‘Sustaining the 103rd Amendment only opens the door for more exclusion and discrimination in Indian society’. Photo credit: Getty Images/iStockphoto
It is after many years that we have a judgment which elaborates the meaning of equality under the Constitution of India in its true and broad sense. Here I am not talking about the decision of the majority in the case of Economically Weaker Sections (EWS), but the opinion of the minority. Chief Justice of India (CJI) UU Lalit (now former CJI) and Justice Ravindra Bhat. It may be a dissenting judgment but it gives us strength to fight for the promise of equality which is the core of the Constitution.
103rd amendment by inserting articles 15(6) and 16(6) in the constitutionAllows 10% reservation in educational institutions and public employment for EWS people. This reservation explicitly excludes persons from the Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) categories. The majority judgment comprising Justices Dinesh Maheshwari, Bela M. Trivedi and JB Pardiwala upheld the constitutionality of the amendment and held that such exclusion was justified as SC, ST and OBC categories were protected under Articles 15(4), 15(5) ) and had reservation under. 16(4). He held that ‘a mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, an unconscious or unscrupulous mockery of the quintessence of equal justice’ and ‘if a constitutional amendment is marginal or Changes the principle of equality, it cannot be called a violation of basic structure’.
It tells us about the principle of equality and its place in the constitution. Can the guarantee of equality be violated and if so, will the Constitution survive? The Supreme Court of India has held that in understanding what constitutes the ‘Basic Structure’ of the Constitution, that inviolable part which can never be tampered with or altered, equality is an integral part of, It is one of the main features without which the Constitution cannot be recognized and can never be taken away, even if such a ‘minor’ violation.
turning the intersection on its head
If the criterion for reservation is poverty, then it is a matter of record that due to centuries of stigma and discrimination, a large number of the poor in the country belong to the Dalit, Adivasi and Bahujan communities. How can they be excluded on the basis of their caste status? The dissenting judgment eloquently acknowledges that human beings do not exist in separate ‘silos’. A person who is poor may also be from the most oppressed caste background, minority religion, female or disabled, and in fact many of these conditions may be the cause of his poverty. The United Nations Committee on Economic, Social and Cultural Rights observes that “discrimination can lead to poverty, just as poverty can lead to discrimination”.
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The EWS amendment turns the principle of intersectionality on its head. The concept of intersectionality is a lens through which to see how different types of inequality often work together and exacerbate each other. Crenshaw argues that we can talk about race or race inequality as distinct from inequality based on gender, class, sexuality or disability, but fail to see how some people can often be subject to all of these. , and experience is not merely the sum of its parts. Instead of recognizing the grave discrimination faced by individuals at the intersection of caste and poverty, the EWS Amendment punishes them for living at the intersection. By excluding the SC and ST communities, the amendment actively discriminates against them. Justice Bhat and CJI Lalit painfully observed that if poverty is the criteria for reservation, can it be justified that a tribal girl would not be entitled to such an opportunity as she already has an existing reservation, though she Is it covered under EWS description? It would be her gender and tribal status that would be used to discriminate against her and deny her EWS opportunities. He argues that this convenient way of placing people within “silos” collectively fails to locate the individual and reduces their visibility in the debate. Reservations on the basis of caste in Articles 15(4) and 16(4) are not privileges or benefits, but corrective measures to level the field for communities facing social stigma. To use this as a ground to deny EWS reservation to the poorest of the poor on the basis of their social backwardness and legally sanctioned caste stigma, the dissent said, would amount to discrimination which is prohibited under the Constitution. .
essence of equality
Disagreement also forms the middle link Equality, non-discrimination and abolition of untouchability. Firstly, it recognizes the importance of Article 15(1) as an integral part of the Equality Code or the obligation of non-discrimination on grounds of caste, race, sex, religion and place of birth. This is significant, as Article 15(1) has been one of the least used articles in our Equality Code. Courts have historically been reluctant to make a finding of discrimination on any of the prohibited grounds under Article 15(1). Second, the dissent reiterates the importance of Article 17 on the abolition of untouchability in any form. It accepts that Article 17 casts an obligation on the State to prohibit caste discrimination in any form and is not only part of the Equality Code but in fact the entire framework of the Constitution. Thus, the dissent states that the obligation not to exclude or discriminate against SC/ST communities because of the express provisions in Articles 17 and 15(1) is the essence of equality, and calls it part of the basic structure. can go. of the constitution. This is by far the most important part of dissenting judgment, and we would all be at a loss if we failed to recognize its importance.
In his latest report, the United Nations Special Rapporteur on extreme poverty and human rights, Olivier de Shuter, states that the prohibition of discrimination generally applies to status-based discrimination such as gender, race, race or ethnicity, religion, age, disability or sexual orientation. focuses attention. , These bases are considered particularly “suspicious” because they are largely irreversible. The report states that it is necessary to recognize these status-based horizontal inequalities because victims of discrimination based on status are disproportionately represented among people living in poverty.
Poverty or socio-economic disadvantage would be a useful marker for reservation, but can caste-based poverty lead to exclusion? The dissent believes that the Equality Code under Articles 14, 15, 16 and 17 of the Constitution promotes inclusiveness of all sections of society, and the EWS Amendment which excludes people on the basis of their caste, is non-discriminatory. Will destroy our constitutional ethos.
I would argue that upholding the 103rd Amendment, which seeks to provide benefits to people based on poverty and excludes members of the communities who face persistent discrimination and are most severely affected by poverty, is a symbol of the destruction of equality under the Constitution. This will only open doors to create more exclusion and distinction within our society and may harm the identity and soul of the Constitution.
Jayna Kothari is a senior advocate of the Supreme Court of India