CONSTITUTION OF INDIA WITH SPECIAL

REFERENCE TO 103RD CONSTITUTION AMENDMENT ACT, 2019

MARCH 18, 2019

RIJUKA NARESH JAIN
MEGHNA BHARAT KOTHARI
SCHEME OF RESERVATION UNDER CONSTITUTION OF INDIA WITH SPECIAL
REFERENCE TO 103RD CONSTITUTION AMENDMENT ACT,2019.
The research paper below has been written by Rijuka Naresh Jain and Meghna
Bharat Kothari. In the paper we have managed to cover the history of reservation:
before and after independence followed by the backward class commission. Next in
line we have spoken about the 103rd constitution amendment act: about the
amendment act, provisions and few of the highlights. Article 15 & 16 have been
discussed at length along with the reasons for amending them. We have also tried to
cover Economically Weaker Section and who falls in the ambit of Economically
Weaker Section. In the end, we have put forward our opinions in regard to the critical
analysis of the topic, the challenges faced in general by public at large due to these
reservations and what remedies are available to improve the situation or the
reservation system in India.

INTRODUCTION:
Reservation in Indian law is a form of affirmative action whereby a percentage of seats
are reserved in the public sector units, union and state civil services, union and state
government departments and in all public and private educational institutions, except
in the religious minority educational institutions, for the socially and educationally
backward communities and the Scheduled Castes and Tribes who are inadequately
represented in these services and institutions. The reservation policy is also extended
for the Scheduled Castes1 and Scheduled Tribes2 for representation in the Parliament
of India. The reservation has always been a dicey and volatile issue in Indian
democracy. One group argues that it has faced numerous hardships since time
immemorial and deserves certain relief as compensation for that. On the other hand,
another group claims that India is a secular and democratic country, and its
Constitution suggests that everyone is equal. They call it discrimination if any group
enjoys any additional benefits. But the same Constitution also lays down provisions
for reserving seats in different areas of life, such as education, government jobs,
judiciary, etc. A fixed percentage of India's government and public sector jobs are

1
Schedule Castes are sub-communities within the framework of the Hindu caste system who have historically
faced deprivation, oppression and extreme social isolation in India on account of their perceived ‘low status’.
2
The framers of the Constitution took note of the fact that certain communities in the country were suffering
from extreme social, educational and economic backwardness on account of the primitive agricultural practices,
lack of infrastructure facilities and geographical isolation.
made exclusive for categories of people largely based on their caste or tribe. In India
scholarships or student aid is available for—Schedule Castes (SCs), Schedule Tribes
(STs), Backward Classes (BCs), Other Backward Classes (OBCs)3, women, Muslims,
and other minorities. Only about 0.6% of scholarships or student aid in India is based
on merit, given the grossly inadequate representation of above-mentioned categories
in employment and education due to historic, societal and cultural reasons.

HISTORY OF RESERVATION:
The primary objective of the reservation system in India is to enhance the social and
educational status of underprivileged communities and thus improve their lives. The
Indian government believed that it was important to give benefits to people who have
been historically denied access to social and economic resources so that they have
a chance to establish a livelihood. The cost of these benefits would be paid by all
Indian taxpayers and international funding agencies such as World Bank, IMF and
Asia development bank.

BEFORE INDEPENDENCE:
Quota systems favouring certain castes and other communities existed before
independence in several areas of British India. The Maharaja of the princely state of
Kolhapur provided free education to everyone and opened several hostels to make it
easier for them to receive it. He also tried to ensure that educated people were
suitably employed. He appealed both for a class-free India and the abolition
of untouchability. His efforts created 50 percent reservation for backward
communities.

AFTER INDEPENDENCE:
After the independence of India in 1947 there were some major initiatives in favour of
the STs, SCs and after the 1980s in favour of Other Backward Castes and in 2019
for poor general category. A fixed percentage of India's government and public
sector jobs are made exclusive for categories of people largely based on their caste
or tribe. In central-government funded higher education institutions, 22.5% of

3
Communities that have been historically marginalised in India, and continue to face oppression and social,
economic and educational isolation, but do not fall into the Scheduled Castes or Scheduled Tribes list, fall into
the Other Backward Class category.
available seats are reserved for Scheduled Caste (SC) and Scheduled Tribe (ST)
students (7.5% for SCs, 15% for STs). This reservation percentage has been raised
to 49% by including an additional 27% reservation for OBC.

