EWS RESERVATION AND BASIC STRUCTURE OF CONSTITUTION OF INDIA By - Prabhash Ranjan
EWS RESERVATION AND BASIC STRUCTURE
OF CONSTITUTION OF INDIA
Authored By - Prabhash Ranjan
LL.M. (Constitutional and Administrative Law) Student
Babasaheb Bhimrao Ambedkar University
Vidya Vihar, Rae Bareli Road, Lucknow
Mb.- 9525727111
Email- prabhashranjan55@gmail.com
“It was a wise man who said that there is no
greater inequality than the equal treatment of unequals”
-Felix Frankfurter
Abstract
Economically weaker section is also
known as EWS. EWS reservation came with the unique kind of affirmative action.
It is not based on social and educational backwardness. It is totally based
upon economical backwardness.103rd constitutional amendment came
with this new kind of reservation. This amendment tells about the affirmative
action other than Article- 15(4) and (5). This reservation is in addition to
the 50% ceiling i.e. established in the case of Indra Sahwney & Ors. V.
U.O.I & Ors. This violation of ceiling is done to protect the rights to
representation. This amendment will give an opportunity to the economically
weaker section of the society to use the reservation scheme of the government
and help in the development of the country and represent the economically
weaker section of the society. This paper tries to see the complexity of the
basic structure regarding the reservation in India, find the basis of similar
creamy layer cap for both EWS and OBC. This paper will try to evaluate the
social backwardness and economical backwardness. Whether the representation of
the socially and educationally backward is necessary or the economical backward
or we can say that economically backward is also socially and educationally
backward. All this questions will be evaluated under this paper.
Key words: - EWS, Affirmative action, Basic structure, Creamy Layer
cap.
Introduction
The CONSTITUTION (ONE HUNDRED AND
THIRD AMENDMENT) ACT, 2019 of Parliament received the assent of the President
on the 12th January, 2019. It came with the amendment regarding Economically
Weaker Section. It deals with reservation on Economic basis. It emphasized the
reservation to the General classes who is not getting the benefit of other
reservation scheme which is predetermined in the Constitution of India, 1950. Article
15(6) and 16(6) has been inserted for this EWS special provision to help him
getting representation in our country.
"Economically Weaker Sections"
as explained under the Constitution through which it said that, it shall be
such as may be notified by the State from time to time on the basis of family
income and other indicators of economic disadvantage.[1]
State has duty to make special
provision for the people who are not adequately represented or who are backward
classes. There are many debates on the backward classes. Different kinds of
reasoning were given which will be discussed in this paper.
Economically weaker section quota is
solely based upon the economic criteria. It is believed that it is extension of
reservation to the general category. This reservation scheme is not for the
OBSs, SCs, STs. This amendment came with purpose of advancement of Economically
Weaker Section. It excluded other categories to be benefitted from this scheme.
Perhaps unsurprisingly,
30 petitions were filed in the Supreme Court challenging the constitutionality
of the Amendment.[2]
Because it was believed that it has violated the constitutional guarantee
equality. In Indra Sawhney v. U.O.I[3],
it was held that reservations cannot be based on economic criteria alone. It
was also held that reservations are not intended as an economic welfare
measure, but rather function as ‘an atonement of past segregation and discrimination’.
It means without segregation and discrimination it is inappropriate to give
reservation.
Therefore this paper will discuss the
identification of backward classes, constitutionality of EWS reservation, the
creamy layer cap of OBC and EWS.
Backward Classes
The reservation is the concept came
in India in 1882. It was originally developed by William Hunter and Jyotirao
Phule. Caste system and the malpractice of untouchability is the rootcause for
the enforcement of reservation in India. But the prevailing reservation system
in today’s India was introduced in 1933 by British Prime Minister Ramsay
Macdonald in the form of the ‘Communal Award’. Under this the reservation is
based of communal basis.[4]
But in 1947 we got independence from British Rule and Pakistan is now a
separate country. Most of the Muslim went to Pakistan. Now the constituent
assembly felt that caste system is the main hindrance in achieving the
constitutional objective of equality. At that time it was decided that backward
people should be given opportunity to represent themselves and achieve the goal
of equality.
