Recently, the Supreme Court upheld the 10% reservation in education and employment for Economically Weaker Sections (EWS). A five-judge constitutional bench had heard the matter, out of which 3 judges held in favour of the reservation and two judges struck it down.

What is the EWS quota?

The EWS quota is a 10% reservation carved out in educational institutions and places of employment for economically weaker sections of society. The 103rd Constitutional Amendment Act of 2019, introduced this by adding sub-section (6) in Articles 15 and 16. The sub-section allows the state to make provisions for EWS in educational institutions and places of employment over and above the existing reservation, as long as it was limited to 10%. Existing Articles 15(4), 15(5) and 16(4) of the Constitution provide for reservation for SEBCs/OBCs/SCs/STs.

Why was the EWS quota challenged?

The challenge to the validity of the constitutional amendment was based on three grounds, which are:

Reservation based on economic criteria violates the ‘basic structure’ of the Constitution.

The exclusion of Scheduled Castes, Scheduled Tribes and the non-creamy layer of Other Backward Classes (that is, the members of the OBCs who are economically disadvantaged) from the EWS quota is discriminatory.

An additional 10% reservation for EWS violates the 50% reservation limit set by previous judgements of the Supreme Court.

What is the ‘basic structure’ of the Constitution?

The Supreme Court recognised the doctrine of ‘Basic Structure’ of the Constitution in the case of Kesavananda Bharati, where it held that the Constitution cannot be amended in a way that would alter its basic structure. The basic structure of the Constitution includes concepts such as rule of law, democracy, the sovereignty of India, judicial review, the existence of fundamental rights, etc.

In the present case, the challenge to the 103rd Constitutional Amendment was based on the argument that one feature of the “basic structure” is the protection guaranteed to socially backward classes. By providing economic criteria for reservation, the Amendment Act violates these constitutionally guaranteed protections.

What are the findings of the Supreme Court?

The majority decision of the Supreme Court upheld the amendment and observed:

The 103rd Constitutional Amendment does not violate the basic structure of the Constitution.

The argument that the constitutional scheme provides for reservation only for SEBCs/OBCs/SCs/STs given the existing text of Articles 15(4), 15(5) and 16(4) of the Constitution is incorrect. The amendment benefits those economically weaker sections who have till now not got the benefit of affirmative action (particularly of reservation), which was granted to the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs.

Beneficiaries of compensatory discrimination that is, discrimination in favour of these beneficiaries to compensate for past or continuing injustice, under Articles 15(4), 15(5) and 16(4), cannot protest that they have been excluded from compensatory discrimination for another class. If the new class does not exclude classes for whom affirmative action is already in place, it would be a case of unjustified discrimination.

In earlier judgments, the Supreme Court had examined the permissible limits of affirmative action, keeping in mind the potential harm that preferential treatment could cause the general merit candidates. It said that 50% is the desirable ceiling limit for reservation in education and public employment. But these observations have to be read in the context of the reservation arising from Articles 15(4), 15(5) and 16(4) or other areas of affirmative action. It cannot be overstretched to reservation provided for an entirely different class, comprising the economically weaker sections.

The article has been authored by Nyaaya, an open access, digital resource that provides simple, actionable, reliable and accessible legal information.

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