104th Constitutional Amendment: An Overview

By Tashmayee Sarkhel

Published on: 08 September 2022 at 23:21 IST

This article lays down facts and information about reservation, the 104^th constitutional amendment, other amendments related to it, its importance, and the statements stated against this.

The Indian Constitution’s 104th amendment^[1] increased the time limit for the elimination of seats for SCs and STs in the Lok Sabha and state legislatures from seventy to eighty years. It abolished the Anglo-Indian community’s reserved seats in the Lok Sabha and state legislatures.

Article 334^[2] was amended under the 104^th constitutional amendment which states the fact that the Scheduled Castes and Scheduled Tribes have been provided with reservations since 1950, and many amendments are done too over time.

Need for reservation in India:

William Hunter and Jyoti Rao Phule proposed the caste-based reservation system for the first time in 1882. The ‘Communal Award,’ given by British Prime Minister Ramsay Macdonald in 1933, established the reservation system that exists today. The award created separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and Dalits.

Reservation is a policy implemented by the Indian government to address historical injustices committed against particular castes by the so-called “upper castes.”The caste system excluded many “lower-castes” in India from mainstream decision-making processes in areas such as administration, education, and social welfare, which impeded their development.

M K Gandhi and B R Ambedkar signed the ‘Poona Pact’^[3] in 1932, which formed a unified Hindu electorate with particular constraints, after months of negotiation. After independence, reservations were initially only available to the Scheduled Castes (SCs) and Scheduled Tribes (STs).

Articles 15(4)^[4] and 16(4)^[5] of the Constitution authorized state and federal governments to reserve seats in government services for members of the SC and ST communities. Article 334 of the Indian Constitution guaranteed the Anglo-Indians, SCs, and STs a quota in legislatures for ten years until 1960.

The length of quota reservation in legislatures was extended as a result of subsequent Constitutional revisions. Articles 341^[6] and 342^[7] define who belongs to the Scheduled Caste or Scheduled Tribe, accordingly. Anglo-Indians are defined in Article 366(2)^[8] of the Constitution.

There are various reasons why reservations were established and incorporated into the Constitution’s provisions. The following are some of these reasons:

• Reservation is one of the strategies used to counteract social oppression and prejudice against historically oppressed communities.
• Affirmative action, often known as reservation, contributes to the upliftment of underprivileged populations.
• To atone for the country’s lower castes’ historical injustices and to level the playing field for the impoverished, who have been unable to compete with those who have had access to riches and resources for ages.
• To ensure that meritocracy is founded on equality, everyone must be brought up to the same level before being evaluated on their ability.

Seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha are allocated based on the proportion of Scheduled Castes and Scheduled Tribes in the state based on the state’s population, according to Article 330^[9] of the Indian Constitution and Section 3 of the Representation of the People Act of 1951^[10].

Following amendments to the Indian Constitution about reservations:

• The Eighth Amendment, 1959^[11] – From 26 January 1960 to 26 January 1970, the Constitution of India, as amended by the Eighth Amendment of 1959 (officially known as The Constitution (Eighth Amendment) Act, 1959), extended the period of reservation of seats for Scheduled Castes and Scheduled Tribes, as well as the representation of Anglo-Indians in the Lok Sabha and State Legislative Assemblies, for ten years. Article 334 of the Constitution was altered by this amendment.
• The Twenty-Third Amendment, 1969^[12] – Article 334 of the Constitution was changed by the Constitution (Twenty-third Amendment) Act of 1969. It abolished Scheduled Tribes’ reservation of seats in Nagaland’s Lok Sabha and State Legislative Assembly, as well as the Governor’s ability to appoint more than one Anglo-Indian to any State Legislative Assembly. Before this change, the Governor of a state could nominate as many Anglo-Indians as they wanted to the State Legislative Assemblies.

The amendment also prolonged for another ten years, until January 26, 1980, the reservation of seats for Scheduled Castes and Tribes, as well as Anglo-Indian representation in the Lok Sabha and State Legislative Assemblies.

• The Forty-Fifth Amendment, 1980^[13] – The Constitution (Forty-fifth Amendment) Act of 1980 amended Article 334, extending the ten-year reservation of seats in the Lok Sabha and State Legislative Assemblies for Scheduled Castes and Scheduled Tribes and Anglo-Indians to 26 January 1990.
• The Sixty-Second Amendment, 1989^[14] – The Constitution (Sixty-second Amendment) Act of 1989 amended Article 334, extending the ten years of reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and State Legislative Assemblies to 26 January 2000.
• The Seventy-Ninth Amendment, 1999^[15] – By amending Article 334, the Constitution (Seventy-ninth Amendment) Act of 1999 extended the period of reservation of seats for Scheduled Castes and Scheduled Tribes, as well as Anglo-Indian representation in the Lok Sabha and state legislative assemblies, for another ten years, until 26 January 2010.
• The Ninety-Fifth Amendment, 2009^[16] – By modifying Article 334, the Constitution (Ninety-fifth Amendment) Act, 2009 prolonged the duration of the reservation of seats in the Lok Sabha and state legislative assemblies for Scheduled Castes and Scheduled Tribes and Anglo-Indians for another ten years, till 26 January 2020.
• The One Hundred and Fourth Amendment, 2019^[17] – The deadline for the discontinuation of reservation of seats in the Lok Sabha and state legislative assemblies for members of Scheduled Castes and Scheduled Tribes was extended by ten years by the Constitution of India’s One Hundred and Fourth Amendment (104th Constitutional Amendment Act).

