INTRODUCTION
In January 2019 Parliament passed the 103rd Constitutional Amendment aka EWS Reservation Bill, which provides 10% reservation to economically weaker sections(EWS) in public employment and admission in educational institutions. Interestingly such a significant bill which needed intense debate was tabled on the second last day of the Parliamentary session in the Lok Sabha and was also passed the same day. In November, last year in the case of Janhit Abhiyan v. Union of India Supreme Court uphold the EWS Reservation Act and declared it Constitutionally valid. Several review petitions challenging the verdict have been also filed and are currently pending in the Supreme Court.
JANHIT ABHIYAN V. UNION OF INDIA
In November, last year in the case of Janhit Abhiyan v. Union of India, a 3:2 majority judgement upholding the 103rd Constitutional Amendment Act was announced by a 5-judge Constitutional bench of the Supreme Court headed by Chief Justice of India U.U. Lalit. Justice J.B. Pardiwala, Justice Bela M. Trivedi, and Justice Dinesh Maheshwari uphold the validity of the EWS quota and also stressed that the quota system should not be permitted to continue for an indefinite duration stating the importance of imposing a time limit on the quota system to pave the way for a casteless and classless society. However CJI U.U. Lalit and Justice S. Ravindra Bhat dissented and concluded that the 103rd Constitutional Amendment Act violates the code of equality for excluding the SC, ST, and OBCs from the reservation which is solely based on economic background.
ANALYSING LOOPHOLES IN THE EWS RESERVATION ACT
Intense debates are going on in public platforms on the verdict with contrasting viewpoints being presented on all aspects of the EWS Act. Some of the lacunae in the criteria to be eligible for the EWS reservation are as follows:
- Applicants whose families have a total annual income of less than Rs 8 lakh will be identified as economically weaker sections (EWSs) and will be eligible for reservation benefits. The income considered for this purpose will comprise income from all sources such as salary, agriculture, business, profession, etc., for the financial year preceding the year of application. That means even if the family income of the applicant was more than 8 lakh for any number of years except the financial year before the year of application, then the applicant would be eligible for the reservation considering fulfilling other criteria. In this case, if the family income is slightly above the margin and if the breadwinner takes a few months’ leave or even a long unpaid leave for vacation the applicant would be considered as economically weak and will be eligible for the reservation. In another case, if the applicant’s family has an annual income of let’s say 1 crore for the last 10 years and has invested all their money in different forms except land ownership as mentioned in the criterion given below, and does not earn more than Rs. 8 Lakh in the financial year before application, then also applicant would be eligible and considered as economically weak. People can often misuse this criterion.
- Individuals whose families own or possess any of the following assets will not be classified as Economically Weaker Section (EWS), regardless of their family income:-
- Agricultural land measuring 5 acres or more
- Residential flats covering an area of 1000 sq. ft. or more.
- Residential plots measuring 100 sq. yards or more in municipalities that are notified
- Residential plots measuring 200 sq. yards or more in areas that are not notified municipalities.
The term “Family” for this purpose will include the person who seeks the benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. So, here the grandparents of the applicant are excluded from the family which means if the applicant’s family possesses any of these assets but in the name of grandparents, which is the case in the majority of Indian households and the applicant will be eligible for the reservation. Though the property will be ultimately possessed by the applicant’s family till then the applicant will be considered economically poor, which the applicant is not so.
- No income verification: There is no proper mechanism in place to verify the income of the applicants. This can lead to ineligible candidates availing of the benefits meant for the EWS candidates. Ensuring a robust and effective income verification process is much needed, it will help EWS Reservation Act to better achieve its intended objectives and promote inclusive growth.
- Supreme Court has also asked the government on what basis have they zeroed the Rs.8 Lakh annual income criteria in response to which they have formed a three-member committee for it, which will be headed by former Union Finance Secretary Ashok Bhushan Pandey.
- Supreme Court has also questioned the government if the annual income limit of Rs.8 Lakh is wide-ranging encompassing a larger population than necessary. Additionally pointed out that purchasing power of rural and urban areas and the per capita income of different states varies and inquired if the government has considered these factors.
- Drawbacks of setting the annual income limit at Rs.8 Lakh: Centre has submitted Sinho Commission Report to the Supreme Court, which suggested the use of the annual income limit for OBC Creamy Layer as a cap for EWS Reservation. Whereas the report submitted by the commission stated that while OBCs experienced “economic backwardness compounded with their social and educational backwardness”, the EWS category only experienced economic disadvantage. As a result, the creamy layer criteria, which applied to the OBC category could not be applied to the EWS category.
The Supreme Court had orally remarked that “Under the current system, candidates from the OBC category who fall under the creamy layer are ineligible for reservation benefits as they have achieved economic progress and are considered less disadvantaged. However, if the same income criteria were to be applied to both the EWS and OBC categories, the court noted that it would result in a scenario where “unequal are made equal.” This is because OBC students within the income criteria would still face additional social and educational disadvantages that EWS students would not have to contend with.”
UNDERSTANDING THE IMPACT OF EWS RESERVATION ON THE PEOPLE OF INDIA
The EWS Act only applies to civil posts and services in the Government of India and admission to Educational Institutions. Private institutions and businesses are not covered under this act. So, government-aided institutions and jobs do not have that many seats, and not that many new opportunities in jobs and new seats in educational institutions have been created. Many educational institutions and workplaces lack the necessary infrastructure to accommodate EWS candidates. This can lead to a lack of opportunities for eligible beneficiaries. To meet the needs of the economically weaker sections, it is imperative to increase the number of seats available in educational institutions and generate more employment opportunities. This can be achieved by creating new positions in both the public and private sectors and expanding the infrastructure of educational institutions to accommodate a larger number of students. Eventually, the participation of the General Category will increase in public employment and educational institutions, as SC, ST, and OBCs are excluded from this reservation.
CONCLUSION
The EWS Reservation Act is necessarily a significant step towards making a more inclusive, casteless, and classless society. It promotes equality by ensuring that candidates from economically weaker backgrounds have access to the same opportunities as those from more financially stable backgrounds. It paved the way for those from economically weaker backgrounds to break the cycle of poverty and achieve upward mobility. However, several areas need to be addressed to ensure that the benefits of the Act reach the intended beneficiaries. The government must take a proactive approach to address the issues with the Act, such as revisiting the income criteria, addressing regional disparities, ensuring transparency and accountability, and providing additional support to economically weaker students. By taking these steps, the EWS Reservation Act can fulfil its promise of promoting social justice and economic development in India and creating a more equitable society for all.
Author(s) Name: Siddhant Samaiya (National Law Institute University, Bhopal)