BACKWARD CLASS COMMISSION:

India's National Commission for Backward Classes is a Constitutional body under
India's Ministry of Social Justice and Empowerment established on 14 August 1993.
It was constituted pursuant to the provisions of the National Commission for
Backward Classes Act, 1993.

ABOUT/PROVISIONS OF 103RD CONSTITUTION AMENDMENT ACT, 2019:

The Constitution (One Hundred and Third Amendment) Act, 2019 has been brought
into effect on 14-01-2019, as notified in S.O. 292(E)4, by the Central Government on
14-01-2019, in exercise of the powers conferred by sub-section (2) of section 1 of the
Constitution (One Hundred and Third Amendment) Act, 2019.
It was passed by the Rajya Sabha on 09-01-2019 as The Constitution (One Hundred
and Twenty- fourth Amendment) Bill, 2019, and was assented to by the President on
12-01-2019.
The provisions of the 103rd Constitution Amendment Act are as follows:
• It is the 124th Constitutional Amendment Bill.
• It provides for 10% reservation of jobs in central government as well as
governmental educational institutions. It is also applicable to on admission to
private higher educational institutions.
• It applies to citizens belonging to Economically Weaker Sections from the
upper castes.
• This reservation is “in addition to the existing reservations and subject to a
maximum of ten percent of the total seats in each category.
• It was drafted with a will to mandate Article 465, that urges the government to
protect the educational and economic interests of the weaker sections of the

4
S.O. 292(E). —In exercise of the powers conferred by sub-section (2) of section 1 of the Constitution (One
Hundred and Third Amendment) Act, 2019, the Central Government hereby appoints the 14th January 2019 as
the date on which the provisions of the said Act shall come into force.
5
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker
sections The State shall promote with special care the educational and economic interests of the weaker sections
 society. While socially disadvantaged sections have enjoyed participation in
the employment in the services of the state, no such benefit was provided to
the Economically Weaker Sections.

HIGHLIGHTS OF THE 103RD CONSTITUTION AMENDMENT ACT, 2019:

• The Constitutional (103rd Amendment) Act got the assent of President of
India on 13th January 2018. The bill was passed in Lok Sabha by 323
members voting in favour and 3 members against the bill. It was subsequently
passed by Rajya Sabha with 165 members in the favour and only 7 members
against the bill.
• It provides reservation of jobs in central government jobs as well as
government educational institutions. It is also applicable on admissions to
private higher educational institutions.
• It applies to citizens belonging to the economically weaker sections from the
upper castes.
• This reservation is "in addition to the existing reservations and subject to a
maximum of ten per cent of the total seats in each category.”
• The Statement of Objects and Reasons of the Bill states that people from
economically weaker sections of the society 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.
• The bill states that it is drafted with a will to mandate Article 46 of the
Constitution of India, a Directive Principle that urges the government to
protect the educational and economic interests of the weaker sections of
society. While socially disadvantaged sections have enjoyed participation in
the employment in the services of the state, no such benefit was provided to
the economically weaker sections.

ARTICLE 15 OF THE CONSTITUTION OF INDIA:

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation.
(1)The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition about
(a) access to shops, public restaurants, hotels and palaces of public
entertainment; or
(b) the use of wells, tanks, bathing Ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public
(3) Nothing in this article shall prevent the State from making any special provision
for women and children
(4) Nothing in this article or in clause (2) of Article 296 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

WHY DID THE AMENDMENT TAKE PLACE?

Article 15 of the Constitution of India did not mention reservation for the
Economically Weaker Section and thus it was added in clause (6). The word
backward class includes only Schedule Caste (SC), Schedule Tribes (ST) and Other
Backward Class (OBC) and not Economically Weaker Section (EWS). Article 15 of
the Constitution prohibits discrimination against any citizen on the grounds of race,
religion, caste, sex, or place of birth. However, the government may make special
provisions for the advancement of socially and educationally backward classes, or
for Scheduled Castes and Scheduled Tribes. The Bill seeks to amend Article 15 to
additionally permit the government to provide for the advancement of “economically
weaker sections”. Further, up to 10% of seats may be reserved for such sections for
admission in educational institutions. Such reservation will not apply to minority
educational institutions.

