Anti-EWS Quota Pleas

Context

Supreme Court refers pleas, challenging 10 per cent reservation for Economically Weaker Section (EWS) in jobs and in education to the five-judge bench.

Background

Petitioners which include several NGOs, individuals and lawyers have argued that the economic criteria alone cannot be the basis to determine backwardness and it is for the first time that by the impugned amendments in the Constitution itself violate the basic structure of the Constitution mainly on the ground that the existing provisions empower to provide affirmative action only in favour of socially backward classes.

The new clauses incorporated, enabling the State to provide affirmative action by way of reservation to the extent of 10 per cent in educational institutions and for appointment in services to EWS of the society.

The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019

The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 was introduced to provide for the advancement of “economically weaker sections” of citizens.

The Bill seeks to amend Article 15 to additionally permit the government to provide for the advancement of “economically weaker sections”. Further, up to 10% of seats may be reserved for such sections for admission in educational institutions. Such reservation will not apply to minority educational institutions.

The Bill seeks to amend Article 16 to permit the government to reserve up to 10% of all posts for the “economically weaker sections” of citizens.

The reservation of up to 10% for “economically weaker sections” in educational institutions and public employment will be in addition to the existing reservation.

The central government has classified the “economically weaker sections” of citizens on the basis of family income and other indicators of economic disadvantage.

Grounds of Challenge

The petitioners have also challenged the amendment on the grounds that it violates the Basic Structure of the Constitution. This argument stems from the fact that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103^rd Amendment departs from this by promising special protections on the sole basis of economic status.

Secondly, it violates the Supreme Court’s 1992 ruling in Indra Sawhney & Others v Union of India, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.

Another challenge has come on behalf of private, unaided educational institutions. They have argued that their fundamental right to practise a profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

Government’s Arguments in support of the Bill

The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment, raised, when a law is challenged, the burden of proving it unconstitutional lies on the petitioners.

Government further argued that under Article 46 of the Constitution, part of Directive Principles of State Policy (DPSP), it has a duty to protect the interests of economically weaker sections.

On the point of violation of Basic Structure, Government argued that to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered.

Countering the claims that the amendment violates the Indra Sawhney principle, the government raised 2008 ruling— Ashok Kumar Thakur v Union of India, in which the SC upheld the 27% quota for OBCs. The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors, to prove that there need not a sole criterion for according reservation.

For the unaided institutions, the government argued that the Constitution allows the Parliament to place “reasonable restrictions” on the right to carry on trade/professions.

Terms of reference framed by the Supreme Court

The Supreme Court agreed that the case involved at least three substantial questions of law, First, whether economic criteria alone cannot be the basis to determine backwardness, Second, the EWS quota exceeds the ceiling cap of 50% set by the court, Third, rights of unaided private educational institutions.

The Supreme Court said after hearing from both sides that these matters involve substantial questions of law, as such, they are required to be heard by a bench of five Judges in view of the provision under Article 145(3) of the Constitution of India and Order XXXVIII of the Supreme Court Rules, 2013.

Conclusion

Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections.

Connecting the Article

Question for Prelims

Article 46 of the Constitution of India, is related to

(a) Promote voluntary formation of Co-operative Societies.
(b) Promote economic and educational interest of weaker section.
(c) Make provisions for maternity relief.
(d) Secure living wages of workers.

Question for Mains

Discuss the major factors due to which the demand for reservation in all sections of the society is rising. Should the reservation completely scrapped? Give your opinion.