124th Amendment Bill: Whether A Move For Social Justice Or A Political Gimmick

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124th Constitutional Amendment Bill
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On the last day of the winter session, Lok Sabha has passed the 124th Constitutional Amendment Bill, 2019 to provide 10% reservation in jobs and educational institutions to economically backward sections of the general category.  This bill will also include the economically backward people from the Muslim, Sikh, Christian, Buddhist and other minority communities. The proposed quota will be above the existing 50% reservation provided to the SCs, STs and OBCs. This bill has proposed to amend the Articles 15 and 16 of the Constitution by adding a clause which allows the state to make special provision(s) for advancement of the economically weaker sections of the society.

The proposed amendment has led to numerous questions and created an iota of doubt amongst the citizens.  Whether this is really a move for the betterment of the weaker sections of the society or a political gimmick is inconclusive at this stage.  This Bill has been proposed by the ruling government in haste, and it’s the centripetal force of controversies amidst elections.

It is not at all surprising to see the chaos around the proposition of the amendment as reservation has always been debatable which leaves many sections feel exploited and unattended. Whatever may be the condition, it is not going to be a piece of a cake for the legislature, viewing the practical problems it poses.

NEED FOR THE AMENDMENT OF THE CONSTITUTION

Indian Constitution lays down the procedure for Amendment and the guidelines for providing reservation. Article 15(1) states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Additionally, Article 15(4) states that “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” Similarly, Article 16 states the same for providing opportunity/(ies) to the socially and educationally backward people in the matters of public employment.

This was the genesis for the concept of reservation to benefit socially and educationally backward people where reservation was provided on the basis of caste. Analogy proposed by Kaka Kalelkar and the Mandal Commission stated caste as the best determination for backwardness.

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But reservation on the economic basis was struck down by the court in the matter of” Indira Swahney v. Union of India”. In this matter, the court denied existence of any provision in the constitution which allows the State to make special provision for the advancement of economically backward classes. Therefore, there is a need to add new clause in Article 15 and Article 16 which will provide for the advancement of economically backward classes, not mentioned in Article 15(4) and Article 16(4) respectively. Therefore, Government needed this bill to provide reservation on this specific basis.

WHO WILL BE BENEFITTED AND THE PRACTICLE PROBLEM REGARDING THIS BILL:

The criteria laid down by the government for the persons who will be benefitted are:

  1. Those who earn less than 8 Lakhs annually.
  2. Those who have farmland below 5 acres.
  3. Those who own a house measuring less than 1000 Sq. feet.

The aforementioned criteria will serve as benchmark for entitlement of reservation on economic basis.  Firstly, 95% of the total population comes under the annual income of below 8 Lakhs. The point of contention here is will 10% reservation suffice?

Another issue being there is 70% of population of SCs, STs and Other Backward Classes and for them there is only reservation of about 49.5% and about 20% of population is left and again the government is proposing to provide 10% more reservation based on this specific criterion.

Furthermore, if a person living in Metropolis like like Delhi and Mumbai owns a land of 900 sq. feet and come under the income of below 8 lakhs but the worth of the property is itself 30 crores. Do you really think that this person should be benefitted with a reservation.

And lastly the reservation provided on the basis of economic criterion will never be stable. For example, suppose a person has annual income of below 8 lakhs. He gets reservation and earns money, now he will no more be in the reserved criteria. Then what will be the future course of action for him? Will he withdraw himself from the reserved criteria or not?

EFFECT OF THE BILL ON THE INDIRA SWAHNEY JUDGMENT

The sanction of the bill in the Lok Sabha poses several questions, one of these is whether the government is providing 10% extra reservation by breaching the 50% cap laid down by the nine judge in the Indira Swahney Judgment. It is so because in Indira Swahney v. Union of India, the court has fixed the bar of reservation up to 50% and now the government is proposing 10% reservation on the basis of economic criteria. Now the question arises, is this 10% reservation extra?

No, it is not extra. In the matter of Indira Swahney, the court has proposed that the cap of 50% reservation applies only to backward classes under Article 16(4) in which it provides reservation only to socially and educationally backward but economically backward people.

Furthurmore, even if it would have been so, the parliament is empowered to nullify a judgment through a constitutional amendment.

CONCLUSION

So far we have understood that previously reservation was only provided to the people on the caste basis but with the introduction of the 124th Amendment bill, there will be two criteria for reservation, one on the basis of caste system and other on the basis of economic status, which is a matter of debate.

Reservation initially had been brought for a period of 10 years but Parliament overlooked it and continues till today. Should we still continue the caste based reservation or the reservation should be shifted to economical status based reservation?

Today, there is unanimity among the political parties. It may be due to the compulsion faced by the parties that during elections they can’t annoy the weaker sections of the society. This may also be a smart move to appease financially weak population of the unreserved category and gather votes.

I think it should be a welcome step which is introduced by the government but they must take into account the limitations of this bill. Fixing the cap up to 50% for reservation socially and educationally backward people is solely because if we do not leave 50% seats for the people of unreserved categories then the purpose of reservation will be defeated.

The purpose of reservation is to end discrimination of educationally and socially backward class but more than 50% of reservation will lead to reverse discrimination that means the people from the unreserved categories will start getting discriminated and this will once again lead to inequality and disparity in the society. This will breach the equality norm, considered as the basic structure of the constitution as laid down by the constitution bench in Nagraj(2006).

So, the entire discussion boils down to the proficiency of the Governemnt in balancing the situation with no breach of equality in the society. Even though this is a move for the upliftment of the economically weak citizens, will it be able to end discrimination in the society by earmarking 10% reservation for the economically backward?