This article is written by Dev Bansal, a student of Lovely Professional University.
Table of Contents
Identification of Problem
The Hemant Soren-led government in Jharkhand on Friday passed an amendment to raise the reservation for SCs, STs and OBCs in State government positions. Without directly referring to the Indra Sawhney judgment of 1993, the Bill passed in Jharkhand Assembly noted that the 50% ceiling set out in the judgment never explicitly prohibited the breaching of the limit.
The Chhattisgarh Government is fighting to raise reservations for OBCs to 32%, which will take total reservations in the State to 58%. After the Chhattisgarh High Court struck down the 2012 legislation, the Bhupesh Baghel-led Congress government this year went to the Supreme Court challenging this decision, in the hopes that they will be allowed to breach the 50% limit as well.
The recommendation was to amend the Ninth Schedule of the Constitution accordingly, and this option was mulled upon by the Karnataka Government as well.
Objective of Study
To understand the new EWS Quota and the reservation percentage as set forward by the hon’ble Supreme Court.
The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16. It inserted Article 15(6) and Article 16(6). It is for economic reservation in jobs and admissions in education institutes for Economically Weaker Sections (EWS).
It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally Backward Classes (SEBC). It enables both Centre and the states to provide reservation to the EWS of society.
The 10% quota is progressive and could address the issues of educational and income inequality in India since the economically weaker sections of citizens have remained excluded from attending higher educational institutions and public employment due to their financial incapacity.
The Social Reality
It is a fact that there are poor individuals even among the Socially Advanced Castes (SACs), i.e., the non-Scheduled Castes (SCs), non-Scheduled Tribes (STs) and non-Socially and Educationally Backward Castes (SEDBCs). They too do need help. The issue is what is the specific problem they face, and what is the appropriate Constitutionally sustainable solution for it.
Difference between the Socially Excluded and Deprived and the Poor among the Socially Advanced Castes: Observations of the Supreme Court in Mandal judgment
Reservation was envisaged only for those belonging to these three social classes. This was part of the national and Constitutional mission to eliminate the gross social inequalities created by the Indian caste system over the centuries, of which the worst victims were the SCs and STs and, though to a lesser extent, the SEDBCs. These inequalities and injustices are not merely a matter of the past, as certain media persons say. They continue to be with us at present, though in a quantitatively reduced form, and threaten to continue with us into the future for failure to address this issue comprehensively at its roots.
The deprivations and backwardness of these three classes is different from the poverty suffered by individuals of the forward castes. These individuals belong to castes which were not interdicted or prohibited or prevented in any manner from access to education and from entry into services under the State.
The majority judgment in the Mandal case per Justice Jeevan Reddy held that “a backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion…”
Justice Sawant, in his separate concurring judgment, held that economic backwardness of the poor among higher castes is not on account of social backwardness. He also held that the educational backwardness of some of the upper castes on account of poverty can be remedied by economic props alone, which may enable them to gain equal capacity to compete with others.
A quota for the Economically Poor of the Socially Advanced Castes is not a New Idea
During the debate after his decision to institute reservation for the SEDBCs in 1990, V P Singh, in a conciliatory gesture, offered, if the Opposition agreed, to bring a Constitutional amendment to enable provision of 5% or 10% reservation for individuals who are economically poor, without reference to and irrespective of caste. This conciliatory gesture received scant attention from the Opposition, which was bent upon opposing reservation for SEDBCs.
Subsequently, the P V Narasimha Rao government, by its O.M. dated 25.9.1991, made an addition to the V P Singh government’s O.M. of 13.8.1990, to provide reservation of “10% of the vacancies in civil posts and services under the Government of India” for “other economically backward sections of the people who are not covered by any of the existing schemes of reservations”. This particular provision was struck down by the Supreme Court in its landmark Mandal case judgment on the ground that the Constitution does not provide for reservation for any individual on economic basis alone or on the basis of poverty alone.
This is apart from the provision by certain state governments from time to time for reservation for the poor among the non-SC, non-ST, and non-SEDBC castes, which on challenge were struck down by the High Courts or the Supreme Court.
Possible Effect of the Proposed Constitutional Amendment
Unlike the Narasimha Rao government, the present Cabinet seems to have decided to introduce Constitutional amendments in Articles 16 and 15 to facilitate the provision of 10% reservation for the “economic backward”. The question is whether such an amendment will be constitutionally sustainable.
The relevant Constitutional provisions stand on two legs, which are mutually supportive. On the one hand, there is the principle of Equality, which prohibits the State from discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15(1), and guarantees “equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” under Article 16(1), in addition to prohibition against discrimination against any citizen on the same grounds as in Article 15(1), specifically with respect to employment or appointment under the State.
The other leg is the special provisions, which under Article 15(4) empowers the State to “make any provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”, and under Article 16(4) provides “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”.
The term “backward class of citizens” has been generally understood, and also defined by the Supreme Court in the Mandal case (Indra Sawhney vs Union of India, 1992) judgment, to include the SCs, STs, and SEDBCs. These are not exceptions, but special provisions to ensure that the principle of Equality enshrined in Articles 14, 15(1) and 16(1) becomes really effective, in the peculiar inherited Indian context of a society riddled by gross inequalities between social classes.
During the hearing on the challenge to the constitutional validity of reservation for Economically Weaker Sections (EWS) on September 22, Chief Justice of India U U Lalit said: “When it is about other reservations, it is attached to lineage. That backwardness is not something which is not temporary but goes down centuries and generations. But economic backwardness can be temporary.”
A quota for the economically backward has long been demanded and debated. In January 2019, after the Union Cabinet cleared the 10 per cent quota for EWS, P S Krishnan, one of the most eminent authorities on the subject explained for The Indian Express the constitutional and social basis for reservations. Krishnan passed away in November 2019.
The decision of the Union Cabinet to provide reservation of 10% for “economically weaker sections of the people who are not covered by any of the existing schemes of reservation” and to bring in amendments to Articles 15 and 16 of the Constitution for this purpose has to be examined from the point of view of social realities and Constitutional provisions.
The recent judgment has broken all the shackles and widened the scope for the interpretation of the constitution thereby upholding the 10% reservation for the EWS Quota. The world is progressing and the social and economic norms are changing with time. Flexibility is important in order to inculcate provisions with changing times and open a wide array of opportunities to all the different stratas of the society. With this judgment in Jan hit Abhiyan v. Union of India, the Supreme Court of India has moved a little beyond its thus overturning all the ceiling limit and providing for a flexible interpretation thus stating 10% in addition to the existing reservations does not result in violation of any essential feature of the Constitution 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%. It will be interesting, however, to see the reactions of the citizens and this judgment to be a benchmark for future endeavors.
 This clause enables State to make special provisions for advancement of any economically weaker section of citizens, including reservations in educational institutions.
 he proposed Article 16 (6) enables State to make provision for reservation in appointments, in addition to the existing reservations, subject to a maximum of 10%.
Article 338 of the constitution of India deals with this commission: It provides for a National Commission for the Scheduled Castes and Scheduled Tribes with duties to investigate and monitor all matters relating to safeguards provided for them, to inquire into specific complaints and to participate and advise on the planning process of their socio-economic development etc.
As per Census-1931, Schedule tribes are termed as “backward tribes” living in the “Excluded” and “Partially Excluded” areas. The Government of India Act of 1935 called for the first time for representatives of “backward tribes” in provincial assemblies.
Headed by Justice (Retd.) G Rohini, the commission was constituted under Article 340 of the Constitution with the approval of the President on 2nd October 2017. Article 340 deals with the appointment of a commission to investigate the conditions of backward classes.