Upper caste reservation: Why the Constitutional amendment and what is the road ahead

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Updated: January 9, 2019 12:31:16 PM

Ten per cent quota to upper caste candidates may not be proportionate to their population in the country , however, it will completely change the options available to them in public sector employment.

Modi government has clarified the term ?economically weaker sections? in the constitution itself. (File photo)

Modi government’s decision to amend the constitution to provide 10% reservation to economically weaker sections of the upper caste candidates in admission in educational institutions and government jobs has raised a lot of hopes among the intended beneficiaries. It may not be proportionate to their population in the country, however, it will completely change the options available to them in matters of public employment.

In past, several governments have attempted to provide reservation to the candidates belonging to economically weaker sections in general category, including the Congress government led by Narsimha Rao and also by state of Gujarat. However, in absence of an enabling provision in-built in the constitution itself, the supreme court had struck down those initiatives. Therefore, Prime Minister Narendra Modi’s government decided to give the quota to upper castes by way of a constitutional amendment.

Why a constitutional amendment was required

Article 15, which is a fundamental right under part III of Indian constitution prohibits the State (central and state governments and other public authorities) form discriminating among the citizens on the grounds of religion, race, caste, sex or place of birth. Article 16, which is also a fundamental right, makes it binding on the state to provide equal opportunity to citizens in the matters of public employment (government jobs). So, technically, the governments can’t reserve seats or give quota to a group of people in matters of public employment.

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However, article 14 of Indian constitution guarantees not only equality before law but also the equal protection of law to Indian citizens which has a broader meaning in the constitution.

It means that those caste or groups that have been historically oppressed can’t be treated at par with other communities and the State will be allowed to make special provisions for them under article 16. However, these special measures or affirmative actions by the state have been restricted only to the SC/STs and other socially and educationally backward classes. There was no provision in the constitution to provide special measures for ‘economically weaker sections’ falling outside the SC/STs and other socially and educationally backward classes (OBCs).

What changes the Lok Sabha has approved in the Constitution

After a five hour long marathon debate, the Lok Sabha on Tuesday night approved insertion of two new clauses – sub clause (6) in the article 15 and also in the article 16 in the part III of Indian Constitution. Insertion of these clauses will allow the government to make special provisions for economically weaker sections of citizens other than SC/STs and OBCs for admissions in educational institutions and government jobs.

The government has clarified the term ‘economically weaker sections’ in the constitution itself. It will be as notified by the government from time to time on the basis of family income and other economic indicators.

Whether the existing quota for SC/STs and OBCs will be affected

The constitution amendment passed by the Lok Sabha on Tuesday categorically states that these special provisions (reservation in educational institutions and government jobs) will be in addition to the existing quota applicable to these categories.

Under the changes approved by the Lok Sabha, the government has fixed a cap of maximum of 10% seats available in each category of admissions and government jobs in the constitution itself. It simply means that any future government will have to once again amend the constitution if it will want to increase it beyond 10%.

The road ahead

A constitutional amendment requires approval of both the Rajya Sabha and Lok Sabha by two third majority of the members present and voting, thereafter, in some cases, it requires approval of half the state assemblies with simple majority of the members present and voting. Once a law has been passed in this manner and assented by President then it will come in to the force after its notification by the central government.

The legal hurdle

In 1992, Supreme Court of India had set a maximum ceiling of 50% of the total seats or vacancies available in any category while deciding the Indra Sawhney case. The changes approved by the Lok Sabha will take this quota beyond the ceiling set by the Supreme Court and the law might have to face legal scrutiny. However, finance minister Arun Jaitley has clarified during the debate in the Lok Sabha that the ceiling of 50% was only for SC/STs and other socially and economically backward classes and this category of economically weaker sections is a new category altogether, therefore, the fifty per cent ceiling put by the Supreme Court will not affect it.

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