103rd Constitutional Amendment Act 2019

Also called: EWS amendment · Topic: Safeguards for Vulnerable Sections: SCs, STs, OBCs, Minorities, Women and Children · NCERT: Beyond NCERT

Meaning

The 103rd Constitutional Amendment Act, 2019 (also called the EWS amendment) added Article 15(6) and Article 16(6) to the Constitution. These let the State reserve up to 10% of seats in education and posts in public jobs for economically weaker sections (EWS). EWS here means poor people who are not covered by the SC, ST or OBC quotas. This 10% is in addition to the existing reservations.

It matters because it is India's first quota based only on economic criteria. In Janhit Abhiyan v. Union of India (2022), the Supreme Court upheld it by 3:2 and said the 50% ceiling is not a fixed rule [1].

Explanation

What the amendment added

• Article 15(6): education and special provisions
• The State can make special provisions for EWS, including reservation in admissions.
• This covers private educational institutions too, whether or not they get government aid.

• Minority institutions under Article 30(1) are left out. These are schools and colleges that religious or language minorities set up and run.

• Article 16(6): public jobs

• The State can reserve posts in government jobs for EWS.

• Size of the quota: up to 10%, in addition to the existing SC, ST and OBC quotas.

• Who is left out: people already covered by SC, ST or OBC quotas cannot claim EWS. That is why it is a quota mainly for the poor among groups that had no reservation before.

Who counts as EWS: the central criteria

These rules come from DoPT OM No. 36039/1/2019-Estt.(Res), dated 31 January 2019 [3]. An OM (Office Memorandum) is a written order of a government department.

• Income test: gross annual family income below ₹8 lakh from all sources, including salary, agriculture, business and profession [3].
• Asset test: a family is not EWS, whatever its income, if it owns any of these [3]:
• 5 acres or more of agricultural land;
• a residential flat of 1,000 sq ft or more;
• a residential plot of 100 sq yards or more in notified municipalities (towns officially listed as municipal areas);

• a residential plot of 200 sq yards or more outside notified municipalities.

• Adding up property: if a family holds land or property in different places, all of it is added together for the asset test [3].

Why an amendment was needed

• Indra Sawhney (1992) had struck down a 10% quota for poor people of forward castes. That quota came from the OM of 25 September 1991.
• The reason:
• Article 16(4) speaks of a "backward class", and backwardness there means social backwardness, not just low income.

• In 1992, no part of the Constitution allowed a quota based only on poverty.

• The fix: the 103rd Amendment created new, separate articles, 15(6) and 16(6). These give express constitutional backing to a quota based on economic criteria. The EWS quota does not rest on Articles 15(4) or 16(4).

Limits

• The quota can go up to 10% only.
• It does not apply to minority educational institutions under Article 30(1).
• The 50% ceiling is a limit on total reservations that judges created, not one written in the Constitution. Together with existing quotas, EWS takes total reservation above 50%. The Court allowed this in Janhit Abhiyan (see below).

In the Constitution and practice

• Where it sits: Articles 15(6) and 16(6), under the Fundamental Rights on equality. The amendment was passed in January 2019.
• Who uses it: the Union and the states, for admissions and public jobs. At the central level, the DoPT OM of 31 January 2019 sets the income and asset limits [3].
• Background cases:
• M.R. Balaji (1962): said reservation should generally stay below 50%. It also said caste can help identify backwardness but cannot be the only test.

• Indra Sawhney (16 November 1992): a nine-judge bench, decided by 6:3, held that reservation under Articles 15(4) and 16(4) should not exceed 50% [2]. It upheld the 27% OBC quota but struck down the 10% economic quota for forward castes.

• Janhit Abhiyan v. Union of India (7 November 2022): a five-judge bench upheld the 103rd Amendment by 3:2 [1].

• Majority: Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala.
• Dissent: CJI U.U. Lalit and Justice S. Ravindra Bhat.
• Three challenges said the amendment broke the basic structure (the core features of the Constitution, such as equality and judicial review, which no amendment can destroy) [1]:
  1. reservation based on economic criteria alone;
  2. excluding SCs, STs and non-creamy-layer OBCs from EWS;
  3. an extra 10% that breaches the 50% ceiling.
• The majority's answers:
  • An economic criterion alone is a valid basis for reservation [1].
  • Excluding poor SCs, STs and OBCs does not break the basic structure, because these groups already have their own quotas.
  • The 50% ceiling is not inflexible. It applies only to SC, ST and OBC reservations [1], meaning those under Articles 15(4) and 16(4), and not to Articles 15(6) and 16(6).
  • Pardiwala J added that reservation cannot go on forever and should be reviewed over time.

