EWS verdict underscores that judiciary has been a reluctant supporter of caste-based reservation

Source: The post is based on the following articles

“EWS verdict underscores that judiciary has been a reluctant supporter of caste-based reservation” published in the Indian Express on 8th November 2022. 

“Economics, exclusion” published in The Hindu on 8th November 2022. 

“Explainer: Why EWS quota became such a tangled legal debate” published in The Times of India on 8th November 2022. 

Syllabus: GS 2 – Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Relevance: About the validity of 103rd constitutional amendment.

News: The Supreme Court has now upheld the validity of the 103rd constitutional amendment which provided 10% reservation for economically backward communities.

What are the salient features of the 103rd constitutional amendment?
Read here: 103rd constitutional amendment
How courts viewed the reservation in various instances?

Right from the Dorairajan case (1951) to M R Balaji (1963) to Indra Sawhney (1992) to M Nagaraj (2006) shows that the Indian judiciary has not been quite supportive of such policies. In Indra Sawhney (1992), the Court even struck down a provision for 10% reservation for economically backward sections, on the ground that the Constitution does not provide for reservation solely based on economic criteria.

In many cases, the court created new conditions in the implementation of such policies by introducing several exclusions/doctrines/rules etc. For instance, a) Parliament had to amend the Constitution through the 77th amendment to overturn Indra Sawhney judgment against reservation in promotions, b) The 85th constitutional amendment was passed to undo the Virpal Singh Chauhan (1995) and Ajit Singh (1999) judgments that had introduced the “catch up rule.

Note: Under the rule, general candidates, who are promoted after SC/ST candidates, will regain their seniority over earlier promoted SC/ST candidates. 

About Courts vs Constitutional amendments

Constitutional amendments are rarely struck down. This is because the amendments can be struck down only on the narrow ground of being violative of the basic structure of the Constitution.

Since 1973, when the basic structure doctrine was propounded, over 70 amendments had been passed but only five have so far been struck down. The NJAC was the last one in 2016.

As per M Nagaraj case (2006), there are two tests that courts use in any challenge on the ground of basic structure. They are 1) The Width test: This test examines the boundaries of amending power and 2) The identity test: In this, the Supreme Court examines whether the latest amendment alters the identity of the Constitution.

In the present case also making them invalid is difficult as EWS was virtually a fait accompli (mission accomplished). For instance, GoI had approved the creation of over two lakh seats in central universities. Rolling back such steps is easier said than done. A number of states have also begun implementing the EWS quota.

Must read: 103rd constitutional amendment present a more difficult judicial examination than usual
How does the 103rd constitutional amendment stand against basic structure according to the judgment?

According to judges,

-The basic structure doctrine does not bind Parliament from laying down the economic criterion. Such a basis does not impinge on the equality code of the Constitution.

-India’s affirmative action programme so far was catering to only historical injustices and social backwardness. The extension of this benefit to others won’t change the identity of the Constitution.

-In exclusion of SC/ST/OBC categories (from EWS quota), the court said such an exclusion was inevitable for the true operation and effect of the new policy. Also, If existing beneficiaries are not excluded, it would amount to excessive benefits and advantages.

– A number of judgments in which poverty was mentioned as a fundamental source of backwardness. Hence, the reservation on an economic basis is valid.

Read more: Supreme Court, in a majority verdict, upholds constitutional validity of EWS quota
What are the required changes in the 103rd constitutional amendment?

Opening up the EWS quota to all: The objective of economic emancipation could have been better achieved if the income-based reservation had been thrown open to all sections of society.

Reduce the income ceiling: The income ceiling perhaps can be kept at the same level as the income tax slab. In fact, the existing income criterion of ₹8 lakh a year has already been questioned by the Court in a separate case, as it is liable to result in excessive coverage of socially advanced classes.

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