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Economic Reservation In India: A Panacea or Mirage

What brought about the abolition of slavery? Was it safeguards granted to them by anyone? No, it was the awakened conscience of the various countries.- Sardar Vallabhai Patel

Caste based reservation was firstly introduced in 2nd B.C. In Manusmriti when all the laws were based on caste and merit was never considered. It dichotomized people into high and low castes on the basis of their birth. Wealth, political power, spiritual leadership, education, ownership of land, trade and lucrative aspects were reserved purely for the higher class. Reservation is one of the most conflicted topics in India because people with different beliefs, faiths and values co-exist here and they all have very different perspective of regarding it. The purpose of this paper is to analyze the Constitution 103rd Amendment Act, 2019 in light of the landmark case of Indira Sahney. The problems and legal hurdles have been analytically observed. The possible remedies and solutions have been stated following the future consequences of meretricious political appeasement. Reservation was agreed upon because it was supposed to be there for only ten years because it could not denied that lower castes and minorities had faced atrocities in the past by the other communities and needed justice. However, in the contemporary times it has been a never ending issue.

Introduction
The system of reservation in India comprises a series of affirmative action measures, taken up by the government to uplift the weaker sections of the society by getting them into government jobs and higher educational institutions. A distinctive system which was conceived as a temporary measure to bring all the community on one stand. With the passage of time, this concept has become highly critical due to appeasement politics inherent in a country like India.

The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019 was introduced by the Minister of Social Justice and Empowerment, Mr. TC Gehlot. The bill was passed by both the houses of Parliament and thereafter receiving the assent of the President, The Constitution (One Hundered and Third Amendment) Act, 2019 came into execution. The Act provides for 10% reservation for EWS in public employment and private educational institutions.

Beneficiaries
As per the Ministry for Social Justice -‘Brahmins, Banias, Muslims & Christians all will be eligible for this quota in jobs and education’. It mainly extends toeconomically backward people of the unreserved category. It does not validates to citizens who are availing the benefit of any other kind of reservation. Also, the Constitutional Amendment states, it applies only to initial appointments and not to promotions.

Following is the eligibility criteria set by the government:
# 10% reservation to the economically backward sections in general category
# General Category nibbas, all members of whose family together earn less than Rs.8 lakh per annum, and who have less than five acres of agricultural land, will qualify.
# Individuals whose families own or posses more agricultural land, or residential flat or area of 1000 sq. ft or larger or a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities, will not qualify.
# It covers those from Muslim, Sikhs, Christian, Buddhist and other minority communities.
# The quota will be over and above the existing 50% reservation to the SC ST and OBC.

Previous Demands
The meretricious political appeasement is not new in our country. There has been various instances where political leaders have come up with ludicrous statements having no compliance with law or logic. Chief MinisterN Chandrababu Naiduhad indicated in 2016 that the Andhra Pradesh government could soon extend reservation for the poor among upper castes.

He stated:
“We will conduct a survey. Based on that we will have no objection to extend reservation benefits to the economically-backward among the upper castes,”[1]Ram Vilas Paswan, Union minister and the chief of Lok Janshakti Party, an NDA ally, stated in 2018 that the upper caste poor should be given 15 per cent reservation.[2] Another Dalit leader, Ramdas Athawale, Union minister and president of the Republican Party of India, an NDA ally, rooted last year for 25 per cent reservation to the poor among the upper castes by enhancing the quota limit to 75 per cent.[3]

New Clauses To Article 15 And Article 16

Article 15 (Prohibition of Discrimination) and Article 16 (equality of opportunity) was needed to be amended. Article 15(4) empowers the state to make any provision for the advancement of any socially and educationally backward classes of citizens for the SC and ST tribe
Article 16(4) provides for the reservation of appointments of posts in favor of any backward class of citizens, which in opinion of the State, is not adequately represented in the services under the state. The term backward class of citizens has been generally understood to include the SCs and STs and Socially Educationally Backward Castes (SEdBCs)


·The new clause (6) to Article 16 allows the government to carve reservation for the economically weaker sections of the society in higher educational institutions, including private ones, whether they are added or not by the State. Minority educational institutions are exempted.
·Likewise ,the new clause (6) to Article 16 provides for quota for economically deprived sections in the initial appointment in government services

