Regression from Constitutional duties – Critique of Justice Dinesh Maheshwari’s judgment

In the EWS judgment, the Supreme Court breached its duty to protect the basic structure of the Constitution and has served upper caste and executive interests.

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IN Janhit Abhiyan versus Union of India, the Supreme Court breached its duty to protect the basic structure of the Constitution and has served upper caste and executive interests by upholding the validity of the 103^rd Constitutional Amendment of 2019 that provides for reservation for Economically Weaker Sections ('EWS') from upper castes in higher education and public employment.

The equality code of the Constitution is made up of Articles 14–16. These articles are specifically in the interest of social transformation and to exemplify the transformative potential of Indian Constitutionalism. The spirit of the Constitution includes the need for social upliftment of the communities historically discriminated against by the society's dominant classes (mostly castes). The concept of distributive justice is imbibed in the contours of the equality code in the form of affirmative action (reservation) for socially and economically backward classes, and Scheduled Castes ('SCs') and Scheduled Tribes ('STs') in employment under Article 16(4) and in educational institutes, under Article 15(4).

The reservation provisions were made to undo historical injustice and grant representation in educational institutes and government jobs. In Indra Sawhney versus Union of India (1992), it was held that the equality code (consisting of reservation) formed the basic structure of the Constitution.

Also read: EWS quota is against the basic structure of the Constitution, counsel aver before the Supreme Court

Economic criteria as the sole indicator of backwardness

The development of law since the passing of the Constitution established that the provisions of reservation, under Articles 15(4) and 16(4) are not an exception to the provisions of Articles 15 (right against discrimination) and 16 (equality of opportunity) respectively, but rather an extension to them (through judgments such as M.R. Balaji versus State of Mysore (1962). This brought in a more substantive form of distributive justice within the ambit of our constitutional law.

Justice Dinesh Maheshwari acknowledges this and yet reverses the logic in the EWS judgment, noting that:

"However, it need be noticed that reservation, one of the permissible affirmative actions enabled by the Constitution of India, is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated; or whose modulation for a valid reason, including benefit of any section other than the sections who are already availing its benefit, may damage the basic structure." (Para 56)

Here, he notes that these provisions were merely enabling provisions and reduces the substantiveness of reservation provisions as an essential for equality.

In arguendo even if the court upholds the legitimacy of the reservation, it cannot and should not uphold the exclusion of SC and ST communities from being included in the consideration for EWS reservation. The minority opinion of then Chief Justice U.U. Lalit and Justice S. Ravindra Bhatt concurred with this view.

Also read: Significance of dissent in Supreme Court's judgment in the EWS case

The equality code primarily furthers substantive equality for socially discriminated communities. The exclusion of these groups goes directly against the spirit of the Constitution. Nowhere in the equality code is it mentioned that these groups could be excluded.

In Indra Sawhney, the Supreme Court held that reservations were made to undo historical injustice and not to alleviate poverty, and that by establishing the creamy layer, it aimed to place a limit on the educationally and socially backward classes who have reached a certain threshold, while leaving out the SCs and STs. In this case, it was held that despite SCs and STs gaining a nominal salary, they are still under-represented, and therefore they are exempted from the creamy layer.

In para 799 of the judgment, the court held the backwardness of a class (which is the requirement under Article 16(4)) could not be determined solely on the basis of economic criteria. It held that:

"[A] backward class cannot be determined only and exclusively with reference to economic criterion." It further held, "Reservation of 10% of the vacancies among open competition candidates on the basis of income/property holding means exclusion of those above the demarcating line from those 10% seats. The question is whether this is constitutionally permissible? We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property holding. Since the employment under the State is really conceived to serve the people (that it may also be source of livelihood is secondary) no such bar can be created, Any such bar would be inconsistent with the guarantee of equal opportunity held out by clause (1) of Article 16." (para 845)

The 103^rd constitutional amendment brought into the fore of constitutional law, an economic criterion for reservation. Under the newly introduced Articles 15(6) and 16(6), the Parliament introduced ten per cent reservation in public employment and education for EWSs. This seems to flip the whole rationale of reservation and bring to the fore a non-social, non-regional criterion for reservation, while also breaching the law established in Indra Sawhney.

