By Amritananda Chakravorty
The Parliament has passed the Constitution (One Hundred and Twenty-Fourth) Amendment Bill, 2019, which sought to amend Articles 15 and 16 of the Constitution, by providing 10 per cent reservation in the public employment and higher education for the economically weaker sections. The economically weaker sections would be determined by the State keeping in mind the family income and other indicators of economic disadvantage. The Bill received the Presidential Assent on 12th January, 2019 and has become the law now. Thus, in one stroke, this Government changed the complete spirit and ethos of the reservation policy, which till now meant to redress the historic caste-based oppression in India.
The Statement of Object and Reasons stated that “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 benefits of existing reservations under clauses (4) and (5) of article 15 and clause (4) of article 16 are generally unavailable to them unless they meet the specific criteria of social and educational backwardness.”
It is argued that this law would not survive the judicial scrutiny, since it is against the plethora of Supreme Court judgments that there has to be evidence of economic backwardness, after conducting proper scientific studies. In this case, the Government did not conduct any public consultation even on the merits of the Bill, or the need for such reservation, let alone doing proper studies.
While the Bill provides for reservations for ‘economically weaker sections’, the Constitution does not recognise any such category; it only provides reservation for scheduled castes and scheduled tribes, and socially and educationally backward classes. There is no category of ‘economic backwardness’ in the Constitution.
The Supreme Court in Ram Singh & Anr. V. Union of India (2015) 4 SCC 657, while striking down the Government notification providing reservation to the Jat community, held that “the backwardness contemplated under Article 16(4) is social backwardness…Educational and economic backwardness may contribute to social backwardness. But social backwardness is a distinct concept having its own connotations”. The Court further held that the data to be used has to be contemporaneous and not outdated, otherwise accurate parameters for measuring backwardness would not be formed. While elaborating on ‘backwardness’, the Apex Court noted that “backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political”.
There is no doubt that the Court’s yardstick of ‘social backwardness’ is not applicable in the case of poor upper castes. Reservation in public employment and public education was envisaged as a means to uplift the historically marginalised and oppressed castes like Dalits, and then OBCs, but not as a poverty alleviation program. It was a redressal mechanism for the horrific caste atrocities like untouchability, or the systemic exclusion of dalits from the education and employment. It was never meant to have income/economic criteria, and constitutionally impermissible to do so.
The Bill further violates the Constitution, since it is sought to add 10 per cent to the already existing cap of 50 per cent on reservation, which is against the Supreme Court decisions that no reservation can exceed 50 per cent of the total seats/posts. The Government further has stipulated an income criteria of Rs 8 lakhs as annual family income, i.e., those who earn less than Rs 8 lakhs per year would be eligible for reservation (i.e. Rs 2300/ per day), which is a huge farce, since the BPL (‘below poverty line’) criteria stipulates that a person earning Rs 32/per day is not ‘poor’.
In conclusion, this is a vile attempt by the Government to dismantle the ‘caste-based’ reservation and to make it income driven, in order to erase the very basis why the reservation policy was incorporated in the Constitution. It wants to alter the reservation structure, wherein the centuries old caste oppression is deliberately ignored, and an abstract and convenient criteria of ‘economic backwardness’ is invented, in order to grant the reservation benefits to the forward castes. The Court cannot allow this to happen. The Constitution does not permit too. The Bill ought to be struck down soon. (IPA Service)
The writer is a leading human rights lawyer