In EWS verdict, a discrimination antithetical to equality
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The Supreme Court’s judgment upholding the 103rd Amendment which introduced 10% reservation for EWSto the Constitution seeks to undo the existing logic of affirmative action

November 12, 2022 12:16 am | Updated 03:33 pm IST

The Supreme Court of India

The Supreme Court of India | Photo Credit: Shanker Chakravarty

In its more than 70-year-old history, the Supreme Court of India has delivered a plethora of judgments touching on the fundamental tenets governing the Constitution of India’s guarantee of equal treatment. On occasion, its verdicts have contradicted each other, with different Benches championing different meanings to the Constitution’s text and values.

Some of this conflict is understandable. After all, the Constitution’s most important promises — among them, the rights to equal treatment, personal liberty, and freedom of expression and religion — are couched in abstract language. The job of interpreting the Constitution’s words, of fleshing out their real meaning, lies with the courts. Judges perform this task by looking not only at the text of the provisions but also by appealing to the Constitution’s finest moral vision, by studying its history, and by applying rules and codes that have formed over time through an accretion of precedent. Naturally, in construing the guarantees of the Constitution, judges can arrive at varying conclusions on how the document must be read. These differences assume especial salience when the Court is called on to deliberate over the features that qualify as part of the Constitution’s basic structure.

Exclusionary and discriminatory

Still, as Justice S. Ravindra Bhat holds in his powerful dissenting opinion inJanhit Abhiyan vs Union of India(November 2022), the Court’s jurisprudence has pointed to certain underlying canons at the heart of the right to equality: notable among them the idea that caste-based or community-based exclusion is impermissible. But today this norm stands subverted. For the Court, in Justice Bhat’s words, has “for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle,” by upholding the 103rd Amendment to the Constitution.

The amendment, introduced in early 2019, altered Articles 15 and 16 of the Constitution, and granted to the state a power to provide for up to 10% reservation in government jobs and educational institutions for “economically weaker sections of citizens [EWS]”. The change also mandated that the seats reserved for EWS would only apply to citizens other than the classes that are already eligible for reservation. Hence, persons belonging to Scheduled Castes and Scheduled Tribes (SCs and STs) and persons who are not part of the creamy layer of the Other Backward Classes (OBCs) would not be allowed to occupy seats in the newly earmarked quota.

Since 1973, when a 13-judge Bench of the Supreme Court, delivered its ruling in Kesavananda Bharati vs State of Kerala, it has been clear that Parliament’s power to amend the Constitution is not plenary. The Court held there that the limitations on the amending power are both implicit in the Constitution and evident from the literal meaning of the word “amendment”. If the Constitution that emerges out of an amending process loses its original identity, the amending law will be deemed illegitimate. In other words, Parliament’s authority does not extend to damaging the basic structure of the Constitution.

Petitioners contentions

In Janhit Abhiyan, the petitioners contended that the 103rd Amendment violated the basic structure for at least three reasons. First, that predicating reservation on individual economic status undermined the original logic of reservations. This logic, they claimed, was wedded to an understanding that affirmative action is necessary to undo, and make reparations for, structural inequalities inherent in society. Second, the amendment is discriminatory because it excludes from EWS, SCs, STs and OBCs who are otherwise entitled to reservation through measures made under the extant provisions of Articles 15 and 16. Third, some petitioners also argued that the amendment breaches the 50% cap on reservations that is now seen as an inviolable rule.

Justices Dinesh Maheshwari, Bela M. Trivedi, and J.B. Pardiwala — each of whom wrote separate opinions for the majority — and Justice Ravindra Bhat (whose opinion was also adopted by (the then) Chief Justice of India U.U. Lalit) were in unison in affirming the idea that reservation could be validly made on exclusively economic grounds. This conclusion, however, belies the founding rationale for affirmative action in India, which stemmed from a demand for a fairer share in political administration for historically marginalised groups. To that end, reservation has always been seen both as a means towards achieving substantive equality and as a measure of reparation. It is for this reason that a nine-judge Bench of the Court in Indra Sawhney vs Union of India (1992) held that economic status cannot serve as a sole criterion for identifying which sections of people qualified as “backward classes”.

Editorial | Economics and exclusion: On Supreme Court upholding 10% EWS quota

Yet, it is possible to argue — although the majority in Janhit Abhiyan does not quite cite this as its reason — that while the Constitution demands equality, it does not tether Parliament to any precise version of the concept. Therefore, today’s State could plausibly be acting within its power in deciding that a classification resting solely on economic status furthers substantive equality. It could well contend that the inclusion of an additional layer of affirmative action does not by itself rise to the level of a basic structure violation.

The problem with the 103rd Amendment, though, is that in establishing a quota on economic grounds, the Constitution also excludes from an otherwise open domain those classes of persons who are eligible for the extant policies of reservation. The result is the creation of a quota for the upper caste. The majority on the Bench defends this on an application of a principle of “reasonable classification”. “If the economic criteria based on the economic indicator which distinguishes between one individual and another is relevant for the purpose of classification and grant of benefit of reservation under clause (6) of Article 15,” writes Justice Pardiwala, “…then merely because the SCs/STs/OBCs are excluded from the same, by itself, will not make the classification arbitrary and the amendment violative of the basic structure of the Constitution.”

What the ruling ignores

But the ruling fails to see that reservations permitted for SC, ST and OBCs, far from being a favour bestowed on them, are intrinsic to the guarantee of equality. This position has been regarded as an axiom of our constitutional law at least since the five-judge Bench ruling in State of Kerala vs N.M. Thomas (1975). Indeed, as Justice Bhat points out, the benefits accorded to SC, ST and OBCs are not a “free pass” but a “reparative and compensatory mechanism”. Therefore, unless we now deem the Kesavananda doctrine a theoretical irrelevance, the 103rd amendment ought to be seen as anathema to the Constitution’s basic structure.

What is more, as Justice Bhat points out, there was also no material placed on record before the Court to show that “those who qualify for the benefit of this economic-criteria reservation but belong to this large segment constituting 82% of the country’s population (SCs, STs and OBCs together), will advance the object of economically weaker sections of society”. Viewed thus, the amendment’s objective becomes clear: reverse the existing logic of affirmative action and create shackles within the open category by excluding from it the most marginalised amongst us.

In ratifying this measure, the Court has condoned a most pernicious form of discrimination, a form of discrimination that is antithetical to what equality truly demands. If allowed to stand, the Court’s verdict could open a Pandora’s box of constitutional mischief.

Suhrith Parthasarathy is an advocate practising in the Madras High Court

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