6
No citizen shall be denied admission into any educational institution maintained by the State or receiving aid
out of State funds on grounds only of religion, race, caste, language or any of them.
AMENDED ARTICLE 15 OF THE CONSTITUTION OF INDIA:
In Article 15 of the Constitution, after clause (5), the following clause shall be
inserted, namely: —‘(6) Nothing in this article or sub-clause (g) of clause (1) of
Article 19 or clause (2) of Article 29 shall prevent the State from making—
(a) any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5) in so far as such
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, which in the
case of reservation would be in addition to the existing reservations and subject to a
maximum of ten per cent. of the total seats in each category.

ARTICLE 16 OF THE CONSTITUTION OF INDIA:

Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in respect
or, any employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing,
in regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services
under the State
(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a
person professing a particular religion or belonging to a particular denomination.
WHY DID THE AMENDMENT TAKE PLACE?
Article 16 of the Constitution of India did not mention reservation for the
Economically Deprived Section and thus it was added in clause (6). The word
backward class includes only Schedule Caste (SC), Schedule Tribe (ST) and Other
Backward Class (OBC) and not Economically Weaker Section (EWS). Article 16 of
the Constitution prohibits discrimination in employment in any government office.
However, the government can allow reservation for any “backward class of citizens”,
if they are not adequately represented in the services under the state. The Bill seeks
to amend Article 16 to permit the government to reserve up to 10% of all posts for
the “economically weaker sections” of citizens.

AMENDED ARTICLE 16 OF THE CONSTITUTION OF INDIA:

In Article 16 of the Constitution, after clause (5), the following clause shall be
inserted, namely: —“(6) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned in clause
(4), in addition to the existing reservation and subject to a maximum of ten per
cent of the posts in each category.”
Explanation. For the purposes of Article 15 and Article 16, “economically weaker
sections” shall be such as may be notified by the State from time to time on the basis
of family income and other indicators of economic disadvantage.’

WHAT WAS THE NEED FOR THIS AMENDMENT?

1. Due to deep inequalities prevalent in access to education and access to jobs
based on caste and socio-economic status.
The inequality gap is very wide in India. There is inequality based on caste
and socio-economic status. That means those who are rich or economically
well have better access to education and when they have better access to
education, they also have better access to job because of the exposure they
have gained. It is important for a democratic government to narrow down the
inequalities existing in the society. So, in order to bring out the solution for this
inequality 10% of reservation for the Economically Weaker Section would be
given.
 2. In case of reservation for SCs and STs, to undo historical injustice and social
exclusion suffered over a period.
The Economically Weaker Section has suffered a lot historically and socially
in the past. Thus, in order to give justice, the solution was to give them 10%
reservation from the remaining percentage of general category.
3. To correct deprivation forced upon Economically Weaker Section by centuries
of prejudice.
4. The Constitution did not provide reservation to the Economically Weaker
Section of the society based on income and wealth and thus the 103rd
Constitution Amendment Act,2019 came up.

WHO COMES WITHIN THE AMBIT(CATEGORY) OF ECONOMICALLY WEAKER

SECTION?
1. Family7 with gross income8 less than 8 lakh per annum are the ones who
come into Economically Weaker Section.
2. People who have agricultural land less than 5 acres come in the ambit of
Economically Weaker Section.
3. People who do not have house more than 1000 square feet or a 100-yard plot
are the ones who come into Economically Weaker Section.
4. In case of a residential plot in a non-notified municipality area, the residential
plot should be below 200 yards. If it exceeds the limit, then they do not come
within the ambit of Economically Weaker Section.
5. The communities which come under this are Hindu, Muslim, Sikh, Christian,
Buddhist and many other communities.

CRITICAL ANALYSIS:
IN FAVOUR:
1. There will be more seats in higher education institutions like IITs, IIMs, NITs,
etc. under the new category from the next academic year.

7
Family includes parents, spouse, children and siblings below the age of 18 years.
8
Income will cover income from all sources, whether salary, profession, business, agriculture etc.
 2. The law updates the reservation status with the changing scenario where
privileges are also based on economic standards.
3. Identity politics of religion and caste is not used in reservation which had been
the case till now as the new law of 10 percent quota in government jobs and
education for economically weaker sections is irrespective of caste and
religion.
4. Such action may result in increased opportunities for groups that have been
historically discriminated against. According to those against, the benefits all
go to the elite of a disadvantaged group who hardly need support anyway.
5. A 2015 report in The Times of India stated that despite the 49.5 percent
reservation of seats for SCs, STs and OBCs, the actual number of SC, ST
and OBC employees in government Ministries, Statutory Bodies and
department stands at under 30 percent. The report states that this equates
roughly to around 9040 OBC employees out of 79483 posts. The report adds
that 40 ministries, including ministry of Social Justice, held back the held back
the information sought under the RTI Act.

