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By a majority of 3:2, a five-judge Bench of the Supreme Court has upheld the validity of the Constitution (103rd) Amendment, which came into effect in January 2019. The amendment was challenged, and the challenge was referred to a five-judge Constitution Bench in August 2020.
The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to the economically weaker sections (EWS) among non-OBC and non-SC/ST sections of the population.
In other words, the amendment had changed the Constitution and introduced a quota for the poor among the so-called ‘forward castes’ or ‘general category’.
The quota is available in admissions to higher educational institutions, and in initial recruitment in central government jobs. The amendment also empowered state governments to provide reservation on the basis of economic backwardness.
Essentially, the challenge was based on the argument that the 103rd amendment violated the “basic structure” of the Constitution. The Supreme Court introduced the doctrine of basic structure in the landmark Kesavananda Bharati case (1973), by which it ruled that certain aspects of the Constitution were inviolable, and could not be changed.
The primary argument in this case stemmed from the view that the special protections guaranteed to socially disadvantaged groups is part of the basic structure, and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
Three judges, Justices Dinesh Maheshwari, Bela Trivedi, and S B Pardiwala, have upheld the validity of the 103rd amendment.
According to tweets put out by Live Law, Justice Dinesh Maheshwari has ruled that reservation based only on economic criteria does not violate the basic structure of the Constitution, and that the exclusion of classes covered in Article 15(4) and 16(4) — that is OBCs and SC/STs — in the 103rd amendment does not damage the basic structure.
Justice Bela Trivedi has concurred with Justice Maheshwari. She ruled that treating EWS as a separate class would be a reasonable classification, and that treating unequals equally would violate the principle of equality under the Constitution. Justice Trivedi said that 75 years after independence, it was time to revisit the system of reservation in the larger interest of society, according to Live Law.
Editorial
The poverty test (Page no. 12)
(GS Paper 2, Polity and Governance)
The Indian Constitution as a social document promises social justice and therefore, mandates making of special provisions in favour of those who have been historically discriminated against.
Due to political and electoral compulsions rather than constitutional promises, successive governments, invariably on the eve of elections, have been tweaking the reservation policy.
So, it was not surprising when the Modi government introduced 10 per cent reservation for the economically backward communities ahead of the 2019 general election.
The Supreme Court has now upheld the validity of the 103rd constitutional amendment. The amendment had many firsts. For instance, economic criterion was provided for this new category of affirmative action: The Scheduled Castes, Scheduled Tribes and non-creamy layer Other Backward Classes were excluded from the newly inserted clauses of Article 15(4) and 16(4).
The ceiling of 50 per cent reservation was breached and the individual rather than the group became the basis of backwardness. Justice Ravinder Bhat and the outgoing Chief Justice of India U U Lalit, however, dissented with the majority view of Justices Dinesh Maheshwari, Bela Trivedi and J B Pardiwala.
A closer look at the judicial response to reservation policies from Dorairajan (1951) to M R Balaji (1963) to Indra Sawhney (1992) to M Nagaraj (2006) shows that the Indian judiciary has not been quite supportive of such policies.
In many cases, it created new conditions in the implementation of such policies by introducing several exclusions/doctrines/rules etc.
In fact, Parliament had to amend the Constitution through the 77th amendment to overturn Indra Sawhney judgment against reservation in promotions. Similarly, the 85th constitutional amendment was passed to undo the Virpal Singh Chauhan (1995) and Ajit Singh (1999) judgments that had introduced the “catch up rule” under which general candidates, who are promoted after SC/ST candidates, will regain their seniority over earlier promoted SC/ST candidates.
Basically, Indian courts have been emphasising merit and have been concerned about the dilution of “merit”. In several reservation matters, the courts have been more interested in protecting the interests of general categories.
As a matter of fact, the EWS reservation is for the erstwhile general candidates: The Rs 8-lakh family income provision covers over 90 per cent of our population.
Constitutional amendments are rarely struck down since this can be done only on the narrow ground of the amendment being violative of the basic structure of the Constitution.
Since 1973, when the basic structure doctrine was propounded, over 70 amendments had been passed but only five have so far been struck down. The NJAC was the last one in 2016.
As per M Nagaraj (2006), there are two tests that courts use in any challenge on the ground of basic structure — the width test that examines the boundaries of amending power and the identity test under which the Supreme Court examines whether the latest amendment alters the identity of the Constitution.
No amendment can change the personality of the Constitution. To satisfy the test, one has the heavy burden to prove that the Constitution after the amendment is virtually unrecognisable.
India’s affirmative action programme so far was catering to only historical injustices and social backwardness. The extension of this benefit to others, in the opinion of Justice Maheshwari, won’t change the identity of the Constitution.
