This article is written by Ashish Sharma of the Rajiv Gandhi National University of Law, Patiala who discusses and gives the Critical Analysis of Economic Reservation Bill.
The march of all modern societies is a march from status to contract. On this basis, Western Societies are termed as modern and Indian society is yet to enter this stage because, in Indian Society, the life of an individual is still governed by the status of his group in the society. The social system of India is mainly based on the local culture. Culture is the general practices of people in the way of life which includes general customs and beliefs of a particular group and territory.
To reduce the inequality in the society Government of India had taken several steps to reduce disparity such as preferential treatment (Reservation). Preferential treatment policies can provide an advantage in admission to an educational institution or in places of hiring for the jobs to members of particular groups. Recently passed Economic Reservation Bill can be said to be one of the steps by Government to reduce inequality in society and can also be termed as the effect of the past preferential policies of the government which were made to redress the affected(1).
The constitutional one hundred and twenty-fourth amendment BILL (one hundred and third amendment act) which provides reservations based on economic criteria, introduced in Lok Sabha experienced a swift passage through both Houses of Parliament as it took only 48 hours from start to finish and raises grave marks on democratic accountability. The amendment was itself greatly questioned and criticised completely as an election strategy by the ruling government contrary to the purpose of providing redressal.
The Bill seeks to provide ten per cent reservation to the economically weaker section of the upper castes (general category). The Bill promotes reservation for Economic Weaker Section in admission to higher educational institutions and indirect recruitment of jobs. The reservation will be given without interfering with the existing quotas of OBCs, SC and ST people.
The criteria of eligibility for the economically weaker section will be notified by the Government from time to time basis. A set of eligibility criteria was put forth by the government for those who intend to be beneficiaries of the new scheme.
The economic backwardness of an individual will be determined by the family income, agricultural land, residential house and plot. The Bill seeks to provide benefit to those who have a family income less than Rs. 8 lakh per annum, have farmland less than that of 5 acres, whose residential plot should be less than 1000 square ft and have residential plot below 100 yards of a notified municipality, and in case of a non-notified municipality, it can be 200 yards.
Effects of the bill
The amendment seeks to insert clause (6) in Article 15 and 16 of the Constitution. Article 15(6) reads as, “Nothing in this article or clause (2) of article 29 shall prevent State from making special provisions for advancement of the economically weaker section of the society so far special provisions related to the admission of the individual in the educational institution whether aided or unaided by the state other than the minority educational institution, the case of reservation would be in addition to the existing reservation and ten per-cent of total seats in each category.”
Inserted clause(6) in Article 16 reads as, “Nothing in this article shall prevent the state from making special provisions in favour of economical weaker section of citizens for appointments or posts other than classes mentioned in clause(4), in addition to the existing reservation and will subject to maximum ten per-cent of posts”.
The Preamble of our constitution also called as heart and soul of our constitution. The Preamble seeks to define the object and scope of the constitution It provides that Constitution of India aims at achieving justice (social, political and economic); equality in terms of status and opportunity, and promotes among the citizens’ fraternity by assuring the dignity to each individual.
Social justice focusses on achieving the greater good of larger number without deprivation of the rights of individuals. It points out that the court and government should lean in favour of the weaker sections of the society in a deal between the two sections. The constitutional concern of social justice is to accord justice to all sections by providing opportunities and facilities and remove the imbalance in society by harmonising the interests of different groups.
The interpretation of this term is also brought up in Article 46 of the Constitution, which points at protecting the weaker sections from social injustice. Article 46 reads as, “The state shall promote, with special care, the education and economic interests of the weaker section of the people, and in particular Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation”. Provisions regarding this are also made under Article 15(4), 16(4), 330, 335, 338, 338(A), 338(B) and 340.
The policy of Reservation is considered as an offshoot of the principle of equality mentioned in our constitution and the Preamble of our constitution also emphasises the principle of equality as a basis to the constitution. What is basic to the constitution or what is not basic is nowhere mentioned explicitly in our constitution.
The question regarding the basic structure of the constitution had been put before the Honourable Supreme Court various times in the past. The Supreme Court in this regard provided that such interpretation should not be accepted which retards the progress and hinder social integration.
Honourable, Supreme Court in 1973 in Kesavananda Bharti case, held that “Preamble of Constitution is a part of the basic structure of the Constitution and any tinkering and tampering with the basic structure will be held invalid to the extent if it is ultra vires.”
The 50% Rule
It is banal but nonetheless important, to recall that as the constitution stands amended by the bill, the constitutional challenge that remains is the basic structure challenge. Here it is worthwhile to remember that the constitution provides for independence and separation of powers between the three bodies of the State and the basic structure challenge as provided by the judiciary in Kesavananda Bharti case provide supremacy of judiciary.
