Will EWS quota cut share of pie of those competing on merit, asks CJI

‘The 50% seats, jobs available in the general category are open to all’

A view of Supreme Court of India. File | Photo Credit: Sushil Kumar Verma

Has the government ended up "diminishing" the opportunities of candidates who compete for jobs and seats in government institutions purely on merit by carving out a 10% quota for 'economically weaker sections' (EWS) from the general category, a Constitution Bench of the Supreme Court asked the Centre on Wednesday.

A five-judge Bench led by Chief Justice of India U.U. Lalit pointed out that 50% academic seats and jobs in the general category are open to all, including the creamy layer of the Other Backward Classes, Scheduled Castes, Scheduled Tribes and forward classes. In short, everybody who wants to compete on merit.

The court questioned the necessity for the state’s “affirmative action” to carve out an EWS quota from the general or unreserved category. The Bench noted that those in the general category who were below the poverty line came to only one-sixth of the total general population. “Only a very small portion of the general category are poor,” the court noted after perusing the National Sample Survey Office (NSSO) figures on record.

The questions came after Attorney General K.K. Venugopal, for the Centre, submitted that the EWS quota was not an "addition" to the 50% caste-based quota already available to backward classes, but was cut from the remaining 50% seats in the "general, open or non-reserved category".

“The 50% available in the general category is open to all. Anybody - be they from the SC, ST or OBC or non-reserved classes - can compete purely on the basis of merit. By taking 10% of this 50% and reducing it to 40%, are you not diminishing the chances of a meritorious candidate to compete in that arena? Are you not reducing the share of the pie for those persons who could have competed on the basis of their own individual merit and got the seats?” the Chief Justice asked Mr. Venugopal.

The EWS quota, introduced through the 103rd Constitutional Amendment, excludes the poorest of the poor among the OBC/ST/SC communities, saying they already have access to the 50% quota for backward classes.

But the court pointed out that the creamy layer members of the OBC communities would be competing in the general category. Taking 10% from the open category would affect them too.

“The members of the OBC communities who are in the creamy layer are not entitled to any of the 50% caste-based quota. They cannot be included in the 10% EWS quota because of the economic criterion you have imposed… So, they are left to compete in the open category, where again the piece of the cake has been reduced to 40%... The idea originally was to keep at least 50% open for merit. According to the petitioners, you are diminishing that too,” Chief Justice Lalit addressed Mr. Venugopal.

Mr. Venugopal submitted that nobody had complained about taking 10% from the 50% available to the open or “unreserved” category. He said the 103rd Amendment was not “pulled out of a hat”. Extensive studies had gone into it.

“Will the state be forgiven if it allows conditions of overweening poverty to continue?” the top law officer asked the court. He said there was no law which prevented the legislature from reducing 50% in general category to 40%. Mr. Venugopal said the creamy layer members in the OBC are seen as part of the general category. The only question before the court is whether the 103rd Amendment violated the basic structure of the Constitution. The 10% EWS quota was not part of the 50% caste-based reservation for backward classes. It was an “independent compartment”.