Open Access Research Article
NAVIGATING INDIAS RESERVATION POLICY: EMBRACING EQUITY WITH EWS RESERVATION
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Article Details
NAVIGATING INDIA'S RESERVATION
POLICY: EMBRACING EQUITY WITH EWS RESERVATION
AUTHORED BY
- AKANKSHA RAI
LLM, Amity
University
CO-AUTHOR -
DR. JYOTSNA SINGH
Assistant
Prof., Amity University, Lucknow
ABSTRACT
The
Economically Weaker Sections (EWS) reservation policy, introduced by the
Government of India in 2019 through the 103rd Amendment to the Constitution,
represents a paradigm shift in affirmative action strategies. Unlike
traditional reservation policies based on caste or community affiliation, EWS
reservation aims to address socio-economic disparities by providing reservation
benefits to the people from economically disadvantaged backgrounds, regardless
of their caste identity. This abstract explores the key features, objectives,
and implications of EWS reservation, including eligibility criteria,
reservation quotas, income thresholds, and implementation challenges. It
examines the rationale behind the policy, its potential impact on social
inclusion and economic empowerment, and the broader implications for India's
social justice framework. By broadening the scope of affirmative action to
encompass economic criteria, EWS reservation seeks to promote equity and
inclusivity in education and public employment, while also raising important
questions about the effectiveness of such policies in addressing entrenched
socio-economic inequalities.
Keywords: Schedule
Cast, Schedule Tribe, Dalits, Other Backward Classes
INTRODUCTION
India
boasts a rich cultural heritage and holds the distinction of being the world's
largest democracy, the seventh-largest country by area, and the most populous
nation globally. However, it is also a land of stark contrasts, where profound
despair coexists with immense prosperity. With substantial influence in the
Asian subcontinent and on the global political stage, India's significance is
undeniable. Yet, beneath the surface, the country has grappled with a
tumultuous history marred by issues of equality, opportunity, and inclusivity.
Certain castes have endured generations of discrimination and oppression. In
response, the constitution has instituted reservation policies to address these
longstanding injustices.
Dr. B. R.
Ambedkar, frequently celebrated as the Architect of the Constitution of India,
passionately campaigned for a fair society where all people could experience
dignity, devoid of the shadows of exploitation and prejudice. He recognized
discrimination and exploitation as twin evils that perpetuate social exclusion
and marginalization, particularly affecting vulnerable groups within society.[1]
Reservation
has a legacy stretching back 2000 years[2],
undergoing significant transformation post-independence due to the persistent
efforts of leaders like MK Gandhi and B.R. Ambedkar. The preamble of the Indian
Constitution identifies the nation as a "Democratic Republic" and
upholds the principle of equality before the law. To address the historical
marginalization and stigmatization faced by socially backward castes, it
includes special provisions.
However,
there has been a shift in Indian government policy away from caste-based
reservation towards class-based reservation. The S R Sinho Commission, in 2010,
recommended a amendment in the Constitution to provide reservation for
economically disadvantaged people in education as well as in government
employment. In line with this, the government introduced a 10% reservation for
the economically weaker sections (EWS) through the 103rd Constitutional Amendment
Act.
This recent
inclusion of reservation for Economically Weaker Sections (EWS) has ignited
conversations regarding the effectiveness and consequences of affirmative
action in India. This piece explores the development of India's reservation
policy, the reasoning behind EWS reservation, and its effects on the
socio-political environment.
