[vc_row][vc_column][vc_column_text]The President of India, Ram Nath Kovind on January 12, 2019 gave his assent to the Constitution (103rd Amendment) Act, 2019 which aims to provide reservation in public employment and higher education to economically weaker sections in the general category.
The Rajya Sabha had passed the Constitution 124th (Amendment) Bill, 2019 that seeks to provide 10 per cent reservation in jobs and educational institutions to economically backward sections in the general category on January 9, 2019. The legislation was passed in the upper house of the Parliament with 165 members voting in favour of it and seven voting against.
The Lok Sabha had already given its approval to the bill a day earlier with over two-thirds of majority, with 323 members voting in favour and three voting against. Prior to this, the Union Cabinet on January 7, 2019 had approved a proposal for the introduction of the bill. The bill extends 10 per cent quota to the economically weaker sections in the general category who are not covered by any of the existing schemes of reservation.
The Constitution (124th Amendment) Bill 2019 is designed to amend the Constitution to extend 10 per cent 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.
The 10 per cent reservation will be in addition to the existing cap of 50 per cent reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking total reservation to 60 per cent. The quota targets the poor among the upper castes.
This will be over and above 50 percent mandated by Constitution and hence the need for Constitution amendment Bill.
According to sources, new clauses would be added to Articles 15 and 16 of the Constitution which presently allow the State to make reservation for only Scheduled Castes, Scheduled Tribes, and for socially or educationally backward classes (Other Backward Classes or OBCs).
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
The existing quota sums up to about 49 per cent, which includes:
– 7 per cent for Scheduled Castes
– 15 per cent for Scheduled Tribes
– 27 per cent for Socially and Educationally Backward Classes (including widows and orphans of any caste)
What happens now?
• An amendment of the Constitution can only be initiated when the bill is passed in both houses of the parliament by a majority of the total membership of the House and by a special majority of not less than two-thirds of the members present and voting.
• Since the bill has been passed by both houses of the Parliament with the required majority, it will now be presented to the President who shall give his assent to the Bill.
• If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States.
• Although there is no prescribed time limit for ratification, it must be completed before the amending Bill is presented to the President for his assent.
Consequence of the Measure
The move has come just ahead of the Lok Sabha elections this year. The consequence of the measure will be limited to central agencies, but the government hopes that it will create an “enabling atmosphere” for the state governments to attempt replication.
The change, if it goes through Parliament, will take the quantum of quotas to 59.5 per cent, which many argue will mark a violation of the 50 per cent cap mandated by the Supreme Court in the Indira Sawhney case.
Present quota identical to one defining creamy layer among OBCs?
The proposed criteria for adjudging who is “economically weak” is identical to the one applied for defining “creamy layer” among the OBCs who are debarred from quota benefits.
The measure, which was criticised as “excessively liberal” when enforced for defining who constituted the “creamy layer” among the OBCs, will mean that almost the entire population, except the rich who number around just above a crore or so, cutting across communities, becomes eligible for quotas.
House session to be extended by a day?
Both the houses of the Parliament are set to be adjourned on January 8, however, an additional day is being arranged for the Upper House to help it clear the legislation.
All previous attempts at carving out a quota in jobs and education for the economically backward in the ‘general’ category, including the Hindu upper castes, have failed to pass legal muster.
In 1991, the P V Narasimha Rao government had proposed 10 per cent reservation for the poor among the forward castes.
But 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 per cent.
The court had 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.
The Narasimha Rao government’s attempt failed as it violated the structure of 50 per cent ceiling.
Gujarat government promulgated a similar ordinance in 2016, providing 10 per cent quota to upper castes.
The Gujarat High Court, however, quashed the ordinance in August 2016. The case has been referred to a five-judge Bench of the Supreme Court
Gujarat had justified the ordinance by referring to how Article 46 of the Constitution, which deals with the Directive Principles of the State Policy, required the State to promote weaker sections.
It had categorised the 10 per cent quota as a ‘reasonable classification’ under Article 14 and not ‘reservation’. It said the 50 per cent ceiling limit in the Indira Sawhney judgment applied only to SC/ST and SEBC.
The High Court, however, observed that the “unreserved category itself is a class” and economic criteria was too fluctuating a basis for providing quota.