Subject: Fundamental Rights,DPSP

The Madhya Pradesh government’s recent decision to reserve all government jobs for “children of the state” raises constitutional questions relating to the fundamental right to equality.

Try this PYQ:

One of the implications of equality in society is the absence of- (CSP 2018)

(a) Privileges

(b) Restraints

(c) Competition

(d) Ideology

Constitutional provision for Equal Treatment

• Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
• Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
• The provision is supplemented by the other clauses in the Constitution that guarantee equality.
• However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
• This power vests solely in the Parliament, not state legislatures.

Why does the Constitution prohibit reservation based on domicile?

• When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
• India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
• Hence the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.

But are reservations not granted on other grounds such as caste?

• Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
• To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:

1. Non-discrimination among equals, and
2. Affirmative action to equalize the unequal

Supreme Court rulings on quota for locals

• The Supreme Court has ruled against reservation based on place of birth or residence.
• In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
• The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
• In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
• In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
• In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

What about securing jobs for locals in the private sector?

• Such a law will be difficult to implement even if allowed.
• Private employers do not go on an annual recruitment drive to fill vacancies identified in advance but hire as and when required.
• The state can recommend a preference to locals but ensuring that it is followed would be difficult.
• In 2017, Karnataka mulled similar legislation but it was dropped after the state’s Advocate General raised questions on its legality.
• In 2019, the state government once again issued a notification asking private employers to “prefer” Kannadigas for blue-collar jobs.

How do some states then have laws that reserve jobs for locals?

• Exercising the powers it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act.
• The act aimed at abolishing all existing residence requirements in the states and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh.
• Constitutionally, some states also have special protections under Article 371. AP under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
• Some states have gone around the mandate of Article 16(2) by using language. States that conduct official business in their regional languages prescribe knowledge of the language as a criterion.
• This ensures that local citizens are preferred for jobs. For example, states including Maharashtra, West Bengal and Tamil Nadu require a language test.

The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section (EWS).

Try this question for mains:

Q.What are the various constitutional challenges posed by the 103^rd Constitutional Amendment Act?

What does the reference mean?

• A reference to a larger Bench means that the legal challenge is an important one.
• As per Article 145(3) of the Constitution, “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution” shall be five.
• The Supreme Court rules of 2013 also say that writ petitions that allege a violation of fundamental rights will generally be heard by a bench of two judges unless it raises substantial questions of law.
• In that case, a five-judge bench would hear the case.
• Laws made by Parliament are presumed to be constitutional until proven otherwise in court.
• The SC had refused to stay the 103rd Amendment. A reference will make no difference to the operation of the EWS quota.

What is the 103^rd amendment about?

• It provides for 10% reservation in government jobs and educational institutions for EWS, by amending Articles 15 and 16 that deal with the fundamental right to equality.
• While Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, Article 16 guarantees equal opportunity in matters of public employment.
• An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS as it does for SCs, STs and OBCs.
• The states are to notify who constitute EWS to be eligible for reservation.

Issues with the law

The SC agreed that the case involved at least three substantial questions of law, whether:

• First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
• Second, it violates the SC’s 1992 ruling in Indra Sawhney Case, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
• The third challenge has been of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

What are the government’s arguments?

• The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment.
• When a law is challenged, the burden of proving it unconstitutional lies on the petitioners.
• The government argued that under Article 46 of the Constitution, part of DPSP, it has a duty to protect the interests of economically weaker sections.

1) The very identity of the Constitution has not been altered.

2) Countering the claims about Indra Sawhney principle, the government relied on a 2008 ruling— Ashok Kumar Thakur v Union of India, in which the SC upheld the 27% quota for OBCs. Here, the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors, to prove that there need not a sole criterion for according reservation.

3) For the unaided institutions, the government argued that the Constitution allows the Parliament to place “reasonable restrictions” on the right to carry on trade.

B2BASICS

What are the significances of the EWS quota?

