Reservation on an economic basis : Some issues and challenges

Sarkar, Arpita (2021) Reservation on an economic basis : Some issues and challenges. NALSAR Student Law Review, 15. pp. 146-170. ISSN 09750216

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An increasing number of judicial decisions have emphasized the absence of ‘really backward’ people among the notified backward classes in reservation schemes. Economic backwardness is an important aspect of the determination of backward classes for reservation. However, unnecessary emphasis on this dimension may result in the delegitimization of other indicators for identifying backward classes. The constitutional amendment of 2019 which introduced reservation for economically weaker sections (‘EWS’) of the society further reduces the importance of social backwardness as an indicator for backward classes. This paper revisits the legal history of reservation to highlight that economic backwardness as a ground for reservation was deliberated upon and rejected by the Constituent Assembly. The paper further argues that the ‘creamy layer’ is a judicially developed test introduced through judicial surmises. Also, it is argued, based on historical and legal grounds, that reservation for EWS is likely to be declared unconstitutional because of its incompatibility and contradictory nature vis-a-vis the rest of the equality clauses. It may fail the width and identity tests as laid down in M. Nagaraj v. Union of India (2006) (hereinafter ‘M. Nagaraj’) to assess the violation of the basic structure through constitutional amendments.

Item Type: Article
Keywords: Reservation schemes | Economic backwardness | Backward classes
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 28 Feb 2022 10:11
Last Modified: 28 Feb 2022 10:11
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