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EWS Reservation

Janhit Abhiyan v Union of India

In a 3-2 majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation. With this, the Court extended the net of reservation benefits to include solely economic backwardness.

U.U. Lalit CJI

Dinesh Maheshwari J

S.R. Bhat J

B.M. Trivedi J

J.B. Pardiwala J

Petitioner: Janhit Abhiyan Akhil Bhartiya Kushwaha Mahasabha; Youth for Equality; SC/ST Agricultural Research and Education Employees Welfare Association; Peoples Party of India(Democratic)

Lawyers: Rajeev Dhawan; Gopal Sankaranarayanan; MN Rao; Meenakshi Arora

Respondent : Union of India; Ministry of Social Justice & Empowerment; The State of Maharashtra; Ministry of Personnel, Public Grievances and Pensions

Lawyers: Attorney General KK Venugopal; Solicitor General Tushar Mehta

Case Details

Case Number: WP (C) 55/2019

Next Hearing:

Last Updated: May 26, 2023

TAGS: 103rd Constitutional Amendment , 50% Limit , EWS , Reservation

Can reservations be granted solely on the basis of economic criteria?

Can Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes be excluded from the scope of EWS Reservations?

Can EWS Reservations breach the 50% ceiling for reservations established by the Supreme Court in  Indra Sawhney  (1992)

Can States provide reservations in private educational institutions which do not receive government aid?

Case Description

On January 9th  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 January 12th  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 up to 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:

• Reservations cannot be based solely on economic criteria, given the Supreme Court’s judgment in  Indra Sawhney v. Union of India  (1992).
• SCs/STs and OBCs cannot be excluded from economic reservations, as this would violate the fundamental right to equality.
• The Amendment introduces reservations that exceed the 50% ceiling-limit on reservations, established by  Indra Sawhney.
• Imposing reservations on educational institutions that do  not  receive State aid violates the fundamental right to equality.

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 August 5th 2020, the Court decided  to refer this case to a five-judge bench.

On August 30th, 2022, the Supreme Court  listed  the matter to be heard, along with  four other Constitution Bench matters , from the first week of September. A 5-Judge Constitution Bench led by CJI  U.U. Lalit stated its intention to hear this case along with the challenge to Andhra Pradesh’s 2005 Act providing reservations for Muslims in the State.

However, on September 6th, the Bench stated that they would decide when to hear the EWS reservation case first. On September 8th the Bench accepted the issues framed by Attorney General K.K. Venugopal. They will decide:

• If reservations can be granted solely on the basis of economic criteria?
• If States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment?
• If EWS reservations are invalid for excluding Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes from its scope?

On September 27th, 2022, the Bench finished hearing arguments from all the parties and reserved Judgment in the case. In a 3:2 split, the Bench delivered the Judgment on November 7th, 2022 and declared that the Amendment and EWS Reservations were constitutionally valid. Justices Maheshwari, Trivedi and Pardiwala wrote separate concurring opinions for the majority and Justice Bhat wrote a dissent on behalf of himself and Chief Justice U.U. Lalit.

On December 6th, 2022, the Society for the Rights of Backward Communities filed a petition seeking a review of the Judgment allowing EWS reservations. On May 9th, 2023, CJI D.Y. Chandrachud led a 5-Judge Constitution Bench and dismissed the petition stating there were no grounds to review the Judgement.

Documents (13)

EWS Reservations: Dinesh Maheshwari J's Majority Opinion

November 7, 2022

EWS Reservations: Bela M. Trivedi J's Majority Opinion

EWS Reservations: J.B. Pardiwala's Majority Opinion

EWS Reservations: Ravindra Bhat J's Dissenting Opinion for himself and CJI U.U. Lalit

EWS Reservations: Supreme Court Judgment

Compilation of Written Submissions Filed by All Parties

September 6, 2022

EWS: Order Referring the Case to a Five-judge Bench

August 5, 2020

Writ Petition: by Dr. Thol. Thirumavalavan

January 28, 2019

EWS: Writ Petition By Youth for Equality

January 10, 2019

EWS: The Constitution (103rd Amendment) Act, 2019

January 12, 2019

EWS: Writ Petition by Adv. Reepak Kansal

January 21, 2019

EWS: Counter Affidavit Filed by the Union of India

March 12, 2019

Review Against The Judgment By Dr Jaya Thakur

Reports (22)

EWS Reservations: Judgment Matrix

EWS Reservation Judgment: SC Upholds 103rd Amendment in 3-2 Majority

EWS Reservations: Pre-Judgment Matrix

October 28, 2022

EWS Reservations: Argument Matrix

October 10, 2022

EWS Reservation Day #8: Responses to Governments Arguments on Last Day of Hearing

September 27, 2022

EWS Reservations Day #7: SG Tushar Mehta Argues Amendment Does Not Violate Equality

September 22, 2022

EWS Reservations Day #6: AG Venugopal Argues EWS Reservations are Independant

September 21, 2022

EWS Reservations Day #5: Sr. Adv. Shankaranarayanan Argues Amendment Makes Reservations Permanent

September 20, 2022

EWS Reservations Day #4: Reservations on Economic Criteria Violates Basic Structure of the Constitution

September 15, 2022

EWS Reservations Day #3: (Sr. Advs. P. Wilson and Salman Khurshid): Mr. Khurshid Suggests Alternatives to Reservation

September 14, 2022

EWS Reservations Day #3: (Sr. Adv. Ravi Varma Kumar): 103rd Amendment Violates the Right to Equality

