Authored by Sreeya Sengupta (Intern), a 3rd-year law student at the Institute of Law, Nirma University, Ahmedabad.
In Janhit Abhiyan v. UOI, the Supreme Court upheld the validity of the Constitution (103rd Amendment) Act 2019, which created a category of “Economically Weaker Sections”(EWS) to make special provisions in favour of them. The Amendment sets a cap of 10% reservations for the economically weaker sections of society for admission to Central Government-run educational institutions and private educational institutions (except for minority educational institutions) and for employment in Central Government jobs. The amendment also excludes the socially and economically backward classes (SEBCs) from benefiting from these special provisions within the EWS category. The challenge to the constitutionality of the Amendment is premised on three main grounds. Firstly, the making of special provisions including reservations on the sole basis of economic criteria is impermissible and offends the basic structure of the constitution. Secondly, the exclusion of the SEBCs from the benefit of these special provisions is grossly discriminatory, thus violating the basic structure. Finally, the 10% additional reservation directly breaches the 50% ceiling and results in an unacceptable violation of the equality code, which, again, destroys the basic structure of the Constitution.
Since the backdrop of the judgment, several scholars have critiqued the assessment concerning the economic criterion for reservations. S Chauhan has argued that the EWS verdict fails to uphold constitutional values intended to eradicate discrimination against SCs, STs, and other backward castes. Harish S Wankhede states that the government introduced the EWS quota to appeal to upper castes, which could undermine established social justice principles and disturb traditional political and constitutional standards. Kartik R. Karuppusamy writes that the policy defeats the purpose of social justice by making special provisions for historically privileged communities, undermining reservations' fundamental objective of addressing caste-based discrimination and exclusion. According to Professor M. P. Singh, the verdict should be reassessed based on established principles for the economic basis for reservations.
This piece aims to provide a critical assessment of the judgment of the Supreme Court which pronounced the constitutionality of the amendment. The article shall first look into the intended beneficiaries of Articles 15 and 16 of the Constitution. The author, then, shall critically assess the issues concerning the amendment following with a concluding note.
The Intended Beneficiaries of Articles 15 and 16
The first amendment to the Constitution 1951, was passed to overturn the Supreme Court’s ruling in the Champakam case. The Constitution was amended to include two new articles: Article 15(4) and Article 16(4). Under Article 15(4), the state was allowed to make specific provisions for the advancement of ‘socially and educationally backward classes’; whereas, under 16(4), privileges were also extended to ‘any backward class of citizens’. These provisions created the legal foundation for a more broad and all-encompassing reservation policy that took into account a range of variables contributing to social and educational backwardness, beyond caste-based considerations. The Mandal Commission was constituted by the President in 1978 and led by B. P. Mandal. It turned in its report in 1981.
The Commission conducted a thorough probe, and eleven backwardness criteria were categorised into three main areas: social, economic, and educational. Moreover, it was not thought that the three backwardness categories were equally significant. While economic factors were acknowledged as significant, they were given the least weight for determining backwardness. The judiciary through numerous cases attempted to evaluate the criterion of backwardness adopted by the State. In M. R. Balaji and Ors v. State of Mysore, the Court clarified the criteria for identifying backwardness under Article 15(4). The court further opined that the subclassification of backward classes into more backward classes and backward classes was unjustified and did not fall under the purview of Article 15(4). 90% of the State's population was classified as belonging to the backward classes since the State comprised all castes and communities whose average student population per thousand was either very close to, slightly above, or slightly below the State average. The court ruled that only localities that fell considerably below the average may be classified as backwards, finding that the State's standards were unreasonable and incompatible with Article 15(4). Thereafter, in T Devadasan v. UOI the "carry forward rule" was declared unconstitutional as the number of reserved positions in a single year had increased to more than 50%, however, in the case of State of Kerala v. N.M. Thomas, Justice Krishna Iyer stated that the propriety of reservations relies on the particular facts and circumstances of each case and that there is no set formula that should be followed in all situations. Although earlier decisions have indicated that reservations shouldn't go above 50%, Justice Iyer saw this as a recommendation rather than an absolute cap. He emphasized that the primary goal of this provision is to address inadequate representation. The Supreme Court of India ultimately established clear guidelines for interpreting the affirmative action clauses in the Indian Constitution with the ruling in the case of Indra Sawhney v. Union of India. Eleven indicators were presented by Justice B. Jeevan Reddy, which was divided into three subcategories: social (12 points), educational (6 points), and economic (4 points) in order to assess social and educational backwardness. Even though caste was acknowledged as a significant element in determining backwardness, it was believed that no class could be classified as backwards based just on economic criteria. The Supreme Court's rulings on the indices of backwardness have generally tended to treat the economic criteria as one component among several, not as the only one.
