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ANALYSIS OF ONE HUNDRED AND THIRD AMENDMENT OF CONSTITUTION OF INDIA.



The Constitution one hundred and third amendment Act of 2019,brought a major change to the reservation criteria which was implemented long years back. As per this amendment act of 2019, a new category of people called 'EWS ' Economically weaker section was added for reservation ,which was much different from those categories of people ,who are already reserved such as scheduled caste( SC) ,scheduled tribe (ST) and non – creamy layer of (OBC, )other backward class . Who received reservation benefit because they are ill treated and discriminated for the reason that they are born as backward classes .


Apart from previous reservation for other categories, this amendment act provided 10% of reservation. And it was provided for those who are seeking admissions in private as well as government educational institution under the control Of Central government. And also for people working in government jobs. Another important matter regarding this amendment is that by this amendment two additional clauses were added to Article 15 and 16 of Indian Constitution.

Clause (2) of amendment act says that the new clause was clause 6 , which was added to article 15 of Indian Constitution. According to clause 6 of Article 15 of amendment act, this section allows, the state to make any special provision regarding reservation in admission to aided as well as unaided educational Institutions .

Clause (3)of amendment Act is explained as follows; a new clause was added to Article 16 of Indian Constitution. The new clause was , clause 6 of article 16.,This clause allows reservation in appointments or posts under the state government.

The major issue to be considered in this amendment is that, by this amendment total Percentage of reservation has reached 60%.In other words we can say that reservation provided for EWS, economically weaker section will be more than the reservation which was already existing such as ;15%resevation to SC, 7.50 percent reservation for ST and, 27 percent of reservation for non creamy layer of OBC.

Under this amendment act, People will be eligible for reservation and will be categorized as economically weaker section , only if they come under the criteria fixed by ministry of social justice and empowerment. So, the Indian government, through its memorandum published on 17th January of 2019,has explained the criteria for determining EWS. Those people whose family have a gross annual income less than Rs, 8 lakh, or agricultural land less than 5 acres, or residential plot less than 1,000sq.ft, or residential plots less than 1000 sq. yards in notified municipalities or residential plots less than 200 sq. Yards in areas other than notified municipalities , will be qualified to get the advantages of reservation from this amendment Act.


HISTORY OF RESERVATION IN INDIA

While discussing latest scheme of reservation in our country we have trace back to history of reservation in India. Reservation can be considered as an act from the part of our government to represents historically weaker and disadvantaged people of our country, in order to bring them to the front line, and to provide them with all kinds of benefits and opportunities which is enjoyed by rich and affluent class of people .

Our country is one which has existed with a strong caste system. As a result of that ,entire society has been divided into number of classes . People of one class, being poor might be stigmatised and they will be subject to discrimination. On th other hand, People of another class being more stronger, socially and educationally advanced and have huge share of wealth and power of our country.


People of lower class has to suffer from discrimination and lack of other facilities such as education and job opportunities only for the reason that they are born to that particular class. Those upper class people are taking all advantages because of their social Privilege and connections they are enjoying from head start ,long back. This is the sole and prime reason why our country has opted for reservation in favour of disadvantaged class and to bring them into front line of society.


RESERVATION AFTER INDEPENDENCE AND, SITUATIONS SIMILAR TO 103rd AMENDMENT ACT.

After our country become independent and Constitution came to force in 1950,our country has implemented various provisions for reservation for SC and ST , at the same time number of states has also implemented reservation for other backward classes( OBC). Later, central government has accepted the report of second backward classes commission known as the Mandal commission report headed by b. P Mandal which demanded for reservation of OBC.This is a major marking point in history whereby, centre has implemented reservation for other backward classes by 27%.which made it possible to limit the to 50% ceiling limit on reservation.

Following the reservation provided for other backward classes many people who are not reserved under any of the already existing reserved categories, started disturbance and agitation. This lead to a situations similar to present amendment Act of 2019,that is the 103rd amendment act. Whereby the total amount of reservation has reached to 60%.