• The dissent (Bhat J, joined by Lalit CJI):

  • Using economic criteria is acceptable in itself.
  • But a scheme for the poor that leaves out the poorest (poor SCs, STs and OBCs) is exclusion. This breaks the equality code (Articles 14–16), which is part of the basic structure.
  • Allowing a breach of the 50% ceiling could lead to more breaches and break up the right to equality.

• Lasting effect: reservation can now rest on present poverty and not only on historical social backwardness. The 50% ceiling now holds only for caste-based quotas.

Don't confuse with

• 10% quota in the OM of 25 September 1991: this was also a 10% quota for poor forward castes, but it was only an executive order under Article 16(4), and Indra Sawhney (1992) struck it down. The 103rd Amendment's EWS quota is a constitutional amendment that created new Articles 15(6)/16(6), and Janhit Abhiyan (2022) upheld it.
• Article 15(4) / 16(4) reservation (SC/ST/OBC): these quotas rest on social and educational backwardness and remain bound by the 50% ceiling. EWS rests on economic criteria alone, and the ceiling does not apply to it [1].
• Creamy layer: the creamy layer is the better-off section within the OBCs (Indra Sawhney), and it is excluded from the OBC quota. EWS is a separate category of poor people outside SC/ST/OBC. Both use a ₹8 lakh income limit, which is a common point of confusion.
• 102nd Amendment (2018) / 105th Amendment (2021): these deal with SEBC lists under Article 342A (who identifies OBCs, the Centre or the states). They have nothing to do with the economic EWS quota.

Prelims Hooks

• 103rd Amendment (2019) added Art. 15(6) (education, including private institutions) and Art. 16(6) (public jobs). The quota is up to 10%, over and above existing quotas.
• Trap: the EWS quota in admissions covers private aided and unaided institutions but not minority institutions under Art. 30(1).
• EWS criteria (DoPT OM, 31 January 2019): family income < ₹8 lakh. A family is excluded if it owns ≥5 acres of farmland, a ≥1,000 sq ft flat, or a residential plot of ≥100 sq yd (notified municipality) / ≥200 sq yd (elsewhere) [3].
• Janhit Abhiyan (7 November 2022): five judges, 3:2, amendment upheld [1]. Maheshwari, Trivedi and Pardiwala formed the majority. Trap: the Chief Justice (U.U. Lalit) was in the minority, along with Bhat J.
• Indra Sawhney (1992) struck down an economic-only quota. Janhit Abhiyan (2022) upheld one, because the new Arts. 15(6)/16(6) gave it express constitutional backing.
• Trap: the 50% ceiling is judge-made (Balaji 1962, Indra Sawhney 1992). No article states it, and Janhit Abhiyan held that it applies only to SC/ST/OBC quotas [1].

Mains Points

• Economic vs social criteria: EWS widens the idea of reservation from historical caste injustice to present poverty. This is the NCERT (Class 11, Equality) debate about whether disadvantage should be measured by social or economic factors.
• Gain: it reaches the poor in communities that had no quota before.
• Risk: the ₹8 lakh limit matches the OBC creamy-layer limit, so the "poor" category may be too wide.

• Risk: leaving out poor SCs, STs and OBCs raises the equality-code concern that Bhat J's dissent pointed out.

• The 50% ceiling under strain: by saying the ceiling is not inflexible [1], Janhit Abhiyan sits awkwardly with the Maratha case (2021), which kept the 50% rule for SEBC quotas. States such as Tamil Nadu, Maharashtra and Bihar may use this to push for higher caste-based quotas. This is a balance between formal equality (Art. 16(1)) and substantive equality (special help for groups held back).

• Judicial–legislative dialogue and reform: the Court rejected the economic quota in 1992, and Parliament then used its constituent power (its power to amend the Constitution) to give it constitutional backing in 2019. Possible reforms include:
• periodic review and sunset clauses (time limits), as Pardiwala J suggested;
• better quantifiable data to justify the size of each quota;
• regular review of the EWS income and asset limits so the benefit reaches the truly poor.

Related concepts

• M.R. Balaji case
• Carry-forward rule
• 81st Constitutional Amendment Act 2000
• Indra Sawhney case
• Fifty per cent ceiling on reservations
• Tamil Nadu's 69% reservation
• Maratha reservation case
• Economically Weaker Sections reservation
• Janhit Abhiyan case

Read more

• Reservation case law I: the 50% ceiling from Balaji to Janhit Abhiyan