The proposed amendment Bill will define Economically Weaker Section (EWS) as one having:
• Annual household income below Rs 8 lakh.
• Agriculture land below 5 acres.
• Residential house below 1000 sqft.
• Residential plot below 100 yards in notified municipality.
• Residential plot below 200 yards in non-notified municipality area.
The Rajya Sabha passed the Bill with 165 votes in its favour and 7 against on 10 January, 2019, a day after the Lok Sabha had approved the Constitution (124th Amendment) Bill, 2019. The Bill was approved after the House rejected five amendments moved by Opposition members.
Implications of the Bill
The 10% reservation will be in addition to the existing cap of 50% reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking total reservation to 60%. The quota targets the poor among the upper castes. This will be over and above 50% mandated by Constitution and hence the need for Constitution amendment Bill.
Would not the purpose have been served if the expression `backward classes’ had been used instead of `weaker sections’ as done in Article 16 (4), which would mean all the weaker sections, including the Scheduled Castes and the Scheduled Tribes? It may be remembered here that sub-clause (4) of Article 15 was not there originally — it was inserted by an amendment and the expression `backward classes’ was used with a qualification `socially and educationally (backward classes)’ and not only socially or educationally backward but backward on both counts. Second, the Scheduled Castes and the Scheduled Tribes were separated from the expression `backward classes’ to make a distinction between them and the other backward classes (OBCs). The effort, it seems, has been to maintain the same distinction in Article 46.
The present system of reservation is in favour of `classes’, and not individuals. And in order that the individuals may qualify for them, they must belong to those classes. There is no one or particular `class’ which is economically backward. All classes and social groups have economically backward individuals. But on that account alone, a group does not qualify to be called a backward class. It will be unconstitutional to keep reservation on economic criteria confined to any particular social group (P. B. Sawant: former Judge of the Supreme Court)
Stating that the bill had been brought without any empirical basis, AIADMK’s Navanee thakrishnan quoted a Supreme Court order, stating: “A Backward class cannot be determined only and exclusively with references to economic criteria. It may be a consideration or basis along with and in addition to social backwardness but it can never be sole criterion”
Economic criterion cannot be the sole basis for reservation. As the Bill violates the basic structure of the Constitution as reservation on economic grounds cannot be limited to the general categories and the 50 per cent ceiling limit cannot be breached. In Supreme Court in Indira Sawhney case, The proposed law would face roadblocks if challenged in the Supreme Court. A nine-judge Constitution Bench of the Supreme Court in the Indira Sawhney case of 1992 specifically answered the question “whether backward classes can be identified only and exclusively with reference to the economic criterion.” The constitution bench had categorically ruled that a backward class cannot be determined only and exclusively with reference to economic criterion. The bench had held that economic criterion may be a consideration or basis along with, and in addition to, social backwardness, but it can never be the sole criterion. The bench in its judgement declared 50% quota as the rule unless extraordinary situations “inherent in the great diversity of this country and the people” happen. Even then, the court stated that extreme caution is to be exercised and a special case should be made out.
Second, for centuries, this country has suffered gross social and economic inequalities. The mere number of the Scheduled Castes, Scheduled Tribes and OBCs is over 60 per cent of the population, according to estimates. (According to the 2011 census, SCs are 16.6 per cent and STs 8.6 per cent. OBC population estimates vary from over 40 per cent to 50 per cent). Studies have revealed that 77 per cent of our population does not earn more than Rs 20 daily. The sum and substance of this survey of backwardness shows that about 85 per cent of our population, if not more, is backward. In other words, backwardness is a rule and forwardness is an exception in this country. If the government is sincere to eradicate the social, educational and economical inequalities in the country why they are not filling the vacant post both at state and central posts and give an equal opportunity to the marginalized sections of the society. Their plights were never heard or addressed. When our country will understand the real existence of marginalised sections of the society and fulfill their required needs and demands as per the constitution of our country.
Third, this country crying for jobs, youth of the country come out on roads they need jobs and if we are growing with an economic growth of 7.2% (Economic Survey 2017-18), how we will create jobs, the jobs will come only if the economical growth is increased, in public sector jobs are reduced so whomare you befooling, and on which data this amendment is based. So, why you want amendment the constitution for what and whom, government must inform the people of the country, why you want to done so, will it really benefits us?
Fourth, in a country where income is taxed from 2.5 lakh a year and 8 lakh per annum puts you in the second tax slab of 20%, to count such households as economically backward is eyewash. It means that those who are truly deprived will again be disadvantaged even within this quota, competing with those far above them on the income ladder.
Fifth, even within the reduction pie, the last socio-economic census counted only 4% SC & ST households with a member in a government job and less than 12% of central government jobs were held by OBCs by 2015. According to labour bureau statistics, total job creation and fulfilled from the period 2001 to 2018-19 by the central government is 7.3% i.e., on yearly basis is 0.4% jobs are created by the central government from last 18 years. If there is already scarcity of jobs in public sector despite there are numbers of reservation for marginalized sections of the society then providing additional 10% reservation to EWS of Upper class is nothing but a romanticized decision? The government should rethink on reservation and make efforts for the due representation of marginalized sections of society as per the constitution.
(The author is a research scholar in Central University of Kashmir.)
waheedahanger@cukashmir.ac.in