Under this newly formed reservation criteria, anyone who falls beneath the economic threshold can claim the benefits; however, SCs and STs are excluded from consideration under this provision. In no manner can it be said that a person having, among other things, a family income of less than eight lakh rupees is inadequately represented in educational institutions or government jobs. This reduces the historical justification of reservations and places it into the realm of poverty alleviation and economic upliftment.

Also read: Data suggests that EWS reservation scheme is unsubstantiated and baseless

The opinion by Justice Dinesh Maheshwari in Para 74 equates distributive justice to the removal of economic inequalities.

"… [It is] clear that the mandate of the Constitution to the State is to administer distributive justice; and in the law-making process, the concept of distributive justice connotes, inter alia, the removal of economic inequalities. In other words, the wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income as also providing adequate means of livelihood to the citizens. In this commitment, leaving one class of citizens to struggle because of inequalities in income and want of adequate means of livelihood may not serve the ultimate goal of securing all-inclusive socio-economic justice." (Para 74)

Reservation provisions have been consistently struck down when they weren't based on backwardness, and were solely based on a single criterion like caste or, in this case, income. The court incorrectly identifies that economic backwardness can be purposively interpreted under Article 46 of the Constitution as a group that requires representation. Interestingly enough, all five judges agreed that economic criteria could be the sole basis for reservation and upheld that it did not violate the basic structure of the Constitution.

Article 38 of the Constitution establishes that the State shall strive for economic justice. Justice Maheshwari, throughout his judgment, outstretches the importance of this directive principle and seems to value it so highly that he draws authority from it to place economic justice alongside social justice. However, he is wrong here as a fundamental right(s) made for the purpose of social transformation, which has seen historic deliberation throughout the Constitution's existence and was discussed threadbare in the Constituent Assembly, has higher importance than a directive principle.

Breach of the 50% ceiling of reservation

By upholding the validity of EWS reservation, the Supreme Court is allowing for the breach of the 50 per cent limit established in M.R. Balaji. Here, Justice Maheshwari, while noting down the evolution of the ceiling and acknowledging that it is desirable, breaches it by saying

"But, as observed hereinbefore, all such observations are required to be read essentially in the context of the reservation obtaining under Articles 15(4), 15(5) and 16(4) or other areas of affirmative action like that in relation to local self- government and cannot be overstretched to the reservation provided for entirely different class, consisting of the economically weaker sections." (Para 93)

While justifying this breach, he erroneously ignores reservation by affirmative action as an essential feature of the Constitution (Para 94) and gives economic justice more importance than it requires.

His arguments can easily be overturned if one considers Dr. B.R. Ambedkar's views on the limit for the reservation, which were relied on by Indra Sawhney to uphold the 50 per cent limit.

"Then we have a massive opinion which insists that, although theoretically, it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula that would reconcile these three points of view, firstly that there shall be equality of opportunity, secondly that there shall be reservations in favor of certain communities which have not so far had a 'proper look-in' so to say into the administration … Supposing for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is we shall be completely destroying the first proposition upon which we are all agreed, namely that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70% of the total posts under the State, and only 30% are retained as unreserved. Could anybody say that the reservation of 30% as open to the general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment Therefore, the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10 must be confined to a minority of seats."

Even if we consider reservation based on economic justice to be valid, going by Dr. Ambedkar's logic, the total percentage of reserved seats must be confined to a minority of seats.

Also read: Centre justifies in SC limit of Rs 8 lakh annual income fixed for determining EWS category for reservation in NEET

As Justice Ravindra Bhatt observed: "This Court has for the first time, in seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle." His dissenting opinion supports the transformative vision of the Constitution, while Justice Maheshwari's judgment reinstates hierarchies through a constitutionally mandated form of upper-class reservation.