What’s wrong in using economic criteria for reservation, asks Supreme Court

103rd Amendment, by excluding Backward Classes from the EWS quota, betrays intent to serve as a quota for middle class members of the forward castes, argue petitioners

September 15, 2022 05:44 pm | Updated September 16, 2022 12:10 am IST - NEW DELHI

Supreme court of India building in New Delhi, India.

Supreme court of India building in New Delhi, India. | Photo Credit: Getty Images

What is “so principally, so fundamentally wrong” in singling out economic criterion for grant of reservation, a Constitution Bench of the Supreme Court headed by Chief Justice of India U.U. Lalit asked on its third day of hearing petitions challenging the 103rd Constitutional Amendment, which introduced 10% quota for ‘economically weaker sections’ (EWS) of society.

EWS quota makes persons with less than ₹8 lakh gross annual family income eligible. The quota excludes Backward Classes, Scheduled Castes, Scheduled Tribes and Other Backward Classes, who form ‘homogenous groups’ included in the prevalent 50% reservation granted separately.

Petitioners have argued that economic criterion alone cannot be the basis for granting reservation in government jobs and educational institutions. They contend that the privilege of 10% quota was aimed at the “middle class” forward classes.

“What is so principally, so fundamentally wrong in singling out an economic criterion for reservation? Is it that they do not belong to a homogenous group? Is it cast in stone that they [beneficiaries of reservation] should belong to homogenous group? Why cannot economic criterion be a ground for the state’s affirmative action?” Justice S. Ravindra Bhat, on the Constitution Bench, asked advocate Shadan Farasat, who is appearing for a petitioner, on Thursday.

Mr. Farasat replied that “affirmative action” could take the form of a whole range of measures like money transfers of ₹6,000 to farmers.

“There are other affirmative actions which can address the problem of economy, but not necessarily reservation. Reservation was a way for reparation for the Backward Classes. It was the most assertive, the most aggressive way of affirmative action. Reservation was not meant to address any problem, but a specific problem — to bring Backward Classes to the mainstream by giving them access to education, government jobs,” Mr. Farasat answered.

He said the income criterion fixed by the government, that is, ₹8 lakh, mirrors not any mechanism to identify the poor, but the criterion for identifying the creamy layer already used for OBC reservation.

“The Amendment, by excluding the Backward Classes from the ambit of the EWS quota, betrays the actual intent to serve as a quota for middle class members of the forward castes,” Mr. Farasat argued.

He contended that the net effect of exclusion of Backward Classes from EWS was that persons who were hitherto able to access the 10% as part of the General Category would now be denied open competition for the same.

He said the mere presence of 50% reservation for Backward Classes on account of their social and educational backwardness would not permit their exclusion from reservation on account of economic backwardness.

Senior advocate Gopal Sanakaranarayanan, for another petitioner, said the 103rd Constitutional Amendment to the extent it said “in addition to the existing reservation” was unconstitutional as it froze the existing reservations of 27% (OBC), 15% (SC) and 7.5% (ST).

He argued that the Amendment which gave the extra 10% EWS quota was “contrary to the temporary nature of reservations and the fact that it must be petered out/reduced”.

The EWS quota violated the 50% ceiling limit, a constitutional norm that is a Basic Feature, and breached the equality code.

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