Discrimination Against Equality in EWS Judgment

In its more than 70-year history, the Supreme Court of India has delivered a plethora of judgments touching upon the fundamental principles governing the Constitution of India’s guarantee of equal treatment. On occasion, its decisions have contradicted each other, with different benches upholding different meanings of the text and values ​​of the Constitution.

Some of this struggle is understandable. After all, the most important promises of the Constitution – among them, the rights to equal treatment, individual liberty and freedom of expression and religion – are enshrined in abstract language. It is the job of the courts to interpret the words of the constitution, to find out their real meaning. Judges do this through increasing precedent not only by looking at the text of the provisions, but also by appealing to the Constitution from the best ethical point of view, by studying its history, and by applying the rules and codes that have formed over time. Naturally, in the sense of the Constitution’s guarantees, judges may reach different conclusions as to how the document should be read. These differences assume special significance when the Court is called upon to deliberate on the features that qualify as part of the basic structure of the Constitution.

exclusionary and discriminatory

however, as Justice S. Ravindra Bhat expresses his powerful dissent In Janhit Abhiyan vs Union of India(November 2022), The Court of Jurisprudence points to some underlying principles at the heart of the right to equality: notable among them is the idea that caste-based or community-based exclusion is permissible. But today this norm has been reversed. For the Court, in the words of Justice Bhat, “for the first time in seven decades of the republic, has approved an explicitly exclusionary and discriminatory principle,” by Upholding the 103rd Amendment to the Constitution,

The amendment, introduced in early 2019, changed Articles 15 and 16 of the Constitution, and empowered the state to provide up to 10% reservation in government jobs and educational institutions for “economically weaker sections of citizens”. [EWS]The change also mandates that the seats reserved for EWS will be applicable only to citizens other than those categories who are already eligible for reservation. Hence, persons belonging to Scheduled Castes and Scheduled Tribes (SCs and STs). And persons not being part of the creamy layer of Other Backward Classes (OBC) will not be allowed to occupy the seats in the newly prescribed quota.

Since 1973, when a 13-judge bench of the Supreme Court delivered its verdict Kesavananda Bharati vs State of KeralaIt has become clear that the power of Parliament to amend the Constitution is not absolute. The Court held there that the limits of the amending power are enshrined in the Constitution and are clear from the literal meaning of the word “amendment”. If the constitution emerging from the amendment process loses its original identity, the amendment law will be considered invalid. In other words, the power of Parliament does not extend to the extent of damaging the basic structure of the Constitution.

Petitioners’ arguments

In public interest campaignThe The petitioners argued that the 103rd Amendment violated the infrastructure For at least three reasons. First, the prediction of reservation on individual economic status undermines the basic logic of reservation. He claims that this argument stems from the understanding that affirmative action is necessary to undo and compensate for underlying structural inequalities in society. Second, the amendment is discriminatory as it excludes EWS, SC, ST and OBCs who are otherwise entitled to reservation through measures taken under the existing provisions of Articles 15 and 16. Third, some of the petitioners also argued that the amendment violates the 50% limit. On reservation which is now seen as a violable rule.

Justices Dinesh Maheshwari, Bela M. Trivedi, and JB Pardiwala – each of whom wrote a separate opinion for the majority – and Justices Ravindra Bhat (whose opinion was also adopted by (then) Chief Justice of India UU Lalit) confirmed were united in doing. The idea that reservation can be made legitimately exclusively on economic grounds. However, this conclusion belies the basic logic of affirmative action in India, which stemmed from the demand for a fair share in political governance for historically marginalized groups. In that direction, reservation has always been viewed as a means to achieve true equality and as a measure of compensation. That’s why a nine-judge bench of the court Indira Sawhney vs Union of India (1992) It recognized that economic status could not serve as the sole criterion for identifying those who qualify as “backward classes”.

editorial | Economics and Exclusions: On Upholding 10% EWS Quota by Supreme Court

Still, it’s possible to argue – though majority in public interest campaign Doesn’t cite this as its reason at all – while the Constitution demands equality, it doesn’t bind Parliament to any exact version of the concept. Therefore, today’s state is probably acting within its power to decide that a classification based only on economic status leads to true equality. It could well be argued that the incorporation of an additional layer of affirmative action does not in itself rise to the level of an infrastructure breach.

However, the problem with the 103rd Amendment is that in setting up quotas on economic grounds, the Constitution also excludes from the otherwise open domain those classes of persons who are eligible for the existing policies of reservation. The result is the creation of a quota for the upper caste. The majority on the bench defends it on the application of the principle of “reasonable classification”. Justice Pardiwala writes, “If the economic criteria based on economic indicators which differentiate between one person and another is relevant for the purpose of classification and grant of benefits of reservation,” Justice Pardiwala writes, “… /OBC being excluded from this, in itself, would not make the classification arbitrary and the amendment would violate the basic structure of the Constitution.

what the ruling ignores

But the ruling fails to see that the reservations allowed for SCs, STs and OBCs, far from being a favor to them, are intrinsic to guaranteeing equality. This position has been recognized as an axiom of our constitutional law at least since the decision of a five-judge bench State of Kerala vs NM Thomas (1975). Indeed, as Justice Bhat points out, the benefits extended to SCs, STs and OBCs are not a “free pass”, but a “compensatory and compensatory mechanism”. Therefore, as long as we do not consider the Kesavananda doctrine to be doctrinally irrelevant, the 103rd Amendment should be seen as anathema to the basic structure of the Constitution.

Furthermore, as Justice Bhat points out, no material was placed before the court to show that “those who qualify for the benefit of this economic-criteria reservation, but constitute 82% of the country’s population, are are related in large part. (SC, ST and OBC together), would further the objective of the economically weaker sections of the society. Viewed thus, the purpose of the amendment becomes clear: reverse the existing logic of affirmative action And build shackles within open range by ousting the most marginalized among us.

Upholding this measure, the Court has condemned the deadliest form of discrimination, a form of discrimination that is contrary to what is actually demanded of equality. If allowed to stand, the court’s decision could open a box of constitutional mischief for Pandora.

Suhrith Parthasarathy is an advocate practicing in Madras High Court.