Why EWS reservation defeats the purpose of reservation

One of the major legal developments of 2022 was the Supreme Court upholding the EWS reservation scheme. EWS reservation is bluntly exclusionary and discriminatory, where groups bearing double subjugation – being poor as well as being from SCs/STs/OBCs – have been left out of the EWS reservation bracket.

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THE Parliament of India enacted the Constitution (One Hundred and Third Amendment) Act, 2019, which inserted Articles 15(6) and 16(6) in the Constitution, enabling the State to make reservations for Economically Weaker Sections ('EWS') in matters of higher education and public employment on the basis of economic criteria, alone.

Article 15(6) empowers the State to make up to 10 per cent reservation in higher education in both aided and unaided institutions (except for the ones covered under Article 30(1) of the Constitution), while Article 16(6) enables the State to make provisions for 10% reservation in public appointments. Both these provisions are based on economic criteria, alone, and thus exclude other categories such as the Scheduled Castes ('SCs'), Scheduled Tribes ('STs') and Other Backward Classes ('OBCs') from its ambit.

As a result, several petitions were filed before the Supreme Court, challenging the constitutional validity of the 103^rd Amendment Act. The arguments of the petitioners broadly highlighted that reservations cannot be based solely on economic criteria, and the ceiling of 50 per cent reservation should not be exceeded aswas articulated in the Supreme Court's judgment in Indra Sawhney versus Union of India (1992). In addition to this, the SCs/STs/OBCs cannot be excluded from the ambit of reservation and private unaided institutions cannot be sought to adopt reservation policies, the petitioners argued.

Rejecting the contentions of the petitioners, the Supreme Court in Janhit Abhiyan versus Union of India earlier this year upheld the constitutional validity of the 103^rd Amendment Act. Considered as another ADM Jabalpur moment, the judgement fell to heavy criticism, since it allows delinking of reservation from caste.

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

Supreme Court's stand in the recent reservation Debate: The logic behind reservation 

The five-judge Constitution bench in Janhit Abhiyan concluded that reservation made exclusively on economic criteria is valid and constitutional. Nevertheless, then Chief Justice U.U. Lalit and Justice S. Ravindra Bhat dissented from the majority view of Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala, and held that the Amendment must be struck down as it is discriminatory, because the EWS quota excludes the SC/ST/OBCs and is meant only for the upper or forward castes.

Justice Trivedi said that "we need to revisit the system of reservation in the larger interest of society as a whole, as a step forward towards transformative constitutionalism." On the other hand, Justice Pardiwala said that "reservation should not be allowed to become a vested interest… as larger percentages of backward class members attain acceptable standards of education and employment; they should be removed from the backward categories." 

On the question of whether reservation on the basis of economic criteria violated the basic structure of the Constitution, Justice Maheshwari said that reservation is an "instrument of affirmative action by the state" and need note remain confined to just the categorical classification of people who are devoid of advantages (SCs, STs, SEBs and non-creamy layer of OBCs); they need to include "any class or sections so disadvantaged as to answer the description of weaker section."

The issue here remains whether to define the "disadvantaged" in terms of prejudice and exclusion within the caste system, or in terms of social and economic characteristics that are independent of caste or, in certain situations, in addition to caste. India has always placed emphasis on the former and has thereby ruled out class, community and gender differences as factors of characterising an individual's backwardness in society.

Janhit Abhiyan has permitted reservations to exceed the 50 per cent threshold that was established by the Supreme Court in Indra Sawhney and reaffirmed in numerous subsequent rulings. Once the ceiling has been crossed for any reason, it can be crossed again and again, with political considerations being used instead of the social justice or public interest standards.

For instance, the breach of 50% ceiling will now empower other social groups like Marathas and Jats to accomplish their incomplete reservation stories. Before the EWS reservation, 49.5 per cent of seats in education and public appointments were reserved, with 15 per cent, 7.5 per cent and 27 per cent quotas for SCs, STs and OBCs, respectively. In the judgment, Justice Bhat responded that permitting the breach of 50% ceiling limit would become "a gateway for further infractions and result in compartmentalisation."

Thereby, Janhit Abhiyan has made a departure from the normative reservation scheme which was based on group identity and not individual identity like financial condition. Jurist Professor G. Mohan Gopal said, "Reservation is only a tool for representation and reservation is a dangerous tool if it is used beyond that. It should not be allowed to run loose in society because it will eat up the equality of opportunities."

Also read: Rethinking the Debate on Reservations

Caste-based discrimination in public employment or school admissions is often linked to a preferential treatment for the disadvantaged members of the majority group, but for a variety of reasons, caste segregation has mostly been a Hindu issue. Even though there are non-Hindus for instance in the OBC group, the reservation quota predominantly applies to individuals who are Hindus. The amendment thus represents the classic case of how the construct of equality now stands destroyed.

Reservation on the basis of economic disadvantage can only be justified if the provision or policy attempts to eliminate ingrained types of economic disadvantage that cannot be otherwise addressed by welfare measures. The current reservation dispute has resulted in casteist identities receiving more flavour, demonstrating the new path to India's fragmentation. However, current events have shown that targeted groups are growing larger, and the priority placed on reservations has revealed the disregard for escalating economic inequality.