EWS Reservation Day #2: Petitioners Argue that EWS Reservations are a ‘Constitutional Fraud’

September 13, 2022

EWS Reservations Day #1: Bench Accepts Issues Framed for Hearing by AG Venugopal

September 8, 2022

Referral Order in Plain English

August 6, 2020

Union Counter Affidavit Summary

August 1, 2019

Writ Petition Summary

Day 5 Arguments

July 31, 2019

Day 4 Arguments

July 30, 2019

Writ Petition & Counter Affidavit Summary

June 20, 2019

Day 3 Arguments

April 8, 2019

Day 2 Arguments

March 28, 2019

Day 1 Arguments

• Readers’ Blog

Supreme Court’s judgement in EWS Case & the Continuing Debate on Affirmative Action (Part 1)

On 7th November 2022, the Supreme Court in a 3:2 majority judgement upheld the 103rd Constitutional Amendment Act which provides for reservation to economically weaker sections (EWS). There are intense debates going on in public platforms on the verdict with sharp views on all aspects. In this essay I share my views on the Supreme Court’s judgement.

The 103rd Amendment

The 103rd Amendment to the Constitution reads as follows:

“ In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Explanation.— For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to timeon the basis of family income and other indicators of economic disadvantage.

In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.” .”

The Amendment to Article 15 enables the State to make special provisions for the advancement of any economically weaker section, including reservations in educational institutions and that the upper limit of EWS reservations will be 10% (meaning up to 10% of seats can be reserved for citizens falling in the EWS category). This will be independent of ceilings on existing reservations.

The Amendment to Article 16 enables the State to make provisions for reservation in appointments upto 10% ceiling, in addition to the existing reservations.

The Challenge

The argument of the Petitioners before the Supreme Court and those against the Amendment can be broadly summarised into 3 points:

1.   Reservations cannot be based solely on economic criteria as per the Supreme Court’s judgment in Indra Sawhney case.

2.   SCs/STs and OBCs cannot be excluded from economic reservations, as it would be in violation right to equality (which is a fundamental right).

3.   The Amendment introduces reservations that exceed the 50% ceiling-limit on reservations.

Questions before the Constitution Bench

Based on hearing the arguments made by the Petitioners and the Government, the Supreme Court framed 3 questions which would be decided by the five Judge Constitution Bench:

1.   Whether reservations can be granted solely on the basis of economic criteria?

2.   Whether States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment?

3.   Whether the basic structure is violated by excluding the SEBCs (Socially and Educationally Backward Classes), OBCs, SCs & STs from the scope of EWS reservation?

The Judgement

After detailed hearings, the Supreme Court (in 3:2 split verdict) has answered the 3 questions mentioned above in the following manner:

Question 1: All the judges on the bench agreed that reservation can be granted solely on the basis of economic criteria.

Question 2: All the judges on the bench agreed that States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment.

Question 3: Three judges ruled that the basic structure is not violated by excluding the SEBCs (Socially and Educationally Backward Classes), OBCs, SCs & STs from the scope of EWS reservation and two judges ruled that the basic structure is violated and struck down the Constitutional Amendment.

Therefore, the Supreme Court upheld the Constitution (103rd Amendment) Act by a majority of 3:2.

An Opinion on the Judgement

I have recorded my views on the judgement in two parts. The first part deals with providing reservation solely on the basis of economic criteria and the second part deals with whether EWS quota violates basic structure of the Constitution and Indra Sawhney judgment.

• Reservation based on Economic Criteria & Exclusion

When the Constitution was framed, it was decided to pursue the upliftment of the classes that were historically oppressed through affirmative action. Since the Mandal Commission era (since when OBCs are provided with reservation), several committees deputed by the Government have said that socio-economic parameters must be used to determine the backwardness of a caste to see whether they must receive the benefits of reservation or not. And moreover, how can one say economic criteria should not be used to determine reservation while they support the creamy layer principle (which is based on economic criteria)?

While we recognise that there are still cases of oppression of certain castes and tribes, we must also recognise that the effect of historical oppression has decreased to a large extent. It is also important to understand that State is bound to promote social equality and pursue welfare of weaker sections of society under Article 46 of the Constitution. This makes the Constitutional Amendment necessary in order to ensure fair and equal opportunity for a large number of citizens who are excluded from higher educational institutions and are not covered under existing reservation schemes.

It is also not right to quote the Indra Sawhney case to argue that reservation cannot be provided solely on economic criteria. The scope of that case is restricted to Article 15(4) and Article 16(5) which deal with socially and educationally backward classes, Scheduled Caste and Scheduled Tribes, which form a completely different category. The Supreme Court itself has stated in the Indra Sawhney judgement that it is not dealing with economically weaker section citizens getting reservation. The relevant quote from that judgement is as follows: “ However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression “weaker sections of the people” in Article 46 should not be mixed up with the expression “backward class of citizens” under Article 16(4). The purpose of Article 16(4) is limited . It is to give adequate representation in the services of the State to that class which has no such representation. Hence, Article 16(4) carves out a particular class of people and not individuals from the “weaker sections”, and the class it carves out is the one which does not have adequate representation in the services under the State. The concept of “weaker sections” in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not form a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only the concept of “weaker sections” under Article 46 is different from that of the “backward class” of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true. If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying backward classes of citizens under Article 16(4) would be more clear . To the consideration of that aspect we may now turn. ”

To further strengthen my, I now quote another judgement of the Supreme Court in the Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) in which the validity of validity of the Right of Children to Free and Compulsory Education Act, 2009: a flagship legislation of the UPA Government enacted to give effect to Article 21-A of the Constitution was challenged. In this case, a 3 judge bench of the Supreme Court held that the Act is in consonance with Article 21 of the Constitution as it removes all barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission. It further held that earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14 and that that the provisions provided for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. Therefore, the provisions were upheld on the test of Article 14 of the Constitution as well.

