In news:

• The Supreme Court recently referred to a five-judge Bench the “substantial question of law” - whether grant of 10% reservation to economically weaker sections of the society is unconstitutional and violates the 50?iling cap on quota declared by the court itself.

 

More on the news:

• The Supreme court said that the primary question for the Constitution Bench is to decide whether “economic backwardness” can be the sole criterion for granting quota in government jobs and educational institutions.
• The Centre had argued that it was every State’s prerogative to provide 10?onomic reservation in State government jobs and admissions in State-run education institutions.

 

Background: 

• The three-judge Bench had refused to stay the implementation of the Constitution (103rd Amendment) Act, which provides the 10% quota, when it had reserved orders a year ago. 
• Several petitioners had challenged the validity of the Constitutional Amendment, saying the 50% quota limit was part of the Basic Structure of the Constitution.

 

Who comes under the “Economically Weaker Sections”?

The proposed amendment Bill will define the Economically Weaker Section (EWS) as one having:

• Annual household income below Rs 8 lakh
• Agriculture land below 5 acres
• Residential house below 1000 sqft
• Residential plot below 100 yards in notified municipality
• Residential plot below 200 yards in non-notified municipality area

 

Reservation in India – The Present and the Future…

• At present, reservations in India account for a total of 49.5%. If the 10% extra reservation for EWS is also taken into account, it would be 59.5%.
• 7.5%, 15%, and 27% quotas are reserved for Scheduled Tribes, Scheduled Castes, and Other Backward Classes respectively.
• If the EWS Quota Bill becomes an Act, only 40.5% of seats will be allocated in educational institutions/jobs based on the merit of candidates. As pointed by Supreme Court, increase in reservations can compromise the merit.

 

Quota for Economic Weaker Section (EWS):

• The Constitution (103 Amendment) Act, 2019,was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness.

 

Key provisions of the amendment 

• Added Article 15(6): Up to 10% of seats may be reserved for EWS for admission in educational institutions. Such reservations will not apply to minority educational institutions. 
• Added Article 16(6): Which permits the government to reserve up to 10% of all government posts for the EWS. 
• The reservation of up to 10% for the EWS will be in addition to the existing reservation cap of 50% reservation for SC, ST and OBCs. 
• The central government will notify the EWS of citizens on the basis of family income and other indicators of economic disadvantage. 

 

Arguments in favor of reservation based on economic status:

• Constitutional recognition to EWS: For the very first time, the economic class is constitutionally recognized as a vulnerable section & would form the basis of an affirmative action programme. 
• It is a departure from traditional centrality of caste in deciding affirmative action.
• Changing Symmetry between caste and class: In changing circumstances, caste, while a prominent cause of injustice in India, should not be the sole determinant of the backwardness of a class.
• In Ram Singh v. Union of India (2015), SC asserted that social deficiencies may exist beyond the concept of caste. Hence, there is a need to evolve new yardsticks to move away from caste-centric definition of backwardness, 
• Increasing dissatisfaction among various sections: Politically, the class issues have been overpowered by caste issues. This has created a sense of dissatisfaction amongst communities with similar or poorer economic status but excluded from caste-based reservation. 

 

Arguments against :

• Contrary to equality norm: To balance the equality of opportunity of backward classes ‘against’ the right to equality of everyone else, a cap of 50% was put on the reserved seats. When the quota exceeds the 50% limit, it breaches the equality norm. 

• In M. Nagaraj v. Union of India (2006), a Constitution Bench ruled that equality is part of the basic structure of the Constitution. The 50?iling is a constitutional requirement without which the structure of equality of opportunity would collapse. 

• Adequate representation of upper casts: The upper caste is adequately represented in public employment. It is not clear if the government has quantifiable data to show that people from lower income groups are under-represented in its service. 
• Definition of EWS : The issue with the current definition of EWS is that it is too broad and would include large sections of population. 
• Identification of beneficiaries: In a country where taxable population is still very low due to misrepresentation of income, implementing economic eligibility criteria would be a bureaucratic nightmare. 
• ‘Pandora’s box’ : There may be demand from sections of the SCs/STs and OBCs to introduce similar sub-categorization, based on economic criteria, within their respective quotas. 
• Reservation is not a poverty alleviation scheme:The Supreme Court in the Indira Sawhney case (1992) had struck down a provision that earmarked 10% for the economically backward on the grounds that the Constitution only provides for addressing social backwardness. 

 

Does India need reservation?

• It’s the duty of the government to provide equality of status and opportunity in India.
• Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes.
• However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coachings, and other welfare schemes.
• The way reservation is implemented and executed in India is largely governed by vote-bank politics.
• Indian Consitution allowed reservation only for socially and educationally backward classes. However, in India, it became caste-based reservation instead of class-based reservation.
• Initially, the reservation was intended only for SC/ST communities – that too for a period of 10 years (1951-1961). However, it got extended ever since. After the implementation of Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs).
• The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased.
• Now, with the introduction of economic criteria for reservation, in addition to the caste-criteria which already existed, things have become more complicated.

 

124th (Amendment) Bill, 2019

• The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 was introduced in Lok Sabha by the Minister of Social Justice and Empowerment, Mr. Thaawar Chand Gehlot on January 8, 2019. The Bill seeks to provide for the advancement of “economically weaker sections” of citizens. 
• Article 15 of the Constitution prohibits discrimination against any citizen on the grounds of race, religion, caste, sex, or place of birth. However, the government may make special provisions for the advancement of socially and educationally backward classes, or for Scheduled Castes and Scheduled Tribes.  The Bill seeks to amend Article 15 to additionally permit the government to provide for the advancement of “economically weaker sections”.  Further, up to 10% of seats may be reserved for such sections for admission in educational institutions.  Such reservation will not apply to minority educational institutions. 
• Article 16 of the Constitution prohibits discrimination in employment in any government office. However, the government can allow reservation for any “backward class of citizens”, if they are not adequately represented in the services under the state.  The Bill seeks to amend Article 16 to permit the government to reserve up to 10% of all posts for the “economically weaker sections” of citizens
• The reservation of up to 10% for “economically weaker sections” in educational institutions and public employment will be in addition to the existing reservation.
• The central government will notify the “economically weaker sections” of citizens on the basis of family income and other indicators of economic disadvantage.

 

Implications of Constitution 124th (Amendment) Bill, 2019

• This will be the first time that poor non-OBC non-SC/ST individuals will get a chance. And given that Muslims are the poorest (economically weakest), they should obtain preference in the EWS 10 per cent quota.
• general category jobs are open to everyone, including Scheduled Caste (SC), Scheduled Tribe (ST) and OBC individuals. Thus, by removing 10% jobs from the “open” category, it reduces the opportunities for currently reserved groups.
• In era when skill demands are rapidly outpacing supply of candidates in specialised fields, the EWS quota increases the constraints.

 

Government’s view

• Reacting to the passage of the bill in Lok Sabha, Prime Minister Narendra Modi said, it is a landmark moment in the nation’s history and an effective measure that ensures justice for all sections of society.
• Finance minister Arun Jaitley, building the case for the 10 per cent quota, said, “If two individuals are not equal due to birth or for economic reasons, then they cannot be treated equally. Unequals cannot be treated equally,” he said.
• He further contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won’t be impacted by it.
• Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before.  Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.