EVOLUTION
OF RESERVATION IN INDIA
Following
India's independence, constitution provided reservation provisions in Art 15
and Art 16, guidelines were issued on September 21, 1947, reserving 12.5
percent of vacancies for Scheduled Castes (SCs) in open competition
recruitment, and 16 2/3 percent for other recruitment methods. The difference
between open competition and other recruitment methods is explained further in
Chapter-II. After the promulgation of the Constitution, the Minority Affairs
Ministry, in its resolution dated September 13, 1950, provided an additional 5
percent reservation for Scheduled Tribes (STs), in addition to the existing
percentage for SCs. The 1951 Census revealed that SCs constituted 15.05 percent
of the total population, and STs 6.31 percent. These percentages were not
revised at the time due to ongoing considerations for a comprehensive bill
revising the lists of SCs and STs. Furthermore, reservation for SCs was already
provided in posts filled through methods other than open competition, to the
extent of 16.66%, and regional and local percentage instructions were issued
for Class III and Class IV posts.
The 1961
Census showed SCs at 14.64% and STs at 6.80% of the Indian population, leading
to an increase in reservation percentages for SCs and STs to 15 percent and 7.5
percent respectively on March 25, 1970. The 1971 Census did not necessitate any
revisions. The impact of the 1981 Census on all-India percentages could not be
determined due to the census not being conducted in the state of Assam. In
1993, reservation for Other Backward Classes (OBCs) was introduced in direct
recruitment at approximately 27 percent. With the introduction of OBC reservation,
the total reservation for SCs, STs, and OBCs amounted to 49.5 percent in direct
recruitment on an all-India basis through open competition, and 50 percent
through other methods. As per Supreme Court judgments, the total reservation
for these communities cannot exceed 50 percent.[3]
Over the
years, reservation policies have progressively expanded to encompass various
avenues of promotion. In 1957, reservation was initiated for Scheduled Castes
(SCs) and Scheduled Tribes (STs) in departmental competitive exams.
Additionally, in 1963, reservation was introduced for promotion by selection in
Group C and Group D, initially restricted to Class III and Class IV roles. By
1968, limited departmental exams for positions ranging from Class II to Class
IV, along with promotion by selection to Class III and IV roles, stipulated a
condition where the proportion of direct recruitment should not surpass 50
percent.
In 1972,
reservation in promotion by seniority subject to fitness was enforced, with the
condition that direct recruitment should not surpass 50 percent. Further, in
1974, reservation in promotion by selection from Group C to Group B, within
Group B, and from Group B to the lowest rung of Group A was introduced, again
with the stipulation that direct recruitment, if any, does not exceed 50
percent.
In 1976,
the cap on direct recruitment not exceeding 50 percent was elevated to 66 2/3
percent, and further increased to 75 percent in 1989. Until 1997, reservation
allocations were computed based on the filled vacancies. However, the Supreme
Court's verdict in the R.K. Sabharwal Vs. State of Punjab[4]
case in 1997 mandated that reservation should be calculated based on the total
number of positions in the cadre rather than just the vacancies.
As a
result, post-based reservation was implemented starting from July 2, 1997. The
core tenet of post-based reservation is ensuring that the number of reserved
posts within a cadre aligns with the quota designated for each category. Before
the introduction of post-based reservation, there existed a provision for the
interchange of reservation between SCs and STs. However, following the adoption
of post-based reservation, such exchanges are no longer allowed.
Prior to
1975, scientific and technical positions vital for research were exempt from
reservation policies for Scheduled Castes (SCs) and Scheduled Tribes (STs).
However, in 1975, these exemptions underwent revision. It was decided that
reservations for SCs and STs should extend to appointments in scientific and
technical roles up to and including the lowest grade of Class I in the
respective services, where previously exempt from reservation policies.
Nevertheless, these revised directives did not encompass certain departments
like the Department of Space, Department of Electronics, and the recruitment of
trainees to the training school of the Department of Atomic Energy. The prior
orders continued to apply to these departments.
Various
relaxations and concessions are provided to SC/ST candidates, including
relaxation in the upper age limit, exemption from payment of
examination/application fees, relaxation in qualification or experience
requirements at the discretion of the UPSC/competent authority, and relaxations
in the standard of suitability. Some relaxations, such as those in the upper
age limit, are also available to Other Backward Classes (OBCs).
