The government has announced a decision to provide ten per cent reservation in
jobs and higher education for those belonging to the economically
backward sections of the general category.
The bill was introduced in Lok Sabha and was passed in January 2019, as there was
discontentment among a section of society who was not socially backward but
economically strained.
President Ram Nath Kovind given his assent(saying yes) to the bill- the Constitution (103 Amendment) Act, 2019 for
providing 10% reservation in jobs and educational institutions to the
economically weaker sections in the general category.
Constitutionally citizens are divided into certain categories, and general category did not get any benefit as citizens from reserved categories enjoyed certain privileges.
A look Back on Quotas and future possibilities and
Controversies
Quotas are reserved seats for availing benefits in government
jobs, institutions and benefits. When India got her independence, the society
was divided into casts and different segments. Some people were treated as
untouchables on the basis of the surname they carried for generation due to inhumane cast practices.
They lacked opportunities to grow, and these things socially made
them backward. So, when constitution was written, their treatment for
centauries was kept in mind. The quota was initially was applied for backward classes
for a couple of decades until they were accepted socially equal in society. The quota was not removed, and there were reasons for that.
However, one thing should be considered here, that the quota was
given on the basis of ‘social backwardness’ not on economic basis.
The Need for Reservation of Economically Weaker People
People who are from general category have to score higher in
competitive examinations, and pay more money as the concession is given to
backward classes to bring them to the level of equality.
This has been a reason of discard among communities. People did
not know about quota often and they related this to economic conditions.
Who will be provided reservation and how?
As per the reports, those with annual family income
below Rs 8 lakhs and owning less than five acres of land will be provided
reservations.
This 10% reservation would be over and above the existing 50 per
cent reservation.
Or in easy way -It provides
reservation for:
- People who have an annual income of less than Rs.8 lakhs.
- People who own less than five acres of farm land.
- People who have a house lesser than 1,000 sq feet in a town (or 100 sq yard in a notified municipal area).
The Bill has brought the change- the Constitution (103 Amendment)
Act, 2019
It is evident that as per the constitutional guidelines the quota
for economic weaker section was not possible, until the amendment was done in
the constitution. However, the parliament holds the supreme authority to make
law.
The legislation will be known as the Constitution (103 Amendment)
Act, 2019 and it shall come into force on such date as the Centre notifies.
The 10% reservation will be
in addition to the existing cap of 50% reservation for the Scheduled Castes,
Scheduled Tribes and the Other Backward Classes, taking the total reservation
to 60%.
Fundamental Rights are amended
124th
Constitutional Amendment- This amended two fundamental rights:
1.Article 15, which prohibits discrimination on the grounds of race,
religion, caste, sex or place of birth
2. Article 16 which prohibits discrimination in employment in
government office.
- It also makes a note of the Article 46, which asks the government to promote the educational and economic interests of the weaker sections of the society.
The 124th Amendment makes a
departure by extending reservation to the economically disadvantaged. Article
15(4), inserted by the First Amendment in 1951, enables the state to make
special provisions for socially and educationally backward classes.
Article 16(4) permits
reservation for any backward class if it is not adequately represented in
services under the state.
Thus, reservation is not a
right but, if granted, it will not be considered a violation of the right to
equality.
The Violation of Supreme Court’s Judgments
At present order of the government to provide reservations
violates some of the observations made by the Supreme Court in its previous
judgments.
In the landmark verdict of Supreme Court in the Mandal case, the
Supreme Court had held that the proposal to provide 10% Reservation for Other
economically backward sections of the people who are not covered by any of the
existing schemes of Reservation as constitutionally invalid.
The Supreme Court had held that mere economic backwardness or mere
educational backwardness which is not the result of social backwardness cannot
be the criterion of backwardness in Article 16 (4).
The Supreme Court has even ruled in the Indra Sawhney case that
the share of jobs or educational or legislative seats reserved for different
communities cannot together exceed 50%.
In
Kesavananda Bharati (1973), the Supreme Court held that Parliament can amend
the Constitution but does not have power to destroy it — no amendment can
change its “basic structure”. The court said that under Article 368, something
must remain of the original Constitution that the new amendment would amend.
However,
the court did not define what basic structure is, and only listed a few
principles — federalism, secularism, democracy — as being part of basic
structure. Since then, the court has been adding new features to the concept of
basic structure. In subsequent years, courts extended the doctrine even to
ordinary legislation and executive actions.
There are
states like Tamil Nadu that go beyond this limit and the Supreme Court has
upheld the state’s policy many a time. Presently, the state has a ‘69 per cent
quota system’.
From the
Poona Pact (1932) between M K Gandhi and Dr B R Ambedkar to the Constituent
Assembly debates, reservation was talked about in the context of social
backwardness of classes.
Article
46 and the General Category
Article
46, which is a non-justiciable Directive Principles say that the state shall
promote educational and economic interests of “weaker sections”, in particular
SCs and STs, and protect them from “social injustices” and “all forms of
exploitation”.
While the
124th Amendment mentions Article 46 in its statement and objects, it seems the
government overlooked the fact that upper castes neither face social injustice
nor are subjected to any form of exploitation.
Moreover,
the Constitution makes provisions for commissions to look into matters relating
to implementation of constitutional safeguards for Scheduled Castes (Article
338), Scheduled Tribes (338A) and Socially and Educationally Backward Classes
(339), but has not created any commission for the economically backward classes.
Conclusion
The case
is complicated and the government is directed in the Directive Principles of
State Policies to up lift the weaker sections of society. When the time
changes, the weakness can also change- that’s why the provision of amendment
was included in the Constitution.
Weaker
sections need more support, but quota has often been linked to the vote bank
politics.
Even when
the bill has been passed and signed by the president, the court can judicial
review the amendment.
In this
case, the court has to examine the equality code of the Constitution and
whether the state has considered and valued the circumstances justifying it, to
make reservation. This would require that the state’s decision is rational and
non-arbitrary.
The state
has to show quantifiable data to satisfy the court as to inadequacy of
representation of economically backward classes.
