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“NEED OF RESERVATION FOR ECONOMICALLY WEAKER SECTION AND ITS ANALYTICAL STUDY” BY: SHAIKH KARISHMA HAMID
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“NEED OF RESERVATION FOR ECONOMICALLY WEAKER
SECTION AND ITS ANALYTICAL STUDY”
AUTHORED BY: SHAIKH KARISHMA HAMID
CLASS- LLM II
ACADEMIC YEAR 2022-23
PROGRESSIVE EDUCATION SOCIETY’S
MODERN LAW COLLEGE
ABSTRACT
After India's independence, the rightfulness of the Indian
government was strictly
correlated to its competence to integrate the enormous,
factually marginalized inhabitants into Indian polit- ical institutions. Prior to independence, Indian leaders
supported preferential treatment for groups that experienced commercial and collective
discrimination because of the caste system. The 1951 Indian constitution (1st Amendment) mandated the
representation of Scheduled Castes and Scheduled
Tribes by reserving
quotas for them in Educational Institutions. Over the years,
constitutional changes have added and revised the reservation system for
providing so- cial justice and now
from 2018 it made amendments to provide reservations for the economi- cally backward sections of the society
which is seen as an act of Economic Justice too. This study reveals the consciousness and thoughts about strengthening
the economically weaker sections of the humanity.
Reservation is constantly provocative and maudlin issue and raises many
concerns of the peo- ple. The
policy of reservation required to Scheduled Castes and Scheduled Tribes and
Other Backward Classes has adversely altered the unanimity and harmony of the nation.
Reservation in India is all
about reserving entrance to seats in the government careers, educational estab- lishments and even legislatures to certain
sections of the population. The reservation can also be seen as definite intolerance. Reservation in India is a
government policy, backed by the Indian Constitution. Part XVI deals with reservation of SC and ST in Central and state
legisla- ture. The need for
reservation can be looked from legal and socio-cultural perspective. Reser- vation facilitates empowerment and social harmony for all in the
segments.[1]
Keywords: Constitution, Reservation, ST, SC, OBC, SEBC, EWS (Economically Weaker Sec- tion), Amendments
INTRODUCTION
Reservation is the development of facilitating people in education,
scholarship, jobs etc. that were
faced with chronological injustice. It is a structure of quota based favourable
fighting or positive discrimination which
follows the concept
that "There is nothing more unequal than the equal treatment of unequal people"[2].
It is a procedure in India which constitutes several plans like reserving access to seats in the
legislatures, to government jobs and to enrolment in edu- cational institutions and these are
overseen by constitutional laws, statutory laws and other local guidelines and policies. The
reservation is made to eradicate the historical harassment, imbalance and bigotry of these communities
and give them a home. The main objective of the reservation system in India is to expand the social and
educational reputation of underprivi- leged
communities to enhance their lives and to accomplish the promise of equivalence
en- shrined in the constitution.
People or houses
with income below
a certain threshold are classified as Economically Weaker
Section (EWS). While there are other economic
factors in deciding
on the economic weakness of the citizen / household, family
income is the foremost benchmark. This concept has been acknowledged in the context of the preamble to India's
constitution, which seeks social, eco- nomic, and political justice.
The
existing reservations in the field of education and employment are given based
on social conditions only.
These new amendments in law aims to create reservations based on economic
criteria. The study also explores the consciousness and attitude about
the 102nd Amendment Act, 2018 and 103rd Amendment Act, 2019 which
provides the reservations for the Economi-
cally Weaker Section
(EWS).
Before this provision for reservation of EWS
introduced, untouchability was prevalent in India, in which lower caste people were not
given opportunities to participate in higher departments. This provision was introduced by the
constituent assembly with an aim to protect the social, political, economic, and educational Right of the minorities.
The people of India have given the
right to equality and thus, this step of the constituent assembly was necessary
to be taken for the EWS. The state has taken several
appropriate steps in this direction to secure the dignity of the EWS. This provision of reservation has shown it’s positive as well as the negative
impact in several
years.[3]
The economically weaker section (EWS) is the section of the society in
India that belongs to the un-reserved category and has an annual
family income of less than 8 lakh rupees. This cat- egory includes people that do not belong
to the caste categories of ST/SC/OBC who already enjoy the benefits of reservation.