The
expression of ‘Backward Classes’ first appeared in 1870 in Madras Presidency,
where the British Government had grouped the Scheduled Castes and Untouchable
Castes under the label of ‘Backward classes’. The Fort St. George Gazette No.
40 of 5th November, 1985 mentioned grants in aid to schools for a
list of ‘Backward Classes’ which included the Untouchable Castes of Madras
Presidency. However, the term ‘Backward Classes’ had a less fixed and definite
reference and carried various denotations.[5]
To identify the Backward Classes in
the State of Mysore, Justice L.C. Miller Committee was appointed in 1918.
Similarly, in the Princely State of Travancore and Cochin, Justice C.D. Nokes
Committee was appointed in 1935. Prior to that, in the year 1932, Pt. Madan
Mohan Malviya, the signatory on the behalf of Caste Hindus and Dr. B.R.
Ambedkar, on behalf of the depressed classes, signed the Poona Pact. That was
the first occasion when the British Government recognized the depressed classes
(castes) as separate element in Indian politics.[6]
When the question was asked in the
Constituent Assembly, “what is a backward community?” Dr. Ambedkar explained,
“We have left it to be determined by each local government. A backward
community is a community which is backward in the opinion of the government”[7]
While the question of identifying the
Scheduled Castes and Scheduled Tribes was settled before Independence, largely
due to the efforts of Dr. B.R. Ambedkar, who composed them as backward classes
in the Constitution, the question of ‘Other backward classes’, as Pt. Jawharlal
Nehru said that that was to be left for the subsequent generations.[8]
The first attempt to identify
backward classes other than SCs and STs at the National level was made in 1953,
when the first backward classes commission was set up by a presidential order
on 29th January, 1953 under the chairmanship of Kaka Kalekar. That
commission included 2399 castes or communities as backward and among them
listed 837 as the ‘most backward’. Central government rejected the report on
the grounds that the commission had not applied more objective criteria, such
as income, education and literacy, to determine the backward status.[9]
During 1970 and 80’s, a number of
castes (OBCs), including Yadavs, kurmi, koiri emerged as important political
forces and many of them represented their respective communities or castes in
governance. That was the background under which the second backward commison
was set up on 20th December 1978.[10]
On 7th August, 1990, the
then Prime Minister announced the government acceptance of the Mandal
Commission Report in Parliament, reminding the nation that the Constitution
envisaged identification of social and educational backwardness, removal of
their difficulties and improvement in their conditions in terms of Article
340(1) read with 15(4) and 16(4).[11]
The government decided to adopt in
the first phase the castes common to both the Mandal list and the list prepared
by various states to introduce 27 per cent reservation in services for the
socially and educationally backward classes, the SEBCs (the constitutional term
for OBC); but that policy was not extended as educational institution at that
time. Further, through a central government memo dated 25th
September, 1991, 10 percent reservation in jobs and other opportunities were
given to “other economically backward sections of the people who are not
covered by any of the existing schemes” which was declared unconstitutional
while adjusting in the case of Indra Sawhney v. Union of India[12]
in 1992 by the Supreme court observing that “A backward class of citizens
cannot be exclusively identified by economic criterion”.
Though the Mandal Commission had
recommended reservation in educational institution, the commission also stated
“the initial part of the battle against social backwardness is to be fought in
the minds of backward people in India…government services have always been
looked upon as (status) prestige and power, by increasing the representation of
OBCs in government services, we give them an immediate feeling of participation
in the governance”.