The Honourable Supreme Court in Indra Sawhney v Union of India capped the limit of the reservation to 50%. Any legislative amendment exceeding the ceiling limit would be unconstitutional and is violative of the basic structure of constriction. Regarding the threshold of 50%, it was held by the Supreme Court that because Article 16(4) [Reservations] was framed as an exception to equality of opportunity anything above 50% would imply the swallowing of limitation.
In 2006, a question was raised before the Supreme Court that whether 50% rule is a part of the basic structure or not. In this case, the court noted that “the ceiling limit of 50%, the concept of creamy layer, backwardness and inadequacy of representation are all constitutional requirements without which the structure of equality would collapse”.
Creamy layer concept
In Indra Sawhney case, the court held that:
“The Indian constitution is based on the concept of equality, which is the basic feature of the constitution. Though the Indian society is caste-ridden yet caste alone cannot be the basis of reservation. Reservation can be for the backward class of a particular caste, it can be an upper caste, or a lower caste and backwardness include socially and educationally backwardness. In this case, the court provides the concept of creamy layer. Creamy layers refer to forward and better-educated individuals of a particular caste, who cannot be benefited from the government-sponsored professional and educational programmes. So people included in creamy layers have no place in the reservation system.”
Initially, the government was reluctant and the court was reluctant in giving reservation on the basis of economic backwardness and reservation is given on the basis of status. Status is the unequal distribution of social recognition. But in Indra Sawhney case, the concept of creamy layer shows the importance given by the court on the economic status of the people. Further Ashok Kumar Thakur case(2) provided that identification of creamy layer in every backward class is to be made through horizontal divisions of belongings such as:
- Constitutional offices
- Particular office
- Particular income
At present, there is no fixed criteria under any statute to determine the creamy layer but people earning more than Rs. 8,00,000 per annum are considered as a forward class in SC/ ST reservation. As of this Bill, the creamy layer also includes those who earn more than 8,00,000 per annum which is infeasible as it covers 85 per-cent of the Indian population.
At present caste-based politics is deeply rooted in the Indian system. In India, largely the emerging parties are based on region and some based on caste. Among the new political parties the Rashtriya Janta Dal of Lalu Prasad Yadav promotes the interests of backward castes like Yadavas in Bihar, Ms Mayawati promoting Dalits interests etc.
Whenever a political party came elected, the ideology which the party follow seems to dominate and prevail in the society. Well in present case Bhartiya Janta Party (BJP) from the very beginning of its formation took steps which are advantageous to upper castes or general category.
This was just a political gimmick played by Bhartiya Janta Party four months before the election period to gain votes and come into power. Forward caste forms a major part of the population in the society. According to data, forward castes consist of 25 per cent of the population in India, which can change the entire result of polls.
Though the Bill requires a majority of 2/3 present in the house and voting should be supported by more than 50% of the total strength which implies that the bill had got acceptance from the Congress and other political parties too. Even if the parties not in favour of the Bill, still voted in favour because any move against it would have made the party face repercussions in the polls.
Influence of caste over modern India is clear socially, politically and economically. Although the extent to which caste influence over these spheres varies, still caste influence over these three areas can be observed and thus plays a significant role in our daily life. As society transforms, the role of caste in society also changes with it.
A batch of applications was already filed in the Supreme Court challenging the validity and credibility of the Constitution Amendment Bill, 2019 passed by Parliament to provide 10% reservation as it breaches the 50% ceiling fixed by Supreme Court. The petition was filed on behalf of Non-Governmental Organisation (NGO) which works to remove the quota system provided on the ground of equality. It challenged the bill in Supreme Court on the ground that it violates the basic structure of Constitution and apex court ruling in the Mandal Commission case.
The idea of providing reservation to the socially and educationally backward classes in the Constitution was for a period of the next ten years but at the will of ruling political party in the system this period keep on extending and made people believe that they are promoting the interests of backward classes with the main aim of getting votes and come into power.
Such self- interested actions of political parties make people habituated to the preferential treatment and contribute to eroding of the country. When people get habituated to a thing or any rule any deviation from that would enrage the people and will create turmoil in society. In the present case, we can take an example when Supreme Court made a minor change in Prevention of Atrocities Act, 1989 the people of backward classes rebel against the decision of Supreme Court and made the government change Supreme Court through President.
- Ram Ayodhya Singh, Caste Based Reservation Policy and Human Development in India, Globus Press, Delhi(India), 2012, pp. 10-143
- 1991 SCC (3) 498