Eligibility Criteria
for the Reservation to
Economically Weaker Section
(EWS)
The candidates eligible for the economically weaker section reservation
can now enjoy a res- ervation of 10% if they fulfil
the criteria to fall under this category as shown below[4]:-
1. You must
fall under the general category which means you cannot belong to the SC/ST/OBC
categories who already have reservations
2. Your annual family income should be below 8 lakh rupees.
An annual income
of above 8 lakhs cannot be considered as
economically weak and hence cannot fall under the economically weaker section
(EWS).
3. If your family owns any agricultural land, it should be less than 5 acres.
4. If you or
your family owns a flat, the area of the flat should be less than 1000 square feet.
NEED OF RESERVATION FOR ECONOMICALLY WEAKER SECTION (EWS)
The
reservation system in India dates to 2nd Century where the upper class
appreciated some additional
privileges. The idea of caste-based
reservation system was originally conceived by
William Hunter and Jyotirao Phule in 1882. The reservation which exists today was introduced in 1933 when British
Prime Ramsay Macdonald presented the Communal
Award. This made a provision for separate electorates for
Muslims, Sikhs, Indian Christians, Anglo-Indians, Euro- peans, and the Dalits and this was opposed by M.K. Gandhi
whereas B.R. Ambedkar
was sup- porting
it whole heartedly. To address this situation, Poona
pact was signed
according to which
the country would have single Hindu electorate with seats reserved only
for Dalits. According to the Constitution of India there were reservations only for the Employment and Politically
reserved constituencies and there was no special mention to the reservations in the Educational Institutions.
The constitution was in force and in Article 15 there are provisions
related to the Prohibition of dis- crimination
on the ground of religion, race, caste, sex, or place of birth which were controlling
the power to insert and amend
reservation-based provisions in Indian constitution. Hence There made Amendment to add the clause 4, an
exception to the clause 1 and clause 2 of the Article 15. The Con- stitution first Amendment Act 1951,
after the decision of the Supreme court in the case of the State of Madras
v. Champakam Dorairajan.[5]
Reservations
can be provided to accord protection beyond caste-identities and can be carved out for the economically vulnerable
sections of people. This has expanded the logic of af- firmative action in India as, since Independence, reservation
policy has been perceived as an extreme
tool for protection of only the historically marginalised caste-based
communities to mitigate the social
exploitation, discrimination, and backwardness of the vulnerable caste groups.
Hence to address the
present problems of poverty, economic deprivation, and unemployment right to equality of
opportunity, right to education and conditions for accessing employment for a dignified socio-economic life have
been the basic premise of India’s constitutional imagination while it laid the
foundation for a representative democracy, there felt the need for reservation to economically weaker section (EWS) of society.
LEGISLATURES/AMENDMENTS
REGULATING RESERVATION TO ECONOMI- CALLY
WEAKER SECTION (EWS) IN INDIA
1)
The Constitution (One Hundred and Second Amendment) (102nd) Act, 2018
In
the 1950s and 1970s, Kaka Kalelkar and B.P. Mandal, respectively, appointed two
Back- ward Class Commissions. In the
1992 case of Indra Sawhney V/s UOI[6],
the Supreme Court ordered
the government to establish a permanent commission. The aim of this commission was to consider,
examine, and recommend the inclusion and exclusion of various Backward
Classes for the purposes of
benefits and protection. The National Commission for Backward Classes Act of 1993 was passed in response to these directives, and the National Commission for Back- ward Classes was established. The 102nd constitutional amendment gave
constitutional status to the
National Commission of Backward Classes, and its interpretation effectively
weakened state governments' authority
to identify backward classes and provide them with reservation benefits.
Articles
338B and 342A of the Indian Constitution were added because of the
modification. The National Commission
for Backward Classes' structure, tasks, and powers are outlined in Article 338B. The President of India has the authority to declare a caste as a
Socially and Educationally Backward
Class (SEBC), and the
Parliament has the authority
to alter the list.
