Supreme Court’s Judgment on EWS Reservation – Explained, pointwise

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Introduction

A 5-Judge Bench of the Supreme Court has upheld the validity of the 103rd Constitutional Amendment Act (Janhit Abhiyan v. Union Of India). The Act has introduced 10% reservation for the Economically Weaker Sections (EWS) in education and public employment. The Act was challenged before the Supreme Court as violative of the Constitution of India in August 2020. The Supreme Court, through a 3:2 verdict, has upheld its validity. There have been widely differing reactions to the SC’s Judgment. The Judgment has both been praised and labelled as discriminatory by various legal and policy experts.

What are the provisions of Reservation for EWS?

The 103rd Amendment Act provides for reservation of jobs in the Central Government jobs as well as Government educational institutions. It is also applicable on admissions to private higher educational institutions.

It applies to citizens belonging to the Economically Weaker Sections (EWS). This reservation is “in addition to the existing reservations and subject to a maximum of 10% of the total seats in each category”. It mandates Article 46 of the Constitution (Directive Principle) that urges the Government to protect the educational and economic interests of the weaker sections of society.

The Act has amended Articles 15 and 16 of the Constitution.

Article 15 (6) has been added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, (whether aided or unaided by the State).  The minority educational institutions referred to in clause (1) of Article 30 have been excluded. The amendment aims to provide reservation to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs and OBCs).

Article 16 (6) has been added to provide reservations to people from economically weaker sections in government posts. An explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage”.

Challenges to the 103rd Constitutional Amendment Act EWS Reservation SC Judgment UPSC

Read More: Income Criteria for the Economically Weaker Sections (EWS) in India – Explained, pointwise
What has been the decision of the SC regarding the Reservation for EWS?

The 5-Judge Bench of the Supreme Court has upheld the validity of the 103rd Constitutional Amendment Act. The Bench, by a 3:2 majority, held that the Act is not violative of the basic structure of the Constitution. 3 Judges (Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala) decided in the favor of the Act, while 2 Judges (Justice S Ravindra Bhat and U U Lalit (now retired)) dissented.

What were the questions considered by the SC in the EWS Judgment?

During the hearing, the Attorney General, representing the Government of India, had drafted 4 issues for the consideration of the Bench. These were whether the 103rd Constitution Amendment Act breaches the basic structure of the Constitution by:

(A) Permitting the State to make special provisions, including reservation, based on economic criteria

The majority of the Judges held that poverty is an adequate marker of deprivation that the State can address through reservations. The SC in its earlier Judgments had held that “economic criteria cannot be the sole basis for determination of backwardness“. The Judgment in this case held that this is somewhat restricted to the reservation provided to Social and Economically Backward Classes (SEBC), and EWS is deemed a separate and distinct category.

The majority opinion held that while economically weaker sections (EWS) of the citizens are not declared as socially and economically backward classes (SEBCs) for the purpose of Article 15(4) of the Constitution, separate reservations are not barred by the Constitution (like provisions under free and compulsory primary education).

Hence, it is not violative of the basic structure.

(B) Excluding the SEBCs/OBCs/SCs/STs from the scope of EWS Reservation

The SC held that there cannot be competition of claims for affirmative action based on disadvantages. Reservation cannot be denied to one section (the EWS) because that segment is otherwise not suffering from other disadvantages.

Article 16(4) is exhaustive for reservation in favour of backward classes but the section is not exhaustive of the concept of reservation. The provisions of the Amendment Act have introduced another affirmative action that is separate and distinct.

Hence, it is not violative of the basic structure.

(C) Breach of 50% ceiling for reservations

Background: In the Indra Sawhney Case (1992), a 9-judge Bench of the SC had upheld 27% quota for OBCs but had struck down the 10% quota based on economic criteria. The SC had further held that reservation cannot cross 50%, unless a special case was made out in “extraordinary situations and peculiar conditions”.

In the present Judgment, the SC held that the 50% ceiling is for backward classes and it “overstretched to the reservation provided for entirely different class, consisting of the economically weaker sections”.

(D) Permitting the State to make special provisions for admission to private unaided institutions

Under Article 15(5) of the Constitution, the State has power to make reservations in private educational institutions. Reservations in private institutions is not per se violative of the basic structure. Reservations as a concept cannot be ruled out in private institutions where education is imparted. The view concurred with the earlier Judgment in the Pramati & Society for Unaided Private Schools (2014).

Hence the provisions of the 103rd Constitution Amendment Act do not breach the basic structure of the Constitution.

What is the minority view of the SC Bench?

The minority view has come from Justice S Ravindra Bhat and Chief Justice of India U U Lalit (now retired).

On Economic Criteria: Laws that give benefits based on “only economic criteria” don’t violate the right to equality on their own. However, the Constitution says that reservations can only be about the community and not about the individual. So while access “to public goods” such as tax breaks, subsidies can be allowed, reservation in public employment would not be permissible.

On Exclusion of SCs/STs/OBCs/SEBCs: Their exclusion is unconstitutional. (a) Those subjected to socially questionable and outlawed practices have been excluded. They are amongst the poorest sections of society. Excluding them goes against the idea of fraternity; (b) The exclusion virtually confines SC/ST/OBC within their allocated reservation quotas (15% for SCs, 7.5% for STs, 27% for OBCs); (c) It denies the chance of “mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation”.

It would be arbitrary to exclude socially backward classes on the ground that they already enjoy quota benefits.

On Breach of 50% Limit: The breach of 50% rule could “eat up the rule of equality” and become “a gateway of further infractions” which in fact would result in compartmentalisation. The rule of equality would then be reduced to the right of reservation. The minority Judges noted that in this regard the observations of Ambedkar have to be kept in mind that reservations are to be seen as temporary and exceptional or they could eat up the rule of equality.

The view of the bench regarding private institutions was concurrent.

What should the approach going ahead?

Equal opportunity in education: The Union and State Governments should take a long-term view and work to improve the education infrastructure (at all levels primary, secondary, higher education) and the quality of education. Equal opportunities to 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 the Dr. Ambedkar that “reservations are to be seen as temporary and exceptional”. Unless, the caste-based discrimination is eliminated completely from the society, the grounds for caste based reservation will exist and remain valid.

Conclusion

The opinion of experts on the Judgment seems to be divided. Reservation remains an emotive and politically sensitive issue in India. The long term solution lies in sensitization and eliminating discrimination of all kinds through social and political mobilization. Unless that happens, status quo (on reservations) or demands for even further expansion of reservations will continue.

Syllabus: GS I, Social Empowerment; GS II, Government policies and interventions for development in various sectors and issues arising out of their design and implementation; GS II, Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes.

Source: Indian Express, The Hindu, The Times of India, Mint, Live Law

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