In 1992, the Apex Court gave its
approval to the legitimacy of the government order to empower the Mandal report
subject to the exclusion of the socially advanced sections (creamy layer)
amongst those identified as backward classes. However, the Parliamentary
standing Committee on personnel, public grievance, law and justice, in its 8th
report on the SC/ST/OBS (reservation in posts and services Bill 2004), found
that many castes tribes and classes among the SC/ST/OBSs had been deprived of
the benefits of reservation in services as these were restricted to certain
upper sections among backward classes. It was expressed that “exclusion of some
castes from the benefit of reservation has pushed them far behind which is
violation of principles of social harmony and social equality as embodied in
the Indian Constitution.”
Constitutionality of EWS
reservation
As a corollary from the equality
before law[13] and the
general assurance of absence of discrimination by the state on the ground only
of religion, race, caste, sex, place of birth or any one of them[14],
the Constitution of India guarantee equality of opportunity in matters of
public employment and recruitment[15]
particularly in favour of any backward classes of citizens, which in the
opinion of the State, is not adequately represented in the services under the
State.[16]
Article 46 of Constitution of India contains
directive that state should promote educational and economic interests of
weaker sections and empowers the state to make special provisions for the
advancement of any socially and educationally backward classes of citizens[17]
and to make special provisions relating to certain classes in the Part XVI with
regard to reservation of seats for the Scheduled Castes and the Schedule Tribes
and representation of Anglo- Indian community in the House of People and Legislative
Assemblies of State[18]
Article 340 makes the provision for
the Commission to investigate the conditions of backward classes and Article
341 and 342 for Constitutional Orders for respective lists of the Schedule
Castes and Scheduled Tribes. However, the Constitution does not define or
prescribe to determine as to which classes are ‘Backward’ and it is left to the
‘State’ to determine ‘backward classes’ and make executive orders[19]
to that effect albeit that determination power of the state is subject to
judicial review[20]. The
given mandate of the Commission was to identify those classes which are
economically backward among General Category and not covered under existing
reservation policy.
The above analysis makes it clear
that there are specific Articles in the Constitution of India for making
special provision for weaker section and backward classes. Thus, the first task
in hand is to ascertain the criteria to identify those classes which are
economically backward but are not covered so far under the existing reservation
policy. Further, the first priority would be to work out the population of such
EBCs among General Category.
The census of India provides
population figures of the Scheduled Castes and the Scheduled Tribes but the
population of ‘Other Backward Classes’ and remaining classes were not reported.
Since the OBCs had been provided reservation, the concern here was to exclude
SCs, STs and OBCs, and then to identify EBCs from the remaining population.
However, the population of OBCs was not reported by the Census of India.
Therefore, it was not possible to work out the total population of the OBCs and
General Category.
In other words, the population EBCs
could not be ascertained from the data available in the census of India
reports. The other possibility was to work out the EBC population from the
surveys conducted by Government agencies and Commissions, such as the Backward
Classes Commissions, National sample survey organization (NSSO), National
Family Health Survey (NFHS), which had reported estimated population of Other
Backward and others (those not belonging to Scheduled Caste, Scheduled Tribes
and Other Backward Classes).
Thus, from such reports the estimated
population of classes/ categories not covered under the existing policy of
reservation could be uses as reference.
In the recent judgment of Janhit Abhiyan v Union of India[21]
for EWS reservation, there were 9 issues and it was passed by 3:2 majority. The
9 issues with their assenting judgments are following-
Issue 1. : Are reservation based
solely on economic criteria constitutional valid?
Justice D. Maheshwari- YES, The Court
has only held that economic criteria cannot be the sole basis of in the context
of SC/ST/OBC reservation. Separate reservation that consider economic criteria
for other classes are different, and thus constitutionally valid.
Justice B.M. Trivedi- YES, Economic
empowerment of weaker sections ensure equality of status as envisioned in the
constitution. This action in favour of the weak or disadvantaged people by
reasonable classification is an affirmative action by the state.
Justice J.B. Pardiwala- YES, EWS
reservations indicate Parliament’s intenstion to expand affirmative action to
groups who suffer from similar disadvantages as socially backward groups.
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- YES, Nothing in the Constitution precludes the state
from creating a new criteria for affirmative action through a Constitutional
Amendment. The Directive Principle place an obligation on the State to address
economic inequalities.