The said Commission was made responsible for Monitoring safeguards for socially and educa- tionally disadvantaged groups, providing
socio-economic development assistance, investigat- ing complaints, and making suggestions, among other things.
Significantly, the Centre
and the States are required to consult the Commission on all policy decisions relating to the SEBCs. It reports on the effectiveness of those safeguards
to the President on an annual basis and at other times as the Commission sees
suitable. NCBC must perform any other tasks related to the protection,
welfare, development, and progress
of the socially and educationally disadvan- taged that
the President may designate by regulation, subject to the rules of any law
passed by Parliament.
The Amendment also included Article 342A, which states that the
President, in collaboration with the Governors
of the relevant States, must notify a list of SEBCs in reference to each State
and Union Territory. Once the 'Central List' has been notified, only Parliament has the authority to add or remove items from the list by legislation.
In May 2021, the Supreme Court held that the 102nd Amendment Act of 2018 took away states' ability to establish socially and educationally backward classes inside
their borders for the pur- pose of providing quotas in
jobs and admissions to educational institutions.[7]
2)
The Constitution (One Hundred and Third Amendment) (103rd) Act, 2019
In the case of Janhit Abhiyan V/s
Union of India[8],
by 3-2 majority, the Supreme Court upheld the
103rd Constitutional Amendment providing EWS reservation. With this, the Court
ex- tended the net of reservation
benefits to include solely economic backwardness.
On 9th January 2019, the Parliament of India enacted
the Constitution (One Hundred
and Third Amendment) Act, 2019 which enabled the State to make reservations in higher education and matters of public employment on the
basis of economic criteria alone. The Act amended Arti- cles 15 and 16 of the Constitution by inserting 15(6) and 16(6).
The
Amendment under Article 15(6) enables the
State to make special provisions for the ad-
vancement of any economically weaker section of citizens, including
reservations in educa- tional
institutions. It states that such reservations can be made in any
educational institution, including
both aided and unaided private institutions, except minority educational
institutions covered under Article 30(1). It
further states that the upper limit of EWS reservations will be 10% which means up to 10% of seats can be reserved
for citizens falling in the EWS category. Article 16(6) enables
the State to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations.[9]
More than 20 petitions have been filed challenging the constitutional
validity of the 103rd Amendment. They
argue that the Amendment violates the basic features of the Constitution and violates the fundamental right to equality under Article 14, argued that Reservations cannot be based solely on economic criteria,
given the Supreme Court’s judgment
in Indra Sawhney
v.
Union of India (1992), SCs/STs and OBCs cannot be excluded from economic reservations, as this would violate the fundamental right to equality, The
Amendment introduces reserva- tions
that exceed the 50% ceiling-limit on reservations, established by Indra Sawhney. Impos- ing reservations on educational institutions that do not receive State aid violates
the fundamen- tal right to equality.
At present, 49.5% of seats in education and public
appointments are reserved,
with 15%, 7.5%
and 27% quotas for Scheduled Castes, Scheduled Tribes,
and Other Backward
Classes respec- tively.
After five days of hearings
in 2019, the Court had reserved its order on the issue of
referring the case to a Constitution Bench. On 5th August, 2020, the Court decided to refer this case to a five-judge bench.
Finally in a 3:2 split, the Bench delivered the Judgment on 7th
November 2022, and declared that the Amendment and EWS Reservations were constitutionally valid.
RESERVATION FOR ECONOMICALLY WEAKER SECTION IN MAHARASHTRA
The 103rd Amendment does not make this EWS criterion
reservation mandatory in State Gov- ernment-run educational institutions or employment. Anyhow, some states have chosen to im- plement this policy of 10% reservation for economically weaker
sections. Gujarat was the first
state to implement
this program followed
by the state of Telangana.
The Supreme Court
in the case of Dr. Jaishri Laxmanrao
Patil v. The Chief Minister[10] struck down Maharashtra’s Socially and
Educationally Backward Classes Act, 2018, which grants reservations to the Maratha community, for violating both the
50% limit on reservations and the
102nd Amendment of the Constitution.