With this being the settled Law, challenge to the 103rd Amendment (EWS) does not stand if the premise is that reservation is provided solely on economic criteria and that EWS excludes SC, ST and OBC.

In the next part, I will share my opinion on whether EWS quota violates basic structure of the Constitution and Indra Sawhney judgment.

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@ Voice of Dissent

I am a keen political observer. I am also associated with the Indian National Congress.

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Interns’ Corner | Scope Of ‘Weaker Sections And Disadvantaged Groups’ Under The Right To Education Act

– Mrudula Dixit*

The Right of Children to Free and Compulsory Education Act, 2009 ( ‘Act’ ) aims to foster inclusive education of children belonging to weaker sections and disadvantaged groups. On that note, this article aims at clarifying the scope of the term ‘weaker sections and disadvantaged groups’ by considering various government notifications and jurisprudence of the Indian Courts.

Section 2(e) of the Act states that a child from a weaker section means the one whose parents or guardians earn less than the minimum limit set by the Government. As per Section 2(d), a child from a Disadvantaged Group ( ‘DG’ ) includes children with disabilities, those belonging to Scheduled Caste ( ‘SC’ ) or Scheduled Tribe ( ‘ST’ ), and those part of any ‘socially and educationally backward class’ as may be specified by the notification of an appropriate Government.

In the 2018 Naz Foundation case, Supreme Court declared that DGs u/s 2(d) of the Act should include children suffering from HIV. Interestingly, in 2012, the Directorate of Education of Delhi had amended the definition of ‘disadvantaged category’ to include Orphans. In 2014, in another positive step; Delhi included transgender children within the DG category and extended all benefits of the Act to them. Although the 2012 Karnataka Rules have included migrants and street children in the ‘disadvantaged group’, it does cover ‘disabled children’ in the category, even when the same has been obligated by the primary Act (Mehendale, Mukhopadhyay et al, 46). The 2010 RTE Rules of Rajasthan explain that girls will be considered validly in the DG Category. Similarly, the 2010 Andhra Pradesh Rules, thoroughly state that in plain areas, HIV affected children, disabled children and orphans will be given priority followed by children from STs and SCs. Though Maharashtra did not expand the definition of DG Category, the Maharashtra Rules include Vimukta Jatis (De-Notified Tribes) in the definition of ‘weaker section’ (Tucker and Sahgal, 4). Some States construe weaker section as only the economically vulnerable, while others include social categories in the same. This discrepancy in the definition can be attributed to the specific needs of a State, however, the lack of a fundamental understanding of the DG Category and Weaker Sections proves to be problematic.

In Society for Unaided Private Schools of Rajasthan, Section 12(1)(c) of the Act which governs the 25% reservation for children from weaker sections and disadvantaged groups in private unaided schools, was challenged . The Supreme Court observed that ‘compulsory reservation in unaided non-minority schools for achieving universal primary education’ is permissible under Article 21-A of the Constitution which guarantees a right to affordable education. Moreover, the inclusion of Article 15(5) through the 93 rd Constitutional Amendment allows the State to regulate reservation of seats in unaided non-minority educational institutes. However, the Court, relying on Article 30(1), excluded minority unaided educational schools from the responsibility of reservation. This is also in line with the principles of autonomy, voluntariness and non-nationalization of seats in private minority institutes as embodied through the judgment of TMA Pai Foundation and PA Inamdar . Hence, the designated weaker sections and disadvantaged groups are required to be admitted in every private unaided non-minority institute except orphanages and boarding schools.

But the Rules framed by each State may limit the impact of the parent Act. For instance, Rule 4 of the 2012 Karnataka Rules stated that no unaided private school will have to bear the burden of admitting vulnerable groups, if a government or aided school was available within the neighbourhood. When it was challenged in RTE Students’ and Parents Association, as being ultra vires the primary Act, the High Court rejected the contention. It concluded that the Government will have to pay ‘astronomical figures’ for reimbursing educational fees, when in fact, another viable option of government and aided schools existed (Bhatia). This judgment goes against Section 12(1)(c) of the Act and the opinion in Society for Unaided Private Schools in Rajasthan where the Supreme Court upheld the significance of Article 21-A and the responsibility of both State and non-state actors to enforce this fundamental right. Hence such rules may limit the choice of children from weaker sections or disadvantaged groups and prevent them from reaping the benefit of Section 12(1)(c).

Although weaker sections based on social and cultural background may vary from State to State, several groups which are under-represented pan-India fail to make the cut under the Act including transgenders, De-Notified Tribes and persons with disabilities. Such disparity calls for a centralised notification, outlining socially and culturally disadvantaged in addition to Scheduled Castes and Scheduled Tribes mentioned in Section 2(d) of the Act. Moreover, there is a lack documentation and impact analysis in most States. Though the notifications allow certain disadvantaged groups to avail the benefit of Section 12(1)(c), the ground reality is not known. Due to the lack of documentation, in actuality, SCs and STs are often prioritized over other culturally underprivileged groups like children affected with HIV, transgenders or children living on the streets. Like Kerala, where the local authority is to maintain a record of all children falling in vulnerable category aged between 0-14, other States should follow suit, especially when it is mandated by the Act (Kaushiki).

