Understanding the EWS Judgement

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About The Author

Ann V Varghese, 4th year law student. Government Law College, Ernakulam. Convenor, LJRF Centre for Women and Children.

The Constitution of India is an organic document, and it confers powers to the Parliament to amend it to keep it abreast with the needs of a changing and dynamic young nation. The Parliament of India using this power conferred to it under Article 368 enacted the One-Hundred and Third Constitutional amendment which received the President’s assent on 12^th January 2019. The amendment was directed at Articles 15 and 16 of the Constitution which thus enabled the government to provide for the progress of the government and permitted the government to provide for reservation of economically weaker sections of the society. It was introduced as the One-Hundred and Twenty Fourth Constitutional Amendment Bill with the statement of objects and reasons highlighting the inability of the economically weaker sections of citizens to attend the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under clauses (4) and (5) of article 15 and clause (4) of article 16 were deemed to be generally unavailable to them unless they meet the specific criteria of social and educational backwardness. In simple words, the amendment was intended to provide reservation in educational institutions and job opportunities for under-privileged persons who were deprived of reservation on account of not being under the reserved social classes.

The said judgement was challenged by a slew of petitions on the basis of being unconstitutional and against the Basic structure of the Constitution. The Hon’ble Supreme Court upheld the validity of the amendment on November 7th, 2022, in a 3:2 ratios with four separate judgments rendered by Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M. Trivedi; and, Hon’ble Mr. Justice J.B. Pardiwala (majority) and Hon’ble Mr. Justice S. Ravindra Bhat, for himself and on behalf of the Hon’ble the Chief Justice U U Lalit (dissenting). A five-member bench led by Hon’ble the Chief Justice D Y Chandrachud also subsequently dismissed petitions seeking a review of a November 2022 majority judgment by a Constitution Bench, which upheld the validity of 10% quota for the ‘economically weaker sections’ (EWS) of society in May 2023.¹

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The judgement thus can be said to have protected the legislature right to make laws for the welfare of its weaker citizens and in the spirit of protective discrimination. This calls upon the need to understand what is meant by the concept of reservation. Essentially in very simple terms, reservation means holding a portion of seats for certain persons who may not be able to secure it otherwise in its absence. For instance, if we hold a race between persons who are all at different starting points, the one with least difference will win right? Is that fair? Thus, the law enables the creation of a level-playing field through Articles 15 and 16 of the Constitution by permitting the government to provide for reservations. Thus, we have reservations for backward classes, women etc. The concept of reservation can be listed back to 1882 where it was first proposed by William Hunter and Jyotirao Phule to introduce a caste-based reservation in India.²

The judgement in itself is a 399 paged comprehensive document which starts by clearing stating that the amendment in question does not mandate but enables reservation for EWS and prescribes a ceiling limit of ten per cent. The case is in fact a result of a slew of petitions filed and the impugned amendment were challenged on three major grounds as follows

Firstly, that making of special provisions including reservation in education and employment on the basis of economic criteria is entirely impermissible and offends the basic structure of the Constitution. The people in the lowest strand of social hierarchy were ostracized and stigmatized from public life and were deprived of basic liberties and equality. The reservation measures were thus in order to address these generational inequalities. The amendment in question which seeks to empower the privileged sections of society, who are neither socially and educationally backward nor inadequately represented is thus against this basic principle.

Secondly, that exclusion of socially and educationally backward classes i.e., SCs, STs and non-creamy layer OBCs from the benefit of these special provisions for EWS is inexplicably discriminatory and destroys the basic structure of the Constitution. The concept of Fraternity, as envisaged in the Constitution, informs Articles 15 and 17, giving shape to equality while prohibiting discrimination and discriminatory practices prevalent in our society. Inclusion of forward class and exclusion of disadvantaged class from the protection and benefit of reservation violate the basic structure of the Constitution. The amendment also paves way for perpetual monopoly by providing reservation to that section of population whose identification is imprecise and is based on their individual traits more so, when these classes have been enjoying and are still enjoying control over resources and public employment. Further it is based on financial incapacity, which is transient in nature, rewarding poor financial behaviours and is, therefore, not a reliable criterion for giving reservation. EWS reservation is thus based on individual basis than the need for a community.

Thirdly, that providing for ten per cent. additional reservation directly breaches the fifty per cent. ceiling of reservations already settled by the decisions of this Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution. Exceeding fifty per cent. limit would violate the twin tests of width and identity, as propounded by the Hon’ble Court in M. Nagaraj and Ors. v. Union of India and Ors. [ (2006) 8 SCC 21210] and result in disturbance of equality. Fifty per cent limit cannot be breached under any circumstance except if a law is protected under the Ninth Schedule to the Constitution, which the amendment in question is not.