The Ninety-Fifth Amendment’s reservation of seats for Scheduled Castes and Scheduled Tribes was set to expire on January 26, 2020, but was prolonged for another ten years. However, the amendment does not extend the time of reservation of the two Lok Sabha seats designated for members of the Anglo-Indian community, essentially ending the tradition of the President of India selecting two members of the Anglo-Indian community on the Prime Minister’s advice.

104^th Amendment Act:

The Constitution of India’s One Hundred and Fourth Amendment extend by ten years the deadline for the discontinuation of reservation of seats in the Lok Sabha and State Legislative Assemblies for members of Scheduled Castes and Scheduled Tribes.

The reservation of seats for Scheduled Castes and Scheduled Tribes, which was established by the Ninety-Fifth Amendment, was supposed to expire on January 26, 2020, but was extended for another ten years for the following reason:

“Although the Scheduled Castes and the Scheduled Tribes have made considerable progress in the last 70 years, the reasons which weighed with the Constituent Assembly in making provisions about the aforesaid reservation of seats have not yet ceased to exist.”

“Therefore, to retain the inclusive character as envisioned by the founding fathers of the Constitution, it is proposed to continue the reservation of seats for the Scheduled Castes and the Scheduled Tribes for another ten years i.e., up to 25th January 2030” -Ravi Shankar Prasad, Minister of Law and Justice.

On December 10, 2019, the Lok Sabha passed the Bill with 355 votes in favor and 0 votes against. On December 12, 2019, the bill was introduced in the Rajya Sabha, where it gained 163 votes in favor and 0 votes against. The bill was signed by India’s President, Ram Nath Kovind, on January 21, 2020, and published in the Indian Gazette the same day. On January 25, 2020, the amendment took effect.

Criticisms:

• The reservation for Anglo-Indians was not increased as it was for Scheduled Castes and Scheduled Tribes, which was one of the main criticisms of the amendment.
• The statement of object and reason, which is a step toward a more open statement explaining the objective for such an Amendment, justifies such adoption. The 104th Constitutional Amendment’s declaration of goal and reason explains the enlargement of the SC and ST reservations but does not explain why the Anglo-Indian reservation was not enlarged.
• In Prashar Vs. Vasantsen Dwarkadas (1963)^[18], the Supreme Court decided that the statement of purposes and reasons for adopting a piece of law cannot be used to interpret the statute if the language used is plain enough. The declaration of objects and reasons, on the other hand, can be utilized to determine the circumstances that led to the legislation and what the mischief was intended to remedy.
• Parliamentarians have considered the interpretation of the extension of the SCs and STs with the goal of the founding authors of the Constitution. However, when it came to Anglo-Indians, the approach was not in the spirit of the founding fathers, but rather based on numerical data from the 2011 Census, rather than the 2013 Ministry of Minority Affairs Report on the Anglo-Indian Community. Anglo-Indians face challenges such as cultural loss, identity crisis, unemployment, educational backwardness, and a lack of acceptable housing amenities, according to a 2013 Ministry of Minority Affairs fact-finding report.
• As indicated by the Parliamentary Debates of June 16, 1949, the drafters of the Indian Constitution took into account the dispersed and tiny population of Anglo-Indians, making it difficult for a community member to be elected to Parliament, as well as the welfare of Anglo-Indians. Such inequity raises questions about the Parliament’s goals and representation of this ethnic minority.

Conclusion:

The 104th Amendment repealed the reserve of seats for Anglo-Indians in the Lok Sabha and state legislatures, and expanded the quota of seats for the SC or ST group, as previously indicated in this article. The removal of Anglo-Indian representation by a Constitutional Amendment without community input or explanation in the Statement of Object and Reason is a concept that obliterates the community and hence silences the views of a minority.

A small group of Anglo-Indians is attempting to exist in the face of challenges that are exclusive to them. The Anglo-Indian community is going through a tough period in history, with the Amendment Act putting their entire survival in jeopardy.

Author – Tashmayee Sarkhel, currently pursuing a B.A.LL.B. (Hons.) at University Law College and Department of Studies in Law, Bangalore University.

1. 104^th Indian Constitutional Amendment ↑
2. Indian Constitution, Article 334 ↑
3. Poona Pact, 1932 ↑
4. The Indian Constitution, Article 14(4) ↑
5. The Indian Constitution, Article 16(4) ↑
6. The Indian Constitution, Article 341 ↑
7. The Indian Constitution, Article 342 ↑
8. The Indian Constitution, Article 366(2) ↑
9. The Indian Constitution, Article 330 ↑
10. The Representation of People Act, 1951, Section 3 ↑
11. The Eighth Amendment, 1959 ↑
12. The Twenty-Third Amendment, 1969 ↑
13. The Forty-Fifth Amendment, 1980 ↑
14. The Sixty-Second Amendment, 1989 ↑
15. The Seventy-Ninth Amendment, 1999 ↑
16. The Ninety-Fifth Amendment, 2009 ↑
17. The One Hundred and Fourth Amendment, 2019 ↑
18. Prashar Vs. Vasantsen Dwarkadas,1963 ↑