Future of EWS: A critical analysis of 103rd amendment

Whether EWS reservation to be protected or not?

This article is written by Anna Mariam Ramacha Thykkadavil. She is a 3rd semester 3 year unitary LLB student at Govt law College, Thiruvananthapuram. She is also an editor at ljrfvoice.com.

Article 14, by Rule of Law, and Article 15(4) under Part III of the Constitution guides the policy makers to make reasonable classification among the Indian citizens so that the equals are treated alike and different classes of persons are treated separately. Thus as per this provision, and also guided by the report of the Commission on Economically Weaker Sections headed by Major General (Retd). S.R Sinho, the 103rd Amendment was done and 2 sub clauses, each under Article 15 and 16, were inserted in order to reserve 10% for the economically weaker sections of the country in education and employment, in addition to the 50% reservation for socially and educationally backward classes. And these provisions couldn’t be challenged based on Article 15, Art 19(1)(g) or Art 29(2). The criteria for this classification would be family income and other indicators of economic disadvantage. This is challenged by several petitions at the Supreme Court of India as violative of the basic structure of the Constitution of India and previous judicial precedents taken at the same Apex Court that capped any reservation to 50%.

JURISDICTION OF SUPREME COURT

The Honourable Supreme Court of India has the jurisdiction, in this matter under Article 32(2) of the Constitution of India. Article 32 of the Constitution deals with the remedies for the enforcement of the rights conferred by this Part. This is a Fundamental Right; therefore, any individual can approach the Supreme Court instead of High Court. High Court also has jurisdiction to enforce Part III, under Article 226 of the Constitution, but not as a Fundamental Right. Article 32(2) of the Constitution reads as: “the Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. According to the position set in the Indra Sawhney v. Union of India AIR 1993 SC 477, disputes regarding any new criteria of reservation can be raised only in the Supreme Court.

ANALYSIS ON THE QUESTION OF LAW

It should be realized that classification of citizens cannot be arbitrary or unreasonable and also should meet the objectives of the classification. One factor alone cannot determine the backwardness of a group of people. Socio political factors are also to be considered. The Judiciary can consider whether such classification or lists made by governments at the Centre or State (lists as per Article 340. 341 and 342) is arbitrary or intelligible or tangible or principle based. The founding fathers did not make reservation as part of the Constitution a mandatory part of the Constitution. Dr. B R Ambedkar himself has said in the speech at the Constituent Assembly that, “the reservation must be confined to a minority of seats.” The Article 16 says that if the representation is not adequate enough and the community is backward, the reservations are to be given. But being in the economically weaker sections do not take away any social acceptance and based on the merit, are also adequately represented in the State Services. Also, while considering backward castes, the Mandal Commission itself has exhorted the policy makers to conduct periodic census with regard to backwardness in the society and update the list as per the census.

The dilemma with respect to reservations (that are allowed by Article 14, 15 and 16) are interpreted and resolved by the various judicial precedents. In Periakaruppan v. State of Tamil Nadu, 1971 SCR (2) 430 the honourable Supreme Court had advised government not to be stagnant, that is, once a class is backward must not be left so to be stagnant. This is to protect the people who are left behind in actual and uplift them to make them equal circumstances, in par with others. In M.R Balaji v. State of Mysore, AIR 1963 SC 649 the Supreme Court itself has said that reservation of 68% in technical institutions to exclusion of qualified and meritorious students would let suffer national interests. Beyond a ratio of 50% reservation, the equality code of the Indian Constitution would be broken. In K.S Jayasree v. State of Kerala, 1977 SCR (1) 194, it was held by the Supreme Court that neither caste by itself nor poverty by itself is a determining factor of social backwardness. Both caste and poverty are together relevant to determine backwardness. Already, in Indra Sawhney v. Union of India ( Mandal case) AIR 1993 SC 477, 9-Judge Constitutional Bench at the Supreme Court has declared that the reservation can be made by executive order and that, it shall not exceed 50 percent. Those against the EWS reservation has moved ahead based on a previous judgment, of the honourable Apex Court, in P.A. Inamdar & Ors. vs State of Maharashtra & Ors, 2005 (3) MhLj 1067, where it was submitted that the State can prescribe minimum qualifications and may prescribe systems of computing equivalence in ascertaining merit; however, the right of rational selection, which would necessarily involve the right to decide upon the method by which a particular institution computes such equivalence, is protected by Article 19 and infringement of this right constitutes an unreasonable encroachment upon the constitutionally guaranteed autonomy of such institutions. It is further argued that where States take over the right of the institution to grant admission and/or to fix the fees, it constitutes nationalization of educational institutions. Such nationalization of education is an unreasonable restriction on the right conferred under Article 19. It is this decision that is violated when 10% reservation is to be upheld in unaided educational institutions in India. But the 93rd Amendment of 2005 of our Constitution has legalized reservation for socially or educationally backward or SC or ST category students in educational institutions. Since education paves way for underprivileged to grab an entry into mainstream of the country, it has been helping many backward to rise up and become a breadwinner of their families. In Indra Sawhney v. Union of India, 1993, it has also been held that a backward class of citizens cannot be identified only and exclusively with reference to economic criteria. It’s been rightly declared that Art 16(4) is not aimed only at economic upliftment or alleviation of poverty. It is specifically designed to give due share in the state power to those who have remained out of it mainly on account of their social, educational and economic backwardness.

