What does EWS quota mean for SC, ST, OBCs?

File picture of Supreme Court of India. | Picture: PTI

The Supreme Court’s reservation for economically weaker sections, especially for the forward castes, has sprung up a debate that it will only create further unequal social structures.

Sana Ejaz | TwoCircles.net 

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NEW DELHI — Earlier this week, in a landmark decision the Supreme Court of India upheld the 103rd Constitution Amendment providing a 10 per cent reservation quota for the economically weaker sections (EWS) from unreserved categories. The top court approved the decision of the central government. 

The Supreme Court pronounced the judgement on several pleas challenging the validity of the 103rd Constitution amendment providing 10 percent reservation to EWS persons in admissions and government jobs.

Through this amendment, the beneficiaries can avail of the quota for admission to central institutions and Central government jobs. A five-judge constitutional bench headed by Chief Justice UU Lalit ruled that the provisions of the concerned amendment are not in violation of the Constitution in a 3-2 verdict.

The Supreme Court’s reservation for economically weaker sections, especially for the forward castes, has sprung up a debate that it will only create further unequal social structures. Those opposing it maintained that upholding quota for EWS doesn’t take it consideration social backwardness, which is a result of centuries-old accumulated injustice. As the amendment introduces reservation solely on economic criteria, those opposing it opine that “affirmative action cannot depend solely on economic criteria as evidently economic progression cannot undo the social fabric of caste-based Indian society.”

What is the EWS Quota?
The Central Government put forth the 10 percent reservation quota for candidates in the economically weaker sections (EWS) sections of the society for admissions and government jobs with the 103rd Constitution amendment. The amendment was passed in January 2019 and through it Articles 15(6) and 16(6) were inserted in the Constitution for the reservation.

The amendment empowers state governments to provide reservations in college admissions and government jobs based on criteria of economic backwardness.

Under EWS quota, “Persons belonging to the general category with an annual gross household income of up to Rs 8 lakh are eligible for the reservation, excluding families that own over 5 acres of agricultural land, a house over 1,000 square feet, a plot of over 100-yards in a notified municipal area or over a 200-yards plot in a non-notified municipal area.”

The EWS quota is over and above the existing 50 percent reservation to SCs, STs, and Other Backward Classes (OBCs).

EWS reservation was based on the recommendations of a Commission headed by major general (retd) S.R. Sinho.

Challenges against the EWS reservation
The Supreme Court heard as many as 40 petitions against the amendment, including the lead one filed by ‘Janhit Abhiyan’ in 2019, which challenged the validity of the Constitution Amendment (103rd) Act 2019.

The petitioners called the amendment “an attack on the constitutional vision of social justice” and “a fraud on the Constitution.” They argued that the policy will hinder equality of opportunity and it violates the basic structure of the Constitution by breaching the 50 percent ceiling for reservation fixed by the Supreme Court ruling of the Mandal Commission case.

What did the Judges say?
On November 7, a bench of Chief Justice UU Lalit, Justice Dinesh Maheshwari, Justice Ravindra Bhat, Justice Bela M Trivedi, and Justice JB Pardiwala pronounced the verdict. Four judges read the verdict separately. 

However, Chief Justice UU Lalit and Justice Ravindra Bhat expressed their opinion against the EWS quota. Justice UU Lalit said he was with Justice Bhat’s decision. The remaining three judges said that this amendment is not against the basic spirit of the Constitution.

Justice Bhat said that the Constitution does not allow tampering with social justice.

CJI Lalit dissented with the majority view upholding the EWS reservation. The CJI held that a 10 percent quota for EWS is violative of Constitution. “I have concurred with the view taken by Justice Bhat. The decision stands at 3:2,” said the CJI.

According to Bar and Bench, Justice Bhat said the amendment’s exclusions violate the constitution’s equality code—the exclusion of SCs, STs, and OBCs from the EWS quota ‘discrimination’ against them. 

Excluding the classes is not constitutionally permissible, Bar and Bench coated him saying. He also added the EWS quota is not under the basic framework of the Constitution, crossing the limit of the reservation is against the basic structure.

What did politicians say?
In a statement, Congress general secretary Jairam Ramesh claimed that “the amendment itself was the result of a process initiated by Dr Manmohan Singh’s government in 2005-06 with the appointment of the Sinho Commission that submitted its report in July 2010.” He added that the “Bill to provide quota to the EWS was ready as far back as 2014 but the Modi government took five years to implement it”.

Congress Spokesperson Abbas Hafeez said, “Congress Party has always welcomed the court’s decision. It is given for the poor, but the rights of our OBC brothers should also be respected, now it is the job of the government to balance this”. He added, “we were never against EWS reservation if a person is going backwards because of his category or caste, then the government will have to do something to strengthen, but there should be no politics done on this topic.”

‘Amendment will impact social justice movement’
Responding to the top court’s order, the founder of the Centre of Brahmin Studies and reputed author Professor Dilip Mandal said, “The constitution makers, never talked about it, because it is not just unconstitutional, but also it goes outside the framework of the constitution. It is going to affect the whole debate and discourse of the Social justice movement”. 

Mandal took to Twitter to respond to the reservation of the EWS quota for forward castes. “Non-SC-ST-OBCs are eligible for #EWS quota benefits if their parent’s annual income is up to ₹8 lakh per year but SC and ST students are not eligible for Union Govt scholarship if their parent’s income is more than ₹2.5 lakh per year!” he tweeted

In an article on Newsclick, one author wrote, “The elite castes are more than adequately represented. Therefore, reservation for EWS, especially for the forward castes, is not a valid idea. Such a quota will only further create unequal and social structures we are struggling to overcome in spite of affirmative action.”

Well-known entrepreneur and social activist Tahseen Poonawala also raised a question on the EWS reservation. “Those who opposed reservations are today celebrating upholding the EWS reservations. I have just one question – how many of our Dalit citizens or OBC citizens are Chief Justices of the Hon’ble SC/HCs? How many of them are SPs or DMs in UP? How many are judges in the Hon’ble SC?,” he tweeted. 

What are the problems and validity of the EWS quota?
As per several experts, the “amendment violates the basic structure of the constitution promising special protections, the sole basis of economic status.”

Experts are of the opinion that “economic backwardness cannot be the sole criterion.”

The amendment also goes against the Supreme Court 1992 ruling in Indira Sawhney & Ors Vs Union of India, which says that reservation should keep at 50% while including EWS reservation. It exceeds the mark of 50% limit of reservation and it will disturb the Indira Sawhney case.

Supreme court Advocate Amit Shrivastav, in a conversation with TwoCircles.net, disclosed, “In 2019, when the present government loses the election in different states many such acts were passed. You must have seen that CAA and NRC were also brought during the same period. It is necessary to talk to people before introducing any act or law, but EWS was brought in a hurry. The government did not conduct any census, from which it could be clear about how many percentages of EWS people are in the society.” 

Advocate Shrivastav called it “unconstitutional,” and said, “the government is continuously attacking the constitution.”

“As far as I see, this is only a political stunt. EWS reservation was brought to please a particular section of the society, especially the upper caste people. Now you can see on social media people have started demanding a 30% reservation. If we look at the Indira Sawhney case, then the Supreme Court had approved that the reservation should not be more than 50%, then now on what basis the 10% reservation?” he added.

Sana Ejaz is an independent journalist from Bihar. She tweets @SanaEjaz_