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Supreme Court’s order on the EWS 10% quota: An observation


Now, anyone who does not fall under EWS criteria (SC, ST, OBC, or General) will now have 10% fewer jobs to target. If you were from SC category, earlier you had access to 65.50% seats, but now it is only 55.50%. The pool of ST shrank from 58% to 48%. And most importantly, the merit quota decreased from 50.50% earlier to 40.50%.

By Sanjenbam Jugeshwor Singh

The Government of India recently introduced Economically Weaker Sections (EWS) Reservation. 10% quota is provided for the EWS among General Category candidates in government jobs and educational institutions. And the Supreme Court on November 7 (Monday) upheld the validity of the 103rd Constitution amendment providing 10 percent reservation to Economically Weaker Sections (EWS) who sought admission to higher educational institutions and government jobs. Three out of five judges, who heard the petitions challenging the EWS reservation, upheld the EWS quota. The judgment was pronounced by a five-judge bench headed by Chief Justice U U Lalit. The other judges were Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala.While Justice Bella, Justice Pardiwala and Justice Maheswari passed the order in favour of the EWS quota, Justice Bhat and CJI U U Lalit dissented from it stating that the quota was discriminatory.

The EWS quota provides a 10 percent reservation to the economically weaker sections in higher educational institutions and government jobs. It does not include those under the Other Backward Class (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs).This means that it applies mainly to the upper caste or loosely said, the general category, who are financially weak. The EWS quota was recommended by a commission headed by Major General (retd) S R Sinho. The commission was formed in March 2005 when the UPA headed by former Prime Minister Manmohan Singh was in power. The report was submitted in 2010.

These are the requirements to apply for the EWS quota:

  1. You should be a ‘general’ candidate (not covered under reservation for SC, ST or OBC).
  2. Your family’s gross annual income should be below Rs. 8 lakhs. This includes income from all sources such as agriculture, salary, business, etc. for the financial year before you apply for the exam.
  3. Your family should not own agricultural land of size 5 acres or more.
  4. Your family should not own a residential flat of area 1000 square feet or more.
  5. Your family should not own a residential plot (in notified municipalities) of an area of 100 square yards or more.
  6. Your family should not own a residential plot (other than in notified municipalities) of an area of 200 square yards or more.

In 1992, the Supreme Court of India in Indra Swahey v Union of India upheld the Union Government’s order that caste is an indicator of backwardness. That is, the caste system has played a significant role in discriminating against various sections of society for many years. Thus the recommendation of 50% reservations for backward classes such as Dalits in central government services was finally implemented in 1992.The EWS judgment delivered on November 7 however dilutes the Indra Swahey judgment. Justice Maheshwari argued that the EWS quota does not affect the 50% reservation owing to its flexibility.

However, Justice Bhat who opposed the EWS quota said that it will result in compartmentalization, and the rule of the right to equality will translate into a right to reservations. It should be noted that state governments have time and again attempted to provide reservations to a ‘specific class’ (even those unaffected by caste hierarchy). This was however not entertained, thanks to the Indra Sawhney Judgement.

Justice Dinesh Maheshwari who delivered the order maintained that the EWS quota did not violate the basic structure of the Indian Constitution. “Reservation in addition to an existing reservation does not violate provisions of the Constitution,” he said. Concurring with Justice Maheshwari, Justice Bella Trivedi said the quota cannot be termed as discriminatory if the state can justify it. “Socially and Economically Backward Classes (SEBC) form separate categories. They can’t be treated at par with the unreserved categories. The benefit under EWS can’t be said to be discriminatory,” Justice Bella said. Echoing the two, Justice Pardiwala said reservation is not an end but a means to secure social justice. “The idea of Dr Ambedkar was to bring reservation for 10 years but it has continued. Reservation shouldn’t be allowed to become a vested interest,” he said.

Justice Ravindra Bhat said that the country’s majoritarian population comes under economically weaker sections belonging to SCs and OBCs. Their exclusion discriminates equality code and violates basic structure, he said. “Reservation is contrary to the essence of equal opportunity. The 103rd amendment practices prohibited forms of discrimination,” he said. He further observed that reservations were created to uproot thousands of years of wrongs on communities and castes “Reservations designed as a powerful tool to enable equal access. Introduction of economic criteria and excluding other backward classes, SC, ST, OBC, saying they had these pre-existing benefits is injustice,” he stated.CJI UU Lalit concurred with Justice Bhat and struck down Articles 15(6) and 16(6), calling them a violation of the equality code.

It is pertinent to note that the EWS quota is over and above the existing 50% reservation to SCs, STs, and Other Backward Classes (OBCs). While the petitioners argued that economic criteria cannot be the basis for classification, the then Attorney General KK Venugopal and Solicitor General Tushar Mehta vehemently defended the amendment. The CJI and Justice Bhat dissented with the majority view of Justices Maheshwari, Trivedi and Pardiwala. To begin with, Justice Maheshwari held that the Constitution Amendment cannot be said to breach the basic structure by providing reservation on economic criteria.

Referring to the 1992 Indra Sawhney vs. Union of India case, Justice Bhat added, “Permitting breach of 50 percent rule becomes a great way for further infractions which would result in compartmentalisation and then rule of the reservation will become right to equality and take us back to Champakam Dorairajan since equality was to be a temporary aspect”. The SC verdict in this case capped reservations at 50%. As CJI UU Lalit concurred with Justice Bhat’s views, the EWS quota was upheld by a 3:2 majority.

Are you thinking that the 10% Reservation for EWS won’t affect you? You are probably wrong. Irrespective of your category – General, OBC, SC, or ST – the new quota act (unless struck down by the Supreme Court of India), will change the seats-share accessible to you. Yes, that’s how reservation + merit work in India! The government had said that the reservation of EWS of general category will be given without tampering the existing reservation quotas for SC, ST and OBCs people. Well, that’s only half of the story. Even if your reservation quota is untouched, the merit quota can shrink! Obviously, it will. This is because the new reservation for EWS is carved out from the existing merit quota.

If you belong to general merit, you can compete only in 40.50% seats as 59.50 seats are reserved. If you are an ST, you can compete in 48% seats (7.5% reservation quota seats+ 40.5% merit seats).On the same lines, SC category candidates can compete in 55.5% seats (15% reservation quota seats+ 40.5% merit seats) while OBC category candidates can target 67.5% seats (27 % reservation quota seats+ 40.5% merit seats). Anyone who does not fall under EWS criteria (SC, ST, OBC, or General) will now have 10% fewer jobs to target. If you were from SC category, earlier you had access to 65.50% seats, but now it is only 55.50%.The pool of ST shrank from 58% to 48%. And most importantly, the merit quota decreased from 50.50% earlier to 40.50%.

(Writer can be reached at [email protected])


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