Discussion over anti-discrimination laws: The Indian road 

Discrimination is defined through two forms: direct, which involves discriminatory treatment based on one's personal identity; and indirect, which involves equal application to everyone but puts one group at a relative disadvantage without any valid reason. Discrimination has always existed in societies, whether we have previously acknowledged it or not. The growing intellect of the human mind has allowed it to frame laws to prohibit discrimination. These classes may be formed based on a protected characteristic, inter alia sex, caste, religion, race. Historically, especially in the West, the argument has always been that affirmative action was needed as means to remedy past discrimination and to promote diversity in various institutions,

The law, as such, provides for introducing policies that are directed towards their welfare and upliftment, through affirmative action programs. The economic backwardness, however, is not a quantum to provide for affirmative action. This means, the people who are financially backward can claim welfare benefits like reservations, without having any traditional prerequisite of belonging to a marginalised caste or class.

Historically, reservations have been frequently utilised in employment and education to remedy irregularities brought on by past discriminatory practises. However, in India, reservations have continued to remain controversial due to the several interpretative meanings of what "backwardness" may mean, the problem which often leads to the ending of being challenged in courts.

Reservations for SCs, STs and OBCs have been constructed to correct historical injustices, and the constitutional interpretations have stated that caste discrimination is what the affirmative action policy is supposed to address. There is now the acute possibility of de-linking from the ascribed status of reservation from marginalisation as a new means for introducing more quotas on instances such as geographic remoteness, and in large the emergence of digital divide between the rural and the urban. This establishes a deviation from India's affirmative action policy of undoing the societal discrimination faced by castes and tribes historically.

French economist and writer Claude-Frédéric Bastiat noted that when dealing with economic exchanges, two effects were produced, one which is seen and the other which is not: "In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them." 

Taking into the theory of disparate impact, a judicial theory developed in the U.S., allowing challenges to the employment or educational practices regarded as non-discriminatory on the face but imposing a disproportionately negative effect on members of legally protected groups can likely be brought up in the present Indian reality. The only breakthrough of the interpretation would be slightly in a different form, such that there will most certainly be a negative effect on members of the society who do not come under the reserved category, the present blip on the constitutional radar has now illustrated the concerns that would facilitate questions about how the road for employment and education looks beyond the reserved.

Also read: The Supreme Court's judgment in EWS case is contrary to constitutional morality

The fault in the EWS argument

Socio-economic status may be a ground for affirmative action in Europe; for instance, an Equality & Rights Alliance report concluded that "[p]roviding [asymmetric] protection exclusively to persons in a disadvantaged socio-economic situation appears to be a necessary and reasonable limitation as persons enjoying a privileged socioeconomic status would rarely need specific protection against discrimination on this ground." However, in India, which is grappling with the evil of casteism at its core, reservation solely based on economic criteria may not be enough.

Although the majority judges in Janhit Abhiyan questioned whether it is desirable to keep the reservation in place, they have supported the extension of the reservation to a new group based on a new standard, even though this standard is individualistic and carries no social stigma. Thus, it has been argued that, "The EWS quota is unfair because it twists the idea of social justice by bequeathing further privilege to communities who are historically situated to benefit from the caste system."

The State retains the right to modify the categorisation of economic criteria, which is often based on family income and other economic statistics. The present reservations and the implementation of EWS reservations impose restrictions that very likely raise concerns about the effectiveness of the labour and employment market, and of educational institutions. This indicates that the legal and policy change introduced to upend social discrimination and injustice has in fact resulted in a violation of the constitutional principle of "Equality of Opportunity" itself to the category of people beyond the reserved (the general).

Moreover, the 10 per cent quota has been determined arbitrarily. The annual income threshold for EWS reservation is Rs. 8 lakh, which is unreasonable, as it takes away the opportunities of the real economically weak households, and wrongly mortifies "economically weak". This further shifts the opportunities from the people who have witnessed economic inequalities, especially during the pandemic period and now in the post-pandemic era. Notably, income tax is levied at an annual income level of Rs. 3 lakh, but as per the EWS scheme, families earning up to Rs. 8 lakh annually can be called "economically weak."

Also read: Centre's justification for Rs 8 lakh income limit for EWS reservation erases distinction between 'general' and 'OBC' categories, based on misleading claims

The fact that the Supreme Court allowed reservation of seats in private institutions is highly distractible. It does signify that the private institutes may seek extra pay from students in general, because of the bad procedure set up by the reservation scheme. For instance, the 25 per cent EWS reservation in private schools is compensated for by the state government through a reimbursement scheme under Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2005. This procedure is heavily problematic for the school owners since they do not get the reimbursements on time, and they necessarily have to face the bureaucratic hurdle.

Summing up 

The EWS scheme is bluntly exclusionary and discriminatory, where groups bearing double subjugation – being poor as well as being from SCs/STs/OBCs – have been left out of the EWS reservation bracket. To put that into perspective, a person belonging to a marginalised caste group who is also economically disadvantaged will not be able to avail the benefit of the EWS reservation, solely because of them not belonging to the so-called upper castes.

For two consecutive years, the cut-off marks in the Union Public Service Commission Civil Services Examination for the EWS category stood lower than that for OBCs. The current reservation policy in India will now ignore additional injustices and prejudices, not just against the other protected population categories, but also against other groups of people.