Constitution (103rd Amendment) Act, 2019: 10% reservation
srikanthchowhan SIR IASGROUP
The Union Cabinet has approved a proposal for introduction of the Constitution (One Hundred and Twenty- Fourth Amendment) Bill, extending 10% quota to “the economically weaker sections in the general category who are not covered by any of the existing schemes of reservation”.
The bill is designed to amend the Constitution to extend 10% reservation in direct recruitment in government jobs and for admission in higher educational institutions to “economically weaker” sections among all castes and communities, Christians and Muslims included, who are not eligible under the existing quotas.
Who will be covered under new 10 per cent quota? |
The proposed amendment Bill will define Economically Weaker Section (EWS) as one having:
1. Annual household income below Rs 8 lakh
2. Agriculture land below 5 acres
3. Residential house below 1000 sqft
4. Residential plot below 100 yards in notified municipality
5. Residential plot below 200 yards in non-notified municipality area
What would it take for the quota to become reality?
It will need an amendment of Articles 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 16 (equality of opportunity in matters of public employment) of the Constitution.
The amendment will have to be ratified in both Lok Sabha and Rajya Sabha, by at least two thirds of members present and voting, and by the legislatures of not less than half the states.
The Central Government of India has introduced 124th Constitution Amendment Bill in the Parliament to provide reservation for Economically Weaker Sections (EWS) among the general category candidates. The move is to provide 10% reservation in higher education and government employment.
124th Constitution Amendment Bill (2019)
Constitution 124th Amendment Bill, 2019 provides ten per cent reservation to the economically weaker sections (EWS) in the General category. The bill facilitates reservation for EWS in direct recruitments in jobs and admission in higher educational institutions.
The reservation of EWS of general category will be given without tampering the existing quotas for SC, ST and OBCs people.
The bill is expected to benefit a huge section of upper castes including Brahmins, Rajputs (Thakurs), Jats, Marathas, Bhumihars, and several trading castes including Kapus and Kammas.
What will the “Economically Weaker Sections Quota bill” amend in the Indian Constitution?
Article 15 and Article 16 of the Indian Constitution.
Amendment to Article 15 (Reservation in Educational Institutions)
In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—
‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.
Amendment to Article 16 (Reservation in Jobs)
In article 16 of the Constitution, after clause (5), the following clause shall be
inserted, namely:— “(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.”.
Who comes under the “Economically Weaker Sections”?
For the purposes of article 15 and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’.
Union Law and Justice Minister Ravi Shankar Prasad said the states will have freedom to decide on income criterion of beneficiaries under the bill.
This will be a class distinct from the already specified classes of SCs, STs and socially and educationally backward classes (OBCs).
Reservation in India – The Present and the Future…
At present, reservations in India account for a total of 49.5%. If the 10% extra reservation for EWS is also taken into account, it would be 59.5%.
7.5%, 15%, and 27% quotas are reserved for Scheduled Tribes, Scheduled Castes, and Other Backward Classes respectively.
If the EWS Quota Bill becomes an Act, only 40.5% of seats will be allocated in educational institutions/jobs based on the merit of candidates. As pointed by Supreme Court, increase in reservations can compromise the merit.
Remember, the merit quota is not reserved anyone – not even for the general category (hence the name – merit). It is open to candidates from all categories – including SC, ST, OBC, and the General category – who qualify on merit (and not because of reservation).
EWS Quota bill in Lok Sabha
The bill needed a special majority to pass. With the support of the ruling party and opposition parties, Lok Sabha has passed the Constitution 124th Amendment Bill, on 08-01-2019, the same day it was introduced in the House.
323 members voted in favour of the bill, while three voted against it. AIADMK staged a walkout before the voting.
EWS Quota bill in Rajya Sabha
The Rajya Sabha too passed the Constitution (124th Amendment) Bill, 2019 on the same day it was introduced (09-01-2019). Being a constitution amendment bill, it had to be passed with a two-thirds majority in Rajya Sabha.
During division on the bill in the Rajya Sabha, 165 members voted in favour of it while seven members voted against. The motion moved by AIADMK, left parties and others to refer the bill to the Select Committee was negated.
The EWS Quota Bill Gets President’s assent, becomes Act
As both houses of the Parliament has passed the Constitution 124th (Amendment) Bill, 2019, it was sent to the President of India for his assent. President Ram Nath Kovind gave his assent to a bill on 12-01-2019.
The legislation will now be known as the Constitution (103rd Amendment) Act, 2019.
