January 5, 2023

EWS AMENDMENT JUDGMENT: THE UNENDING CLOSURE ON RESERVATION

Written By: Siddharth Acharya

Introduction

On 12th January, 2019, the Constitution (One Hundred and Third Amendment) Act, 2019[1] (hereinafter referred to as the ‘Amendment Act’) enacted by the Union Legislature received the Presidential assent, thereby making amendments to Articles 15 and 16, under PART III of the Constitution of India. The amendments brought in a provision for the reservation of the economically weaker sections (hereinafter referred to as ‘EWS’) in the Indian society. The Amendment Act came into effect on 14.01.2019. It is an opinion of a set of critics that such an amendment to the Constitution was brought by the ruling Bharatiya Janata Party as an economic gift given to the citizens right before the 2019 Lok Sabha general elections. However, this baseless and accusatory criticism has been crushed by a majority ruling of the Hon’ble Supreme Court in the case of Janhit Abhiyan versus Union of India[2] which has been elaborately dealt with in this article.

Where on one hand, Article 15(1) and 15(2) of the Constitution of India warrant general protection to the citizens and prohibits the State to discriminate the citizens of India on grounds only of religion, race, caste, sex or place of birth, Article 15(3), 15(4) and 15(5) on the other hand make special provisions for reservation of women and children and the socially and economically backward classes (SEBCs) existing in the Indian society. On similar lines, Article 16(1) and 16(2) provide for equal opportunity for all citizens in public employment. Articles 16(4), 16(4A), 16(4B) and 16(5) provide for reservation of the backward classes in public employment.

By means of the Amendment Act, Article 15(6) and 16(6) were incorporated in the Constitution which provided for reservation of the economically backward class of citizens for admission into educational institutions and for public employment, subject to a cap of 10%.

The opponents of this legislation, who found the Amendment Act discriminatory on various grounds, filed various writ petitions under Article 32 of the Constitution before the Supreme Court of India. These writ petitions were clubbed together and a common order in Writ Petition (Civil) No. 55 of 2019[3] was pronounced on 07.11.2022 by a Five-Judge Constitutional Bench of the Apex Court in a 3:2 split ratio.

The findings of Hon’ble Justice Dinesh Maheshwari, Hon’ble Justice Bela M. Trivedi and Hon’ble Justice J. B. Pardiwala were to the effect that the Amendment Act was not violative of the basic structure of the Constitution of India. However, the minority/ dissenting Judgment passed by Hon’ble Chief Justice of India U. U. Lalit and Hon’ble Justice Ravinder Bhat was to the effect that The Amendment Act was violative of the Fundamental Rights under Part III of the Constitution of India and therefore, is liable to be declared as unconstitutional.

Primary Issues before the Court

The Five-Judge Bench after hearing the petitioners as well as the respondents in the present case have noticed the following issues which warrant determination:

  1. As to whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?[4]
  2. As to whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically weaker sections violates the Equality Code and thereby, the basic structure doctrine?[5]
  3. As to whether reservation for economically weaker sections of citizens up to ten per-cent in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty per cent?[6]

In addition to the above, the Court has also dealt with other supplementary issues arising from the above-mentioned three issues which do not form a part of this article.

Contentions raised by the Petitioners 

(a)     The Constitution (One Hundred and Third Amendment) Act, 2019 is violative of the 50% reservation cap. 

The counsels for the petitioners have submitted that providing for a 10% reservation ‘in addition to existing reservation’ under articles 15 and 16 would be violative of the precedent laid down in the case of Indra Sawhney, which has been upheld by the Supreme Court and various High Courts over decades in numerous judgments. Further, that the cap of 50% cannot be breached under any circumstance unless if a law is protected under the 9th Schedule of the Constitution.[7]

(b)     The reservation policy was introduced into the Constitution for bringing in an egalitarian society.

The counsels for the petitioners contended that the very purpose behind empowering the State with making reservations for the marginalised class of persons was to ultimately do away with a society wherein certain classes of persons are socially as well as educationally backward. It was submitted that the reservation provisions were made to “address these historical inequalities that, as a vehicle of positive discrimination, the socially oppressed sections were provided reservations and special provisions so as to give them a voice in administration, access to resources such as education and public employment.”[8]

In support of the same it was submitted that the Amendment Act was violative of the basic structure of the Constitution as it sought to include those persons who were never socially and educationally backward, and therefore such amendment plays a fraud on the Constitution itself (reliance placed on M. R. Balaji case[9]).

