What does the EWS quota verdict mean for India?

Reservation on economic basis does not violate the basic structure of the Constitution. A five-judge Constitution bench, led by Chief Justice of India UU Lalit, observed this on Monday while nixing a bunch of petitions challenging the 103rd amendment to the Constitution.

The amendment provided a 10 per cent reservation to people of economically weaker sections in central government jobs and educational institutions. But the EWS category excluded those from the SC, ST and OBC categories. 

The petitioners, while challenging the amendment, had claimed that the grant of 10 per cent reservation to EWS violated the 50 per cent ceiling cap on quota. They also sought a decision on whether economic backwardness alone could be the sole criterion for granting quota in government jobs and educational institutions for those who were under the general quota.

But the judgement wasn’t unanimous. CJI Lalit and Justice Ravindra Bhat dissented with the majority view. The other three judges were Justices Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala.

Justice Maheshwari said that reservations were an affirmative action measure not only for socially and economically backward classes, but also for any disadvantaged section. Therefore, reservation solely on an economic basis did not violate the Constitution. Second, the exclusion of scheduled castes, scheduled tribes and other backward classes from EWS reservations was constitutionally valid.

Meanwhile, voicing the dissent, Justice Bhat said the amendment struck at the heart of the equality code, and was discriminatory and violative of the basic structure of the Constitution.

Ashwini Deshpande, a professor of economics at the Ashoka University, said the verdict ‘reinforced the point that this was a quota for the upper castes, even though it was presented as a move away from caste-based quotas’.

Noting that the income ceiling had not been touched, Deshpande said that any change in it would have opened up a whole new controversy as India did not have very reliable income figures. The professor believes that the current ceiling is not a good measure of the genuinely poor population, as most Indians fall below this cut off. According to her, poverty is a transient state and should be addressed through vigorous anti-poverty programmes.

Shankar Raghuraman, a senior editor with a national daily, had previously written that if the EWS quota was 10 per cent, the line that separated the poor from the rest should have been determined in such a manner that it covered only the poorest 10 per cent of the population. Instead, a family that was at the EWS quota’s income threshold of 8 lakh rupees in gross income annually would actually be within the top 10 per cent.

In January, the government had told the Supreme Court that the annual family income of 8 lakh rupees was a reasonable threshold to determine EWS. It said that the income criterion for EWS was more stringent than the one for the OBC creamy layer because despite being the same cut-off number, their composition was different.

On Monday, Justice Bhat said that allowing a breach of the 50 per cent cap set on reservation could lead to further infractions, which could result in compartmentalisation. For their part, the three judges who gave the majority verdict noted that the EWS quota did not breach the ceiling limit of 50 per cent placed by the Indira Sawhney judgment on reservations.

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Analysing the verdict, Supreme Court senior advocate Sanjay Hegde said the case dealt with a complex definitional problem. According to him, following the verdict, there will be great competition among the forward castes to be declared economically backward.

Hegde foresees a much more fragmented society following this judgement. He reasons that as they compete with each other, the heartburn that existed among the forward castes towards the reserved categories will now also become visible within the former category itself.

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Now that the verdict is out, the government will have to carefully track the second order effects that follow, given how sensitive the topic of reservations is in India and the far-reaching social and economic consequences it can have, especially for the most marginalised among us.