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ECONOMICALLY WEAKER SECTION (EWS) RESERVATION – APPRECIATION OF CONSTITUTIONAL AMENDMENT AND CRITICAL ANALYSIS OF JUDGMENT
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ECONOMICALLY WEAKER SECTION (EWS) RESERVATION
– APPRECIATION OF CONSTITUTIONAL AMENDMENT AND CRITICAL ANALYSIS OF JUDGMENT
AUTHORED BY - DIGVIJAYA SRIVASTAVA
[BA. LLB(Hons.) (CNLU BATCH’21), LLM
(Allahabad University), UGC-NET.]
ABSTRACT
To make the Constitution a living
document, provisions relating to the Constitutional Amendment have been made so
that necessary changes may be brought alongwith the changing times. In
furtherance of the same, a recent Amendment was done to the Constitution
Article 15 and Article 16 by the 109th Constitutional Amendment in
2019.
It introduced the concept of
Reservation to economically weaker sections of the society who belong to the so
called Forward castes. It enables the Economic as well as social elevation of
the persons belonging to such community, who are unable to afford proper
education and land in Government services owing to their lack of economic
resources.
This move of the Government has been
subjected to severe criticism and has also been able to garner support from
various sections of the society and consequently been challenged in the case of
Janhit Abhiyan vs Union of India in which its constitutional validity has been
subjected to scrutiny and consequently upheld.
INTRODUCTION
In order to further the goals
enshrined in the Preamble to the Constitution relating to Equality of Status
and Opportunity, and Justice – both Social and Economic, The NDA government
took a historical step towards all inclusive social justce by introducing
reservation on the basis of Economic criteria to the persons belonging to the
so called “Forwad Community” also known
as Sawarnas.
This step attracted reacti0ons from
all parts of the society, bith positive and negative. Some saw it as Concept of
equality in action whereas others regarded it to be an infringement to the
concept of Merit.
Recently, putting an end to the
dispute regading the step, the Hon’ble Supreme Court upholding the validity of
103rd constitutional amendment, reservation policy is now extended to
economically weaker section (hereinafter EWS).
REASONS FOR INRODUCTION OF RESEVATION IN INDIA
The Constitution of India has
provided for the reservation to secure socio-economic justice to the vulnerable
and downtrodden sections of the whole society to bring them to the main the
nations life. For many centuries, the caste system in India has kept away the
under privileged and downtrodden sections from the so the society. As a
consequence of which they were denied access to education, shops, public
places, temples and other places. Therefore, the Constitution makers
deliberately inserted the element of equality in the Constitution of India in
order to ensure equal treatment to all irrespective of their caste, religion,
race, language and place ofbirth[1] .
The framers of our constitution were of the firm view that equality needs to be
secured to all persons in socio-economic life through State’s intervention. One
way to achieve this was by introducing the concept of reservation in matters of
public employment and educational institutions. The provisions for the same
have been envisaged in our Constitution under article 152 and 163[2] .
The Constitution has provided reservation of seat in the various educational
institutions and in the public employment to three categories people- (i)
Persons who are socially and educationally weaker citizens (ii) Scheduled
castes and (iii) Scheduled tribes The State is under Constitutional obligation
to protect the interest of these groups through affirmative action. The reason
behind formulation of such a policy was because for ages these groups have been
oppressed, denied equal opportunity and respect owing to the presence of caste
system. They have been under-represented in nation building activities.
Therefore, reservation was provided
to them not just to ensure their equal participation by increasing their
representation in educational institutions and jobs but also to compensate them
for the oppression and ill-treatment meted out to them in the name of caste system.
Reservation is not meant just for economic upliftment of the oppressed class,
rather it is to bring social equality and economic upliftment is just a
by-product of it. Reservation is intended to realize the promise of equality
enshrined in the Constitution of India[3].