On 9th July 2014, the State of Maharashtra promulgated an ordinance granting
16% reservation in education and public employment to the Maratha
community. This followed
decades of pro-
tests for a demand for ‘Maratha Reservation’. On 14th November
2014, the Bombay
High Court issued an interim order staying the SEBC 2018 ordinance’s implementation. A challenge to the interim
order was dismissed by the Supreme Court on 18th December
2014.
Thereafter, Government of Maharashtra enacted the Socially and
Educationally Backward Classes Act,
2014. This granted 16% reservation to educationally and socially backward clas- ses, among whom the Maratha community
was counted. On 7th April 2016, the Bombay High Court stayed the implementation of the
Act due to its semblance to the ordinance.
On 4th January 2017, the
Maharashtra state government issued a notification establishing the Maharashtra State Backward Class
Commission. The Commission, chaired by Justice Gaik- wad, recommended 12% and 13% reservation for Marathas in
educational institutions and appointments in public services,
respectively.
Upon
the Commission’s recommendations, Maharashtra
passed the Socially and Education- ally Backward Classes Act, 2018 (SEBC Act, 2018). The Act exceeds
the recommended quotas,
granting 16% reservation for Marathas in Maharashtra’s state educational
institutions and ap- pointments to
public service. The constitutional
validity of the Act was challenged before the
Bombay High Court by three lead petitions, along with several other writ
petitions, arguing that, the Act
is unconstitutional as it exceeds the 50% ceiling limit imposed on reservations by
Indra Sawhney v Union of India, the
Act provides reservation on the basis of Justice Gaik- wad Commission report, which lacks reliable, scientific and
adequate data to justify either the backwardness
of Marathas or the extra-ordinary condition of increasing reservations in Maha- rashtra from 52% to 68%, the Act creates
a special class of reservation for Marathas outside the OBC class and violates
Articles 14, 16 and 19 of the Constitution by bestowing them with special benefits, the Act was passed
without complying with procedural requirements man- dated by the 102nd Constitution (Amendment) Act, 2018, etc.
On the other
hand, the Maharashtra State Government had contended that extraordinary con-
ditions such as the increase in number of suicides due to indebtedness
and deteriorating in- comes among Maratha families justify the enactment
of the Act.
On
27th June 2019, the Bombay High Court upheld the constitutional
validity of the Act by stating that, State governments have the power
to increase reservation beyond the ceiling
limit of 50% in
extraordinary circumstances justified by quantifiable data, The Justice
Gaikwad Commission report was based
on scientific and quantifiable data which adequately justified both including Marathas as a socially and
educationally backward class as well as the extra- ordinary condition of creating reservations beyond
the 50% ceiling
limit, The Act meets the test of
reasonable classification under Article 14 of the Constitution as it provides
reservation for the newly identified
class of Marathas, who have been historically incorrectly denied affirma- tive action, without unjustly depriving the existing
Other Backward Classes.
and that the 102nd Constitution
(Amendment) Act, 2018 does not curtail the legislative competency of state
legis- latures to give effect to
Articles 15(4) and 16(4) of the Constitution through a fair and ade- quately
effective Commission.
On July 12, 2019, the Supreme Court admitted an appeal to the Bombay
High Court’s decision
and issued notice to the Maharashtra state government. Additionally, it
halted the application of the SEBC Act for educational institutions except
for Post-Graduate Medical
Courses.
The
Bench heard arguments and held that the
50% limit on reservations should not be recon-
sidered. The Gaikwad Commission, the Bombay HC judgment or the SEBC Act
all fail to lay out an ‘extraordinary
situation’ to fall within the exception to this limit. So, the SEBC Act, insofar
as it identifies and grants reservations to Marathas, is struck down.
It
has also held that the 102nd
Constitutional Amendment did take away States’ powers to identify backward classes. Only the President can notify a list
that identifies them which Par- liament
can amend thereafter. States can only make recommendations. However, until
that notification is published, which
should be done expeditiously, the existing setup would con- tinue. The Amendment also did not violate
the basic structure of the Constitution.
The Supreme Court of India on 5th May 2021 set aside the Maratha quota reservation provided
by the Maharashtra Government (SEBC) Reservation Act, 2018. With the Maratha quota struck down by SC, the government issued a
new order on May 2021 stating that the Socially and Educationally Backward Class (SEBC)
candidates can avail benefits of the EWS depend- ing on their eligibility.
