EWS Reservation

IN NEWS:

• A two-judge bench of the Supreme Court upheld the constitutional validity of 27% OBC quota in All India Quota seats and listed the final hearing on validity of EWS criteria in March.

RESERVATION SYSTEM:

• Affirmative action refers to a set of policies and practices within a government or organization seeking to include particular groups of people in areas where they are underrepresented. Reservation is a type of affirmative action.
• Reservation refers to the fixation of a certain percentage of seats (in educational institutions or jobs or elected bodies) to particular categories of people on special grounds.
• This concept gained importance after the Great depression of 1929. During the 1930’s economic crisis and the second world war, it was realized that the laissez faire or the survival of the fittest approach will not uplift weaker sections who had faced historical injustice. Hence, the state had to take special measures in favour of weaker sections to create a level playing field in the society.

Political Thinkers supporting the Welfare state:

• Rawl’s theory of justice supports that policy is just which brings the maximum advantage to the least advantaged sections.
• Ronald Dworkin was in favour of that state policy that upholds human dignity and reflect equal concern for all.
• Amartya Sen envisioned everyone to possess the capacity to have an equal amount of happiness thus emphasizing on the state investing in capacity building tasks.

HISTORY OF RESERVATION SYSTEM IN INDIA:

• In 1882, a caste-based reservation system was originally thought of by William Hunter and Jyotirao Phule.
• In 1901, A form of reservation for backward sections was implemented by Chhatrapati Shahuji.
• In 1932, Poona Pact, an agreement was reached between Mahatma Gandhi and B. R. Ambedkar on the reservation of electoral seats for the depressed classes in the legislature of British India.
• India was one the first country to introduce the idea of welfare state in the constitution itself through the Fundamental Rights and the Directive principles of state policy.
• In 1950, initially, reservations were provided just for SCs and STs.
• In 1991, OBCs were included within the ambit of reservation on the recommendations of the Mandal Commission.

CONSTITUTIONAL PROVISIONS:

Under Article 15:

• Article 15(3), 15(4) and 15(5) forms the foundation of reservation in the country.
• Article 15(3) empowers the state to make special provisions for women and children.
• Article 15(4) empowers the state to make special provisions for advancement of Socially and Educationally Backwards (SEBCs) or SC/STs.
• Article 15(5) empowers the state to make reservation in admission into education institutions including private schools or colleges whether or not aided by the government, except for minority educational institutions.

Under Article 16

• Article 16(4): empowers the State to make a special provision for those backward classes who in the opinion of the State are not adequately represented in the service under the State.
• Article 16(4-A) empowers the state to make reservation in Promotions also for SCs, STs and

Article 335:

• The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in making the appointments to services and posts in connection with the affairs of the Union or of a State.

ARTICLE 330 and 332:

• Provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively

Article 243D:

• Provides reservation of seats for SCs and STs and not less than 1/3^rd for women in every Panchayat.

Article 243T:

• Provides reservation of seats for SCs and STs in every Municipality.

RESERVATIONS PROVIDED IN INDIA:

1. Parliament and State Legislatures:
   • Constitution provides for the reservation of seats for the Scheduled Castes (SC) and Scheduled Tribe (ST) in the Lok Sabha and State Legislative Assembly on the basis of population ratios. These reserved seats are elected by all voters in a constituency, without a separate electorate.
2. Local Self Govt:
   • Reservation for SC, ST and Women provided through 73rd and 74th Constitutional Amendment Acts
3. Govt Jobs and Educational institutions including Higher educational institutions:
   • SC, ST, non creamy layer among Other Backward Classes (OBC), Economically Weaker Sections (EWS)
4. Domicile reservation in Private Sector jobs:
   • Introduced by certain State Govts. Eg: Haryana introduced 75% reservation for locals
5. Religious or Denominational institutions:
   • Article 16(5) of the Constitution provides for the incumbent of an office in connection with the affairs of any religious or denominational institution shall be a person professing a particular religion or belonging to a particular denomination

JUDICIAL SCRUTINY OF RESERVATION:

1) State of Madras v. Smt.Champakam Dorairajan (1951)

• Smt. Champakam moved the Supreme Court and claimed she had been discriminated ONLY based on her birth (caste) in getting admission to a medical college. The Supreme Court acknowledged that while within the case of employment under the State, Article 16(4) provides for reservations in favour of a backward class of citizens, no such provision was made in Article 15.
• The case led to the 1st amendment to the Constitution through which the Parliament inserted Clause (4) exception to Article 15.