(c)      Economic criteria cannot be the sole ground for reservation.

The Counsels for the Petitioners have placed reliance on various landmark judgments to contend that while passing the Amendment Act, the Legislature has erred in considering ‘socially or educationally backward’ as a ground for providing reservation as against ‘socially and economically backward’. In support of the same, reliance was placed on M. R. Balaji case and Indra Sawhney[10].

It was further submitted that the idea behind reservations as envisaged under Article 15 and 16 was to make an adequate representation of the caste of people who were not adequately represented. However, the present amendment has failed to consider the aspect of ‘representation’ of the EWS which is evident from the fact that the EWS provides reservation for those people who have already been adequately represented in the society.

(d)     The amendment in question aims to reward ‘poor financial behaviors’

The learned counsels for the petitioners also contended that the amendment in question does not really serve a purpose in improving the drastic economic condition of India. Rather, this amendment is individualistic in its approach and nature which only aims to make provisions for those individuals who are economically weak. That such financial weakness/ backwardness which would be a ground for reservation was not based on a class, rather was dependent from person to person, and is therefore violative of Article 14 of the Constitution which allows for reservation for a ‘class’ of people who are at equal footing. Thus, the Amendment Act is violative of the basic structure of the Constitution of India.

Contentions Raised by the Respondents

The respondents in the present case presented their contentions to support the fact that the Amendment Act does not violate the basic structure of the Constitution, rather fosters it.

(a)     10% reservation would not affect the 50% limit set for the SEBC.

In support of the above contention, the Attorney General contended that the rights of the SEBC, SC and ST are not at all affected as they are already enjoying the perks of reservation in all sectors such as education, public services, legislature, and so on. Hence, the rights of a class of group that has already been provided reservation cannot be said to be violated and that such reservation for the economically weaker section cannot be said to be violative of the Equality Code. It was further contended that the 10% reservation is in addition to the already existing reservation for the SEBCs.

(b)     There is no violation of the basic structure by the Amendment Act.

 In support of its contention that the Amendment Act does not violate the basic structure of the Constitution, the counsels for the respondents have made a submission that mere violation of Article 14 of the Constitution does not amount to violation of basic structure. That for the violation of the basic structure, such violation should be ‘shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice’.[11]

It was further submitted that the present amendment did not violate the basic structure, rather, was in consonance to the preamble to the Constitution by providing economic justice to the citizens of India by means of EWS Reservation.

(c)      50% cap for reservation can be violated in exceptional circumstances.

The learned Solicitor General of India has vehemently opposed the petitioner upon the issue whether the Amendment Act if brought into effect would cross the ceiling limit of the 50% reservation criteria as laid down in Indra Sawhney case or not. In support of the same it was submitted that the 50% reservation has neither been provided under the Constitution of India nor is said to be forming a part of the basic structure of the Constitution of India. Hence, any reservation made cannot be said to be violative of the basic structure merely because it surpasses the 50% reservation criteria as laid down in Indra Sawhney case.

(d)     The right of EWS arises from the right to live a dignified life under Article 21 of the Constitution.

The respondent counsel Ms. Vibha Dutta Makhija has submitted that the right of the EWS envisaged in the Amendment Act arises from the right to live a dignified life as envisaged under Article 21 of the Constitution. She also stated that poverty affects dignity and that it was the duty of the State to eradicate poverty, thereby providing a dignified life to the EWS.

Last but not the least, the respondents have argued that the Constitution does not debar the Legislature from taking a step away from the traditional approach in achieving economic justice. Additionally, Mr. V.K. Biju has apprised the court of the statistical data on record and submitted that the economic criteria for reservation is the need of the hour on the basis of various reports and statistical data. He has further argued that even in Indra Sawhney, the Court took a conscious note that there may be a group or class of people, who can qualify for benefits of reservation irrespective of caste.

JUDGMENT

The judgment popularly known as the ‘EWS Judgment’ was passed on 07.11.2022 with a 3:2 majority upholding the validity of The Constitution (103rd Amendment) Act, 2019.

