The tragedy of EWS Reservation Constitutionality through Supreme Court Lens (3:2 Upheld)

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Introduction

Economically Weaker Section (EWS) Reservation has created a buzz among the scholar of law. The people enjoying benefit of these rights are protesting on grounds that they are excluded. Some scholars are criticising the move of exclusion of the SC/ST/OBC from EWS category.

It was added to the constitution by the virtue of 103^rd Constitutional Amendment Act, 2019. The EWS reservation was affected by inserting Clause (6) in Articles 15 and 16. This reservation was provided to general category people having economically weak backgrounds. The upper limit of which was 10%. This form of reservation was challenged in the Supreme Court on various violations of basic structure doctrine on three grounds.

Also, it is important to note that reservation earlier was never based on economic factors. Social upliftment was given priority for reservation. The SC/STs reservations were given to them by looking their history of discrimination whereas the OBCs reservation was given on ground of social and educational backwardness.

The Issues with EWS Reservation

Three major issues were framed by Supreme Court in case of Janhit Abhyan v. UOI (Famously known as EWS case), following are:

Whether the 103^rd CA is violative of basic structure for providing reservation solely on the basis of economic criteria?
Whether the amendment is violative of Basic structure for excluding poor among the SC/ST/OBC categories from EWS quota?
Whether amendment is violative of the Basic structure for breaching the 50% ceiling limit?

Judgment

The Supreme Court Constitution bench by 3:2 Majority upheld the validity of 103^rd CA which introduced 10% reservation for economically weaker sections in education and public employment. The majority and minority judgment are discussed below.

Majority

Majority held EWS reservation is not violative of any of the issues. J. Maheshwari, J. B.M Trivedi and JB Pardiwala were the three judges giving majority judgment.

They held that “It is an affirmative action by Parliament for benefit of EWS Class”. By J. BM Trivedi.

“Reservation is an instrument of affirmative action by state so as to ensure all inclusive approach. It is an instrument not only for inclusion for socially and educationally backward classes…reservation for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible.” By J. Maheswari.

Dissenting Opinion

“…while the ‘economic criteria’ per se is permissible in relation to access of public goods, the same is not true for Article 16, the goal of which is empowerment, through respresenation of the community” by J. Bhatt.

“Our constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby basic structure. The amendment is deluding us to believe that those getting social and backward class benefit is somehow better placed.”

“Permitting breach of 50% would result in compartmentalization. The rule of equality will become right to reservation taking us back to Champakam Dorairajan.”

The minority judges also supported their reasoning by citing Sinoh Commission report which was published in 2010 based on 2001 census and statistics of 2004-2005. It stated that 31.7cr people in India were below the poverty line. Out of which SC population is 7.74cr(38% of total SC Population), ST 4.25cr (48% of total ST population) and OBC 13.86cr(33% of total OBC population).

Review Petition

The decision of SC was reviewed under Order XLVII Rule 1 of SC Rules, 2013 by Society for the rights of Backward Communities. The Court held that there is no error apparent on the face of the record. Therefore, the review petition was dismissed.

Conclusion

EWS Reservation is creating a separate class of people among general category which by virtue of their economic condition is not able to have the same level playing field. Therefore, it is necessary to ensure that the reservation is provided to them to ensure their upliftment. The 103^rd amendment of the constitution is based on the check and balance procedure to provide equality of treatment to those who fall behind due to their economic conditions.

The majority opinion supports the EWS reservation as it is the part of government policy to include the beneficiaries in affirmative action. They have called it as affirmative action of parliament which ensure a level playing field and improve their social status.

The minority opinion of the supreme court also has a valid point that if reservations are given on grounds of economic condition, then why SC/ST/OBC are excluded? The answer to that is provided by the amendment itself to avoid the double benefit of reservation. They are already getting reservations and giving reservations on two distinct grounds will make it unfair for the EWS.

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Jeet Sinha