Explained
4 questions in EWS judgment (Page no. 15)
(GS Paper 2, Polity and Governance)
Can there be quotas based on economic criteria alone?
Justice Dinesh Maheshwari said that poverty is an adequate marker of deprivation that the state can address through reservations. The SC’s earlier jurisprudence holding that “economic criteria cannot be the sole basis for determination of backwardness” is somewhat restricted to the reservation provided to Social and Economically Backward Classes, and EWS is deemed a separate and distinct category, he said.
Justice Bela Trivedi in her separate but concurring opinion upheld the amendment based on the presumption that “the legislature understands and appreciates the needs of its own people.”
Justice Pardiwala said that while he is “conscious of the fact that the economically weaker sections of the citizens are not declared as socially and economically backward classes (SEBCs) for the purpose of Article 15(4) of the Constitution”, separate reservations are not barred by the Constitution.
His opinion cited the Right to Education, another constitutional amendment that puts an obligation on the state to provide free and compulsory primary education, as an example of other forms of reservation.
Justice Ravindra Bhat said while laws that provide benefits based on “only economic criteria” do not by themselves violate the right to equality, the Constitution envisages reservations to only be community-based and not individual- centric.
So while access “to public goods” such as tax breaks, subsidies can be allowed, reservation in public employment would not be permissible. “It is inconceivable that the deletion of caste (as long as Indian society believes in and practises the caste system) as a proscribed ground through a constitutional amendment would stand scrutiny,” he said.
No. Justice Maheshwari said that “there cannot be competition of claims for affirmative action based on disadvantages.” Reservation cannot be denied to one section (the EWS) because “that segment is otherwise not suffering from other disadvantages.”
Justice Pardiwala said that Article 16(4) is exhaustive for reservation in favour of backward classes but the section is not exhaustive of the concept of reservation. The new constitutional amendment introducing another affirmative action method is read as separate and distinct.
This exclusion is the main ground for striking down the constitutional amendment as per the minority opinion. Justice Bhat gave three reasons why the exclusion of SC/ST/OBC is unconstitutional.
First, it “others” those subjected to socially questionable and outlawed practices, though they are amongst the poorest sections of society, and goes against the idea of fraternity.
Second, the exclusion virtually confines SC/ST/OBC within their allocated reservation quotas (15 per cent for SCs, 7.5 per cent for STs, 27 per cent for OBCs). Third, it denies the chance of “mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation.”
City
Protest over funds not being released for Delhi govt’s scholarship scheme (Page no. 4)
(GS Paper 2, Polity and Governance)
Several beneficiaries of the coaching centre scholarship scheme, started by the Delhi government for students from disadvantaged categories, along with top management of empanelled institutions protested outside the Department of SC/ST Welfare on Monday over non-payment of dues.
Launched by the Department of Social Welfare in 2018, the Jai BhimMukhyamantri Pratibha Vikas Yojana is aimed at providing free coaching to Delhi-based students from the SC, ST, OBC and EWS categories to prepare for entrance exams for professional courses and jobs.
The government had tied up with 46 private institutions to facilitate the programme, but the funding is yet to be released. As a result, students said they haven’t been receiving their stipends of Rs 2,500 per month.
Coaching centres, too, haven’t received fee reimbursement ever since admissions under the scheme resumed after the pandemic in 2021, their officials alleged. The government did not respond to queries regarding the delay.
A student studying at NIC Institute, who was part of the protest but did not want to be identified, said, “Ever since our classes began about a year ago, we haven’t received our stipend. None of us come from very well-off families and this would have helped with our transport expenses.”
A representative from KD Campus, Rajender Nagar, said: “The government claims they’ve provided free education to students but in reality, it’s private institutions like ours that have had to beat the brunt.”
The secretary said he will revise the contract with the coaching institutions and a fresh one will be put in place… We have been told a solution will be provided in two days, after their meeting with Deputy CM Manish Sisodia, but we’re not very hopeful as this has happened in the past as well.
Several students who have been part of the coaching classes have managed to clear entrance exams over the past few years, with over 1,000 students who cleared engineering and medical entrance exams being felicitated in October.
During the ceremony, former social welfare minister Rajendra Pal Gautam had spoken about the success of the scheme: “I feel proud to share that around 13,000 students have enrolled in civil services, engineering, medical, police, banking, railways and several competitive exams coaching out of the targeted scope of 15,000 students.
Among those 13,000 students, 4,000 took admission into medical and engineering… Out of them, 1,300 students have been selected for various medical and engineering entrance exams. This means our selection rate is over 25%.”
