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In a 3:2 majority verdict, the Supreme Court has upheld the 103rd constitutional amendment, passed by Parliament in January 2019, providing for 10% quota to those belonging to the Economically Weaker Sections (EWS) in education and government jobs. It inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10% reservation to the EWS in the general category, that is, among non-OBC and non-SC/STs of the population. Shruti Kakkar and Preetha Nair explain what the majority and minority judgement is:
Key parts of judgement
There are three key issues whether the 103rd amendment violates the basic structure of the Constitution in the following ways:
For providing reservation on the basis of economic criteria
For excluding the poor among the SC/ST/OBC categories from EWS quota
For breaching the 50% limit
Majority view of Justices Dinesh Maheshwari, Bela M Trivedi & JB Pardiwala:
ECONOMIC CRITERIA
No blanket ban on providing reservation for other sections which are disadvantaged due to economic conditions
Any legitimate effort of the state towards all-inclusive socio-economic justice by way of affirmative action of reservation in support of EWS cannot be lightly interfered with by the court
The 103rd amendment signifies Parliament’s intention to expand affirmative action to hitherto untouched groups who suffer similar disadvantages as OBCs
EQUALITY CODE
The classes that are already the beneficiary of compensatory discrimination by virtue of Articles 15(4), 15(5) and 16(4), cannot justifiably raise the grievance that in another set of compensatory discrimination for another class, they have been excluded
Thus, the exclusion of other groups and classes from the 10% reservation earmarked for EWS does not make them constitutionally aggrieved parties to invoke the general doctrine of equality for assailing the amendment in question
50% CEILING LIMIT
Reservation for EWS sections does not cause any damage to the basic structure of the Constitution on account of breach of the ceiling limit of 50% because that limit is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution
REACTIONS
Advocate on Record (AOR) Balaji Srinivasan: The EWS verdict should not have any impact on the current reservation system in Tamil Nadu. The government also should make sure that while implementing the new EWS quota, the old system is not disturbed.
Vikas Singh, senior advocate: The SC verdict providing for 10% quota for EWS in government jobs and educational institutions won’t have any impact on Tamil Nadu quota. A Constitution bench will decide on Tamil Nadu reservation only after it decides on the pleas on the Mandal verdict
Minority view of Justice SR Bhat & ex-CJI Justice UU Lalit
ECONOMIC CRITERIA
To say that Indra Sawhney or any other judgment does not permit reservations or affirmative action based on economic criteria, alone, is incorrect. That judgment cannot restrain Parliament from introducing constitutional amendments that enact such criteria, as the basis of reservation benefits, or other special provisions
The existing criteria for reservations cannot be the only way in which the state is permitted to achieve socio-economic justice goals: those criteria must be followed, but cannot preclude the introduction of new criteria
EQUALITY CODE
Introducing the economic basis for reservation as a new criterion is permissible. Yet, the “othering” of socially and educationally disadvantaged classes, including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability
It denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation
50% CEILING LIMIT
The breach of the 50% limit is the principal ground of attack on the 76th Constitutional Amendment 1994 which inserted as Entry 257A – the Tamil Nadu Backward Classes, SC/ST Act, 1993 in the IXth Schedule. The validity of that enactment, and whether the inclusion by the constitutional amendment violates basic structure, is directly an issue in a batch of cases pending before this court. The view of the members of this bench has a direct bearing on the likely outcome in the challenge in that proceeding
In a 3:2 majority verdict, the Supreme Court has upheld the 103rd constitutional amendment, passed by Parliament in January 2019, providing for 10% quota to those belonging to the Economically Weaker Sections (EWS) in education and government jobs. It inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10% reservation to the EWS in the general category, that is, among non-OBC and non-SC/STs of the population. Shruti Kakkar and Preetha Nair explain what the majority and minority judgement is:
Key parts of judgement
There are three key issues whether the 103rd amendment violates the basic structure of the Constitution in the following ways:
For providing reservation on the basis of economic criteria
For excluding the poor among the SC/ST/OBC categories from EWS quota
For breaching the 50% limit
Majority view of Justices Dinesh Maheshwari, Bela M Trivedi & JB Pardiwala:
ECONOMIC CRITERIA
No blanket ban on providing reservation for other sections which are disadvantaged due to economic conditions
Any legitimate effort of the state towards all-inclusive socio-economic justice by way of affirmative action of reservation in support of EWS cannot be lightly interfered with by the court
The 103rd amendment signifies Parliament’s intention to expand affirmative action to hitherto untouched groups who suffer similar disadvantages as OBCs
EQUALITY CODE
The classes that are already the beneficiary of compensatory discrimination by virtue of Articles 15(4), 15(5) and 16(4), cannot justifiably raise the grievance that in another set of compensatory discrimination for another class, they have been excluded
Thus, the exclusion of other groups and classes from the 10% reservation earmarked for EWS does not make them constitutionally aggrieved parties to invoke the general doctrine of equality for assailing the amendment in question
50% CEILING LIMIT
Reservation for EWS sections does not cause any damage to the basic structure of the Constitution on account of breach of the ceiling limit of 50% because that limit is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution
REACTIONS
Advocate on Record (AOR) Balaji Srinivasan: The EWS verdict should not have any impact on the current reservation system in Tamil Nadu. The government also should make sure that while implementing the new EWS quota, the old system is not disturbed.
Vikas Singh, senior advocate: The SC verdict providing for 10% quota for EWS in government jobs and educational institutions won’t have any impact on Tamil Nadu quota. A Constitution bench will decide on Tamil Nadu reservation only after it decides on the pleas on the Mandal verdict
Minority view of Justice SR Bhat & ex-CJI Justice UU Lalit
ECONOMIC CRITERIA
To say that Indra Sawhney or any other judgment does not permit reservations or affirmative action based on economic criteria, alone, is incorrect. That judgment cannot restrain Parliament from introducing constitutional amendments that enact such criteria, as the basis of reservation benefits, or other special provisions
The existing criteria for reservations cannot be the only way in which the state is permitted to achieve socio-economic justice goals: those criteria must be followed, but cannot preclude the introduction of new criteria
EQUALITY CODE
Introducing the economic basis for reservation as a new criterion is permissible. Yet, the “othering” of socially and educationally disadvantaged classes, including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability
It denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation
50% CEILING LIMIT
The breach of the 50% limit is the principal ground of attack on the 76th Constitutional Amendment 1994 which inserted as Entry 257A – the Tamil Nadu Backward Classes, SC/ST Act, 1993 in the IXth Schedule. The validity of that enactment, and whether the inclusion by the constitutional amendment violates basic structure, is directly an issue in a batch of cases pending before this court. The view of the members of this bench has a direct bearing on the likely outcome in the challenge in that proceeding
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