Firstly, Indian government has passed an executive order in the year of 1991,this Order authorised 10 percent reservation for economically backward sections of people in civil posts Under this scheme reservation was guaranteed only for those people who were not reserved under any of the already provided reservation. The result of this executive order is that total reservation reached 60% ,with an addition of 10% to already existing 50%of reservation.

Secondly, Government of Gujarat in the year of 2016 passed an ordinance. This ordinance was for the purpose providing reservation for those category of people who have not so far reserved. This reservation is for economically weaker section o f society for securing them with seats and posts in higher education and public employment. The reservation put forward by this ordinance was 10 percentage. Which together with already existing reservation makes up reservation to 60 percentage. So this was also a situation similar, to the 103rd amendment Act.

In short, we can say that whenever supreme Court gives decision on any matter related to reservation. The parliament is, always responding by way of amending the constitution .The 103rd amendment Act is also a similar tactics from the part of parliament, to overcome supreme Court’s decision. That is in order to over come supreme Court’s decision on two matters;

1)50% ceiling on reservation.

2) Economic backwardness – A yardstick for reservation.

Parliament has introduced 103rd amendment Act.


50 PER CENT CEILING RULE ON RESERVATION

50 percent ceiling rule on reservation refers to the condition that, out of total number of seats or posts available for an admission or employment, reservation should be provided only for 50 percentage of seats. For, example if 100 seats or posts are available for an employment or for an admission, then 50 seats should be reserved and rest of 50 seats should be unreserved and that seats to be secured by applicant only on merit basis.

The purpose of limiting reservation to 50 percent ceiling is to ensure fairness and reasonableness in any posts or seats. And in other ways we can say that equality of opportunities should be provided for those people who get benefit of reservation on one hand and those who have to get a seat or post in job or admission through his or her merit and hard work. If this 50%ceiling rule is broken , then it will surely result in inequality of opportunities and unreasonableness. It would also result in reverse discrimination, a situation in which, what was done to overcome discrimination result in discrimination. Then the unreserved categories have to suffer, as their chance of winning a seat or job in admission or employment respectively .


This concept has been upheld in Ambedkar’s cautionary principle. In his words, for example “Reservations were made for a community, the total of which is something like 70% of the total post under the state and only 30% is retained as unreserved, The effect is that ,there will be no equality of opportunity”.

In the case of Indira sawhney v union of India supreme Court upheld, importance of maintaining 50 percent ceiling rule by holding that “just as every power must be exercised reasonably and fairly, the power conferred by Article 16(4) should also be exercised in fair manner and within reasonable limits. So, reservation should not be more than 50 %of appointments Or posts.

Supreme Court also upheld that, even though we have to make sure that only 5O seats are reserved, it is also necessary to consider certain remarkable situations in which more than 50 seats have to be provided for reservation. These are those situations which has to be considered only for the reason that there are people who are far away from mainstream of society, who needs special care and treatment to uplift them, so some kind of relaxation can be provided. This extraordinary situation is the loophole in 50%ceiling rule.

The 103rd Amendment act which introduced a new category who are eligible for reservation called economically weaker section or EWS and provided them with 10 %reservation . Which makes total reservation to 60% shows the application of that loophole in reservation.


ECONOMIC BACKWARDNESS -A YARDSTICK FOR RESERVATION

103rd amendment Act which provided reservation for economically weaker section considers economic backwardness as the only criteria under which people are reserved for benefits of reservation. , The reason is that, basic idea behind reservation is to enable backward classes to achieve those opportunity which is possessed by few forward classes of people. So, a reservation can only serve the purpose of removing the social or educational gap exist between forward and backward classes .The, economic condition of a person showing whether one is rich or poor cannot be a condition for getting a job or an opportunity. Poverty alleviation programs cannot be equated with reservation.