Issue 2.: Does the 103rd amendment
violate the Basic Structure of Constitution?
Justice D. Maheshwari- NO.
Justice B.M. Trivedi- NO, States have
a constitutional obligation to ensure social and economic equality. This cannot
be said to be violate basic structure.
Justice J.B. Pardiwala- NO,
Preserving the basic structure of the Constitution must not be at the cost of
‘constitutional stagnation’. In protecting basic structure one must focus on
whether a principle is changing the entire constitutional identity.
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- Yes, The principle of non-discrimination and non-
exclusion of SC, ST and OBC groups is an essential part of the right to
equality. This right forms a part of the basic structure. Their exclusion from availing
EWS reservation benefits violates the basic structure.
Issue 3.: Does the 103rd Amendment
violate the Right to Equality?
Justice D. Maheshwari- NO.
Reservation as a whole are an exception to the Right to Equality as they are
based on the principle of ‘Compensatory Discrimination’ to provide benefits to
one specific class of people. Economically Weaker Sections are one such class
of persons.
Justice B.M. Trivedi- NO, The amendment
creates a separate class of ‘economically weaker sections’ of society without
affecting the reservations provided to the SCs, STs and OBCs. Their exclusion
does not violate equality code.
Justice J.B. Pardiwala- NO, EWS
reservations ensure that a reasonably classified group of people, those below a
certain income level, are given access to education and employment
opportunities. It is designed to promote directive principles of state policy
including Article 46, and thus upholds constitutional goals, even if it does
not adhere to a formal understanding of Equality.
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- YES, Article-16(4), providing affirmative action to
backward caste groups, casts an obligation on the state to rectify inequalities
between these groups and forward castes. The exclusion of the poorest among the
SC, ST and OBC groups from EWS reservation, violates the Right to Equality. The
backward classes make up a bulk of the country’s poor.
Issue 4.: Is Article 15(6) granting
EWS reservation in educational institutions Constitutional?
Justice D. Maheshwari- YES.
Justice B.M. Trivedi- YES.
Justice J.B. Pardiwala- YES, EWS
reservation in education is consistent with the socialist goals set out in the
Preamble and Directive Principles in Part IV of the Constitution.
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- YES, Because the purpose of reservation in educational
institution is to provide equal opportunity, not to ensure representation.
Issue 5.: Is Article 16(6) granting
EWS reservation in public employment Constitutional?
Justice D. Maheshwari- YES.
Justice B.M. Trivedi- YES.
Justice J.B. Pardiwala- YES.
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- NO, The logic of reservation in employment is to
rectify inadequate representation of SC/ST and OBC groups. EWS candidates are
all from forward classes and are adequately represented in public employment.
Hence, there is no basis for EWS reservation in public employment.
Issue 6.: Can SC/ST/OBCs be excluded
from the scope of EWS reservations?
Justice D. Maheshwari- YES, Exclusion is a
core part of all reservations to make sure that a particular target group
receives benefits. Extending EWS reservation to SCs/ STs and OBCs would give
them an extra and excessive advantage.
Justice B.M. Trivedi- YES, Special
provisions already exist in the Constitution for SC/ST/OBC reservation. People
belonging to EWS form a separate category and different from general/
unreserved category.
Justice J.B. Pardiwala- YES, There is
no active exclusion of SCs/STs and OBCs. The Legislature, in their wisdom, made
a decision to include a specific group of people. It does not have to bring in
‘any and everybody to make it (reservation) reasonable’.
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- NO, (i) The State has a constitutional obligation to
address inequalities between forward and backward classes. The exclusion of the
poorest among the SC, ST and OBC groups from EWS reservation violates the Right
to Equality. (ii) the Union’s basis for exclusion is that SCs/STs and OBCs
already get reservation benefits to increase their representation. This has no
connection with the purpose of EWS reservations, which are meant to address
individual inequalities.
Issue 7.: Can the 103rd
Amendment breach the 50% limit?