Govt & politics
Govt says need to update NPR across country (Page no. 11)
(GS Paper 2, Polity and Governance)
With the government likely to bring a Bill to amend the Registration of Birth and Deaths Act for a centralised data management, the Home ministry in its latest annual report has underlined the need to update the National Population Register (NPR) database across the country, except Assam.
This is to incorporate the changes due to birth, death, and migration for which demographic and other particulars of each family and individual are to be collected.
The ministry’s annual report for 2021-22 said due to the outbreak of Covid-19 pandemic, the work of NPR updation and other related field activities got postponed.
For updating the NPR database, a three-pronged approach will be adopted. It will include self updating wherein residents will update their own data after following some authentication protocols, updating of NPR data in paper format, and mobile mode. The demographic and other particulars of each family and individual are to be collected/updated during the exercise. No documents or biometrics will be collected during the updation,” it said, adding that the Centre has already approved Rs 3,941 crore for the purpose.
The report also said the from April 1, 2021, to December 31, 2021, a total of 1,414 citizenship certificates have been granted by all authorities, including the MHA.
Out of this, 1,120 were granted by registration under Section 5, and 294 by naturalisation under Section 6 of the Citizenship Act-1955,” the report added.
The annual report also said that the Central government has delegated its powers to grant Indian citizenship by registration or naturalisation with respect to members of Hindu, Sikh, Jain, Buddhist, Christian or Parsi communities from Pakistan, Bangladesh and Afghanistan to Collectors of 29 districts and Home Secretaries of nine states.
The delegation (of powers) will speed up the process of granting Indian citizenship to aforesaid category of migrants as the decision would be taken at local level.
The Home ministry granted long-term visas — which is a precursor to Indian citizenship — to 2,439 members of minority communities from the three neighboring countries in the last one year; including 2,193 from Pakistan, 237 from Afghanistan and nine from Bangladesh, it said.
On the direction of the Supreme Court, the hard copies of the supplementary list of inclusions and online family-wise list of exclusions have been published in the National Register of Citizens (NRC), Assam, on August 31, 2019. A total of 3,11,21,004 persons were found to be eligible and 19,06,657 persons ineligible for inclusion in the final NRC.
Ideas Page
Delhi as pacemaker (Page no. 13)
(GS Paper 2, International Relations)
As External Affairs Minister Subrahmanyam Jaishankar arrives in Russia this week for a bilateral visit, there is growing international interest in the potential Indian diplomatic contribution to ending the tragic war in Ukraine which is now in the ninth month and has shaken the world to its core.
India has reasons to be satisfied that there is a better appreciation of its position on Ukraine in the Western public discourse.
In the last few months, the Western media and think tanks had been relentless in their criticism of the Indian approach to the crisis as lacking moral and strategic clarity in the face of Russia’s unprovoked aggression.
Through the last nine months, Delhi was reluctant to explicitly criticise Russian aggression against Ukraine and insisted on a dialogue between the warring parties.
At the same time, India refused to endorse Russian aggression, underlined the importance of respecting the United Nations Charter, emphasised the inviolability of territorial sovereignty, warned against the use of nuclear weapons, and sought to draw attention to the economic impact of the war on the “Global South”.
In the Biden administration there was a measure of understanding of where Delhi was coming from and India’s long-standing equities in the relationship with Russia and the constraints it imposed on India.
Official Washington never let the heat of the Ukraine crisis in Europe undermine the longer-term American imperative of engaging India to stabilise the Indo-Pacific.
The same can’t be said about Europe, but then the continent was right in the middle of the gravest conflict since the Second World War. The European trauma from a shattered peace is real.
Recent reports in the US media recount the Indian diplomatic contribution at a few critical moments in the nine-month-long war — in helping overcome issues over the grain shipment deal from Ukraine and in reducing the growing risks of the war targeting the nuclear power station at Zaporizhzhia in eastern Ukraine.
Can India take on a larger diplomatic role now? Good relations with Moscow and Washington do put South Block in an interesting position.
But India is not the only channel of communication between the US and Russia. Nor are Washington and Moscow totally reliant on third parties.
The defence ministers of the two countries have frequently talked to each other reminding each other of their redlines in the war. Meanwhile, the onset of winter will increasingly limit the possibilities for military operations in Ukraine and would give a chance to both sides to pause, regroup and rethink their strategy and tactics.
Even more consequential are the shifting politics of the war among the belligerents. For Russian president Vladimir Putin, the special military operation that was to produce a quick victory in Ukraine has turned into a terrible misadventure. Russia has suffered huge military losses on the ground in manpower and equipment.
Putin’s current focus on destroying the Ukrainian cities and the occasional threat to use nuclear weapons underline Russia’s weakness in the Ukraine war rather than strength.