RESERVATION FOR ECONOMICALLY WEAKER
SECTION IN OTHER STATES
According to available information, Uttarakhand, Gujarat, Karnataka, Jharkhand, Maharashtra, Mizoram,
Delhi, Jammu and Kashmir, Goa, Assam, Andhra Pradesh and Telengana have im- plemented 10 per cent reservation to EWS,
Minister of State for Social Justice and Empower- ment Pratima Bhoumik said in a written reply in Lok Sabha.[11]
A.
Telangana
The State government on 24th August 2021 issued guidelines
for the implementation of 10 per cent reservation to the Economically
Weaker Sections (EWS) for initial appointments in gov- ernment jobs and admissions into educational institutions.[12]
As per the guidelines, people who are not covered under SC, ST and BC reservations and whose family’s gross annual income is below Rs
8 lakh will be eligible for the EWS reservation. Income includes salary, agriculture, business profession and all
other sources for the financial year prior to the year of application.
Consequently, all the higher
education institutions in the State
have been asked to increase
the number of seats in each
branch of study or faculty to admit EWS candidates for all admission notifications issued hereafter. Further,
33 per cent of initial
appointments in posts and services
under the State government earmarked for the EWS category will be
allocated to women among them.
EWS
reservation benefit can be availed by producing income certificate issued by
Tahsildar Appointment under EWS quota
will be provisional. If the claim is found to be fake or false upon verification of income certificate, the services will be terminated.
During any recruitment year if a vacancy earmarked for EWS is not filled up due to non-avail- ability of suitable
candidate, such vacancy will not be carried forward
to next recruitment year as backlog. EWS aspirants cannot be
denied the right to compete for appointment against an unreserved vacancy. EWS candidates selected on merit and not on
account of reservation will not be counted Maximum
age limit prescribed for direct recruitment to a post will be raised by 5
years to EWS candidates on par with SC, ST and BC candidates; exam fee
exemption will be given.[13]
B.
Tamil Nadu
Tamil Nadu government has announced in November 2022 that it will not implement this reservation. Educational institutions
in the state seem to concur with this
decision and say that they already
have provisions that ensure they take in students who are from financially poor backgrounds. "We
do not have a quota like that but we take in a lot of students
from the EWS background
through scholarships. We think this is the best way to approach the situation," said Dr S Raja Samuel,
Principal at the Madras School of Social Work, Chen- nai.[14]
The
problem arises while determining who falls under this reservation category, he
elabo- rated. "Students from
reserved communities like SC, ST and OBC need to show a certificate to avail the reservation. For EWS too,
students must show an income certificate, but this is easier to get. To avoid this problem, we do not give EWS
reservation," the principal added. The
official stated that while they might not be "for" the quota in a
structured way, they will support students from that category in an unstructured manner.
C.
Karnataka
The BJP government in Karnataka is unlikely to introduce a bill to
provide 10 per cent reservation for the economically weaker
sections (EWS) in government jobs and educational institutions during the Assembly’s Winter Session underway
in Belagavi.
“There is no proposal before us to table any bill on the EWS quota in the current Assembly session. The bill has to come from the
social welfare department, but no proposal has come to us as yet,” said a senior official in the Department
of Parliamentary Affairs and Law.[15] Soon after the Supreme Court upheld a 2019 constitutional amendment to provide
a 10 per cent quota
for the EWS excluding those among the socially backward
castes and classes
already entitled to reservation, state law minister
J C Madhuswamy last month indicated
that the BJP government would introduce a law to provide the quota in the state soon. The amendment was carried out in 2019 by the BJP-led central
government.[16]
10 per cent Economically Weaker Sections quota in Telangana State, The
State government has issued
guidelines for the implementation of 10 per cent reservation to the
Economically Weaker Sections (EWS)
for initial appointments in government jobs and admissions into edu- cational institutions.
D.
Gujarat
Gujarat is
the first state to make an announcement after President Ram Nath Kovind gave his assent to the Constitutional provision guaranteeing 10% quota for the EWS.