Justice D. Maheshwari- YES. This
limit is flexible based on the circumstances. Further, the 50% ceiling limit
has only been recognized in reservations for SC/ST and OBC. It cannot be
extended to an entirely separate class like Economically Weaker Sections.
Dissenting judgment by Justice R.
Bhat and CJI U.U. Lalit- A specific finding on how much EWS reservations can be
permitted is unnecessary since the Amendment is unconstitutional. However,
sounding a note of caution, justice Bhat says that breaching the 50% rule may
become a gateway to further compartmentalization. It may cause the ‘right to
reservation’ to eat into the rule of equal opportunity.
Issue 8.: Are EWS Reservation in
Private Educational Institutions Valid?
Justice D. Maheshwari- YES, It is
necessary in order to provide equality of opportunity and achieve the goal of
social justice spelled out in the Preamble of the Constitution.
Justice J.B. Pardiwala- YES,
Dissenting judgement by Justice R.
Bhat and CJI U.U. Lalit- Education is a material resource and hence a
government concern. Reservation in private institution is permissible, but this
question is moot in the context of EWS reservation since the Amendment is
unconstitutional.
Issue 9.: Should a time limit on EWS
reservations be imposed?
Justice B.M. Trivedi- YES.
Prescribing time limits for reservation under Article 15 and Article 16 of the
Constitution is the way forward leading to an egalitarian, casteless and
classless society.
Justice J.B. Pardiwala- YES. Dr.
Ambedkar intended reservation to be used for 10 years. However, it has extended
for 7 decades. It must not continue for an indefinite period of time, and
become a vested interest.
Creamy layer cap of EWS and OBC
The annual income limit of the family from all sources
for the EWS group of General category for availing the benefit of reservation
is fixed at Rs.8,00,000/-.[22]
The annual parental income limit for the sections of
the Other Backward Classes, who do not fall with the other conditions
prescribed for determination of Creamy Layer, is Rs. 8 lakh.[23]
Articles 15(5) and Articles 16(5) enable the State to
make special provisions for the advancement of socially and educationally
backward classes of citizens and provide reservation to them in admissions to
educational institutions and recruitment to Government jobs while Articles
15(6) and 16(6) enable the State to make similar special provisions for the
advancement of economically weaker sections of citizens.[24] However, the Constitution
does not give the mandate to prescribe different yardsticks for economic parity
of the two communities.
The annual income limit for creamy layer for the OBCs
was last revised in the year 2017 and has remained unchanged since then.[25]
Socio- economic status of any community/group/segment
of society is known by the occupation it pursues, landholding, status of women,
levels of education, health standards and condition of housing etc.
It is the general impression that people belonging to
the General Category have much better socio- economic status than those
belonging to the OBCs. But this commission noticed that there segments in the
General Category which had status equal or even lower than that of the average
OBC on several parameters. An assessment was made with regard to backwardness-
economic and educational backwardness, and status of health, nutrition and
housing among General Category.
Monthly per capita expenditure (MPCE) is the monthly
per capita expenditure on basic feed and a few other items, which the NSSO
rounds track; it is a measure of the economic status of a household in terms of
consumption of basics.
While half of the General Category in rural areas had
MPCE below the average MPCE about 64 percent OBCs had the same status. Both
General Category and OBC in rural India had better consumption status compared
to ST and SC, as 79.6 percent and 77.4 percent of them respectively had MPCE below
the state average.
The difference between General Category and OBC was
higher in urban areas where General Castes appeared considerably better in
their MPCE status. However, more than relative comparison, about 54 percent of General
Castes both in urban and rural areas had MPCE that was below the state average.
Average MPCE of GC as a whole was admittedly higher
than that of the SC and ST population. However, the fact remained that half of
GC population shared the same status as most of the other social groups in
their consumption capacity.
The conclusion drawn included:
i.
The
average MPCE of General Castes, at Rs 685.31, was 22.5 per cent higher than the
all groups average (Rs.558.78), which was almost the same as the average MPCE
of OBCs (Rs. 556.72)
ii.
