This article is written by Akshita Rohatgi, from Guru Gobind Singh Indraprastha University, New Delhi. It explains the changes brought forth by the 126th Constitutional Amendment Bill which came into force on 25th January, 2020 and further sheds light on the circumstances surrounding its passage.

It has been published by Rachit Garg.

Introduction

Bill No. 371-F of 2019, better known as the 126th Constitutional Amendment Bill, was introduced in the Lok Sabha on 10th December 2019. Presented by Shri Ravi Shankar Prasad, Minister of Law and Justice in the winter session, its passage was a unanimous ‘Aye’ from the parliament. Within three days of extensive debates, the Bill was passed by both houses of the Central Legislature after receiving a thumbs up from the Rajya Sabha on 12th December 2019. It subsequently received the ratification of more than half of Indian states. The Bill converted into an Act on 20th January 2020 after receiving Presidential assent. It came into force on 25th January 2020 as the 104th Amendment Act to the Indian Constitution. This article is to elucidate on and analyze the provisions of the Bill.

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Need for the 126th Constitutional Amendment

Article 334 of the Constitution of India provides representation by reservations to members of the Scheduled Castes (SCs) and Scheduled Tribes (STs); and nomination of Anglo-Indians to the legislature. The provisions for representation under Article 334 were set to expire within 70 years of the enactment of the Constitution. In other words, the system of reservations and nominations would expire on 25th January 2020 unless extended further.

Even though SCs and STs have made considerable progress since the enactment of the Indian Constitution, the reasons which weighed with the Constituent Assembly in making provisions for reservation of seats have not yet ceased to exist. Thus, with a view to retaining the inclusive characters envisioned by India’s founding fathers, the 126th Constitutional Amendment Bill (hereinafter referred to as ‘the Bill’) proposed to extend reservations for SCs and STs for another 10 years, till January 25th, 2030. 

Background 

At the time of enactment of the Indian Constitution on 26th January 1950, the provision for reservation of Article 334 was to expire within 10 years, i.e., on 25th January 1960. However, subsequent governments felt that the communities still faced a significant level of hardships. Though SCs and STs made considerable progress since the promulgation of the Constitution, their position in society had not improved to the extent the Constitution makers had envisioned. 

Consequently, time and again, amendments were made to extend the system of reservations and nominations by 10 years at a time. These amendments were-

  1. The 8th Amendment, 1959
  2. The 23rd Amendment, 1969
  3. The 45th Amendment, 1979
  4. The 62nd Amendment, 1989
  5. The 79th Amendment, 1999
  6. The 95th Amendment, 2009.

Courtesy of the 95th Amendment, Article 334 provided that reservations and nomination of members under the Article shall cease within 70 years of the commencement of the Indian Constitution. This applied to the representation only in the House of People and Legislative Assemblies of the states. 

The 126th Amendment Bill substituted seventy years of reservations for the SC and ST community to 80 years. Concerning the nomination of members of the Anglo-Indian community, it chose to maintain the status quo by substituting the words ‘70 years’. This ensured that the representation of Anglo-Indians expired on 25th January 2020. 

Provisions related to Anglo – Indians

The term ‘Anglo-Indians’ has been defined in Article 366(2) of the Constitution. It is used to refer to a native of India whose father or any male progenitor in the paternal line is of European descent. This definition encompasses children of British and Indian parents, including communities like Portuguese Goans.

The efforts of Frank Anthony, President of the All India Anglo- Indian Association was a central figure in securing this nomination from the first constituent assembly. 14 States Legislative Assemblies also provide reservations for Anglo-Indians. The nomination for them has been scrapped by the 126th Amendment Bill, enacted as the 104th Amendment Act.

Article 331

Under Article 331, if the President holds the opinion that Anglo-Indians are not adequately represented in the House of the People, they can nominate two members. These nominees were chosen by the President on the recommendation of the Prime Minister. The President was not bound to use this power of nomination; its use rested on their discretion.

Article 333

Article 333 is a provision parallel to Article 331. It gives the governor the power to nominate Anglo-Indians to the state legislative assembly if they feel that the community is not adequately represented. This nomination shall not exceed one member. 

Reasons for the Amendment

Around the time of independence, the number of Anglo-Indians was 3 lakh. According to the 2011 census, their numbers had dwindled to around 293. In the course of the parliamentary debates over the Bill, it was stated that the community has made ‘significant progress’ over time. It implied that this community had assimilated well and did not need special provisions for representation. 

Criticism of the Amendment 

According to a 2013 Ministry of Minority Affairs report, Anglo – Indians suffer from poor social and economic conditions. They face a lack of education, inadequate employment, the dearth of housing facilities and cultural erosion. Thus, they need reservations for uplifting their position in society. 