Initiatives In This Area: Economically Backwardness

i) Article 340 & Article 46 of the Constitution
# Article 340mandated that the government identify ‘classes’ which weresocially and educationally backwardand implement measures to remove such difficulties so as to improve their conditions.
# AlsoArticle 340(1)provided for the appointment of a Commission to investigate the condition of backward classes
# Article 46of the Constitution, a Directive Principle of State Policy urges the government to protect the educational and economic interests of the weaker sections of the society.


i) Kalekar and Mandal committee
The first backward class committee was appointed under Article 340(1) in 1953 under the Chairmanship ofKaka Kaheb Kalekar. The commission was set up to determine the criteria to identify people as socially and educationally backward classes, and to recommend steps to improve their conditions. In its report, he commission interpreted the term “socially and educationally backward classes as relating primarily to social hierarchy based on caste”
Second backward committee was appointed in 1978 underBP Mandalto review the state of backward classes. This report recommended 27.5% reservation in government jobs for OBCs stirring a hornet’s nest in North Indian Politics, will ramifications that continue to be felt today.

The Problem
Currently, the Supreme Court has put an upper limit of 50% on quota limit. The 10 per cent reservation for economically weaker upper castes will be over and above the existing 50 per cent reservation. Any reservation beyond the 50% limit would have required the government to get a constitutional amendment passed in Parliament. Hence, articles 15 and 16 of the Constitution are amended for implementation of the decision.

i) Economic criteria cannot be the sole basis for reservation

Indira Sahney Case

A nine judge bench in the case ofIndira Sahney v. Union of India[4]had struck down a provision that embarked for 10% reservation for the economic reservation for the economically backward on the ground that economic criteria cannot be the sole basis to determine backwardness. Any attempt to amend the constitution to extend what is limited to the socially and educationally backward to those economically weak is problematic.

The majority holds in para 799:
“It follows from the discussion under Question No. 3 that a backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion. This is the view uniformly taken by this Court and we respectfully agree with the same.”

Such an Amendment is hence, vulnerable and ought to be struck down as it merely negates a binding judgment.
ii) The economic reservation cannot be limited to the general categories
Continually, this Hon’ble Court has upheld the quality code as one of the primary basic features of the Constitution. In some landmark cases like Maneka Gandhiv. Union of India[5]; I.R.Coelho v. State of Tamil Nadu[6] and ShayaraBano and others v. Union of India[7], the value of equality has been repeatedly emphasized to ensure that equals are not treated unequally. By way of the present amendments, the exclusion of the OBCs and theSCs/STs from the scope of the economic reservation essentially implies that only those who are poor from the general categories would avail the benefits of the quotas. Taken together with the fact that the high creamy layer limit of Rs.8 lakh per annum ensures that the elite in the OBCs and SCs/STs capture the reservation benefits repeatedly, the poor sections of these categories remain completely deprived.

ii) The 50% ceiling limit cannot be breached
The Hon’ble Court, speaking through the Constitution Bench in the case of M.Nagaraj Vs. Union of India &Ors.[8] upheld the Constitutional validity of Article 16(4A) and the proviso to Article 335 in the following words:
“We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”
In Para 104, the Court specifically states that “As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate.”

Thus,the50%ceilinglimitofreservationshasbeenengraftedasapart of the basic structure of the Constitution’s equality code. This has in fact been reiterated by the Constitution Bench recently in Jarnail Singhv. Lachhmi Narain Gupta[9], which declined to refer the correctness of the dicta laid down in Nagaraj to a larger bench.

iii) Imposing reservations on unaided institutions is manifestly arbitrary
Both the Constitution Bench judgements in T.M.A. Pai Foundation and Ors. V. State of Karnataka[10] and P.A. Inamdar v. State of Maharashtra[11] make it clear that the State’s reservation policy cannot be imposed on unaided educational institutions, and as they are not receiving any aid from the State, they can have their own admissions provided they are fair, transparent, non-exploitative and based on merit.

While the impugned amendment attempts to overcome the applicability of Articles 19(1)(g) and 29(2), it remains completely silent on Article 14, which right protects the citizens from manifestly arbitrary State action. The majority in Shayara Bano has specifically held manifest arbitrariness as a facet of Article 14. Hence, the effective nationalization of unaided institutions to the extent of economic reservation is violative of Article 14 of the Constitution on plain terms and also of the basic features of autonomy and equity.

