In September, a Constitution Bench of the Supreme Court heard arguments in a batch of petitions challenging the 103rd Constitutional Amendment. That pertains to the newly inserted Articles 15(6) and 16(6) in the Constitution. By this amendment, the Parliament allowed the State to provide reservation on economic criteria. The hearing generated huge debate, particularly in the social media space where both the reserved classes and the open category (the economically weaker sections of which are entitled to this reservation) were at loggerheads with each other. This is probably the most crucial test for the Modi government which had introduced the EWS reservation at a time which coincided with the amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The reservation was derided as a sop to the newly enraged “forward castes” which were said to be much aggrieved by perceived stringency bought in by the amendment.
Reading the exact wording of the new insertions would be instructive.
Article 15(6): Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent State from making:
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the clauses mentioned in clauses (4) and (5) insofar as such special provisions relate to their admissions to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.
Explanation.— For the purpose of this article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantages.
Immediately after the Parliamentary approval of the amendment and its being signed and assented to by the President, some individuals and organizations challenged the constitutionality of the same. The challenge was mainly on the grounds inter alia that reservation solely on economic criteria was not contemplated in the Constitution; that the reservation for the economically weaker sections (EWS) took the total reservations beyond the 50 per cent limit set by the Supreme Court, and that the fundamental rights of the reserved classes were violated by their exclusion from the benefits of EWS reservation. It was further argued that the amendment violated the basic structure of the Constitution
The pleadings and material before the Supreme Court prompted it to frame broad issues for consideration, as suggested by the Attorney General: (whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution) (i) by permitting the State to make special provisions, including reservation, based on economic criteria, (ii) by permitting the State to make special provisions in relation to admission to private unaided institutions, and (iii) in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
The arguments advanced by parties did not confine themselves to the issues framed. Many points (some fanciful) were raised while arguing against the reservation, particularly about the so called exclusionary approach adopted while interpreting the new insertions. It was argued that the amendment should be interpreted to mean and include reservations for all classes in its ambit. It was argued that if so done, the ceiling of 50 per cent would not matter. The Attorney General himself and the Solicitor General argued that the amendment was applying the principles enunciated in the Preamble. It was argued that the amendment was in line with the duty cast upon the state in Article 46, which is one of the Directive Principles of State Policy (DPSP). The idea of reservation on the basis of economic criteria has been applied even earlier while implementing the Right to Education (RTE) as now enshrined in Article 21A of the Constitution. It was pointed out that the right to education was also a DPSP earlier, incorporated in Article 45 of the Constitution. As per the new mandate, the EWS reservation has been implemented in the form of guaranteeing 25 per cent of admissions in all educational institutions to economically weaker sections and socially disadvantaged children in class 1st.
The arguments for and against the EWS reservation are briefly discussed hereunder.
Reservation on economic criteria
It was urged that the sole criteria being economic consideration is anathema to the constitutional principle of non-discrimination and opposed to the idea of equality. The exclusion of the reserved class as intended by the amendment tends to make birth in a forward caste mandatory or a qualification for benefits of the welfare measure of reservation provided by the state. It is noteworthy that a similar provision as EWS reservation contained in an Office Memorandum was struck down by the Supreme Court while deciding Indra Sawhney. DMK, the ruling party in Tamil Nadu, an intervenor against the reservation submitted that the EWS reservation is a travesty of justice. Affirmative action in the form of reservation has been provided in the Constitution to remedy or cure the ill effects of historical discrimination. “Articles 15(6) and 16(6) are poverty alleviation programmes under the guise of reservations and cannot be sustained,” it submitted while arguing that indigence cannot be a rational basis for granting reservation. On the contrary, it was urged in the defence of EWS that after considering the report of the First Backward Classes Commission, better known as the Kaka Kalelkar Commission, the states in 1961 were informed that “. . . in view of the Govt of India it would be better to apply economic tests than to go by caste.” Further, Major General Sinho who headed the National Commission for Economically Backward Classes in 2010 had opined that, “Poverty . . . is a social and economic problem. So, reservation needs to be on socio-economic criteria.” Further, one of the objectives as stated in the Preamble to the Constitution is to ensure economic justice to all its citizens. Depriving the so called forward classes of reservation was treating them unequally, hence to put the economically weaker sections of those on par with their reserved class brethren was the idea behind this amendment, it was urged.
