EWS Reservation & Court’s verdict

IN NEWS:

• By a 3:2 majority, the Supreme Court upheld the validity of the 103rd Constitution Amendment Act providing 10 per cent reservation to people belonging to Economically Weaker Sections (EWS).

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.

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:

• The EWS quota provides reservations to financially weaker persons in the general category.
• There are many criteria, the primary being that the person or his family's annual income is below Rs 8 lakh.
• However, a person whose family has 5 acres of agricultural land and above is not eligible for EWS reservation.
• Those with residential flat below 1,000 square feet, or residential plot below 100 square yards in notified municipalities and 200 square yards in other municipalities are also eligible for reservation under the EWS quota.

MAJORITY VERDICT ON EWS RESERVATION:

• Giving reservation only on economic grounds is not a violation of the basic structure of the Constitution and the right to equality.
• The 50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992 was “not inflexible”.
• State has the power to make special provisions for implementing reservation in private unaided institutions.
• Justice Dinesh Maheshwari said that poverty is an adequate marker of deprivation that the state can address through reservations.

DISSENTING JUDGEMENTS:

• Two judges dissented and observed that, while reservation on economic criteria is per se not violative of the Constitution, excluding SC/ST/OBC from the purview of EWS is violative of basic structure.
• Permitting a breach of 50% would result in compartmentalization, and the rule of the right to equality will become the right to reservations.
• An economic quota is justified for accessing public goods including subsidies (Article 15), it can’t be extended to reservation (Article 16), which seeks representation of the community.

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.
• Strengthens parliamentary democracy:
  • The Court’s verdict acknowledges Parliament’s power to create a new set of criteria and a new target for affirmative action.

CRITICISM OF EWS RESERVATION:

• Arbitrariness:
  • The Rs. 8 lakh figure did not correspond to any data on the estimated number of EWS persons in the population with incomes related to it.
  • There is no clear analysis on why 10 percent reservation is provided. If one uses Sinho report, those below the poverty line who belong to general category are just about 5.4 per cent of the country’s population.
  • EWS is a vertical reservation scheme based on economic weakness, a factor that could be applicable to all communities. Hence, excluding SC, ST and OBC may be considered arbitrary.
• Jeopardize Article 14:
  • An SC/ST/OBC poor is restricted from claiming reservation under the EWS quota despite being both economically disadvantaged and socio-economically backward.
  • The government defended the EWS income limit by saying that OBC creamy layer criteria can be used to determine who should come under the purview of this legislation. But by doing this, it is ignoring the social and educational backwardness of OBCs.
  • 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.
• Contradict the idea behind affirmative actions:
  • 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 contradicts this.
• 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 it has not been shown by way of demographic data that the EWS are not adequately represented in the services of the state.
• Segregation of Indian society:
  • It is feared that permitting the breach of 50% ceiling limit would become a gateway for further infractions and result in compartmentalisation.
• Impact on 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).
• 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.

CONCLUSION:

• 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?