Private unaided schools are often hesitant to discharge their responsibility under the Act. However, that is not unwarranted. Even though these schools are reimbursed by the Government, the amount they receive, by virtue of S. 12(2), is capped at the amount the Government would spend on a child at a public school. These low figures often cover only bare negligible costs of expensive private schools. Moreover, there are numerous lapses on part of the Government in paying these mandatory costs, for instance, in Uran Education Society, the Bombay High Court issued a directive to the Maharashtra State Government to compulsorily pay the accrued fees to private unaided schools as mandated by the Act.

The enforcement of the Act can only be effective if there is a strong Public – Private Partnership ( ‘PPP’ ), i.e., planned cooperation between government and private sector for education services. One model of PPP involves private managerial staff in public schools; Educomp has entered into an agreement with the Government of Punjab to administer a few Secondary Schools in the State. It can also involve contracting out professional services in public schools such as teaching, curriculum development etc.  (Luthra and Mahajan). These initiatives must be spearheaded in an effective and transparent manner to achieve the goals of the Act. Hence, the true potential of the Act can be realized through centralized notifications, enthusiastic participation from all stakeholders including private entities and an expansive interpretation of vulnerable categories.

Online Sources;

• Mehendale Archana et al. “Right to Inclusion and Education in Private Unaided Schools”. Economic and Political Weekly. Vol. L. no. 7, 2015, pp 43-51.
• Tucker, Shailey, Sahgal, Gayatri. “25% Reservation under the RTE: Unpacking the Rules in PAISA States”. AI Policy Briefs, June 2012.
• Kaushiki. “Right to Education: The Story so Far.” PRS Legislative, August 1, 2012 https://www.prsindia.org/hi/theprsblog/right-education-story-so-far
• Gautam Bhatia, “The Karnataka High Court’s Troubling Decision on the Right to Education Act”. Indian Constitutional Law and Philosophy, June 23, 2019. https://indconlawphil.wordpress.com/2019/06/23/the-karnataka-high-courts-troubling-decision-on-the-right-to-education-act/
• Manisha Luthra and Shikha Mahajan. “Role of Public-Private Partnership in School Education in India” Global Journal of Management and Business Studies. Vol. 3 No. 7, 2013, pp 801-809.
• Naz Foundation (India) Trust v. Union of India (2018) 11 SCC 547.
• Society for Unaided Private Schools v. Union of India & Ors (2012) 6 SCC 1.
• RTE Students & Parents Association v. Union of India W.P No. 7889/2019
• Uran Education Society v. State of Maharashtra (2015) 5 Bom CR 95.
• T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481.
• P.A Inamdar v. State of Maharashtra and Ors. AIR 2005 SC 3226.

Statutes and Rules;

• The Constitution of India
• Right of Children to Free and Compulsory Education, 2009.
• Maharashtra Right of Children to Free and Compulsory Education (Manner of admission of Minimum 25% children in Class I or Pre-school at the entry level for the children belonging to disadvantaged group and weaker section) Rules 2013.
• Notification F. DE. 23 (42)/DE/RTE/2013-14/1305-1314. [Delhi].
• Notification F. 15(172)/DE/Act/2010/4926-40 [Delhi].
• Karnataka Right of Children to Free and Compulsory Education Rules, 2012.
• The Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010.
• Rajasthan Right of Children to Free and Compulsory Education Rules, 2010

*Mrudula Dixit is currently studing in 5th year of B.A. LL.B (Hons.) course at Symbiosis Law School, Pune. Mrudula interned with IDIA from 1st April 2020 to 30th June 2020.

The views and opinions expressed in this blog post are those of the author alone. They do not reflect the official position of IDIA Charitable Trust. The facts have been compiled by the author and we make no representations as to their accuracy or validity. We will not be liable for any errors, or omissions. Readers are advised to verify the facts.

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...and denial of social justice to the landless and weaker section of the society including the Scheduled Caste and Scheduled Tribes and backward classes.6. The net result of the grant ... section but, the r implementation in the shape of land reforms for providing land to landless persons is seriously jeopardised and hampered by grant of stay orders by one court after the other court and the process continue.... Mathur, the learned counsel for the respondents submitted that the answering respondents are poor persons and weaker section of the society and the land was allotted to them, because they were landless...

...society.Expression ‘ weaker section ’ referred to in these rules shall mean a person belonging to Scheduled Castes, Scheduled Tribes, women and Backward Classes of...—(a)-(c)***(d) the number of seats reserved for weaker section .”Rule 444-A(3) reads as...under:“444-A. (3) The Registrar or the authorised officer shall, under provisions of sub-rule (6) of Rule 440, reserve constituencies/areas for weaker section and such...

... of posts for women. It appears to me that when we are talking so much of the up-liftment of the weaker section in society, in appropriate cases due weightage appears to be called for when it comes...in an Institution of higher learning like the Government Law College in question. It appears to me that it would enhance and promote and enlighten the weaker section in society if...fact that it will be in the interest of the society at large to have a woman lecturer who represents the weaker section of society, I am inclined to direct the State Government to hold a special D.P.C...

...also held that Section 3(c) was prospective and did not affect the cases that were pending on the date it came into operation.4. The present batch of appeals are directed...in order to encourage new constructions exempted them altogether from the provisions of the Act. It did not proceed on the basis that all tenants belonged to the weaker section of the community and...needed protection and that all landlords belonged to the better off classes. It confined the protection of the Act to the weaker section paying rents below Rs 250. It is clear, therefore, that the...