  1. UPHOLDING THE CONSTITUTION (103RD AMENDMENT) ACT, 2019

The validity of the Amendment Act was upheld by a majority in the 5-judge bench of the Hon’ble Supreme Court. Hon’ble Justice Bela M Trivedi, Hon’ble Justice J. B. Pardiwala and Hon’ble Justice Dinesh Maheshwari upheld that the petitions filed challenging the Amendment Act were liable to be dismissed as the said Amendment cannot be said to be violative of the basic structure of the Constitution. A provision for reservation of the EWS neither affects the rights of the SEBCs nor does such reservation made solely on the ground of economic inequality violates the basic structure.

In support of the above ratio passed by the Hon’ble Supreme Court, Hon’ble Justice Bela M. Trivedi has emphasised upon the Statements of Objects and Reasons for the Constitution (One Hundred and Third Amendment) Bill to bring into light that a large chunk of the EWS have been excluded from attaining quality education as a result of their economical incapacity. Such persons are neither eligible for reservation nor have the financial capacity to receive the best education. Hence, the Constitution had been rightly amended. Hon’ble justice Bela M. Trivedi has observed as under:

“Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it. In the instant case, the Legislature, being aware of the exclusion of economically weaker sections of citizens from having the benefits of reservations provided to the SCs/STs and SEBCs citizens in Clauses(4) and (5) of Article 15 and Clause(4) of Article 16, has come out with the impugned amendment empowering the State to make special provision for the advancement of the “economically weaker sections” of citizens other than the classes mentioned in Clauses(4) and (5) of Article 15 and further to make special provision for the reservation of appointments or posts in favour of the economically weaker sections of the citizens other than the classes mentioned in Clause(4) of Article 16. The impugned amendment enabling the State to make special provisions for the “economically weaker sections” of the citizens other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for the advancement of the economically weaker sections of the citizens. Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14.”[12]

In support and in addition to what has been held by Hon’ble Justice Bela M. Trivedi and Hon’ble Justice D. Maheshwari, Hon’ble Justice Pardiwala emphasised on the need to revise the criteria on which the reservations under the Constitution were made. He emphasised the fact that the reservations were not meant to become a vested interested in a class of people, rather, it was meant to represent the marginalised class of people and ultimately reach an egalitarian society.

The verdict written by Justice Pardiwala reminds us of the fact that the reservations under the Constitution are never meant to be for indefinite period. For instance, the reservation under article 15 and 16 were to bring about social harmony aimed to be achieved within 10 years of the Constitution coming into force, which however continues even after more than seven decades of the Constitution coming into force.

(A similar view was also taken by Justice Bhat and CJI U. U. Lalit, who passed a verdict declaring the Amendment Act as unconstitutional.)

  1. DISSENTING JUDGMENT

The minority view comprising of the verdict passed by Hon’ble Justice Ravindra Bhat and Hon’ble Chief Justice of India U. U. Lalit held that the Amendment Act was violative of the basic structure and therefore is unconstitutional.

On the amendment made under article 15 by means of inserting 15(6), Hon’ble Justice R. Bhat has held that 15(6) is unconstitutional on the sole ground that it excludes the representation of the poorest sections of the society who are socially as well as educationally backward. Hence, such a provision discriminating against the down-trodden was violative of the Equality Code. Hon’ble Justice R. Bhat further held that Article 16(6) was liable to be declared unconstitutional on two main grounds. Firstly, on the ground of non-inclusion of the already socially and educationally backward class of persons. Secondly, that since Article 16 purports to solve the issue of lack of representation of a particular community/ class, providing reservation to the EWS under article 16 was clearly violative of the basic structure of the Constitution.

CRITICAL ANALYSIS

Since the enforcement of the Constitution of India, reservation has been an arena which affects every Indian individual intensely, irrespective of the caste one belongs to.  In India, policies with respect to reservations have been in place since the formation of the Constitution of India. However, it is important to remember that the reservation policies post Indian independence were incorporated keeping in mind the societal scenario of India at the time of independence, i.e., these reservations were brought to give proportionate representation in jobs and education to SC, ST, SEBC and OBC groups who bore the pain of social exclusion. However, with the changing socio-economic conditions of the Indian societies, the upliftment of the Scheduled Tribes, Scheduled Castes, Socially and Economically Backward Class and other backward class by means of reservation policies have proved to be unjust for the upper caste individuals who are not equally well-off.

