SC upholds the constitutional validity of EWS quota in 3:2 verdict

Reservation is an instrument of affirmative action to ensure an all-inclusive march toward the goals of an egalitarian society, the verdict says

The Supreme Court (SC) on Monday upheld the 10 per cent reservation for the economically weaker section (EWS) among forward castes in government jobs and colleges across India.

A Bench comprising Chief Justice of India (CJI) U U Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala delivered the judgment.

Of the five judgments delivered, Justice Ravindra Bhat and CJI Lalit gave dissenting judgment.

Reading out the verdict, Justice Maheshwari said that the 103rd constitutional amendment for the EWS quota was valid and did not violate the basic structure of the Constitution. Reservation, he said, is an instrument of affirmative action to ensure an all-inclusive march towards the goals of an egalitarian society.

“Reservation is an affirmative action measure not only for the socially and economically backward classes, but for any disadvantaged section. Therefore, reservation solely on an economic basis does not violate the Constitution,” he observed.

He also pointed out that the breach of the 50 per cent ceiling (laid down by the SC in the Indra Sawhney judgment) for reservation was applicable only for reservation concerning socially backward classes under Articles 16(4) and 16(5) of the Constitution (state can make a reservation for any backward class).

Agreeing with Justice Maheshwari, Justice Bela M Trivedi ruled that the amendment enabling the state to make special provisions for other than Scheduled Castes/Scheduled Tribes (SCs/STs) should be treated as affirmative action by Parliament. 

“Legislature understands the needs of the people and is aware of the economic exclusion of the people from reservation,” ruled Justice Trivedi.

She said the concept of reservation needs to be reexamined. “At the end of 75 years, we need to take a relook at reservations in general in the spirit of transformative constitutionalism,” she ruled.

Meanwhile, Justice J B Pardiwala said the 103rd constitutional amendment is valid, and agreed with Justices Bela M Trivedi and Maheshwari. He suggested putting an end to the continuance of reservation indefinitely.

“The ones who have moved ahead should be removed from backward classes, so that the ones in need can be helped. Reservation should not continue for an indefinite time that it becomes a vested interest,” he said.

Dissenting voices

On the other hand, Justice Ravindra Bhat and CJI Lalit disagreed with the majority verdict on the validity of the 103rd constitutional amendment.

Justice Bhat said the amendment practiced constitutionally prohibited discrimination and struck at the heart of the equality code.

“Allowing breach of the 50 per cent cap set on the reservation can lead to further infractions which can result in compartmentalisation,” said Justice Bhat.

He said that while reservation on economic basis is permissible, excluding SCs/STs and Other Backward Classes (OBCs) from EWS cannot be permitted and amounts to discrimination against them.

He also highlighted the Sinho Commission report which examined a large number of the SC/ST population falling below poverty line (BPL).

“The Sinho Commission was set up to determine economic backwardness and was based on the Census of 2001. It says 38 per cent of the total SC population and 48 per cent of the total ST population were BPL. The bulk of the economically deprived are these sections,” he pointed out.

He also did not accept the breach in the 50 per cent ceiling set by Indra Sawhney.

“The present amendment is unconstitutional for excluding SCs/STs and OBCs,” he said.

Talking to Business Standard, Co-founder and Team Lead of Vidhi Centre for Legal Policy Alok Prasanna Kumar said the judgment is poorly reasoned, contrary to established law, and comes from a place of distaste for the constitutional goal of equality.

“While the immediate impact is that upper castes are guaranteed 10 per cent of seats/jobs with no competition, the larger danger is that this logic will be used to deprive reservations to SC/ST/OBC communities by imposing artificial economic criteria on them,” he said.

He, however, added that the judgment will not impact other reservation cases as such because the Indra Sawhney case (of a much larger Bench) still holds the field on the 50 per cent limit. Further, he said the court has said that the 50 per cent limit applies only to SC/ST/OBC reservations and not to EWS reservations.”

Even the Indra Sawhney case was clear that the 50 per cent rule was with justified exceptions in limited circumstances. “That has not changed,” he said.

Meanwhile, Wasim Beg, partner, Luthra & Luthra — Law Offices India, said while it is an established principle that the creation of class within a class, with rationale behind it, is not opposed to the guarantee of equality under Article 14, it is a point that shall remain under discussion and debate for some time to come, along with the larger question of continuing with reservations indefinitely.

In January 2019, Parliament inserted a clause in Articles 15 and 16 of the Constitution, which allowed people from EWS to avail of reservations in jobs and educational institutions. The clause empowered states to give reservations in both aided/non-aided private and government educational institutions. However, minority educational institutions were exempted from such reservations. The ceiling of the reservation was 10 per cent, which would add to the existing other reservations.

After reservation was implemented, a batch of petitions was filed by non-governmental organisations Janhit Abhiyan and Youth for Equality, and others, in the apex court to decide whether the grant of 10 per cent reservation violated the 50 per cent ceiling cap on quota and if ‘economic backwardness’ alone could be the sole criterion for granting quota in government jobs and educational institutions for those under general quota.

Three questions of EWS

The former Attorney General for India K K Venugopal had posed three questions in the pleas challenging the constitutional validity of the 10 per cent quota for EWS.

The three issues are as follows:

1. Whether the 103rd amendment can be said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria?

2. Whether the 103rd amendment can be said to breach the basic structure of the Constitution by permitting the state to make special provisions about admission to private unaided institutions?

3. Whether the 103rd amendment can be said to breach the basic structure of the Constitution in excluding SEBCs/OBCs/SCs/STs from the scope of EWS reservation?