REALITY CHECK

But considering the extraordinary situations in the country, as per Article 15(4) and 15(5), the Central or State Government is empowered to make special provisions relating to admission in educational institutions including for advancement of educationally backward classes of citizens. The economically backward class of citizens can also be educationally backward classes too due to poor conditions at home. They are under privileged citizens of the country. The children may be the victims. The per capita income according to the Economic Survey 2021-2022 stood at Rs, 18,667. But according to the World Inequality Reports, 2020, India stands out as a poor and very unequal country with an affluent elite where the top 10% holds 57% of the total national income, including 22% held by the top 1% while the bottom 50% (half of the population, a fact so mind numbing) holds just 13% in 2021. Even though the trigger was due to the pandemic, the gap between rich and the poor is increasing over the years. There is no point in neglecting them, since they are also the facets of India, which proudly hails as the largest democracy in the world.

The arbitrariness in declaring Rs.8 lakhs as the income threshold to determine Economically Weaker Section is a major setback of the 103rd Amendment. According to Pew Research 2021, 93.7% of Indians have a family income of less than Rs.25,000 per month per family of four. This means that the EWS gives reservation to forward classes among this 93.7% and those who earn between 25,000 and 66,000 per month per family of four who fall amongst an elite of 6% of the country that earns above 25,000 per family per month. No one can be declared poor just by self-declaration and one previous year’s income³. No demographic study conducted before proposing this Amendment explains it as a populist measure similar to freebies. Any withdrawal of the measure would cause riots as in the past or a huge downfall of any government that does so.

There are many families who enjoy reservation based on castes, yet financially well settled helping their kids get better coaching and letting them find better academic and employment opportunities through the same process of reservation. The groups at the other side of this cacophony are those families in the general category with poor financial background. They are those students who are not able to find better academic helps to grab worthy seats at educational institutions or employment. When a general category of financially backward students have to compete with educationally assisted, financially well off, yet boosted by reservation and lower cut offs, the ever wanted justice is in question. For a 100 vacancies, if 60 is given at lower cut offs and reservations, only 40, will be available for merit. Is that a fair chance and realizing the fact that the whole 60 percent is not completely for deserving, adds to the chaos. Reservation is not for any poverty alleviation, that’s true, but in a country like India, that surpassed 75 years of Independence should be able to review what’s happening amongst the people and the fatal economic inequality gap. If India wants to achieve a 5 trillion economy and if some groups are encouraged to be on top and rest left behind to worse situations, that becomes an insane governance. When money is the real thing that matters in the modern world lifestyle, any justification of misuse of the taxpayers ‘money for the already rich through reservations is really frustrating. It’s been a decade that a Census is conducted and Socio-Economic Caste Census (SECC) analysed. Former is a portrait of Indian population while the latter is a tool to identify beneficiaries of state support. There are many communities who are still standing in the queue while many advanced classes are able to grab seats in the Scheduled List. Those already in the Scheduled list attributed by caste criteria avail several benefits in educational and employment opportunities, despite their high financial status than the economically weaker students in the general category. A 550-member community of Kunduvadiyan in Wayanad who suffers different financial and health issues receives only OEC benefits and are just DNC (De-notified, Nomadic, Semi-nomadic) community and not included under Scheduled Tribes.⁴ Within this period of 10 years, India has evolved in its technology, economy and also boomed in its population and its still on progress. Thus, a technology driven coordination can help in the data collection and analysis process. Recently, the Centre for Monitoring the Indian Economy (CMIE) released data stating that India’s unemployment rate in August 2022 rose to 8.3% . Since the meritorious students are not able to find any jobs in India, they migrate to developed economies in large numbers, causing heavy brain drain. If foreign remittances are the only focus of this country, then it would cause frustration among the youth; and also political participation in the largest democracy will also decline. If India is going to stay stagnant and adding more challenges, the nation may face, at the earliest, an inevitable havoc, which would not be controllable for sure. Honourable Judiciary is the only hope in war for justice.

WHAT’S NEXT ON EWS ?

The reservation is to be capped at 50%; it doesn’t mean that it has to be mandatorily 50%. The ultimate aim must solely be the well being of the people and merit of the nation. No one should get advantages at the cost of another. Economically weaker sections, or the under privileged, should be getting reservations but not in addition to 50%, but within the limit of 50%, also, based on reasonable income threshold. If the above said census reports are done, a clear idea on the status of every individual in India would be available to the Executive. A proper and efficient adaptation of reservation policies coupled with elimination of already advanced categories from the list of backward castes and communities would bring a glimmer of hope for the country’s merit. The revision of reservation would take a huge toll on the country. Therefore, this elimination must be done with caution and courage. Dr. B.R Ambedkar, the chairman of the Drafting committee of the Indian Constitution himself apprehended the erosion of equality of opportunity due to large scale reservation policy. Reservation should not be for the greedy but only for the deserving. Lets await together to see what honourable Supreme Court finds right.

ACKNOWLEDGEMENT

This article is purely based on my student perspective on the issue regarding the reality check of reservations in India and also of the Economically Weaker Sections of the people, based on facts and law. I would like to acknowledge with gratitude, Mrs. Sheema S Dhar (Assistant Professor , Government Law College, Thiruvananthapuram), who guided me in framing the article, make it more presentable and readworthy and also, articulate, the perspective on reservation, better. I would, also, like to acknowledge, Mr. Safi Mohan M.R (Assistant Professor , Government Law College, Thiruvananthapuram), who constantly encourages to write articles and continues to be the best guide and mentor in the whole journey of article writing.