CONSTITUTION (ONE HUNDRED AND THIRD) AMENDMENT ACT, 2019 (A PANACEA OR HARBINGER OF WORSE TIMES)

This article has been authored by Hritik Pathak, a second-year student at RGNUL, Punjab.

Introduction

Caste-based reservation dates back to the second century, where merit was never considered. India faces a myriad of challenges on various conflicted topics because people of different faiths and beliefs co-exist here, having different perceptions about it. Caste-based reservation is a set of affirmative actions by the government to uplift the weaker sections of the society by providing them better educational facilities and employment. The caste reservation system was a distinctive measure that was devised to bring all the sections of the society in one stand but over time, it is highly criticized as it became an inherent part of the system. The reservation has given birth to many pertinent questions one of them being whether the reservation has uplifted the lives of socially backward classes or it has widened the gap, giving birth to social evils between the different sections of the society.

On 8th January 2019, The Constitution (One Hundred and Twenty Fourth Amendment) Bill , 2019 was introduced by the minister of social justice and empowerment T.C Gehlot which subsequently was passed by both of the houses and on 14th January it became The Constitution (One Hundred and Third) Amendment act. The act provided a 10% reservation for the economically backward section of the society.

As per the official gazette, the beneficiary of this act is Brahmins, Muslims, and Christians. It mainly focuses on the economically backward people of the unreserved category. It neither avails any benefit to the citizens who are the pre-existing beneficiary of any kind of reservation in India nor give promotional benefits.

The Constitution (103rd Amendment) Act, 2019, has revised two articles. ie. Article 15 and Article 16 of the Constitution of India. These two articles are the bedrock of reservation. Furthermore, two sub-clause were inserted 15(6) and 16(6) in the Constitution. Article 15(6) introduces the reservation for the ‘Economically weaker section' other than the pre-existing class mentioned in Article 15(4) and Article 15(5). Whereas Article 16(6) provides opportunities in employment for the prescribed class.

Features of the Act

The definition of Economic Weaker Section in accordance with Article 15(6) of the Indian Constitution is “as may be notified by the State from time to time based on family income and other indicators of economic disadvantage.”

The eligibility criteria for the beneficiaries of the act set by the government is as follows-

• Annual household income should be no more than Rs.8 lakhs.

• Ownership of agricultural land should not be more than 5 acres.

• Should own a residential house below 1000 sq. feet.

Initiatives for the economically backward class-

Article 340 and Article 46 of the Constitution

· Article 340 of the Constitution mandates the government to identify these socially and economically backward classes, take measures to uplift their lives

.

· Article 46 says that the state shall preserve the educational interests of the socially backward class.

Historical aspect

The Mandal commission which was formed in 1979, headed by B.P Mandal. The commission identified the 'Socially and Educationally backward class of the citizens'. The commission recommended 27% of the reservation in favor of the other backward class in addition to the existing 22.50% of quota for the ST and SC. This took the overall quota to 49.50% which was later on challenged on Supreme Court. Later on, SC put a ceiling to the reservations i.e. the reservation should not exceed 50% in the light of the landmark judgment M. Nagaraj v. Union of India .

In the landmark judgment of Indira Sawney v.Union of India, The court challenged the legality of the memorandum issued by then Prime Minister P.V Narsimha Rao which reserved 10% for the economically backward sections. Some of the important decision taken by the court was-

1) SC upheld the 27% reservation for the other backward classes excluding the 'Creamy Layer'.

2) It quashed the 10% reservation for the EBC.

3) It held that reservations should not exceed 50%.

Challenges to the amendment

Several PIL's have been filed by NGOs such as Janhit Abhiyan and Youth for equality, challenging the constitutional validity of the act on the ground of economic classification as it can not the sole basis of reservation.

Apart from the “50% ceiling” rule of the Supreme Court, there are two more potential arguments that challenge the amendment based on the basic structure.

First being family income as the sole determinant of economic disadvantage. The SC repeatedly held that in Article 15(4) of the Constitution. the state shall make provisions for the socially backward class and in the light of Indra Sawhney v. Union of India, Hon’ble B.P Jeewan Reddy wrote that in respect to Article 16(4) the ‘backwardness’ is mere Social backwardness, not educational backwardness. In addition to this contention, Madhav Khosla has contended that the rationale behind enacting 15(6) and 16(6) does not match with the rationale of pre-existing Articles 15(4), 15(5) and 15(6).

Second, The potential arbitrariness, the family income has nothing to do with the objective of the reservation. As it is not the panacea to the problem of poverty but removing the barriers of social injustice.

They have claimed that it violates the Doctrine of the basic structure. In the landmark case of Keshavananda Bharati v. The State of Kerala, The Supreme Court held that that Parliament does not have absolute power to amend the Constitution under Article 368 and any Constitutional amendment can be struck down if it violates the basic structure of the Constitution.

The Supreme Court has referred the matter to a five-judge constitution bench as a result of challenge to its legality.

Critical analysis

Reservation a Scapegoat

For thousands of years people of weaker sections were oppressed by the supremacists, for years these lower castes were deprived of education and basic human rights based on their 'Varna' as per the Manusmriti. Before the Mandal commission report only S.T and S.C were the beneficiaries but later on OBCs were extended to the list. The cast-based reservation provides a level-based playing to the section of society who have been deprived of basic human rights for centuries. The thing which must be kept in mind that reservation may or may not end the caste prejudice but it prevents the denial of rights of the weaker sections of the society by the privileged class.

Reservation of a non- required necessity

The idea of reservations was to put all the communities in one stand, and any kind of reservation is not desirable in a developing nation because it kills the meritocracy which lays the foundation of any nation. With a plethora of people claiming to be socially backward, the idea of limiting the advantages may be considered. The essence of reservation was to eradicate the social injustice but today it only perpetuates it. For example, if an individual is enjoying the benefits of the state provided by Article 15(4) in high school. He/she should be restricted to access Article 16 (4) for employment purposes.

However, with the significant levels of hardships that have come over the years, it is justifiable to retain balance.

Conclusion

Social justice is comprehensive in nature. It guarantees that no parameter of backwardness is left untouched. Destitution is one such parameter of backwardness, and indeed a solid one, which denies certain fundamental rights, and correspondence in the public arena, to people influenced by it. The Preamble, which is the heart and soul of the Constitution, vows to all citizens social, economical, and political equity. The system of reservation is one of the most conflicted topics of the country and observing it from an eye of neutrality it can be concluded that though the reservation is required for the weaker sections of the society at the same time a system is to be formed for more affirmative action more than appeasement politics. As India is a developing nation and any negative aspect of the reservation should not be hindering the growth and development of society. Our education system is already pressurized with vertical and horizontal reservations, do we need to add to the burden. With this the quota will exceed to nearly 60% which will indirectly eliminate the meritocracy.It has been said that law is the conscience of the public and the faith on it would bring the best possible way to tackle the difficulties