For approximately thousands of years,
education was denied to the majority of the population of in India based on
one’s birth in a particular caste. All the mighty kings who ruled the Indian
subcontinent were bound by the law provided by Manu Shashtra, the rulebook of
the Hindu religion that proscribed education of the Shudras. Non-Brahmins were
oppressed in many ways. Not only education but also the positions of power and
lucrative jobs were also denied to them. Therefore, the intention behind giving
reservation was for the upliftment of the historically marginalized communities
like schedule casts and the schedule tribes. The rationale is not to eliminate
poverty or to ensure prosperity but to overcome the handicap of the caste-based
social discrimination.
The 103rd constitutional amendment
allows 10% reservation for the EWS in jobs as well as seats in the institutions
of higher education within general category. The amendment has been a bone of
contention since it received the assent of the President of India in 2019.
The validity of the same was
challenged in the case Janhit Abhiyan v Union of India[4]
where the Supreme Court held the amendment to be constitutional by a 3:2 split
verdict. This new scheme of granting reservation on the basis of economic
criteria acknowledges the fact that a significant section among the social
elites survive in the wretched poor conditions and hoped that such
institutional support may bring some solace to the upper-caste downtrodden.
The government’s announcement to
implement the 103rd amendment of the Constitution, providing 10% reservation
for the EWS has been seen as a major tool to appropriate the aspirations of the
poorer groups among the upper castes. However, doubts were raised about its
legal validity and the attempt was seen as a political ploy to impress the
social elite constituencies. Despite receiving legal sanction from the court
and political support, EWS reservation has been criticized for ignoring
historical context and constitutional principles on the basis of which
reservation policy was enacted.
The Hon’ble Supreme court
had framed 3 major issues to be dealt with while it delivered its judgment:
- Whether Economic criteria can be
the sole determinant in allowing reservation for a specfic section of
society, and thus infringing the basic structure of the constitution.
- Whether Exclusion of Socially
and Educationally Backward Classes (hereinafter referred as SEBCs), i.e.,
SCs, STs, and OBCs, from these special provision for EWS is inexplicably
discriminatory in nature, and thus violates the very basic structure of
the constitution.
- Whether the defined 10% upper
limit of reservation provided for the EWS directly breaches the 50% cap of
reservation put by the Constituton and hence directly goes against the
ethos and jurisprudence of reservation as professed by the constitution
makers, as it violates the Equality, and thus, stands in violation of the
basic structure of the constitution.
The
petitioners presented excellent arguments to support their cause The
petitioners included Janhit Abhiyan Akhil Bhartiya Kushwaha Mahasabha; Youth
for Equality; SC/ST Agricultural Research and Education Employees Welfare
Association; Peoples Party of India (Democratic), represented by Rajeev Dhawan;
Meenakshi Arora Gopal Sankaranarayanan; MN Rao;. The submissions from the side
of petitioner were,
The reservation granted
by the Constitutient Assembly in 1949 to the so called backward class of the
society was based on an age-old and centuries old discrimination suffered by
these communities. The rationale behind such a measure was to give them an
equal playing field to compete and provide equal representation and address the
historical inequalities suffered by the backward classes.
The petitioners side
argued before the bench comprising of UU Lalit CJ ,D Maheswari J, SR Bhat J ,
BM Trivedi J , JD Pardiwala that the court must invoke the principle of purposive
interpretation of reservation considering EWS, and revisit the very purpose behind
the reservation policy through the vision of the Forefathers of our
Constitution and the As required , refer to the constituent assembly debates.
On the other hand, the
103rd amendment aims to extend the policy of reservation to a class of people which have
been never subject to any kind of marginalization or discrimination on the basis of their
social background upon reference to their Castes, and hence such an amendment
goes on to defeat the very rationale behind the reservation policy.
It was further submitted
that constitution also endorses the concept of social as well as educational
backwardness, rather than social ‘or’ educational backwardness, which is
indicative of the fact that the social and educational criteria are not
mutually exclusive of each other, and both criteria needs to be simultaneously fulfilled
in enable a person or a group to put claim over reservation In essence the said
amendment extends the benefit given by reservation not only to the economically
weaker but also financially incapable class of society and hence the furthers
the individual-centric based idea of reservation which is very problematic to
the very nature of democracy.
