The Constitution (124th Amendment) Bill, 2019

Introduction

The government gets cleared the Constitutional Amendment Bill through both the houses of Parliament and has got approved 10% reservation for the economically backward class in the non-reserved category. Though the implications of this bill are far reaching, it is important to know the process of the passage of the bill, the issues raised, challenges and future prospects.

The Constitution Bill 2019

Provisions Extended Through The Bill

  1. The Bill allows 10% quota in employment and education for the general category candidates who belong to the economically weaker sections.
  2. The 10% reservation through this bill will apply to all those who are not covered in existing quotas and have a family income below 8 lakh a year or agricultural land below 5 acres.
  3. It will also apply to those who don’t have a house above 1,000 square feet or a 100-yard plot or above in a notified municipal area or a 200-yard plot or above in a non-notified municipal area.
  4. The Bill will also cover those from the Muslim, Sikh, Christian, Buddhist and other minority communities.
  5. The quota will be over and above the existing 50% reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC).
  6. The reservation is for those castes who presently do not avail reservation in any category.

Passage Of The Bill

This bill was approved by the cabinet initially and then it was passed by the Parliament with majority. The process was conducted in the shortest span of 3 days.

a) Cabinet Approval – (7th Jan,2019)

  1. The Union Cabinet on Monday approved a Constitution Amendment Bill to provide 10% reservation to economically backward sections in the general category, a senior government official said.
  2. Vijay Sampla, Minister of State, Social Justice and Empowerment stated that those who have an annual salary of less than ₹8 lakh per year and possess less than 5 acres of land will be able to avail reservation in educational institutions and jobs. He also mentioned that articles 15 and 16 of the Constitution will have to be amended for implementation of the decision.

b) Loksabha Approval – (8th Jan,2019)

  1. It was cleared by majority of the members (319) voting for it, and four against. The Opposition questioned the timing and haste with which the government introduced the Bill, on the last day of the winter session.
  2. Finance Minister Arun Jaitley stated as : “I request all to support the motion. The quota Bill is aimed at equality for all.” It was also mentioned that the 10% reservation will be over and above the 50% stipulated by the Supreme Court and is expected to benefit a huge section of upper castes, including Brahmins, Rajputs (Thakurs), Jats, Marathas and Bhumihars and trading castes like Kapus and Kammas.

c) Rajyasabha Approval– (10th Jan,2019)

  1. The Rajya Sabha approved the proposed law following an over nine-hour-long heated debate, during which the Opposition accused the government of bringing the Bill in haste with an eye on the coming Lok Sabha election. The Bill was passed with a majority of 165 against seven votes.
  2. Law Minister Ravi Shankar Prasad said the reservation would be applicable to jobs in both Central and State governments, adding that the legislation gave powers to the States to determine the economic criteria for beneficiaries.
  3. Congress leader Anand Sharma questioning the economic criteria set for extending the quota, he said not many people would benefit from it, especially when the government had failed to create enough jobs.

Steps Necessary For Its Implementation 

  1. The 124th Constitution Amendment Bill, 2019, will now also have to be ratified by at least half the State Assemblies.
  2. Once the Constitution is amended to add economic backwardness as a ground for reservations, it will most likely have to stand the test of judicial scrutiny, as the Supreme Court had in the Indra Sawhney case capped quotas at 50% of the available seats.
  3. Indira Sawhney v Union of India judgement highlights – A nine-judge Constitutional Bench of the Supreme Court had in the Indira Sawhney case capped the reservation at 50%. The court had ruled on November 16, 1992, that “clause (4) of Article 16 of Constitution speaks of adequate representation and not proportionate representation” and “relaxation can be done in extra-ordinary situations and while doing so, extreme caution has to be exercised and a special case made out.”

The 9 Judges Constitution Bench Of The Supreme Court By 6-3 Majority Gave The Following Judgements:

  1. Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on economic basis.
  2. Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under article 16(1).
  3. Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4).
  4. Creamy layer must be excluded from the backward classes.
  5. Article 16(4) permits classification of backward classes into backward & more backward classes.
  6. A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
  7. Reservation shall not exceed 50%.
  8. Reservation can be made by the ‘EXECUTIVE ORDER’.
  9. No reservation in promotion.
  10. Permanent Statutory body to examine complains of over – inclusion / under – inclusion.

Challenges Before The Implementation Of The Bill

a) Constitutionality – The Indian Constitution doesn’t speak about the reservations to be given on the economic basis. Article 16(3) & Article 16(4) should be read cautiously here to understand the constitutional mandate. They are mentioned as follows –

  • Art 16(3) – Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
  • Art 16 (4) – Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

    Now this text clearly talks about providing reservations to the people belonging to the backward class with a clear motive to provide them opportunities on equal footing. But beyond this, in the meantime, Article 16 of the Constitution is being amended to add up the following points mentioned as under –

  • Article 16(4A) – Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]
  • Article 16(4B) – Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

    These amendments have created a space for the government to address the restrictions put by the Supreme Court over the reservations through it’s Indira Sawhney Judgment. So, maintainability of this amendment under the constitutional mandate will be a future course to be decided upon the judiciary if at all challenged.

b) Judicial Scrutiny – Judiciary these days is keenly observing the statutes and its socio-political effects and providing reliefs as and when required. It is criticised many times over the concept of ‘Judicial Activism’; but still if the petitions are filled in the apex court against this amendment, then the Supreme Court will be vigilant to analyse this amendment under the purview of the Judicial Review. Though a future course, Judicial Scrutiny is a major step government has to reach up to if at all needed.

If the Supreme Court indeed agrees to lift the 50% cap, all States of India can extend the quantum of reservation and “upper castes” will stand to lose in State services.

If the Supreme Court rejects the idea of breaching the 50% cap, Economically Weaker Section (EWS) quotas can be provided only by eating into the SC, ST and OBC quota pie, which will have social and political implications.

c) Implementation – Implementation of the provisions will require N number of administrative actions to be taken. Defining the peculiar criteria, identification of the targeted people, adjusting the vacancies etc. are to be addressed quickly. Also, if the already given reservations are affected then facing the social-political consequences of the same will be an added challenge to the administration. Implementation lacunae has been a history in the country and especially when the country is dealing with the sensitive socio-political question, then it should be addressed cautiously and prudently.

Conclusion 

Carrying out a constitutional amendment is a massive step as far as reservations are concerned. It is expected that the amendment should be carried out sparingly and with a wise mind. Whether the decision to make such provision will emerge out successful, is a matter to be analysed in the future; but amending the fundamental rights with an alleged motive to earn political gains in a haste will be a question of discussion in the days to come.

Beyond all these facts, it is also a responsibility of the citizens of India to not to exploit this provision to have unfair gains and also to not to fume the politicisation of the issue. Reservations are based on the principles of equity and equality and they must be upheld from all the strata of the society and the polity.

Q. Examine the need, challenges and future implications of the recent 124th Constitutional Amendment Bill,2019 passed by the Parliament.

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