The term
"weaker section" encompasses individuals in the country who face
social and educational backwardness as a result of limited resources and the
prevailing caste system in Indian society. The reservation policy was
implemented for these individuals as affirmative action, with the aim of
promoting equality and ensuring adequate representation of backward classes in
all government services.
The history
of the economically weaker section is deeply intertwined with economic
inequality and social marginalization. Throughout history, marginalized groups
such as indigenous peoples, ethnic minorities, and lower castes have been part
of this section, facing discrimination and limited access to resources. The
advent of industrialization and capitalism in the 19th century further
exacerbated economic disparities, with the working class and urban poor
experiencing economic disadvantage due to poor working conditions and low
wages.
In the 20th
century, governments worldwide began implementing policies to address economic
inequality, including progressive taxation and social welfare programs.
Affirmative action policies were also introduced to uplift marginalized groups.
Today, amidst escalating income inequality and the challenges posed by the
COVID-19 pandemic, policymakers and activists are increasingly focused on
addressing the challenges faced by the economically weaker sections.It's
essential to acknowledge the complexity of this history, which varies across
countries and regions, and to recognize that the definition of the economically
weaker section evolves over time and in different contexts.
IMPLICATIONS
The
inclusion of reservation for Economically Weaker Sections (EWS) has significant
implications, as it amends Article 15 and Article 16 of the Constitution,
allowing the state to provide up to 10 percent reservation for economically
weaker sections of society, excluding Scheduled Castes (SCs), Scheduled Tribes
(STs), and Other Backward Classes - Non-Creamy Layer (OBC-NCL).
The newly
added clause (6) of Article 15 empowers the state to make special provisions,
including reservation in admissions to educational institutions (including
private institutions), while also excluding educational institutions for
minorities under Article 30(1).[5]
Similarly, the newly added clause (6) of Article 16 allows for reservation for
governmental appointments or state posts.
To be
eligible for EWS reservations, an individual's gross family income must be less
than Rs 8 lakh, with additional criteria such as land ownership and residential
plot size.[6]
Currently, reservations account for a total of 49.5 percent in India. However,
with the addition of the 10 percent reservation for EWS, the total would
increase to around 59.5 percent, potentially impacting the number of
meritorious admissions.
Absolutely,
the EWS classification plays a crucial role in determining access to government
support programs and benefits aimed at addressing economic and social challenges.
By being classified as EWS, individuals and families become eligible for a wide
array of government initiatives designed to provide financial and social
assistance. These programs encompass various areas such as affordable housing,
education and training opportunities, childcare assistance, energy subsidies,
healthcare services, and more.
Access to
these programs can significantly impact the lives of individuals and families
by helping them meet their basic needs and improve their overall well-being. By
receiving financial assistance, affordable housing options, educational
opportunities, and healthcare services, individuals and families can strive
towards greater economic stability and social inclusion. Thus, the EWS
classification serves as a vital mechanism for ensuring that support reaches
those who need it most, fostering greater equity and opportunity within
society.
Indeed,
determining EWS status can be intricate and burdensome, often involving complex
criteria and documentation requirements. As a result, individuals and families
may encounter barriers that hinder their access to the benefits they are
entitled to receive.
Moreover,
there's a risk of social stigma attached to being classified as EWS, which can
perpetuate discrimination and marginalization within society. This stigma may
discourage individuals and families from seeking the assistance they need,
further exacerbating their economic and social challenges.
Additionally,
the fluid nature of EWS classification, with eligibility criteria subject to
change over time, can contribute to uncertainty and instability for those
affected. Such unpredictability can create additional stress and anxiety,
particularly for individuals and families already facing economic hardship.
To address
these issues, it's crucial to ensure that the process of determining EWS status
is fair, transparent, and easily accessible to all eligible individuals and
families. Efforts should be made to streamline the application process,
simplify documentation requirements, and increase awareness about available
benefits and support services.