Exceeding the ceiling of 50 per cent
The 50 per cent ceiling on reservation was a principle first enunciated by the Supreme Court in M. R. Balaji and further reiterated in Indra Sawhney and many other landmark cases including the landmark Jaishri Patil matter regarding the Maratha reservation has gone from being a guiding principle to a sacrosanct limit solidified by the various decisions passed by Courts of record. Though the principle has been followed more in breach than in compliance, (many states currently provide more than 50 per cent reservations) breach of this ceiling is the main ground of challenge to EWS reservation according to Youth For Equality (YFE), an organization fighting against caste based reservation and is at the forefront of various litigations regarding breach of the ceiling. It is noteworthy that Gopal Sankarnarayanan, the counsel for YFE single handedly tried to wash out all objections to the validity of EWS. He urged that except for the fact that it crosses the limit, there is nothing inherently unconstitutional or invalid in granting reservation solely on economic criteria. He suggested that if bought within the 50 per cent limit, the reservation would be perfectly valid. In defence of the reservation it was urged that while deciding Indra Sawhney, the Supreme Court was dealing with reservations under Articles 15(4) and 16(4), therefore the ceiling does not at all apply to the newly inserted Articles 15(6) and 16(6). It is noteworthy that the plank of EWS reservation being unconstitutional per se because of breaching the limit was much diluted during the course of arguments as there was no uniformity of opinion in the people arguing against the reservation about this aspect. In a significant exchange, the Bench queried that if the benefits of the reservation could be extended to the reserved classes also, the quota would cross the ceiling. To that the reply was that the limit, if crossed to grant benefits to the deprived classes would be justified.
Other grounds urged
Exclusion of the reserved classes from EWS is discriminatory and breeds inequality, which is breach of the basic structure of the Constitution, it was argued. However, the crux of the arguments of almost all except for YFE was that EWS could be continued if the benefits could be given also to the reserved classes. Affirmative action in the form of reservation was introduced as a reparative measure to address the longstanding discrimination by certain elements society because of which they were socially and educationally backward. Excluding these historically disadvantaged sections on the ground that they were already benefitting from reservation would be against the guarantee of equality. The way forward with EWS is either to strike it down, allow it or to read it down by striking out the clause “other than the classes mentioned in clauses (4) and (5),” was one of the arguments by the opponents of the reservation, further specifying that the third way was more in consonance with constitutional principles.
Vibha Dutta Makhija appearing for a group of students from the EWS category argued that the EWS quota is in line with the transformative constitutional goals. She argued that India is a signatory to international treaties, and alleviation of poverty which has been acknowledged as a sustainable goal of development is addressed by this amendment. It was urged that the quota would eat into the seats available. To this it was replied on behalf of the government that the quota was introduced after ensuring that additional seats would be made available proportionally so that the actual number of seats available would not be reduced. To that effect, more than 2.14 lakh additional seats were created in Central educational institutions. The Attorney General stated that the reserved class which are under an umbrella have got a lot of benefits by way of reservation and other facilities granted to them, as such they should not be equated with the poorer sections of the open category. It would be unjust to deny benefits of reservation to the intended beneficiaries merely because of accident of birth.
EWS is a welcome step in the right direction
Granting of EWS reservation is indeed a revolutionary measure. Though it was argued that it would open the floodgates to further reservations, that is just an unfounded apprehension. It is well to remember that despite much insistence of the then Maharashtra government, the Centre had steadfastly refused to take any steps to increase the limit of 50 per cent which was reiterated in the Maratha reservation case. Though politicians of all hues pay lip service to the idea of a casteless society, the present reservation system which is based totally on caste structure has further entrenched the prevalent division of the society over caste identity. As argued by the Solicitor General, the Constitution is a dynamic document which has been amended from time to time to suit the needs of the evolving conditions and needs and aspirations of the people. Reservation was provided originally to only the SC/ST classes. It was extended to the OBCs much later in 1990. There was also a challenge to this reservation which resulted in the famous Indra Sawhney. The idea of extending reservation to the unreserved class has been opposed directly by those who are beneficiaries of the same themselves.
Striking down a constitutional amendment on the ground of it requires it to be such as to be transformational, and extending the benefits of reservation to a huge section population cannot be said to be such. The anomalies, if any do exist in the present set-up can be corrected, as argued by the Solicitor General. History tells us that constitutional amendments have been struck down only six times in the past. There are good grounds in favour of the EWS reservation, and this welcome move by the parliament needs to be approved by the Supreme Court.
EWS reservation is the first provision for grant of reservation regardless of caste, and there may come a time when all reservation will be based on economic criteria which would be the only way forward towards a more egalitarian society. Due to rapid urbanization and resultant migration of a huge proportion of the populace, caste has lost much of its relevance since the adoption of the Constitution. As famously mentioned by Prime Minister Modi, the only two classes that exist in reality are the rich and the poor. Much of the so called middle class has now progressed beyond the dynamics of caste and religion. Intermingling and upward mobility are real social movements, and it is time to have a rethink of the reservation as a tool of emancipation. The judgment in the matter will be a landmark in terms of looking at reservation as a policy. It is hoped that the Supreme Court will dismiss the petitions and uphold the amendment.
© Adv. Shrirang Choudhary
N. B. The Chief Justice of India who was part of the Bench is set to retire on 8th November. It is expected that the judgment in the EWS reservation will be delivered some time before that date.
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