Termed the strangest affirmative action program worldwide, India’s Economically Weaker Section (EWS) quota is based on economic criteria and seeks to supplement caste-based reservations that aim to correct historical wrongs. In a 117-page judgment, a Constitution Bench of the Supreme Court upheld the validity of 10% reservation for EWS applicants for government jobs and seats in educational institutions. The top court had challenged the 103rd Constitutional Amendment which allowed such a policy.
The 10% EWS reservation is in addition to the already existing quota for Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens (SC, ST and OBC) who cannot avail the new EWS quota. The challenge to this was based broadly on two objections. First, that economic criterion was not the basis for reservation. Second, the proposal will violate the already prescribed 50% limit on reserved seats. Let’s take a closer look.
Challenge: Relying on the 1992 judgment of Indra Sawhney by a nine-judge bench, the petitioners submitted that the majority in that case had specifically held that economic criteria alone cannot be the basis for reservation. They also argued that the provision of EWS quota cannot be limited to general categories (i.e., non-SC, ST and OBC), as it would violate the principle of equality, which is a basic feature of the Indian Constitution except for SCs. Is. , ST and OBC applicants from getting benefits. Finally, the petitioners had argued that the existing reservation was already 49.5% of the overall pie and that the additional 10% reservation would exceed 50% of the overall pie. He outlined the decisions on the M. Nagraj and Jarnail Singh cases, arguing that the apex court had held that the 50% quota limit cannot be violated except in very rare circumstances.
The Government of India denied the challenge and made its arguments on the ground that the State was duty bound to protect the weaker sections of the society.
Defence: Countering the petitioners’ reliance on the Indra Sawhney case verdict, the government argued that it deals with a reservation policy for the socially and educationally backward classes, a policy for the economically weaker section category is different from.
The government further argued that the 10% EWS quota was over and above the sanctioned reservation bracket. Therefore, it cannot be said to be in violation of the basic structure of the Constitution, the Center argued.
The Supreme Court thus tested the validity of the 103rd Amendment on the principle of infrastructure, exclusion of economically weaker sections among SCs, STs and OBCs, and the 50% reservation limit.
Verdict: Justice Dinesh Maheshwari conclusively held that reservation is an instrument of affirmative action to ensure an inclusive march towards achieving an egalitarian society. It serves as a means to include the disadvantaged class or class. Thus, the quota on economic grounds does not violate the basic structure of the country’s constitution, he said. Justice Bela M. Trivedi concurred with Maheshwari’s decision, saying that the legislature understands the needs of the people and knows to exclude people with economic constraints from reservation. Thus, the creation of a separate class through amendment should be considered as affirmative action for those who cannot be treated at par with other citizens. This is a reasonable classification and does not violate the Code of Equality. It is noteworthy that Justice Trivedi had sought a re-look at India’s 75-year-old reservation policy in the spirit of transformative constitutionalism.
Justice JB Pardiwala concurred with Justice Maheshwari and Justice Trivedi that the methods used to determine backward classes need to be re-looked so that they are relevant in today’s times. He said in his announcement that there is a need to put a time limit on the period of reservation. He said such a policy cannot be allowed to become vested interest for historically disadvantaged groups to get quota benefits. Justice Pardiwala said the idea of reservation is to eliminate social and economic inequality.
While three of the five judges upheld the amendment, Justice Ravindra Bhat and Chief Justice of India (CJI) UU Lalit disagreed. While the two dissenting judges agreed that reservation could be provided on the basis of economic criteria, they disagreed on whether SCs, STs and OBCs could be excluded from EWS reservation and whether the new quota was 50% may or may not exceed.
Voices of Dissent: Both the judges observed that the socially and educationally backward classes are the poorest sections of India and cannot be excluded from the EWS reservation. Justice Bhat stressed that the boycott violates the non-discriminatory and non-exclusive aspect of the Equality Code, which is not constitutionally permissible. He said that exclusion of socially backward classes would be arbitrary on the ground that they are already getting the benefits of reservation. Further, Justice Bhat cautioned that a 50% ceiling violation would open a gateway for further division. It would be a quota privilege on the right to equality, he cautioned.
CJI Lalit fully agreed with Justice Bhat’s opinion, although it is quite rare for the Chief Justice to end up in the minority on a Constitutional Bench’s decision.
While the decision is a significant step towards a merit-based society, the 3:2 split decision has left the country to ponder the larger question of whether to continue India’s reservation policy indefinitely.
Trisha Shreyashi is an advocate and honorary panelist on the Harvard Business Review Advisory Council.
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