EWS Quota

Syllabus: General Studies Paper 2

A five-judge constitution bench of the Supreme Court, by a 3-2 majority, upheld the validity of 103rd Constitutional Amendment Act, 2019 and 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.

Background

• Reservation for Economically Weaker Sections (EWS) of the society was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho.
• The Commission was constituted by the then Union government in 2005, and submitted its report in 2010.
• To implement this, a Cabinet Note was prepared by the Ministry of Social Justice and Empowerment in 2019.
• Based on this, the Cabinet, in 2019, decided to amend the Constitution (103rd Amendment) to provide reservation to EWS.

About EWS Reservations

• The 103rd Constitutional Amendment Act, 2019 added Clause (6) to Article 15 of the Constitution to give the government the authority to make special provisions for the EWS among citizens who are not already eligible for reservation.
• The Act allows up to 10 per cent reservation in public and private educational institutions, whether aided or unaided, with the exception of minority-run institutions.
• The Act also added Clause (6) to Article 16 of the Constitution to make employment reservations easier.
• Article 16 of the Indian Constitution guarantees equal opportunity to all citizens in matters related to employment in the public sector.
• It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs).
• The Act states unequivocally that the EWS reservation will be added to the existing reservation.

Eligibility Criteria

• Candidate’s annual family income must be less than Rs. 8 lakhs per annum,
• Their family must not own more than 5 acres of agriculture land,
• The residential flat area should be below 1000 sq. ft.,
• The residential plot’s area should be below 100 square yards if in a notified municipality sector,
• The residential plot’s area should be below 200 square yards if in a non-notified municipality sector.

Court Judgement

• By a majority of 3:2, a five-judge Bench of the Supreme Court has upheld the validity of the 103rd Constitution Amendment, which came into effect in January 2019.
• The amendment was challenged, and the challenge was referred to a five-judge Constitution Bench in August 2020.
• The challenge was based on the argument that the 103rd amendment violated the “basic structure” of the Constitution.
• The Supreme Court had introduced the doctrine of basic structure in the landmark Kesavananda Bharati case, by which it ruled that certain aspects of the Constitution were inviolable, and could not be changed.
• The primary argument in this case was that the special protections guaranteed to socially disadvantaged groups is part of the basic structure.
• The petitioners argued that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.

Significance of the judgement

• Reservation was an “instrument of affirmative action by the state” and should not be confined to just SCs, STs, SEBCs, and the non-creamy layer of OBCs, but also include “any class or sections so disadvantaged as to answer the description of ‘weaker section’”
• 103rd Amendment only created “a separate class of EWS without affecting the special right of reservation provided to SEBCs, STs, SCs and OBCs”.
• Even the SC/ST/SEBC/OBC members had been treated as a separate category for the purpose of the 50% reservation. Now, they cannot be treated at par with citizens belonging to the general or unreserved category.
• Article 14: Just as equals cannot be treated as unequal’s, unequal’s cannot be treated equally. Treating unequal’s as equals will offend the doctrine of equality in Article 14.

Concerns

• Existing reservation should not be seen as a “free pass to equal opportunity” for these backward classes, he noted, but as a reparative and compensatory mechanism to level the field for those crippled by social stigmatisation.
• Excluding the SC/ST/OBC/SEBC communities, on the ground that they already enjoy the benefits of a pre-existing 50% reservation based on their caste and class origins, would amount to heaping injustice based on their past disability and struck at the essence of the “Non-Discriminatory Rule” and destroyed the Equality Code of the Constitution.
• Orwellian exclusion: Such an exclusion was simply “Orwellian” as the government’s statistics itself showed that the “bulk of economic deprived section of the society belonged to SC/ST/SEBC/OBC”.
• Narrow scope: The petitioners had argued that the exclusion of SC/ST/SEBC/OBC had left only the “middle class” among the forward castes drawing less than ₹8 lakh as annual family income to reap the benefits of the EWS quota.
• 50% ceiling limit: Permitting the breach of 50% ceiling limit would become “a gateway for further infractions and result in compartmentalisation”.

Current issues in Reservation

• Indira Sawhney judgment in 1992: SC upheld the principle that the combined reservation beneficiaries should not exceed 50% of India’s population. However, with EWS reservation of 10%, the total reservation in India’s population amounts to almost 60%.
• Rohini Commission report: Asymmetrical distribution of reservation – 97% of central OBC quota benefits go to just under 25% of its castes. As many as 983 OBC communities — 37% of the total — have zero representation in both central government jobs and admissions to central universities.
• Data Deficiency: There is hardly any legible data on the socio-economic conditions of varied social groups at State & local level. Also, we do not know what liberalisation has done to castes which remained tied to more traditional sources of income.
• The creamy layer threshold: SC admits plea challenging Rs 8 lakh EWS annual income criteria is the same as that for the creamy layer of Other Backward Classes quota and is unfair.
• Lack of merit-based recognition

Both sides agreed on the state’s power to make special provisions for implementing reservation in private unaided institutions, including professional colleges.

The Amendment cannot be said to violate Basic Structure by permitting the state to make special provisions in relation to admission to private unaided institutions.