A Constitution Bench of the Supreme Court, in a 3:2 majority decision, upheld the validity of the 103rd Constitutional Amendment, which provides 10% reservation in government jobs and educational institutions to the Economically Weaker Sections (EWS) of society.

What else?

• The judgment excludes the “poorest of poor” among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope.

What was the 103^rd Amendment?

• The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to the economically weaker sections (EWS) among non-OBC and non-SC/ST sections .
• In other words, the amendment had changed the Constitution and introduced a quota for the poor among the so-called ‘forward castes’ or ‘general category’.

Quota available to EWS

• The quota is available in:

1. Admissions to higher educational institutions and
2. Initial recruitment in central government jobs

• The amendment also empowered state governments to provide reservation on the basis of economic backwardness.

On what basis was the quota challenged?

Ans. Violation of Basic Structure

• Violation of basic structure: Essentially, the challenge was based on the argument that the 103rd amendment violated the “basic structure” of the Constitution.
• Socially disadvantage: The primary argument in this case stemmed from the view that the special protections guaranteed to socially disadvantaged groups is part of the basic structure.
• Sole economic criterion: The 103rd Amendment departs from this by promising special protections on the sole basis of economic status.

Key arguments by the Judges

[A] Majority Opinion

Three judges, Justices Dinesh Maheshwari, Bela Trivedi, and S B Pardiwala, have upheld the validity of the 103rd amendment.

1. Justice Dinesh Maheshwari: He has ruled that reservation based only on economic criteria does not violate the basic structure of the Constitution, and that the exclusion of classes covered in Article 15(4) and 16(4) — that is OBCs and SC/STs — in the 103rd amendment does not damage the basic structure.
2. Justice Bela Trivedi: She has concurred with Justice Maheshwari. She ruled that treating EWS as a separate class would be a reasonable classification, and that treating unequals equally would violate the principle of equality under the Constitution.
3. Justice Trivedi: He said that 75 years after independence, it was time to revisit the system of reservation in the larger interest of society.
4. Justice S B Pardiwala: He concurred with Justice Maheshwari and Justice Trivedi. He observed that “Reservation is not an end, it is means, it should not be allowed to become a vested interest.

[B] Minority (Dissenting) Opinion

1. Justice Bhat: He has ruled that while reservation on economic criteria is per se not violative of the Constitution, excluding SC/ST/OBC from the purview of EWS is violative of basic structure. He has struck down Articles 15(6) and 16(6) for being discriminatory and violative of the equality code.
2. CJI Lalit: He said he concurs entirely with the judgment of Justice Bhat.

What about the 50% ceiling on quotas?

• The judgment appears to have struck down the ceiling of 50%.
• Justice Maheshwari said that reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible.

How the judiciary deviated from its earlier judgments?

• However, the dissenting opinion says that permitting breach of 50% would result in compartmentalization, and the rule of right to equality will become right to reservations.
• The apex court has repeatedly underlined the 50% ceiling on reservations imposed by the landmark Indra Sawhney judgment of 1992.
• On that basis, attempts by a number of states have been struck down.
• Several of those issues can now be reopened. Now states can rebel with their populist moves to provide reservations to some communities. Ex. Nomadic Tribes case in Maharashtra.

What is the EWS Quota?

• The EWS criteria for employment and admission was notified on January 31, 2019 by the Department of Personnel and Training (DoPT) based on the 103rd Amendment.
• Under the 2019 notification, a person who was not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, was to be identified as EWS.
• The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.

Broad issues with EWS quota

• 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 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.

Way forward

• Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country.
• Rational criteria: There has to be collective wisdom to define and measure the economic weakness of certain sections of 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 center 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.

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