The latest initiative of the ruling BJP/NDA government legislating the Constitution (124th Amendment) Bill 2019 which amends Articles 15 and 16 of the Constitution by insertion of an additional 10 percent reserved quota — i.e, in addition to the 22.5 percent reserved for the historically oppressed scheduled castes and scheduled tribes, and 27 percent for other backward castes — for economically weaker citizens outside the ambit of these categories in higher education institutions and government jobs, is a cynical pre-election gambit designed to win the votes of the so-called forward castes.
The Bill, which was approved by both houses of Parliament in record time — no major political party dared oppose it for fear of losing votes of the newly defined economically backward class in the imminent General Election 2019 — and received the formal assent of President Ram Nath Kovind on January 13, is certain to be struck down by the Supreme Court as unconstitutional in due course. Because in its landmark verdict in Indra Sawhney’s Case (1992), the apex court had ruled that the aggregate affirmative action or reservations quota in higher education and government institutions should not breach the 50 percent barrier.
In imposing the 50 percent cap on reserved or non-merit quotas in higher education institutions and government employment, the Supreme Court was persuaded by Articles 14 and 15 of the Constitution which prohibit the State (Central, state and local governments) from discriminating between citizens on the grounds of gender, race, religion or caste. However, bearing in mind that scheduled castes and tribes had suffered historical exclusion and socio-economic discrimination for centuries under the Hindu caste system, the founding fathers of the Constitution wrote affirmative action, aka positive discrimination in favour of SCs and STs into Articles 15 (4) and 16, reserving 15 and 7.5 percent seats in tertiary institutions and government jobs for them as exceptions to Articles 14 and 15.
Later in 1992 in Indra Sawhney vs. Union of India, the Supreme Court validated the insertion of Article 16 (4) which permits additional reservation for OBC (other backward castes), while reiterating the cap of 50 percent. However, the clinching argument against the latest additional reserved quota for the economically underprivileged is that if upheld, it will alter “the basic structure of the Constitution”, expressly prohibited by the apex court in the historic Kesavananda Bharati Case (1973).
The clumsily drafted Constitution 124th Amendment Act is little more than a cynical electoral gambit for political advantage. It may buy the BJP/NDA government led by prime minister Narendra Modi temporary popularity, but is unlikely to withstand judicial scrutiny and will be consigned — albeit not soon enough — to the dustbin of history.