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Constitution (124th Amendment) Bill, 2019

Context:

The Union cabinet has introduced Constitution (124th Amendment) Bill, 2019

About Constitution (124th Amendment) Bill, 2019:

  • The bill seeks to amend Articles 15 and 16 of the Constitution to give reservation to the economically backward sectionsamong the general/ unreserved category over and above the 49.5% quota in place for SC, ST and OBCs.
  • It seeks to insert a separate clause in article 16 after clause (5) which reads as:

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 10% of the posts in each category”

  • It seeks 10% reservation for the economically weaker sections of society in higher educational institutes, private institutions whether aided or unaided by the State other than the minority educational institutions referred to in Article 30.
  • It also provides reservation in posts in initial appointment in services under the State.

Qualifying Criteria for the proposed quota

General category individuals

  • All members of whose family together earn less than Rs. 8 lakh per annum
  • Have less than five acres of agricultural land
  • Do not possess a residential flat of area 1,000 sq ft or larger
  • Do not possess a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities

Significance of the proposed quota:

  1. At present, the economically weaker sections of citizens have largely remained excluded from attending higher educational institutions and public employment on account of their financial incapacity.The decision to bring in the 10% t economic criteria reservation is progressive in nature and will address the issues of educational and income inequality in India.
  2. Critics opposing reservation “by birth” have always argued that the criteria for reservation should be economic because there are many people or class other than backward classes who are living under deplorable, poverty stricken conditions.
  3. The proposed quota and the consequent constitutional amendment would give a constitutional recognition to the poor from the upper castes.
  4. It will unintentionally remove the stigma of reservation. Reservation has historically been associated with caste and generally the upper caste look down upon those who come through reservation
Background:
Reservation policies were introduced to ensure that Scheduled Castes (SCs) and Scheduled Tribes (STs) are protected from discrimination in the spheres of employment, education and political representation. The rationale behind reservation was not just improve their economic status, but to address the denial of rights and oppression faced by these groups historically.Constitutional Provisions:
1. Article 15(4) and 16(4) of the Constitution enables both the state and Central Governments to reserve seats in public services for the members of the SC and ST, thereby, enshrining Impartiality of opportunity in matters of civic service
2. Article 16(4 A): it makes provisions for reservation in the matter of promotion to any class or classes of posts in the services under the State in favour of SCs and STs Article 16 (4 B): It enables the state to fill the unfilled vacancies of a year which are reserved
3. for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year
4. Article 330 and 332: It provides for specific representation through reservation of seats for the SCs and the STs in the Parliament(Article 330) and in the State Legislative Assemblies (Article 332)Key events in the History of Reservations in India
1. 1950: Provision made for reservation of seats for Scheduled Castes and Scheduled Tribes in legislatures
2. 1951: Constitutional amendment brought in to give states the right to reserve seats in educationalinstitutions
3. 1955: First backward classes commission, set up under chairman Kaka Kalelkar in 1953, submits itsreport
4. 1963: Supreme Court puts a cap of 50% on reservations
5. 1979: Second backward classes commission set up under B.P. MandaI. Commission submits its report in1980 in which it recommends 27% reservation for OBC candidates across all services
6. 1990: Union government accepts recommendations of Mandal Commission. The commission had recommended 27% reservation for OBCs
7. 1992: SC, in the Indira Sawhney judgement, upholds the government’s decision to implement the recommendations. Specifies exclusion of creamy layer
8. 1993: National Commission for Backward Classes (NCBC) set up
9. 2008: SC upholds the constitutional validity of the Central Educational Institutions Act which provides for 27% quota for OBCs in higher educational institutions
10. 2010: Following years of protests by Gujjars, Rajasthan government agrees to provide reservation within quota
11. 2016:
• Maratha organizations hold silent marches to demand a quota for the community
• Violent protests by Jats in Haryana demanding reservation
12. 2018: Parliament passes a bill to give Statutory powers of NCBC. Maharashtra Legislature passes bill proposing 16% Reservation for Maharashtra in educational institution and government jobs.