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The councils for the petitioners extensively relied upon Constitutional Assembly debates as well as the fundamentals of the Constitution, “Equality, Fraternity” to substantiate its arguments as to why the EWS reservation is discriminatory, unwarranted and unconstitutional. Analogies were also drawn with countries like U.S.A., Israel and Germany, emphasizing that indeed affirmative action can be an answer, but it is not the only answer and urged for ways other than reservation to aid upliftment of weaker sections. The landmark judgements of Indira Sawhney³, E P Royappa⁴, M Nagaraj⁵ were also extensively relied upon to dissect concepts of equality. Another argument that was also brought in was that the additional reservation of ten percent would reduce the availability of seats available for general category. One of the petitioners also partly challenged the amendment to the term “in addition to the existing reservation and” was as it allegedly concreted concepts of reservation by treating it as a permanent concept.

Thus, the issues before the Hon’ble Bench were framed as follows:

As to whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?
As to whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically weaker sections violates the Equality Code and thereby, the basic structure doctrine?
As to whether reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty per cent?

The issue at hand being directed at the Basic Structure was analyzed by critically examining the Preamble and Article 368 in addition to the question of laws in issue. The history of Constitutional Amendments were traced all the way from Sri Sankari Prasad Singh Deo v. Union of India and Anr.: 1952 SCR 89 through Sajjan Singh v. State of Rajasthan: (1965) 1 SCR 933, I.C. Golak Nath and Ors. v. State of Punjab and Anr.: (1967) 2 SCR 762 to Keshavananda Bharati and also the likes of Indira Gandhi, Minerva Mills and Waman Rao. The judgement is thus indeed a fine piece for readers intrigued by the history of Constitutional Amendments.

Reservation was held as an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society but, also for inclusion of any class or section so disadvantaged as to be answering the description of a weaker section. The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities. Building a Welfare State is held to be one of the main objectives of the Constitution as by Keshavananda Bharati case. Thus, the State’s efforts of ensuring all-inclusive socio-economic justice, there cannot be competition of claims for affirmative action based on disadvantages in the manner that one disadvantaged section would seek denial of affirmative action for another disadvantaged section. The emphasis placed on Article 46 is an extremely narrowed approach and suffers from significant drawbacks.

Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of nondiscrimination and compensatory discrimination, does not violate Equality Code. There is no argument that poverty is rampant among SC, ST and OBS. However, this exclusion is inevitable for the true operation and effect of the scheme of EWS reservation. Firstly, these categories already enjoy the privileges earmarked for them under Article 15 and 16 and thus, it is prudent to extend the benefits of the affirmative action once again on such classes. The amendment also does not deplete the quota available for them. Secondly, the amendment makes a reasonable classification between “economically weaker sections” and other weaker sections, who are already mentioned in Articles 15(4), 15(5) and 16(4) of the Constitution and are entitled to avail the benefits of reservation thereunder. The moment there is a vertical reservation, exclusion is the vital requisite to provide benefit to the target group and hence valid.

Reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations does not result in violation of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of fifty per cent. because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India. The only infirmity of the amendment in question is that it is not consistent with a series of judgements laid down by the court in a series of cases capping the maximum limitation for reservation as fifty percentages. This argument also runs as counter argument to the second issue as then, the other classes cannot stake claim in this additional ten percentages. Moreover, the said series of cases were decided before the advent of this particular amendment and thus that proposition can be applied only to those cases arising before the same. No decision of this Court could be read to mean that even if the Parliament finds the necessity of another affirmative action by the State in the form of reservation for a section or class in need, it could never be provided.

Conclusion

Thus, the objective of the State as a welfare state in protecting the needs and dignity of the citizens have been upheld by the Hon’ble Court. However, the judgement also raises questions regarding the permeation of reservation into the psyche of the country despite its initial temporary intend. The trend of providing reservations cannot be treated as a way to bring about upliftment of the downtrodden. Such a tendency can lead to potential disrest among those who belong to the “general category” and may feel threatened by the perceived loss of opportunity as well as a potential for misuse leading to weighing down of the system by undeserving persons who maybe well off. Thus, while reservation is indeed a useful tool to uplift the weaker sections, it alone must not be seen as a way ahead.