Essay on 124th Constitutional Amendment : Need and Purpose Behind 10% Reservation for EWS

The Parliament of India, in its winter session, has passed the Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 on 9th January, 2019. It aims to provide 10 per cent reservation in jobs and educational institutions to economically backward sections of citizens in the general category. Thus, the bill has now become law. The purpose of introducing this amendment was to ensure economic and educational empowerment of the weaker sections of the general category, as they have been denied their due peace in Indian society due to poverty, in contrast to the SCs, STs and OBCs, who had been provided reservations in the Constitution.

The history of reservations in India goes back to the days of colonial rule. However, reservations in concrete form were drafted into India’s Constitution by the Constituent Assembly.  It carried forward the commitment to reservation for Scheduled Castes and Tribes. Thus, quotas for SCs and STs were the only explicit reservations that were written in at that time. Then, in 1990, the Other Backward Classes (OBCs) were given 27 per cent reservation when the Government of India accepted the Mandal Commission’s report. However, in 1992, the Supreme Court, in the Indra Sawhney v/s Union of India case, capped caste-based reservation to a maximum of 50 per cent. The exception was in the state of Tamil Nadu, which already had 69 per cent reservations for various sections. The law was subsequently included in 1994 into the Ninth Schedule of the Constitution to protect it from the judicial review.

There has been a crying need for such a provision in the Constitution of India. Such demand has been raised by various sections of the higher castes, especially economically weaker section, for many years to increase the 50 per cent cap in the job reservation keeping their interest in mind. This includes demands from Thakurs in Uttar Pradesh, Rajputs in Rajasthan, Jats in Haryana, Patel Patidars in Gujarat and Kapus in Telangana and Andhra Pradesh. Thus, the bill seeks to provide for the advancement of ‘Economically Weaker Sections’ (EWS) of Indian citizens.

The 124th Amendment has amended two fundamental rights. The first is Article 15, which prohibits discrimination on the grounds of race, religion, caste, sex or place of birth. This has been amended to additionally permit the government to provide for the advancement of ‘economically weaker sections’. Further, up to 10 per cent seats may be reserved for such sections for admission in educational institutions. Such reservation will not apply to minority educational institutions.

The second is Article 16, which prohibits discriminatory in employment in government offices.This has been amended to permit the government to reserve up to 10 per cent of all posts for the ‘economically weaker sections’ of citizens.

The reservation of up to 10 per cent for these sections in educational institutions and public employment will be in addition to the existing reservations .The Union Government will notify the ‘economically weaker sections’ of citizens on the vases of family income and other indicators of economic disadvantage. The law’s current status is that the criteria for the Union Government have been decided. The states are in the process of finalizing their criteria. However, some states have already approved similar amendments to their laws. These include Gujarat and Bihar.

The decision to provide 10 per cent reservation to ‘economically backward’ upper castes is for all those communities/classes that do not come under the 50 per cent quota as mandated by the Supreme Court. The decision effectively means that these deprived people will now be able to enjoy benefits of reservation in government jobs, an advantage that wasn’t available to them previously.

The Union Government has stated the criteria that will be used to determine the ‘economically backward’ classes of the society. For rural area families with income (including agricultural income as well as from a profession) below 8 lakh per annum, possessing agricultural land below five acres and a residential house smaller than 1000 square feet will be covered under this. For urban areas, those with residential plot below 200 square yards in a non-notified municipal area will be considered for reservation. The states will define their criteria similarly, which will depend also on local factors. The applicability of the reservation is both for jobs in the government and for seats in higher educational institutions i.e. colleges and universities.

Some challenges are expected in implementation of this reservation quota. As the amendment is subject to judicial review, the Supreme Court will need to agree to lift the 50% cap on reservations. In such a case, all the states of India can extend the quantum of reservation and the upper caste 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 cutting into the SC,ST and OBC quota percentages, which will definitely have social and political implications. If the EWS is treated as a category such as the SC, ST and OBC, a large group of general candidates will apply for just 10% seats, causing difficulties in implementation.

Identification of eligible candidates is also likely to pose problems as, if affidavits are required to be filed regarding land holding and annual income, they may need to be verified from government, municipal or gram panchayat records.

All central universities currently follow the same reservation policy, i.e. 1.5 per cent seats for Scheduled Castes, 7.5 per cent for Scheduled Tribes and 27 per cent for those among the Other Backward Classes with annual family income under Rs 8 lakh or what is described as the ‘non-creamy’ layer. If the new 10 per cent quota is implemented, admission in to public institutions will most likely be through the same mechanism used for the Other Backward Classes.

There are implications for private educational institutions also, particularly those that are government aided. Some of these institutions already have reservations for students from the home state and the new 10% EWS reservation may impact this also. The institutions will necessarily have to redraft their reservation policies accordingly.

Earlier, groups belonging to ‘socially and educationally backward classes’ have benefited from reservation, even though many of these groups could not be actually regarded as ‘backward’. Thus, reservations have been usurped by others than the depressed classes. Thus, this landmark decision of the Central Government is a positive move and an attempt to provide reservation to the needy through a legitimate channel.