Constitutionality Of EWS Reservation

Coverage of this Article

Introduction

-Reservation is a method to provide assistance to the historically disadvantaged groups of the community in the field of education, employment, government offices, and so on.

Issue

-The newly inserted article 15(6) enabled the states to make special provision for the advancement of economically weaker sector, it states the upper limit for reservation is 10% which will be in addition to the already applicable reservations.

Criticism

-The reservation system in India is of two forms the vertical reservation and the horizontal reservation, the vertical reservation can be said to be a reservation for the marginalized communities (sc/st/obc), and the horizontal reservation is a cross cutting categories such as women, disabled people, domicile and more

Conclusion

-The court should keep in mind and consider the implication if the implementation must take routes to make sure there is no ambiguities and loopholes, as the unemployment issue is at all time high the importance to address this social issue is of urgent matter.

Introduction

Reservation is a method to provide assistance to the historically disadvantaged groups of the community in the field of education, employment, government offices, and so on. The reservation existed even before the independence of India, in 1882 and 1891 Rajashri shahu the then maharaja of Kolhapur introduced reservation in favour of non-brahmin and other backward classes which came into force till 1902, he provided free education made several hostels for their accommodation and more. The British India introduced certain elements of reservation in the Government of India act 1909.

After the independence in 1947, certain major steps were taken in the favour of the marginalized communities. The Indian constitution states in article 15(4) "Nothing shall prevent the State from making any special provision for the advancement of any socially, and educationally backward classes of citizens of or for the Scheduled Castes and the Scheduled Tribes.” Article 46 of the constitution states that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. ”In 1992 the supreme court on India ruled that the reservation couldn’t be more than 50% which would violate the access of equality which is guaranteed by the constitution.

Over the years the instrument of reservation has been broadened to include more groups under its ambit leading to debate from both the sides.

EWS (economically weaker section) is such a complex issue in today’s time, on 9th January 2019, the parliament of India enacted 103rd amendment in the constitution which gave power to the states to make reservation in higher education and public employment on the basis of economic criteria alone.

Issue

The newly inserted article 15(6) enabled the states to make special provision for the advancement of economically weaker sector, it states the upper limit for reservation is 10% which will be in addition to the already applicable reservations.

Around 20 people have filed a petition challenging the constitutional validity of the amendment, with the main argument of violating fundamental rights under article 14. They argued that:

1. Referring to the judgment of Indra Sawhney v. Union of India they argued that the reservation cannot be only be based upon economic criteria.
2. The minorities especially the SC/ST/OBC cannot be excluded from the economic reservation as it would violate fundamental right of equality.
3. After the issue of the amendment the reservation limit of 50% is being violated.
4. Reservation which is forced on institution which doesn’t receive state aid violates the fundamental right to equality.

The current reservation is at 49.5% in education and public offices with 15% for scheduled caste, 7.5% for scheduled tribes, 27% for other backward classes.

The issue is at present being heard in the supreme court of India and after days of hearing the bench accepted the issue which were framed by the respondent, which are:

1. Can reservation be granted solely on basis of economic criteria?
2. Can the states provide reservation in private institutes which doesn’t receive financial aid?
3. If the EWS reservation aren’t valid for the marginalized communities?

The court is yet to decide on the matter.

Criticism

The reservation system in India is of two forms the vertical reservation and the horizontal reservation, the vertical reservation can be said to be a reservation for the marginalized communities (sc/st/obc), and the horizontal reservation is a cross cutting categories such as women, disabled people, domicile and more. Till only vertical system was followed there was no overlapping as a person can only be from a single caste, or community. The EWS reservation in the 103rd amendment was not a permanent marker as people can fall out of economic troubles, but the community, caste is a permanent marker.

The amendment meant that if a person belonged to a vertical reservation group the amendment removed them from the scope of the EWS reservation.

The constitutionality of this was immediately challenged in court on the grounds that it violated the fundamental right to equality.

The overlapping in VR (vertical reservation) generates the ambiguity in the current form of legal framework, in the Indra Sawhney case the court ruled that a member of a reserved category who based solely on merit is entitled to an open-category position and shouldn’t be slotted under VR category, this implies that first all open category positions need to filled in the first round and in the second round all the VR categories need to be filled, this procedure Is called “over-and-above”.

When there is only mutually exclusive VR category and no single individual can be part of multiple vertical categories it is not at all important that in what sequence the categories are processed, however if they overlap the category process becomes very important.

Economist Rajesh Ramachandran Deshpande, shows that under the prescribed EWS income limit nearly 98% of the population qualifies, which means if the seats of EWS quota is filled after open category it won’t make any difference, and would make EWS reservation redundant.

If on the other hand EWS quota is filled in the end after all other reservation are filled out it will be beneficial as then whomever having highest merit score will be applicable for the seat.

Conclusion

The court should keep in mind and consider the implication if the implementation must take routes to make sure there is no ambiguities and loopholes, as the unemployment issue is at all time high the importance to address this social issue is of urgent matter. The court shall observe the constitutional implicational of the verdict. The purpose of the amendment was to address inequality, and give recognition to the economic backwards community, it will also help in caste-based discrimination as it will gradually remove the stigma that reservation had that it was always related to caste, and it was a tool for segregation.