The Quota for Economic Weaker Sections - Seeker's Thoughts

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Tuesday, 12 March 2019

The Quota for Economic Weaker Sections

The Quota for Economic Weaker Sections 

The government announced a decision to provide ten per cent reservation in jobs and higher education for those belonging to the economically backward sections of the general category. 


This decision came as an act ‘the Constitution (103rd Amendment) Act, which provides 10% reservation in government jobs and educational institutions for economically backward in the unreserved or general category.  


The Supreme Court on 11TH March, 2019 said that it was not in the favour of passing an order that provides 10 per cent reservation in education and jobs to the economically weaker section (EWS) across all classes to a Constitution bench. 

However, the court refused to pass any interim order to stay or hamper the implementation of the Constitution (103rd Amendment) Act.

Supreme Court to decide on March 28 if it needs to be sent to Constitution bench for further decision.



A look Back on Quotas and Controversies 

What is Quota or reserved category?

Quotas are reserved seats for availing benefits in government jobs, institutions and benefits. When India got her independence, the society was divided into casts and different segments.

Some people were treated as untouchables on the basis of the surname they carried for generation due to inhumane cast practices.




They lacked opportunities to grow, and these things socially made them backward.  So, when constitution was written, their ill-treatment was kept in mind.

The quota was initially was applied for backward classes for a couple of decades until they were accepted socially equal in society. The quota was not removed, and there were reasons for that. 

However, one thing should be considered here, that the quota was given on the basis of ‘social backwardness’ not on economic basis. 

The change in Quota system

The bill was introduced in Lok Sabha and was passed in January 2019, as there was discontentment among a section of society who was not socially backward but economically strained.

President Ram Nath Kovind gave his assent (saying yes) to the bill- the Constitution (103 Amendment) Act, 2019 for providing 10% reservation in jobs and educational institutions to the economically weaker sections in the general category.

Constitutionally citizens are divided into certain categories, and general category did not get any benefit as citizens from reserved categories enjoyed certain privileges. 

The Need for Reservation of Economically Weaker People

People who are from general category have to score higher in competitive examinations, and pay more money as the concession is given to backward classes to bring them to the level of equality.

This has been a reason of discard among communities. People did not know about quota often and they related this to economic conditions.



Who will be provided reservation and how?

As per the reports, those with annual family income below Rs 8 lakhs and owning less than five acres of land will be provided reservations.

This 10% reservation would be over and above the existing 50 per cent reservation.

 Or in easy way -It provides reservation for:

·       People who have an annual income of less than Rs.8 lakhs.

·       People who own less than five acres of farm land.

·       People who have a house lesser than 1,000 sq feet in a town (or 100 sq yard in a notified municipal area).

The Bill has brought the change- the Constitution (103 Amendment) Act, 2019

It is evident that as per the constitutional guidelines the quota for economic weaker section was not possible, until the amendment was done in the constitution. However, the parliament holds the supreme authority to make law.  

The legislation was to be known as the Constitution (103 Amendment) Act, 2019 and it came into implementation when the Centre or central government notified it.

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 the total reservation to 60%.

Fundamental Rights are amended 
124th Constitutional Amendment Bill or the Constitution (103 Amendment) Act, 2019 has amended two fundamental rights: 


1.Article 15, which prohibits discrimination on the grounds of race, religion, caste, sex or place of birth
2. Article 16 which prohibits discrimination in employment in government office.
3.      It also makes a note of the Article 46, which asks the government to promote the educational and economic interests of the weaker sections of the society.
The 124th Amendment makes a departure by extending reservation to the economically disadvantaged. Article 15(4), inserted by the First Amendment in 1951, enables the state to make special provisions for socially and educationally backward classes.
Article 16(4) permits reservation for any backward class if it is not adequately represented in services under the state.

Thus, reservation is not a right but, if granted, it will not be considered a violation of the right to equality.

The Violation of Supreme Court’s Judgments

At present order of the government to provide reservations violates some of the observations made by the Supreme Court in its previous judgments.

In the landmark verdict of Supreme Court in the Mandal case, the Supreme Court had held that the proposal to provide 10% Reservation for Other economically backward sections of the people who are not covered by any of the existing schemes of Reservation as constitutionally invalid.

The Supreme Court had held that mere economic backwardness or mere educational backwardness which is not the result of social backwardness cannot be the criterion of backwardness in Article 16 (4).

The Supreme Court has even ruled in the Indra Sawhney case that the share of jobs or educational or legislative seats reserved for different communities cannot together exceed 50%.

In Kesavananda Bharati (1973), the Supreme Court held that Parliament can amend the Constitution but does not have power to destroy it — no amendment can change its “basic structure”. The court said that under Article 368, something must remain of the original Constitution that the new amendment would amend.

However, the court did not define what basic structure is, and only listed a few principles — federalism, secularism, democracy — as being part of basic structure. Since then, the court has been adding new features to the concept of basic structure. In subsequent years, courts extended the doctrine even to ordinary legislation and executive actions.

There are states like Tamil Nadu that go beyond this limit and the Supreme Court has upheld the state’s policy many a time. Presently, the state has a ‘69 per cent quota system’.

From the Poona Pact (1932) between M K Gandhi and Dr B R Ambedkar to the Constituent Assembly debates, reservation was talked about in the context of social backwardness of classes.

Article 46 and the General Category

Article 46, which is a non-justiciable Directive Principles say that the state shall promote educational and economic interests of “weaker sections”, in particular SCs and STs, and protect them from “social injustices” and “all forms of exploitation”.

While the 124th Amendment mentions Article 46 in its statement and objects, it seems the government overlooked the fact that upper castes neither face social injustice nor are subjected to any form of exploitation.

Moreover, the Constitution makes provisions for commissions to look into matters relating to implementation of constitutional safeguards for Scheduled Castes (Article 338), Scheduled Tribes (338A) and Socially and Educationally Backward Classes (339), but has not created any commission for the economically backward classes.

Conclusion

The case is complicated and the government is directed in the Directive Principles of State Policies to up lift the weaker sections of society. When the time changes, the weakness can also change- that’s why the provision of amendment was included in the Constitution. 
Weaker sections need more support, but quota has often been linked to the vote bank politics.

Even when the bill has been passed and signed by the president, the court can judicial review the amendment.
In this case, the court has to examine the equality code of the Constitution and whether the state has considered and valued the circumstances justifying it, to make reservation. This would require that the state’s decision is rational and non-arbitrary.

The state has to show quantifiable data to satisfy the court as to inadequacy of representation of economically backward classes.




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