The story so far: The Supreme Court, by a 3:2 majority, has upheld the validity of the Constitution (103rd Amendment) Act, 2019, providing reservation up to 10% for Economically Weaker Sections (EWS) in education and employment among those groups that do not come under any community-based reservation. The legislation marked a major change in the country’s approach to reservation. From a form of affirmative action in which membership of a social group was the main basis for extending reservation, it moved towards using income and means as the basis for special provisions.
What did the amendment do?
In Indra Sawhney (1992), a nine-judge Bench had ruled that there can be no reservation solely based on economic criteria, as the Constitution did not provide for it. The 103rd amendment introduced Article 15(6), an enabling provision for the state to make special provisions for “any economically weaker sections of citizens” other than those mentioned in the previous two clauses, namely, the “socially and educationally backward classes” and Scheduled Castes and Scheduled Tribes. It also introduced a corresponding Clause 6 in Article 16 to enable reservation for “economically weaker sections”, other than the SEBCs and SC/ST, in public employment and education. Article 15, which protects against discrimination on any ground, and Article 16, which mandates equality of opportunity in public employment, were thus changed to allow special provisions and reservations for the EWS category, subject to a maximum of 10%.
Following this amendment, the government also notified in 2019 the criteria to identify EWS. By this, anyone having an annual family income of less than ₹8 lakh from all sources in the financial year preceding the year of application would be identified as EWS for reservation purposes. Also excluded were those who had five acres of agricultural land, or a residential flat of 1,000 square feet, or a residential plot of 100 square yards and above in notified municipalities, or 200 square yards in other areas. The EWS quota has since been implemented in Central government and Central public sector recruitments.
What were the main grounds of challenge?
A law can be declared unconstitutional if the court finds that it violates fundamental rights. However, when the law is a constitutional amendment, it cannot normally be struck down, as it is part of the text of the Constitution. However, the Supreme Court evoked the ‘basic structure doctrine’ under which it has held that Parliament’s power to amend the Constitution has some inherent limitations.
A substantive limitation is the principle that an amendment to the Constitution cannot abrogate or destroy its basic structure. While there is no exhaustive list, concepts central to the constitutional system such as secularism, federalism, independence of the judiciary, rule of law and equality before the law are considered its basic features.
Therefore, petitioners contended that the amendment violated the basic structure of the Constitution because it violated the equality code. The violation occurred (a) by the introduction of economic criterion when reservation was only meant for groups that were socially and educationally backward due to historical disadvantages and not due to individual lack of means, and by converting a scheme to overcome structural barriers for the advancement of social groups into an anti-poverty measure (b) by excluding OBC/SC/ST candidates from the EWS category and (c) by breaching the 50% ceiling on total reservation, without which reservations will become the norm, and the principle of non-discrimination and equal treatment will become the exception.
What is the majority’s reasoning for upholding EWS quota?
Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala, the three judges who constituted a majority of the five-judge Bench, rejected the basic structure challenge completely. They held that there was nothing wrong in addressing economic weakness through reservation as an instrument of affirmative action. Reservation need not only be for socially and backward classes, but can also cover any disadvantaged section. Classifying a section based on economic criterion alone was permissible under the Constitution, and the EWS quota did not violate any essential feature of the Constitution.
The majority also ruled that the exclusion of the classes already enjoying reservation from the EWS category does not offend the equality principle. In fact, unless the EWS segment was exclusive, the object of furthering economic justice cannot be achieved. Regarding the breach of the 50% limit, the majority view was that the ceiling itself was not inflexible or inviolable. At the same time, another point in favour of the extra 10% quota was that the 50% limit was applicable only to the existing reserved categories (OBC/SC/ST), they said.
One of the majority opinions also said the Amendment survived the two standards prescribed to find out if the basic structure has been violated: the ‘width test’ (it is not of such wide amplitude as to obliterate or destroy any basic feature) and the ‘identity test’ (as it does not alter or erase the identity of a basic feature such as the equality code).
Why did two judges dissent?
Chief Justice U.U. Lalit and Justice Ravindra Bhat differed from the majority, with the latter writing the dissenting opinion. At the outset, the minority too agreed that introducing special provisions on the basis of economic criteria is legitimate and does not per se violate the Constitution’s basic structure.
Editorial | Economics and exclusion: On Supreme Court upholding 10% EWS quota
However, they held that the exclusion of backward classes from the category violated the basic structure. Justice Bhat noted that reservation was a powerful tool to enable equal access and equal opportunity, but while introducing an economic basis for reservation, the socially and historically disadvantaged classes had been arbitrarily excluded. Excluding them “on the ground that they enjoyed pre-existing benefits is to heap fresh injustice based on past disability,” he said. He termed as ‘Orwellian’ the net effect that although all the poorest were entitled to be considered regardless of class or caste, only those from the forward classes or castes would be considered, and not those socially disadvantaged.
The conclusion was that the Amendment resulted in hostile discrimination against the poorest section of society that was socially and educationally backward, and that these classes were subjected to caste-based discrimination. Therefore, it violated the equality code, particularly the principles of non-discrimination and non-exclusion, which were part of the basic structure.
Justice Bhat had an additional ground to strike down Article 16(6). Article 16 mandates equality of opportunity in public employment, with representation for the unrepresented classes through reservation being the only exception. The EWS category “snaps this link between equal opportunity and representation” by introducing a category that is not premised on ‘inadequate representation’. This additional reservation for those already represented in public employment violates the equal opportunity norm, which is part of the basic structure.