Another reason for economic backwardness cannot be the criteria because economic backwardness is always subject to fluctuations, that is a person can move from a poor background to a rich background if his job changes, his education changes or his living standard changes by any other manner. There is also a chance that economic backwardness being a criteria which can be manipulated , by using fake document. In other words, we can say that annual income is something which determine whether one is rich or poor cannot be judged with accuracy.


BASIC STRUCTURE DOCTRINE AND 103rdAMENDMENT ACT.

Another challenge which might be raised against the 103 rd amendment Act is that whether it violates basis structure doctrine of Indian Constitution.Constitutional amendments can be struck down, when those amendment violates basic structure of our Constitution. The 103rd Amendment which introduces 10 percentage reservation for economically weaker section is not violate of basic structure on Indian Constitution because, Basic structure is not something which can be bring down into number of values or principles which is specific in any provision of Indian Constitution. It is something which can be interpreted by parliament while interpreting articles related to equality . So, the parliament has interpreted that social justice aspect of article 16 deserve much importance than equality of opportunity.


CONCLUSION AND SUGGESTION

The 103rd Amendment act , even though it was implemented to provide benefits to many people. It has many disadvantages like anything else.

Firstly; considering the new category of people who was introduced and has provided reservation benefits under this amendment act, is not a group of people who were historically oppressed , discriminated and unrepresented on the basis of their caste, class, etc. like the rest of people under reservation benefits like, SC, ST, and OBC. So, this surely results in undermining the very purpose of reservation, that is, upbringing unrepresented people in our society.

Secondly; Considering the eligibility criteria for EWS reservation, Majority of unreserved people in our country will be eligible for reservation, that is, Approximately, 85 % of families in our country hold less than 5 acres of land and almost entire people except a select few, lives in low standards. In short we can say that, this reservation covers almost all Indian's who were now not a part of any other reservation benefits based on caste. So10% Reservation will be of no use for 96% of people eligible for reservation.

Thirdly, An important flaw that we can find in this amendment is that it is passed in an ultimate urgency. Without much debate. When a motion was put forward by DMK a political party to refer the bill to a select parliamentary committee, it was rejected in Rajya Sabha.

Fourthly, The103rd amendment act when, exceeds the ceiling limit of 50%of reservation. It breaches equality between reserved category includingEWS, OBC, SC, ST and unreserved people. So, the reservation is in the proportion of 60%to 40% and will undermine equality of opportunity of job applicants and students.



REFERENCE

  1. https://www.google.com/amp/s/www.businessinsider.in/what-is-article-15-of-the-indian-constitution/amp_articleshow/68351727.cms

  2. https://www.thehinducentre.com/publications/policy-watch/article26455910.ece/BINARY/Policy%20Watch%20No.9.pdf

  3. https://thedailyguardian.com/constitutional-validity-of-quotas-for-economically-weaker-section/

  4. https://blog.ipleaders.in/constitutional-validity-103rd-constitutional-amendment-act-2019/amp/

  5. https://indianexpress.com/article/opinion/columns/economically-weaker-section-reservation-scheduled-castes-tribes-obc-social-justice-5734293/lite/

  6. https://www-livemint-com.cdn.ampproject.org/v/s/www.livemint.com/opinion/online-views/opinion-why-amending-an-inconvenient-constitution-is-a-political-move/amp-1548087321056.html?amp_js_v=a6&amp_gsa=1&usqp=mq331AQZKAFQArABIPIBDzAxMjAxMDIyMTgxODAwMA%3D%3D#ampshare=https%3A%2F%2Fwww.livemint.com%2Fopinion%2Fonline-views%2Fopinion-why-amending-an-inconvenient-constitution-is-a-political-move-1548087321056.html


Submitted by: Shyma mol. H

3rd year BBA LLB student

School of Indian Legal Thought,

Mahatma Gandhi University, kottayam, Kerala.


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