Court upholds 10% quota for EWS in landmark 3-2 verdict
The Supreme Court on Monday affirmed the validity of the central law providing 10% reservation benefits to economically weaker sections (EWS), with the five-judge Constitution bench ruling 3-2 in favour of the 103rd Constitutional Amendment of 2019.
The Supreme Court on Monday affirmed the validity of the central law providing 10% reservation benefits to economically weaker sections (EWS), with the five-judge Constitution bench ruling 3-2 in favour of the 103rd Constitutional Amendment of 2019.
Justices Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala declared the law to be valid and not violating either the basic structure of the Constitution or the equality code. Chief Justice of India Uday Umesh Lalit and justice S Ravindra Bhat, comprising the minority on the bench, held the EWS quota law to be discriminatory and exclusionary. Justice Bhat authored the dissenting judgment for himself and the CJI.
While all the five judges on the bench agreed that economic criteria could be a sound legal basis for affirmative action by the State, the two dissenting judges could not concur with the majority view on excluding socially and educationally backward classes (SEBC), Scheduled Castes (ST) and Scheduled Tribes (ST) from the benefit of the EWS quota law.
Significantly, the majority verdict also held that the 50% ceiling on reservation is “not inviolable or inflexible”, marking a paradigm shift from the thumb rule that has governed reservations in India, preventing states from enforcing quotas that take the proportion above the 50% mark, as laid down by a nine-judge bench in the 1992 Indra Sawhney judgment. The majority view noted that the 50% ceiling applied only to the provisions of the Constitution which existed at that time and cannot extend to the 2019 amendment.
But the two judges in the minority refrained from commenting on the 50% cap and instead sounded a word of caution against any categorical finding on the Indra Sawhney judgment. They pointed out that not only could the observation by the majority view could seal the fate of the 69% Tamil Nadu quota law which is still pending before another bench of the top court, it may also lead to “further infractions” where reservation could be demanded as a right.
The amendment was passed by Parliament in 2019 with broad support; at the time, it was seen as an effort to assuage the upper classes that were unhappy for what they saw as appeasement of the backward and underprivileged classes. The court has been hearing the matter since then, but did not stay the law, which effectively took reservation to 60% in many states.
In their separate judgments, justices Trivedi and Pardiwala also highlighted the need to revisit the reservation system in India. Justice Trivedi suggested putting a time-limit on all forms of reservation for “an egalitarian, casteless and classless society” whereas justice Pardiwala underscored that “reservation should not continue for an indefinite period of time so as to become a vested interest”.
The court was ruling on a clutch of petitions that questioned the constitutional validity of EWS quota on the grounds that it breached the 50% ceiling under the 1992 judgment, and that the amendment was unconstitutional for considering economic status as the sole criterion for identifying backwardness. The petitioners, comprising individuals and organisations, opposed reservation for EWS also on the ground that any affirmative action is meant for backward classes and that the law is also bad for excluding those among SC, ST, and OBC from its purview.
The central government, led by then attorney general KK Venugopal and solicitor general Tushar Mehta defended the 10% reservation claiming that it was a shift from caste-based reservation. Venugopal had also argued that the 50% ceiling is not sacrosanct and that Article 46 of the Constitution also provides for the upliftment of EWS. The court reserved its verdict on September 27.
Four separate judgments were delivered by the bench while pronouncing on the validity of the 103rd Constitution Amendment Act, by which Articles 15(6) and 16(6) were introduced in the Constitution providing 10% reservation in jobs and admissions to EWS, who are to be persons other than SC, ST and OBC and whose annual family income was below ₹8 lakh.
As the Constitution bench commenced its proceedings on Monday morning, justice Maheshwari read out the first judgment, holding that the EWS quota law does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution by treating economic criteria as the chief premise.
“Reservation for EWS up to 10% in addition to the existing reservations does not result in violation of any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of 50% because that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India,” he added.
Articles 15(4), 15(5) and 16(4) empower the State to make special provisions, including those related to admission to educational institutions and reservation in government jobs, for socially and educationally backward classes (SEBC) of citizens and for the Scheduled Castes (ST) and the Scheduled Tribes (ST).
Justice Maheshwari also underlined that the law cannot be struck down on the ground of excluding the backward classes (SEBC/SC/ST/OBC) from its ambit since they are already covered by such benefits under Articles 15(4), 15(5) and 16(4) and extension of the EWS quota law to them would lead to “extra or excessive” advantage.
“This exclusion is inevitable for the true operation and effect of the scheme of EWS reservation,” said justice Maheshwari, adding the law cannot be challenged on the ground of violating the basic structure of the Constitution since reservation itself is not supposed to be a basic structure of the Constitution.
Justice Trivedi, on her part, concurred with justice Maheshwari. “The impugned amendment enabling the State to make special provisions for the economically weaker sections of the citizens, other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the parliament for the benefit and for the advancement of the economically weaker sections of the citizens,” she held.
Upholding the exclusion of backward classes from the ambit of the law, justice Trivedi noted that they form a separate category by virtue of the applicability of other special provisions in their favour and thus, “they cannot be treated at par with the citizens belonging to the general or unreserved category”.
Justice Pardiwala also ruled in favour of the Centre’s law, saying the law is “constitutionally valid” and does not seek to alter the basic structure of the Constitution. He stressed that economic backwardness in India cannot be said to be confined to SEBC, OBC, SC and ST.
“The 103rd constitutional amendment signifies the Parliament’s intention to expand affirmative action to hitherto untouched groups — who suffer from similar disadvantages as the OBCs competing for opportunities... the insertion of the economically weaker sections is perfectly valid as a class for the extension of special provision for their advancement for admission and for reservation in posts,” said justice Pardiwala.
Affirming the exclusion of backward classes from EWS quota, the judge reasoned that if reservation benefits to backward classes cannot be construed as based on any prejudice, contempt or insult to forward classes, the converse of it cannot also be true.
However, justice Bhat, frowned upon the exclusion of backward classes, calling it a move to “heap fresh injustice based on past disability”.
“The total and absolute exclusion of constitutionally recognised backward classes of citizens - and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of non-discrimination,” the judge added.
Justice Bhat said that the exclusionary clause that keeps out from the benefits of economic reservation, backward classes and SC/STs “strikes a death knell to the equality and fraternal principle which permeates the equality code and non-discrimination principle”.