The
MPCE average, at Rs. 924.44, was the highest for non-agricultural and non-self
employed occupations. The lowest occupation was agricultural labour, with the
MPCE of Rs. 415.
iii.
The
difference of MPCE average between GC and OBC was higher in value added
occupations such as “self employed in non- agriculture” and “other” occupations
and the lowest in “labour” as occupation.
iv.
In the
category of “self employed in agriculture”, General Castes and OBCs had higher
MPCE, irrespective of the size of land holding.
v.
Even
at 4-acre level, the MPCE of GC was 29.4 percent higher than that of the STs
holding the same quantum of land. However, the difference between GC and OBC
was only 10 percent in the same land holding category.
General Castes having lower land holding but engaged
in agriculture had a lower economic status than the OBCs.
17.5 percent of General Castes in rural and 19.3
percent in urban India together constituted
about 5.8 crore poor among the GC. They were as poor as the poor within
the OBC, as 28.8 per cent in rural and 37 percent in urban area is below
poverty line in India[26]based on the population of
OBC- 13.86 crore and GC- 5.85 crore. The poor would need a range of welfare
measures equivalent to OBC for their economic improvement.
In rural areas, there was remarkable similarity
between the GC and OBC in terms of their participation in various occupations.
In urban areas, the GC and OBC were comparable in “self employed” occupations
while the proportion of OBCs to GC was somewhat less in salaried jobs.
35.3 percent of the GC in rural areas did not posses
any land. The landless proportion of GC was not too different from the OBCs
(39.1%).
The reason behind the apparently high landless status
among the GC and OBC could be the cultivation structure in rural India. The
‘Bhagidari’ or sharecropper scheme had enabled the General Castes and even the
higher castes among OBCs to hold on to land without directly cultivating it.
There are fewer takes for the scheme.
Share for the absentee land owner is fast dwindling.
Add to that the demand for agricultural land at a higher price for building
houses and it is possible that most of the marginal owners belonging to the General
Castes and OBCs have sold their holding, rendering them landless. Alternative
non-farming opportunities can be the only answer to improve the condition of arrangements.
It was noted that the illiteracy status was
considerably higher in the other three groups compared to GC, at 55 percent,
46.9 percent and 43.3 percent respectively for relating it to the absolute
poverty line to be targeted for the EBC among General Category.
GC as a category was educationally less backward than
SC, ST and OBC. However, there might be segments within the GC that had higher
illiteracy. These sub-segment needed to be identified so that they could be
assisted along with the illiterates of SC/ST/OBC. The state wise analysis of
illiteracy in subgroups/classes within the GC (vs OBC) highlighted such
sub-groups in GC and could help in targeting educational welfare measures more
sharply.
The creamy layer of GC at the “educational advanced”
end of General Castes termed brighter compared to the advanced end of the OBCs.
That was corroborated by the much higher percentage of percentage of persons
from General Castes with graduate and secondary school degrees.
Conclusion
It is concluded that the term
“Backward” was used for the first time for Scheduled castes and untouchables
due to the historical atrocities and poor condition. It was decided prior to
the enforcement of the Constitution of India. Still some people are backward.
They were not getting the representation and opportunities. In the constituent
assembly it was decided that the backward people will be determined by the
government of that period of time. It will change from generation to
generation. first backward classes commission was set up by a presidential
order on 29th January, 1953 under the chairmanship of Kaka Kalekar.
