What does the Constitution say about Article 15?

• Article 15(1) provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth.
• Article 15(2) elaborates that no Indian citizen can be discriminated against on basis of religion, race, caste, sex, place of birth.
• It states that no citizen shall be denied access to shops, public restaurants, hotels, and palaces of public entertainment.
• It adds that no citizen shall be subject to any disability, liability, restriction, or condition associated with using public water sources.

Note: There are four exceptions to this general rule of non-discrimination.

Why in news?

Recently a bill providing 10% reservation in jobs and educational institutions to the economically weaker sections in the general category was given assent by the Indian President. The legislation is known as the Constitution (103 Amendment) Act, 2019.

103rd Constitutional Amendment Act

• It added a provision of reservations that can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservations for SCs, STs, and OBCs.
• The state is now empowered to make any special provision for the advancement of any economically weaker sections of citizens.
• Further, the state is allowed to make a provision for the reservation of up to 10% of seats for such sections in admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions
• The Act also amended Article 16 of the Constitution.
• It added a provision for the reservation of up to 10% of appointments or posts in favor of any economically weaker sections of citizens.
• The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservation for SCs, STs, and OBCs.

The concerns related to the 103rd Constitutional Amendment Act

• 103 CAA raises concerns that introduce special measures and reservations for ‘economically weaker sections (EWS).
• The strongest constitutional challenge might not be to the amendment itself but to the manner in which governments implement it.
• It was also challenged on the ground of violating the basic structure of the Constitution.
• Article 46 (DPSP) says that the state shall promote educational and economic interests of “weaker sections”, in particular SCs and STs, and protect them from “social injustices” and “all forms of exploitation”.
• While the 103rd CAA mentions Article 46 in its statement and objects, it seems the government overlooked the fact that upper castes neither face social injustice nor are subjected to any form of exploitation.
• Moreover, the Constitution makes provisions for commissions to look into matters relating to the implementation of constitutional safeguards for Scheduled Castes (Article 338), Scheduled Tribes (338A), and Socially and Educationally Backward Classes (339), but has not created any commission for the economically backward classes.

How will the court decide if economic reservation violates the basic structure?

• To determine this, the Supreme Court has to examine the principles on which affirmative action is based.
• As per M Nagraj (2006), It would include examination of four issues — quantitative limitations such as violation of the 50% ceiling for all reservations taken together; (ii) exclusion of creamy layer or qualitative exclusion; (iii) compelling reasons such as backwardness of the economically weaker sections for whom this reservation has been made; (iv) that overall administrative efficiency is not obliterated by the new reservation.
• The court also has to examine the equality code of the Constitution and whether the state has considered and valued the circumstances justifying it, to make a reservation.
• This would require that the state’s decision is rational and non-arbitrary.
• It is clear from the Constitution that reservation can be for a caste or a class.
• Similarly, the government has to justify “compelling reasons” for going beyond the 50% limit.