Chief minister Vijay Rupani tweeted, "Government of Gujarat has decided to implement the 10% EWS reservation benefits from January 14, 2019."
Rupani added that the 10% quota would be implemented in all ongoing recruitment processes where only advertisement had been published but
first stage of examination was yet to be held. In such a case, a government press release later added, the ongoing process would be suspended, and a fresh process would begin after incorpo- rating
the 10% additional quota.[17]
CONCLUSION
The reservations based entirely on economic criteria
is not a wonderful resolution but the need of the hour is to restore
a time period for scrapping the reservation system
instead of extending it to eternity. The concept of reservation on being modernized
and continued even though it has a positive impact
on the students belonging to EWS category
it still negatively impacts
the meritorious students
on their fair opportunities.
Reservation benefits should also be regulated maybe like restricting the
benefits only to the first two
children of the family without reflecting the number of children they have or
maybe restricting the reservations
only till the undergraduate program and further educations should be based on the merits and not based on
the reservations or at least there must be an technique to identify the first generation apprentices and encompassing up to two generations. The reser- vations should be regulated to make sure
that opportunities are being fairly given to all the meritorious students regardless of their social/economic conditions and by this way the quality
of the students will be increasing.
REFERENCES
Articles: -
1. Article on
“Reservation for Economically Weaker Section-Affirmative or Discrimina- tory Action”, by Paridhi Verma, Bhavya
Sharma, Devshree Dangi, Mansi Tripathi, at International Journal
of Creative Research
Thoughts (IJCRT).
2. Article on “Economically
Weaker Section quota in India: Realistic Target Group and Objective Criteria for Eligibility”, by
Abusaleh Shariff, M. Mohsin Alam Bhat, at Re-
searchGate.
3. Article on “Empowerment of Economically Weaker
Section (EWS): Problem
and Pro- spects”, by Akashi Boruah,
at International Journal
of Advanced Research
in Engineer- ing and Technology
(IJARET).
4. Article on
“A Study on Reservations in the Educational Sector for the Economically Weaker Sections”, by Gopalan K. R., at Academia.
Websites: -
6.
https://telanganatoday.com/
11.
https://press.princeton.edu/
[1] “RESERVATION IN INDIA: RHETORIC
AND REALITY”, Chunuram
Soren, July 2021, Available
at https://zenodo.org/record/5354594#.Y4mFDHZBzIU, Last Seen On 10/12/2022
[2] Thomas Jefferson
quoted it in "The Papers of Thomas
Jefferson, Retirement Series", Thomas Jefferson, Avail-
able at https://press.princeton.edu/series/papers-of-thomas-jefferson-retirement-series,
Last Seen on 22/12/2022
[3] “RESERVATION FOR ECONOMICALLY WEAKER SECTION-AFFIRMATIVE OR DISCRIMINATORY
ACTION”,
Paridhi Verma, Bhavya Sharma, Devshree Dangi, Mansi Tripathi, International
Journal of Creative Research
Thoughts (IJCRT), Available at https://ijcrt.org/papers/IJCRT2009198.pdf, Last Seen
on 20/12/2022
[4] 4 “Economically Weaker Section,
EWS”, Clear Tax, Available at https://cleartax.in/g/terms/economically- weaker-section-ews,
Last Seen on 05/01/2023
[6] 16 November
1992
[10] 5 May 2021
[11] https://economictimes.indiatimes.com/news/india/12-states-uts-have-implemented-10-pc-reservation-to-eco-
nomically-weaker-sections-govt/articleshow/85216342.cms?from=mdr
[14] https://www.edexlive.com/news/2022/nov/14/tamil-nadu-rejects-10-ews-quota-educational-institutions-will- continue-to-financially-support-ews-students-32135.html
[16] https://indianexpress.com/article/political-pulse/karnataka-government-unlikely-to-table-ews-quota-bill-in- current-assembly-session-8333456/
Article Information
“NEED OF RESERVATION FOR ECONOMICALLY WEAKER SECTION AND ITS ANALYTICAL STUDY” BY: SHAIKH KARISHMA HAMID
Authors: SHAIKH KARISHMA HAMID
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/25
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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