Some reservations about EWS quotas

The focus must shift to economic and competency approaches that take into account not only caste but also class, intersectional perspectives.

Pawan Kasturi

Hyderabad: Supreme Court in Janhit Abhiyan v Union of India The 103rd Constitutional Amendment, which provides for a 10% reserve for the economically weaker sectors (EWS) to enter educational institutions (including private institutions) and be appointed to any office in the state, was recently upheld.

Policy and court decisions require the closest public attention because although reserved for EWS as the name suggests, it is essentially a forward class retention program such as Scheduled Castes (SCs), Scheduled Tribes (STs) and other backward classes ( OBCs) ) are excluded. This is the first time the country has implemented a forward-looking retention policy, and even all five justices agreed that, in the judgment, the affirmative action system could be expanded to compensate for (backward-looking) caste-based backwardness.

trial

The judges held the following opinion: On the issue of reservations based on economic criteria that violate the basic structure of the Constitution (BS), the majority held that reservations were not only exceptions to the general rule of equality, but were an enabling clause that could not affect the doctrine of the BS, Therefore cannot be called. A minority felt that it was overly simplistic to see them as empowering provisions that did not affect BS, as they were like a loaded weapon that threatened to destroy core constitutional values.

Regarding the exclusion of SEBC (Socially and Economically Backward Classes), OBC, SC and ST from EWS quotas, the majority felt that exclusion was inevitable, “when large-scale equalization processes are put in place, peripheral inequalities It is inevitable”. This satisfies reasonable classification by targeting specific groups and preventing “double interest”. The objection stated that excluding BCs from the scope of Articles 15(6) and 16(6) violated the non-exclusivity and non-discrimination aspects of the Equality Code.

Cap on Violation of the 50% Cap Indra Soni Judgment, the majority felt that the restriction was not inflexible and only applied to the SEBC reservations in Article 15(4), Article 15(5) and Article 16(4).Minority thinks that equality will be reduced to reservation, back to the first reservation example Champakam Dorairajan and will serve as a gateway for further breaches, leading to division.

clarity problem

There is a slight difference where the income level criteria for both EWS and OBC cream tier is Rs 8 lakh. In EWS, income for the financial year preceding the year of application is considered, while in the cream tier, annual gross income is considered for three consecutive years. Income from wages, agriculture and traditional crafts are excluded from the latter consideration, while the EWS includes income from all sources, including agriculture.

Even the definition of household income in the EWS is much broader than the cream layer. Still, there should be stricter standards for EWS reservations, since it primarily targets the poorest of the poor, or it suffers from overinclusion. In addition, it incentivizes the forward class not to disclose personal income, thus giving them not only retention but also favorable income tax evasion.

Since these issues remain unresolved Neil Aurelio Nunes (NEET reserved) case, the outcome may affect the standard aspects of the EWS.

If OBC, SC and ST are included, will there be a double reservation situation, do we treat the poor equally under the constitution? When we look at the intent behind the amendment, it was proposed for those who were not in the regular program, creating vertical reservations. Therefore, it is logical that the classifications made are linked to the goals. But is it morally defensible to let a large portion of the population who are economically weaker than those of the former caste and unable to reap the fruits of reservation be due to a design flaw in India’s reservation system? This somewhat characterizes retention based on social and educational backwardness as luckier than EWS.

caste census

This problem can be solved by planning a thorough caste census to effectively implement affirmative action because the data we are relying on is appalling and the 1931 census. Achieving substantive equality would be a myth without empirical analysis, as not only could different caps be set for SC, ST and OBC, but also the opportunity to examine the necessity of 10% retention among former castes in terms of population proportions.

Critics misunderstand the precedent provided by the SC in which a beneficiary group must show evidence that it is disadvantaged and underrepresented in order to be retained. But these cases are cases where new castes are added to the list of specific categories (OBC, ST and SC) like reservations in Section 342A, 342, 341 like what happened in Marathi reservations. But there was a constitutional amendment in EWS that created a new category, which is not the same as adding a new caste to an existing category.

There is also a strange case of Tamil Nadu. The state provided a 69 percent reservation by placing its policy on Schedule 9 and exempting it from then-current judicial review. Now with an additional 10% reserved, it further divides the reserved policy and makes little room for open categories. But since the reservations in Articles 15 and 16 are enabling clauses, countries opposing the EWS may prefer not to implement it as a policy decision, and have no fundamental right to reservations. Mukesh Kumar v Uttarakhand judge.

Unless design flaws in EWS reservations and key legal issues in judgment reasoning are resolved, “quotas” are inevitable. However, this judgment marks a shift in which economic justice is given equal attention to the principles of social justice that our retention policies sorely need.

Historical injustices are not fully corrected because retention policies are flawedly designed to benefit the most oppressed. Although OBC and even SC/ST had cream layers in promotions in 1992 (Janelle Singh Case, 2018), this criterion is invalid because it preserves the part of privilege that benefits disadvantaged groups.

The idea of ​​subclassification on reservation is great, but its constitutionality hangs in the balance before seven justices (Davinder Singh case) for the past two years. Therefore, for at least the next two decades, the focus must gradually shift to a point of view with an economic and capability approach (Amartya Sen), and sub-category-based reservations in all categories, where not only caste but class and Intersectional view. But we must remember that in innovating new forms of affirmative action, we must not legitimize the realities of life and the oppression faced by repressed classes.

(The author is an LL.M. candidate at the National Law School, Bangalore)