This article is written by Sahaja from NALSAR University of Law, Hyderabad. This article deals with the 104th Constitutional Amendment Act in detail and its criticisms.
Table of Contents
Introduction
India’s long-standing caste system is to blame for the birth of the country’s reservation system. Reservation is a policy adopted by the government of India to remedy historical injustices perpetrated by the so-called “upper-castes” against certain castes. Many “lower-castes” in India were isolated from the mainstream decision-making process regarding administration, education, and social welfare by the caste system, which hampered their development.
The caste-based reservation system was first proposed by William Hunter and Jyotirao Phule in 1882. In 1933, British Prime Minister, Ramsay Macdonald, delivered the ‘Communal Award,’ which established the reservation system that persists today. Separate electorates were established for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and Dalits in the award.
After months of discussions, M K Gandhi and B R Ambedkar signed the ‘Poona Pact’ in 1932 which established a unified Hindu electorate with specific limitations. Reservations were initially exclusively available for the Scheduled Castes (SCs) and the Scheduled Tribes(STs) after independence.
The Constitution‘s Article 15(4) and Article 16(4) allowed state and federal governments to set aside seats in government services for members of the SC and ST communities. Article 334 of the Indian Constitution provided exclusively for quota in legislatures for a period of ten years till 1960 to the Anglo-Indians and the SCs and STs. By way of following amendments to the Constitution, the duration of quota reservation in legislatures was extended.
The definition of who belongs to the Scheduled Caste or Scheduled Tribe is given under Article 341 and Article 342 respectively. Article 366(2) of the Constitution defines who is an Anglo-Indian.
Need for reservation
There are several reasons as to why reservations were introduced and also adopted in the provisions of the Constitution. Some of these reasons are as follows:
- Reservation is one of the techniques used to combat social oppression and discrimination against specific groups who have been repressed in the past.
- Reservation, also known as affirmative action, aids in the upliftment of underprivileged groups.
- To make amends for the historical injustices suffered by the country’s lower castes and to level the playing field for the underprivileged, who are unable to compete with those who have had access to wealth and means for centuries.
- To ensure that meritocracy is based on equality, all people must be raised to the same level before being judged on merit.
Over the years there have been a lot of criticism regarding the reservation system in India and whether it is actually working to serve its purpose. It has been pointed out several times that reservation was established to ensure that historically deprived communities have equal access to resources, yet they continue to be socially disadvantaged despite economic gain.
It has also been critiqued that as many upper caste poor people face discrimination and injustice, reservation has become a vehicle of exclusion rather than inclusion, causing frustration in society.
Reservation of seats in the parliament
The Scheduled Castes (SC) and Scheduled Tribes (ST) have seats reserved in the Indian Parliament, state assemblies, and urban and rural-level organisations. Without a distinct electorate, all voters in a constituency elect these reserved members. Members of the SC and ST community are not prohibited from running for a general (non-reserved) seat. The Indian Constitution established this system in 1950, with the intention of keeping it in place for the first ten years in order to secure political participation by groups that were considered weak, marginalized, under-represented, and in need of special protection.
According to Article 330 of the Constitution of India and Section 3 of the Representation of the People Act of 1951, seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha are allocated based on the proportion of Scheduled Castes and Scheduled Tribes in the state based on the state’s population.
The Anglo-Indian group was the only one in India to have representatives in the Lok Sabha (lower house) of the Indian Parliament. Article 331 of the Constitution allows for the nomination of two Anglo-Indians to the Lok Sabha. Frank Anthony, the first and longest-serving president of the All India Anglo-Indian Association, obtained this authority from Jawaharlal Nehru. The President has the power to appoint two Anglo-Indians to the Lok Sabha according to this provision in the Constitution.
Subsequent amendments to the Constitution
The Anglo-Indian community and the Scheduled Castes and Scheduled Tribes were granted reservation under Article 334 of the Indian Constitution. It was meant to expire 20 years after the Constitution’s inception, but it was repeatedly extended by constitutional amendments over the years.
The Eighth Amendment, 1959
The Constitution of India, as amended by the Eighth Amendment of 1959 (officially known as The Constitution (Eighth Amendment) Act, 1959), extended the period of reservation of seats for Scheduled Castes and Scheduled Tribes, as well as the representation of Anglo-Indians in the Lok Sabha and State Legislative Assemblies, for ten years, from 26 January 1960 to 26 January 1970. This amendment changed Article 334 of the Constitution.
The Twenty-Third Amendment, 1969
This amendment to the Constitution is officially known as the Constitution (Twenty-third Amendment) Act, 1969 and it amended Article 334 of the Constitution. It ended the reservation of seats for Scheduled Tribes in Nagaland’s Lok Sabha and State Legislative Assembly and mandated that the Governor could not designate more than one Anglo-Indian to any State Legislative Assembly.
Prior to this amendment, the Governor of a state could nominate as many Anglo-Indians to the State Legislative Assemblies as decided by them.
The amendment also extended the reservation of seats for Scheduled Castes and Scheduled Tribes, as well as Anglo-Indian representation in the Lok Sabha and State Legislative Assemblies, for another ten years, until January 26, 1980.
The Forty-Fifth Amendment, 1980
The Constitution (Forty-fifth Amendment) Act of 1980, amended Article 334, extending the duration of the reservation of seats for Scheduled Castes and Scheduled Tribes and for the Anglo-Indians in the Lok Sabha and State Legislative Assemblies for another ten years, up to 26 January 1990.
The Sixty-Second Amendment, 1989
The Constitution (Sixty-second Amendment) Act of 1989, amended Article 334, extending the period of reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and State Legislative Assemblies for another ten years, up to 26 January 2000.
