Why in news?
The Union Cabinet has cleared a Bill seeking to provide 10% reservation to the economically backward among the ‘general category’.
What does the Bill propose?
- It seeks to provide 10% reservation in government higher education institutions and government jobs to the economically weaker sections among the upper castes.
- This refers to non-Dalits, non-Other Backward Classes (OBCs) and non-tribals - essentially, the upper castes or so-called ‘forwards’.
- It will apply for general category individuals -
- whose family together earn less than Rs.8 lakh per annum
- who have less than 5 acres of agricultural land
- It also excludes those individuals whose families own or possess -
- a residential flat of area 1,000 sq ft or larger
- a residential plot of area 100 yards or more in notified municipalities
- a residential plot of area 200 yards or more in areas other than notified municipalities.
- The proposals in the Bill, to become a reality, will need an amendment of -
- Articles 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution
- Article 16 (equality of opportunity in matters of public employment) of the Constitution
- The amendment will have to be ratified in both Lok Sabha and Rajya Sabha, by at least two thirds of members present and voting.
- It also has to be passed by the legislatures of not less than half the states.
How does the Bill stand in conflict with current provisions?
- Purpose of reservation - Articles 330-342 under Part 16 of the Constitution outline special provisions for certain classes.
- The Constitution identifies only four such classes - SCs, STs, Backward Classes and Anglo Indians.
- The Constitutional promise is explicitly for 'social exclusion and discrimination'.
- Notably, the “socially and educationally backward classes” was the target group in quotas for OBCs.
- So the quota for the poor among the upper castes has been seen essentially as a poverty alleviation move dressed up as reservation.
- Sacrifice of Merit - The SC has held that in general conditions the special provision should be less than 50% (M R Balaji And Others vs State Of Mysore (1962)).
- It has reiterated this in its Mandal judgment (Indra Sawhney, Etc vs Union Of India And Others (1992)) and on several other occasions.
- There is at present 49.5% quota - 15% for SCs, 7.5% for STs and 27% for 'Socially and Educationally Backward' Classes, including widows and orphans of any caste.
- So the 10% quota above this would make it a total 59% (49%+10%) quota.
- This would leave other candidates with just 41% government jobs or seats, amounting to “sacrifice of merit” and violation of Article 14.
- Definition of backward class - 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 was clearly stated by a nine-judge Constitution Bench of the Supreme Court in the Indira Sawhney case of 1992.
- Basic Structure - If the government proposes to bring a constitutional amendment to include the 10% quota, Kesavananda Bharati judgment may stand in the way, as it violates Article 14.
- The judgment held that constitutional amendments which offended the basic structure of the Constitution would be ultra vires.
- Precedence - This proposed Bill finds an echo in an ordinance promulgated in Gujarat in 2016, which provided 10% quota to upper castes there.
- But the Gujarat High Court in the Dayaram Khemkaran Verma Vs State of Gujarat quashed the ordinance in August 2016.
- Poverty Criteria - There have been disagreements as to the proportion of population living in poverty in the country.
- The Arjun Sengupta Committee (April 2009) estimated that 77% of India’s population were surviving on less than Rs 20 per day.
- In November 2009, Suresh Tendulkar Committee estimated India’s combined rural-urban poverty headcount ratio in 2004-05 at 37.2%
- Given this, the Rs 8 lakh per annum limit in the Bill clashes with the poverty line concepts and seems arbitrarily set up to cover a wider proportion.
What were the earlier committee recommendations?
- The first Backward Classes Commission was appointed under Article 340(1) in 1953 under the Chairmanship of Kaka Saheb Kalelkar.
- It was to determine the criteria to identify people as socially and educationally Backward Classes.
- It was also tasked to recommend steps to ameliorate their condition.
- The Commission interpreted 'socially and educationally backward classes' as relating primarily to social hierarchy based on caste.
- The second Backward Classes Commission was appointed in 1978 under B P Mandal to review the state of the Backward Classes.
- It submitted its report in 1980, but no measure was taken on it until the V P Singh government in 1990.
- It recommended 27.5% reservations in government jobs for OBCs.
What are the other state proposals?
- In 2008, Kerala decided to make reservations for economically backward among the forwards.
- It proposed to reserve 10% seats in graduation and PG courses in government colleges and 7.5% seats in universities.
- An appeal is pending in the Supreme Court in this regard.
- In 2011, UP CM wrote to the central government asking for reservation for upper-caste poor.
- In 2008 and 2015, the Rajasthan Assembly passed Bills to provide a 14% quota to the economically backward classes (EBCs) among the forward castes.
Source: The Hindu, The Indian Express
