EWS RESERVATION CASE

JANHIT ABHIYAN v. UNION OF INDIAN

WRIT PETITION (CIVIL) NO. 55 OF 2019[i]

ABSTRACT

The 103rd Amendment, which gives Economically Weaker Sections (EWS) a 10% reservation in colleges and universities and government positions, was affirmed on November 7, 2022, by a 3:2 decision of a five-judge Supreme Court panel. According to recent statements made by India’s Attorney-General, KK Venugopal, the 10% quota for the economically weaker segments of society does not impair the fundamental freedoms of the Scheduled Castes, Scheduled Tribes, or Other Backward Classes. The 2019 Constitution (103rd Amendment) Act, which officially became effective on January 14, 2019, was contested by the petitioner in the case Janhit Abhiyan v. UoI. The Indian Constitution’s new provisions in Articles 15 and 16 are impacted by this modification. Article 15 addresses “non-discrimination built around religion, race, caste, sex, or national origin,” while Article 16 addresses “equality in public service.”

INTRODUCTION

Giving economically vulnerable groups in society a 10% reserve violates the SC’s declaration that there should be a 50% maximum on quotas, the Supreme Court recently decided in front of a panel of five judges. The “substantial legal question” about if the ceiling cap is broken is considered. According to the Supreme Court, the primary issue before constitutional judges is whether “economic backwardness” may be the only factor considered when allocating quotas to governmental organizations and educational institutions. The Centre contended that it was within each state’s purview to grant students engaged in state entities and government-run educational institutions a 10% economic reservation.

CURRENT RESERVATION SCENARIO

• As of right now, 49.5% of India’s land is reserved. The total is 59.5% when the 10% extra allocation for EWS is taken into account.

• the Scheduled Tribe Listed Castes, and other economically disadvantaged groups each have quotas of 7.5%, 15%, and 27%.

• In the event the Economically Weaker Section Quota Bill is passed into law, only 40.5% of seats in higher learning institutions and positions of employment will be distributed according to candidates’ merit.

RESERVATION PERIOD FOR EWS

Articles 15 and 16 were modified, and provisions granting state governments the power to establish economic backwardness reservations were inserted, by the Constitution (103 Amendment) Act of 2019.

The proposed amendment bill will define the Economically Weaker Section (EWS) as having an annual disposable income of no more than Rs 8 lakh, agricultural property no larger than five acres, a residence no larger than 1000 square feet, a residence no larger than one hundred yards in notified local governments, and a residence no larger than 200 yards in size in unnotified municipalities.[i]

THE NEW EWS JUDGMENT’S IMPORTANCE

The 10% quota is proactive and could solve concerns with educational and financial disparities in India, where residents from economically disadvantaged backgrounds have been prevented from enrolling in institutions of higher learning and finding jobs in the public sector because of a lack of resources.

Other than the lower classes, many other persons and groups experience hunger and poverty. The proposed constitutional change will give the lower caste poor constitutional recognition.

Additionally, since reservations have historically been linked to caste and the upper caste typically looks down on those who enter through reservations, it will progressively eliminate the stigma that is associated with reservations.[ii]

THE 103RD AMENDMENT OF THE CONSTITUTION

Added Article 15(6): Up to 10% of seats for EWS may be reserved for enrollment to educational institutions. Minority-serving educational institutions will not be subject to these limitations.

New Article 16(6): This stipulates that up to 10% of the total government employment may be set aside for EWS.

Besides being subject to the current reserve maximum of 50 percent for Scheduled Castes, Scheduled Tribes, and OBCs, those from economically disadvantaged backgrounds will be eligible for reservations of up to 10%.

The federal government will inform citizens about the EWS based on household earnings and other signs of economic disadvantage.

CHALLENGES AROSE OUT OF THE 103RD AMENDMENT

To balance the opportunity equality of the underprivileged classes “against” their right to equality of all other individuals, a 50% maximum restriction on seats that are reserved was set, which is against equality rules. The quota standard is broken when it rises beyond 50%.

A Constitution Bench held in M. Nagaraj v. Union of India (2006)[iii] that equality is a fundamental component of the Constitution. Without the constitutional necessity for the 50% cap, the system of equal opportunity would disintegrate.

