Decoding EWS quota and its implications

The announcement for the quota was made by the National Democratic Alliance (NDA) government in January 2019, months before the general election.

A five-judge bench of the Supreme Court on Monday upheld the validity of the 10% reservation for economically weaker sections (EWS) in government jobs and educational institutions in a 3-2 verdict, saying it did not violate the basic structure of the Constitution.

Parliament passed the 103rd Amendment of the Constitution in January 2019, allowing the government to institute the EWS quota. (Bloomberg)

Three judges -- justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala -- upheld the 103rd Constitution Amendment Act and said that it didn’t violate the basic structure of the Constitution. Two other judges -- Chief Justice of India UU Lalit and S Ravindra Bhat -- said that the insertion of the ”economic criteria” for affirmative action did not stray from constitutional principles, and therefore, didn’t alter, violate or destroy its basic structure. But they took exception with the exclusion of scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC) from the ambit of the quota, calling it “avowedly exclusionary and discriminatory”

Here is all that you need to know about the EWS quota:

How the reservation came about

The announcement for the quota was made by the National Democratic Alliance (NDA) government in January 2019, months before the general election. The government said 10% of seats in educational institutions and government jobs would be set aside for people from poorer sections, on the basis of their land holding, monthly income, or size of dwelling. The announcement fulfilled a long-pending demand to include economic status in India’s affirmative action structure, but critics argued that it was a way for political parties to appease upper caste and other dominant communities because the current mechanism of reservation only covered Dalits, tribespeople and backward groups. Moreover, the fact that

The announcement came months after sweeping protests by scheduled caste groups forced the government to effectively bypass a court-mandated dilution of some provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, meant to protect these sections of society.

What the law says

On January 12, 2019, Parliament passed the 103rd Amendment to the Constitution, allowing the government to institute the EWS quota by modifying Articles 15 and 16, from where the power to institute affirmative action for specific categories flows. It received an overwhelming majority in both Houses, especially in the Lok Sabha.

The law inserted a new clause in Article 15 (which bans prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) and 16 (which guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State). Both these important articles already had provisions that allowed the government to make special provisions (read quotas) for SCs, STs and socially and educationally backward classes (read OBCs) but the constitutional amendment added 15(6) and 16(6) that said nothing in the article or sub-clauses will prevent the State from making “any special provision for the advancement of any economically weaker sections of citizen”.

“For the purposes of this article (15) and article 16, economically weaker sections shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage,” read the gazette notification.

The law stated that to avail of the reservation, a candidate’s family income must be less than ₹8 lakh per annum, own less than 5 acres of land, have a flat of less than 1,000 square feet, a residential plot of less than 100 square yards in a notified municipal area or less than 200 square yards in a non-notified municipal area. Soon after, a number of state governments announced their intention to implement the EWS reservation in their respective jobs and educational institutions, though not all have done so.

The Centre told the Supreme Court that it was up to the state governments to take a call on implementing the quota. Most states follow the same set of criteria as mandated by the Centre, but some, such as Kerala, tweaked the eligibility conditions.

What the controversy is

The quota was an important moment in India’s socioeconomic history. For the first time since independence, the government moved away from awarding affirmative action solely on the basis of caste or tribe belonging, in other words, historical oppression.

Instead, in another first, quotas were opened to upper-caste communities (this is important given that many upper-caste groups hit the streets in violent protest when other backward classes quotas were first implemented in 1990 and then expanded in 2006).

But almost immediately, the decision was challenged. Some petitioners argued that the EWS quota violated the basic structure of the Constitution, which envisioned reservations as a mechanism to help socially disadvantaged groups such as scheduled caste and scheduled tribes, and not as an economic tool to alleviate poverty.

Others said the implementation of the quota breached the 50% quota cap instituted by the Supreme Court in its landmark Indira Sawhney judgment in 1992 because the current quantum of reservation stood at 49.5% (15% scheduled caste, 7.5% scheduled tribes, and 27% other backward classes).

The third strand of argument said that by effectively barring SCs, STs and OBCs from availing the quota – EWS quota can only be applied by people who are not covered under any other existing form of reservation – the law excluded the most disadvantaged groups from the benefits of reservations and turned the category into one dominated by upper castes. Most official surveys show that a large chunk of India’s poorest populations come from marginalised castes and tribes, a fact also referred to by the two dissenting judges.

Further controversy was created when the Madras high court, in a judgment last year, rejected the EWS reservation in all-India quota seats for medical education. Though the Supreme Court later set aside the verdict, it also questioned the ₹8 lakh an annum eligibility criterion and asked how the number was arrived at.

What the government said

The government rejected arguments that the EWS quota should be nixed because it exceeded the 50% quota cap. It said the court-mandated limit could be breached in exceptional circumstances. The government called the EWS quota necessary because the meaning of the word “backward” was strictly defined to mean socially and educationally backward, leaving the administration no choice but to legislate a new category of affirmative action.

It dismissed arguments that the quota was unfair to the existing categories of affirmative action, and would eat into either their share or the general category. The government said it had proportionally increased the number of seats or jobs in play, thereby ensuring that the total number of seats or jobs allocated to a particular group remained unchanged.

It said that the government had the right to bring in laws to help a disadvantaged group – in this case, EWS – that was not covered by existing benefits. “The EWS quota must be seen as a measure of a progressive state thinking about citizens struggling to afford one square meal a day. Since securing dignity is a constitutional mandate, this quota promotes and fulfils this ideal so that no individual goes hungry and dignity for those living in slums, who are jobless and suffering,” said the Centre.

The Centre argued that the government had the prerogative to work for the upliftment of poorer sections – as mandated in the preamble of the Constitution – and using an economic yardstick for reservation did not violate the Constitution’s basic structure. The Centre was supported by Madhya Pradesh, Assam and Andhra Pradesh in defending the law, but Tamil Nadu chose to oppose the quota.

What the judgment may imply

The majority judgment accepted that treating EWS as a separate class was a "reasonable classification” and could not be termed as unreasonable or unjust. One judge, justice Trivedi, said that putting a time limit on reservation could be a way forward to an egalitarian, casteless and classless society and another, justice Pardiwala, said that economic criteria may be perceived as a first step in the process of doing away with caste-based reservation.

Importantly, justice Maheshwari said previous observations by the top court on the desirability of 50% quota cap needed to be read in the context of the reservation obtaining under Articles 15(4), 15(5) and 16(4) and were not inflexible and inviolable for all times to come. This ruling -- that the quota cap applies only to reservation under Articles 15(4), 15(5) and 16(4) -- will definitely have an impact on future quota demands and whether certain groups (such as Marathas or Jats) can be awarded separate reservation or whether they would be lumped with EWS.

Moreover, since all judges appeared to concur on the legality of using economic criteria for awarding reservation, it also remains to be seen whether economic parameters take on a bigger role in shaping the affirmative action architecture.