Supreme Court Upholds EWS Quota: Where Do We Go From Here?

The Supreme Court has upheld the government's decision to provide quota to the economically weaker sections, thereby expanding the scope of affirmative action in jobs and educational institutions for the first time since the Constitution came into effect.

In a clear departure from the notion that one has to belong to a historically disadvantaged community to avail quota, the apex court has made way for economic status to be the basis of reservation.

To recap, in 2019, 10% quota for EWS was introduced via an amendment to the Constitution. It enabled both the central government and states to provide reservation to the financially weak.

This quota is above the 50% reservation that exists for Scheduled Castes, Scheduled Tribes and other backward classes. To be clear, economically weaker sections of these communities, who already get reservation, cannot apply for the positions under the 10% quota.

On Monday, three out of the five judges who heard the case upheld the 103rd amendment to the Constitution.

Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala wrote three separate judgments upholding the amendment. Reservation on economic basis does not violate basic structure of the Constitution of India, they said.

In a concurring view, Justice Trivedi held that the 103rd "amendment enabling state to make special provision for other than SC/ST should be treated as affirmative action by the Parliament".

Dissenting with the majority, Justice Ravindra Bhatt and Chief Justice UU Lalit held that excluding the classes—such as SC, ST, OBC—is not constitutionally permissible.

BQ Prime spoke to several senior lawyers on the implications of the Supreme Court's decision:

- Senior Advocate Rakesh Dwivedi

This decision will encourage more and more sections of the society to seek reservation.

In India, reservation has a historical context. Reservations flow from the 1931 Gandhi-Ambedkar pact, in which it was agreed upon that no separate electorates will be created but there will be quotas in jobs and educational institutions.

It should not be expanded; else, we will end up giving reservation to everyone who believes he has a rational claim over quotas.

The U.S. Constitution says it is colour-blind. Our Constitution, with the exception made for affirmative action in Article 15 (4) and 16 (4), is also against quota. We cannot go on extending quota like this.

Taking the total number of reserved seats beyond 50% is also against the Indira Sawhney judgment. [A nine-judge bench of the apex court held in this case that combined reservation beneficiaries should not exceed 50% of India’s population.]

Quota has to be confined to Article 15(4) and 16(4) of the Constitution, and no other quota should be accepted. Otherwise, demands will go on increasing—10% today, maybe 20% later. Quota is against the idea of fundamental right to equality.

- Senior Advocate Sanjay Hegde

There will be a race to be classified as economically backward now. This judgment has essentially upheld right of the forwards to be backward. Economic backwardness is now part of social engineering. Earlier set up was also about addressing previous injustices.

There will now be a race for economic backwardness, with so many people trying to get into EWS category.

This judgment may actually lead to more resentment, including within the forwards over who qualifies for the quota. I also fear there will be a lot of obfuscation of data to get into EWS category.

This judgment may also be the thin end of the wedge that upsets the entire reservation ecosystem. It actually un-works the entire system of reservation.

- Senior Advocate Sanjoy Ghosh

Merit has to be the first criterion. EWS quota judgment will make things worse. EWS is a different concept; quota is a different concept. Quota, when it was introduced, had a 10-year limit attached to it.

Reservations were envisioned for 10 years. Reservations, as a concept, has failed to deliver what was expected. The whole EWS quota is in a way an acceptance of the failure.

The new system will further eat away on the seats available to those with merit. Merit has to be the first criterion that should be considered. EWS quota further deteriorates the situation.

- Wasim Beg, former Additional Advocate General, Jammu and Kashmir. Currently, partner at Luthra & Luthra Law Offices.

The Supreme Court seems to have found rationale behind this "creation of a class within a class" and upholding the exclusion of the EWS amongst the SCs, STs, Socially and Educationally Backward Communities and OBCs on the ground that they already enjoy reservation. Hence, they cannot be treated equally with the other economically weaker sections.

The Supreme Court has further underlined that the EWS is a separate class and is not to be confused with any other class. The judgment does not forbid classification for the purposes of implementing the Right of Equality guaranteed by it.

The apex court has considered all the vital aspects like the Basic Structure Doctrine, exclusion of the poor amongst SCs/STs/OBCs and breach of the 50% limit.

While it is an established principle that creation of a class within a class with a rationale behind it is not opposed to the guarantee of equality under Article 14, it shall be debated for some time to come; along with the larger question of continuing with reservations indefinitely.

- Senior Advocate Pinky Anand

When the Mandal Commission was constituted in 1980, the dynamics of Indian society were very different. We were looking at a society divided by caste more than class.

Although, the rich and the poor have always been a part of any society, the bonds of economy were not as strong as the bonds of caste. It was then that the Mandal Commission came and tried to balance the system, giving reservation to what was considered at that time the “weaker” section of our nation.

As we have moved ahead with globalisation, we have entered a different kind of societal structure, which has created a different kind of (weaker) section of the society.

The 103rd constitutional amendment, which introduced 10% reservation for the economically weaker sections today, got the judicial stamp of approval. It is time we, as a society, allow reservations to do the job that they were meant to do i.e. protect the truly weak.

The judgment has upheld the creation of a separate class of “EWS”. As Justice Trivedi has astutely observed, “...treating EWS as separate class would be a reasonable classification. Just as equals cannot be treated unequally, unequal cannot be treated equally. Treating unequal equally violates equality under the Constitution”.

The amendment was held to be an affirmative action by the Parliament for the benefit of the EWS class.

It has been 75 years of Independence, which means it has been 75 years since we are trying to remove poverty from our system.

The reservation of the economically weaker section is a strong step towards creation of a society based on merit.