EWS RESERVATION

1.Context

The Supreme Court by a 3:2 majority has upheld the validity of the constitution (103 rd 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.

2.Change in Concept

From a form of affirmative action in which membership of a social group was the main basis for extending a reservation, it moved towards using income and means as the basis for special provisions.

3.EWS Reservation

• 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 103^rd 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 provisions 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%

4.Criteria For EWS

• Persons who are not covered under the scheme of reservation for SCs, STs, and OBCs and whose family has a gross annual income below Rs 8 (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year before the year of application.
• Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:
• 5 acres of agricultural land and above;
• The residential area of 1000 sq ft. and above;
• Residential plot of 100 sq. yards and above in notified municipalities;
• A residential, plot of 200 sq. yards and above in areas other than the notified municipalities.
• The property held by a "Family" in different locations or different places/cities would be clubbed while applying the land or property holding test to determine EWS status.

5.Main Grounds of Challenge

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 constitution system such as secularism, federalism, independence of the judiciary, rule of law and equality before the law are considered its basic features.

The 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 the 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 reservations.

6.The rationale behind Upholding the EWS quota

• 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 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.
• 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. Another point in favour of the extra 10% quota was that the 50% limit was applicable only to the existing reserved categories(OBC/S/ST).
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7.Conclusion

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 reservation for those already represented in public employment violates the equal opportunity norm, which is part of the basic structure.

Source: The Hindu