Does the bill need the approval of more than 50% state assemblies?
The bill does not need the approval of State Assemblies.
Was economic reservation, a policy, present on the election manifesto of Indian National Congress in 2014?
Yes.
Read the INC election manifesto below.
The Indian National Congress is committed to finding a way forward for introducing reservation in education and employment for economically weaker sections of all communities without in any way affecting existing reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes.
It was a Congress promise. However, INC didn’t mention the details of their plan or percentage of the quota. Despite not being on the BJP’s election promise, the NDA government came forward with the reservation for EWS, just before the 2019 election.
Should India need reservation?
It’s the duty of the government to provide equality of status and opportunity in India.
Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes.
However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coachings, and other welfare schemes.
The way reservation is implemented and executed in India is largely governed by vote-bank politics.
Indian Consitution allowed reservation only for socially and educationally backward classes. However, in India, it became caste-based reservation instead of class-based reservation.
Initially, the reservation was intended only for SC/ST communities – that too for a period of 10 years (1951-1961). However, it got extended ever since. After the implementation of Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs).
The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased.
Now, with the introduction of economic criteria for reservation, in addition to the caste-criteria which already existed, things have become more complicated.
Unequals should not be treated equally, but is reservation the only solution?
There is no doubt that unequals should not be treated equally. However, is the current system of unequal treatment perfect? Is it creating more injustice? Is it the only way out in a welfare-nation? It’s time to introspect.
Reservation based entirely on economic criteria is not an all-in-one solution, though family income can be one of the parameters. Also, its time to fix a time period for the reservation system – rather than extending it to eternity.
Denying India, the service of the meritorious candidates, who see them being overtaken by others with lesser academic performance or brilliance, is also a crime and injustice.
Aren’t there any alternative mechanisms to uplift the marginalised so that everyone gets equal opportunities? How is affirmative action done in other countries?
Reforms in the reservation system of India is the need of the hour. However, as the subject of reservation revolves around a lot of votes, parties are reluctant to disrupt the existing system.
Government’s view
Reacting to the passage of the bill in Lok Sabha, Prime Minister Narendra Modi said, it is a landmark moment in the nation’s history and an effective measure that ensures justice for all sections of society.
Finance minister Arun Jaitley, building the case for the 10 per cent quota, said, “If two individuals are not equal due to birth or for economic reasons, then they cannot be treated equally. Unequals cannot be treated equally,” he said.
He further contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won’t be impacted by it.
Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before. Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.
Update: The government may bring another bill to provide relaxations for EWS of General Category in the government jobs with respect to the upper age limit, number of attempts, and cut-off marks, similar to OBCs.
Opposition Parties View
The Congress said it supported the bill, but doubted the government’s intentions as it was “gimmick” aimed at political gains in upcoming elections.
Various parties, including the BSP, SP, TDP and DMK, also called it the BJP’s poll stunt but welcomed the move.
KV Thomas of the Congress said, his party is not against the concept of the bill and supports it, but the way it has been brought, raises several questions on the sincerity of the government. He alleged that the government has brought the bill without proper homework. The Congress said it would prefer a parliamentary committee to look into the matter.
Asaduddin Owaisi’s AIMIM said they opposed the bill. So did Tamil Nadu’s ruling AIADMK, which walked out of the house ahead of the voting. AIADMK’s Mr Thambi Durai said, “Have government schemes for the poor failed? There are enough schemes. This reservation bill which you are bringing will be struck down by the Supreme Court”.
Will Supreme Court consider the 124th Constitutional Amendment Bill as valid?
Except in a few states like Tamil Nadu, the cap of reservation is 50%. This limit is set by the Supreme Court to avoid the vote-bank politics of providing quotas thus compromising the merit. Tamil Nadu has a law which provides for 69% reservations, which has been inserted into the ninth schedule of Constitution to immunize it from judicial review.
A nine-judge bench decision of the SC in the Indira Sawhney case(1992) had capped the upper limit of reservation at 50%. The Indira Sawhney case had further held that social backwardness cannot be determined only with reference to an economic criterion.
So the limits imposed by the nine-judge bench in 1992 would be the major litmus test for this bill. If the same standards are upheld by the Supreme Court, the 124th Constitutional Amendment Bill will be declared null and void.
The Gujarat Government had already brought an ordinance to provide 10% quota for EWS in the forward castes. However, in August 2016, the Gujarat High Court had quashed this ordinance. The appeal against that judgment is pending in the Supreme Court.