EWS QUOTA
1. Context
On September 27, a constitutional Bench led by CJI U.U.Lalit heard multiple petitions against reservations based solely on economic criteria introduced by the Constitution (103rd) Amendment Act, 2019. After extensive hearings, the Bench reserved its judgment in the case.
2. Types of Reservations:
Vertical reservation: Reservation for Scheduled Castes, Scheduled Tribes, and other Backward classes is referred to the as vertical reservation. It applies separately for each of the groups specified under the law.
Horizontal Reservations: It refers to the equal opportunity provided to other categories of beneficiaries such as women, veterans, the transgender community, and individuals with disabilities, cutting through the vertical categories.
3. The Application of Reservations:
- The horizontal quota is applied separately to each vertical category, and not across the board.
- For Example, if women have a 50% horizontal quota, then half of the selected candidates will have to necessarily be women in each vertical quota category-i.e., half of all selected SC candidates will have to be women, half of the unreserved or general category will have to be women, and so on.
- The interlocking of the two types of reservation throws up a host of questions on how certain groups are to be identified. For example, would an SC woman be put in the category of women or SC? since quotas are fixed in percentages, what percentage of quota would be attributed to each?
4. Special measures provided by the 103rd Constitutional Amendment Act
- Article 15 stands amended enabling the state to take special measures (Not limited to reservations) in favor of EWS generally with an explicit sub-article on admission to educational institutions with a maximum 10% reservation.
- The amendment to Article 16 allows 10% reservation (and not special measures) for Ews in public employment and does so in a manner that is different from reservation for scheduled caste/Scheduled Tribes and other Backward Classes.
- The amendment leaves the definition of 'Economically Weaker Sections" to be determined by the state based on 'family income and other economic indicators.
- Also critical to this amendment is the exclusion of SC/STs, OBCs, and other beneficiary groups under Articles 15(4), 15(5), and 16(4) as beneficiaries of the 10% Ews reservation.
5. Indra Sawhney Case
- To start the constitutional examination of the recent amendment let us take the supreme court's view on reservation based purely on economic criteria.
- Eight of the nine judges in Indra Sawhney (November 1992) held that the Narasimha Rao government's executive order (and not a constitutional amendment )providing for 10% reservations based purely on economic criteria was unconstitutional.
- Their reasons include the position that income/property holdings cannot be the basis for exclusion from government jobs, and that the constitution was primarily concerned with addressing social backwardness.
6. 103rd Amendment will be tested against the Basic structure doctrine
- However, the decision in Indra Sawhney involved testing an executive order against existing constitutional provisions. In the current situation, we are concerned with a constitutional amendment brought into force using the constituent power of parliament.
- The fact that we are not concerned with legislative or executive power means that the amendment will be tested against the 'basic structure and not the constitutional provisions existing before the amendment.
- The pointed question is whether measures based purely on economic criteria violate the 'basic structure of the constitution.
- Experts believe, it is a sufficient answer to say that 'backwardness' in the constitution can only mean 'social and educational backwardness.
- It is difficult to see an argument that measures purely on economic criteria are per se violative of the Basic structure.
- EWS reservations might not able to alleviate poverty but that is not the nature of 'basic structure' inquiry. Economic criteria form the basis for differential treatment by the state in many ways and it would be a stretch to suddenly see it as constitutionally suspect when it comes to 'special measures; and reservation in education and public Employment.
- Poverty inflicts serious disadvantages and the prerogative of the state to use special measures/ reservations as one of the means to address it (however misplaced it might be as a policy) is unlikely to fall foul of the 'basic structure doctrine.
7. Challenges to the amendment
- A challenge to the amendment may lie in the context of Article 16 by shifting how reservations can be provided in public employment.
- Under Article 16(4), reservations for the backward classes (SC/STs, OBCs) are dependent on beneficiary groups not being 'adequately represented' but that has been omitted in the newly inserted Article 16(6) for EWS.
