Remind me, what is the EWS quota?

The quota: In 2019—right before the general election—the government announced a new reservation quota for ‘Economically Weaker Sections’. It set aside 10% of jobs and seats in educational institutions for families making less than Rs 8 lakh a year. In order to qualify, the family also should not own agricultural land measuring five acres or above or a residential flat measuring 1,000 sq ft in area.

The biggest exclusion: Members of the Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Classes (SEBC) communities do not qualify for the EWS quota—even if they are poor. The reason offered by the government: they are already covered by the existing 50% reservation set aside for these categories. Its statement in Parliament declared:

“At present, the economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under clauses (4) and (5) of Article 15 and clause (4) of Article 16 are generally unavailable to them unless they meet the specific criteria of social and educational backwardness.”

In essence, however, this is a reservation scheme for poorer members from the upper castes—since it excludes SC, ST and SEBC citizens.

The constitutional amendment: In order to legalise the scheme, both houses of the Parliament passed the 103rd amendment inserting clauses Articles 15(6) and 16(6)—which permit both union and state governments to offer an EWS quota. These were crafted as exceptions to these articles. Article 15 prohibits discrimination based on race, religion, caste, sex, or place of birth—whereas, Article 16 bans discrimination in government employment. Minority educational institutions are exempted from the amendment.

Point to note: The amendment was announced and passed in great haste—within a span of 48 hours—with little debate. As Dilip Mandal notes in The Print:

“Ideally, the draft should have been circulated to the parliamentarians before its introduction, so that they could go through the bill and prepare their responses. Ideally, such bills with far-reaching implications should be sent to department-related committees for wider discussion and consultation. It’s not illegal to introduce and pass a bill in haste, but this is certainly against constitutional morality and propriety.”

Not a BJP scheme:  The EWS scheme was first proposed by the Sinho Commission set up by the Congress-led UPA in 2005-06. The government was readying to introduce the parliamentary bill in 2014—when it lost the elections.

Ok, tell me about the Supreme Court ruling…

A 3-2 majority verdict upheld the constitutionality of the EWS reservation—and the exclusion of members of the poor members of the Dalit, tribal and OBC communities. 

The challenges: The petitioners challenging the 103rd amendment made three key arguments:

• Creating a quota solely on economic status breaches the basic structure of the Constitution. 
• The exclusion of Dalit, tribals etc. is “inexplicably discriminatory.”
• Providing an additional 10% quota—on top of the 50% already set aside for other communities—breaches the cap set by the Supreme Court in an earlier judgement.

The majority opinion: was delivered by Justices JB Pardiwala, Dinesh Maheshwari and Bela Trivedi. Here’s what they concluded:

One: It is perfectly constitutional to create reservations solely on the basis of economic criteria. Challenges to the EWS quota on these grounds “stultify State’s effort to do economic justice as ordained by the Preamble and DPSP (Directive Principles of State Policy) and, inter alia, enshrined in Articles 38, 39 and 46”—and “cannot be countenanced.” Also this: while poorer citizens are not included as socially and economically backward classes, the Constitution does not bar separate reservations for them.

Two: The exclusion of Dalit and other socially backward communities is not discriminatory. The reason: Reservations cannot be denied to the EWS because “that segment is otherwise not suffering from other disadvantages.” The majority opinion also held that “the expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities.”

And most notably, the justices argued that including these communities would give them unfair advantage:

“If existing beneficiaries are not excluded, it would amount to excessive benefit and advantage. Justice Maheshwari said that in the vertical reservation provided to these groups also, others are excluded. He went on to say that those who are themselves receiving the benefit of others’ exclusion cannot object to their exclusion in the reservation policy made for others.”

Three: It is also okay to breach the 50% ceiling set by the landmark 1992 Indra Sawhney vs Union of India verdict. The Court then had struck down a 10% quota for poorer Indians declaring “a backward class cannot be determined only and exclusively with reference to economic criterion.” It had also put a 50% ceiling on reservations— unless a special case was made out in “extraordinary situations and peculiar conditions.”

The majority opinion held that the ceiling had been “overstretched” to accommodate an “entirely different class… Moreover…this ceiling limit…has not been held to be inflexible and inviolable for all times to come.”

A significant ruling on caste: What’s most striking about the majority judgement is its underlying discomfort with caste-based reservations. Justice Trivedi declared: 

“At the end of 75 years of our Independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.”

Justice Pardiwala echoed the sentiment: “[R]eservation is not an end but a means—a means to secure social and economic justice. Reservation should not be allowed to become a vested interest.” But he went further and claimed that education had “tapered” the vast gaps between classes. And therefore:

“Large percentages of Backward Class members attain acceptable standards of education and employment. They should be removed from the Backward categories so that attention could be paid toward those genuinely in need of help.”

He suggested “revisiting” the criteria of determining ‘Backward Classes’—and see if they were still relevant today. 

The minority dissent: by Chief Justice of India UU Lalit and Justice Ravindra Bhat focused on the exclusion of Dalit, tribal, SC/ST members from the 10% EWS quota. Using strong language, Justice Bhat who authored the dissent declared:

“I feel… that this court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion… In my considered opinion, the amendment, by the language of  exclusion, undermines the fabric of social justice, and thereby, the basic structure. This amendment is deluding us to believe that those getting social and backward class benefits are somehow better placed (than the poor among the forward castes).”

Bhat, however, noted that using an economic criteria for affirmative action is not unconstitutional. But he also pointed out that the backward classes accounted for the vast majority of the poor in India. To exclude them “is indefensible, and ignores stark realities.”

Point to note: In the parliamentary bill to pass the constitutional amendment, the government claimed: 

“The economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.”

Dilip Mandal, however, points out that there is no data to back the government’s rationale. One big reason: our national census does not specify caste—except for scheduled castes and tribes. In fact, we do not know the caste of three-fourths of all Indians. What we do have are national surveys based on samples—which seem to confirm Bhat’s argument:

“It is seen that a majority proportion of ‘upper’ caste households report their principal occupation in public services/white-collar jobs category, while the majority of STs in agriculture/fisheries, SCs in manual labour, and OBCs in blue-collar jobs. It is ironic that even after years of Independence, the occupational profile of the population still coincides, to a large extent, with the unjust division of labour as prescribed in the archaic Varna system.”

The bottomline: No one is opposed to efforts to target and help the poorest and most disadvantaged Indians. But the problem in India is that all reservation schemes are deployed in service of electoral politics. For example, Maharashtra BJP chief Devendra Fadnavis immediately announced that the Marathas—a valuable voting bloc that is not exactly disadvantaged—will be eligible under the EWS scheme. It is difficult to create a caste-blind society when the sole motive of all our netas is to profit from it.

Reading list

The Telegraph offers a good overview—while The Hindu covers the majority opinion’s controversial comments on caste. The Telegraph also has more on the minority dissent. Indian Express has a number of good pieces—on the four questions considered by the Court; the BJP’s strategy of stripping social identities to craft broad coalitions; and economist Surjit Bhalla’s defence of the EWS quota. Dilip Mandal’s critique of EWS in The Print is a good read. The Wire makes the case that reservations are about representation not just economic need. Gautam Bhatia’s Twitter thread has links to all the nerdy constitutional law analysis you need.