Sunday, 9 August 2020

10% quota to upper castes, a redefinition of reservation

Updated: January 27, 2019 3:30 pm

On January 9, the Constitution 124th (Amendment) Bill, 2019 was passed in Rajya Sabha. The Bill, 2019 provides 10 per cent reservation to the economically weaker sections (EWS) in the General category. The bill facilitates reservation for EWS in direct recruitments in jobs and admission in higher educational institutions. According to the bill, the reservation of EWS of general category will be given without tampering the existing quotas for SC, ST and OBCs people. More importantly, this 10 per cent reservation will apply for all communities and castes. The quota will be applicable to economically backwards among Hindus, Muslims and Christians.

During division on the bill in the Rajya Sabha, 165 members voted in favour of it while seven members voted against. The motion was moved by AIADMK, left parties and others to refer the bill to the Select Committee which was eventually negated. The LokSabha had already passed the bill.

Replying to a ten hour long debate on the bill in the House, Union Social Justice and Empowerment Minister Thawar Chand Gehlot said it is a historic step towards providing 10 per cent reservation to the economically weaker sections of upper castes. He said, the bill has been brought with good intention and it aims at economic and educational empowerment of the targeted beneficiaries. He rejected the allegation that the bill has been brought in a hurry, saying it was a long pending demand and government wants to deliver justice. Gehlot also clarified that this reservation will be given without tampering with the existing quotas for SC, ST and OBCs. He said, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.

Participating in the discussion, Congress leader Anand Sharma said his party supports the bill, but he questioned its timing. He alleged that the government brought the bill

with an eye on upcoming general elections. He also accused the NDA government of joblessness during its rule.  Sharma said that the government could create only 95 thousand jobs in the last three-and-a-half years. Sharma asked as to how the bill could benefit the people it intends to cover in absence of jobs. Supporting the bill, Ram Gopal Yadav of Samajwadi Party demanded that OBCs should now be given 54 per cent reservation and SCs and STs quota increased to 25 per cent. He also sought reservation for Muslims, saying their condition is worse than the Dalits.

AIADMK member Navneet Krishnan opposed the bill, saying it is unconstitutional and legally untenable. He said reservation is for those facing social discrimination and not ones economically poor. He said the bill will have adverse impact on the people of Tamil Nadu. Later, the AIADMK members staged a walk out from the House in protest over the bill.

Derek O’Brien of the TMC raised doubts over the bill passing legal scrutiny. He alleged that the government failed to fulfil its promise on job creation and the bill is an acknowledgement of its guilt. Prasanna Acharya of BJD and RCP Singh of JD(U) supported the bill.

Making an intervention in the discussion, Union Law and Justice Minister Ravi Shankar Prasad said Parliament has the right to make Constitutional amendments. He assured that there will not be any changes to the existing reservation for OBCs, SCs and STs after the passing of the Constitutional (Amendment), Bill. He said the states will have freedom to decide on income criterion of beneficiaries under the bill.

Kapil Sibal of the Congress said the government has not taken any report or data into consideration while defining the beneficiaries of the legislation. He said the bill will not stand the test of law as it is in violation of the Constitutional provisions.  Sibal said the government is befooling the people with this legislation as it has been brought in only with elections in mind.

Union Minister and LJP Chief ‎Ram Vilas Paswan supported the bill saying that the step is in the right direction. Satish Chandra Mishra of BSP while supporting the bill demanded reservation for minorities. Mishra also said, putting such a high ceiling is ‘a fraud on the poor among upper castes’. Praful Patel of NCP also supported the Bill but questioned the timing of bringing the bill before the election. D Raja of CPI demanded the bill to be referred to the select committee. Some other parties’ members including TDP and, AAP also participated in the debate.

“Delighted the Rajya Sabha has passed The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019. Glad to see such widespread support for the Bill. The House also witnessed a vibrant debate, where several members expressed their insightful opinions,” tweeted Prime Minister Narendra Modi. He also added that passage of The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 in both Houses of Parliament is a victory for social justice. He said it ensures a wider canvas for our Yuva Shakti to showcase their prowess and contribute towards India’s transformation.