AGAINST:
Though the Act was passed with a majority of votes and even the opposition
supported it in full-fledge, there are certain precedents of the Supreme Court which
invalidate the Act. A PIL9 has been filed against this Act by ‘Youth for Equality’ and
the judgement is yet to come.
1. M R Balaji v. State of Mysore10
It is a case with 9 Bench judges. In this case, the Supreme Court said that we
cannot give reservation more than 50% as it would violate Article 16(1) of the
Indian Penal Code.
2. Indra Sawhney v. Union of India11
It is a very popular case which had a 9 Bench Judge. It said that Economic
backwardness cannot be the sole basis to determine backwardness.
However, it could be seen in conjunction with social backwardness. A 50%

9
Public Interest Litigation is directly filed by an individual or group of people in the Supreme Court of
India and High Courts of India and judicial member.
10
1963 AIR 649.
11
AIR 1993 SC 477.
 cap on reservation was said and it could breach only in exceptional scenarios.
It struck down 10 percent reservation to EWS in 1992.
3. M Nagaraj & Others v. Union of India12
It a case with 5 Bench Judge. In this case, the Supreme Court said that
equality is a part of our Basic Structure of the Constitution and 50% cap on
reservation was a constitutional requirement without the structure of equality
of opportunity would collapse.
4. The bill was not circulated ahead of being introduced, it was not examined by
a committee, there was hardly anytime between its introduction and final
discussion.
5. It will be difficult to increase the number of seats for many institutions with
hostel facilities. Even many government institutions like New Indian Institute of
Management are operating on rented buildings due to lack of adequate
infrastructure.
6. Various private institutions have already expressed concerns that admission
of poor-quality students under the quota may impact the system of education.
7. The PIL, moved by Youth for Equality, has sought quashing of the bill arguing
that economic criteria cannot be the sole basis of reservation. Further, it held
that the new bill also violates the basic feature of constitution as reservation
on economic grounds cannot be limited to general category.
8. National Sample Survey shows that 98-99% of households fall under the 8-
lakh limit set by the government. So, practically almost everyone will be
covered under the Act.
9. Providing reservation on various grounds and not on the basis of merit has
deteriorated the dedication and determination of many students and has
ruined their careers.
10. The ground of challenge is that the amendment confines the benefit of
economic reservation only to general category candidates. By way of the
present amendments, the exclusion of the Other Backward Classes (OBCs)
and the Schedule Castes (SCs)/ Schedule Tribes (STs) from the scope of the
economic reservation essentially implies that only those who are poor from
the general categories would avail the benefits of the quotas. Taken together

12
AIR 2007 SC 71.
 with the fact that the high creamy layer13 limit of Rs.8 lakh per annum ensures
that the elite in the OBCs and SCs/STs capture the reservation benefits
repeatedly, the poor sections of these categories remain completely deprived.
This is an overwhelming violation of the basic feature of equality enshrined in
Article 14 of the Constitution and elsewhere states the petition.
11. The truly deserving people are left behind and the undeserving ones get an
opportunity which they don’t even deserve, and a seat is lost because of
these reservation policies. It obstructs the growth and development of the
country. Instead the extra 10 percent reservation scheme should be scrapped
out and the youth must be made to word hard for improving the standard of
living and the development of the nation. Even if this is, done to redress the
traditional discrimination.
12. The quality of top educational institutes has gone down because merit is
severely being compromised by these schemes of reservation. Also, not
everyone from the so-called upper class is rich and not everyone from the so-
called lower class is poor. The scheme of reservation has created a huge
unrest in the society.

CHALLENGES
1. The 103rd Constitution Amendment Act,2019 is in violation to equality norm. It
violates Article 1414 of the Constitution of India. As said in M. Nagaraj case,
200615.
2. May dilute the original idea of affirmative sections.
3. It affects every category of individuals.
It will reduce the opportunity to general class in getting education or
employment as the Schedule Castes (SC), Schedule Tribes (ST) & Other
Backward Class (OBC) also come in the category of the remaining 41%.
4. Getting caste certificates.

