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103rd Constitutional Amendment Act

  • Category
    Polity & Governance
  • Published
    17th Jan, 2019
  • The 103rd Constitutional Amendment Act to provide 10 per cent reservation in government jobs and education to economically backward section in the general category has come into force
  • The HRD ministry announced that it will be implemented from the 2019 academic session and increase around 25 percent seats in higher educational institutions and universities across the country.

Issue

CONTEXT:

  • The 103rd Constitutional Amendment Act to provide 10 per cent reservation in government jobs and education to economically backward section in the general category has come into force
  • The HRD ministry announced that it will be implemented from the 2019 academic session and increase around 25 percent seats in higher educational institutions and universities across the country.

BACKGROUND:

  • Nearly three decades after the Mandal Commission recommendations, Parliament approved the Constitution (124th Amendment) Bill on providing 10 per cent reservation in jobs and education for the economically weaker sections (EWS) of the general category.
  • In the Indra Sawhney case, a nine-judge Bench of the Supreme Court clearly said that it is unconstitutional.

The long-standing demand for such a quota:

  • The past few years have seen influential castes like the Marathas, Rajputs and Jats seeking reservation benefits.
  • Though governments in states have tried to pass laws to meet such demands in the past, they are often struck down by the courts on the grounds of the famous Indra Sawhney case, where the Supreme Court had set a cap of 50% on quotas.
  • But in November 2018, the government in Maharashtra announced a 16% quota to the politically influential Marathas as a "social and educationally backward class".

ABOUT

Constitutional provisions of the Act:

  • The Act amends Articles 15 and 16 of the Constitution, by adding a clause which allows states to make "special provision for the advancement of any EWS of citizens".
  • These "special provisions" would relate to "their admission to educational institutions, including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions".
  • It also said the reservation would be "in addition to the existing reservations and subject to a maximum of 10 per cent of the total seats in each category".
  • According to the objects of the bill, "The directive principles of state policy contained in Article 46 of the Constitution enjoins that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."

Who will be eligible for quota:

  • To those who are not covered in existing quotas
  • Family income below ?8 lakhs a year or agricultural land below 5 acres.
  • Those who have a house above 1,000 square feet or a 100-yard plot.
  • In case of a residential plot in a non-notified municipality area, the residential plot should be below 200 yards.

Act and future judicial scrutiny:

  • If the Supreme Court indeed agrees to lift the 50% cap, all States of India can extend the quantum of reservation and “upper castes” will stand to lose in State services.
  • If the Supreme Court rejects the idea of breaching the 50% cap, EWS quotas can be provided only by eating into the SC, ST and OBC quota pie, which will have social and political implications.

Analysis

Arguments in favour of the act:

  • There will be more seats in higher education institutions like IITs, IIMs, NITs etc. under the new category from the next academic session.
  • The law updates the reservation status with the changing scenario where privileges are also based on economic standards.
  • Identity politics of religion and caste is not used in reservation which had been the case till now as the new law of 10 per cent quota in government jobs and education for economically weaker sections is irrespective of religion and caste.

Issues with the Parliamentary proceeding related to amendment of law:

  • anti-defection law that restrains MPs from voting according to their conscience,
  • lack of recorded voting as a norm which reduces the accountability of the MP as voters don’t know which way they voted on each issue,
  • party affiliation of the Speaker making her dependent on the party leadership for re-election prospects,
  • frequent bypassing of committees as just 25% of Bills have been referred to committees in this Lok Sabha,
  • insufficient time and research support to examine Bills

Arguments against the Act:

  • The Bill was not circulated ahead of being introduced, it was not examined by a committee, there was hardly any time between its introduction and final discussion.
  • It will be difficult to increase the number of seats by a fourth for many institutions with hostel facilities. Even many government institutes like the new Indian Institute of Managements are operating on rented buildings due to lack of adequate infrastructure. It takes at least nine months to set up new buildings. Further additional teaching and associate stuff will have to be arranged.
  • Various private institutions have already expressed concerns that admission of poor quality students under the quota may impact the system of education.
  • Banking on the Supreme Court rulings on reservations in the past, private aided- and non-aided higher education institutions intend to weigh the legality of the Centre’s move to push for a 10 per cent quota for the economically weaker among the general category.
  • The PIL, moved by Youth For Equality, has sought quashing of the Bill arguing that economic criteria cannot be sole basis for reservation. Further, it held that the new Bill also violates basic feature of the Constitution as reservation on economic grounds cannot be limited to the general category.

Way Forward:

Parliament has a central role to secure the interest of citizens. It is the primary body of accountability that translates the wishes and aspirations of citizens into appropriate laws and policies.

Indian parliament should avoid hastily passing of laws and can take cues from three important ways in which the British Parliament.

  • First, the absence of an anti-defection law, so that each MP can vote her conscience in British Parliament.
  • Second, it is known exactly how each MP voted in British Parliament. In India, most votes (other than Constitution Amendments that need a two-thirds majority to pass) are through voice votes — just 7% of other Bills had a recorded vote over the last 10 years.
  • Third, the Speaker of British Parliament insists on the supremacy of Parliament, and even allows a motion against the wishes of the government. Unlike in India, the independence of the Speaker is secured in the U.K. as no party contests against the Speaker in the next general election.

Learning Aid

Practice Question:

Recently 103rd Constitutional Amendment Act was passed by the parliament. Analyse the significance of the new law in current scenario.

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