Furthermore,
initiatives aimed at reducing the social stigma associated with EWS
classification can help foster a more inclusive and supportive environment. By
promoting empathy and understanding, society can work towards breaking down
barriers and ensuring that individuals and families receive the assistance they
need without fear of judgment or discrimination. Ultimately, creating a more
equitable and compassionate society requires ongoing efforts to address the
challenges and barriers faced by those classified as economically and socially
weak.
DOES IT
VIOLATE THE BASIC STRUCTURE?
The case
of Keshwananda Bharti established the basic structure doctrine as a
fundamental aspect of the Indian Constitution, holding that no amendment can
alter this core framework of Indian democracy.[7]
While not explicitly outlined in the constitution, the basic structure includes
principles such as federalism[8],
secularism, democracy, equality, and freedom.[9]
Regarding
reservation for Economically Weaker Sections (EWS), two tests are applied to
determine its compatibility with the basic structure doctrine. The first test,
the "Width test," examines the scope of amending power and considers
issues such as adherence to the 50 percent ceiling on reservations, exclusion
of the creamy layer, compelling reasons for reservations, and ensuring
reservations do not compromise the overall efficiency of administration. The
second test, the "Identity test," assesses whether the reservation
alters the Constitution's true identity and must also consider the principle of
equality enshrined in the Constitution.
For the EWS
reservation to withstand scrutiny by the Supreme Court and avoid being deemed a
violation of the basic structure, it must effectively pass these tests. The
reservation policy, aimed at fostering social equality, should not compromise
the right to equality itself. The architects of our constitution were cognizant
of this, which is why they imposed limitations on reservation policies. This
limit was first established in the landmark case of M.R. Balaji v. State of
Mysore,[10]
where the court emphasized that reservation policies should not be unreasonably
excessive or extravagant, thus preventing reverse discrimination.[11]
However, a
different perspective emerged in the subsequent N.M. Thomas case,[12]
and further changes were seen with the introduction of the Mandal Commission in
1979. This commission recommended reservation for the Other Backward Castes
(OBCs) category, with the court capping it at 27 percent. It was recognized
that the power granted by Clause (4) of Article 16 must be exercised fairly and
within reasonable limits. Indeed, the 103rd Amendment allowing a breach of the
reservation ceiling established in previous cases raises important questions.
While the intention behind the amendment may be positive, it is crucial to
subject it to scrutiny based on persuasive precedents such as those established
in previous cases. Amendments to Articles 15 and 16 of the constitution must be
evaluated in light of existing legal principles to ensure that they uphold the
fundamental values of equality and fairness enshrined in the constitution.
Social
justice, although not explicitly defined in the Constitution, is a principle
fundamental to our legal and societal framework. It is a concept entrusted to
lawmakers to delineate its scope and application. Social justice is inherently
inclusive and essential for fostering a fair and equitable society. The
preamble of the Constitution underscores the importance of justice - social,
economic, and political - highlighting its foundational significance.
True social
justice cannot be achieved without addressing the needs of the economically
backward segments of society. Poverty not only deprives individuals of
opportunities in education and employment but also obstructs access to sustainable
livelihoods. Therefore, ensuring equitable access to the benefits of
development is essential for realizing social justice in its truest sense.
CHANLANGES TO EWS RESERVATION
It's true
that previous Supreme Court judgments may not hold the same weight in today's
context, potentially justifying the government's decision to breach the 50
percent reservation ceiling set in the Indra Sawhney v. Union of India[13]
case. However, this breach could pave the way for further escalation of
reservation percentages in the future unless clear boundaries are established.
Without such boundaries, the foundational principle of equality underlying the
reservation policy could be undermined.
For the new
reservation policy to be justified, the government must provide robust
reasoning supported by empirical research. Mere reliance on economic criteria
may not suffice to demonstrate inadequate representation of economically weaker
sections within the general category. Before implementing the new policy, the
government should substantiate its claim with evidence showing the
underrepresentation of economically weaker sections in both educational
institutions and civil services, aided or unaided.
