Analysis of EWS Reservation

On November 7, 2022, a 3:2 majority of a five-judge Supreme Court bench upheld the constitutionality of the 103rd Amendment, which provides a 10% reservation to Economically Weaker Sections (EWS) in educational institutions and government jobs. The Attorney-General of India, KK Venugopal, recently stated that the 10% quota for Economically Weaker Sections (EWS) of society does not erode the rights of the Scheduled Castes, Scheduled Tribes, or Other Backward Class.

In the Janhit Abhiyan vs Union of India case[i], The petitioner opposed his 2019 Constitution (103rd Amendment) Act, which went into effect on January 14, 2019. This amendment affects Articles 15 and 16 of the Indian Constitution, which have new provisions. Article 15[ii] deals with “non-discrimination based on religion, race, caste, sex or national origin” and Article 16[iii] deals with “equal opportunity in public service”.

INTRODUCTION

The Supreme Court recently ruled before a panel of five judges on “the substantial question of law” whether giving economically vulnerable segments of society 10% reservation is unconstitutional and violative of the 50% ceiling cap on quota declared by the SC itself. Considered the “substantial legal question” of whether the ceiling cap is violated. The Supreme Court said the main question for constitutional judges is to decide whether “economic backwardness” can be the sole criterion for granting quotas to government agencies and educational institutions. The Centre argued that it was the prerogative of each state to offer a 10% economic reservation to those enrolled in state institutions and state-owned educational institutions.

CURRENT SCENARIO OF RESERVATION

• Reservations currently account for 49.5 % of all land in India. If the 10% additional reservation for EWS is included, the total is 59.5 %.

• Quotas of 7.5 %, 15%, and 27% are reserved for Scheduled Tribes, Scheduled Castes, and Other Backward Classes, respectively.

• If the EWS Quota Bill becomes law, only 40.5 % of seats in educational institutions/jobs will be allocated on the basis of candidates’ merit. As the Supreme Court has pointed out, an increase in reservations can jeopardise merit.

SCOPE OF EWS RESERVATION

The Constitution (103 Amendment) Act, 2019, was introduced into the Constitution by amending Articles 15 and 16 and adding clauses empowering state governments to provide economic backwardness reservations.

The proposed amendment Bill will define the Economically Weaker Section (EWS) as having an annual household income of less than Rs 8 lakh, agricultural land of less than 5 acres, a residential house of less than 1000 square feet, a residential plot of less than 100 yards in the notified municipality, and a residential plot of less than 200 yards in the non-notified municipality area.[iv]

SIGNIFICANCE OF THE NEW EWS JUDGEMENT

The 10% quota is progressive and could address issues of educational and income inequality in India, where economically disadvantaged citizens have been barred from attending higher education institutions and public employment due to financial inability.

There are many people and classes other than the backward classes who are suffering from hunger and poverty. The proposed constitutional amendment would grant constitutional recognition to the poor of the upper castes.

Furthermore, it will gradually remove the stigma associated with reservation because reservation has historically been associated with caste, and the upper caste frequently looks down on those who come through reservation.[v]

WHAT DOES THE 103RD AMENDMENT SAY?

Added Article 15(6)[vi]: For admission to educational institutions, up to 10% of seats may be reserved for EWS. Minority educational institutions will be exempt from such restrictions.
Added Article 16(6)[vii]: This allows the government to reserve up to 10% of all government jobs for EWS.
The reservation of up to 10% for the EWS will be in addition to the existing reservation cap of 50% for SC, ST, and OBCs.
Citizens will be notified of the EWS by the central government based on family income and other indicators of economic disadvantage.
CHALLENGES TO 103RD AMENDMENT

Contrary to equality norms, a 50% ceiling cap on reserved seats was imposed to balance the equality of opportunity of backward classes ‘against’ the right to equality of everyone else. When the quota exceeds 50%, the equality standard is violated.
In M. Nagaraj v. Union of India (2006)[viii], a Constitution Bench ruled that equality is part of the basic structure of the Constitution. The 50% ceiling is a constitutional requirement without which the structure of equality of opportunity would collapse.

