A five-judge Constitution Bench led by CJI U.U. Lalit are hearing petitions challenging the 10% quota for the economically weaker sections (EWS) and an Andhra Pradesh law that grants reservation to Muslims.

What is the news?

• The five-judge Bench, led by CJI, is considering the validity of the 103rd Constitutional Amendment.
• The said amendment provides the 10% reservation to economically weaker sections (EWS) of society in government jobs and educational institutions.
• Economic reservation was introduced by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness.

EWS Quota: A backgrounder

• The 10% reservation was introduced through the 103rd Constitution Amendment and enforced in January 2019.
• It added Clause (6) to Article 15 to empower the Government to introduce special provisions for the EWS among citizens except those in the classes that already enjoy reservation.
• It allows reservation in educational institutions, both public and private, whether aided or unaided, excluding those run by minority institutions, up to a maximum of 10%.
• It also added Clause (6) to Article 16 to facilitate reservation in employment.
• The new clauses make it clear that the EWS reservation will be in addition to the existing reservation.

Significance of the quota

• The Constitution initially allowed special provisions only for the socially and educationally backward classes.
• The Government introduced the concept of EWS for a new class of affirmative action program for those not covered by or eligible for the community-based quotas.

What are the court’s questions about the criteria?

• Reduction within general category: The EWS quota remains a controversy as its critics say it reduces the size of the open category, besides breaching the 50% limit on the total reservation.
• Arbitrariness over income limit: The court has been intrigued by the income limit being fixed at ₹8 lakh per year. It is the same figure for excluding the ‘creamy layer’ from OBC reservation benefits.
• Socio-economic backwardness: A crucial difference is that those in the general category, to whom the EWS quota is applicable, do not suffer from social or educational backwardness, unlike those classified as the OBC.
• Metropolitan criteria: There are other questions as to whether any exercise was undertaken to derive the exceptions such as why the flat criterion does not differentiate between metropolitan and non-metropolitan areas.
• OBC like criteria: The question the court has raised is that when the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome.
• Not based on relevant data: In line with the Supreme Court’s known position that any reservation or norms for exclusion should be based on relevant data.
• Breaches reservation cap: There is a cap of 50% on reservation as ruled in the Indira Sawhney Case. The principle of balancing equality ordains reservation.

What is the current status of the EWS quota?

• The reservation for the EWS is being implemented by the Union Government for the second year now.
• Recruitment test results show that the category has a lower cut-off mark than the OBC, a point that has upset the traditional beneficiaries of reservation based on caste.
• The explanation is that only a small number of people are currently applying under the EWS category — one has to get an income certificate from the revenue authorities — and therefore the cut-off is low.
• However, when the number picks up over time, the cut-off marks are expected to rise.

Practical issues with EWS Quota

The EWS quota will come in for judicial scrutiny soon. But it’s not only a matter for the judiciary, India’s Parliament should revisit the law too.

• Hasty legislation: This law was passed in haste. It was passed in both the houses within 48 hours, and got presidential approval the next day.
• Minority appeasement: It is widely argued that the law was passed to appease a certain section of upper-caste society and to suppress the demands for minority reservations.
• Morality put to question: Imagine! A constitutional amendment has been made with few hours of deliberation and without consultation of the targeted group. This is certainly against constitutional morality and propriety.
• Substantial backing is missing: This amendment is based on a wrong or unverified premise. This is at best a wild guess or a supposition because the government has not produced any data to back this point.
• Under-reservation of Backward Classes: The assertion is based on the fact that we have different data to prove the under-representation of SC, ST, OBCs. That implies that ‘upper’ castes are over-represented (with 100 minus reservation).
• Rationale of 10%: There is one more problem in this regard. The SC and ST quota is based on their total population. But the rationale for the 10 per cent quota was never discussed.
• Principle of Equality: Economic backwardness is quite a fluid identity. It has nothing to do with historic wrongdoings and liabilities caused to the Backward Classes.

Way forward

• Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country.
• Rational critera: There has to be collective wisdom to define and measure the economic weakness of certain sections of the society in order to shape the concept of economic justice.
• Judicial guidance: Judicial interpretation will pave the wave forward for deciding the criterion for EWS Quota.
• Targetted beneficiaries. The centre needs to resort to more rational criteria for deciding the targeted beneficiary of this reservation system. Caste Census data can be useful in this regard.
• Income study: The per capita income or GDP or the difference in purchasing power in the rural and urban areas, should be taken into account while a single income limit was formulated for the whole country.

Conclusion

• Reservation is a constitutional scheme to ensure the participation of backward classes shoulder to shoulder with all citizens in the nation-building process.
• The EWS quota with above discussed ambiguities is the subversion of the constitutional scheme for reservation.

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