...Parliament to extend protection to the weaker spouse. A common feature of both these provisions is that in both the cases the offence is committed against a woman by her husband or any relative of...Criminal Law (Second Amendment) Act, 1983 Section 304B was inserted with a view to combating the increasing menace, of dowry deaths while Section 498A reflects anxiety of the...JUDGMENT M.A.A. Khan, J. 1. This revision Under Section 397 and 401 of the Code of Criminal Procedure is filed by the accused - applicants...

...approach. We must as a word of caution observe that whenever such serious cases of atrocities on weaker sex or weaker section in police custody come to limelight in judicial courts, the judicial o...and that an enquiry was also conducted under section 176 Cr. P.C by the Additional District Magistrate who filed a complaint under section 302 IPC on which a F.I.R No. 39/84...son Laxman recorded under Section 161 Cr. P.C as well as recorded by the Additional District Magistrate. The Government Advocate has also placed before us the entire case...

...mortem injuries. It was found that the Magistrate was unjustified in accepting the negative final report and it was observed that in the serious cases of atrocities on weaker sex or weaker section in...the head injury which was the cause of the death. The petitioners have referred to the proceedings conducted under Section 174 Cr.P.C and have alleged that in the entire...decided cases , it is submitted that the petitioners are entitled for compensation for the mysterious death of Dr. Madhvendra Dani. The petitioners have also referred to Rule 75 of the Rajasthan Civil...

...the position to record a finding that the settlement between the parties is voluntary and fair. The Court must examine the cases of weaker and vulnerable victims with necessary caution.The Hon'ble Supreme Co...matters can safely be dealt with by the Court by exercising its powers under Section 482 of the Cr.P.C in the event of a compromise, but this is not to say that the power is limited to such cases . There...RITU BAHRI, J. (Oral)The present petition has been filed under Section 482 Cr.P.C for quashing the FIR No. 110 dated 10.10.2007 (Annexure P-1...

...the land was given for making houses for the people of weaker section but the same was not completed in the prescribed time limit and the purpose was not served, for which, the land was allotted...Government to the Gujarat Rural Housing Development Board (herein after referred to as ‘the Board’ for short) in the year 1983 for construction of houses for the people of weaker section on certain...- Board, would submit that the land was allotted for construction of houses for the people of weaker section and financial aid was required to be obtained from HUDCO. He would further submit that due to...

...under S. 21 of the Act seeking permission to construct houses for weaker section of the society. S. 20 of the Act relates to the powers of the Government to exempt vacant land from the operation ...; iv) The question of hardship to the owner of the land. Section 21 of the Act provides that in certain cases the owner of the lan...for which permission is granted may continue to be the owner of the land but the land shall be used for a specific purpose, that is to say, construction of houses for weaker section of the society. The...

...respect of the persons belonging to the weaker section of society, who have not at all deposited any amount in time in the light of various circulars were issued from time to time, has extended the.... However, by an order dated 27.04.2004, the allotment itself was cancelled. 3. In similar cases , in respect of allotment of smaller plots measuring 20x30 and 30x40, this Court, in...

...been alleged against the accused applicant, who is a gram pradhan and is in a position to dominate the will and wishes of the poor prosecutrix. In the cases of sexual offence particularly, committed by an influential person.... 6. In the present case, from bare perusal of the statements of prosecutrix under Section 161 and 164 Cr.P.C. it is quite clear that the allegation of repeated incidents of rape has...statements have been given by the prosecutrix herself in her statement under Section 161 and 164 Cr.P.C. and the same are also not inconfirmity with the FIR of the case. It is further submitted...

...with the previous sanction of the Collector. The intention of the Legislature in making this provision was that this weaker section of the community should not become landless and that persons belonging...interests.” 18. The impugned Act is nothing but a remedial measure in keeping with the policy of the State for rendering social and economic justice to this weaker section ...treats equals unequally since there is preferential treatment given to members of Scheduled Tribes as against those of Scheduled Castes who also constitute the weaker section of the society without...

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Legal Exploitation of Weaker Sections

Published by admin on may 18, 2023 may 18, 2023.

This article is written by Shambhavi Shrivastava of 4 th Semester of Pravin Gandhi College of Law

Introduction

The Republic of India is known for its diverse culture and secular nature. What makes it less popular in other countries is its socio-economic disparity, which has greatly contributed to the rise of weaker section of the society, which is variegated as the nature of the Indian society consisting of many sections, to name a few – women, scheduled castes, scheduled tribes, other backward classes, transgenders and so on. They have been discriminated in every walk of their life by the influential section of the society. In a democratic country like India all other freedoms fatuous if the citizens do not have socio-economic freedom. These sections have faced discrimination and have never been considered equal with the other members of the society since time immemorial. Yet their quest for access to basic rights and social justice is antediluvian and still confronted with several issues. It was the emergence of religions like Jainism, Buddhism, efforts of Gandhiji to uplift the Harijans, Dr Ambedkar’s endeavour to make them socially and politically equipped by providing them means in the constitution that their status has improved. Every now and then, a question which is persistently discussed is whether the status of weaker section of the society have changed? Whether they are guaranteed all their rights and provided with justice?

Keywords – Discrimination, Justice, Weaker sections

Who are the people constituting weaker sections?

“Weaker section” is a term which is usually used to refer to that portion of the population which is economically, socially and politically lags behind the population as a whole and have endured with a range of infirmities due to the fact of their being backward.

