The 10% EWS reservation is in addition to the pre-existent quota for Scheduled Castes, Scheduled Tribes and Other Backward Classes (SCs, STs and OBCs) of citizens, who cannot avail of the new EWS quota. The challenge to it was broadly founded on two objections. First, that economic criterion was not meant to be a basis for reservations. Second, the proposal would breach an earlier-set 50% limit on reserved seats. Let’s take a close look.
The challenge: Relying on the 1992 Indra Sawhney decision by a nine-judge bench, the petitioners had submitted that the majority in that case had specifically stated that economic criteria alone cannot be a basis for reservation. They also contended that the provision of an EWS quota cannot be limited to general categories (i.e., non-SC, ST and OBC), as it would violate the doctrine of equality, which is a basic feature of the Indian Constitution, by excluding SC, ST and OBC applicants from availing the benefit. Finally, the petitioners had argued that existing reservations already stood at 49.5% of the overall pie and an additional 10% reservation would take the total well above 50%. They underscored the rulings on the M. Nagaraj and Jarnail Singh cases, contending that the top court had held that a quota ceiling of 50% cannot be breached except in very rare situations.
The Indian government rebutted the challenge and rested its arguments on the premise that the state is duty-bound to safeguard weaker sections of society.
The defence: Countering the reliance of the petitioners on the Indra Sawhney case ruling, the government contended that it dealt with a reservation policy for socially and educationally backward classes, which is different from a policy for the category of an economically weaker class.
The government further argued that the 10% EWS quota was over and above the accorded reservation brackets. Therefore, it cannot be said to be in breach of the Constitution’s basic structure, the Centre contended.
The Supreme Court thus tested the 103rd amendment’s validity on the anvils of the basic structure doctrine, exclusion of the economically weak among SCs, STs and OBCs, and a 50% reservation limit.
The verdict: Justice Dinesh Maheshwari conclusively observed that reservation is an instrument of affirmative action to ensure an all-inclusive march towards achieving an egalitarian society. It acts as a means for the inclusion of any class or section that is disadvantaged. Thus, a quota on an economic basis does not violate the basic structure of the country’s Constitution, he stated. Justice Bela M. Trivedi, concurring with Maheshwari’s ruling, noted that the legislature understands the needs of people and is aware of the exclusion of people with economic constraints from reservations. Thus, the creation of a separate class via the amendment ought to be treated as affirmative action for those who cannot be treated at par with other citizens. This is a reasonable classification and does not violate the equality code. It is noteworthy that Justice Trivedi sought to revisit India’s 75-year-old reservation policy in the spirit of transformative constitutionalism.
The ways used to determine backward classes need a relook, so that they are relevant in today’s time, Justice J.B. Pardiwala noted, concurring with Justices Maheshwari and Trivedi. There is a need to place a time bar on the reservation span, he opined in his pronouncement. He said that such a policy cannot be allowed to become a vested interest for historically disadvantaged groups to avail quota benefits. The idea of reservations is to end social and economic inequality, Justice Pardiwala noted.
While three of the five judges upheld the amendment, Justice Ravindra Bhat and Chief Justice of India (CJI) U.U. Lalit dissented. While the two dissenting judges agreed that reservations can be provided on the basis of economic criteria, they disagreed on whether SCs, STs and OBCs can be excluded from EWS reservations and whether the new quota can exceed 50% lor not.
Dissenting voices: The two judges observed that socially and educationally backward classes form the bulk of India’s poorest and cannot be excluded from EWS reservations. Justice Bhat asserted that this exclusion violates the non-discriminatory and non-exclusionary facet of the equality code, which is Constitutionally not permissible. It would be arbitrary to exclude socially backward classes on the ground that they already enjoy quota benefits, he observed. Further, Justice Bhat cautioned that a 50% ceiling breach would open a gateway for further compartmentalization. This would privilege quotas over the right to equality, he forewarned.
CJI Lalit concurred with Justice Bhat’s opinions in their entirety, though it is quite rare for a chief justice to end up in a minority over a Constitutional bench decision.
While the judgement is a significant step towards a merit-based society, a 3:2 split verdict has left the country pondering the larger question that looms of an indefinite continuance of India’s reservation policy.
Trisha Shreyashi is a lawyer and honorary panelist of the Harvard Business Review Advisory Council.