Further, reservation policies favouring the Scheduled Tribes, Scheduled Castes, Socially and Economically backward and Other Backward Class have always been maliciously used for the electoral gains and the reality of India has been ignored. Many state governments such as Andhra Pradesh, Telangana, Tamil Nadu, Maharashtra and so on, have been blatantly violating the precedent laid down by the Supreme Court in the case of Indra Sawhney in order to take political advantage of the reservations policies. These actions of the state governments have been declared unconstitutional by the Supreme Court from time to time.

The actual purpose of the reservations has always been defeated and therefore, the Government has rightly taken a grip on reality of the socio-economic conditions existing in the country and passed The Constitution (103rd Amendment) Act, 2019. The Government has also vide the particular exclusion of the ST, SC, SEBC, OBC from the EWS quota has ensured that the upper caste group who have been unable to represent themselves in the society primarily benefit from the Amendment Act.

The benefit of reservation should be availed by the persons from the lowest strata of the society and somebody who has taken undue advantage of these policies since generations shall not be allowed to take benefit of such reservations.

It is for the first time that the Supreme Court has, vide its EWS Judgment, showed its concern towards the genuinely weaker sections of the society that have been excluded from attaining quality education as a result of their economic incapacity. Such persons are neither eligible for reservation nor have the financial capacity to receive the best education. The Amendment Act has been rightly passed to represent the marginalised class of people and ultimately reach an egalitarian society.

Last but not the least, the Amendment Act and the ruling of the Hon’ble Supreme Court in the EWS judgment is a true tribute to the makers of the constitution of India and the vision of Dr. B. R. Ambedkar, the father of the Indian Constitution and also an economist. Through his speeches, he always laid emphasis on uplifting the economically weaker sections of society, as reflected in the following statement given by him in the Constitution Assembly debates:

“…that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of opportunity.”

Thus, by incorporating Articles 15(5) and 16(6) into the Constitution, the Government has ensured that it is not just the socially and educationally backward class that is entitled to get justice but also the poor people of India. The Amendment Act and its confirmation by the Hon’ble Supreme Court is a big step towards achieving economic equality in the Indian democracy.

Present Status of the Case

Congress leader Dr. Jaya Thakur moved Review Application before the Supreme Court seeking review of the judgment passed by three of the five-judge bench of the Apex Court which upheld the constitutional validity of the Amendment Act providing 10% reservation for the economically weaker sections (EWS). However, the same is still pending adjudication.

Author Brief Bio: Siddharth Acharya is a practicing advocate in Supreme Court of India. Apart from legal profession he has directed acclaimed documentary films on Kashmir and CPEC. He writes extensively and frequently on Constitutional issues and judgments pronounced by Supreme Court.

References:

[1] https://www.india.gov.in/sites/upload_files/npi/files/consti.103amend.pdf

[2] WRIT PETITION (CIVIL) NO. 55 OF 2019

[3] https://main.sci.gov.in/supremecourt/2019/1827/1827_2019_1_1501_39619_Judgement_07-Nov-2022.pdf

[4] Para 31(a), Janhit Abhiyan Versus Union Of India [Writ Petition (Civil) No. 55 of 2019]

[5] Para 31(b), Janhit Abhiyan Versus Union Of India [Writ Petition (Civil) No. 55 of 2019]

[6] Para 31(c), Janhit Abhiyan Versus Union Of India [Writ Petition (Civil) No. 55 of 2019]

[7] https://www.mea.gov.in/Images/pdf1/S9.pdf

[8] Para 7.1, Janhit Abhiyan Versus Union of India [Writ Petition (Civil) No. 55 of 2019]

[9] 1963 Supp (1) SCR 439

[10] 1992 Supp (3) SCC 217

[11] Para 25.1, Janhit Abhiyan Versus Union of India [Writ Petition (Civil) No. 55 of 2019]

[12] Para 20, Janhit Abhiyan versus Union of India [Writ Petition (Civil) No. 55 of 2019]

Share:

Latest News

Leave a comment

Your email address will not be published. Required fields are marked *