Due to the ill practices such as untouchability, tribal backwardness etc, the Government of India Act, 1935 describes “weaker sections” as individual, or groups of individuals or a particular class of individuals those who have struggled with socio-cultural, educational and economic backwardness, as well as others aspects of life.

Various resolutions that have been passed by the Indian government has divided the weaker sections of the society in three chief categorization –

• Scheduled Castes
• Schedules Tribes
• Other Backward classes

But this list does not include all the categories of people who should be considered under the weaker sections. Class of people such as senior citizens, sexual minorities, women, poverty ridden migrants, disabled, people suffering from sexually transmitted diseases have also suffered historical injustice and inequality. These have also been victimised from antiquity.

What is legal exploitation?

Legal exploitation refers to the use of laws and legal mechanisms to exploit weaker sections of society. This could take various forms, from the exploitation of vulnerable workers to the systematic disenfranchisement of certain groups. In many cases, legal exploitation is enabled by the very laws and regulations that are meant to protect vulnerable populations.

One of the most obvious examples of legal exploitation is the exploitation of workers. This can take many forms, including unpaid wages, unsafe working conditions, and excessive working hours. In many cases, workers are forced to work in these conditions due to their vulnerable status, such as being undocumented or lacking access to legal resources. Employers may use legal mechanisms to exploit these workers, such as by classifying them as independent contractors rather than employees or denying them the benefits they are entitled to under the law.

Another example of legal exploitation is the disenfranchisement of certain groups, such as racial minorities and low-income individuals. This can take many forms, from gerrymandering to voter ID laws that disproportionately impact these groups. These laws are often justified on the grounds of preventing voter fraud or maintaining election integrity, but in reality, they serve to limit the political power of these groups and perpetuate their disenfranchisement.

One of the most insidious forms of legal exploitation of weaker sections is debt bondage. This occurs when individuals are forced to work off a debt that they can never repay, often in harsh or dangerous conditions. Debt bondage is common in many parts of the world, particularly in developing countries where poverty and lack of opportunity can leave people vulnerable to exploitation. In some cases, debt bondage is even used as a means of trafficking individuals into forced labour or sexual exploitation.

Legal exploitation can also take the form of predatory lending practices. Banks and other financial institutions may target vulnerable individuals with high-interest loans or predatory lending practices, which can trap them in cycles of debt and financial insecurity. These practices are often enabled by legal mechanisms that allow lenders to charge high interest rates or engage in other exploitative practices.

Why does legal exploitation occur?

There are various reasons why legal exploitation occurs, but one of the most significant is the power imbalance between different groups in society. Those who hold power, whether through wealth, political influence, or social status, are often able to use the law to their advantage and exploit those who lack these resources. This is particularly true in societies where there is a significant income or power gap between different groups.

Another factor that contributes to legal exploitation is the failure of legal systems to adequately protect vulnerable populations. Laws and regulations are meant to provide a level playing field for all individuals, but in reality, they often fail to do so. This may be due to loopholes in the law or insufficient enforcement mechanisms that allow exploitative practices to continue unchecked.

Finally, legal exploitation may occur due to cultural or social norms that perpetuate the marginalization of certain groups. For example, racial or gender biases may be reflected in the law, making it easier for those in power to exploit vulnerable populations. Similarly, social norms that stigmatize certain groups may make it more difficult for them to access legal resources and assert their rights.

Some of the prevalent forms of legal exploitation

• Labour laws: One of the most common forms of legal exploitation is the violation of labour laws. Workers in industries such as textiles, construction, and agriculture are often paid below the minimum wage, work long hours, and are not provided with basic amenities such as healthcare and safety equipment. Employers also frequently deny workers their right to form unions, which is a violation of their fundamental right to association.
• Land laws: Another form of legal exploitation is through land laws. Weaker sections such as Dalits, Adivasis, and other marginalized communities are often denied access to land, which is their primary source of livelihood. In many cases, land is illegally acquired from these communities, either by the government or by private individuals, without proper compensation or consent.
• Caste-based discrimination: The Indian caste system is one of the oldest and most entrenched forms of social stratification in the world. Despite being outlawed by the Constitution, caste-based discrimination continues to be a pervasive problem in India. Weaker sections such as Dalits and Adivasis are often subjected to caste-based discrimination in various forms, including denial of basic services such as education and healthcare, and exclusion from economic and political opportunities.
• Gender-based discrimination: Gender-based discrimination is another form of legal exploitation that affects women and girls disproportionately. Despite several laws and regulations aimed at protecting women’s rights, gender-based discrimination persists in various forms, including violence, harassment, and unequal pay.
• Criminal justice system: The criminal justice system is meant to protect the rights of citizens and punish offenders. However, weaker sections of society are often victimized by the system itself. Police brutality, custodial deaths, and wrongful arrests are just some of the ways in which the criminal justice system has failed weaker sections of society.

Impact of Legal Exploitation

The impact of legal exploitation on weaker sections of society is devastating. It perpetuates poverty and inequality and denies them the basic rights and opportunities that are essential for a dignified life. The denial of land and livelihoods, the violation of labour laws, and caste-based and gender-based discrimination are just some of the ways in which weaker sections are systematically excluded from mainstream society. It can also have economic consequences, as those who are exploited are often unable to participate fully in the economy or to access the resources they need to thrive. This can lead to a vicious cycle of poverty and exclusion, as the exploited are unable to escape their circumstances and are denied the opportunity to improve their lives. The impact of legal exploitation is not just economic but also psychological, as it perpetuates feelings of helplessness and hopelessness among those who are subjected to it.

