Mahadeep Singh Jamwal
In order to ponder upon the Supreme Court 3:2 divided verdict on amendment of the one hundred and third amendment of the constitution of India, {To amend Articles 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 16 (Equality of opportunity in matters of public employment) of the constitution} officially known as the Constitution (One Hundred and Third Amendment) Act, 2019, that came into effect on January 14, 2019 has introduced 10 per cent reservation for Economically Weaker Sections (EWS) of society, we must be aware who were the beneficiary under EWS reservation. This quota was supposed to be availed by persons with an annual gross household income of up to Rs 8 lakh. Families that own over 5 acres of agricultural land, a house over 1,000 square feet, a plot of over 100-yards in a notified municipal area or over a 200-yards plot in a non-notified municipal area cannot avail the reservation. Persons belonging to communities that already have reservations such as Scheduled Castes, Scheduled Tribes and the ‘non creamy layer’ of Other Backward Classes are also not eligible for reservation under this quota (creamy layer of OBC crosses 8 lakh limit).
The bill was challenged in the Supreme Court by: 1. a non-governmental organization ‘Youth For Equality’ claiming that the Bill violates the basic structure of the Constitution and also against the earlier Supreme Court judgment that had fixed the maximum reservation under all quotas at 50 per cent. The 103rd Amendment raises the total reservation quota to 59.5 per cent. 2. The DMK filed a motion in the Madras High Court challenging the Amendment. The party argues that reservations should be based on the community to which an individual belongs and not their economic status. In August 2020, the case was referred to a five-judge Constitution Bench for hearing. A five-judge constitution bench Justices Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala held that amendment is not in violation of the Constitution whereas Chief Justice UU Lalit and Justice Ravindra Bhat held otherwise and are not on the same platform as other three Justices. CJI dissented with the majority view upholding EWS reservation. The Supreme Court upheld the 10 percent quota for economically weaker sections (EWS) in public jobs, public and private education institutes in a 3:2 split verdict. The judgment was pronounced on a batch of pleas challenging the validity of the 103rd Constitution amendment providing 10 percent reservation to EWS persons in admissions and government jobs. The reservation policy is implemented not only in India but also in other countries. About one-fourth of the countries have policies in the form of affirmative action, reservations, alternate access, and positive discrimination to give equal opportunities to the deprived section of the society. But in India it is more like dancing dolls for a political regime to capture votes rather than beneficial to the deserving one.
Between the lines of Judgments, we must concentrate on the observation of Justice Trivedi and Justice Pardiwala. Justice Trivedi while validating the amendment has said that there is a need to revisit the reservation policy as it should have a time span. Justice Pardiwala, while holding the amendment valid, observed that reservation policy cannot go indefinitely and agreed with Justice Trivedi on a need to re-examine reservation policy. The divided verdict has given a recipe for our political parties to debate as per their suitability. These observations carry us to the case of Indra Sawhney v/s Union of India, where the Supreme Court has held that the policy of reservation has to be operated year-wise and there cannot be any such policy in perpetuity. Even when we visit the source of reservation policy, The Constitution of India, the reservation policy was framed and implemented by the Constituent Assembly as ad-hoc policy only for the term of 10 years after the commencement of the Constitution. But it was given extensions to extensions after every ten years by political governments to create vote banks and it is still in operation after 72 years of implementation of the Constitution. Had this policy really helped the backward section of the society, a big question mark? It is a political gimmick nothing more than that. It has created a feeling of enmity among the people of upper class against the caste-based reservation policy, as they are getting less opportunity in jobs and admissions in education institutions because of continuation of reservation policy. In the present time and as per the perspective of SC, there is a need to revise the reservation policy so that the benefit can reach the marginalized sections of the deprived class. But while revising the reservation policy, we must ensure that the benefit of the reservation should reach the socially, economically, and educationally backward section of the society, social, educational and economic criteria cumulatively to determine the backward classes of the society. Along with this, equal importance should be given for the abolishment of the caste system and other sorts of discrimination from our society so that equality in society can be ensured.
(The author is a Police veteran).
