The Supreme Court’s judgment in EWS case is contrary to constitutional morality

The recent EWS quota judgment by the Supreme Court goes against the idea of social justice by way of affirmative policy for adequate representation. It has now transgressed into a general welfare scheme for forward caste groups.

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THE Supreme Court upheld the constitutional validity of the 103rd Constitutional amendment providing ten per cent reservation for the economically weaker section ('EWS') of citizens in education and employment in government institutions. A Constitution bench consisting of five-judges of the Supreme Court gave a 3:2 split verdict on the validity of the EWS quota last week.

Articles 15(4), 15(5), and 16(4) of the Constitution empower the State to make special provisions for the advancement of socially and educationally backward classes of citizens ('SEBCs'), and for the Scheduled Castes ('SCs') and the Scheduled Tribes ('STs'). Accordingly, SCs, STs and Other Backward Classes are given reservations in educational institutions and government jobs. Clause 6 in Article 15 and clause 6 in Article 16 have been inserted vide the Constitution (One Hundred and Third Amendment) Act, 2019 which enables special provisions to provide reservations to the EWS.

What was said about reservation in the Constituent Assembly?

In 1948, while discussing an article relating to equality of opportunity for all citizens as a fundamental right, the Constituent Assembly exchanged heated arguments on the floor. In the draft constitution, there was a special provision for the State for "making any reservation of appointments of posts in favor of any backward class of citizens" (Constituent Assembly Debates Vol-VII, November 30, 1948). Damodardas Swarup Seth and Loknath Misra, members of the Constituent Assembly, outright rejected any kind of reservations in appointments, and stressed that selection should be on the basis of merit and qualification of the candidates.

Other members like T.T. Krishnamachari, Ari Bahadur Gurung, Dharam Prakash, V.I. Muniswamy Pillai, T. Chenniah, and Mohammad Ismail Khan raised questions on the use of the term 'backward'. They said that it is vague and not properly defined in the draft constitution. Assembly members H.J. Khandekar, R. M. Nalavade and Prakash suggested that "Depressed classes" or "Scheduled Castes" should be used instead of "backward".

Chairman of the Drafting Committee, Dr. B.R. Ambedkar defended the provision in his response. "Then we have quite 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." He went on to say, "If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain."

Also read: Rethinking the Debate on Reservations

Purpose of reservation

Reservation policy was introduced by the makers of the Constitution to provide equal opportunity in education and employment to those communities who are far-flung, socially and educationally marginalised, and face historical caste-based oppression. The constitutional genesis of this affirmative policy was to address the historical injustice and safeguard the adequate representation of these disadvantaged groups. Kanimozhi, Member of Parliament, while speaking against the EWS reservation bill in the Rajya Sabha, has said, "The basic objective of reservation is to make sure that the historic wrong done to people in the name of religion and caste of this country has to be made right. It is not out of mercy, it is their right that they deserve. It is not economics. It is not that they were poor and that they were denied rights to education and a place in the governance. It is because they were born into a particular caste which some people thought were less than them, lower than them."

The recent EWS quota judgment by the Supreme Court goes against the idea of social justice by way of affirmative policy for adequate representation. It has now transgressed into a general welfare scheme for forward caste groups. Relying solely and exclusively on economic criteria to provide affirmative policy without considering social and educational backwardness is against constitutional morality.

EWS judgment in conflict with Maratha reservation judgment

Maratha reservation, which was provided by the Maharashtra government, was declared unconstitutional by a five-judge Constitution bench of the Supreme Court on May 5 last year. The Supreme Court, abiding by the precedent of the 50 per cent ceiling limit for reservations of all categories set in 1992 by a nine-judge Constitution bench of the court in Indra Sawhney versus Union of India which stated, "While 50% shall be the rule … some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out".

In the Maratha reservation judgment, the Supreme Court observed that the Maratha community is a socially advanced and prestigious caste and it does not carve out the case for exception or extra-ordinary situation since such "rule is confined to far flung and remote areas, where they are out of the mainstream of national life".

Also read: Maratha Reservation Verdict: Legally Right or Getting it Right?

In the EWS quota judgment, the Supreme Court observed "Moreover…this ceiling limit…has not been held to be inflexible and inviolable for all times to come." There is an inconsistency between these judgments on the issue of the 50 per cent ceiling limit. While in the Maratha reservation judgment, it was held by the Supreme Court that the 50 per cent ceiling limit is a strict rule except in extraordinary circumstances, the EWS quota judgment has considered this ceiling limit to be flexible.

The communities excluding SCs, STs and SEBCs, known as the 'general category' consisting of forward castes, do not fulfil the criteria of "people living in far flung and remote areas not being in mainstream of national life". In fact, forward castes are not only adequately represented, but also have been dominant in the judiciary, media, bureaucracy, and other spheres of public and social life.

The higher judiciary has always been dominated by judges belonging to the forward castes. Inadequate representation of marginalised castes in the higher judiciary has been a matter of concern for many legal scholars. Union Law Minister Kiren Rijiju recently made critical remarks on the opaque collegium system of appointments in the higher judiciary. He said, "The basic fault with the present collegium system is that the judges are recommending those colleagues whom they know. Obviously, they would not recommend a judge they do not know." This is also reflected in the fact that all five judges on the bench belong to forward castes. The lack of diversity here raises a question about the position from which the judges have deliberated and delivered this judgment.

Also read: Explainer: Ensuring social diversity in the appointment of judges

In the preface of his book 'Violent Modernities: Cultural Lives of Law in the New India' (2021), legal academic Oishik Sircar says "[T]hat law and violence share an antithetical relationship in modernity is a virtuous cliche." He writes, "That law carries the potential to be violent or unjust is not outside of the liberal imagination". The EWS reservation judgment is an example of it.

The EWS reservation quota, introduced by the Union Government supposedly for the betterment of the public, has reversed the intent of the affirmative policy. It is now a safeguard for the representation of those groups who are already dominant.