It was further argued
that the EWS is perpetuating the monopoly in certain section of society since
they have never been historically oppressed as opposed to the categories of
persons belonging to SC. ST, SEBCs who actually were in a marginalized backward
situation. This is also leading to a very individual centric reservation which basically
goes against the very extent and the nature of reservation as the purpose of
reservation was to enable the removal of the inter-group inequalities prevailing
among the classes of society.
The identification of a backward
class is possible only according to the benchmarks and guardrails which have
been provided by the constitution, however, the same is very difficult in order
to identify the EWS, as the financial capability as well as incapability is
very temporary in nature.It was further submitted that, reservation cannot be any
measure of poverty alleviation.
It was further contended
that economic criteria can never be the sole basis of granting reservation
since the same has been held in the Leading Judgment passed in the Indra
Sawhney[5]
judgment and consequently in the Mandal Commission report, and hence this
5-judge bench is incapable of implying otherwise as the concerned judgment was
made by a 9-judge based constitutional bench. The backward classIndividuals
would not be able to claim the seats in the open category, for the people
belonging to the creamy layer SEBCs, which would damage the basic structure of
the constitution.
The amendment also fails
to justify the fact as to how the poverty of forward class is in point
different from that of the backward class.
It is further destructive
towards the aim of caste-less society, and hence EWS reservation goes against
the vision as enshrined in the Preamble to Constitution of India.
Union of India
alongwith the Ministry of Social Justice & Empowerment and others represented
by Attorney General KK Venugopal; Solicitor General Tushar Mehta contented the
arguments filed by the petititoners . The submissions from the side of
Respondent were as follows:
The concept of
reservation goes on to make a distinction between classes of individuals and
not specific to castes and hence present amendment is based on the reasoning of
providing the special benefit to the various backward class which is backward
by the virtue of economic inequality, thus furthering the very rationale of reservation , thus
furthering the vision enshrined in Preamble relating to economic justice. The
amendment is a further step towards furthering a utopian caste-less society which
was the Nobel vision propounded by constitution makers.
The then Attorney General
of India, Mr. K.K. Venugopal, further contended that the said amendment also vitalizes
the very basic structure of the constitution rather than going against it. An
amendment to the constitution may be struck down only on the points that when
it is capable of changing the essential identity of the constitution.
The respondents side have
argued that one must dynamically interpret the constitution of India in order
to strengthen the vision enshrined in the constitution. A further reference has
to be made to Articles 38 and 46 [6]of
the DPSPs which render a duty on
the State to eliminate all kinds of social, political as well as economic
differences and to further promote the idea of justice.
Under 103rd
Constitutional amendment, classification based on economic criteria alone is
justified. The Supreme Court has on several occassions considered poverty as a
big indicator of backwardness, while considering reservation in several cases,
such as, M.R. Balaji R Chitralekha vs. State of Mysore,
Vasanth Kumar
It is further argued that
it is poverty that leads a community to social and educational backwardness and
the said amendment tries to cure such a glaring discrepancy by creating a class
of people which are in fact social ‘and’ educationally backward due to the
economic inequality faced by them in the society, therefore, the Parliament is
in the right to create such an enabling provision which minimises the economic
inequality in the society.
REASONS AND JURISPRUDENCE BEHIND THE 103rd
AMENDMENT TO THE CONSTITUTION AND ITS FUTURE RAMIFICATION
The EWS reservation is a scheme which
provides for 10 percent reservation of seats in jobs and educational
institutions to candidates with family income less than Rs 8 lakhs per annum.