From a military perspective, there is no easy way for Russia to secure a “victory” in this war. Putin might have no option but to consider an honourable draw that will save his political face and secure some territorial gains in Ukraine.
Unwarranted praise (Page no. 13)
(GS Paper 3, Economy)
Six years after Prime Minister Narendra Modi’s demonetisation experiment, some commentators and economists are now citing strong growth in Goods & Services Tax (GST) collections to claim that demonetisation was a success, or at least not the disaster it was purported to be.
Apparently, 23 quarters after demonetisation, last quarter’s strong GST collections are evidence of increasing formalisation of India’s economy and hence, the fulfilment of demonetisation’s stated goals.
This is as bizarre as former US President Donald Trump claiming in November 2018 that since it was among the coldest months on record in America, global warming and climate change are a hoax.
Modi’s cherished objective of demonetisation was the elimination of black money. While black money is a colloquial term with no precise definition, it is generally acknowledged as untaxed money.
Such unaccounted money is typically used to buy real estate, gold, luxury goods, etc. and only a very small fraction is stored as cash. If there is a reduction in overall black money in the economy, it should logically be reflected as higher tax collections.
Black money may be routed as income or consumption expenditure or as business loans. Regardless, for the economy as a whole, a large-scale reduction in black money will be seen through higher direct or indirect taxes at either the state or the federal level.
In 2010, for every Rs 100 of India’s economic output (GDP), Rs 16 was collected in all forms of taxes (direct and indirect) by Union and state governments combined.
More than a decade later and despite demonetisation, India’s overall taxes to GDP is still 16 per cent. That is, the taxed portion of India’s economic activity remains the same, before and after demonetisation.
If demonetisation has indeed reduced black money and increased formalisation, why is it that as a nation we are still collecting the same share of taxes as we did a decade back?
In fact, in the previous decade from 2000 to 2010, India’s overall tax to GDP grew from 14 per cent to 16 per cent with no overt measures to eliminate black money and force formalisation of the economy.
Claiming victory for demonetisation after six years by cherry-picking growth rates of GST collections in a post-pandemic year is both duplicitous and inane.
Even if tax collections have not increased, has the total amount of cash used in the economy reduced post-demonetisation? No. The total amount of currency in circulation is now at its highest level of 14 per cent, compared to 12 per cent in 2010.
It is true that currency levels dropped significantly in the year of and immediately after demonetisation, but they bounced back soon to all-time high levels, even before the pandemic.
India’s use of cash, at 14 per cent of GDP, is among the highest of all major economies compared to 3 per cent for developed nations and 5-7 per cent for developing nations like Bangladesh and Indonesia.
World
Early Warning System for the entire world in next five years (Page no. 16)
(GS Paper 3, Environment)
Taking forward the initiative of the India-backed Coalition for Disaster Resilient Infrastructure (CDRI) at last year’s climate meeting , the World Meteorological Organisation unveiled a five-year programme to set up early warning systems across the world to save lives and minimise destruction from growing number of climate disasters.
The programme, launched by UN Secretary General Antonio Guterres, envisages an investment of $ 3.1 billion between now and 2027 to create the infrastructure and build capacities in early warning systems.
Nearly half the countries in the world, most of them least developed an small island states, do not have any early warning systems.
Early warnings save lives and provide vast economic benefits. Just 24 hours notice of an impending hazardous event can cut the ensuing damage by 30 per cent,” WMO Secretary-General Petteri Taalas said at the launch of the initiative.
The WMO statement said the Global Commission on Adaptation had found that spending about $ 800 million on early warning systems could avoid losses up to $ 3-16 billion every year.
Last year, CDRI, an international organization formed three years ago with India’s backing, had come up with a similar plan, focused mainly at the small island states.
That programme, called IRIS, or Infrastructure for Resilient Island States, was not meant only for early warning systems, but most of the initial interest it had received from the small island states was regarding help in setting up these systems.
India’s Environment Minister Bhupendra Yadav, who was present at the launch of the WMO programme, said New Delhi fully backed the new initiative as well.
Yadav recalled India’s own success in building a robust early warning infrastructure, which has saved hundreds lives and avoided large-scale destruction.
“Over the last few years, we have made concerted efforts towards making early warning impact-based as well as more easily understandable and actionable by communities.
As an example, the number of lives lost has been minimised, being limited to 100 due to tropical cyclones during the last 10 years, not just in India, but in all the countries in the Bay of Bengal and Arabian Sea region.
“We would now like to maximise the full potential of Early Warning Systems for not just reducing the loss of lives, but also livelihoods and national development gains.
India has spearheaded the Coalition for Disaster Resilient Infrastructure (CDRI), which is working towards developing applications of climate forecast and early warning for reducing infrastructure losses and disruption in basic services.