Wednesday, January 16, 2019 3:30 AM
New Quota and Basic Structure
- The very discussed and politically decorated and infamous bill providing 10% quota reservations in employment and educational establishments to the financially less fortunate sections of the General Category was passed after the assent of the President Ram Nath Kovind.
- It will be very well know as the “Constitution (103 Amendment) Act, 2019” will come into effect, once centre notifies its dates.
- The reason its is called infamous because 10% Reservations will be in addition to the existing 50% reservations for SC, ST and OBC, collectively making it 60% in total.
124th Constitutional Amendment - This Amended Two Fundamental Rights
Article 15 - Disallows unfairness or inequality on the basis of individuals race, caste, sexual orientation and place of birth.
Article 16 - Disallows unfairness or inequality, injustice in jobs and employment in Government departments and offices.
- At certain extend it reaches Article 46, which encourages the Govt. to promote the educational and financial interest of the less fortunate sections of the indian society.
To Whom it Provides Reservation?
- People or Family having collective annual income of less then ₹8.0 lakhs (Approx $11500/annually).
- People or family who has ownership of farmlands less than five acres.
- People or Family who owns the house, lesser than 1000 square feet, in urban area.
Debatable issues or Problems
The major barrier for the deployment of the recent Act is the legal inspection .
- The Apex Court has ruled multiple times and warned Centre against exceeding its 1992 formula of a maximum of 50% quota reservation (Indira Sawhney v. Union of India).
- Since states likes Tamil Nadu, go on ignoring the apex court warning and implement reservations mentioned limit, currently the state of Tamil Nadu has implemented 69% reservation system.
Catalyst of the Basic Structure?
- Justice M Hidayatullah & Justice J R Mudholkar in Sajjan Singh (1965) suggested the basic structure, eventually borrowed from Germany.
- The Kesavananda Bharati Case (1973) , the apex court of India held the Parliament of India that they Parliament have the rights to amend the Constitution but in no way they hold any powers to destroy it. In other words the New Amendment can be attached to the existing constitution and something of the original Constitution must remain in any given situation. This was said or mentioned by the court under the Article 368.
- Given this scenario, the apex court did not mention what Basic Structure is and enlisted couple of principles such as Democracy, Federalism and Secularism as being the part of the basic structure.
Does Basic Structure violate fundamental rights?
As per the “Poona Pact (1932)” between Mohandas Karamchand Gandhi and Bhimrao Ramji Ambedkar to the Constituent Assembly Debates, the quota reservations was mentioned in the context of socio-economical backwardness of the society and classes.
- The 124th Amendment makes a retreat by extending quota reservation to the economically less fortunate or financially disadvantaged.
- First Amendment in 1951 towards Article 15(4), enables the respective state to make special allocation for educationally and socially backward classes .
- Article 16(4) allows reservation to be extended to any backward class if it is not adequately accommodated and represented in services under the state.
- Hence the situation **Reservation is not a Right but, if enabled then to some extend it will not be contemplated as violation of the rights to equality.
Article 46 and the upper caste
Article 46 (non-judicial directive principle) of Constitution of India mentioned that, the **State Govt. is entitled to assist educational and economical enquiries and interest of the weaker sections (specifically SC, ST and any other section of society and protect them from any form of exploitation.
However the 124th Amendment specifies that Article 46, forgot or may be the Govt. overlooked The truth, upper caste people neither encounter social injustice nor face any form of exploitation or ill treatments
The Constitution makes room for the commissions to take interest into the matter within the context of the establishment of the constitutional protection for SC (Article 338), ST (Article 338A) and Socio-Economically Backward Classes (Article 339), but unfortunately there has been no commission created or mentioned Financially (Economically) Backward Classes.
What lies Ahead
Indian democracy and rule of law is held together by the essence of equality. Equality offers substantial rationale between classification and objective intended to achieve. In this case, the court inspect the Equality Code of the respective Constitutions explaining it, to make the reservation. This ask the state Govt. decision is rational and subject to individual will (non-arbitrary).