Parliament clears the bill for 10% reservation for the economically weaker upper class

Reservation during British rule

There are multiple accounts of demands for reservation for various economically and socially backward (or even forward) classes across the country during British Raj. However, the first implementation of affirmative action along the lines of reservation happened in the first couple of years of the 20th century in the princely state of Kolhapur by Shahuji Maharaj where a quota of 50% for backward classes in state services was reserved.

After the First World War concluded, the British Government gave in to the demand of self-governance (through legislative and provincial assemblies) asked by Indians for decades and the Montague-Chelmsford Reforms reflected the same, which resulted in the Government of India Act, 1919. This Act enabled the making of laws for the upliftment of backward/depressed classes in the society. The Simon commission was set up to identify these depressed classes and suggest reforms for their upliftment. The question of a separate electorate was introduced by various leaders but was struck down by the prominent leaders who thought it would lead to a bigger divide.

After the Round Table Conference of 1932 the then British Prime Minister Ramsay McDonald proposed exclusive reservation in the legislatures for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans and Dalits which was termed as Communal Award. Only the individuals belonging to the said communities could vote for the respective seats. B.R. Ambedkar, the leader of the depressed classes favoured such reservation, but Mahatma Gandhi went on an indefinite fast against the same. Ambedkar and Gandhi came to a resolution through the Poona Pact in September 1932 which provided for a single Hindu electorate with a reservation for Dalits in both central and provincial assemblies and separate electorate for others. The Poona Pact was made effective through the Government of India Act of 1935, which interestingly was the first law which mentioned the term ‘Scheduled Castes’. With Congress launching the Quit India Movement in 1942, the British imprisoned most of the prominent leaders. During that time, to execute the provisions for the depressed classes, Ambedkar joined the Viceroy’s Executive Council as a Minister. He not only demanded the implementation of reservation in the legislative assemblies, but he also demanded the same for educational institutes and public employment. When the Constituent Assembly was established in 1946 to form the Constitution of India, Ambedkar’s demands made way into the draft Constitution. He was also the head of the Drafting Committee. Reservation formed part of a major motion during the Constituent Assembly Debates, where such reservation policy was adopted for a time period of 10 years (read this article to know more about the debates LINK). This period of 10 years was extended every few years and is still in force until 2060.

Post-independence
Reservation finds its way in the constitution through many Articles, however, the main enabling Articles are Article 15 and Article 16. Clause (4) of Article 15 enables for the making of special provisions for the advancement of socially and educationally backward classes of citizens including Scheduled Castes and Scheduled Tribes. Clause (5) enables reservation for the said classes in educational institutions. Article 16 (4) enables reservation for the said classes in Government employment. The first major case regarding reservation in Indian judiciary was the case of State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, where the court held reservation to be in violation of Article 15 which prohibits discrimination any citizen on ground of any religion, race, caste, sex, place of birth because of which the First Amendment to the constitution was made to insert Clause (4) to Article 15 as discussed above. In the case of M.R. Balaji v. State of Mysore, AIR 1963 S.C. 643 the Supreme Court limited the special provision of reservation to be not more than 50 per cent.

In 1979, the Backward Classes Commission led by B.P. Mandal, which is also known as the Mandal Commission, submitted its report. It submitted that cast should be the basis of registration and there should be a reservation of 27 per cent for Other Backward Classes (OBCs) in Centre and State Services, Public Undertakings and education institutions. This was not implemented for government jobs until 1993. In the same year the Supreme Court in the case of Indira Sawhney v. Union of India, AIR 1993 S.C. 477 held that the 27 per cent reservation of OBCs would not include the ‘creamy layer’ i.e. individuals with family income above 8 lakh p.a (as of 2017). It also held that reservation is confined to initial appointments and not in promotions and total reservation not to exceed 50 per cent.^[1] In the same case the Court held invalid the Congress Government’s decision to grant 10 per cent reservation to economically backward classes in the General category. In the year 1995, through the 77th Constitutional Amendment, reservation in promotion to SCs and STs was added. Further amendments were made to the constitution to include consequential senority, differentia of vacant seats, and concessions to SCs and STs in promotion. These amendments were challanged in the case of M. Nagaraj & Others vs. Union of India & Others (2006) 8 SCC 212, but were held to be valid if the state could show compelling reason of backwardness. 

Latest Amendment

On January 7, 2019, the BJP-led NDA government decided to amend the Constitution to pass the The Constitution (124th Amendment) Bill 2019 which amends Article 16 of the constitution to provide 10 per cent reservation for the general category Economically Weaker Section in direct recruitment for government jobs and admission to higher educational institutions. The 10 per cent reservation will be in addition to the existing cap of 49.5% reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking the total reservation to approximately 60 per cent.

The proposed Article 15(6) enables State to make special provisions for advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservation can be made in any educational institution, including private institutions, whether aided or unaided, except minority educational institutions covered under Article 30(1).

With regards to reservations related to jobs, the proposed Article 16(6) will enable State to make provision for reservation in appointments, in addition to the existing reservations, subject to a maximum of ten per cent.

The move will require amending Article 16 of the Constitution to provide for reservation for economically weaker sections, as the constitution currently provides reservation only to the Scheduled Castes, Scheduled Tribes and the educationally backward tribes. The bill states that – “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.” Hence, the exact criteria to determine the economically weaker class hasn’t been laid out clearly yet.

The bill has been cleared both by the lower house and upper house, but we will have to wait and see if this law would pass the judicial scrutiny.

Takeaways:

1. On the legal front, the government is bracing for a demanding challenge. Earlier, a nine-judge bench decision of the SC in the Indra Sawhney & Others. v. Union Of India And Others, AIR 1993 SC 477 had capped the upper limit of reservation at 50%. The proposed amendments seeks to get over this limit. The Indira Sawhney case had further held that social backwardness cannot be determined only with reference to economic criterion and in August 2016, the Gujarat High Court had quashed an ordinance brought by the State Government to provide 10% quota for economically weaker sections in forward castes. The appeal against that judgment is pending in the Supreme Court.

2. The amendment may be contrary to the verdict delivered by a seven-judge Bench of the Supreme Court in PA Inamdar v. State of Maharashtra, Appeal (civil)  5041 of 2005. Specifically, the fact that the centre wants to bring unaided private institutions under the purview of the amendment, could be problematic as the judgment had held that the government cannot impose reservations in private, unaided educational institutions. It states that, “The State cannot insist on private educational institutions which receive no aid from the State to implement State’s policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.”

3. At present, the reservations under various quotas account for a total of 49.5%, with 15% for Scheduled Castes, 7.5% for Scheduled Tribes and 27% quotas for Other Backward Classes respectively.

^[1] “Decision of the Supreme Court in Indra Sawhney vs. Union of India, AIR 1993 S.C. 477 (Mandal Commission Report).” World’s Largest Collection of Essays! Published by Experts, 21 Aug. 2015, www.shareyouressays.com/knowledge/decision-of-the-supreme-court-in-indra-sawhney-vs-union-of-india-air-1993-s-c-477-mandal-commission-report/115325.