Manas Dasgupta
NEW DELHI, Nov 7: In a big win for the government, the Supreme Court by a majority verdict on Monday backed the 10 per cent reservation in jobs and education for the Economically Weaker Sections (EWS) among the non-reserved categories of the citizens introduced just before the 2019 general elections.
The five judge bench by a majority of three to two decisions upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation in government jobs and educational institutions to the ‘economically weaker sections of the society but excludes the poor among the already reserved categories of Scheduled, Castes and Tribes and the Socially and Educationally Backward Classes (OBC) from its ambit.
Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala delivered the majority opinions on the five-judge Bench in an hour-long session which saw the pronouncement of a Constitution Bench judgment live-streamed for the first time. The retiring Chief Justice of India UU Lalit and justice Ravindra Bhat delivered the dissenting order.
The three judges ruled that the EWS quota was not discriminatory and does not alter the basic structure of the constitution while Justice Bhat said he supported quota for the economically backward, but the exclusion of the socially backward sections is not allowed in the constitution. “Economic destitution, economic backwardness is backbone of this amendment and on this account, amendment is constitutionally indefeasible. However, excluding the classes such as Scheduled Caste/Scheduled Tribes, Other Backward Classes (OBC) is not constitutionally permissible,” Justice Bhat said. The Chief Justice said: “I have concurred with the view taken by Justice Bhat. The decision stands at 3:2.”
The EWS quota was introduced through the 103rd constitutional amendment, cleared in January 2019 by the Centre soon after the ruling BJP lost the Madhya Pradesh, Rajasthan and Chhattisgarh elections. It was instantly challenged in the Supreme Court.
The quota bypassed affirmative action that benefits communities traditionally marginalised in Indian society, like the SC, ST and OBC. Petitions had questioned how the quota could cross the 50 per cent national cap on reservation set by the Supreme Court in 1992 and whether it changed the “basic structure” of the constitution. The quota was “a deceitful and backdoor attempt to destroy concept of reservation”, said petitioners.
Most opposition parties, including the Congress, did not oppose the law. But as many as 40 petitions were heard by the Supreme Court against it, including by the state of Tamil Nadu, which has among the highest reservation in the country.
The case was first presented before three judges, who referred it to a larger five-judge bench in 2019. This September, the court held a marathon six-and-half-day hearing of the case and reserved its verdict. The government argued that the quota would help bring people out of poverty and would not cut into existing reservation for backward classes or reduce seats for the general category.
In court, one of the judges, Justice JB Pardiwala, said reservation should not continue for an indefinite time so that it becomes a vested interest. “The ones who have moved ahead should be removed from backward classes so that ones in need can be helped. The ways to determine backward classes need a re- look so that ways are relevant in today’s time,” said the judge.
The majority judgement held that the 10% EWS quota to “poorest of poor” among forward castes did not pose any danger to the Basic Structure of the Constitution. The three judges concluded that exclusion of SCs, STs, SEBCs and OBCs from the scope of the EWS reservation did not violate the equality code.
Justice Trivedi held that “unequals cannot be treated equally” as SCs, STs, SEBCs and OBCs already enjoy reservation and cannot be treated equally with the economically weaker sections. In their separate but concurring opinions, Justices Trivedi and Pardiwala, however, said reservations should be put on a timeline.
EWS quota makes persons with less than ₹8 lakh gross annual family income eligible. Petitioners had argued in court that the exclusion of backward classes left only the middle class among the forward castes to reap the benefits of the EWS quota.
The three judges noted that EWS quota did not breach the ceiling limit of 50% placed by the Indira Sawhney judgment on reservations as the state can make “special provisions from time to time in the March towards an “all-inclusive egalitarian society”. The EWS quota, the three judges said, amounted to an “affirmative action” on the part of the state.
Chief Justice U.U. Lalit, on his last working day, concurred with the minority view of Justice S. Ravindra Bhat, who held that reservation on the basis of economic criterion was “per se permissible” but the Constitutional Amendment should be struck down as it excluded the equally poor and deprived SCs, STs, SEBCs and OBCs from its ambit.
Justice Bhat, who authored the minority view for himself and the Chief Justice, said it was not right on the part of the government to say that opening up EWS quota to backward classes would give them a “double benefit”.
Reservation was devised as a reparative mechanism to bring the historically deprived to the mainstream and not a “free pass”. Quota was a system to undo social stigmatisation caused by unequal access to education, jobs, etc.
Categorising the poorest of poor on the basis of caste and class amounts to “constitutionally prohibited discrimination” and strikes at the very essentials of the “Non-Discriminatory Rule”. He said the Constitution prescribes fraternity as a deeply embedded principle of society. All human beings born of the same natural process should get equal access to avenues of opportunity to make it to the mainstream.
However, Justice Bhat agreed with the minority view that the state can legitimately make special provisions for the poorest of poor based on economic criteria. This was not violative of the Basic Structure of the Constitution. His only point of difference with the majority judgment was regarding the exclusion of the backward classes from the EWS quota.
The three issues which the Bench examined on reference included whether the amendment breaches the Basic Structure by permitting the state to make special provisions, including reservation, based on economic criteria; whether the amendment violates the Basic Structure by allowing the state to make special provisions in relation to admissions to private unaided institutions; and whether the Basic Structure is trampled upon by the constitutional amendment by excluding SEBCs/OBCs/SCs/STs from the scope of the EWS quota.
The challenge to the 103rd Constitutional Amendment was referred to a five-judge Bench in August 2020. The three-judge Bench, which had referred the case to the larger Bench, had refused to stay the implementation of the amendment. Economic reservation was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness.