28 January 2019
Why amending an inconvenient Constitution is a political move
Source: By Shruti Rajagopalan: Mint
India prepares to celebrate the 69th Republic Day. The armed forces ready themselves for the parade, police make security arrangements and schoolchildren rehearse their songs and dances. Parliament prepared for this year’s Republic day by passing a hasty constitutional amendment. Republic Day celebrates our Constitution—which can be a terribly inconvenient document for the government—and they are simply amending away this inconvenience.
Our framers guaranteed equal protection before the law to all citizens (Article 14) and required that the state shall not discriminate against any citizen on the grounds of religion, race, caste, sex and place of birth (Article 15). They also guaranteed equal opportunity and non-discrimination in public employment (Article 16). The requirement that the state must treat everyone equally has some exceptions—to make policies to improve the status of historically oppressed groups like the scheduled castes (SC), scheduled tribes (ST) and more recently, other backward classes (OBC).
The 103rd amendment introduces a new exception—and creates a category allowing reservations for “economically weaker sections of citizens". It allows the government to create a 10% quota in educational institutions and public employment for a new class (the economically weak) in addition to the exceptions made for SC/ST/OBC groups in Articles 15 and 16. And economic weakness is determined by “family income" and other “indicators of economic disadvantage".
The Narendra Modi government is not the first to pass a hasty constitutional amendment to get over a political inconvenience (after all, this is the 103rd amendment in 69 years). But there are three fundamental problems with the amendment and the broader policy it enables.
First, the spirit of these new exceptions made to Articles 15 and 16 are not in line with the vision of the framers. The purpose of creating exceptions to equal protection, equal opportunity and non-discrimination was to dismantle the centuries-old oppression that the caste system inflicted on certain groups. One may agree or disagree on whether the caste-based reservation policy has had the intended outcomes. But it goes against the spirit of the Constitution to now include groups who were not oppressed historically, and might have in fact participated in the oppression, in the same protected class as SC/ST and OBCs.
The framers, while debating the Constitution, were confronted with caste inequality, poverty and economic inequality, and in their wisdom believed that a reservation policy can only right the former and not the latter. The goal was to remedy historically persistent oppression. Reservations were intended an antidote to low social status and mobility and opportunity, not as an antidote poverty-driven lack of opportunity. The only antidote to poverty is prosperity, and quotas for the economically weak hardly foster prosperity.
The second major problem is that the constitutional amendment was passed to enable a fundamentally flawed policy. Under the Modi government’s new reservation policy, anyone with a family income of less than ₹8 lakh per annum, or a landholding of less than 5 acres, or residential holding of less than 100 yards, is eligible to be included. Only 4% of Indian families show more than ₹8 lakh in annual income. The limit is well above the average GDP per capita, and far above the government-defined poverty line. Approximately 85% of families hold less than 5 acres of land and almost the entire country, except a select few, live in residential holdings smaller than the cut-off. So, the quota includes most Indians not benefiting from caste reservations.
In a country where 96% are defined as economically weak, what good could a 10% quota do? By including virtually everybody, the policy favours those who can game the system. And as the caste-based reservations have taught us, the benefits will likely go to the most politically and socially well-connected layer of upper caste Indians, who have the status but not the income.
And that may well be the point. The BJP has historically represented upper castes, and young unskilled upper-caste men form a large constituency for the upcoming election. This is a political move, violating the spirit of the Constitution. Modi’s promise was to bring jobs, and given his enormous economic failures, a 10% quota in existing jobs is a Hail Mary. The only obstacles were the pesky fundamental rights guaranteed by the Constitution, easily remedied by the 103rd amendment.
Which brings us to the third problem? The way this amendment was passed reminds us of Indira Gandhi’s manoeuvres during the Emergency. The amendment was drafted 36 hours before it was introduced in the Lok Sabha and passed immediately, with virtually no debate or deliberation. It was sent to the Rajya Sabha, after its members had concluded their scheduled business for the winter session, and hastily passed. And in the ultimate irony, it was signed by President Ram Nath Kovind, a lifelong Dalit activist belonging to one of the protected classes under Articles 15 and 16.
It’s easy to amend the Indian Constitution, and the fundamental rights of citizens have taken a beating over the last seven decades because of this easy procedure. But even with an easy amendment procedure, parliamentary morality requires that any major shift in constitutional spirit and vision should be carefully deliberated. The government has abused the amendment procedure to announce political benefits before the election. Now our last hope is that the voters will punish and not reward such haste.