EWS Quota - Why Is Everyone In Such A Hurry?

Mala Jay

It is too early to accurately assess the impact of the 10 percent quota for upper castes on the 2019 elections or to hazard a guess whether the Courts will uphold the constitutional validity of reservations based on economic criteria.

But in the short span of time since Parliament passed the Constitutional Amendment Bill for 10 percent for persons belonging to Economically Weaker Sections there has been a flurry of hectic activity at many levels and on several fronts.

The breakneck speed with which the game-changing Amendment to the Constitution was rushed through Lok Sabha on January 8, cleared by the Rajya Sabha on January 9,  given Presidential assent on January 12 and notified on January 14, is being matched by a spate of petitions in both the apex court and some high courts. 

In fact, immediately after the 124th Constitutional Amendment Bill got through both Houses of Parliament, the Constitution (103rd Amendment) Act - in which Articles 15 and 16 stand amended - rapidly received the assent of the President, was published in the official Gazette and quickly notified by the Centre.

Meanwhile, a growing number of petitions are being filed in various courts challenging the EWS quota concept.  This comes as no surprise because although major Opposition parties voted for the Bill, there have been deep misgivings about the consequences of introducing quotas based on economic status along with the existing caste-based norms for reservations.   

On Monday, two new Writ Petitions were filed in the Supreme Court against the 10 per cent economic reservation.  In separate pleas, two individual advocates - Reepak Kansal and Pawan Kumar – sought to challenge the statute change on the ground that it abrogates the basic structure of the Constitution in exceeding the 50 percent ceiling on reservation as imposed in the 1993 Indira Sawhney case.

Their contention is that since 27 percent quota is already allotted to OBCs and another 22 per cent to SC/STs on account of their social and educational backwardness, this additional quota of 10 percent on grounds of economic backwardness would take total reservations to about 60 percent.  The earlier nine-judge Bench had laid down that Reservation under the Constitution scheme is prescribed only on the basis of Social and Educational backwardness and not for the Economically-weaker Sections (EWS).

Also on Monday, the Madras High Court issued notice to Centre and State Governments regarding a petition filed on Friday by a DMK office-bearer R. S.  Bharathi that the Amendment violated the 'basic structure' of the Constitution.

Quoting Dr. Ambedkar, the petition says the "core concept of reservation  is not with reference to the economic status of a person but rather with reference to the community to which he belongs, with an idea to integrate that community into the mainstream system of education and employment."

The specific grounds of the DMK’s challenge are: 1. The concept of reservation, being an exception to the equality clause, is only justified when it is used for the purpose of upliftment of communities which have suffered discrimination and oppression like the OBC, SCs and STs.  2. Economic criteria alone cannot be the basis of reservation since reservation is not a poverty alleviation scheme.  3. The ceiling limit of 50 percent in reservation is also part of the basic structure and has been asserted by the Supreme Court in the decision in M. Nagaraj case.  4. In the I.R. Coelho case, the apex court has categorically held that Article 15 of Constitution along with Articles 14, 19 and 21 constitute the 'core values' and these cannot be abrogated.

As is well-known,  Reservations in Tamil Nadu is already at 69 percent due to the operation of the Tamil Nadu Backward Classes, Schedules Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 which has been placed in the IXth Schedule of the Constitution.

The latest Amendment will raise the reservation percentage in Tamil Nadu to 79 per cent.

According to the petition, the Bill was "foisted on the Lok Sabha" and the copies of the Bill were not even furnished to the Members sufficiently in advance so as to enable them to have a meaningful deliberation. 

In essence by inserting clause 6 in Articles 15 and 16 of the Constitution, provision has been made for economic reservation in jobs and education. 

This newly inserted Article 15(6) enables State to make special provisions for advancement of any economically weaker section of citizens, including reservations in educational institutions.

It states that such reservation can be made in any educational institution, including private institutions, whether aided or unaided, except minority educational institutions covered under Article 30(1).  It further states that the upper limit of reservation will be ten percent, which will be in addition to the existing reservations.

At present, reservations account for a total of 49.5 percent, with 15 percent, 7.5 percent and 27 percent quotas for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively.

"Economically weaker sections" for the purposes of Articles 15 and 16 mean such sections as notified by the State on the basis of family income and other indicators of economic disadvantage.

In short, this will be a totally new eligible class - distinct from the already specified castes of SCs, STs and socially and educationally backward classes.

In one of the petitions, reference has been made to the Maratha and Patidar quota cases where the apex court and some High Courts have struck down reservations exceeding the 50 percent cap.

According to the petitioners:  "It is clear that the concept of reservation itself is not with reference to the economic status of a person but rather in context of the community to which he belongs, with an idea to integrate that community into the mainstream system of education and employment".

During the original Constituent Assembly debate, a question had been posed as to whether 'backward class' in Article 16 (4) was intended in terms of economic status or caste, and the intention of the drafters was explained by Dr. B. R. Ambedkar in the following way:  "The Drafting Committee had to produce a formula which would reconcile these points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a `proper look-in' so to say into the administration”.

Again, years later, due to certain decisions of the Supreme Court, a question had arisen about the competence of the State to prescribe reservations in private and minority institutions in the cases of P. A. Inamdar and T.M.A. Pai, and how to overcome these difficulties, the Parliament again amended Article 15 by way of the Constitution (Ninety-third Amendment) Act, 2005 to add a clause (5).

The contention is that Parliament while inserting Article 15(5) had clearly maintained reservation to be in the interest of socially backward communities.  "It has never been the intention of the framers of the constitution to make reservations solely based on economic status of an individual, nor it is in accordance with Constitutional morality”, say the petitioners.

Interestingly, the very the first challenge to the 103rd Constitutional Amendment in the Supreme Court was filed by an NGO called "Youth for Equality".   This was incredibly enough filed within hours of the Parliament passing the Bill, even before it had received the assent of the President!

Jan 9, 2018

Mala Jay [email protected]

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