EWC Reservation Bill: One-upmanship or Statesmanship?

The Govt has brought a bill in a parliament for providing 10% reservations for economically weaker sections across the religions, in Govt jobs and educational institutions. It required a constitutional amendment and the parliament approved it in two days. Subsequently, it got the assent of the President also and it has become a Bill on a record fourth day of its introduction. This should be a cause to rejoice, as it is not common to find ruling and opposition parties to be on the same page in a matter of far reaching consequences for them as well as the Indian society. However, the current developments created a very peculiar situation where everyone wants it to succeed, but afraid that Supreme Court might quash it; everyone wants more time to debate on this, but can’t ask for it. To understand this unique situation, we have to understand its context, content and the procedure. 

If Govt bringing it up on the last day of parliament and just before elections is a surprise, the manner in which it is passed by the Parliament is even more shocking. We can’t imagine passing of a constitution amendment by the Parliament without proper discussion in just two days of its introduction in any country, not just in India. This ill-advised urgency in passing the bill becomes all the more important, in the light of the fact that the provisions of the Bill are against the stand taken by Supreme Court so far, for a long time and all the parties needed time to debate on the provisions, consult all the stakeholders, collect data to devise a fool proof plan to convince the Supreme Court and also see that the Bill is implemented to the benefit of the intended population segment. 

Has sufficient thought went into drafting of the Bill? If the limit is fixed at Rs 8 lakh p.a and/ or 5 acres of land, according to one estimate, 95% of the people are covered under these provisions. The concept of Reservation is to provide a level playing field for the population, which is historically at a disadvantage in competing with the privileged minority on an equal turf. This concept of level playing field is completely negated in the present Bill, thus seriously undermining the very purpose it is stated to serve. Similarly, most of the constitutional experts opine that in its present form, it is very difficult for the Bill to pass the SC test which consistently prescribed 50% cap on reservations and the broad guideline that exceptions(reservations) should not exceed the rule (merit-based selection) in the last 50 years. 

The only argument the Govt and its supporters make is that, the present bill unlike the previous bills, is a constitutional amendment and Courts will not overrule these amendments passed by the Parliament. They hope that the amendment will enable them to take the total reservations to 60% without any problem. However, in the famous Keshvananda Bharathi Case, it is explicitly laid down that any amendment shall be subject to maintenance of the Basic Structure of the constitution. Previous attempts at taking beyond 50% were turned down by Supreme Court on the premise that it tries to tamper with one basic principle of the constitution, i.e., Equality. Any fresh attempt, whether it is a constitution amendment or otherwise, also has to pass the same test. Just because it is an amendment, it does not give you any overriding powers to alter the basic structure of the constitution. There appears to be no exercise on the part of the Govt to address this issue. 

What happens if it is struck down by the court? It should not matter much to the ruling party because the election would have already won by that time along with other election year promises for the middle class like GST exemptions, IT exemptions etc., Opposition parties too, being equally guilty to the farcical process of approving the bill, can not complain much. Those who will really pay will be those who need that little opportunity where lack of money will not spoil their future. 

Where the ruling party and the Government has succeeded is, in pushing the opposition to a corner where they have no other choice than accepting to the Bill, lest they shall be branded as anti-social in an election year. It is a political victory for the party with a potential to win the votes, but not the victory for the real economically backward classes it should be. This amounts to one-upmanship, but not statesmanship on the part of the Prime Minister and his Government. 


Sekhar Katiki

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not necessarily reflect the views of TimesofAP and TimesofAP does not assume any responsibility or liability for the same.

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  1. people
    13 Jan, 11:30 pm
    Bhaskar
    Reply

    Good article and my two cents on this. I totally agree with the point that the manner it was introduced in the parliament and passed without proper discussion was wrong. I also agree that Rs. 8 lakh per annum ceiling will not serve purpose of catering to the poorest of the upper class except giving legitimacy to 10% quota to that section. But I am skeptical about the argument that Supreme court may quash this amendment because it is not sticking to spirit of the constitution. This is age old argument whether Legislation prevails over Judiciary. Constitutional amendments are done to correct or enhance the original intent provided in the constitution. I am assuming that legislative branch always prevails over judicial branch at the end. It doesn\'t mean I am supporting this amendment as it is.

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  2. people
    14 Jan, 8:31 am
    Sekhar Katiki
    Reply

    The Indian constitution did not give any supremacy to legislature vis-a-vis judiciary. It tried to give balance between the three arms and also introduced various checks and balances to ensure any of the arms will not misuse the powers. In this context, though parliament has the power to enact laws and amend constitution, courts have the power to review it. In fact, Dr. Ambedkar made it very clear that Judicial Review is the soul of indian constitution. It has been a settled legal doctrine that any amendment which tries to tamper with the basic features of the Constitution amounts to rewriting the Constitution itself. In this context, 39th amendment, and parts of 42nd amendment were struck down by the Supreme Court even though they were duly passed by the Parliament. Please see the following link for more info on this: https://en.m.wikipedia.org/wiki/Basic_structure_doctrine

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  3. people
    14 Jan, 9:10 am
    Sekhar Katiki
    Reply

    Providing Equal opportunities for the citizens is a basic feature of the Indian constitution. However, given the peculiar socio economic fabric of the country, constitution has allowed the State to impose reasonable restrictions on these tenets. Hence, the concept of reservations have come. However, we have to understand that these exceptions can not overrule the basic features like Equality. Hence, courts have put the cap at 50% and the only rationale for this figure is the concept of majority and minority. This position has been reinforced subsequently in many judgements. Logically speaking, if we cross this threshold limit of 50%, why should we stop at 60% ? Why not 70, why not 80 ? Hypothetically speaking, if Congress comes to power with sweeping majority in 2019 with the support of SP, TRS or if winning Muslim votes becomes more important in 2024, and these parties demand separate quota for muslims on the pretext that they are not getting any advantage in this 10%, or if Congress wants to upstage the BJP with even more populistic winning formula and opts for taking the quota to 70%, then also no one will object it and parliament passes the bill. Can this go on forever? I don\'t think Courts will allow this tamasha to happen. Apart from provisions of Indian constitution, they also have to deliver the judgements in accordance with principles of natural justice.

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    • people
      16 Jan, 9:13 am
      Ram

      There is weight in your view on equality, Sekhar. Article 14, 15 and 16 must read toghether to understand the basic structure of Constitution. However in principle Constitution do not specify ceilings. So, nullyfing amendment may not be possible but it may face difficulties in implementation if Court says irrespective of all amendments, one can not exceed 50% cap. Anyway, let us wait for Court hearing.