2) Indra Sawhney v. Union of India (1992)

• The 9 judge bench of the Supreme Court upheld the Mandal Commission’s 27 percent quota for backward classes, as well as the principle that the combined scheduled-caste, scheduled-tribe, and backward-class beneficiaries should not exceed 50 percent of India’s population.
• The court was of the view that economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16 of the Constitution. Hence, the court struck down the 10% reservation in government jobs for economically backward classes among the higher castes.
• The court ordered the exclusion of the Creamy layer among the other backward classes from enjoying reservation facilities.
• Court had held that the “test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression ‘backward class of citizens’”.

3)  M. Nagaraj v. Union of India, 2006

• While upholding the constitutional validity of Art 16(4A), SC stated that the state was not bound to provide reservation in promotions to SCs/STs.
• But in case any state wished to make such a provision, it was required to:
  • Collect quantifiable data on backwardness of the class
  • Prove that the community is inadequately represented in public employment
  • Does not hinder the overall efficiency of administration
• Also, even if the State has a compelling reason it will have to see that its reservation provision does not breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

4) Jarnail Singh vs Lachhmi Narain Gupta,2018

• The 5-judge bench of the Supreme Court held that reservation in promotions doesn’t require the state to gather quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes. Thus, SC modified the Nagaraj judgement of 2006.

ECONOMICALLY WEAKER SECTIONS (EWS):

• The 10% EWS quota in education and public employment was introduced under the 103rd Constitution (Amendment) Act, 2019.
• It inserted Article 15 (6) and Article 16 (6)
  • Article 15(6) enables the state to make special provisions for advancement of any economically weaker section of citizens, including reservations in private educational institutions.
  • Article 16(6) which enables the state to make provision for reservation in appointments, in addition to the existing reservations, subject to a maximum of ten percent.
• It enables both Centre and the states to provide reservation to the EWS of society.

Eligibility criteria:

• In November 2021, the Ministry of Social Justice and Empowerment had created a committee to revisit the criteria for determining the economically weaker sections:
• The committee’s 70-page report viewed that the threshold of Rs 8 lakh of annual family income, in the current situation, seems reasonable for determining EWS.
• Also, the committee has removed criteria that excluded some categories from EWS earlier:
  • Owners of residential properties of 1,000 sq ft and above
  • Residential plots of 100 sq yards and above in notified municipalities
  • Residential plots of 200 sq yards and above in areas other than the notified municipalities.
• However, irrespective of income, a person whose family has 5 acres of agricultural land and above is not eligible for EWS reservation.

SIGNIFICANCE OF EWS RESERVATION:

• Coverage:
  • Around 55 million households may benefit from the 10% reservation. It promote the welfare of the poor not covered by the 50% reservation policy for SCs,STs and OBCs.
• Inclusive growth:
  • Address the issues of income inequality in India as the economically weaker sections of citizens can get into higher educational institutions and Govt jobs.
• Removes the stigma around reservation:
  • Reservation has historically been associated with caste. By including upper castes under the sign of reservation, it dissociates caste and the stigma of reservation.
• Ease social tensions:
  • Help ease the agitations demanding reservations by dominant castes in states like Gujarat, Maharashtra and Rajasthan.
• Recognition of the Economic Backwards:
  • There are many people or classes other than backward classes who are living under hunger and poverty-stricken conditions. The reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.

