Is the 103rd Amendment Unconstitutional?

Yesterday, the President assented to the Constitution (One Hundred and Third Amendment) Act, which introduces reservations based on economic criteria, into the Constitution. The swift passage of this amendment through both houses of Parliament (from start to finish, it took 48 hours) has raised serious questions about democratic accountability. The Amendment itself has been castigated (repeatedly) as an election gimmick, and contrary to the very purpose of providing reservations. However, this is now history: the Amendment is here, awaiting only to be notified by the Government. And so, to the only relevant legal question that remains: is the 103rd Amendment unconstitutional?

The Basic Structure

 

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It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges are always threatening to drop upon the neck of democracy, the Supreme Court has almost never used basic structure to invalidate constitutional amendments. The high-profile striking down of the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has been used on an average of once in a decade. And in the seventy-four constitutional amendments after Kesavananda, only five have been struck down on substantive basic structure grounds (a strike rate of around 7%).

It’s also interesting to note (by way of example) what the Supreme Court has allowed to stand in the teeth of a basic structure challenge: in Nagaraj, a whole-scale restructuring of Article 16 that would effectively breach the 50% Rule (more on that in a moment), and in Poudyal, a departure from the principle of one-person-one-vote (more on that shortly, as well). Even when the Court has invoked basic structure, it has elected to use the scalpel rather than the bludgeon: in Raj Narain and in Minerva Mills – two of the starkest cases of constitutional abuse in our history, both by Indira Gandhi – the Court only snipped away a clause (granting immunity to Indira Gandhi from electoral malpractice) and a phrase (effectively getting rid of the fundamental rights chapter altogether) respectively, while upholding the rest of the (abusive) Amendments under challenge.

This is the case because the Court – conscious of the legitimacy issues with striking down a constitutional amendment – has been very careful about the language that it uses. Kesavananda Bharati didn’t say “modify”, “tinker”, or “change” – it said that a constitutional amendment cannot “damage or destroy” the basic structure. Nagaraj refined this by introducing the “width and identity” tests, making it clear that a basic structure challenge would have to demonstrate that the constitutional amendment makes the Constitution virtually unrecognisable.

The Amendment 

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Within this context, let us briefly examine the 103rd Amendment. The Amendment introduces Articles 15(6) and 16(6) into the Constitution. 15(6) allows for reservations for “economically weaker sections of citizens” other than the classes mentioned in Articles 15(4) and 15(5) (i.e. effectively, other than the SCs/STs/OBCs). Article 16(6) does the same for public employment. The quantum of reservation is fixed at 10% over and above the existing reservation for SCs/STs/OBCs. An Explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

I want to focus on three features that (in my view) can form the basis for a potentially credible basic structure challenge. The first is the “50% question.” The second is (what seems to be) the use of family income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

The Challenge 

A. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The roots of this stipulation lie in M.R. Balaji v State of Mysore, where the Supreme Court held that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of opportunity), anything more than 50% would imply that the exception was swallowing up the rule. In Indra Sawhney v Union of India, this judicial rule was affirmed once again, and a governmental notification providing for 10% reservations on the basis of economic disadvantage was struck down. However, neither Balaji nor Sawhney were concerned with the basic structure: they were considering a law and subordinate legislation, respectively.

So, is the 50% rule a part of the basic structure? In Nagaraj, the Court suggested that it is, when it noted that:

” … the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

But is there any support for this observation? The only indication that the 50% limit is so crucial that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948. Ambedkar observed that the purpose of Article 16 was to balance two competing principles – (formal) equality of opportunity, and compensation for inadequate representation in public employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and 16(4)), and one example that Ambedkar specifically took to indicate what might upset this balance was a potential situation in which the quantum of reservation reached 70%.

There is, therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as its drafters intended (and as the Supreme Court later affirmed). However, it does not follow from that that an amendment to Article 16 that changes this scheme would be a basic structure violation. This is for two reasons. The first is that the basic structure is not reducible to a particular, concrete articulation of values, internal to a specific constitutional provision. It is open to Parliament – acting in its constituent capacity – to depart from the constitutional settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the only reasonable interpretation available. In N.M. Thomas, for example, a majority of four judges out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words, 16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as that was predicated on 16(4) being an exception to 16(1).

I have defended this interpretation elsewhere, but here, I am not concerned with whether it is right or wrong. The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-judge bench of the Court, and which has never – technically – been overruled. Consequently, it is certainly open to Parliament to take that view, and amend Article 16 to reflect that.