Critical Analysis
In K C Vasanth Kumar vs State of Karnataka, Justice Chinnappa Reddy opined that reservations are a tool to provide social parity, not charity. They aim to aid the socially and educationally backward classes to attain equality of status and opportunity. The development of reservation jurisprudence in India particularly in the context of EWS reservations has shifted the primary goal of reservations from achieving social parity to a charitable endeavour. Even in the Jarnail Singh case, the Supreme Court's approach reinforced the idea of charity by importing the concept of the creamy layer into SC/ST reservation jurisprudence rather than addressing structural inequalities. The recent shift in thinking undermines the original goal of caste-based reservations, which was to address the deep-rooted social and economic disparities within the society.
The Court in its majority ruling held that since reservations are 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. This implies that changes to the Constitution which would create unfair policies inside the reservation system would not be subject to challenge under the basic structure doctrine. This exclusion from the purview of the equality code undermines the very foundation of constitutional morality. Since equality is a core tenet of the Constitution, any restrictions or abridgements of it should only be permitted in accordance with our constitutional provisions.
Further, the amendment specifies the extent of reservations to be exactly 10% without any quantifiable data or rationale to justify the need or extent of these reservations. The Sinho Commission Report, 2010, which served as the foundation for the Amendment's enactment, claimed that economic factors would not produce a homogenous class. It is impossible to establish a class for whom preventive measures are to be implemented in the absence of quantitative data. Positive discrimination was intended to break the monopoly of particular classes and build an inclusive community. By granting a reservation to a segment of the population whose identity is largely individual-centric, the Amendment establishes an unending monopoly, particularly given that these classes have enjoyed and continue to enjoy influence over public jobs and resources.
The Apex Court in Indra Sawhney ruled that while there should always be a minimum 50% cap on employment, there are extremely rare and exceptional situations in which this percentage may be exceeded. Justice Jeevan Reddy provided for the exception in the following words below:
“While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”
On a surface reading, this implies that the 50% cap has only one exception which includes individuals in “far-flung and remote areas” who are “cut off from the mainstream of national life”. In Union of India v. Rakesh Kumar, the Court while dealing with reservation under Art 243, upheld this exception given that the area in question was a ‘scheduled area’. Now, the key question for the case at hand is whether the criteria of economic depravity can be considered under the ambit of the ‘far-flung’ and remote area’ exception. An argument can be made that economic deprivation is not exclusive to our nation but rather a universal problem and an inherent characteristic of a capitalistic society. The directive principles of state policy already address the principles of economic justice, and other additional initiatives, such as merit-cum-means scholarships, may be offered in an effort to achieve economic parity. However, by introducing temporal factors like family income, which are subject to change at any time, the state has undermined the very foundation of the equality code. Therefore, it is not possible to interpret economic deprivation as an exceptional circumstance innate to Indian diversity.
Concluding Note
The challenges to the 103rd Amendment were unsuccessful before the Supreme Court bench. However, the social impact of the implementation of the EWS reservation is yet to be seen. Even though the verdict purported to attain economic justice enshrined in the Constitution, I think that what it is attempting to accomplish and what it will ultimately accomplish are fundamentally contradictory. Both the government and the populace must guarantee that these policy measures are extensively deliberated and explored in all public forums. This will guarantee that the policy initiatives are valued more than just their face value. Additionally, it encourages people to get involved in the important decisions that affect their daily lives.