Additionally, their family should not own more than 5 acres of agricultural
land; residential flat area should be below 1000 sq ft. and residential plot's
area should be below 100 square yards if in a notified municipality sector. The
policy of granting EWS reservation, though upheld by the Supreme Court, has
received a lot of criticism. The policy has been criticized for being passed in
haste instead of holding proper debates and discussions around the issue. The
Bill to grant EWS reservation was introduced in the Parliament in January 2019
and within a time span of 48 hours it was passed in both the Houses and later
received Presidential assent. The Constitution (One Hundred and Third
Amendment) Act, 2019 was notified on 12 January 2019 in the published Union
gazette. As this was a Constitution amendment bill and the purpose of that bill
was to insert 15(6) and 16(6)[7] in
the chapter on the fundamental rights, so it should also have been discussed
thoroughly in the highest Parliament. Ideally, the draft should also have been
circulated to the Parliamentarians prior to its introduction, so that they
could go through the overall bill and prepare their responses. Ideally, such
bills with some far-reaching implications should be sent to the department-related
committees for wider discussion and consultation. It’s not at all illegal to
introduce and pass a bill in haste, but this is certainly against
constitutional morality and propriety. The bill didn’t have any chance to go
through a proper scrutiny of Parliament.[8]
Another point of criticism is that
the policy is framed on unverified premise owing to lack of data. The Statement
of Object and Reason in the bill introduced states that, “the economically
weaker sections of the citizens have largely remained secluded and excluded
from attending the higher educational institutions and public employment on the
account of their financial incapacity to compete with the students/persons who
are economically more privileged”, however, no data has been provided in
support of this particular statement[9] .
As a matter of fact, the Union or state governments have no statistical data to
prove that any particular ‘upper’ caste individuals, who have been given less
than Rs 8 lakh annual income, are not adequately represented in government jobs
and higher educational institutions. There is a strong possibility existing
that they are actually over-represented in these places.
Furthermore, 10% reservation breaches
the 50% cap on the reservation. In the Indra Sawhney v Union of India[10] ,
the nine-judge Constitutional bench had deliberately and in expressed
terminology put a cap of 50 per cent.
The judgement says that: “Reservation
being an extreme form of a protective measure or an affirmative action should
be confined to a minority of seats only. Even though the Constitution does not
lay down any particular specific bar but the constitutional philosophy being always
against proportional equality, the principle of balancing equality ordains
reservation, of any manner, should not exceed 50%. While the courts have
admitted that this particular 50% ceiling can be breached but it should be
breached only in some exceptional circumstances, this was specifically held in
LM Thomas vs State of Kerela.
Even father of our Indian
Constitution Dr B R Ambedkar advocated that reservation of seats should be
limited to only a minority number of seats[11] .
Time and again Indian judiciary has been using this 50% cap to stay
reservations which cross the cap.
But while deciding the
constitutionality of 103rd constitutional amendment the Apex court said that
50% ceiling is not at all violative of basic structure of the Constitution
owing to the fact that the same has been granted due to the exceptional
circumstances prevelant in the Indian society relating to the economically
weaker sections in the do called Forward category community. Furthermore, the
50% rule is a flexible one and was made applicable in the context of article
15(4) and 16(4) and it would not apply to affirmative action other than those
based on caste.
This will now open a pandora’s box as
there are many states that owing to their policies and demographic politics have
been planning to implement policies that exceed reservation to as much as 77%.
Bihar and Odisha are also advocating for the removing the 50% cap. The whole
concept of reservation was evolved for the upliftment of the historically
oppressed classes of citizens who owing to their Socio – Economic background (
with specific reference to their castes), to increase their representation in
jobs and in educational institutions and in order to compensate for the past
acts. Reservation is a tool for social and educational upliftment and not
merely a tool for financial upliftment. If the drafters of the Constitution
intended financial upliftment alone then instead of reservation, policies would
have been formuated around providing scholarships or free education and various
other like schemes. Moreover, the EWS reservation specifically excludes from
its ambit communities which are already getting benefits of reservation i.e.,
the SCs, STs, and OBCs in the case of Janhit Abhiyaan vs Union of India[12]
it was one of the major contentions which arose between the litigating parties
wherein the Hon’ble apex Court specifically held that the SC, ST, OBC
categories have been specifically excluded from he ambit of the EWS reservation
due to the fact that there can not be any competition of affirmative action and
these categories already have been recipient of the same.
