CONSTITUTIONAL VALIDITY OF EWS QUOTA

INTRODUCTION

The passage of the 103^rd Constitutional Amendment in 2019, providing 10% reservations for Economically Weaker Sections (EWS) of society in education, appointments and jobs triggered a wave of legal challenges. Considering the violations of basic principles on reservations, the debate on the constitutional validity of this Amendment raged on. The Supreme Court at the beginning of November 2022, has finally set this issue at rest. Here is a crisp review of the amendment, the criteria, the grounds on which the amendment was challenged, and the verdict.  

CONSTITUTIONAL AMENDMENTS INCORPORATING EWS

The 103^rd Constitutional Amendment Act, 2019 (“the Amendment”) was passed to enable the State to extend the benefits of reservations to the EWS segment of society. Under Article 15, the Amendment inserted clause (6) enabling the state to make special provisions for the advancement of the Economically Weaker Sections of citizens other than the Socially and Educationally Backward Classes (SEBCs), Scheduled Castes (SCs), and Scheduled Tribes (STs). These special provisions may relate to admissions to educational institutions including private, aided, and unaided but excluding the minority educational institutions set up under Article 30 (1). This clause enabled additional reservations to the maximum of 10% of the total seats. Furthermore, under Article 16, the Amendment inserted clause (6) enabling the state to make provisions for the reservations of appointments or posts in favour of any economically weaker sections other than SEBCs, SCs, and STs, in addition to existing reservation and subject to a maximum of 10% of the posts.

CRITERIA FOR EWS ELIGIBILITY

As was stipulated by the Amendment, the Notification by the Ministry of Personnel, Public Grievances and Pensions has laid the following criteria for determining eligibility under the EWS category:

1. The persons must not be covered under the scheme of reservation for SCs, STs, and OBCs;
2. Family’s gross annual income below Rupees Eight Lakhs. Income includes income from all sources i.e., salary, agriculture, business, profession, etc. for the financial year preceding the year of application.
3. Persons whose family owns or possesses any of the following assets are excluded from the EWS category, irrespective of the family income-
4. 5 acres of agricultural land and above
5. Residential flat of 1000 sq. ft. and above
6. Residential plot of 100 sq. yards and above in notified municipalities
7. Residential plots of 200 sq. yards and above in areas other than notified municipalities.
8. Property held by the family including those in different locations shall be clubbed for ascertaining the land or property held;
9. Family shall include the candidate, their parents, siblings below 18 years, and their spouse and children below the age of 18 years.

CONSTITUTIONAL CHALLENGES ON EWS QUOTA

This Amendment was not accepted by many State Governments and various sections of society. The many challenges filed against this amendment were clubbed under this case and the issues raised are as follows:

1. Whether reservations granted solely based on economic criteria is violative of the basic structure?
2. Can the SCs, STs, OBCs, and SEBCs be excluded from the scope of the EWS reservations? Is this violative of the basic structure and right to equality?
3. Whether the EWS reservations breached the 50% ceiling laid in Indra Sawhney’s judgment (1992)?
4. Can states dictate the provision of reservations in private educational institutions which do not receive government aid?

SUPREME COURT’S VERDICT

In Janhit Abhiyan Vs UOI, the bench upheld the constitutional validity of the Amendment and EWS quota in a 3:2 ratio. Justices D Maheshwari, Bela Trivedi, and JB Pardiwala gave the majority verdict on this case. On the 1^st issue, the majority held that economic criteria as the sole basis for affirmative action do not violate the basic structure of the constitution and the equality code. Even dissenting Justice Bhat concurred with the majority on this aspect regarding reservation in education. Justice Maheshwari drew parallels with other Supreme Court judgments where the Court has not prohibited benefits accruing based on economic disadvantages faced by the people, hence reiterating economic criteria as a valid determinant of eligibility of people to benefits. The two tests applied to confirm the non-violation of the basic structure were: (both tests were devised by the SC in M. Nagraj Case)

1. The Width Test- This test ascertains the scope of the power to amend and the extent of the effect the amendment might have on the constitution and its core principles.
2. The Identity Test- This test determines whether the identity of the constitution has changed post the amendment.

