Form of words:
TeaThe Economically Weaker Section or EWS quota will soon come up for judicial scrutiny. But it is not only a matter of the judiciary, the Parliament of India should also revisit the law.
Madras High Court nixed Implementation of 10 per cent EWS reservation in All India Quota in Medical Admission – popularly known as AIQ in NEET – and said it can be implemented only with the approval of the Supreme Court. Meanwhile, 27 doctors have Challenge: Central government notification for implementation of OBC and EWS quota in medical education. The Supreme Court has issued a notice to the Narendra Modi government in this matter and has sought an answer. Failure to pronounce the verdict means that EWS reservation will be put on hold as far as medical admission is concerned.
This will probably be the first legal test of the 103rd Constitutional Amendment of 2019. Meanwhile, a bunch of petitions have been filed in the Supreme Court (public interest vs union of india) to challenge the constitutionality and validity of the EWS quota and these have not yet been considered by the Supreme Court.
EWS quota can literally mean quota for economically weaker sections. But in case of this act SC, ST, OBC are not considered as poor or EWS. This amendment empowers the state to make provisions for reservation of appointments or posts in favor of any economically weaker section of citizens. other than the SC, ST and OBC.
At present, there is an income limit of Rs 8 lakh per year to avail this quota. So, we can say that this quota is for those poor or middle class persons who belong to ‘upper’ castes of different religions.
There are four reasons why the EWS quota needs to be reconsidered at the legislature level as well.
Read also: Reactions to OBC medical quota re-exposing Indians’ flawed eligibility logic
law in haste
Earlier this law was passed in haste. It was secretly the law. The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019 was introduced in Parliament on 8 January 2019 unannounced, as if any national security matter was involved. It was passed in both the houses within 48 hours and got the assent of the President the next day.
The Constitution (One Hundred and Third Amendment) Act, 2019 was notified on 12 January 2019 in union gazette. Since it was a Constitution Amendment Bill and the objective of the Bill was to insert clauses 15(6) and 16(6) in the chapter on Fundamental Rights, it should be discussed thoroughly in India’s supreme law making body – Parliament Was. . Ideally, the draft should have been circulated to MPs before it is introduced, so that they can read the bill and formulate their response. Ideally, such bills with far-reaching implications should be referred to department-related committees for wider discussion and consultation. It is not illegal to introduce and pass a bill in haste, but it is certainly against constitutional morality and propriety. The Bill did not get a chance to go through the due scrutiny of Parliament.
where is the data?
Second, this constitutional amendment is based on false or unverified grounds. Object and reason clearly stated in the bill is mentioned That: “Economically weaker sections of citizens are excluded from participating in higher educational institutions and public employment because of their financial inability to compete with the economically more privileged persons.” This is a wild guess at best as the government has not produced any data to support this. In fact, the central or state governments have no such data to prove that ‘upper’ caste individuals, whose annual income is less than Rs 8 lakh, 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.
My claim is based on the fact that we have different data to prove the under-representation of SC, ST, OBC. This means that the ‘upper’ castes are more represented. I will wait for the caste count in the census in this case. I hope the central government will include the caste column in Census 2021, so that if the judiciary asks for the data in the EWS case, it can provide it. Without any data to prove the under-representation of EWS upper castes, it is bad law to bring them under the purview of reservation.
There is another problem in this regard. SC and ST quota is based on their total population. According to the Mandal Commission, the OBC population is 52 percent, but due to the 50 percent ceiling on reservation, the OBC has got 27 percent. But what is the rationale for 10 per cent reservation for EWS? Why not 7 percent or 15 percent? It seems arbitrary.
Read also: How UPSC’s ‘Reserve List’ helps SC/ST candidates and why it is not a ‘backdoor entry’ for IAS?
Violation of reservation limit
Third, there is a limit to the reservation. It was not in the original constitution and Parliament never placed any limits. but in Indira Sawhney caseThe nine-judge Constitution Bench fixed the limit of 50 per cent. The judgment states that: “Reservation being an extreme form of protective measure or affirmative action, it should be confined to minority seats. Even though the Constitution does not impose any specific restrictions, the constitutional philosophy is against proportional equality, allowing equality to be granted. The principle of balancing should not in any way exceed 50% of the reservation.
The EWS Act violates this limit without taking this issue into account. There is no mention of this issue in the Statement of Objects of the Bill.
Read also: Caste census is important – whether you are in favor or against reservation
Who is ‘Backward’?
Fourth, this amendment is against the spirit of the Constituent Assembly. The provision of reservation in the Constitution is found in Clause 16, which discusses equality. The original draft presented before the Constituent Assembly contained: said:
(1) There shall be equality of opportunity for all citizens in matters of employment under the State.
(2) No citizen shall be ineligible for any office under the State on grounds only of religion, race, caste, sex, race, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any class of citizens who, in the opinion of the State, are not adequately represented in the services under the State.
The drafting committee, headed by Dr BR Ambedkar, had inserted the word “backward” between the words “in favor of anyone” and “class of citizens”. The term “backward” was eventually approved by the Constituent Assembly and became part of the Constitution.
Now the question is, do EWS upper caste people pass the test of ‘backwardness’? Has the government done any study to find out the backwardness status of this group of people? Do they face any stigma or discrimination? Economic backwardness is a fairly fluid identity. It can change at any moment. Rich people can become poor anytime and vice versa. Furthermore, it is more concerned with individuals and families rather than with a group of castes. Whereas being an Adivasi and being from a class of people who have/have encountered untouchability, are definite identities. The social and educational backwardness of a group is also relatively definite.
This amendment makes the provision of reservation just another poverty alleviation programme, which is not the object of reservation. Reservation is a constitutional scheme to ensure the participation of backward classes in the process of nation building. This was to ensure representation of the backward classes. The EWS Act is a sabotage of the constitutional scheme for reservation.
The author is a former managing editor of India Today Hindi magazine, and has authored books on media and sociology. Thoughts are personal.
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