Lastly – and keeping everything else aside – I am not even sure that on its terms, the 103rd Amendment commits Parliament to increasing the quantum of reservation above 50%. The Amendment only provides reservation to the extent of 10%; however, existing Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at 50% – that has been achieved through legislation. Consequently, how can a basic structure challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised at all – must come in when Parliament enacts a law to give effect to the Amendment.

B. Individuals and Groups

There is, I think, a more persuasive basic structure argument against the Amendment. There is one feature that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the “family income” as the primary determinant of economic disadvantage, the Amendment advances a philosophy of reservation that focuses on remedying individual disadvantage (by taking the family as the unit for determining who is disadvantaged). At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles 14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the historical fact that in India, group membership has been the primary basis of institutional and structural disadvantage. One’s access to opportunity and chances of social and economic mobility have been mediated by one’s group identity – and primary, that identity has been structured around caste. The logic of reservation in India – and this dates back to pre-Independence times – has, consequently, always been that while the right to equality is an individual right, the only method of achieving substantive equality at an individual level is to take into account the disadvantages and barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd Amendment must fail the basic structure test is because it essentially contains internally contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

While I agree that the 103rd Amendment makes a logical mess of the scheme of Equality Code, when it comes to a basic structure challenge, however, I find myself running up against the same difficulty that was faced in assessing the 50% challenge. And that is that the argument accords to the basic structure a level of specificity that it does not have, and one that the Court has consistently refused to give it. It is true that economic reservation goes against the grain of how social justice and equality have always been conceptualised in India, at least in constitutional terms. It is true that it sets up a contradiction (in terms of legal logic) between the SC/ST/OBC reservation provisions, and economic reservation. However, once again – the basic structure does not bind Parliament to any particular conception of equality and social justice. The basic structure does not require that Parliament follow the same logic, even within the same constitutional provision. The basic structure does not mandate clean, coherent, and logical drafting. All it requires is that a basic feature – in this case, “equality” – not be “damaged or destroyed.” And for me, it is difficult to see how economic reservation “damages or destroys” the concept of equality, because as long as there exists a reasonable understanding of equality that can accommodate economic reservation – and surely there does – it will be immune from a basic structure challenge.

The distinction between the level of the “concept” (which is the level at which the basic structure operates) and the level of the “conception” (which is the level at which the Amendment operates) is made clear if we consider the case of R.C. Poudyal: in R.C. Poudyal, which dealt with the accession of Sikkim to the Indian Union, one of the challenges involved a departure from the one-person-one-vote principle when it came to elections within Sikkim. It was argued that this violated the basic structure, because it went against democracy. The Court upheld it, however, noting that there were many different forms of democracy that were consistent with the concept of democracy. Similarly, there are many visions of equality – many concrete manifestations – that remain consistent with the concept of equality. A basic structure challenge can succeed only if equality itself is abrogated – for example, if Article 14 is repealed altogether, or if a Bill of Attainder is passed (which was the issue in Raj Narain).

Arbitrariness 

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has no relation with the goal of reservation. In other words – as many people have pointed out – reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.

This raises a fascinating constitutional question, which is yet to be resolved: are there specific articles that are so important and crucial, that they themselves constitute basic features? In particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a constitutional amendment can be challenged, like an ordinary law, on the basis that it violates one of these articles?

The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality, freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional amendment.

Conclusion

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 were 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.

 

9 thoughts on “Is the 103rd Amendment Unconstitutional?

  1. I don’t agree with Gautam Bhatia that this is such an easy question to answer.

    I want to write an article on this issue myself so am just setting out some initial thoughts here.

    First, Bhatia is right that the constitutional challenge will involve the question as to whether the constitutional amendment violates the Basic Structure.

    (Note I have been a critic of the Basic Structure doctrine for giving the judiciary a veto on parliamentary power to amend the Constitution in accordance with the mandate of the “People”, but really the 103rd Amendment is making me rethink my opinion on this doctrine. This amendment does make me contemplate that we might need some kind of check on Parliament’s power to amend the Constitution, if only because we now know that the Indian Parliament can pass amendments not only very easily and quickly but also without sufficient or even any public debate and engagement. In addition, the systemic political and institutional defects in how India’s Parliament works and interacts with other political systems and institutions, make me skeptical of complete trust in our elected MPs and political parties and their willingness, commitment and ability to do the right thing.

    Gautam writes that “the Supreme Court has almost never used basic structure to invalidate constitutional amendments” but then immediately notes that this has happened in 5 times, which is a lot of times.