The census data which was used to justify scrapping the nomination was called into question by various authorities including the All India Anglo-Indians Association. Member of Parliament Derek O’Brien talked at length about the fallacy of this data. The government data showed mere 9 Anglo-Indians living in West Bengal. Born to an Irish grandfather, and a resident of West Bengal, O’Brien said that there were more Anglo-Indians in his family itself. Even Obrien’s petition against the abolition of nomination had 750 signatures from Anglo-Indians at the time of the speech.

The 2011 data showed no Anglo-Indians in Uttar Pradesh and West Bengal, yet there were sitting Anglo-Indians nominated to the Uttarakhand and UP state assemblies. Thus, the number of Anglo-Indians in these states could not be zero. There were more Anglo-Indians in the country than the census data showed, not just in thousands but an estimate of about 3.5 lakhs.

O’Brien further said that Anglo-Indians were not a backward community and never have been. They are a small community with a big influence because we run the best schools in this country where lakhs and lakhs of people go. He talked at length about their achievements across arenas and insisted that the community deserves representation in the legislature too.

In the Rajya Sabha, Ram Gopal Yadav talked about the need for representatives of Anglo-Indians despite the small number. He warned against trivialization and ignorance of just two nominees, as governments can fall with just one vote. Shri Benny Behanan lamented that the government can not take care of a small minority community of mere lakhs, and thus it could not be expected to take care of the 20 crore minority population. Criticism against the move has also arisen because of the lack of grounds offered for the termination of nomination in the statement of object and reasons.

Provisions related to SCs and STs

Out of the total 543 seats for elected representatives in the Lok Sabha, 84 seats are reserved for Scheduled Castes and 47 for Scheduled Tribes. At the state level, there is a reservation of 614 SC MLAs and 554 ST MLAs out of a total of 4120 seats. This is in line with the 2011 Census that shows the number of SCs at 16.7% and STs at 8.6%. Scheduled Tribe communities are predominant in states like Maharashtra, Jharkhand, Madhya Pradesh, Chattisgarh, Orisa and the North- East. 

Criticism

Shri KK Ragesh of the Rajya Sabha pointed out a glaring irony. Reservations for SCs and STs which received unanimous support in the Sabja did not exist in the very house that they were being discussed in. While Ragesh supported the Bill, he insisted that the ambit of reservation be extended to the upper house.

P Wilson of Tamil Nadu claimed that the Law Minister’s claim of ‘considerable progress’ was a fallacy. There was no data to support his claim. Honour killings, denial of access of Dalits to temples and untouchability are still a reality. Unless equality had been achieved, his claim was not just one. 

MP Saronji Hembram from Orissa had similar qualms. She talked about the need to not settle at legislative reservations, but to extend them to promotions and the judiciary through an All India Judicial Service. Shri Vir Singh pointed out that various reserved seats were lying vacant and being eliminated gradually due to them being ‘sold out’ to the private sector. These inefficiencies and leaks need to be plugged in for effective implementation of the reservation programme. 

TMC MP Derek O’ Brien too expressed his unwavering support for extending reservations for the SC and ST communities in India. However, he requested the government to extend reservations by more than just 10 years, but 20 or 30 instead. 

Passage of the 126th Constitutional Amendment Bill

The procedure for passing this Bill is laid down under Article 368 of the Constitution. It requires fulfilment of three conditions to make a proposed amendment into a valid law-

  • At the time of voting, more than 50% of the total strength of the house must be present
  • Special majority, i.e., support of two-thirds present and voting members
  • Ratification by at least half of state legislatures

The Bill was introduced in the Lower House of the Parliament. It passed unanimously with 355 votes in favour and none against on 10th December 2019. On  12th December 2019, it made it to the upper house and passed unanimously again- with a 163 in assenting and no dissent.

Subsequently, on 20th December, 2019, a letter was sent to the state legislature councils and assemblies to request their ratification of the 126th Amendment. Since the Act was supposed to come into force on 25th January, it was also requested that a resolution ratifying the amendment be communicated latest by 10th January 2020. More than half of Indian states assented to the Bill. Finally, the 126th Amendment Bill 2019 received presidential assent on 21st January 2020 and became an Act.

Conclusion

Dr Ambedkar on 25th August 1949 said that “All those who have spoken for reservations to SCs and STs have been so meticulous that the thing should end by ten years. All I want to say to them in the words of Edmund Burke is that ‘large empires and small minds go ill together’.” At the time of enactment of the Constitution, reservations were only assured for 10 years. This echoes to the present day.

According to the then Minister of Social Justice and Empowerment, Shri Ravi Shankar Prasad. “Reservation is undoubtedly good and it should be going on further”. However, he simply followed the same playbook as previous amendments to Article 334 in not increasing the ambit of reservations or the system by more than 10 years.

As Shri Ram Villas Paswan said, “There are four revolutions – Cultural Revolution, Social Revolution, Economic Revolution and Political Revolution.” The political one was achieved at the making of the Constitution. The task at hand is to achieve all three. Reservations without corresponding social empowerment fall short of the Constitution’s vision of equality. There is a pressing need to do more, not just in the political, but also in the social, cultural and economic spheres. 

References

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