The Ews Judgment and the Shadow of Pandora

26-08-2023

11:39 AM

1 min read

The Supreme Court of India’s recent decision, upholding the constitutional validity of the law granting 10% reservation to Economically Weaker Sections (EWS) of the upper castes, has ignited much debate.
In this backdrop, the article throws light upon the previous rulings of Supreme Court regarding reservation and its fallouts in subsequent events nationwide and need to evolve a holistic and afresh criteria to grant reservation.

About Economically Weaker Sections (EWS) quota

Description: The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 for economic reservation in jobs and admissions in educational institutes for Economically Weaker Sections (EWS).
- It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally Backward Classes (SEBC).
- It enables both the Centre and the States to provide reservations to the EWS of society.
Court recent judgment: Reservations for EWS does not violate basic structure on account of 50% ceiling limit fixed by Mandal Commission because ceiling limit is not inflexible.
- 50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992 was “not inflexible”.
- Further, it had applied only to SC/ST/SEBC/OBC communities and not the general category.
- The SC/ST/SEBC/OBC communities for whom the special provisions have already been provided in Article 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category.

Background: Indian constitution to make up for millennia of discrimination based on birth, guaranteed SCs and STs not only equality of opportunity but guaranteed outcomes, with reserved places in educational institutions, government jobs and even seats in Parliament and the State Assemblies.
Caste and no class criterion: The accorded reservations were granted to groups listed in Schedules of the Constitution on the basis of their caste
- For instance, the addition of the OBC category did not change the basis on which people were benefited, i.e. despite the “C” in “OBC” referring to “classes”, the OBC lists contained castes and sub-castes.
Nationwide unrest: For example, the competitive zeal of the Meenas and the Gujjars in Rajasthan to be deemed more backward than each other, and similar agitations by Patels in Gujarat and Marathas in Maharashtra.

Set aside central notification: The Supreme Court (SC) in 2015 negated the Central Government's decision to include Jats in the Other Backward Classes (OBC) category.
Court rationale: The top court said that caste can't be the sole factor to decide backwardness, maintaining that Jats don't form socio-economic backward class.
- The court also affirmed that state should not go by the “perception of the self-proclaimed socially backward class” on whether they deserved to be categorised among the “less fortunates”.
- It also observed that “grave and important” decisions in reference to Article 14 and Article 16 of the Constitution must be made on the basis of “contemporaneous (existing) inputs”, which were not available.
Core issue emphasized: The issue, the court concluded, was not whether reservations were a tool to address millennia of caste discrimination or an instrument of affirmative action but how to determine who deserved consideration for reservation benefits.
Fresh perspective: The apex court ruled that “caste” and “historical injustice” cannot blind a state in granting backward status to a community and new formulae must be found to determine backwardness.

The most critical observations made by SC in the Jat reservation case were as follows:
- It said that neither educational nor economic backwardness, which the Government referred to, were enough, though both may contribute to social backwardness.
- The Court observed that social backwardness “is a distinct concept” that emerges from multiple circumstances ranging from the social and cultural, to economic, educational and even political.

Discouraging caste-based reservations: The top court while acknowledging caste to be a prominent cause of injustice in the country historically, emphasized that it could not be the sole determinant of backwardness and the State should uncover emerging forms of backwardness in an evolving society.
New determinants of backwardness: New practices, methods and yardsticks need to be continuously evolved moving away from caste-centric definition of backwardness.
Identifying genuine category: The court held that the principle of affirmative action under the Constitution obligated the state “to reach out to the most deserving” class and gates would be opened only to permit entry of the most distressed.
- Any other inclusions would be a serious abdication of the constitutional duty of the State,” the Court counseled.
- The court warned that a palliative policy keeping in mind only historical injustice would result in under-protection of the most deserving backward class of citizens.

Class as a new factor: The Court conceded that caste may be a prominent factor for ‘easy determination of backwardness’, but added the observation that class may be a factor too, since a class is “an identifiable section of society”, however it may not be enough to justify reservation.
Transgender quota: The court applauded itself for identifying a form of social backwardness that had nothing to do with caste or class, citing its decision to recognise transgender as a distinct community with justiciable rights and eligibility for government benefits.
New outlook: The transgender quota was fascinating philosophically. However, the most contentious element of the Court’s judgment was its proposition that caste, and the need to correct historical wrongs, is no longer sufficient grounds for government benefits.
- New methods, the judgment insisted, have to be developed to identify the backwardness of a group of people.
No looking back: The Court, drawing a blurry line between ‘past’ and ‘emerging’ forms of backwardness, advanced the presumption of the “progressive advancement of all citizens on all fronts, i.e., social, economic and educational” making history an insufficient guide.

The Supreme Court suggested that the Government come back with a “matrix” to justify reservations; a list of differently-weighted categories, ranging from income, family situation, disability, education level, etc, in addition to birth in a particular caste, which together would constitute a basis to draw up such a matrix.
But the Government, not wanting to touch a Pandora’s box, never came back with one, and the Court did not renew or repeat its demand either.
With the EWS decision, the shadow of Pandora now hovers over the Supreme Court but her notorious box may already have been opened by this dramatic, and judgment of 2015.