Upper-caste representation is adequate: The upper caste is adequately represented in public employment. It is unclear whether the government has quantifiable data demonstrating that people from lower-income groups are under-represented in government service.
The problem with the current definition of EWS is that it is too broad and would include large segments of the population.
Beneficiary identification: In a country where the taxable population remains very low due to income misrepresentation, implementing economic eligibility criteria would be a bureaucratic nightmare.
‘Pandora’s box’: Sections of the SCs/STs and OBCs may want similar sub-categorization based on economic criteria within their respective quotas.
Reservation is not a poverty alleviation scheme: The Supreme Court in the Indira Sawhney case (1992)[ix] had struck down a provision that earmarked 10% for the economically backward because the Constitution only provides for addressing social backwardness.
Special provisions, such as economic-based reservations in education and employment, are completely unconstitutional and violate the fundamental structure of the Constitution. Excluding socially and educationally backward classes (SCs, STs, and OBC-NCLs) from the benefit of these special provisions for EWS is inexplicably discriminatory and undermines the Constitution’s fundamental structure.
VIEWS OF THE FIVE-JUDGE BENCH ON THE MATTER

The amendment was upheld by a 3:2 majority, with three judges supporting it (Justices Dinesh Maheshwari, Bela M Trivedi, and JB Pardiwala) and two judges opposing it (Justice Ravindra Bhat and Chief Justice UU Lalit). After hearing the case for a week, Justice Dinesh Maheshwari, Justice S Ravindra Bhat for himself and on behalf of the Chief Justice, Justice Bela M Trivedi, and Justice JB Pardiwala issued four separate judgments.

Here’s what the verdicts said:-

On Violative of the basic structure of the Constitution
One of the most important legal issues in the current case is whether the 103rd amendment, which provides for a 10% reservation for EWS, violates the Constitution’s basic tenet of equality. The majority of people believe that the proposed amendment is consistent with the Constitution’s mandate of equality.

Justice Dinesh Maheshwari: Stressing the fact that the reservation for EWS does not create any kind of unequal discrimination, he pointed out that it cannot be said to be a violation of the basic structure when a constitutional amendment ‘moderately abridges or alters the equality principles. The judge went on to examine the doctrine of equality, pointing out that the main part of the challenge to the amendment was based on the contention that it repeals the Equality Code and thus destroys the basic structure of the Constitution.

He also stated that reservation cannot be considered an essential feature of the Constitution “that cannot be modulated, or whose modulation for a valid reason, including the benefit of any section other than the sections who are already protected.”

“Reservation is an instrument not only for the inclusion of socially and educationally backward classes to the mainstream of society but, also for the inclusion of any class or section so disadvantaged as to be answering the description of a weaker section. Thus, reservation based solely on economic criteria does not violate any essential feature of the Indian Constitution,” the judge ruled.

Justice Trivedi: Concurring, Trivedi stated that the amendment could not be described as a “shocking, unconscionable, or unscrupulous travesty of the quintessence of equal justice,” as sought by the petitioner’s counsel.

Justice JB Pardiwala agreed with Justice Maheshwari and Justice Trivedi on the same reasoning.

Justice Ravindra Bhat and Chief Justice UU Lalit: They both issued dissenting opinions on this issue, observing that while accounting for reservations based on financial criteria is not a violation of the Constitution in and of itself, the matter is not as straightforward as it appears. The basic structure of the Constitution is concerned with the core values and identity of our constitutional morality.

Justice Bhat stated, “Our Constitution does not speak the language of exclusion. In my considered opinion, the amendment is the language of exclusion and violates the principle of justice, and thereby the basic structure.”

On Exclusion of SC/ST/OBC-NCL category from EWS reservation
The petitioners argued that people from the SC/ST/OBC-NCL categories are the poorest of the poor and that excluding them from the benefit of EWS reservation violates constitutional norms and principles. While the argument appears to have some substance at first glance, Justice Dinesh stated that a little pause and a closer look reveals that the petitioners’ grievance remains wholly unsustainable’.

