Reservation to the economically backward class: India Constitutional Perspective

RESERVATION TO THE ECONOMICALLY BACKWARD CLASS- INDIAN CONSTITUTIONAL PERSPECTIVE.

Author: Ms. Deepsi Rawat, Law College Dehradun[1]

INTRODUCTION

India is the land of diversity. It encompasses within its territory people belonging to a different race, caste, sex tribe, and religion. Since the inception of time, there has been discrimination amongst men on the basis of caste, color, religion, and gender. The lower class of the caste were always inflicted with humiliation and discrimination in Indian society. The society was dominated by the upper class who looked down upon the lower section of the society and were subject to social inequality, untouchability, violence, etc. 

The Constitution Framers were aware of the prevailing inequalities amongst the Indian citizens. The Preamble to the Constitution provides for equality of status and opportunity to all as well as Part III and Part IV incorporated by the Framers in the Constitution ensure a justified and dignified living to all the citizens irrespective of their religion, race, caste, sex or place of birth.

THE CONSTITUTION (ONE HUNDRED AND THIRD) AMENDMENT ACT, 2019

The government introducedConstitution (One Hundred and Twenty Fourth) Amendment Bill, 2019 to provide ten percent reservation to the economically backward families belonging to the upper class. The purpose enumerated by the government for the introduction of the amendment is to provide reservations to the economically weaker section of the country who are not able to avail the opportunity of higher education and services due to the insufficiency of funds. The Amendment Bill aims at fulfilling the duty of the State to provide for the advancement of the “economically weaker section” of the society. Through this Amendment Bill, the government makes an addition in the Constitution by insertion Article 15(6) andArticle 16(6).

Following addition has been made in Article 15 of the Constitution:

(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); and
•  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 percent. of the total seats in each category.

Explanation.—For the purposes of this article and article 16,” economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’[2]

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 percent. of the posts in each category.[3]

The Constitution (One Hundred and Twenty Fourth) Amendment Bill, 2019 got its assent from the President Ramnath Kovind and became The Constitution (One Hundred and Third) Amendment Act, 2019.

CRITERIA FOR ECONOMIC BASED RESERVATION

The following criteria, fixed by the government, have to be met to avail the reservation benefits:

1. The income of the concerned household should not be more than eight lakhs.
2. Have less than 5 acres of agricultural land
3. Should not possess a residential flat of more than a thousand square feet.
4. It does not possess a residential plot of more than 100 yards or more in any municipal area or more in any other notified municipalities.

CONSTITUTIONAL ASPECT OF THE CONSTITUTION (ONE HUNDRED AND THIRD) AMENDMENT ACT, 2019

The Amendment Act was challenged in the Supreme Court just a few days after the instant Bill became an Act. The constitutionality of the Act is yet to be decided by the Supreme Court. The Amendment act suffers from certain drawbacks that the parliamentarians failed to take note of.

1. THE INDIRA SAWHNEY & ORS V. UNION OF INDIA[4]JUDGMENT

The Amendment Act has been passed in complete disregard of the Supreme Court judgment providing that economic criterion can not be the sole basis of reservation of post in State services. Poverty, caste, occupation, and habitation are the principal factors that contribute to brand a class as socially backward… But mere poverty it seems is not enough to invite the Constitutional branding, because the vast majority of the people of our country are poverty-struck but some among them are socially and educationally forward and others backward… True, a few members of those caste or social groups may have progressed far enough and forged ahead so as to compare favorably with the leading forward classes economically, socially and educationally. In such cases, perhaps an upper-income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it… Class poverty, not individual poverty, is, therefore, the primary test… Once the relevant conditions are taken into consideration and the backwardness of a class of people is determined, it will not be for the court to interfere in the matter. But, lest there be any misunderstanding, judicial review will not stand excluded.[5]

• 50 % UPPER LIMIT IN THE GRANT OF RESERVATION

The Court further ruled that the reservation cannot exceed more than fifty percent in toto. The upper limit is imposed with the aim of ensuring equality which was upheld in the case of Jarnail Singh v. Vs. Lakshmi Narain Gupta.[6]But the instant Amendment not only provides for economic reservation solely but also exceeds the fifty percent quota for reservation. The justification provided for surpassing the limit was that it does not confer reservation on the SC/ST but is only for the upper caste who are economically disadvantaged and hence does not encroach on the 50 percent limit.

• ECONOMIC BACKWARDNESS AS A CLASS

Article 14 of the Constitution provides for class legislation. It provides that there should be a reasonable classification for creating a special class amongst the people. “But any reservation or affirmative action on economic criteria or wealth discrimination cannot be upheld under the doctrine of reasonable classification. Reservation for backward class seeks to achieve the social purpose of sharing in services that had been monopolized by a few of the forward classes. To bridge the gap, thus created, affirmative actions have been upheld as the social and educational differences between the two classes furnished a reasonable basis for classification. The same cannot be said for the rich and poor. Indigence cannot be a rational basis for classification for public employment.”[7] Economic backwardness does not constitute a particular class as the determination is based on an individual’s income rather than that as a class or group. 

• EXCLUSION OF OTHER CASTES

The Amendment Act aims only to provide reservation to the upper class economically weakened section. This Amendment is not applicable to the lower-class economic section. The purpose of providing reservation in education and government services is to ensure proper representation of each caste prevailing in the society. The purpose of reservation in India is to provide opportunities to the socially and educationally underprivileged communities to ensure equal and adequate representation. But, through the instant Amendment, the already well-represented class will get a reservation on the basis of the economic quota of ten percent. Clause (2) of Article 38, added by the 44th Amendment Act says, “the State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in

different areas or engaged in different vocations.”The economically weaker section indeed are ones who cannot avail higher education in fancy colleges but, reservation is not the answer to meet the needs of the humble class. instead of providing reservation the government should have aimed at job creation and provide opportunities for their upliftment and economic soundness.

CONCLUSION

India today is caught in the grip of a querulous debate over developing reservation policies for groups and communities suffering from economic exclusion associated with caste, gender, and religious identity. Most contentious is the notion that the policy which has governed the allocation of places in higher education, public employment, and the government itself should be extended to the private sector.[8] Reservation is an issue that is highly abused in order to clear out the ulterior motive of the legislators rather than focusing on the welfare and upliftment of the downtrodden and backward section. The reservation policies should not just aim at the welfare of a particular class. Religion or gender but should be formulated in order to do justice to the ones in dire need.

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[1] B.B.A. LL.B. (Hons.), Law College Dehradun, Uttaranchal University.

[2]The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019

[3] Ibid

[4]AIR SC 477 (1993)

[5]Indira Sawhney & ors v. Union of India AIR SC 477 (1993)

[6] 10 SCC 396 (2018)

[7]Indira Sawhney &Ors v. Union of India AIR SC 477 (1993)

[8], Sukhadeo Thorat, Katherine S Newman:Caste and Economic Discrimination: Causes, Consequences and Remedies