Supreme Court upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation for the Economically Weaker Sections (EWS) among forward castes in government jobs and colleges across India.
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In News – Supreme Court upholds EWS Quota
Recently, the Supreme Court has upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation for the Economically Weaker Sections (EWS) among forward castes in government jobs and colleges across India.
The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.
Earlier, the Centre, in 2019, had also told the apex court that its law, granting a 10-per cent quota for Economically Weaker Sections (EWSs), was brought in to promote “social equality” by providing “equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status”.
The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9 in 2019 respectively and it was then signed by then President Ram Nath Kovind. The EWS quota is over and above the existing 50 per cent reservation to SCs, STs, and Other Backward Classes (OBCs).
The Verdict – What is all this about?
Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala delivered the majority opinions on the five-judge Bench in an hour-long session which saw the pronouncement of a Constitution Bench judgment live-streamed for the first time.
A five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the constitution after hearing a battery of senior lawyers including Attorney General K K Venugopal and Solicitor General Tushar Mehta in the marathon hearing that lasted for six-and-half-day.
Academician Mohan Gopal had opened the arguments in the case before the bench, which also comprised Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala, on September 13 and opposed the EWS quota amendment by terming it as “deceitful and a backdoor attempt” to destroy the concept of reservation.
Senior lawyers including Ravi Verma Kumar, P Wilson, Meenakshi Arora, Sanjay Parikh, and K S Chauhan and advocate Shadan Farasat also assailed the quota, saying it also excluded the poor belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) categories, and defeats the creamy layer concept.
Tamil Nadu, represented by senior advocate Shekhar Naphade, also opposed the EWS quota, saying the economic criteria cannot be the basis for classification and the top court will have to revisit the Indira Sawhney (Mandal) judgement if it decides to uphold this reservation.
On the other hand, the attorney general and the solicitor general vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50 per cent quota meant for the socially and economically backward classes (SEBC).
Majority View:
- The 103rd constitutional amendment cannot be said to breach the basic structure of the Constitution.
- The EWS quota does not violate equality and the basic structure of the constitution. Reservation in addition to existing reservation does not violate provisions of the Constitution.
- The reservation is an instrument of affirmative action by the state for the inclusion of backward classes.
- Basic structure can’t be breached by enabling the state to make provisions for education.
- Reservation is instrumental not just for inclusion of socially and economically backward classes into the society but also to class so disadvantaged.
- Reservations for EWS does not violate basic structure on account of 50% ceiling limit fixed by Mandal Commission because ceiling limit is not inflexible.
- 50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992 was “not inflexible”. Further, it had applied only to SC/ST/SEBC/OBC communities and not the general category.
- The Scheduled Castes, Scheduled Tribes and the backward class for whom the special provisions have already been provided in Article 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category.
Minority View:
- Chief Justice U.U. Lalit, on his last working day, and Justice S. Ravindra Bhat, gave the minority view, which Justice Bhat authored.
- Reservations were designed as a powerful tool to enable equal access. Introduction of economic criteria and excluding SC (Scheduled Castes), ST (Scheduled Tribes) and OBC (Other Backward Classes), saying they had these pre-existing benefits is injustice.
- The EWS quota may have a reparative mechanism to have a level playing field and the exclusion of SC, ST, OBC discriminates against equality code and violates basic structure.
- Permitting the breach of 50% ceiling limit would become “a gateway for further infractions and result in compartmentalization (division into sections).
Let us understand – What is the Economically Weaker Section (EWS) Quota?
- The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16.
- It inserted Article 15 (6) and Article 16 (6).
- It is for economic reservation in jobs and admissions in educational institutes for Economically Weaker Sections (EWS).
- It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes (SEBC).
- It enables both the Centre and the States to provide reservations to the EWS of society.
Significance:
- Addresses Inequality: The 10% quota is progressive and could address the issues of educational and income inequality in India since the economically weaker sections of citizens have remained excluded from attending higher educational institutions and public employment due to their financial incapacity.
- Recognition of the Economic Backwards: There are many people or classes other than backward classes who are living under hunger and poverty-stricken conditions. The proposed reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.
- Reduction of Caste-Based Discrimination: Moreover, it will gradually remove the stigma associated with reservation because reservation has historically been related to caste and most often the upper caste looks down upon those who come through the reservation.
Concerns:
- Unavailability of Data: The Union or state governments have no such data to prove that ‘upper’ caste individuals, who have less than Rs 8 lakh annual income, are not adequately represented in government jobs and higher educational institutions. There is a strong possibility that they are actually over-represented in these places.
- Arbitrary Criteria: The criteria used by the government to decide the eligibility for this reservation is vague and is not based on any data or study. Even the SC questioned the government whether they have checked the GDP per capita for every State while deciding the monetary limit for giving the EWS reservation. Statistics show that the per capita income in states differs widely – Goa is the state having the highest per capita income of almost Rs. 4 lakhs whereas Bihar is at the bottom with Rs. 40,000.
Way Forward
- It is high time now that the Indian political class overcame its tendency of continually expanding the scope of reservation in pursuit of electoral gains, and realised that it is not the panacea for problems.
- Instead of giving reservation based on different criteria, the government should focus on quality of education and other effective social upliftment measures. It should create a spirit of entrepreneurship and make them job-givers instead of a job seeker.
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This blog has been collated and compiled by the internal staff of Karma Global with the knowledge and expertise that they possess, for its monthly newsletter Issue 06 of December 2022 and in case of specific or general information or compliance updates for that matter, kindly reach out to the
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