CONSTITUTIONAL AMENDMENT SOUGHT TO PROVIDE RESERVATION TO ECONOMICALLY WEAKER SECTIONS OF SOCIETY IN INDIA 2019

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The Parliament of India has recently passed the Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 (the Bill) in order to provide reservation in public employment and higher education for economically weaker sections to the general category candidates on 08.01.2019 and 09.01.2019.

The Bill seeks to amend Article 15 and Article 16 of the Constitution of India 1950 as amended thereof (the Constitution of India). Article 15 of the Constitution of India provides for prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, whereas, Article 16 of the Constitution of India provides for equality of opportunity in matters of public employment.

The amendment to Article 15 of the Constitution of India seeks to provide that the State may make special provision for:

Advancement of socially and educationally backward classes of citizens pertaining to admissions to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions

Reservation of a maximum of 10% of the total seats in each category, in addition to the existing reservations

Further, amendment to Article 16 of the Constitution of India seeks to provide that the State may make special provision for:

Reservation of appointments or posts in favour of any economically weaker sections of citizens, other than the backward classes of citizens not adequately represented in the services under the State

Reservation of a maximum of 10% of the posts in each category, in addition to the existing reservations

The said amendments have been proposed by the Government of India on the grounds that economically weaker sections of citizens have been unable to attend higher educational institutions and public employment owing to financial incapacity to compete with those who are economically more privileged and also, that they are unable to satisfy the criteria and avail the existing reservations under Article 15 and 16 of the Constitution of India. Thus, the Government has proposed the aforesaid amendments, in view of Article 46 of the Constitution of India, which provides that the State should promote the educational and economic interests of the weaker sections of the people.

The said amendments have been challenged in the Supreme Court in Youth for Equality and another vs. Union of India and others on 10.01.2019 on certain grounds which are as follows:

That as per the Supreme Court judgment in Indira Sawhney Vs. Union of India 1992, economic criteria cannot be the sole basis for reservations under the Constitution of India.

That it has violated the basic feature of equality enshrined in Article 14 of the Constitution of India.

That reservations may be made by the State only to the extent of 50% as held by the Supreme Court in Nagaraj Vs. Union of India & Ors. 2006. Therefore, in addition to the 50% existing reservations in higher education and public employment each, further reservations of 10% cannot be made in higher education and public employment each.

With the passage of the Bill in the Parliament of India, the Bill would now go to the President of India for his assent to become a law.

 

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

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