Central government rejected the report on the grounds that the commission had
not applied more objective criteria, such as income, education and literacy, to
determine the backward status. After this near 1970-1980 the political power of
OBC was rise. The politics of that time has made a large impact upon the
reservation policy. As Dr. Ambedkar and Nehru said in the debate of constituent
assembly; the government will determine the “Backward Class”. Prime Minister
announced the government acceptance of the Mandal Commission Report in
Parliament, reminding the nation that the Constitution envisaged identification
of social and educational backwardness, removal of their difficulties and
improvement in their conditions in terms of Article 340(1) read with 15(4) and
16(4), but that policy was not extended as educational institution at that
time. Further, through a central government memo dated 25th September,
1991, 10 percent reservation in jobs and other opportunities were given to
“other economically backward sections of the people who are not covered by any
of the existing schemes” which was declared unconstitutional while adjusting in
the case of Indra Sawhney v. Union of India[27]
in 1992 by the Supreme court observing that “A backward class of citizens
cannot be exclusively identified by economic criterion”. It was expressed that
“exclusion of some castes from the benefit of reservation has pushed them far
behind which is violation of principles of social harmony and social equality
as embodied in the Indian Constitution.”
The general assurance of absence of
discrimination by the state is based on the ground only of religion, race,
caste, sex, place of birth or any one of them[28],
the Constitution of India guarantee equality of opportunity in matters of
public employment and recruitment[29]
particularly in favour of any backward classes of citizens, which in the
opinion of the State, is not adequately represented in the services under the
State.[30]
Article 46 of Constitution of India
contains directive that state should promote educational and economic interests
of weaker sections and empowers the state to make special provisions for the
advancement of any socially and educationally backward classes of citizens[31] and the same time Article 340 makes the
provision for the Commission to investigate the conditions of backward classes
and Article 341 and 342 for Constitutional Orders for respective lists of the
Schedule Castes and Scheduled Tribes. However, the Constitution does not define
or prescribe to determine as to which classes are ‘Backward’ and it is left to
the ‘State’ to determine ‘backward classes’ and make executive orders[32]
to that effect albeit that determination power of the state is subject to
judicial review[33]. The
given mandate of the Commission was to identify those classes which are
economically backward among General Category and not covered under existing
reservation policy. After the judgment of Janhit Abhiyan v Union of India[34]
it was decided by 3:2 majority. On the issue of economic basis of reservation
each Hon’ble judges gave positive remark. But on the issue related to the
violation of basic structure 3 Hon’ble Judges said that it does not violate the
basic structure while the 2 Hon’ble judges dissented and said it violates the
basic structure of the Coonstituion.
The
review petition upon the creamy layer cap determination is filed before the
Supreme Court. The issue related to creamy layer is based upon the taxable
income limit of the family income. Since the proper data is not available
regarding the population of OBC has some lacunae.
[2] https://www.scobserver.in/journal/ews-debate-resurfaces/
[5] Galanter Marc(1984):Competing
Equalities: Law and the Backward classes India, Oxford University Press, Delhi,
p. 154-155.
[6] Government of India report,
commission for economically backward classes, 2010, vol. I, Ministry of Social
Justice and Empowerment, New Delhi.
[7] Govt. of Maharastra, 994:393
[8] Government of India report,
commission for economically backward classes, 2010, vol. I, Ministry of Social
Justice and Empowerment, New Delhi.
[9] Ibid.
[10] Ibid.
[13] Article 14, Constitution of
India, 1950
[14] Article 15 and 29, Constitution
of India, 1950.
[15] Article 16, 309, 335 of
Constitution of India, 1950.
[16] Article 16(4), Constitution of
India, 1950.
[17] Article 15(4), Constitution of
India, 1950.
[18] Articles 330-334, Constitution
of India, 1950.
[19] State of M.P. v. Nivedita, 1981
S.C. 2045 (para 22-23)
[21] Writ petition (civil) no. 55 of
2019.
[22]
https://pib.gov.in/PressReleasePage.aspx?PRID=1796870
[23]Ibid.
[24] Ibid.
[26] NSSO, 2004-2005
[27] AIR 1993 SC 477.
[28] Article 15 and 29, Constitution
of India, 1950.
[32] State of M.P. v. Nivedita, 1981
S.C. 2045 (para 22-23)
[33] Triloki Nath v. State of
J&K, 1 969 SCR(1) 103
[34] Writ petition (civil) no. 55 of
2019.