EWS Reservation: A Step In The Right Direction

Indian Parliament passed the 103rd Amendment to the constitution of India in January 2019 by amending Articles 15 and 16 of the Constitution, thereby making special provision for the progress of economically weaker section of the general category of our society and consequently providing the upper limit of 10 per cent reservation for aforesaid people in educational institutions both Government and private, aided or unaided and similar ‘reservation in the Government jobs. Minority educational institutions were exempt from such reservations under Article 30(1) of the Constitution of India.

Immediately thereafter in January 2019 itself, politics overtook the discourse and many petitions were filed in the Supreme Court interalia challenging the constitutional validity of the 103rd Amendment Act duly passed by both houses of the Parliament reflecting the will of the people. The petitions in the Supreme Court were first heard by a division bench of 3 judges of the apex court who then referred the petitions challenging the 103rd Amendment Act to five judges constitution bench. The SC constitutional bench after a marathon hearing passed a majority judgement in 3:2 ratio upholding the 103rd Amendment Act granting 10 per cent reservation to the economically weaker section of the general category and holding it to be constitutionally valid and consequently the BJP Governments decision granting the aforesaid reservation was maintained.

In order to put various aspects in perspective with respect to the EWS reservation and the supreme court judgement one has to begin from the preamble of the Constitution. The Preamble of the Indian Constitution clearly secures all its citizen’s justice, social, economic, and political also secures equality of status and of opportunity to all citizens. Hence the Preamble which is a key to our Constitution clearly provides that the framers of our Constitution clearly wanted interalia economic justice/ criteria as one of the parameters for policy formulation by the Government including the reservation.

Further, equality of status and opportunities is not possible if poor citizens are not provided policy impetus so as to uplift their status and provide the poor with a level playing field with the fortunate ones. Thus the Preamble has already shown the path and the present government is only following the same.

The majority view clearly held that 103rd amendment act ( 10 per cent EWS reservation) does not violate the basic structure of the constitution as reservation is an exception to the general rule of equality and these special provision of 10 per cent EWS reservation, based on economic criteria does not violate the basic structure of the constitution

The various nuances of the judgement can be understood in social, economic and judicial contexts. One has to first understand that the present judgement and the 103rd amendment neither touch in any way the existing reservation system based on social and economic backwardness nor breach the 50 per cent limit laid down in Indra Sawhney case. The 50 per cent limit laid down by Indra Sawhney case was for socially and educationally backward classes and did not deal with the reservation for the poor based on economic criteria of general category. The 10 per cent EWS quota has been carved out from the 50 per cent remaining for the general category. Hence the majority view is correct that 10 per cent EWS reservation does not breach the 50 per cent limit set up by the Indra Sawhney case.

Further equality is among equals and not unequals. A poor cannot be equalled with not so poor as due to poverty the poor does not get equal opportunity in any field and 10 per cent EWS reservation is an effort to make poor equal to non poor in terms of status and opportunity and provides economic justice. Therefore it does not violate the right to equality principle. Even otherwise, reservation is a positive affirmative action and an exception to the principles of equality duly recognised in our Constitution.

The majority view clearly held that 103rd amendment act ( 10 per cent EWS reservation) does not violate the basic structure of the constitution as reservation is an exception to the general rule of equality and these special provision of 10 per cent EWS reservation, based on economic criteria does not violate the basic structure of the constitution. Further 103rd amendment act is enabling special provision only hence cannot be regarded as an essential feature of our constitution. Our constitution being flexible is evolutionary in nature so as to meet the requirements of the time and the laws framed therein must reflect the will of the people of India.The SC Judgment clearly notes that exclusion of SC/ST/OBC FROM 10 per cent EWS reservation does not violate the equality code. Even otherwise poor among the SC/ST/OBC are getting reservation under the 50 per cent reservation limit set up by Indira Sawhney case. The majority holds that the ceiling limit itself is not inflexible and only applies to the reservation under article 15(4), 15(5) and 16(4) of our constitution of India and the present judgement prevents double benefits to those already getting the benefits of reservation. The majority view also mentioned about the temporary nature of reservation as an provided in the constitution which makes us wonder as to how a temporary feature became a permanent feature of our constitution.

The judgement, as in judgements of the SC in the past permits the government to make reasonable classification in its policy initiatives and the present exclusion of SC/ST/OBC reservation was part of reasonable classification as SC/ST/OBC quota including poor among them are already getting the reservation and SC/ST/OBC quota is not reduced in any manner. The present judgement will go a long way with far reaching results in unleashing the true potential of the poor in the general category who were till now deprived from the equal opportunity and equal status with others and they will truly and affectively become the partners in india’s development story .It will also ensure inter alia among others economic justice to the poor as mandated by our constitution.

The 103rd amendment act also promotes social harmony ,growth and upliftment of the poor thereby also ensuring unity and integrity of India where every section of society including poor and the rich ,SC/ST and the OBC will truly become torch bearers of India’s success story. It must be remembered that in societies where merit is secondary such societies cannot unshackle the chains of poverty and backwardness and cannot bring social change and economic justice .Hence there has to be balance between the merit and reservation and both have to harmoniously coexist till our societies do not need any reservation. That is a state where everybody is socially , economically and politically equal in a true sense.