A Pandora’s box has been opened

By allowing the EWS quota, the SC has expanded the scope and intent of affirmative action beyond the original constitutional intent, with uncertain consequences

The 3:2 majority judgement by a five-judge Supreme Court bench endorsing the 103rd Amendment of the Constitution has redefined reservation as it has been understood till now. It has given legitimacy to a political decision taken before the 2019 general elections that essentially created a new category of reservation based on economic criterion, something that was not envisaged in the Constitution. The Amendment made a special provision for 10 per cent reservation in education and jobs for the Economically Weaker Sections (EWS) among the upper castes. The court’s majority judgement ruled that the Amendment did not violate the basic structure of the Constitution. The constitutional scheme for reservation was meant to provide representation in government and educational upliftment to those sections that had been denied these by centuries of social discrimination against them. It thus envisaged social backwardness, and consequent economic backwardness, as the qualifying criterion for reservation, and the Supreme Court judgement in the 1992 Indira Sawhney case had specifically ruled out reservations based solely on the economic criterion. But this week’s judgement has accorded sanction to reservation as a welfare measure for the EWS among the upper castes, who do not face the debilitating effects of social discrimination. By allowing this quota, the court has expanded the scope and intent of affirmative action beyond the original constitutional intent, with uncertain consequences.

While all five members of the bench agreed that economic backwardness can be a criterion for reservation, the dissenting judges, including the outgoing CJI U U Lalit, asserted that the EWS quota was discriminatory in excluding the poor among the sections that enjoy reservations under the caste criterion, and so failed the basic structure doctrine. There is merit in this view because the political logic behind the EWS reservation is at odds with the idea of equality at the heart of the Constitution. A benefit sought to be conferred on a section of the population based on economic criterion cannot be denied to other sections of citizens who also fulfil that criterion. The majority judgement has thus given judicial sanction to an exclusionary and discriminatory proposition.

Another contentious issue was whether the EWS quota violated the 50 per cent ceiling laid down for all reservations by the Supreme Court in the Indra Sawhney case. The majority judgement held that the cap was only for existing reservations and would not apply to the EWS quota. But the minority view held that breaching the ceiling could lead to more breaches in future. Once the balance between merit and reservation set by the ceiling is upset, more breaches are inevitable. The court had said in 1992 that there could be situations in which the ceiling could be breached in special circumstances, but it would not have conceived then that such an opening would be used to create a quota for the upper castes. The practical implications of the EWS quota are also problematic because the present Rs 8 lakh per annum income criterion would benefit many who would not actually deserve the benefit. Both by defining a new reason for providing reservations and by breaching the 50 per cent limit for quotas, a Pandora’s box may has been opened. Future governments may come up with other reasons for providing quotas to favoured sections. These contentious issues may have to be revisited by the court in future.