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New Delhi: In a 3:2 decision, the Supreme Court on Monday (November 7) upheld the constitutionality of the Union government’s 2019 decision to reserve 10% seats in government jobs and educational institutions for ‘economically weaker sections’ (EWS) from among the upper castes. Newspaper editorials in all English-language dailies discussed this prominent decision on Tuesday, questioning the exclusion involved in the new reservation.
Two judges on the five-judge bench – Justice S. Ravindra Bhat and Chief Justice U.U. Lalit – dissented from the majority view. In their opinion, the amendment’s exclusions violated the Constitution’s equality code. The other three judges – Justice Dinesh Maheshwari, Justice J.B. Pardiwala and Justice Bela M. Trivedi – upheld the decision’s constitutional validity.
‘Consider opening EWS quota for all’
In its editorial, The Hindu explained that given the strong political backing for the amendment, it would have been difficult for the Supreme Court to strike it down lightly. However, the income criteria that has now been deemed constitutional validity excludes a large segment (since it is only for upper castes), and the editorial says this is a problem:
“The majority acknowledges Parliament’s power to create a new set of criteria and a new target for affirmative action. Their opinions whole-heartedly endorse the exclusion of communities that benefit from existing reservation norms, contending that such exclusion is necessary to achieve the intended object of emancipating economically weaker sections and, if they are included, it may undermine the entire idea of providing such reservation. This approach is clearly flawed because this creates a vertical reservation scheme based on economic weakness, a factor that could be applicable to all communities, but consciously excludes a large segment. There was some merit in the argument that reservation cannot be used as a poverty alleviation measure, and that a collective remedy meant to be compensatory discrimination in favour of historically deprived classes cannot be converted into a scheme to identify individuals based on their low-income levels and confer the same benefit. The existing income criterion of ₹8 lakh a year has already been questioned by the Court in a separate case, as it is liable to result in excessive coverage of socially advanced classes. When those exempted from filing I-T returns are only those with taxable income below ₹2.5 lakh, it makes no sense to extend the reservation benefits to sections earning upto ₹8 lakh. Also, the majority view that the 50% ceiling is applicable only to caste-based quotas and not for EWS reservation is constitutionally unsustainable, as it is a vertical compartment that is carved out of the open competition segment.”
The editorial speaks at length about why the decision to exclude marginalised caste groups from the EWS quota is a problem:
“By introducing an income criterion and barring OBCs, besides SC/ST communities, from the EWS silo, there is a clear violation of equality in their eligibility to avail of a part of the open competition opportunities. The Government should consider both opening up the EWS quota to all communities and keeping the income criterion much lower than the ceiling, perhaps at the same level as the income tax slab, to identify the ‘creamy layer’ so that some poorer sections of communities, if they are crowded out on the OBC or SC/ST merit list, could still avail of some residual benefits under the EWS scheme.”
‘Political nature of the law’
Business Standard too agrees with the two judges’ dissenting opinion that by excluding all but upper castes from the EWS quota, “the amendment practises “constitutionally prohibited principles of discrimination””.
In addition, the editorial continues, “ critics have pointed to the political nature of the law, accusing the ruling party of leveraging it to shore up its traditional upper-caste base“. While it is true that Muslims may also gain in reality, the editorial believes that “ it is difficult to escape the notion that political considerations have dictated this amendment, which is usually the case in such issues“.
The editorial also argues that this reservation policy may not be the best way to try and better the condition of economically weaker sections: “… it is unclear how far the state can fulfil its obligations to the families falling within the EWS when more jobs are created in the private sector. Therefore, policies that focus on expanding employment would work better for the EWS rather than the promise of jobs that are fairly limited. The government also needs to work on improving the quality of educational institutions in general, which will limit the demand for reservations to get into the chosen few.”
The newspaper also points to the danger of this leading to clamour from different caste groups demanding reservations. “In an economy like India’s, this trend is likely to aggravate social tensions, which is the last thing India needs at this point.”
‘Leaves some discomfort’
While it is heartening to accept this decision as pro-poor, The Telegraph has noted in its editorial, it is impossible to ignore that the exclusions “leave some discomfort”.