Justice D. Maheshwari observed that reservation being a permissible affirmative action, was an exception to the rule of equality and not an essential feature of the constitution. Hence, he observed that provisions on reservations can be modified and such exclusion of other classes already covered otherwise, cannot be considered to violate the basic structure or the equality code, as is contended. The majority were also of the view that exclusion of the other classes from enjoying benefits under EWS was necessary to avoid double benefits from accruing to them and such affirmative action is always applied to the exclusion of others – SEBCS, OBCs, SCs, and STs. The concept of Compensatory Discrimination being by its very nature, exclusionary of others is central to the objectives it seeks to achieve. As explained by Justice Bela Trivedi, just as SCs, STs, and OBCs are a separate category from the general, EWS is also a class of its own. The reservation over the 50% ceiling (as stipulated by Indra Sawhney judgment) was held to be valid since the ceiling is itself flexible. Furthermore, they held that the 50% ceiling is for backward classes as envisaged under Articles 15 (4), (5), and 16 (4) and is extended to the reservation provided for an entirely different class, consisting of the EWS. On the issue of whether a reservation burden can be imposed on unaided private institutions, the majority (including J Bhat) held that unaided private institutions cannot be separated from the national mainstream and shall be responsible for sharing this burden. Reservations in private institutions are not per se violative of the basic structure. In this regard, the Court referred to its decisions in the Society of Unaided Private Schools of Rajasthan and Pramati Educational and Cultural Trust where it had earlier upheld the 25 % reservation in favour of EWS children in private unaided schools.

DISSENTING OPINION

Justice Ravindra Bhat and the then CJI UU Lalit authored the dissenting opinion.On the issue of sole economic criteria, they agreed with the majority in the view that it does not violate the constitution or principles of equality. However, they held sole economic criteria were not violative of the basic structure where education under Article 15 is concerned but is violative concerning appointments and jobs under Article 16. They viewed the exclusion of backward classes from the category as violative of the basic structure, principles of non-discrimination and non-exclusion, and the equality code. Reservation, they observed, was a powerful tool to enable equal access and opportunity and such economic criteria arbitrarily exclude the socially and historically disadvantaged sections of society. Justice Bhat was also opposed to the EWS category under Article 16(6) due to the absence of the necessity to prove the inadequate representation in services as is the case with all other categories. An additional opportunity for those adequately represented in services is according to Justice Bhat, a violation of the equal opportunity principle and basic structure. However, the most significant aspect of the dissenting opinion was the point on the breach of the 50% limit. They observed that permitting the breach of the 50% rule becomes a gateway for further infractions resulting in compartmentalization. This was rightly declared to defeat the temporary or exceptional nature of reservation as intended by Dr Ambedkar. 

SUGGESTIONS AND CONCLUSION

The curious case of India’s infinite population and finite resources has set in motion a chain of never-ending politics that has resulted in the extension of reservations from the original provisions, decade-upon-decade. The EWS quota is a double-edged sword that intends to push the discussion from a community-based approach to a more income equalizer approach. However, in the meantime, the reservation limits have hit an all-time high in the country, especially in states which are blatantly violating the 50% ceiling. The question remains, have the downtrodden and historically poorer communities managed to climb in education and status due to the 75 years of reservations? The State Government along with the Centre must work in the direction of ensuring affordable and good quality education to all, to equalize the differences. Endeavours of the state to reduce the gap between the rich and poor regarding access and opportunities is the solution to this age-old issue. To conclude, the country must pay attention to the words of the majority here who rightly held, that though the Amendment cannot be struck down for being discriminatory, the reservation policy needs to be revisited and must have a definite period as opposed to an indefinite period.

Autthor(s) Name: Ranjana S (Advocate, High Court of Bombay)