Now understanding the Constitution 124th (Amendment) Bill, 2019 Amendment to Article 15 (Reservation in Educational Institutions)

In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:— ‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Amendment to Article 16 (Reservation in Jobs)

In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:— “(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.”

Qualifying Criteria for the proposed quota

The total income of beneficiary’s family should be less than Rs. 8 lakh per annum and should have less than five acres of agricultural land. Beneficiary family should also not possess a residential flat of area 1,000 sq ft or larger.  Do not possess a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities.

History of Reservations in India

In 1950, the Provision was made for reservation of seats for Scheduled Castes (SC) and Scheduled Tribes (ST) in legislatures. In 1951, Constitutional amendment was brought in to give states the right to reserve seats in educational institutions. In 1963, Supreme Court put a cap of 50% on reservations.  In 1979, Second backward classes commission set up under B.P. MandaI Commission submitted its report in which it recommends 27% reservation for OBC candidates across all services.

In 1990, Union government accepted recommendations of Mandal Commission. The commission had recommended 27% reservation for OBCs.  In 1992, SC, in the Indira Sawhney judgement, upholds the government’s decision to implement the recommendations and specified exclusion of creamy layer. In 1993, the National Commission for Backward Classes (NCBC) was set up. In 2008, SC upholds the constitutional validity of the Central Educational Institutions  Act which provides for 27% quota for OBCs in higher educational institutions.  In 2010, due to protests by Gujjars, Rajasthan government agreed to provide reservation within quota.  In 2016, Maratha organisations launched silent marches to demand a quota for the community. In 2018, Parliament passed a bill to give Statutory powers of NCBC. Maharashtra legislature passed bill proposing 16% Reservation for Maharashtra in educational institution and government jobs.

Now it is important to mention that in past the reservation on economic criteria was attempted by various governments.   In 1991, PV Narasimha Rao government had tried to provide reservation based on economic criteria. In 1992, while upholding reservation for OBCs as per the Mandal Commission recommendation, the Supreme Court, in the Indra Sawhney & Others vs Union of India case, directed that reservation be restricted to maximum 50%. It also said that separate reservation for economically poor among forward class was invalid as Article 15(4) provided for only socially and educationally backward classes, and not economically backward classes. In 2008, erstwhile Kerala government decided to reserve 10% seats in graduation and PG courses in government colleges and 7.5% seats in universities for the economically backward among the unreserved category. An appeal is pending in the Supreme Court. In 2011, erstwhile Chief Minister of Uttar Pradesh wrote to the central government asking for reservation for upper-caste poor. In 2015, Rajasthan assembly passed bill to provide a 14% quota to the economically backward classes (EBCs) among the forward castes. However, SC held it cannot breach 50% ceiling.  In 2016, ordinance was promulgated in Gujarat which provided 10% quota for EBCs among upper castes. However, Gujarat High Court in the Dayaram Khemkaran Verma vs. State of Gujarat quashed the ordinance.

It is worth mentioning that this 10 per cent reservation to General category was given on the basis of SR Sinho Commission on Economically Backward Classes (EBCs), 2006, whose report was submitted in 2010.

According to the report where SR Sinho had recommended that the General category poor should be given quotas in government jobs and education. For this, the commission recommended a constitutional amendment.  The commission noted that non-income tax payee general category people were economically backward, at par with the OBCs. It held that they should be treated like OBCs.  EBC children should be made eligible for soft loans for higher education, scholarships, coaching for central and state civil services examinations, subsidized health facilities, and government help in housing sector in the form of soft loans with lower rates of interest.  Sr Sinho in his report further recommended that development of skills and vocational training for the EBCs so that they can earn their livelihood, and recommended the setting up of a National Commission for providing financial assistance to EBCs.

Uday India Bureau

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