• The Supreme Court upheld by a 3-2 majority the 10 per cent quota for the economically weaker sections (EWS) in educational institutions and government jobs, saying it was not discriminatory and did not violate the basic structure of the Constitution.

• A five-judge constitution bench headed by Justice U.U.Lalit delivered four judgments on 40 petitions challenging the Centre’s 2019 decision to grant EWS quota through the 103rd Constitution amendment.

• While Chief Justice U.U. Lalit and Justice S. Ravindra Bhat dissented from the majority opinion that upheld the 103rd Constitution amendment of 2019, Justice Dinesh Maheshwari said use of basic structure doctrine as a sword to stultify the effort to do economic justice cannot be countenanced.

• A nine-judge bench in the 1992 Indra Sawhney judgment (also known as the Mandal verdict) had ruled that “reservation should not exceed 50 per cent, barring certain extraordinary situations”. The EWS quota will be over and above the existing 50 per cent reservation to the SC/ST/OBC categories.

Introduction of reservation for EWS

• The economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. 

• The directive principles of State policy contained in Article 46 of the Constitution enjoins that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

• With a view to fulfil the mandate of Article 46, and to ensure that economically weaker sections of citizens get a fair chance of receiving higher education and participation in employment in the services of the State, it was decided to amend the Constitution. 

• Accordingly, the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 was introduced in Parliament which provides for reservation for the economically weaker sections of society in higher educational institutions, including private institutions whether aided or unaided by the State other than the minority educational institutions referred to in Article 30 of the constitution and also provides for reservation for them in posts in initial appointment in services under the State.

• The Constitution (103rd Amendment) Act, 2019 came into effect on January 14, 2019 amending Articles 15 and 16 of the Constitution by adding new clauses which empower the State to provide a maximum of 10 per cent reservation for the “weaker sections” (EWS) of citizens other than the Scheduled Castes (SCs), Scheduled Tribes (STs) and Non-Creamy Layer of the Other Backward Classes (OBCs-NCL).

• The reservation for the new category is in addition to the existing scheme of 15 per cent for the SC, 7.50 per cent for ST and 27 per cent for OBC-NCL, thus, bringing the total reservation to 59.50 per cent.

• The ministry of social justice and empowerment has stipulated that only persons whose families have a gross annual income less than Rs 8 lakh, or agricultural land less than 5 acres, or residential flat less than 1,000 sqft, or residential plot less than 100 square yards in the notified municipalities, or residential plot less than 200 square yards in the areas other than the notified municipalities, are to be identified as EWS for the benefit of reservation.

Key points supporting reservation on economic criteria:

i) Reservation is an instrument of affirmative action by the State so as to ensure an all-inclusive march towards the goals of an egalitarian society while counteracting inequalities. It is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society but also for inclusion of any class or section so disadvantaged as to be answering the description of a weaker section. 

ii) In this background, reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India.

iii) The word ‘economic’ is employed more than 30 times in the Constitution. The relevant provisions in which it prominently occurs are: the Preamble and Article 38 (economic justice); Article 39-A (legal aid with neutrality of economic disability); Article 46 (promotion of economic interests of weaker sections), Articles 243-G and 243-W (economic development to be undertaken by local bodies).

iv) The economically weaker sections of the citizens have largely remained excluded from attaining the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under Clauses(4) and (5) of Article 15 and Clause(4) of Article 16 are generally unavailable to them unless they meet the specific criteria of social and educational backwardness.

v) Reservation for economically weaker sections of citizens is up to 10 per cent. In addition to the existing reservations, it does not result in violation of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of 50 per cent. Because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.

vi) The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation. It may be perceived as a first step in the process of doing away with caste-based reservation. 

vii) The aim of creating a uniform, egalitarian, casteless society is to be seen as a paramount objective. Reservation was deemed as one of the principal means of achieving that goal. Such measures have worked, and their retention underlines that as a nation, we have miles to go, before we are anywhere near the promise we have given onto ourselves. 

viii) In this journey, if it is discerned that alongside these hitherto oppressed communities, who were hostilely treated on account of their caste status, there are also a substantial number of people, who have not progressed due to their economic deprivation. The State is duty bound to take remedial measures to address their plight.

ix) Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India.

x) Economic emancipation is a facet of economic justice which the Preamble, as well as Articles 38 and 46 promise to all Indians. It is intrinsically linked with distributive justice — ensuring a fair share of the material resources, and a share of the progress of society as a whole, to each individual. Without economic emancipation, liberty – indeed equality, are mere platitudes, empty promises tied to “ropes of sand”. 

xi) The break from the past – which was rooted on elimination of caste-based social discrimination, in affirmative action – to now include affirmative action based on deprivation, through the impugned amendment, therefore, does not alter, destroy or damage the basic structure of the Constitution. It adds a new dimension to the Constitutional project of uplifting the poorest segments of society.

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