Reservation for EWS is Not Unconstitutional

The Constitution (103rd Amendment) Act, 2019 was enacted by the Parliament with a view to achieve the following objects.

The Central Government was strongly of the opinion that 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 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.

The DMK Government, since returning to power last year, has been appointing Archakas of all castes to temples maintained by the Hindu Religious and Charitable Endowments (HR&CE) Department

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.

Vide the Constitution (Ninety-third Amendment) Act, 2005, clause (5) was inserted in Article 15 of the Constitution which enables the State to make special provision for the advancement of any socially and educationally backward classes of citizens, or for the Scheduled Castes or the Scheduled Tribes, in relation to their admission in higher educational institutions. Similarly, Clause (4) of Article 16 of the Constitution enables the State to make special provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

However, economically weaker sections of citizens were not eligible for the benefit of reservation. 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 has been decided to amend the Constitution of India.

Accordingly, the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 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(1) of the constitution and also provides for reservation for them in posts in initial appointment in services under the State.

Main Issues Considered by the Constitution Bench of Honourable Supreme Court of India Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?

Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?

Whether the cap of 50 per cent referred to in earlier decisions of the Supreme Court can be considered to be a part of the basic structure of the Constitution? If so, can the 103rd Constitution Amendment be said to breach the basic structure of the Constitution?”

The Constitutional validity of above amendment of the Constitution was also challenged in the Honourable Supreme Court of India by Janhit Abhiyan and so many others. A Constitution Bench of five Honourable Judges of Supreme Court of India in Janhit Abhiyan Vs. Union of India (Writ Petition (Civil) No.55 of 2019 and connected cases has held on 7.11.2022 by majority decision declared that the Constitution (One Hundred and Third Amendment) Act, 2019 adding clause (6) to Article 15 with Explanation and clause (6) to Article 16 to provide for a maximum of 10 per cent reservation for education in Government and private educational institutions including aided as well as unaided other than the educational institutions of the minorities under Article 30 (1) of the Constitution and employment for the Economically Weaker Sections of Citizens other than the Scheduled Castes, Scheduled Tribes and the non-creamy layer of the Other Backward Classes are constitutionally valid.

The majority decision accepts the contention of the Union of India. The EWS reservation was opposed mainly by those who are enjoying reservation under Articles 15 (4),15 (5) and 16 (4),16 (4A) and 335 for education and employment.

In this regard it is pertinent to mention here that in the original Constitution which was enacted and adopted by the Constituent Assembly on November 26, 1949, and came into force in the Republic of India on January 26, 1950, there was no provision to provide reservation for education for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Communities. The Communal Reservation for education was declared unconstitutional by a Constitution Bench of the Supreme Court in Champakam Dorairajan case (AIR 1951 SC 226). In order to overcome the adverse binding decision of the Supreme Court, the Constitution (First Amendment) Act 1951 was enacted by the Parliament, which added clause (4) to Article 15 for providing reservation for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward communities for education. The Constitution (Ninety Third Amendment) Act, 2005 was enacted by the Parliament, which added clause (5) to Article 15 for providing reservation for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Communities for Education in all private Aided and Unaided educational institutions excluding the minority Educational Institutions coming under clause (1) of Article 30. This Amendment of the Constitution was held Constitutionally valid by the Supreme Court in Ashoka Kumar Thakur Vs.Union of India.(2008(6) SCC 1) Though in the original Constitution there was provision for reservation for employment under clause(4) of Article 16 to Backward Classes, no reservations were given to them in Central Government Offices and Public Sector undertakings till the Mandal Commission Report and the Verdict of the Constitution Bench of 9 Honourable Judges in Indra Sawahny and others Vs.Union of India (AIR 1993 SC 477) were implemented.

The Income and Wealth criterion was implemented for the first time for OBC reservation in India in pursuance of the binding decision of Indra Sawahny Case mentioned above. In accordance with the said judgement a a new creamy layer principle was introduced to exclude the higher income group of Backward Communities from reservation. The sons and daughters of 6 categories of persons/sections were excluded from reservation as per O.M.No.36012/22/93-Estt.(SCT) Dated 8/9/1993 of the Department of Personnel & Training, Government of India. The Income and the Wealth Test Category is the last one. The First Category is the sons and daughters of those who are holding Constitutional Posts. It was originally fixed as Rs 1.5 lakhs. The present income limit of non-creamy layer is Rs eight lakhs. The very same income limit is prescribed for the EWS beneficiaries. The creamy layer principles are more genuine and transparent. But the criteria to determine the EWS are different in different States and Union of India. It is not well since the equals in OBC and EWS are being treated unequally. For example, the children of those who are holding Constitutional posts, Group A, Class-I Officers of All India Central and State Services(Direct Recruits) Group B, Class-II Officers of Central and State Services(Direct Recruits),Armed Forces including Paramilitary Forces (persons holding Civil Posts are not included.), professional class and those engaged in Trade and Industry, Property Owners (Agriculture Holding and Plantations are treated as Creamy Layer ineligible for OBC / SEBC reservation.

But for the EWS Reservation, the above exclusions are avoided. The very same principle of creamy layer of Backward Classes must be applied for EWS beneficiaries also. Then only the most deserving citizens among the forward communities can enjoy the benefit of reservation for higher education and employments in Government offices, public undertakings as well as other establishments. Otherwise, the affluent and influential among the EWS may rob the best fruits of reservation.

EWS reservation is Horizontal Reservation which will not affect adversely communal reservation which is Vertical Reservation.

The reservation for ex-service men,women, children or dependent of soldiers martyred in war, differently-abled persons, outstanding sports persons etc. are the examples for Horizontal Reservations which won’t adversely affect the reservation for SCs, STs, SEBCs and OBCs for education and employment. So there is no rhyme and reason for their opposition for  EWS reservation.

It is high time to stop forever the OBC Reservation now being enjoyed by the members of Christians and Muslims under Articles 15 (4), 15 (5) and 16(4) for education and employment and the eligible among them may be given EWS reservation under Articles 15(6) and 16(6) since they are not socially and educationally backward as they claim.

The famous slogan of our beloved Prime Minister, Sab ka Sath, Sab ka Viswas, Sab ka Vikas and Sab ka Prayas are very well considered by implementing EWS Reservation.n