In the
absence of such evidence and clear boundaries, there's a risk of perpetuating
inequalities rather than addressing them effectively. Therefore, it's essential
for either the government to provide compelling justification or for the
Supreme Court to impose a new ceiling on the reservation policy while
considering the case.
The purpose
of reservation is indeed to address historical and existing social deprivation
by enhancing the representation of marginalized sections of society. It aims to
empower these communities by providing them with opportunities for education
and advancement, thereby contributing to their overall development. However,
it's important to note that reservation was primarily intended to uplift
socially disadvantaged groups, rather than being solely based on economic
conditions.
The current
approach to reservation for economically weaker sections may not fully serve
the intended purpose of representation, as it primarily focuses on economic
criteria rather than addressing social deprivation. Data from the National
Sample Survey Office (NSSO) and the Income Tax department indicate that a
significant portion of Indian families fall within the EWS income limit,
suggesting that the threshold of Rs 8 lakh may encompass a large proportion of
the population not covered by existing reservation policies.
This
highlights the need for a nuanced approach to reservation policies that
effectively address social inequities while ensuring fair representation for
historically marginalized communities. Simply targeting economic criteria may
not sufficiently address the underlying issues of social deprivation and
inequality.
The 103rd
Amendment raises questions regarding whether the reservation for Economically
Weaker Sections (EWS) a hard or soft reservation policy is. In hard
reservations, leftover vacancies are not filled by individuals outside of the
reserved category. This approach is evident in the case of reservations for
Scheduled Castes (SCs) and Scheduled Tribes (STs) as established in the Indra
Sawhney judgment of 1992.
Conversely,
reservations for Other Backward Classes (OBCs) in admissions to publicly funded
higher educational institutions are considered soft reservations. In the
landmark Ashoka Kumar Thakur vs Union of India[14]
case in 2008, the Supreme Court ruled that unfilled OBC vacancies should be
converted into open category positions, without prescribing a specific
procedure. This lack of clear guidance has led to ad-hoc measures to address
OBC de-reservation, resulting in potential inefficiencies, unfairness, and
manipulability, as highlighted in a recent study by Aygün and Turhan
(2022c).[15]
The
ambiguity surrounding whether the EWS reservation is a hard or soft reservation
could lead to similar challenges in implementation and may require careful
consideration to ensure fairness and efficiency in the allocation of reserved
positions.
CRITICISM
These
criticisms highlight important issues with the current EWS classification
system:
1. Lack of
transparency and fairness:[16]
The process for determining EWS status may not be transparent or fair, leading
to potential barriers in accessing benefits. Without clear guidelines and
criteria, individuals and families may struggle to understand how their
eligibility is determined.
2. Lack of
flexibility: The fixed income and asset thresholds used in the EWS
classification system may not account for the unique circumstances of
individual families or communities. This lack of flexibility can result in
deserving individuals being excluded from benefits due to rigid criteria that
do not reflect their actual needs.
3.
Insufficient benefits: Critics argue that the benefits provided to those
classified as EWS may not be adequate to address their needs and improve their
quality of life. Without sufficient support, individuals and families may
continue to face economic and social challenges despite their classification.
4.
Discriminatory impact: EWS classification can lead to discrimination and
marginalization of those classified as economically and socially weak. This
stigma may further exacerbate the challenges faced by vulnerable individuals
and families, perpetuating cycles of poverty and exclusion.
5.
Complexity: The complexity of the EWS classification system can make it
difficult for eligible individuals and families to navigate the process and
access benefits. Without clear guidance and support, many may struggle to
understand their rights and entitlements.
6. Lack of
accountability: There may be insufficient oversight and monitoring to ensure
that benefits are reaching those who are most in need. Without proper
accountability measures, there is a risk that resources may not be allocated
effectively, leaving vulnerable populations underserved.
