ECONOMICALLY WEAKER SECTIONS OF CITIZENS IN THE STATE OF KERALA AND THE NEED TO REPLACE ACT 2 OF 2016 BY A NEW LEGISLATION

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ECONOMICALLY WEAKER SECTIONS OF CITIZENS IN THE STATE OF KERALA AND THE NEED TO REPLACE ACT 2 OF 2016 BY A NEW LEGISLATION

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??????????????Clause (6) of Article 15 of the Constitution of India, as inserted by the 103rd Amendment Act, 2019 provides for reservation up to 10% for admission to Educational Institutions for the Economically Weaker Sections of citizens other than the classes mentioned in Clauses (4) and (5) ?and Clause (6) of Article 16, as inserted by the same Amendment Act provides for reservation up to 10% for public employment to Economically Weaker Sections of Citizens, other than the classes mentioned in Clause (4) thereof.

????????Govt of Kerala vide G.O.(MS) No.5/2019/P&ARD dated 12.03.2019 constituted a Commission to recommend the criteria for identifying the Economically Weaker Sections of Citizens and the Commission submitted its report to Government of Kerala on 29.11.2019.?The Government, on accepting the recommendations issued orders and authorized the Departments of Personal and Administrative Reforms, Planning, Higher Education, General Education and General Administration to take further necessary action on the respective recommendations as noted therein.

????????????It may be noted that the reservation provided under Clause (6) of Article 15 and Clause (6) of Article 16 is for the Economically Weaker Sections of Citizens other than the listed communities under Schedule Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and other Backward Classes (OBC).?Thus, the reservation provided under the 103rd Amendment of the Constitution of India is to the Economically Weaker Sections in General Category (GC).?In the introduction part of the Commission Report itself it is stated that the term “General Category” will include classes and communities which are not covered under Clauses (4) and (5) of Article 15 and Clause (4) of Article 16 of the Constitution of India.?While under Clauses (4) and (5) of Article 15 and Clause (4) of Article 16, reservation is provided to the communities coming under SC, ST, SEBC and OBC, the reservation under Clause (6) of Article 15 and Clause (6) of Article 16 is to the Economically Weaker Sections of all Citizens other than the SC, ST, SEBC and OBC. So, this reservation cannot be confined to the EWSs of Forward Communities alone.

???????????The Hon’ble High Court of Kerala is found to have issued an order on 23.03.2021 on the application filed by the Nair Service Society as I.A.No.1/2021 in W.P(C) No.26345/2020(P) directing the State Government to notify the list of non-reserved communities eligible for reservation for Economically Weaker Sections within a period of one month. The above application was filed by Nair Service Society alleging that the list of eligible communities listed in the report of the Kerala State Commission for Economically Backward Classes among Forward Communities has to be notified by the Government for implementing the reservation for the Economically Weaker Sections among them. Since the State Government did not contest the application on merits, the Hon’ble High Court granted the relief sought for.?Consequently, the Government notified a list of 164 communities.?By adding fuel to fire, in this order it is stated that the list of 164 communities are the non-reserved communities eligible for this reservation.

???????????2.?The Kerala State Commission for Economically Backward Classes among Forward Communities has been constituted as per Section 3 of Act 2 of 2016.?This Act came into force on the 16th of May 2015, i.e., long before the 103rd Constitutional Amendment.?The functions of the Commission are enumerated under Section 9 and as per Section 9(a) of that Act, the Commission has to identify the Forward Communities in the State and prepare a list thereof and submit the same to the Government. Accordingly, the said Commission, in exercise of its function under Section 9(a) identified the Forward Communities and listed the same in their report.?This identification of Forward Communities does not have any relation with the reservation provided under Clause (6) of Articles 15 and 16 of the Constitution of India.?There is no list of non-reserved communities in the State of Kerala.?As already pointed out, the Commission constituted as per Section 3 of Act 2 of 2016 was empowered to identify only forward communities and it identified only such communities.?So, the order passed on I.A.No.1/2021 in WP(C) 26345/2020 is inconsistent with the Constitutional provision regarding reservation to Economically Weaker Sections.?The consequent Government Order also needs clarification.

??????????????????For extending the reservation provided by Clause (5) of Article 15 of the Constitution of India the Government is maintaining separate list of Scheduled Castes (SC), Scheduled Tribes (ST) and Socially and Educationally Backward Classes (SEBC).????Over and above the SEBC list, the State is also maintaining a list of other Eligible Communities (OEC). It is seen that some of the communities included in the SEBC list, and some others are not included in that list.?For example, the communities under items 1 and 4 and the Anglo Indian in item 2 are not seen included in the SEBC list whereas the other communities are seen to be included in the SEBC list.?Though the Economically Weaker Sections in General Category would include all classes of citizens other than SC, ST and SEBC regarding reservation for admission to educational institutions, since reservation is extended to some communities coming under the other Eligible Communities (OEC) also, the Government should ensure that such communities are kept out of the General Category so as to avoid double benefit.?This can be done by providing separate certificates for admission to educational institutions and public employment and by adding a note in the certificate provided for admission to Educational Institutions that persons belonging to those communities coming under other Eligible Communities to whom reservation is extended shall not be eligible to get the reservation provided to the Economically Weaker Sections in General Category.

???????????As already pointed out Act 2 of 2016 has been enacted to constitute a State Commission for Economically Backward Classes among forward communities.?In the light of the 103rd Constitutional Amendment providing reservation for admission to educational institution and for public employment to the economically weaker section of all classes of citizens other than SC, ST, OBC and SEBC, the said Act need to be amended so as to make it consistent with the said constitutional provisions.?

?????????It is significant to note that reservation to the economically weaker sections of citizens provided by the 103rd constitutional amendment is not only for the forward communities but also to all classes of citizens other than SC, ST, OBC and SEBC.?The other benefits provided to the Economically Backward Classes among Forward Communities under Act 2 of 2016 also need to be extended to all the Economically Weaker Sections in the General Category.?So, the Commission constituted under Act 2 of 2016 may have to cover all classes of citizens other than SC, ST, SEBC and OBC.

??????Therefore, it would be proper and appropriate to replace Act 2 of 2016 by a new legislation or to make necessary amendments in Act 2/2016 so as to provide for constituting a body as the Kerala State Commission for Economically Weaker Sections in General Category and consequential necessary provisions.

?johnbrittokurusumuthu