13
Creamy layer is a term used in Indian politics to refer to the relatively forward and better educated members
of the Other Backward Classes (OBCs), who are not eligible for government-sponsored educational and
professional benefit programs.
14
Equality before law The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.
15
AIR 2007 SC 71.
 Getting a caste certificate isn’t easy as there are many people who want to
avail it. If the percentage of seats is increased, then it will be even more
difficult for them to avail the certificate. There are people who do not fall within
this category, yet they try to avail the certificates for the benefit one gets from
it.

REMEDIES:
1. Spread the benefits of reservation within the existing framework and the
individual who use it, should use it only once a lifetime.
One strategy may be to try and spread the benefits of reservations as widely
as possible within the existing framework. The government should ensure that
the SCs, STs and OBCs use the scheme only once in a lifetime. This would
require that anyone using reservations to obtain the benefit such as college
admission but register his/her Aadhar number and he/she would be ineligible
to use reservations for another benefit (e.g. job) in the future. This would
require no changes to the basic framework but spread the benefits more
broadly within the reserved category allowing a large number of families to
seek upward mobility.
2. Focus on development of basic skills in the citizens as it will provide them
employment and better living conditions.
The second strategy might be to recognise that the future economic growth in
India is going to come from the private sector and entrepreneurship. In order
to ensure that all Indians, regardless of caste, creed, race and religion are
able to partake in economic growth, we must focus on basic skills. We have
focused on admission to prestigious colleges and government jobs, but little
attention is directed to social inequality in the quality of elementary schooling.
The IHDS16 shows that among children aged 8-11, 68% of the forward caste
children can read at class 1 level while the proportion is far lower for OBCs
(56%), SCs (45%) and STs (40%). This suggests that we need to focus on
reducing inequalities where they first emerge, within primary schools.
3. Bring reforms and modifications to the existing reservations itself.

16
India Human Development Survey.
 The third strategy that can take place is that instead of increasing the
percentage of reservation, the government should make changes or
modifications in the existing reservation scheme itself. This would not violate
Article 14 and would ensure fairness and justice to all.

CONCLUSION:
At present, 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. The challenge we face is that our mindset is so
driven by the reservation system that was developed in a different era that we have
not had the time or the inclination to think about its success or to examine possible
modifications. The tragedy of EWS quota is that it detracts from this out-of-the-box
thinking.
The issue of reservation has remained a cause of disagreement between the
reserved and the non- reserved sections of the society. While the unreserved
segments, keep on opposing the provision, the neediest sections from within the
reserved segments are hardly aware about how to get benefited from the provision
or even whether there are such provisions. On the contrary, the creamy layer among
the same segment is enjoying special privileges in the name of reservation and
political factions are supporting them for vote banks. Reservation is no doubt good,
as far as it is a method of appropriate positive discrimination for the benefit of the
downtrodden and economically backward Sections, the society but when it tends to
harm the society and ensures privileges for some at the cost of others for narrow
political ends, as it is in the present form, it should be done away with, as soon
possible. No self-respecting individual would like to live on charity or mercy. They
should compete on merit and not mercy.
There are powerful legal and constitutional arguments against economic
reservation. However, what the above discussion has shown is that they operate at
the level of the law: they would succeed where it the case that legislation was being
tested against the basic structure. However, it is far more difficult in the case of a
constitutional amendment. Ironically, this is because of the precise reason that has
given so much fodder to basic structure critics – the Court’s refusal to define it in
concrete and specific terms. As long as economic reservation is defensible on a
ground that is recognisable in terms of equality, the fact that it departs from how
equality and social justice is presently understood in the Constitution, is no ground
for striking it down. And that minimal threshold, in my view, is met by the 103rd
Amendment. It is likely to survive a basic structure challenge. The ones who are not
included in the Economically Weaker Section would have 10 percent lesser options
available.
It is not that other countries are not facing such problems, but it is only that
they are solving their problems more practically and logically. These countries are
trying to solve their affirmative action programs. Thus, the time has come when one
must seriously consider affirmative action programs, rather than continuing the policy
of reservation forever.

REFERENCES:
Books:
1. The Constitution of India by Professional Book Publishers.
Newspaper:
1. The Hindu
2. The Times of India

Website:
1. Indian Kanoon
2. Live Law
3. Wikipedia
4. SCC Online
5. Study IQ