• Address economic inequality: Currently, the economically weaker sections of citizens have remained excluded from attending higher educational institutions and public employment due to their financial incapacity. Therefore, the 10% quota is progressive and could address the issues of educational and income inequality in India.
• Constitutional recognition:The proposed reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.
• Remove stigma associated with Reservation: It will gradually remove the stigma associated with reservation because reservation has historically been related with caste and most often the upper caste look down upon those who come through the reservation.

What are the challenges before the EWS quota?

1.Eligibility criteria:

• Critics claim that the 8 lakh income threshold is very high and will practically cover nearly all population not already covered by reservations.
• Notably, NSSO and IT department data shows that at least 95% of Indian families will fall within this limit.
• Other eligibility criteria have also claimed to be flawed.

2.Sole economic criteria:

• The Supreme Court in Indra Sawhney judgement has maintained that a backward class cannot be determined mainly with respect to the economic criterion.
• Hence introducing reservation based on economic criteria would invite judicial scrutiny.

3.50 percent limit:

The SC has put a cap for reservations at 50% – the current proposal will exceed the limit and hence could be legally challenged.

4.Determining economic backwardness:

This is a  major challenge as there are concerns regarding the inclusion and exclusion of persons under the criteria.

5.Enforcement:

The implementation of the legislation would also be a great challenge since the states do not have the finances to enforce even the present and constitutionally mandated reservations.

Shrinking jobs:

When the government is trying to restrict its public services through the advancement of technology in the government system, providing quota in jobs will be a useless move.

6.Encouraging reservations: 

The intent of constitutional makers as originally manifested via Article 15 and 16 was to be reviewed after 10 years. However, instead of restricting the policy of positive discrimination, the government is pushing it in some or other forms.

7.Populist initiative:

When elections are near, many populists’ measures are put forward by political parties such as loan waiver, reservations, etc. Considering the low levels of political literacy and awareness among masses, political parties take leverage of the same thus impacting the socio-economic and political structure at large.

8.Lack of proofs to back the outcomes:

Even after years of reservation policy, there are no considerable pieces of evidence to support the achievements of the original intent of affirmative action. For instance, only about 4 percent each of rural Scheduled Tribe and Scheduled Caste households have a member in a government job.

9.Lack of Level Playing Field:

It has to be noted that the Upper ladder in the reserved category are mainly benefitted from the policy whereas the benefits do not reach the marginalized. It may also happen with respect to reservation based on economic criteria as well.

What is the way forward?

• One-time usage: Make sure that beneficiaries use their reserved category status only once in their lifetime. For example, a person shall not be allowed to use the reservation for jobs if he/she has already used it for college admissions. Aadhaar can be utilized for this purpose in order to prohibit the second usage.
• Quality of education: The government should focus on quality in addition to access. For instance, it is no use to give reservation to the poor people in college admission if the quality of the education is low = they get no job. Hence, the quality of education should be given due attention from the primary school stage itself.
• Vocational education: should be promoted with the necessary skills and knowledge to make them industry ready.
• Entrepreneurship: Create a spirit of entrepreneurship and make them job giver instead of a job seeker.
• Social upliftment measures: Alternative as well as effective social upliftment measures should be adopted instead of just focussing on reservation aspect.

 

A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.

Try these questions:

Q. “The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.” Discuss.

—–

Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2014)

(a) Second Schedule

(b) Fifth Schedule

(c) Eighth Schedule

(d) Tenth Schedule

What is the issue?

• The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
• The HC order was an affront to the powers of the Speaker.
• The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).

Backed by Tenth Schedule

• The petition said that judicial review of ongoing anti-defection proceedings was limited.
• Notice is much prior to any final determination or decision on disqualification.
• The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule, the Speaker’s office argued.

Citing the Kihoto Hollohan case

• The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
• Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
• Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.

Must read:

https://www.civilsdaily.com/news/kihoto-hollohan-order-1992/

What does the dissident MLAs have to say?

• The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
• The MLAs had argued that the provision infringed their right to dissent.
• But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land.
• A mere challenge to its constitutionality cannot efface it from the statute book.

 

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Back2Basics

https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/