The President of India has given his assent to the bill providing 10% reservation in jobs and educational institutions to the economically weaker sections in the general category. The legislation will be known as the Constitution (103 Amendment) Act, 2019 and it shall come into force on such date as the Centre notifies.

Body:

Reservation leads to casteless and classless society:

• The 10% quota law is a step towards a classless and casteless society, the Union government has indicated in the Supreme Court.
• The Centre referred to the court’s past decisions that called for the “attainment of economic equality as the final and only solution to the besetting problems” of the country. The Constitution (103rd Amendment) Act, 2019, was meant to benefit the economically weaker sections of society who were not covered by the existing schemes of reservation.
• It said the law was meant to benefit a large section of the population of 135 crore people, who are mostly lower middle class and below the poverty line.
• The government quoted the 2010 report of the Commission for Economically Backward Classes, chaired by Major General S.R. Sinho (retired), which said 18.2% of the general category came under the below poverty line (BPL).
• The Government took support of the 13-page affidavit quoted from a 1985 Constitution Bench judgment in K.C. Vasanth Kumar vs Karnataka, which quotes Pandit Jawaharlal Nehru and Mahatma Gandhi to drive home the point that the economy of a family, and not its caste, should be the determining factor of social and educational backwardness.
• Article 15(6) and Article 16(6) are enabling provisions for advancement of the economically weaker sections and are, in fact, in conformity with the principle of reservation and affirmative action, It argued that a “mere amendment” to an Article would not violate the basic structure of the Constitution.
• Furthermore, the 50% ceiling applied to the Scheduled Castes and the Scheduled Tribes and Other Backward Classes. The new provision dealt with the economically weaker sections. “The limit of 50% is only applicable to reservation under Articles 15(4), 15(5) and 16(4) and does not apply to Article 15(6).”

The pros of the reservation Act are:

• Alleviation of Poverty: It is expected to help the needy among the higher castes.
• Reduces ghost beneficiaries: In some cases, it is expected to eliminate the desperation of those who, in the past, would resort to obtaining fake Scheduled Caste (SC) and Scheduled Tribe (ST) certificates that were used to seek entry into professional courses.
• Removes Prejudice: The reservation will prevent these higher castes from holding reservations responsible for national disintegration and perpetuation of casteism, as they widely believe.
• Reduces Unwanted Adoptions: The legislation is also expected to keep savarna-caste aspirants from seeking adoption into SC/ST families in order to procure SC/ST certificates.
• No deceptive self-characterisation: Ironically, the 10% quota can help these savarnas retain their authentic caste identity. In this way, they can now avoid facing humiliation in courts of law on account of being exposed as fake caste certificate holders.

The cons of the reservation are:

• Discredits the moral foundation of the principle of social justice:
• The principle of social justice calls for ‘equal treatment of equals’ and ‘affirmative action for less advantage sections’.
• Constitution outlines special provisions for only four classes – SCs, STs, Backward Classes and Anglo Indians in the Articles 330-342 under Part 16.
• The provision is clearly mentioned as reservation is explicitly for ‘social exclusion and discrimination’. Notably, the “socially and educationally backward classes” was the target group in quotas for OBCs.
• Unfairness or an element of injustice is rooted in the practice of untouchability, whereas pure economic backwardness is rooted in the systemic inability to provide jobs to the higher castes.
• The lack of opportunities is not due to untouchability, but due to the inability of the state and the market to provide enough jobs for the qualified and the needy.
• The new reservation policy has transformed from a policy meant to provide a level playing field for those suffering from historical discrimination and those who are weaker sections of the society to a policy meant as a dole for those sections of society who are poor and lack jobs.
• The Indira Sawhney case had further held that social backwardness cannot be determined only with reference to an economic criterion.
• Violation of DPSP:
• The Article 46, which is a non-justiciable Directive Principle, says 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 103rd 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.
• Violation of Basic Structure Doctrine:
• 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%.
• This would leave other candidates with just 40% government jobs or seats, amounting to violation of Article 14 (Right to Equality), which is a part of Basic Structure.
• The 60% reservation will also lead to “sacrifice of merit”.

Conclusion:

Reservation to the weaker sections is a positive affirmative action needed for their welfare. The 103rdConstitutional Amendment Act though is a beneficial move for the “forward poor”. Similar moves by previous governments have be judicially reviewed and struck down. It is prudent to look at other alternatives to alleviate the conditions of EWS.