Justice Dinesh Maheshwari: “This exclusion has a definite logic; rather, this exclusion is unavoidable for the true operation and effect of the EWS reservation scheme,” In response to the Parliament’s decision to introduce the amendment, the judge stated that there was no need to extend those classes already covered by “yet another benefit” in reservation carved out for other economically weaker sections because those classes are already provided with reservation. He also stated that the quota set aside for the other classes under consideration is not depleted in any way by EWS reservation. The judge also observed that when there is a vertical reservation, exclusion becomes critical in order to benefit the target group. “The same principle has been applied for the affirmative action of the reservation to the groups of Socially and Economically Backward Classes (SEBCs), OBCs, SCs, and STs,” he said and added that their grievance “cannot be said to be a legal grievance to be agitated before the Court. “By excluding certain classes from receiving the benefit of reservation as EWS, we are balancing the requirements of non-discrimination and compensatory discrimination,” he observed.

Justice Bela M Trivedi: She agreed, stating that the SC/ST and backward classes, for whom special provisions have already been made, “form a separate category from the general or unreserved category” and cannot be treated equally with citizens from the general or unreserved category.

The judge also stated that the amendment created a separate class of economically disadvantaged citizens from the general/unreserved class and did not affect the reservations provided to the SC, ST, and backward classes of citizens. As a result, the judge concluded that their exclusion from the EWS category could not be considered discriminatory or a violation of the equality code.

She also stated that the amendment was introduced after the Parliament became aware of economically disadvantaged citizens being largely barred from accessing higher education institutions and public employment “due to their financial inability to compete with the persons who are economically more privileged.”

Justice Pardiwala: He claims that Article 16(4) is exhaustive, but only applies to reservations for backward classes. The judge pointed out that Article 16(4) does not provide an exhaustive interpretation of the concept of reservation as such, and thus it is not discriminatory to create a separate class of economically weaker sections as long as the reservation for backward classes is unaffected.

Justice Bhat and CJI UU Lalit: They both expressed strong disagreement on this point. He claimed that the amendment limits SC/ST/OBC to their pre-assigned reservation quotas, preventing them from receiving additional benefits aimed at addressing the specific discrimination they face as a result of social inequalities and bias. This, according to the judge, violates the principles of fraternity and further restricts the socially disadvantaged from receiving benefits based on economic deprivation.

On Breach of the 50% ceiling cap on Reservation
Justice Dinesh Maheshwari: He also stated that the argument that the state can implement any poverty-relief measure but cannot provide reservation for EWS is based on the assumption that reservation in our constitutional scheme is reserved only for Socially and Economically Backward Classes (SEBCs)/OBCs/SCs/STs. “Such an assumption is neither valid nor consistent with our constitutional scheme,” he asserted.

The judge also noted that the prescription of a ceiling limit of 50% for the benefit of general caste candidates provides no justification for candidates standing in “the bracket of already available reservation” to complain about the additional 10% reservation for the benefit of another section of society.

“Reservation for EWS of citizens up to 10% in addition to existing reservations does not result in violation of any essential feature of the Constitution of India, because the ceiling limit itself is not inflexible and it applies only to the reservations envisaged by Articles 15(4)[x], 15(5)[xi], and 16(4)[xii] of the Constitution of India,” the judge added.

Justice Pardiwala: He emphasised that, while economic reservation excludes socially backward classes, such a reservation provision is not prohibited by the Constitution. He cited other provisions that create reservations based on economic status, such as the Right to Free and Compulsory Education, to bolster his argument that reservations that are not based on social backwardness exist and do not violate the ideas of constitutional integrity.

Justice Ravindra Bhat and CJI UU Lalit: They both pointed out that, while there is no constitutional prohibition against creating financial reservations, we must remember the spirit of the Constituent Assembly debates and consider the founding nature of reservations. The judges stated that reservations, as intended by our forefathers, are community-centric rather than individual-centric. Reservations are intended to reverse social marginalisation, which has historically denied certain communities access to and an equitable playing field in society. Reservations are used to address this, not to cater to individuals or groups who have historically benefited from social capital and access.

On the time limit for reservation
Recalling that the Constitution framers and the Constitution Bench proposed in 1985 that the reservation policy have a time limit, Justice Trivedi stated that it has still not been achieved even after 75 years of independence. Further stating that it cannot be said that the caste system was responsible for the origin of the reservation system and that it was introduced to correct the historical injustice faced by members of the Scheduled Castes, Scheduled Tribes, and other Backward Classes, and to provide them with a level playing field to compete with members of the forward classes, She stated that the reservation system should be reconsidered “in the larger interest of society as a whole, as a step forward toward transformative constitutionalism.”