Addressing
these criticisms requires comprehensive reforms to make the EWS classification
system more transparent, flexible, and equitable. Efforts should focus on
simplifying the eligibility criteria, ensuring adequate benefits, combating
discrimination, and enhancing accountability mechanisms to better serve those
in need.
CONCLUSION
Considering
the various implications discussed above, it becomes evident that while the
government's intention behind introducing the policy was to uplift the
economically weak, the amendment faces scrutiny on constitutional and judicial
grounds. Reservation, initially conceived as a temporary measure to address
discrimination, has evolved into a more permanent fixture, raising questions
about its continued necessity.
Addressing
the caste system, untouchability, and discrimination are indeed essential steps
toward achieving true equality in society. These deep-rooted issues have
contributed to the historical inequalities that necessitated reservation
policies in the first place. It's crucial to recognize that justice for one
group should not come at the expense of justice for another. Rather, the aim
should be to uplift all marginalized communities and ensure equal opportunities
for everyone, regardless of caste or background.
The
exclusion of SC/ST and OBC communities from the EWS category raises valid
concerns and underscores the complexity of addressing social and economic
disparities in India. While some argue that these communities continue to face
significant socio-economic challenges and should be included in EWS classifications,
others may question the need for additional benefits beyond existing
reservation policies.
Ultimately,
finding long-term solutions to address these issues requires a multifaceted
approach. Raising awareness, promoting social and political mobilization, and
fostering dialogue are crucial steps toward eliminating discrimination and
promoting inclusivity. By actively engaging with communities, policymakers can
work towards creating a more equitable society where everyone has the
opportunity to thrive based on their abilities and merit, rather than their
caste or social status.
The Supreme
Court, in deciding on this amendment, may either invalidate it for violating
the basic structure doctrine or uphold it on the basis of principles of social
justice. However, it's clear that reforms are needed in the reservation system.
These could include restricting its usage to once in a lifetime and ensuring
the provision of quality education from the elementary level onwards. While
it's acknowledged that unequal individuals should not be treated equally, the
efficacy of reservation as the sole solution remains a pertinent and ongoing
question.
[1] Sreekanth Yagnamurthy, Reservation
for Economically Weaker Section Children in Unaided-Private Schools, 5 Policy
and Practise 1, 3 (2013).
[2] Kumar, Jyotica Kumar, Policy of
reservation: Its envisioned perspective, 39 Journal of the Indian Law Institute
330, 332 (1997).
[3] Indra Sawhney Etc. Etc vs Union of
India And Others, Etc. Etc., AIR 1993 SC 477
[4] 1995 AIR 1371
[5] The Constitution of India, 1949,
Art. 15 (6)
[6] K. Pawar, Affirmative Action:
Current Reservation Policy And Alternative Model, 12 (1st ed., 2019)
[8] S. R. Bommai v. Union Of India,
AIR 1994 SC 1918.
[9] S. Deshpande, Caste Inequalities
In India Today, Contemporary India: A Sociological Vie, 98-124 ( 1st ed., 2003).
[10] AIR 1963 SC 649.
[11] M.R. Balaji v. State of Mysore,
1963 AIR 649.
[12] State Of Kerala &Anrvs N. M.
Thomas &Ors, 1976 AIR 490.
[13] AIR 1993 SC 477.
[14] (2008) 6 SCC 1 138
[15] Hafalir, I.E., Yenmez, M.B. and
Yildirim, M.A., Effective affirmative action in school choice. Theoretical
Economics, (2013), https://doi.org/10.3982/TE1135 (accessed on May 2, 2024, 12:36am)
[16] Eligibility, Impact and Criticisms
of Economically Weaker Section (EWS), https://www.geeksforgeeks.org/ews-economically-weaker-section/, (accessed on May 2024, 12:59am)
Article Information
NAVIGATING INDIAS RESERVATION POLICY: EMBRACING EQUITY WITH EWS RESERVATION
Authors: AKANKSHA RAI, DR. JYOTSNA SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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