The Supreme Court’s judgement on Monday, November 7, upholding the constitutional validity of 10% reservation for Economically Weaker Sections (EWS) does not alter the status quo, experts said. The Constitution (103rd Amendment) Act of 2019 allowed for reservation in education and public sector jobs for persons in the EWS category. The Union government had, in 2020, said that it was the states’ prerogative whether they want to implement the EWS quota or not.
Advocate Rahul Narayan, who appeared for one of the petitioners in the case, said that it was an enabling amendment, which implies that states that wished to implement it may do so, while those that did not, were not required by law to implement the amendment. While hearing cases on specific reservations before this, the court had always maintained that it was an enabling provision which the state could choose to implement or not, he noted. “If any state government was waiting for the court’s view on the matter before taking a call on implementing the EWS quota, then Monday’s judgement will determine their course of action. Other than that, the judgement does not in any way put any compulsions on states,” he told TNM.
DMK Rajya Sabha MP P Wilson said that prima facie, the judgement upholding reservation based on economic criteria alone upset years of precedents on the subject. He said that the decision of implementing EWS reservation was within the states’ discretion as there was no legal necessity to follow the Union government's example. The criteria for EWS beneficiaries could also be altered by states. “While implementing EWS reservations, states have been given wide power to adopt any yardstick to identify any one other than Scheduled Castes, Scheduled Tribes, and Other Backward Classes as EWS. There are no guardrails for this power,” he said. Wilson added that further decisions on the issue had to be taken by DMK leader and Tamil Nadu Chief Minister MK Stalin.
Rahul explained that the implication of Monday’s judgement was that the actions of all the states, union territories and central institutions that implemented EWS quota since the amendment was passed in January 2019, remained fine and justified. “Nothing stops states from setting up an EWS quota from now onwards,” he said. So far, 16 states have adopted the EWS quota.
The petitioners had challenged the constitutional validity of the amendment on the grounds that it was discriminatory towards the Backward Classes. The Union government had defined EWS as those with an annual family income less than Rs 8 lakh, but not belonging to SC/ST and OBC. The criteria also included limits on the land area owned by the concerned family. States are allowed to alter the criteria for qualifying for a reservation under EWS while implementing it. Tamil Nadu had vehemently opposed the EWS quota, saying that it favoured only the privileged castes.
The dissenting judgement by Chief Justice UU Lalit and Justice Ravindra Bhat acknowledged the discrimination and stated that the use of the “language of exclusion” in the amendment undermined the basic structure of the Constitution. Rahul maintained that the amendment was unconstitutional and expressed disappointment in not being able to succeed in the case. He stated, “If poverty is being made a criterion for reservation, one cannot exclude the Backward Classes. The poorest among the poor mostly come from oppressed classes. So why are they excluded from reservation based on economic criteria?”
Rahul explained that Union and state governments could not provide reservations arbitrarily, as they were constrained by factors like backwardness, which had to be carefully defined by committees set up for the purpose, and also adequacy of representation for government services. “On the other hand, there is no such clear criteria for EWS reservation. Once backwardness and adequacy of representation are removed from the criteria, there is no controlling principle or logic in deciding reservation, as is the case with EWS. In the future, nothing stops the Union government from increasing the 10% EWS quota to 20 or 30%,” he said. The majority judgement also held that the 50% limit on reservations was not inflexible.