Vishwajeet Deshmukh

In December 2019, the Indian Parliament passed the 126th Constitutional Amendment Bill, 2019 thereby placing the 104th Constitutional Amendment Act 2019. The Bill extends the reservation for Scheduled Caste (“SC”) and Scheduled Tribes (“ST”) but does away with the provision for the nomination of Anglo-Indians to Lok Sabha and 14 state Assemblies thereby amending Article 334 of the Indian Constitution. This act of the Parliament has obliterated the representation of the Anglo-Indian Community from the Parliament which existed since 1952. The representation provided for the nomination by the President of two-member of Parliaments (MPs) who are from the Anglo-Indian Community.

Article 366(2) of the Indian Constitution provides for the definition of Anglo-Indian; “an Anglo Indian means a person whose father or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within the territory of India and is or was born within such territory of parents habitually resident therein and not established there for temporary purposes only”. Anglo-Indians are ethnic-minority being descents of European fathers and Indian mothers, and are not based on any religious conglomeration rather they possess an ethnic identity that binds them, this view was propounded by Michael H. Fisher in the article Excluding and Including “Natives of India”: Early-Nineteenth-Century British-Indian Race Relations in Britain.

When the parliament decides to enact such an amendment to the Constitution; the Statement of Object and Reason provides for the reasoning for such an enactment which is a pathway to a more transparent statement revealing the intention for such an Amendment. With respect to the 126th Constitution Amendment Bill, 2019 the Statement of Object and Reason explains the extension of SC/STs reservation but does not mention the reasons for non-extension of the Anglo-Indian reservation. The reasons for the extension have been explicitly outlined in the Statement of Object and Reason with the intention of the founding fathers of the Constitution; “ 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 with regard to the aforesaid reservation of seats have not yet ceased to exist. Therefore, with a view to retaining 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.”

The reasons for this non-extension have only been discussed in the parliamentary debates which took place on the 10th of December 2019. These broadly include: (i) 2011 Indian Census stating that the population of Anglo-Indians is merely 293; (ii) the Anglo-Indian community has made significant progress over the course of time.

The view of the Supreme Court with respect to the Statement of Object and Reason can be ascertained from the following cases. In the case of Devadoss (dead) by L. Rs, v. Veera Makali Amman Koil Athalur, AIR 1998 SC 750 it was held that, Statement of Objects and Reasons, accompanying a legislative bill is concerned, it is permissible to refer to it for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil which the statute sought to remedy. But, it cannot be used to ascertain the true meaning and effect of the substantive provision of the statute.

In S.C. Prashar v. Vasantsen Dwarkadas (1963) 49 ITR 1 (SC), the Supreme court pointed out that it is indeed true that the statement of objects and reasons for introducing a particular piece of legislation cannot be used for interpreting the legislation if the words used therein are clear enough. But the statement of objects and reasons can be referred to for the purpose of ascertaining the circumstances which led to the legislation in order to find out what the mischief was which the legislation aimed at.

Both these cases reveal the intent that the true meaning of a legislation cannot be decoded from the perspective of the Object and Reasons. However, it certainly assumes that the legislation must provide for a Statement of Object and Reason for the interpretation to be ascertained at its least; the bare existence of the same is assumed by the drafter of the legislation. In the case of the 126th Constitutional Bill, 2019 the drafter has elaborated on the extension of the reservation to the SC/STs but the same is void of an explanation to the non-extension to another category of individuals in the Article 334. Thereby, not satisfying the bare minimum requirement established for interpretation.

The legal maxim, “Contemporanea expositio est optima et fortissinia in lege” which means that the best way to construct a document is to read it as it would have read when made. The doctrine of Contemporanea expositio is well known for interpreting a statute by reference to the exposition it has received from contemporary authority however it should give way where the language of the statute is plain and unambiguous.

The lawmakers have considered the understanding of the extension of the SC/STs with the intention of the founding fathers of the Constitution, however, when the Anglo-Indians were to be considered the approach was not put forth with the intention of the founding fathers but rather based on the basis of numerical statistics from 2011 Census and not placing consideration on 2013 Ministry of Minority Affairs Report on Anglo-Indian Community.

The 2013 Ministry of Minority Affairs fact-finding report on Anglo-Indians which reveals issues such as (i) identity crisis (ii) lack of employment, (iii) educational backwardness, (iv) lack of proper housing facilities and (v) cultural erosion. The intention of the drafters of the Indian Constitution took into consideration the population of Anglo-Indians being scattered and meagre that it is difficult for a community member to be elected to the Parliament and the welfare of the Anglo-Indians as an objective ascertained from the Parliamentary Debates from 16th June 1949.  Such differential treatment poses questions on the intention of the Parliament with respect to this ethnic minority and their representation.

In the Memorandum submitted to Minister Ravi Shankar Prasad by The Federation of Anglo-Indian Associations in India on January 28th 2020; the issues faced in 2019-20 were highlighted. “The microscopic minority of Anglo-Indians are struggling to survive amidst problems peculiar to them.  The Anglo-Indian community is going through a tough period in their history as their very existence is being challenged now. Anglo-Indians being an urban community is disabled to concentrate in a particular area as most of them are staying in rented houses and with the kind of growth of Indian cities the community is now unable to buy houses and settle in a particular area. As a result, their cultural identity, social life and language are disturbed. Economic constraints and educational disabilities have caused severe hindrance for the advancement of the Anglo-Indian community.”

In conclusion, the Anglo-Indian representation and its repeal through the Constitutional Amendment without deliberation into the community through a fact-finding report and without any reason being specified in the Statement of Object and Reason is a notion that obliterates the community and thereby silencing the voices of a minority.

The Author is a student at the Government Law College, Mumbai.

Image Credits: Findmypast.co.uk

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