    Just a question: Were all seventy-four constitutional amendments after Kesavananda challenged in Court?

    Now I need to read all the judgments mentioned by Bhatia but some off the cuff comments follow.

    The right to equality under Article 14 is certainly to my mind an essential part of Basic Structure, assuming that this doctrine is a good thing, which I am ambivalent about. (Can we trust our Judiciary enough to give it this veto power?)

    Articles 15 and 16 are an amplification of the right to equality. They are not exceptions to Article 14. In fact Articles 15 and 16 open with commitments to non-discrimination but then go on in various sub-clauses to create exceptions where positive discrimination in favor of certain disadvantaged classes is permitted in order to achieve substantive equality.

    Let me point out some possible drafting problems/ questions with the amendment.

    What purpose does sub-clause (a) of the new Article 15(6) serve and what does it contemplate apart from the reservations in educational institutions contemplated in sub-clause(b) of the same Article. What does this open the door to?

    Should the words “the economically weakest section” have been used instead of the words “any economically weaker sections” in the new amendments in both Articles 15 and 16. Does the latter phrase make the provision arbitrary and vague.

    The Explanation defining economically weaker sections is missing from Article 16.

    Is the Explanation to Article 15(6) vague and arbitrary and does it leave too much discretion with the State.

    Examples of vagueness and possible arbitrariness? Why choose 8 lakhs p.a. What other indicators will be used?

    What if a person claiming a university seat is a single child to a two parent family with an annual income of 8 lakhs. What if another person claiming a University seat is a child with 9 siblings to a two parent family with dependent grand-parents one of who needs full time care, and two special children needing additional resources, all with an annual income of 8 Lakhs. Can these two individuals be both treated as similarly economically disadvantaged. Can they be placed in the same class?

    What if a person comes from a joint family?

    What if a person comes from a family that was above the cut off of 8 lakhs until the child was 16, but then the mother stopped working or the father died and the family’s income fell below 8 lakhs when the child became 17 and eligible for a college seat?

    The family unit will vary from time to time. Which family unit will be used. A twenty year old man living with his parents, or a twenty four year old man living with his wife and baby away from his parents because he works in a different city. How will this apply objectively. A man applying for his first job will only have his parents income, a man applying for a job at 35 might have both his parents income as well as his own. The family might still live together. How will the 8 Lakh threshold be met objectively.

    Also economic disadvantage can vary from year to year, depending upon circumstances like illness in the family, loss of jobs, disabilities, etc. A family might have been under the limit for 20 years and then suddenly crosses the limit one year when the son gets a job as a data entry operator in an office.

    How do you objectively determine economic disadvantage. People fabricate caste and OBC certificates in this country. How will the Government prevent people from manipulating/ hiding their income in order to claim this new reservation.

    8 lakhs p.a. would also result in about 95% of the population of the country becoming eligible.

    Another point – The class envisaged by the new amendments is not covered by the scheme of Articles 15 and 16 which is based upon enumerated attributes of sex, caste, religion. race, place of birth etc. These are socially immutable attributes unlike bank balance or salary or income.

    What about your bank balance? Your fixed deposits? Your gold Jewelry? What all criteria will the Government notify? Will 95% of Indians want to disclose or want the Government to scrutinize how much or how little wealth the family unit has? What about privacy here?

    This whole exercise is not only farcical given that 95% of the population will become eligible but is also unimplementable in a fair and objective manner.