CONS OF THE EWS

• Lack of Data:
  • There is unavailability of data regarding whether economically weaker sections among upper castes are not having adequate representation in Govt jobs and educational institutions. Neither any surveys have been conducted nor any scientific data is available on backwardness in the upper castes.
• Criteria is arbitrary:
  • Statistics show that the per capita income in states differs widely - Goa is the state having the highest per capita income of almost Rs. 4 lakhs whereas Bihar has Rs.40,000. Fixing a uniform criterion for all is arbitrary in nature.
• Jeopardize Article 14:
  • Running the policy vertically would jeopardize the right to equality under Article 14. An SC/ST/OBC poor would be restricted from claiming reservation under the EWS quota despite being both economically disadvantaged and socio-economically backward.
• Breach 50% cap:
  • The policy would breach the 50 per cent cap on reservation espoused by the Supreme Court in the Indira Sawhney case.
• Conflict with Basic Structure Doctrine:
  • SC in Indra Sawhney case had ruled that reservation is a remedy for historical discrimination and its continuing ill-effects and not aimed at economic upliftment or poverty alleviation. Economic backwardness is to be on account of social backwardness.
  • But the introduction of economic criterion could lead to the virtual deletion of Articles 15(4) and 16(4) from the Constitution which form part of the basic structure doctrine.
• Bypasses the constitutional qualifiers for reservation:
  • The Supreme Court through various verdicts highlighted that providing reservation must be done by demonstrating both “backwardness” and “inadequacy of representation”.
  • The qualifier of “backwardness” has been ostensibly addressed by the insertion of Article 16 (6). But “inadequacy of representation” has not been substantiated. It needs to be shown by way of demographic data that the EWS are not adequately represented in the services of the state.
• Undermines the idea behind reservation:
  • The reservation system was never meant to eradicate poverty. It was meant to eradicate social inequality.
  • Also, it is clear from the Constitution that reservation can be for a caste or a class. In fact, caste is a social class and cannot be for individuals; the latest move is made for the individual.
• Lacks alternative to employment opportunities:
  • Between 1990-91 & 2011-12, India’s public sector jobs actually decreased by 7% (from 19.06 million to 17.61 million) though our population increased by 30% to 1.2 billion.
• Conflict with fundamental rights:
  • The Rs 8 lakh-an-annum threshold is casting too wide a net, in a country where the per capita income is not even Rs 10,000-a-month.
  • The net effect of the policy would be to constitutionally equate a rural BPL-family barely rummaging two-square meals-a-day, with a semi-urban middle-class family earning Rs 66,000 per month, thereby questioning the principle of right to equality.
• Impact on Reservation for OBCs:
  • OBCs, who comprise 52% of total population, have been getting only 27 % in the central quota.
  • Now, SC/ST and OBCs are excluded from this EWS 10% reservation. With this new Amendment, their competitive pool could come down from about 77.5% (27% reserved and 50.5% general) to about 67.5% (27% reserved and 40.5% general)

CONCLUSION:

• From the judicial perspective: Several petitions have already been moved in the court questioning the validity of the act. However, only an 11-member bench can overrule Indra Sawhney. The validity of reservation on the basis of economic backwardness in the absence of social backwardness will depend on how the court rules on it.
• From the social perspective especially in times when the economy does not seem buoyant, when jobs are not being created at the requisite pace in the private sector and are shrinking in the government sector, a quota for upper castes will only deepen existing resentments and create new ones — while not serving its stated purpose.
• There are no substitutes for the problem of worsening of job quality and informalisation of the existing workforce. A better option other than reservation would have been a provision of good-quality free higher education to those who are unable to access it and creating an enabling environment for better-quality jobs in the private and public sector.
• There’s a need to rationalize quotas instead of expanding them further. However, this doesn’t mean that we change the very essence of reservations and make them about poverty alleviation. The latter has to be addressed through growing the economy and creating more jobs.

PRACTICE QUESTION:

Q. Discuss the salient features of the constitution that provides for reservations in India?