Moreover, legal exploitation also undermines the rule of law and erodes public trust in institutions. When laws and regulations are used to oppress weaker sections, it sends a message that the law is not meant to protect everyone equally. This erodes public trust in institutions and undermines the legitimacy of the state.

Provisions in the Constitution for weaker sections

The makers of the Constitution envisaged various provisions within the Constitution to safeguard and uplift the weaker sections of the society. These can be listed as follows –

Article 14 – It states that “The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”.

Article 15 – It states that “The State shall not discriminate any citizens on grounds only of religion, race, caste, sex, place of birth or any of them”.

Article 15(3) – It states that “Nothing in this article shall prevent the State from making any special provision for women and children”.

Article 15(4) – It states that “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.

Article 16 – It provides for equality of opportunity in the matters of public employment.

Article 17 – It states that “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with the law”.

Article 21 – It states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Article 21A – “provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine”.

Article 24 – It states that “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.

Article 25 – It provides for “freedom of conscience and free profession, practice and propagation of religion”.

Article 29 – It provides for the “protection of interest of minorities”.

Article 30 – It provides for the “right of minorities to establish and administer educational institutions”.

Article 38 – It states that “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life”.

Article 41 – It states that “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”.

Article 42 – It provides for “Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief”.

Article 340 – It “provides that the president has the authority to investigate the condition of socially and economically backward classes through appointing a commission to investigate”.

Part XVI – provides for political empowerment to the scheduled castes, scheduled tribes and other classes. Article330 and Article 332 reserve seats for scheduled castes and scheduled tribes in the house of people and legislative assemblies of the state respectively.

Constitutional provisions for women

Article 15(3) – It states that “Nothing in this article shall prevent the State from making any special provision for women and children”.

Article 39(a) – The State shall direct its policy towards securing all citizens men and women, equally, the right to means of livelihood.

Article 39(d) – It guarantees Equal pay for equal work for both men and women.

Article 42 – It asks the state to ensure just and humane conditions of work and maternity relief.

Article 51 (A)(e) – To renounce the practices derogatory to the dignity of women

Article 300 (A) – Right of property to women

73rd and 74th Amendment Act 1992 – Reservation 1/3rd of seats in local bodies of panchayats and municipalities for women.

Article 243(D) – Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women.

Article 243(T) – Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality.

Provisions for reservation for the weaker sections

Article 332 – Provides for reservation of SC’s and ST’s in the Legislative Assemblies of the State.

Article 334 – Provides for reservation of seats and special representation which was to cease after forty years, to SC and ST and the Anglo-Indian communities to the House of People and Legislative assemblies.

Article 335 – provides for claims of SC and ST to the services and posts.

Article 243(D) – Provides for reservation to SC and ST in Panchayats

Article 243(T) – Provides for reservation to SC and ST in Municipalities.

Statutory Provisions

Protection of Civil Rights Act, 1955 – this act was passed to curb untouchability and bridge the gap between the upper and lower castes.

Scheduled Castes and Schedules Tribes (Prevention of Atrocities act), 1989 – this act was passed to safeguard the marginalised sections and give them their rights.

The National Commission for Backward Class Act,1993 – It was passed after the Indra Swahney judgement. This act aims to protect and uplift the socially and economically backward classes.

Indra Swahney vs Union of India, 1992

This was the landmark judgment where the Supreme Court upheld the OBC reservation under some conditions as was suggested by BP Mandal commission. The concept of “creamy layer” emerged from this judgement. Also, the 50% ceiling on reservation was mandated in this case.

EWS judgement, 2022

The Supreme Court held that 50% cap on the reservation is not flexible and applies on only socially and economically backward classes, though economical weaker section are not included under the category, so they can have reservation outside this 50% ceiling.

The above judgements show that the Judiciary has tried to bridge the gap which is prevalent. There are many more such judgements in the favour of the weaker sections.

The framers and the founding fathers of the Indian Constitution envisioned the possibility that weaker section of the society which has been historically disadvantaged, requires provisions which would protect them and provide for their upliftment. Hence, the Constitution was framed keeping in mind the need of the section. The weaker sections have been provided enough constitutional and statutory provisions under the Constitution, reservation in educational institution and jobs being one of them. From time to time central government and various state government catapult various schemes in their favour. Various commissions have been established to ensure that they are being given their rights. Over the past few years the government has been trying to promote and uplift them and also bridge the gap between them and the remaining population. India’s progress is possible if and only if, every citizen has all rights and proper access to justice. To make weaker section progress should not only be the duty of government but also of every individual so that they can be merged with the mainstream population. There is also a requirement to properly execute all of the provisions that exist on paper but are not applied. India’s aim of becoming a developed nation may be realised if all of its stakeholders advance and are not exploited.