  2. It is very healthy to observe a heated debate on constitutional infirmity of the 103rd Amendment. Although the points raised by Madhav Khosla and Prof. Mehta sound convincing prima facie, upon closer introspection, I incline to support Gautam’s views.
    First, I want to question the tendency to perpetuate historical specificity of backwardness of SC/ST. Indeed such a tendency being ablest in character deflects the attention away from pathologies of other marginalized sections like LGBTQ and people with physical and mental disabilities, etc.
    Secondly, without being in any way unconcerned with the plight of Dalits and lack of their adequate representation in public employment and higher education sector, I want to also raise the attention to the exclusion of the above mentioned marginalized sections as well from the public sphere. I do not subscribe to the idea of prioritizing or hierarchizing the vulnerabilities and pathologies. It is a cynical view to assign preference to social disability over physical and mental disability or over exclusion of LGBTQ from the public domain. I remember the resounding advice given by Matthew J. in Indira Nehru Gandhi, wherein he while striking accord with the concept of basic structure raised questions about its exact conception by doubting how a nebulous and open-ended principal of equality could be one of the features of the Basic Structure of the constitution and in Nagaraj, the court went a step further by invoking a distinction between egalitarian equality and formal equality.
    In the light of all this, the appropriate question to ask is whether the 103rd Amendment is incompatible with the “essence of rights” test. Has this Amendment completely destroyed or damaged the thread of equality integrally woven into the Constitutional fabric? By broadening the ambit of recipients of affirmative action on the teeth of Article 46 of Constitution of India, which is one of the DPSP and under Article 37, the state is duty bound to take its cognizance, can the incumbent government be faulted for having acted incompatible with the Basic Structure of the Constitution. To my mind it does not. Government with the overwhelming support of Parliament is within its rights to transform the meaning of social justice and to broaden the constituencies worthy of receiving affirmative action. There is nothing in the Constitution which prevents the government from focusing exclusively on poverty without anything more while conferring reservations. It is not simply tenable to assume that poverty in company of some other pathology alone deserves a share in affirmative action programs of the Government.
    Equally it is not yet clear whether the reservations conceived by 15(6) and 16(6) are horizontal or vertical. To my mind it looks to be horizontal because the category of economic weaker section is a fluid one and cuts across all sections of the society. I entirely endorse Gautam’s point in not reading into Basic Structure indiscriminate use of Damocles sword by the judges to strike down majority decisions of the Parliament. Of course by this I do not mean that majority is always right. But then the courts are under obligation to adhere to the principal of reasonable disagreement until their disagreement with Parliament reaches the brink of unconstitutionality.

    While disposing of my remark, although I must also make one or two observation on the long Commentary of Ms. Sapra.
    Please remember that what you are reading is a set of enabling provisions and the details will follow later in a detail official memoranda to be prepared by different states. Therefore your specific questions are premature.
    Secondly to confuse Basic Structure with the veto power sounds a bit simplistic. It is a safety valve put in place by the judges over a period of time to have a check on abuse of amending power by the Parliament or the put it affirmatively to protect and preserve the constitutional identity of India. Can she really say that if the pie of affirmative action is slightly enlarged, does it amount to infraction of or doing away with the right to equality from the Indian Constitution?
    Gautam is indeed right when he asserts that the striking rate of the court is very minimal in deploying basic structure. For example: has court used basic structure against GST, which is far more radical and transformative? the answer is no.

  3. Regarding comments of Dr Sanjay Jain:

    How is the Basic Structure doctrine not a veto power vesting in the Supreme Court against exercise by the Parliament of its authority to amend the Constitution? This veto power might require grounding in the Constitution, but it remains a veto power nonetheless with considerable discretion in the Court on how and when to exercise it and on how to define and interpret the basic structure doctrine and the “basic structure” of the Constitution.

    The 8 Lakhs income qualifying criteria has been put out by the Government (so my discussion of its possible anomalies is relevant), though of course the amendment is merely enabling and this criteria could change. However, my comments highlight how an objective determination of economic weakness will be difficult and how the amendment confers excessive discretion on the executive in this regard. And my comments also point out certain drafting defects in the new amendments

  4. But sir, wont 15(1) and 16(2) stand in contradiction with 15(6) and 16(6) respectively when the term used is EWS excluding classes mentioned in 15(4) and 16(4)? And would that not destroy equality?

  5. This amendment is merely an eyewash. In fact it means nothing beneficial to the economically backwards because those who are competing in general category against fifty percent unreserved seats, would not like to compete against only 10 percent unreserved seats. Importantly, given the current picture of the unemployment in the country, no reservation is fruitful as humorously stated by Gadkariji what’s the use of reservation if there are no jobs at all. Constitutionally and legally speaking, the Constitution never recognised the backwardness based on economic criterion itself. Backwardness is not because one is poor. Backwardness is because of graded inequality handed down to us through Varna and castes systems. It is therefore that caste has been held to be a decisive factor to determine whether a person belongs to backwardness. The constitutional amendments do not carry any special status. They too have been held to be the law within the meaning of Art 13 of the Constitution. This, any Constitutional amendment is always subject to challenge on various grounds such as competency of Parliament on the touchstone of Pith and substance principle eg 97th Constitutional amendment has been set aside by Gujrath HC on the Ground that Parliament had no power to inderectly enact a law on the subject exclusively falling in the state list. In this case of 103rd Constitutional amendment, the ground may be different. However, it has been made time and again clear that no law (including such amendment) can damage the basic structure. Anyway, the petition filed by many ones including me, against this, are pending and one doesn’t know how it is going to take for the outcome.

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