Is EWS Reservation Unconstitutional? SC Says No: All You Need To Know

Days after a five-judge Constitution bench was told by several lawyers that the Economically Weaker Sections (EWS) quota on the sole criteria of the financial position of a family is unconstitutional, the Supreme Court on Monday upheld the validity of 103rd Constitution amendment providing 10 pc reservation to EWS in admissions, govt jobs with a 3:2 majority.

The top court said the law on EWS quota does not violate the basic structure of the Constitution. The dissenting judges include CJI UU Lalit who voted in favour of striking down EWS reservations. 

What the judges said

Those in support of upholding EWS included Justice Dinesh Maheshwari, who read the judgement for himself, and said the 103rd constitutional amendment cannot said to breach the basic structure of the Constitution.

Justice Bela M Trivedi said the 103rd constitutional amendment cannot be struck down on grounds of being discriminatory.  Justice J B Pardiwala concurred with their views and upheld the validity of the amendment.

On the other hand, Justice S Ravindra Bhat held a  minority view, and struck down the constitutional amendment on EWS quota.  CJI Lalit concurred with the dissenting view of Justice Bhat.

What were the issues in front of the top court?

In 2019, 'Janhit Abhiyan' in 2019 filed a petition in Supreme Court challenging the validity of the Constitution Amendment (103rd) Act 2019. The top court heard as many as 40 petitions and most of the pleas, including the lead petition by Janhit Abhiyan. 

In response, the Central government had also filed some petitions seeking transfer of pending cases that were challenging the EWS quota law from various high courts to the apex court for an authoritative pronouncement.

The bench had on September 8 framed three broad issues for adjudication arising from the pleas challenging the Centre's decision to grant 10 per cent reservation to EWS in admissions and government jobs:

The first question was, "Whether the 103rd Constitution amendment Act can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria". 

The second legal question was whether the constitutional amendment could be said to breach the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions.

The third issue adjudicated upon by the bench, was "Whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation".

Is EWS unconstitutional?

Most of the lawyers opposed to the EWS quota contended the amended law excluded the poor belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs), and defeated the creamy layer concept.

Academician Mohan Gopal, senior lawyers including Ravi Verma Kumar, P Wilson, Meenakshi Arora, Sanjay Parikh, and K S Chauhan and advocate Shadan Farasat have previously urged the bench to scrap the quota.

Critics of EWS argue that the quota defeats the spirit of reservation which is primarily an engine for social justice. 

The Indian government classifies the EWS as persons who are not covered under the scheme of reservation for SCs, STs, and OBCs and whose family has a gross annual income below Rs 8 lakh. The Parliament approved the Constitutional (103rd Amendment) Act, 2019 on January 9, empowering the state to exercise its powers to extend reservations to citizens on the basis of economic criteria in sectors like jobs and higher education. 

Those dubbing it unconstitutional have claimed that such a reservation infringes on the fundamental right to equality enshrined under Article 14 and is against the basic structure of the Constitution. 

Petitioners contend that the amendment fails to address the Indira Sawhney judgement which observed that reservations cannot only be based on the economic status of individuals, that the amendment violates the 50 percent ceiling on reservation and that any kind of economic reservation excluding the SCs/STs/SEBCs was discriminatory in nature.

Giving reservations on the basis of economic criteria fails to respect the theory of social justice which ubderlines positive discrimination in the form of reservations for backward classes. Privileges of reservations based on income will primarily benefit the forward classes.

(With inputs from PTI)