On these and other grounds, including the undefined “economically weaker sections” as well as the ambiguous “State” that would define it, the impugned Amendment ought to be quashed with the same being stayed pending the disposal of the present Petition.

Positive Aspects
In light of this amendment. The economically weaker sections of the society will be getting in jobs and higher education. From a third person perspective, reservation will no doubt benefit the needy but critically it also violates certain norms set by the apex court. As of now, two PILs have been filed in the Apex Court Regarding the violation of doctrine of basic structure of the constitution with this amendment. The first hearing was on 28/03/19, 2ndon 8/04/19 and the date is now shifted for final hearing on 2/05/19.[12]It can be hoped that the apex judiciary comes up with a rationale which best fits the current needs of the society. Following are the available alternatives:

1. Spreading the benefits of reservations as widely as possible: Within the existing framework and ensure that individuals use their reserved category status onlyONCEin their lifetime. This would require that anyone using reservations to obtain a benefit such as college admission must register his/her Aadhar Number and he/she would be ineligible to use reservations for another benefit for instance job in future.
2. Focusing on basic skills: It is important to recognize that future economic growth in India is going to come from the private sector and entrepreneurship. In order to ensure that all Indians regardless of caste, class and religion are able to partake in economic growth, we must focus on basic skills. We need to focus on reducing inequalities where they first emerge within primary schools.
3. Bringing reforms and modifications: Reservation system was developed in a different era that we have not had the time or the inclination to think about its success or to examine possible modifications. The system thus deserves serious re-evaluation.

Conclusion And Remedies
The system of reservation had always initiated a conflict between the reserved and the unreserved categories of the citizens. The former supports the system while latter criticizes it with logics of multiple amplitudes. Observing from a neutral perspective it can be stated that although reservation is needed for the country but at the same time there is a need to create a system which supports affirmative action more than appeasement politics. The purpose should connect the needy to the mainstream. India is a rapidly growing economy; any negative aspect of reservation should not serve as a hurdle for its development. As it is said that the law is the public conscience, the faith of the people is upon the apex judiciary which will come up with the best possible outcome for this conflict.

End-Notes
[1] PTI,Chandra Babu Naidu hints at Providing Reservation to Upper Caste Poor, THE ECONOMIC TIMES,(April 12, 20019,03.00 AM)https://www.google.com/amp/s/m.economictimes.com/news/politics-and-nation/chandrababu-naidu-hints-at-providing-reservation-to-upper-caste-poor/amp_articleshow/52465703.cms
[2] First Post,LJP’s Paswan demand reservation for poor, FIRST POST, (April 12, 20019,03.00 AM)https://www.google.com/amp/s/www.firstpost.com/politics/ljps-ram-vilas-paswan-jdus-jai-singh-demand-reservation-for-poor-people-from-upper-caste-communities-4436055.html/amp
[3] Outlook,Athalwe Advocates 75% reservation, OUTLOOK, (April 12, 20019,03.00 AM)https://www.google.com/amp/s/www.outlookindia.com/website/amp/union-minister-ramdas-athawale-advocates-75-reservation-in-government-jobs/318223
[4] Indira Sahney v. Union of India, (1992)Supp.3SCC217 (INdia)
[5] ManekaGandhi. Union of India, (1978)1SCC248 (INDIA)
[6] I.R.Coelho v. State of Tamil Nadu, (2007)2SCC1(INDIA)
[7] ShayaraBano and others v. Union of India, (2017)9SCC1(INDIA)
[8] M.Nagaraj Vs. Union of India &Ors. , (2006) 8 SCC 212, (INDIA)
[9] JarnailSinghv. Lachhmi Narain Gupta (2018) 10 SCC 396(INDIA)
[10] M.A.Pai Foundation and Ors. V. State of Karnataka, (2002) 8 SCC 481(INDIA)
[11] P.A.Inamdar v. State of Maharashtra, (2005) 6 SCC 537(INDIA)
[12] Kashmir Times, SC TO HEAR PLEA ON 10 PC QUOTA ISSUE TO CONSTITUTION BENCH ON MAR 28,(April 12, 20019,03.00 AM)http://www.kashmirtimes.com/newsdet.aspx?q=88637

Written by: Aman Kumar Gupta & co-authored by Damini Pandey, the authors are students of 3rd Year B.A.LL.B, Law College Dehradun Faculty of Uttaranchal University

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