10% reservation: EWS quota key step to end poverty, says Supreme Court

Published on Sep 15, 2022 11:52 PM IST

“After 75 years of Independence, there is still a large mass of persons living below poverty line (BPL) who due to economic factors are unable to access facilities. Even if this population of BPL is over 20%, it is a large mass of people,” it said.

“Why can’t there be economic basis for affirmative action that can be a measure to grind poverty?” asked a five-judge Constitution bench headed by Chief Justice of India (CJI) Uday Umesh Lalit. (Agencies)
“Why can’t there be economic basis for affirmative action that can be a measure to grind poverty?” asked a five-judge Constitution bench headed by Chief Justice of India (CJI) Uday Umesh Lalit. (Agencies)
ByAbraham Thomas, New Delhi

The 10% quota for economically weaker sections (EWS) is a first-of-its-kind measure to end poverty for a large chunk of people who were denied good education and employment opportunities for being financially disadvantaged rather than on account of past discrimination, the Supreme Court observed on Thursday.

“Why can’t there be economic basis for affirmative action that can be a measure to grind poverty?” asked a five-judge Constitution bench headed by Chief Justice of India (CJI) Uday Umesh Lalit.

Comparing the history of reservation in the country for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) as compared with EWS, the bench, also comprising justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, remarked that economic factors could also be an impediment for a large population against accessing facilities.

“After 75 years of Independence, there is still a large mass of persons living below poverty line (BPL) who due to economic factors are unable to access facilities. Even if this population of BPL is over 20%, it is a large mass of people,” it said.

Of the many grounds of challenge laid out in the petitions challenging the 10% EWS quota, one was about the economic criterion being the sole factor justifying the 2019 law.

The petitions also highlighted exclusion of persons belonging to the SC/ST and OBC communities from the benefits under the 2019 law despite being economically marginalised.

Advocate Shadan Farasat, one of the lawyers who argued on behalf of the petitioners, presented data to suggest that the poorest in the country belong to the reserved category. He read out the Sinho Committee report, forming the basis for the 10% EWS quota, to show that out of the 317 million BPL population, those falling under the General Category (apart from the reserved categories) are 58.5 million, which is the target population for the EWS quota.

Farasat said: “The larger chunk where poverty is massive and deeper is among the reserved categories. Their exclusion does not advance the goal of equality and hence it violates the basic structure.”

To this, the bench responded: “Per se, what is fundamentally wrong in having economic criteria as basis for affirmative action or if they do not belong to a homogenous class? For the first time, economic disadvantage has been taken as the basis for any affirmative action. Till now it was discrimination-based. Discrimination has a negative connotation but economic disadvantage is not status based. The idea behind bringing this law is that already there is protective umbrella provided to the reserved categories.”

The court further pointed out that if the 10% quota was to be opened for SC, ST and OBC, they will get the “lion’s share” as the majority of the poorest of the poor comprise of these categories.

Senior advocate Gopal Sankaranarayanan appearing for the petitioner Youth for Equality told the court that economic criteria-based reservation is welcome but providing this reservation breaches the constitutional ceiling of 50% which cannot be countenanced. Farasat said that 50% rule is not part of basic structure of Constitution and this limit could be exceeded till the goal of achieving substantive equality is achieved.

The court directed the petitioners as well as the Centre to compile figures on the total reservation applicable besides SC/ST and OBC which includes reservation to women, physically handicapped, ex-servicemen or other special categories.

“We wish to know the extent of reservation. Although our focus is only on vertical reservation (to SC/ST, OBC) there is a horizontal component. The impact is equally felt by the horizontal part as exclusion is felt on this account too by the open category candidates,” the bench remarked.

The bench posted the matter for hearing next Tuesday as Attorney General for India KK Venugopal indicated that he would require four hours to make submission. Solicitor general Tushar Mehta will also make submissions followed by some state governments.

The five-judge Constitution bench had begun hearing of the EWS law early this week and had laid down three broad questions for the petitioners to address. As the 103rd Constitution amendment introduced Articles 15(6) and 16(6) for purposes of reservation in education and jobs for EWS, the court wished to know if such an amendment violated basic structure of Constitution. Further, the court asked if the exclusion of SC, ST and OBC will amount to violation of the basic structure doctrine.

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