Several writ petitions have challenged the constitutionality of the Constitution (One Hundred and Third Amendment) Act, 2019, which introduces reservations for Economically Weaker Sections (EWS).
On 9 January 2019, the Parliament of India enacted the Constitution (One Hundred and Third Amendment) Act, 2019 which enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). It received presidential assent on 12 January 2019 and was published in the Gazette on the same day.
The Amendment under Article 15(6) enables the State to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under Article 30(1). It further states that the upper limit of EWS reservations will be 10% (meaning upto 10% of seats can be reserved for citizens falling in the EWS category). This 10% ceiling is independent of ceilings on existing reservations.
Article 16(6) enables the State to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations.
More than 20 petitions have been filed challenging the constitutional validity of the 103rd Amendment. They argue that the Amendment violates the basic features of the Constitution and violates the fundamental right to equality under Article 14. In particular, they make the following arguments:
At present, 49.5% of seats in education and public appointments are reserved, with 15%, 7.5% and 27% quotas for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively.
After five days of hearings in 2019, the Court had reserved its order on the issue of referring the case to a Constitution Bench. On 5 August 2020, the Court decided to refer this case to a five-judge bench.
1. Is the addition of 10% reservation for Economically Weaker Sections unconstitutional, as it exceeds the 50% limit for reservations laid down in Indra Sawhney v. Union of India?
2. Can reservation be prescribed only on the basis of economic criteria, and not social and educational backwardness, under the constitutional scheme?