The Seventy-Ninth Amendment, 1999
The Constitution (Seventy-ninth Amendment) Act,1999, extended the period of reservation of seats for Scheduled Castes and Scheduled Tribes and the representation of the Anglo-Indians in the Lok Sabha and state legislative assemblies for another ten years, up to 26 January 2010 by amending Article 334.
The Ninety-Fifth Amendment, 2009
The Constitution (Ninety-fifth Amendment) Act, 2009 extended the period of reservation of seats for Scheduled Castes and Scheduled Tribes and the Anglo-Indians in the Lok Sabha and state legislative assemblies for another ten years, up to 26 January 2020 by amending Article 334.
The One Hundred and Fourth Amendment, 2019
The Constitution of India’s One Hundred and Fourth Amendment (104th Constitutional Amendment Act) extended by ten years the deadline for the cessation of reservation of seats in the Lok Sabha and state legislative assemblies for members of Scheduled Castes and Scheduled Tribes. The reservation of seats for Scheduled Castes and Scheduled Tribes, as specified by the Ninety-Fifth Amendment, was supposed to expire on January 26, 2020, but was extended for another ten years.
The amendment does not, however, extend the period of reservation of the two Lok Sabha seats reserved for members of the Anglo-Indian community, effectively ending the practice of the President of India nominating two members of the Anglo-Indian community on the recommendation of the Prime Minister of India.
104th Constitutional Amendment Act
This Act ceased the reservation of seats for Anglo-Indians in the Lok Sabha and State Legislative assemblies and extended reservations for SCs and STs for up to ten years. Ravi Shankar Prasad, Minister of Law and Justice, introduced this amendment bill in the Lok Sabha on December 9, 2019. The bill attempted to amend the Constitution’s Article 334.
The Bill was passed by the Lok Sabha with 355 votes in favour and 0 votes against on December 10, 2019. The bill was then introduced in the Rajya Sabha, where it received 163 votes in favour and 0 votes against on December 12, 2019. On January 21, 2020, the President of India Ram Nath Kovind gave his assent to the law, which was then published in the Gazette of India the next day. The amendment came into effect on January 25, 2020.
The reason was given for the amendment
The reason given by the Minister of Law and Justice, Ravishankar Prasad, was that despite the fact that the Scheduled Castes and Scheduled Tribes have made significant progress in the last 70 years, the factors that influenced the Constituent Assembly’s decision to make provisions for the aforementioned reservation of seats still remain. As a result, an amendment to the Constitution was sought in order to maintain the Constitution’s inclusive character as envisioned by the founding fathers.
The Minister of Law and Justice also added that the matter related to the extension of reservation of the Anglo-Indians in the Legislative assemblies had not come up yet. However, he stated that this issue of stopping the reservation will be considered later by the centre and that the topic has not been entirely closed.
Criticisms against the amendment
One of the main questions raised against this amendment was why the reservation for Anglo-Indians was not extended as it was done for the Scheduled Castes and Scheduled Tribes.
The justification for such enactment is offered by the statement of object and reason, which is a step toward a more open statement expressing the objective for such an Amendment. The statement of object and reason for the 104th Constitutional Amendment, 2019, justifies the extension of the SCs and STs reservation but does not explain why the Anglo-Indian reservation was not extended.
The Supreme Court held in Prashar v. Vasantsen Dwarkadas (1963) that the statement of objects and reasons for enacting a particular piece of legislation cannot be utilised to interpret the legislation if the language employed therein is clear enough. However, the statement of objects and reasons can be used to determine the circumstances that led to the legislation and to determine what the mischief was that the legislation was intended to address.
The understanding of the extension of the SCs and STs with the objective of the founding fathers of the Constitution has been considered by parliamentarians. When it came to the Anglo-Indians, however, the approach was not taken in the spirit of the founding fathers, but rather on the basis of numerical numbers from the 2011 Census, rather than taking into account the 2013 Ministry of Minority Affairs Report on the Anglo-Indian Community. The 2013 Ministry of Minority Affairs fact-finding report on Anglo-Indians shows difficulties such as cultural loss, identity crisis, unemployment, educational backwardness, and lack of suitable housing amenities.
The drafters of the Indian Constitution took into account the dispersed and small population of Anglo-Indians, making it difficult for a community member to be elected to Parliament, as well as the welfare of Anglo-Indians, as evidenced by the Parliamentary Debates of June 16, 1949. Such unequal treatment raises issues about the Parliament’s intentions for this ethnic group and their representation.
Conclusion
The 104th Amendment has amended Article 334 to cease the reservation of Anglo-Indians in the Lok Sabha and the state legislative assemblies and has extended the reservation of seats for the SC/ST community as mentioned previously in this article. The repeal of the Anglo-Indian representation through the Constitutional Amendment without consideration in the community and without any explanation being given in the Statement of Object and Reason is a concept that obliterates the community and thus silences the voices of a minority.
A small number of Anglo-Indians are striving to live in the face of issues that are unique to them. The Anglo-Indian community is going through a difficult time in history, as their very existence is being called into question through this Amendment Act.
This particular issue has to be discussed and taken into consideration as soon as possible as the Minister of Law and Justice has stated that the topic is not off the table for discussion and has not been decided entirely. Was given
References
- https://prsindia.org/billtrack/the-constitution-one-hundred-and-twenty-sixth-amendment-bill-2019
- https://www.prsindia.org/sites/default/files/bill_files/The%20Constitution%20%28One%20Hundred%20and%20Twenty-Sixth%20Amendment%29%20Bill%2C%202019.pdf
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
