On Monday, by a 3:2 majority, a five-judge Constitution Bench of the Supreme Court upheld the 103rd Amendment to the Constitution. It enabled state and Central governments to reserve up to 10% of college seats and public employment posts for economically weaker sections (EWS) of society who do not belong to categories for whom reservation is already provided for. In other words, this 10% quota is exclusively provided for upper castes and the creamy layer among the backward classes, if they fall under a specified income threshold.
Justices Dinesh Maheshwari, Bela Trivedi and J.B. Paridiwala through their separate but concurring opinions upheld the amendment. Justice Ravindra Bhat found against the amendment in his dissenting opinion, with which outgoing Chief Justice of India U.U. Lalit concurred.
The EWS quota law was challenged chiefly on the following grounds. Firstly, that economic criteria can never be used for creating reservations, even as other forms of affirmative action based on economic and income criteria cannot be ruled out. It was argued that reservations, as a tool of affirmative action, are not merely tools for correcting historic injustice, but also recognise the need for representation and empowerment among groups that historically did not enjoy power.
Secondly, the exclusion of SCs/STs and OBCs, who are recognised to be historically disadvantaged from the EWS quota, thereby reducing the general pool seats or positions available to them by 20%, represents an unconscionable infraction of the right to equality. It was argued that the characterisation of existing reservations for SCs/STs and OBCs as a dole is contrary to the idea of reservations as a tool for reparative justice, the basis of all reservation jurisprudence.
Thirdly, some of the petitions argued that the additional 10% for EWS breaches the 50% reservation limit set by earlier precedents of the court, since the nine-judge bench in Indra Sawhney v. Union of India (1992).
Even as there are nuanced disagreements on other questions, it is in the treatment of the second point that the minority records a powerful dissent from the majority rulings. The minority reasons:
“The equality code in its majestic formulation promotes inclusiveness. Even provisions enabling reservations foster social justice and equality, to ensure inclusiveness and participation of all sections of society. These provisions assure representation, diversity and empowerment. Conversely, exclusion, with all its negative connotations – is not a constitutional principle and finds no place in our constitutional ethos. Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion.”
The majority rulings, however, appear to proceed on the incorrect assumption that the existing reserved categories do not compete for the quota or the pool in the general category and carving out a 10% from the general pool to make the existing reserved categories ineligible to access that, does not deplete what is available to such categories. It is on this flawed assumption that the exclusion is upheld.
The majority rulings have sanctioned a forward-caste only quota, endorsing the reactionary idea that the extending of reservations to SCs/STs and OBCs have somehow resulted in injustice to forward castes who may not be equally well off. This is a stupefying inversion of the idea of equality our constitution has thus far known.
(Prasanna S. is a Delhi-based lawyer and an Advocate on Record in the Supreme Court. He assisted some of the petitioners in their challenge to the 103rd Amendment. Courtesy: The Wire.)
