A Critical Study on 124th Constitutional Amendment

The author in this article discusses the 124th Constitutional amendment that dissolves the previous restrictions of caste and religion that gives authority to the policy that satisfies a larger segment of beneficiaries.

Introduction

A welfare action always seems idealist, but the devil lies in the contents. Parliament’s decision to approve the 124th Constitutional amendment treads slightly on this situation. On the one hand, Parliament has made economic disadvantage as a ground for getting benefits of the reservation into the Constitution; on the other hand, the sword of legal propriety hangs on the amendment.[1] Briefly put, the 124th Amendment Bill seeks to give reservation in the matters of education (Article 15) and public employment (Article 16) to economically weaker sections of the society.

Both the Houses (Lok Sabha and Rajya Sabha) passed the bill providing a 10% reservation to economically backward sections of society in jobs and educational institutions. The President has given assent to the same.

What does this bill provide for the poor?

Amendment carves up an additional quota for poor not under SC/ST, OBC categories. 10% seats will be reserved for poor in higher education institutions, including private aided or unaided institutions. 10% of state jobs have been reserved for poor in the initial appointments. This reservation for economically weaker section of society will be an addition to the existing 50% reservation. To ensure it stands the legal framework, there was a need for amendments in Articles 15 and 16 of Constitution. New clause 6 is inserted in Article 15 and 16.

Article 15 and 16

15- It is known as Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth which mandates all such discriminations as illegal.

16- It assures Equality of opportunity in matters of public employment for every citizen of India.

How the Government will notify who is poor?

The term Economically weaker section of society will be defined by the state from time to time by family income and other indicators of economic disadvantage.

People covered under new 10% quota:

  1. Annual household income below Rs. 8 lakh
  2. Agriculture land below 5 acres
  3. Residential house below 1000 sqft
  4. Residential plot below 100 yards in notified municipality
  5. Residential plot below 200 yards in non-notified municipality area[2]

Note: The family’s total income below 8 lakh will be considered Economically Backward Sections. The income will cover all sources of income such as agriculture, salary, business and profession.

Government’s Reasoning for Bringing in the Legislation

  1. The government feels that poor citizens outside the SC, ST, and OBC categories are unable to compete with those who are better off.
  2. Reservation benefits are in line with the Directive Principles of State policy which calls for extending help to the weaker sections that should be provided.
  3. To provide jobs to the unemployed weaker sections to increase the employment rate for overall growth and development of the nation.

Criticism

The comments against the 124th Amendment were it was rushed through in 48 hours without inspection by a parliamentary committee and without public debate. On one side, the constitution amendment Bill to reserve one-third of the seats in the Lok Sabha and state legislatures for women is grieving since 2008.

If a reservation for economically weaker sections was not important during the last four years (while the triple talaq Bill was), why has it become highly prioritized issue barely 60 days before the declaration of the Lok Sabha elections?

A petition has been filed in the Supreme Court against the reservation by the Youth For Equality Organisation and Kaushal Kant Mishra. The petition is filed to quash the bill because they say that the economic criterion cannot be the sole and only basis for reservation.

The petition states that the bill ignores and violates the basic feature of the Constitution as reservation on economic grounds cannot be restricted to general categories and the 50% ceiling limit cannot be breached.

 The petition said that in the 1992 decision in Indra Sawhney v. Union of India[3], popularly known as the Mandal Commission case, a Constitution Bench of the court had “specifically stated that the economic criteria cannot be the sole basis for reservation under the Constitution.

“…such an Amendment is hence, vulnerable and ought to be struck down as it merely negates a binding judgement,” it said.

The NGO put forward in their contentions that the policy was also violative of the equality principle enshrined in Article 14 of the Constitution. “By way of the current amendments, the elimination of the OBCs and the SCs/STs from the area of the economic reservation primarily implies that only those who are poor from the general categories would get the benefits of the quotas. Taken together with the fact that the high creamy layer limit of Rs 8 lakh per annum assures that the elite in the OBCs and SCs/STs capture the reservation benefits repeatedly, the poor sections of these class remain completely deprived,” the petition said.[4]

Conclusion

 In present societies, economic exhaust impairs reach to educational opportunities, which in turn ruins the ability to realize human potential. Therefore, it becomes the state’s responsibility, more so for a socialist-democratic welfare state, that reach to educational institutions and public employment is opened up. The Economically Weaker Section (EWS) farmed out by the 124th Constitutional Amendment, dissolves the previous restrictions of caste and religion that gives authority to the policy that satisfies a larger segment of beneficiaries. However, the Bill has the potential to run collision with constitutional propriety.

Also read 103RD Constitution Amendment Act, 2019


[1] Shreenath A. Khemka, The state’s social policy on economic disadvantage is simply inconsistent, The Indian Express, https://indianexpress.com/article/opinion/columns/124th-constitutional-amendment-bill-reservation-5534333/

[2] Sangeeta Nair, Constitution (103rd Amendment) Act, 2019: 10% reservation for economically weak in general category comes into force, Jagran Josh, https://www.jagranjosh.com/current-affairs/union-cabinet-approves-10-per-cent-reservation-for-economically-weak-among-upper-caste-1546925703-1

[3] AIR 1993 SC 477

[4] NGO moves Supreme Court against 10% quota Bill, The Indian Express,