• The upper caste is fully represented in public jobs, which is sufficient. It’s not apparent whether the government can provide concrete evidence that those from lower-income categories are underrepresented in government employment.
• The present definition of EWS has the drawback of being overly inclusive and includes significant portions of the population.
• Beneficiary identification: Implementing economic eligibility requirements would be a logistical nightmare in a nation where the taxable population is still relatively low as a result of income fraud.
• “Pandora’s box”: Certain OBC and SC/ST groups would prefer similar subcategorization based on economic standards within their quotas.
• Allocation is not a program to reduce poverty: Because the Constitution primarily addresses social backwardness, the Supreme Court invalidated the 10% provision for the economically disadvantaged according to the Indira Sawhney case (1992)[iv].
• Special provisions that go against the Constitution’s basic principles, such as economic-based hiring and educational preferences, are entirely invalid. It is illogically unfair and contradicts the foundational principles of the Constitution to deny the benefits of these specific provisions for EWS to socially and educationally underprivileged groups (SCs, STs, and OBC-NCLs).

OPINIONS OF THE FIVE-JUDGE PANEL ON THE SUBJECT

Judges Dinesh Maheshwari, Bela M. Trivedi, and J.B. Pardiwala were in favor of the alteration, while Chief Justice UU Lalit and Justice Ravindra Bhat were against it. The amendment was maintained by a 3:2 margin. Justices Dinesh Maheshwari, S. Ravindra Bhat for himself and on behalf of the Chief Justice, Bela M. Trivedi, and J.B. Pardiwala rendered four distinct rulings following a week-long hearing on the matter.

The judgments read as follows:

1. Constitution’s fundamental principles being violated

To what extent the 103rd amendment, thereby allocates a 10% reserve for EWS, infringes on the fundamental principle of equality stated in the Constitution, is one of the key legal questions in the current dispute. The majority of individuals think that the constitutional need for equality is upheld by the proposed amendment.

• Justice Dinesh Maheshwari: He emphasized that the EWS reservation does not result in any form of unfair discrimination and that it cannot be stated that a constitutional amendment that “moderately abridges or alters the equality principles” violates the fundamental structure of the government. The judge continued by examining the equality doctrine, pointing out that the major argument against the amendment was that it would remove the Equality Code and therefore undermine the Constitution’s fundamental principles. Additionally, he said that reservations cannot be seen as a fundamental aspect of the Constitution “that cannot be modulated, or whose modulation for a valid reason, including the benefit of any section other than the sections who are already protected.” He in his judgment ruled“Reservation is an instrument not only for the inclusion of socially and educationally backward classes to the mainstream of society but, also for the inclusion of any class or section so disadvantaged as to be answering the description of a weaker section. Thus, reservation based solely on economic criteria does not violate any essential feature of the Indian Constitution,”
• Concurring, Justice Trivedi said that the amendment could not be characterized as a “shocking, unconscionable, or unscrupulous travesty of the quintessence of equal justice,” as the petitioner’s attorney had argued.
• On the same grounds, Justice JB Pardiwala concurred with Justice Maheshwari and Justice Trivedi.
• Chief Justice UU Lalit and Justice Ravindra Bhat: They both published opposing views on this topic, pointing out that meanwhile taking into account reservation information based on financial standards is not in and of itself a constitutional breach, the situation is more complicated than it first looks. The fundamental principles and characteristics of our constitutional ethics are addressed in the Constitution.
• Regarding the category’s exclusion from EWS reservation for SC/ST/OBC/NCL

The petitioners said that barring those from the SC/ST/OBC-NCL categories from the benefits of EWS allocation contradicts democratic norms and principles since they are the lowest of the poor. While the argument first seems to have some validity, Justice Dinesh said that a moment of reflection and a deeper examination shows that the petitioners’ complaint is still totally unjustifiable.

• Concerning the reservation cutoff date

Justice Trivedi recalled that the Constitution’s authors and the Supreme Court constitutional Bench suggested in 1985 that the policy on reservations have a time limit, and he said that despite 75 years of independence, this goal has still not been met. She went on to say that the reservation system should be reexamined “in the larger interest of society as a whole, as a step forward, toward transformative constitutionalism” adding that it cannot be claimed that the caste system was to blame for its inception and that it was put in place to address the past atrocities experienced by individuals from the Scheduled Castes, ST, and other Backward Classes and to give them an even opportunity to compete with members of the Forward Classes.