“The quota is declaredly not for those who come under other reservations umbrellas; the poor among SC/ST and OBC groups are excluded. The Constitution is against discrimination and in favour of equality. But the Supreme Court dismissed the petitioners’ objections on this score since the Constitution’s basic structure is not hurt by the EWS quota. Obviously, then, representation — rather, the lack of it — is not the basis of reservations, neither, necessarily, is educational and social backwardness caused by historical injustice.”
‘Attempt to fashion a new welfare architecture’
The Indian Express editorial did not focus as much on the exclusions, and instead talked about the Narendra Modi government’s attempt to reconfigure India’s affirmative action policy by reading caste alongside class. At the same time, the editorial said that it was important for the government to take seriously the concerns raised by the dissenting opinion in the Supreme Court and marginalised caste groups.
The EWS quota “has imbibed the spirit of creamy layer, formulated by the apex court in Indra Sawhney (1992) to exclude the economically better-off OBC candidates from the ambit of reservation, to explore differentiated quotas for the OBCs as well as religious minorities. The Justice G Rohini commission on OBC subcategorisation, the move to look at the conditions of Pasmanda Muslims, the panel to look into quotas for Dalit Christians, all recently constituted, are premised on the principle that economic well-being has to be considered in policy deliberations on discrimination. This shift in approach towards social inclusion and welfare, even without diluting the existing reservation for SCs, STs and OBCs, may lead to a reconfiguration of political allegiances,” the editorial notes.
If discrimination and inequality of opportunity are to be seriously addressed, the newspaper continues, “expanding the economic pie remains the principal imperative. That will need heavy lifting, social, economic and political, and could, three decades after Mandal, reshape the politics of affirmative action towards being much more inclusive.”
‘Economic criteria for reservations welcome’
The Times of India editorial has welcomed the Supreme Court’s decision to allow economic criteria to determine reservations in India. However, the newspaper believes that the strong disagreements between the majority and minority judges’ views on whether or not the 50% cap on quotas can be breached when it comes to EWS will lead to further questions in the future.
“Justice Maheshwari, in his majority verdict, highlighted that the 50% cap is applicable for backward classes, SCs and STs. But it is not certain that the interpretation of the majority in the constitution bench will necessarily guide all subsequent attempts at getting new quotas. Plus, many socially dominant groups aren’t satisfied with a 10% “general category” quota. So, it’s likely that as various interest groups parse the words of the judges, the EWS ruling won’t be the final word.”
Times of India too noted that the decision to restrict the EWS quota to upper castes was a political one: “The exclusion of OBCs, SCs and STs from the EWS quota was politically deemed necessary because GoI had sensed considerable heartburn among unreserved groups.”
The editorial also makes another important point: that for a reservation like this to be truly effective, data-gathering on a large and serious scale will be required. “To truly benefit the poor, deprivation needs quantification via extensive government surveys. But such empirical exercises no longer find official favour,” it concludes.
‘May open demands for fresh quotas’
The Hindustan Times, while remembering other watershed moments in India’s reservation policy, notes in its editorial that Monday’s decision will go down in history for three major reasons:
“One, by saying that the 50% cap for quotas in public jobs and education was desirable but not inflexible or inviolable (and holding that the context of whether it was obtained under Articles 15(4), 15(5) or 16(4) of the Constitution is important), the verdict may open the door for further movement around fresh quota demands. Given economic distress and shrinking government employment, it is almost certain that more communities will clamour for quotas in the future. Two, for the first time, an economic yardstick will be the sole criteria to determine eligibility for an affirmative action programme. This breaks from precedents and past definitions of backwardness that always pivoted on socioeconomic conditions and histories of oppression. Given that surveys show large sections of India’s population back income-based quotas, it remains to be seen how economic parameters shape the reservation mechanism in the years to come. And three, with the EWS quota in place, an overwhelming majority of the country is now eligible for one form or other of reservation. It will be interesting to see whether this expansion changes the politics around reservation, especially the vocal opposition of upper caste groups and the now debunked link between quotas and merit.”