• Weaker Sections Of The Society: Protection Of SC’s And ST’s Interests, avaialbloe at https://www.legalserviceindia.com/legal/article-9293-weaker-sections-of-the-society-protection-of-sc-s-and-st-s-interests.html
• Amruta, P. Weaker Sections – Constitutional Provisions – Indian Polity Notes., available at https://prepp.in/news/e-492-provisions-related-to-weaker-sections-indian-polity-upsc-notes
• Important Constitutional And Legal Provisions For Women In India – Womans Rights, available at https://www.legalserviceindia.com/helpline/woman_rights.htm
• Amruta, P. (n.d.-a). Constitutional Provisions for Scheduled Caste – Social Justice Notes, available at https://prepp.in/news/e-492-constitutional-provisions-for-scheduled-caste-social-justice-notes
• Minaxi bhardwaz, (2016, December 12). THE WEAKER SECTIONS IN INDIAN SOCIETY- ARE THEIR RIGHTS AND ACCESS TO JUSTICE GETTING BETTER? Available at   https://minaxibhardwaz.wordpress.com/2016/10/02/3578/
• R. Garg (2021, July 8). Weaker sections of society and the Constitution : a socio-legal analysis – iPleaders, available at https://blog.ipleaders.in/weaker-sections-society-constitution-socio-legal-analysis/

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My New Evolving Thoughts.

Motivate yourself and others., protection of the right of children, women, minorities and weaker section of the society through the indian constitution.

The Indian constitution is the fundamental documents of the country where the equality is the basic principle. This documents consist of Article 14 which emphasize on “EQUALITY BEFORE LAW” which means every citizen of this country are to be treated equally and no one will be discriminate or deprived by law. Article 14 of the Indian constitution also provides the protection for every individual within the territory of India.

I mentioned this Article on the top paragraph because this provision of our constitution is provides the equality to every individual of the country and those individual includes children, women, minorities and as well as weaker section of the society.

Right of children:

Indian constitution provides the protection to the right of children through Article 21-A . Article 21-A of the Indian constitution protects the educational right of the children who are between the ages of six to fourteen years. This Article stated that “the state shall provide free and compulsory education to all children” (between the ages of six to fourteen years).

This is the part of fundamental rights of the citizen where the citizen has the right to enforce this right in the court of law if it is infringe by the state.

Apart from this provision, Article 45 also talks about the protection of the right of children through provide the early childhood care and education (until they complete the age of six years) . This provision is the part of the directive principles of state policy which is not enforceable by the court of law.

Right of women:

I already mentioned Article 14 of the Indian constitution which talks about the equality before the law and equal protection of the law. Irrespective of this, there are several provisions under the constitution which protects the right of women.

Article 15 of the Indian constitution safeguard the women’s rights through the policy of non-discrimination . This provisions clearly emphasise that the state shall not discriminate against any citizens on grounds of religion, caste, sex (gender) and place of birth.

Apart from these provisions, our constitution also provides protection to the women through Article 16 . Through this provision, it’s provides the equal opportunity in matters of public employment without any discrimination on the ground of caste, sex (gender) , religion, etc.

These are the part of the fundamental rights of the constitution where a woman can enforce his right if she discriminate by the state.

Right of minorities and weaker section:

Our Indian constitution not only talks about the right of women or children but also emphasise on the protection of minorities and weaker section of the society.

Constitution provides many rights to the minorities through various provisions to ensure the equality among the people and to maintain the diversity of our country.

As a part of the fundamental right of the minority community, constitution provides the safeguard on the language, script and or culture of the different minority community through Article 29 (1) . And at the same time, Article 29 (2) provides the right to the minorities to take admission into any educational institution without any discrimination.

Apart from these provisions our constitution also provides right to the minority communities (under article 30) to establish and administered educational institutions based on their religion and language.

Answer source: The Constitution of India, Bare Act.

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Protect rights of weaker sections: CJI

Balakrishnan emphasises that legal institutions should be physically and economically accessible to the needy..

Chief Justice KG Balakrishnan on Saturday stressed the need to protect the rights of the poor and marginalised sections of the society, including women, victims of human trafficking, HIV infected persons and sex workers.

"Legal institutions need to be physically and economically accessible to the needy," Justice Balakrishnan said inaugurating the 6th All India Meet of the State Legal Services Authorities in Kochi.

The problems of workers in the unorganised sectors such as the construction industry, workers in tea gardens should be addressed and implementation of labour laws must be ensured. The existing system of legal aid to the prisoners and persons lodged in correctional homes needs to be revamped, he said.

"Justice system provides a vehicle to mediate conflict, resolve disputes and sustain social order. But inequitable justice system may perpetuate inequality, traps by maintaining elite interests and discriminatory practices," he said.

"The existence of an independent judiciary by itself was not enough to protect citizens against the abuse of power. People's legal rights may remain theoretical if the institutions charged with enforcing them are inaccessible," he said.

"Accessibility depends on how compatible laws are with the norms and understandings that shapes the lives of the people," he said. 

Despite efforts, the Constitutional goals of equal opportunities are yet to be realised by millions of Indians who need support for access to justice, he said.

Though 25 years have passed since the implementation of the Legal Services Authorities Act, there was much to be done in the field of legal aid, he said.

India being a poor country, legal aid to the poor people has always been a serious problem confronting the authorities.

Though there were suggestions of providing free legal aid to the poor persons with the State making available necessary funds through taxes, not much progress could be made in this regard, he said.

"Legal institutions can uphold the political rights of citizens and curb the capture of the state by elite. They can equalise economic opportunities by protecting property rights for all and ensuring non discrimination in the market," he said adding people should be encouraged to avail the benefits intended to be conferred on them by the State.

Voluntary organisations and student community, especially law students should find out the vulnerable areas and help empower the marginalised sections by giving them free legal assistance and access to the present judicial system.

Union Minister of state for Law, K Venkatapathy said a large chunk of the population was unable to approach judiciary effectively mainly due to economic deprivation and poverty. Court fees, professional fees of lawyers and other incidental expenses like getting authenticated copies of documents make justice costlier for them.

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