EWS Quota Judgment: Everything Politically Expedient Need Not Be Legally Correct Or Socially Useful
The Supreme Court, in upholding the validity of 103rd Constitutional Amendment, has violently shaken the existing understanding of reservations, stirring simultaneously extreme agitation and an all-out acclaim for the verdict. It has resulted in its critics simmering in rage and its supporters unequivocal in their praise.
The apex court was called upon to decide whether the 103rd Amendment, which empowered the State to make 10% reservation for economically weaker sections, ran contrary to the constitutional scheme of reservation. Premised as it was only on the basis of economic criterion excluding therefrom classes covered under Articles 15 (4), 15 (5) and 16(4).
The majority held that the State can take affirmative action in favour of those suffering disadvantages due to economic conditions, and the observations to the contrary in the earlier decisions of the court, were limited to the classes covered by the existing Articles 15(4), 15 (5), 16(4) only. The past rulings did not prevent the State from creating a new category of entitlements. The categories of reservation were not closed. The Constitution being dynamic and the power of the parliament plenary, new beneficiaries of affirmative action could be created, the majority view held.
The 50% limit [laid down in the Indira Sawhney judgment] was not held by the majority opinion to be immutable and on the examination of the entire case. the principles considered sacrosanct by the Constitution as also its identity was held not to be infringed as to justify the argument of violation of basic structure.
The minority judgment agreed with the majority that economic criterion for the purposes of Article 15 is permissible but diverged from the majority with regard to Article 16 of the Constitution. In upholding the entitlement to use economic criteria, it described affirmative action as being based on deprivation as distinct from discrimination which was covered by existing articles.
Dealing with Article 16, however, it held that the provision guaranteed access to public employment and consequently adequate representation in services and as there is no lack of representation therein of economically weaker section, there was no justification for conceding to them the said right.
The minority held that the entitlement under the impugned clauses being premised on economic criteria and not backwardness, in excluding SCs, STs and OBCs despite their being similarly placed as EWS candidates, the amendment not only treated equals unequally but specifically discriminated against excluded category on the ground of caste—a prohibited consideration—and hence clearly violated the principle of equality which is part of the basic structure of the Constitution.
Where Both Majority And Minority Have Faltered
The majority and minority judgment both ignore the vital principle that reservations without provision for better education and more jobs would only amount to manipulation of system without its improvement or enhancement.
All the noise and fury around the reservation will not only signify nothing but would actually degrade the system which would underperform while being overused.
It is only the announcement of reservation as also the declaration of upholding of its legal validity that would have resonance without there being any concrete change or transformation for real.
More significantly, the court ignored that while the State is obliged to promote educational and economic interests of weaker sections (to which both the Constitutional amendment and the court referred) it is equally committed to securing the right to work and to education to individual citizens (ignored both by the amendment and the court).
What The 103rd Constitutional Amendment Is Really About
The guarantee of non-discrimination to an individual citizen in the entire field of State activity, including public employment, cannot be lost in any scheme of affirmative action but can only be limited when the measure applies to classes of citizen. The balance envisaged under the Constitution is between the counter-balancing weights of individual citizen’s rights and that of classes of citizens.
The 103rd Constitutional Amendment, however, does not deal with ‘classes’ but ‘sections’.
A ‘class’ has to be a socially homogeneous unit even if it, unlike caste, is not endogamous or having hereditary occupations or homo-hierarchicus character.
‘Sections’ on the other hand are distinct units with particular characteristics but not the same social, cultural, political or educational attributes and even if economic conditions of individuals across the section are the same their educational qualifications, the status possessed and power wielded would be different.
There would, thus, be a heterogeneity across the sections of people and even the nature and degree of economic backwardness and its causes and effects would vary.
"Consequently, the nature of ameliorative schemes needed to promote their economic interest could not be the same and while reservation may be warranted for one section it need not be necessarily required for another for whom not quota but targeted encouragement would suffice."
An arbitrary grant of benefits makes for a whimsical exercise of power and the lack of any measure or standard to confer benefits and to identify entitlements would be wholly arbitrary. Equality which is antithetical to arbitrariness would be the obvious casualty. The amendment, thus, is in clear violation of the equality code and destructive of its basic structure. Moreover in substituting ‘sections’ for ‘class’, the amendment also fails the identity test.
Strangely, the majority judgment relies upon Indra Sawhney’s case to justify upholding the grant of benefit to EWS. However, even according to the extract relied upon by the majority, reservation was to be an exceptional situation and not for sundry reasons.
No exceptional reason is culled out. In fact, there is no detailed study nor reliance on data to justify the grant of this benefit to economically weaker sections of citizens.
In any event, the 103rd Constitutional Amendment does not rely upon Article 16 (1). Article 16 (1) cannot itself be easily resorted to make reservations because of the very presence of Article 16 (4). The right to classify may be implicit in the guarantee of equality but that cannot permit the conflation of classification as reservation.
“Backwardness” is in fact a limitation on the exercise of power as the measure would infringe rights of an individual citizen. The existence of backwardness would depend on the facts and circumstances of the case and to effectively implement the measure the State would be obliged to identify and measure the same before any benefit is conferred.
This exercise has not been conducted and a bare look at the office memorandum made pursuant to the Constitutional amendment shows that the sweep of the same would be so wide as would not only make the grasp of the benefit offered a mere gamble but also provide no guarantee that the truly deserving will actually get it.
Reservation is no mystical incantation which will magically ward off misfortune. It is time we start considering other alternatives to remedy the injurious effects of societal conditions that hamper equal access to opportunities. Everything politically expedient need not necessarily be legally correct or socially useful.
Aman Lekhi is a senior advocate at the Supreme Court and former Additional Solicitor General of India.
The views expressed here are those of the author, and do not necessarily represent the views of BQ Prime or its editorial team.