In reference to the 104th Amendment to the Constitution, which ended representation of the Anglo-Indian community in the Parliament and State Legislative Assemblies, Justice Bela M Trivedi stated that prescribing a similar time limit for the special provisions in respect of reservations and representations provided in Articles 15 and 16 of the Constitution “could be a way forward leading to an egalitarian, casteless, and classless society.”

MAJOR DRAWBACKS OF THE NEW EWS JUDGEMENT

The decision contradicts the constitutional scheme, which states that no segment of available seats/posts can be reserved solely on economic grounds. The EWS quota turned the concept of reservation as a tool of representation for marginalized people into a scheme for financial upliftment. Reservations were granted solely on an “anti-discrimination” basis, not on an “anti-depravation” basis.
The Union or state governments lack such data to demonstrate that ‘upper’ caste individuals earning less than Rs 8 lakh per year are underrepresented in government jobs and higher education institutions. There’s a good chance they’re over-represented in these places.
The government’s criteria for determining eligibility for this reservation are ambiguous and unsupported by data or research.
Backwardness must be assessed using a variety of criteria by committees established under Article 340 of the Constitution. Backward classes had representation, which required reservations to correct historical injustices; reservations could not exceed 50 % of seats as held in the judgement of Balaji v. State of Mysore[xiii] and; reservations had to balance “efficiency of administration” with social justice.
Furthermore, the Supreme Court questioned the government on whether it had considered GDP per capita in each state when determining the monetary limit for EWS reservations. According to statistics, the per capita income of states varies greatly: Goa has the highest per capita income of nearly Rs. 4 lakhs, while Bihar has the lowest at Rs.40,000.
WAY AHEAD

Equal educational opportunity: The Union and State Governments should take a long-term approach and work to improve education infrastructure (at all levels of primary, secondary, and higher education) and educational quality. Equal opportunities for quality and affordable education will reduce the struggle among more and more communities to get classified as ‘backward’.
Caste-based discrimination: Justice Bhat in his dissenting Judgment noted the remark of Dr Ambedkar that “reservations are to be seen as temporary and exceptional”. Unless and until caste-based discrimination is eradicated from society, the grounds for caste-based reservation will continue to exist and be valid.
Reservation has a negative impact on all categories except EWS because it reduces the competitive pool available to them. Empirically, it does not appear to be justifiable because EWS candidates are already well-represented in higher education institutions.
It is past time for the Indian political class to overcome its proclivity to continually broaden the scope of reservation in pursuit of electoral gains and recognise that it is not a panacea for all problems.
Instead of making reservations based on various criteria, the government should prioritise education quality and other effective social upliftment measures. It should instil a sense of entrepreneurship in them, making them job providers rather than job seekers.
CONCLUSION

The experts’ views on the judgement appear to be divided. Reservation is still a contentious and politically charged issue in India. The long-term solution is to raise awareness and eliminate all forms of discrimination through social and political mobilisation. Unless and until that happens, the status quo (on reservations) or demands for even more reservation expansion will continue. Reservation has historically been based on social inequalities. Despite having excellent credentials and grades, upper-caste or open-category candidates were denied employment. Justice for the upper castes does not imply injustice for the lower castes. This violates the natural justice principle. The exclusion of SC/ST and OBC from the EWS category, on the other hand, is debatable.

[i] AIR (2019) 10 SCC 27

[ii] Article 15 of the Constitution of India

[iii] Article 16 of the Constitution of India

[iv] EWS Quota (drishtiias.com) [Last visited on 25th December 2022]

[v] EWS Quota Case : Is Reservation For Representation Or Financial Improvement? Highlights From Supreme Court Hearing [Summary Of Arguments, Court Queries] (livelaw.in) [Last visited on 25th December 2022]

[vi] Article 15(6) of the Constitution of India

[vii] Article 16(6) of the Constitution of India

[viii] AIR (2006) 8 SCC 212

[ix] AIR 1993 SC 477

[x]Article 15(4) of the Constitution of India

[xi] Article 15(5) of the Constitution of India

[xii] Article 16(4) of the Constitution of India

[xiii] AIR 1963 AIR 649