RSTV: THE BIG PICTURE- RESERVATION: WHO WILL BENEFIT

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RSTV: THE BIG PICTURE- RESERVATION: WHO WILL BENEFIT


Introduction:

The BJP-led government tabled a constitutional amendment bill to provide 10 percent reservation in jobs and higher education to economically backward sections among the upper castes. The Union Cabinet, headed by Prime Minister Narendra Modi, had approved the Constitution (One Hundred and Twenty Fourth Amendment) Bill.

President Ram Nath Kovind has given his assent to the bill. The legislation will be known as The Constitution (103 Amendment) Act, 2019 . It will also have to face legal challenges if any.

 

The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019:

  • The Bill seeks to provide for the advancement of “economically weaker sections” of citizens.
  • Article 15 of the Constitution prohibits discrimination against any citizen on the grounds of race, religion, caste, sex, or place of birth. However, the government may make special provisions for the advancement of socially and educationally backward classes, or for Scheduled Castes and Scheduled Tribes. The Bill seeks to amend Article 15 to additionally permit the government to provide for the advancement of “economically weaker sections”. Further, up to 10% of seats may be reserved for such sections for admission in educational institutions. Such reservation will not apply to minority educational institutions.
  • Article 16 of the Constitution prohibits discrimination in employment in any government office. However, the government can allow reservation for any “backward class of citizens”, if they are not adequately represented in the services under the state. The Bill seeks to amend Article 16 to permit the government to reserve up to 10% of all posts for the “economically weaker sections” of citizens.
  • The reservation of up to 10% for “economically weaker sections” in educational institutions and public employment will be in addition to the existing reservation.
  • The central government will notify the “economically weaker sections” of citizens on the basis of family income and other indicators of economic disadvantage.

 

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).

 

Amendments Added through Constitutional 124th amendment:

The Act amends Articles 15 and 16 of the Constitution, by adding a clause which allows states to make “special provision for the advancement of any economically weaker sections of citizens”.

These “special provisions” would relate to “their admission to educational institutions, including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions”.

It also makes it clear that reservation would be “in addition to the existing reservations and subject to a maximum of 10 per cent of the total seats in each category”.

 Clause 6 to Article 15:

It allows the Government to give reservation for the economically weaker sections of society in higher educational institutions including private ones, whether they are aided or not by the State. Minority educational institutions are exempted.

 Clause 6 to Article 16:

It provides quota for economically deprived sections in the initial appointment in Government services.

It is amendment to fundamental right coming under Part III of the Constitution and it does not require ratification accordingly.

 DPDP of Article 46: About Reservation in Education and Economic Interests:

According to the objects of the bill, “The directive principles of state policy contained in Article 46 of the Constitution enjoins that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

Economically weaker sections of citizens were not eligible for the benefit of reservation.

With a view to fulfil the mandate of Article 46, and to ensure that economically weaker sections of citizens get a fair chance of receiving higher education and participation in employment in the services of the State, it has been decided to amend the Constitution of India.

 

Redesigning Reservations is the Need of the Hour:

The greatest cost of this amendment lies in the foregone opportunity to develop an enhanced and more effective reservation policy so that we can genuinely see an end to the entrenched inequalities in Indian society in the medium term.

We have gotten so used to business as usual that we make no effort to sharpen our focus and look for more effective solutions, solutions that would make reservations redundant in 50 years.

If the goal is to help as many people as possible, we are facing a serious challenge.

On the one hand, 50% reservation looks very large; in the grand scheme of India’s population it is a blunt and at times ineffective instrument.

The Statistics from UPSC tell us that in spite of reservations, a vast proportion of reserved category applicants do not find a place via the UPSC examination.

Statistics from other fields may tell a similar story. This implies that if we expect reservations to cure the ills of Indian society, we may have a long wait.

 

Does it violate fundamental rights?

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.

  • 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.

 

Supreme Court in Indira Sawhney case:

The proposed law would face roadblocks if challenged in the Supreme Court.

A nine-judge Constitution Bench of the Supreme Court in the Indira Sawhney case of 1992 specifically answered the question “whether backward classes can be identified only and exclusively with reference to the economic criterion.”

The constitution bench had categorically ruled that a backward class cannot be determined only and exclusively with reference to economic criterion. The bench had held that economic criterion may be a consideration or basis along with, and in addition to, social backwardness, but it can never be the sole criterion.

The bench in its judgement declared 50% quota as the rule unless extraordinary situations “inherent in the great diversity of this country and the people” happen. Even then, the court stated that extreme caution is to be exercised and a special case should be made out.

 

Conclusion:

At present, the economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.

The challenge we face is that our mindset is so driven by the reservation system that was developed in a different era that we have not had the time or the inclination to think about its success or to examine possible modifications.

The tragedy of the EWC quota is that it detracts from this out-of-the-box thinking.

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