Previous Attempts for Reservation on economic criteria

1991:PV Narasimha Rao government had tried giving reservation based on economic criteria.In 1992, while upholding reservation for OBCs as per the Mandal Commission recommendation, the Supreme Court, in the Indra Sawhney & Others vs Union Of India case, directed that reservation be restricted to maximum 50%. It also said that separate reservation for economically poor among forward class was invalid as Article 15(4) provided for only socially and educationally backward classes, and not economically backward classes.

2008: Erstwhile Kerala government decided to reserve 10% seats in graduation and PG courses in government colleges and 7.5% seats in universities for the economically backward among the unreserved category. An appeal is pending in the Supreme Court.

2011: Erstwhile Chief Minister of Uttar Pradesh wrote to the central government asking for reservation for upper-caste poor.

2015:Rajasthan assembly passed bill to provide a 14% quota to the economically backward classes (EBCs) among the forward castes. However, SC held it cannot breach 50% ceiling

2016: Ordinance promulgated in Gujarat which provided 10% quota for EBCs among upper castes. However, Gujarat High Court in the DayaramKhemkaranVermavs. State of Gujarat quashed the ordinance.

 

 

SR Sinho Commission on Economically Backward Classes (EBCs), 2006 (report submitted in 2010):
1. General category poor be given quotas in government jobs and education. For this, the commission recommended a constitutional amendment.
2. The commission noted that non-income tax payee general category people were economically backward, at par with the OBCs. It held that they should be treated like OBCs.
3. EBC children be made eligible for soft loans for higher education, scholarships, coaching for central and state civil services examinations, subsidized health facilities, and government help in housing sector in the form of soft loans with lower rates of interest
4. Development of skills and vocational training for the EBCs so that they can earn their livelihood, and recommended the setting up of a National Commission for providing financial assistance to EBCs.

 

Challenges before the proposed Quota:

  1. Criteria: Critics argue that the 8lakh income threshold is too high and will practically cover nearly the entire population not already covered by reservations. Data from the I-T department as well as reports from the NSSO show that at least 95% of Indian families will fall within this limit. Other qualifying criteria have also been argued to be flawed.
  2. Sole economic criterion: The SC in Indira Sawhney case has upheld that a backward class cannot be determined only and exclusively with reference to economic criterion. Thus introducing a quota based on only economic dimensions will face judicial scrutiny.
  3. 50% cap:The Supreme Court has laid the bar for reservations at 50% — the current proposal will exceed the limit and thus could be legally challenged.
  4. Determining economic backwardness: Even if the bill is passed, a formidable challenge would be determining economic backwardness. There are concerns over inclusion and exclusion of persons under the criteria.
  5. Implementation: Critics argue that even if the proposal is legislated, the implementation would be a great challenge as the states do not have the finances to implement even the existing and constitutionally-mandated reservations.
  6. Shrinking jobs: When government in itself is trying to limit its public services along with advancement of technology in government system. Therefore providing quota in jobs in such a scenario will be a futile exercise.
  7. Encouraging reservations: The intent of constitutional makers as originally manifested through Article 15 and 16 was to be reviewed after 10 yrs. But it is an irony that instead of restricting the policy of positive discrimination government is pushing it in some or other forms.
  8. Populist measure:When elections are near, several populists’ initiatives are advanced by political parties like loan waiver, reservations etc. and given the low levels of political literacy and awareness among masses often parties take leverage of the same thereby affecting the socio-economic and political structure at large .
  9. Lacks of Evidences to support outcomes: Even after years of reservation policy, there are no substantial evidences to support the achievements of the original intent of affirmative action. For Example, only about 4% each of rural Scheduled Tribe and Scheduled Caste households have a member in a government job.
  10. Absence of Level Playing Field: It has been observed that few forward among the reserved category could only reap the benefit of reservation policy. Such fear can spilled over reservation based on economic criteria as well. Upper ladder in the reserved category are primarily benefitted from the policy while the benefits do not reach the marginalized.

Note: The bill has been introduced in Loksabha and is being subjected to debate

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