- The amendment through Article 16(6) ends up making it easier for the state to provide reservations in public employment for EWS than the requirements to provide reservations for 'backward classes' under Article 16(4).
- Supreme court might have its views on this. On the one hand, it is confronted with the reality that 'backward classes' like SC/STs and OBCs are disadvantaged along multiple axes.
- On the other hand, it is now far more difficult for the state to provide reservations to these groups than the EWS. The response might well be that 'representation' is not the aim of EWS reservation and questions of 'adequacy' are relevant only in the context of representation claims like those of the backward classes under Article 16(4).
8. Breaching the 50% Ceiling
- In many of the responses to the amendment, breaching the 50% ceiling on reservations has been coted as its greatest weakness. It is hard to see the merit of that argument because the amendment by itself does not push the reservation beyond 50%
- While it might be a ground to challenge the subsequent legislative/executive actions, the amendment itself is secure from the challenge. But even beyond this narrow technical response, the 50% ceiling argument is far from clear.
- In Indra Sawhney, the majority of judges held that the 50% ceiling must be the general rule and a higher proportion may be possible in 'extraordinary situations. Fundamentally this argument stems from an unresolved normative tension in Indra Sawhney.
9. The Saurav Yadav versus the State of Uttar Pradesh 2020 Case:
The court ruled against the Uttar Pradesh government, holding if a person belonging to an intersection of the vertical-horizontal reserved category had secured scores high enough to qualify without the vertical reservation, the person would be counted as qualifying without the vertical reservation, and cannot be excluded from the horizontal quota in the general category.
A similar question had arisen in the case of vertical reservation in the past, and the law had been settled similarly: If a person in the SC category secures a higher score than the cut-off for the general category, the person would be counted as having qualified under the general category instead of the SC quota.
10. The Government's argument:
The government's policy was to restrict and contain reserved category candidates to their categories, even when they had secured higher grades. The court said this amounted to ensuring that the general category was 'reserved' for upper castes.
11. The Court's reasoning:
If both vertical and horizontal quotas were to be applied together-and consequently, a high-scoring candidate who would otherwise qualify without one of the two reservations is knocked off the list-then the overall selection would have candidates with lower scores.
On the other hand, if a high-scoring candidate is allowed to drop one category, the court found that the overall selection would reflect more high-scoring candidates. In other words, the "meritorious" candidates would be selected.
12. Reservations are not an 'exception' but a 'facet' of equality
- While committing to the constitutional position that reservations are not an 'exception' but a 'facet' of equality, the majority in Indra Sawhney also invokes the idea of balancing the equality of opportunity of backward classes 'against' the right to equality of everyone else.
- When the governments implement the EWS reservations and push quotas beyond 50%, the supreme court will be forced to confront this normative tension.
- If reservations further equality, what then are the justifications to limit it to 50% when the identified beneficiaries constitute significantly more than 50%?
- The answer to that question might lie in Indra Sawhney's position that the constitutional imagination is not one of 'proportional representation' but one of 'adequate representation.
- However, as discussed above, if abandoning the 'adequacy' requirement per se is upheld for EWS reservations, the basis for a 50% ceiling becomes unclear.
13. Conclusion
Reservation is a form of positive discrimination, created to promote equality among marginalized sections and to protect them from social and historical injustice. The ruling will give clarity on the reservation and make it easier for governments to implement and apply reservations. More needy scheduled castes, scheduled tribes, and other backward-class candidates will be benefited if high-scoring candidates are recruited under the general category.
For Prelims & Mains
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For Prelims: Article 15, Articles 15(4), 15(5), and 16(4), Indra Sawhney case, Vertical reservation, Horizontal Reservations, Basic structure Doctrine.
For Mains: 1. Explain the implications of the EWS Quota and What do you mean by Horizontal and Vertical Reservation? Discuss in light of the recent supreme court judgment.
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Source: The Hindu
