Ahead of the 2019 Lok Sabha elections, the 124th Constitutional Amendment Bill has been enforced successfully. The Bill seeks to provide reservation for economically backward upper castes. The maximum reservation shall not be more than 10%. The bill has been ratified successfully by the President of India, Mr Ram Nath Kovind, which is now known as the Constitution (103rd Amendment) Act, 2019 and has been enforced on 14th January 2019.
The Central Government’s move amends Article 15 to provide reservation to economically weaker sections for admission in educational institutions whether aided or unaided by the State, except the minority educational institutions referred in clause (1) of Article 30. Article 15(4) acts as an exempt to clause 1 and 2 of the aforementioned article which was added by the 1st Amendment Act, 1951 to the Constitution of India after the decision in the case of State of Madras v. Champakam Dorairajan. Also, Article 16 is amended to provide reservations to people from economically weaker sections in government posts. Article 16(4) confers a discretionary power on the State to make a reservation if the need is, but it confers no constitutional right upon the members of the backward classes to claim reservation, as held in S.Pushpa v. Sivachanmugavelu.
This amendment is said to be beneficial for the upper caste economically backward citizens and some farming communities and is deemed to be a ‘meaningful’ reservation policy according to the government. The amendment also makes a note on Article 46 of the Constitution of India which makes it the imperative of the State to look after the educational and economic interests of the weaker sections of the society. The people who come under the ambit of this definition are people whose income is less than INR 8lakh per annum, people who are owners of agricultural lands of less than 5 acres and people who have a house lesser than 1,000sq.ft in a town or 100 sq.ft in a municipal area. The state may notify the term 'economically weaker sections' mentioned in the Act from time to time based on indicators such as family income and other pointers of economic disadvantage.
Gehlot, defending the Bhartiya Janata Party(BJP) had said that the apex court earlier rejected the Congress government ’s order for extending the benefits of reservation of the upper castes in 1992, which is the same year when the SC delivered the Mandal Commission judgement. The Congress government at that time, headed by the former Prime Minister P.V. Narasimha Rao was keen on introducing 10% reservation for ‘economically backward upper castes’, but that notification was short-lived, and it was struck down 1992 Mandal Commission judgement, with the SC clearly mentioning that ‘economical background cannot be the sole criteria for reservation.’
Hence, the 124th amendment bill is a strict violation of the 1992 Mandal Commission case. The landmark judgement in the case of Indra Sawhney v. Union of India, the nine-judge Constitution Bench of the Supreme Court held by 6:3 majority that reservation under Article 16(4) must not exceed 50% and that under the constitutional scheme of reservation, economic backwardness alone cannot alone be a criterion for reservation. Introducing an additional 10% by amending the constitution itself would completely render the ceiling limit of 50% capped in the aforementioned judgement. The judgement also said that reservation must not be availed only on the grounds of economic status, but there must also be social exclusion.
The 124th amendment bill, therefore, has been challenged before the Supreme Court of India by the NGO Youth for Equality contending that the bill violates ‘basic structure’ of the Constitution. The petition challenges Article 15(6) and Article 16(6) which was introduced by this amendment, as ‘breach of the basic structure of the Constitution. The petitioner further says that Article 14 and Article 16 form the integral features of equality and they have been violated by doing away with the 50% ceiling limit and the exclusion of economic background as the only criteria.
Reservation as a system has many sides to it. There are many caste groups which have moved up the social ladder and are now in an equal footing with the upper-castes, which was the main rationale behind affirmative action. The reservation has reduced the gap between the upper castes and the lower castes. Backward communities are now studying in many top educational institutions, and they have been represented in the services of the State. The Indian Railways is one sector where SC/ST employees have been employed in large numbers. In Tamil Nadu for example, there are so many castes under the list of OBCs, but they are no longer backward per se. The 69% reservation scheme by the DMK government has helped the communities of the state of Tamil Nadu, where 88% of the population itself belongs to SC, ST and OBC category.
At the same time, It is rightly said that “The urge to be one among the backward will gradually lead towards the stagnation in the development of the country.” Taking the example of the Patidars in Gujarat, Marathas in Maharashtra and the Jats in Haryana who have been demanding their names in the list of Socially and Educationally Backward Classes (SEDBCS). Now, these castes are major landowning groups in their State, and they are not socially or economically backward by any means as founded by the national and backward state classes commission. So if groups which are similar to them start demanding reservation, then the ones who require it will be left out. The whole point of reservation gets refuted since the ideology behind this system was ‘placing the deprived communities on an equal footing with the so-called privileged class.’ Some people have misused it in the name of caste and religion such as the politicians who are using it as vote-bank politics.
The 124th Amendment bill seeks to provide reservation by economic background in the upper caste, and it is a much better move because economic background and caste are no longer synonymous in today’s world. Social exclusion is an important parameter for reservation, but economic backwardness is also an important parameter especially when it comes to the educational sector. Top NLUs, IITs, IIMs have an exorbitant fee structure, and it gets very difficult to afford these top institutes, even if caste-based reservation allows a certain section to clear the cut-off. Hence, money in this regard is a much more critical factor.
Going by the Mandal Commission case, the 124th amendment bill violates the reservation policy null and void. The Supreme Court has to decide now whether the 50% cap on the reservation can be altered. It is a tough ask, considering that the 1992 judgement was delivered by a 9-judge bench and to overturn that judgement, historically, a larger bench is required. However, as of now, the bill has received Presidential assent and is now known as the Constitution (103rd Amendment )Act, 2019. It is enforced throughout the territory of India.
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image credit: Kalimpong news
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