EWS quota claims to be for poorest of poor, but denies most deprived: Supreme Court

50% limit on reservation not inviolable, says govt.

Updated - September 23, 2022 08:17 am IST

Published - September 22, 2022 09:04 pm IST - NEW DELHI

The Supreme Court said the idea of “economic backwardness” was nebulous.

The Supreme Court said the idea of “economic backwardness” was nebulous. | Photo Credit: Sushil Kumar Verma

The Supreme Court on Thursday questioned the logic behind a quota for ‘economically weaker sections’ which claims to cater to the “poorest of the poor” but leaves out deprived communities who have suffered denial for centuries.

Members of the Scheduled Tribes, Scheduled Castes and Other Backward Classes are shut out from applying under the 10% quota for economically weaker sections (EWS) introduced through the 103rd Constitutional Amendment. The government justifies the debarment of these communities by arguing that they are already part of the 50% reservation for backward classes. However, petitioners argue in court that their exclusion leaves only the middle class among the forward castes to reap the benefits of the EWS quota.

“Forty per cent of the Scheduled Tribe population constitute the poorest of the poor. When it comes to economic criteria, they are ex facie the poorest of the poor… But their overall reservation is just 7.5%. So there is a large section of them who are kept out because the share of the pie is only that much… Is it a good idea for an egalitarian Constitution to say ‘yes, you are the poorest of the poor but sorry we have exhausted your quota!’ We will give this [EWS reservation] to neither the ST, SC or OBC or constitutionally backward communities but to the other class,” Justice S. Ravindra Bhat, one of the judges on the Constitution Bench led by Chief Justice U.U. Lalit, asked the Centre, represented by Solicitor General Tushar Mehta.

The court said the idea of “economic backwardness” was nebulous.

“Now, social backwardness can be easily discerned from lineage, caste, creed, occupations and from where people come from. There is an element of permanency in social backwardness. On the other hand, economic condition may be a temporary phenomenon,” Chief Justice Lalit said.

Justice Dinesh Maheshwari said there were no guidelines to identify economic backwardness.

Mr. Mehta countered that there was a certain element of “flexibility” attached to even social and educational backwardness. “A community which is socially backward today may not be so 10 years from now,” the law officer argued.

He said the 103rd Amendment had strengthened the Basic Structure of the Constitution by giving “economic justice” to the poorest of the poor. It had recognised a “new set of freedoms”. Parliament was taking care of the aspirations of the youth while enacting the amendment.

Mr. Mehta argued that a constitutional amendment should only be set aside if it destroyed the basic structure. “The 103rd Amendment treats the poor as a class. Fifty per cent ceiling limit on reservation is not inviolable. It is only a thumb rule,” the Solicitor General submitted.

He argued that the court should not anyway consider the 10% EWS quota as an addition to the prevalent 50% reservation for backward classes. “Instead consider it as 50% quota with separate classification for open category candidates who are poor,” Mr. Mehta reasoned.

“But if you take 10% from the 50% preserved for non-reserved category who compete on merit, they are left with only 40%... All you can say is that in that 50% left to open category, we are trying to give better representation to those who are the poorest of the poor and trying to secure for them some kind of assured seats or assured percentage,” Chief Justice Lalit said.

The court has relentlessly been questioning the government on whether taking 10% from the 50% available to non-reserved category would diminish the opportunity of candidates who compete purely on merit.

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