This step is criticized on the basis
of the fact that economic backwardness does not depend upon one’s caste .
Economic weakness is a factor that is applicable to all the communities and
exclusion of certain segment would totally go against equality. Even the
existing income criterion of Rs 8 lakhs a year has already been questioned by
the Court in a separate case, as it is liable to result in excessive coverage of
socially advanced classes.
When those exempted from filing I-T
returns are only those with taxable income below Rs 2.5 lakh, it makes no sense
to extend the reservation benefits to sections earning an income up to Rs 8
lakh[13] .
There have been many cases in the past where on the issue of the EWS
reservation, courts have said that EWS within upper caste do not constitute a specific
homogenous group and the criterion of economy is also very fluctuating
therefore, reservation to such class cannot be provided.
As discussed above, the whole scheme
of providing reservation was meant for the overall upliftment of the
historically oppressed classes. The present scheme of EWS reservation not only
lacks specific data that can substantiate the policy but it is also based on
the criterion which is fluid. A person may be rich today and due to various
circumstances, become poor tomorrow and vice versa. Moreover there is an
exclusion of SC, ST, OBC candidates,
This has a specific tendency of
furthering the social gap that already exists. The EWS scheme is bluntly
exclusionary and discriminatory, where groups bearing double subjugation i.e.
being poor as well as being from SCs/STs/OBCs, have been left out of the EWS
reservation bracket which has caused massive prejudice to them .Although the
amendment has been brought in order to alleviate the social position of the
Economically weaker sections of the so called Upper Castes, To put that into perspective, a person
belonging to a marginalised caste group who is also economically disadvantaged
will not be able to avail the benefit of the EWS reservation, solely because of
the reason that them not belonging to the so-called upper castes. There have
been instances where marks for EWS criterion were the lowest for a particular
examination[14]. The
amendment seems to be arbitrary, given that no data has been provided. In my
opinion, this EWS reservation needs further scrutiny. There are many gaps which
need to be filled which includes how this amendment was brought in an
undemocratic way, the arbitrariness in the amendment, exclusion of historically
oppressed class etc. Therefore, this scheme in its present form is very
problematic and deserves more debates and discussion around it.
BIBLIOGRAPHY
1.) Basavaraju, C. (2009). RESERVATION UNDER
THE CONSTITUTION OF INDIA: ISSUES AND PERSPECTIVES. Journal of the Indian Law
Institute, 51(2), 267–274.
2.) Reddy, P.C. (2021), ‘Supreme Court And Legislatures
On Reservation” Puliani And Puliani Publication 2021
WEBSITES
1.) SCC Online
2.) MANUPATRA
[1] Basavaraju, C. (2009). RESERVATION
UNDER THE CONSTITUTION OF INDIA: ISSUES AND PERSPECTIVES. Journal of the Indian
Law Institute, 51(2), 267–274.
[2] Constitution of India 1950
[4] WRIT PETITION (CIVIL) NO. 55 OF 2019
[5] 1992 Supp (3) SCC 217
[6] Constitution of India 1950
[7] Constitution of India 1950
[8] Ibid 4
[10] Basavaraju, C. (2009). RESERVATION
UNDER THE CONSTITUTION OF INDIA: ISSUES AND PERSPECTIVES. Journal of the Indian
Law Institute, 51(2), 267–274.
[11] Abhishek Anghad “Jharkhand
Assembly Raises Quota to 77%, 1932 Land Records to Fix Domicile Status”
https://indianexpress.com/article/india/jharkhand-assembly-bill-raising-reservation-8262459/
[13] Ambar Kumar Ghosh, “The New Economicall
Weaker Section Quota: The Changing Idea of Affirmative Action”
Article Information
ECONOMICALLY WEAKER SECTION (EWS) RESERVATION – APPRECIATION OF CONSTITUTIONAL AMENDMENT AND CRITICAL ANALYSIS OF JUDGMENT
Authors: DIGVIJAYA SRIVASTAVA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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