Justice Bela M. Trivedi stated in response to the 104th Amendment to the Constitution that prescribing a similar time limit for the special provisions regarding reservations and representations stipulated in Articles 15 and 16 of the Constitution “could be a way forward leading to an egalitarian, casteless, and classless society.”

IMPORTANT DEFECTS IN THE NEW EWS JUDGMENT

• The judgment goes against the constitutional framework, which specifies that no portion of open seats or positions can be reserved purely based on economics. The EWS quota transformed the idea of reservation from a means of financial uplift into a weapon of representation for those who are underprivileged. Reservations were only made on “anti-discrimination” grounds, not “anti-depravation” grounds.
• Such statistics are not available to the Central or state legislatures to show that members of the “upper” caste who earn less than Rs 8 lakh annually are underrepresented in public employment and higher education. Most likely, they are overrepresented in these locations.
• The government’s standards for identifying who qualifies for this reserve are unclear and not based on facts or analysis.
• Committees created under Article 340 of the Constitution shall evaluate backwardness using a range of standards. According to the ruling in Balaji v. State of Mysore (1963)[v], reservations were restricted to 50% of seats and had to strike a balance between “efficiency of administration” and social justice. Because backward castes had representation, reservations were necessary to address historical injustices.
• In addition, the Supreme Court addressed whether the government had taken the GDP per individual in each state into account while deciding the amount that may be spent on EWS reserves. States’ per capita incomes vary widely, according to statistics: Goa has the greatest per capita income, close to Rs. 4 lakhs, although Bihar has the lowest, at Rs. 40,000.

AGES AHEAD

• Equal access to higher education: The Union of India and State Governments should adopt a long-term strategy and strive to enhance educational quality and infrastructure (at all levels of elementary, secondary, and higher education). Equal access to inexpensive, high-quality education will lessen the fight for ‘backward’ status among ever more groups.
• Discrimination based on caste: Justice Bhat underlined Dr. Ambedkar’s statement that “reservations are to be seen as temporary and exceptional” in his dissenting judgment. The justifications for caste-based exclusion will continue to be legitimate as long as caste-based prejudice persists in society.
• All categories, except EWS, are negatively impacted by reservations since it shrinks their pool of competitors. Empirically, it doesn’t seem justified given the significant proportion of EWS applicants in accredited educational institutions.
• The Indian political elite has to stop constantly expanding the application of reservation to achieve political advantage and admit that it is not a cure-all for all ills.
• The government should give excellent education and additional effective social upliftment initiatives priority rather than restricting people based on a variety of factors. They should develop an entrepreneurial spirit as a result, becoming employers rather than employees.

CONCLUSION

The opinions of the experts seem to differ on the verdict. In India, the topic of reservations is highly divisive and politically sensitive. Raising awareness and eradicating all types of prejudice via social and political mobilization is the long-term answer. The situation quo (on reservations) or requests for even further reservation expansion will persist until that happens. Social injustices have always been the foundation of reservation. Upper-caste or open-category aspirants were turned down for jobs despite having outstanding qualifications and grades. It is not true that fair treatment toward the upper castes implies inequity for the people of lower castes. This goes against the idea of natural justice. On the flip side of the hand, it’s questionable whether SC/ST and OBC should be excluded from the EWS group.

This article is written by Amritha U student of Lloyd Law College, Delhi NCR

[i] Case reference https://main.sci.gov.in/supremecourt/2019/1827/1827_2019_1_1501_39619_Judgement_07-Nov-2022.pdf

[i] Source from The Hindu https://www.thehindu.com/news/national/explain-basis-of-fixing-8-lakh-limit-to-determine-ews-category-for-neet-supreme-court-to-centre/article36881374.ece

[ii] Source from live law https://www.livelaw.in/top-stories/ews-quota-case-is-reservation-for-representation-or-financial-improvement-highlights-from-supreme-court-hearing-summary-of-arguments-court-queries-213389

[iii] Case reference https://main.sci.gov.in/supremecourt/2019/1827/1827_2019_1_1501_39619_Judgement_07-Nov-2022.pdf

[iv] Case reference https://main.sci.gov.in/jonew/judis/16589.pdf

[v] Case reference https://main.sci.gov.in/jonew/judis/3749.pdf