Explained: Revisiting definition of EWS

On November 25, Solicitor General Tushar Mehta told the court that the Centre would revisit the criteria adopted for deciding the income level of EWS in granting reservation in government jobs and admissions.

On November 30, the Ministry of Social Justice and Empowerment announced the committee to “revisit the criteria for determining the economically weaker sections” in terms of the provisions of the explanation to Article 15 of the Constitution. It comprises former finance secretary Ajay Bhushan Pandey, Indian Council for Social Sciences Research (ICSSR) member secretary V K Malhotra, and Principal Economic Advisor to the Government of India Sanjeev Sanyal.

The next hearing in the Supreme Court is on January 6.

How did this reach the court?

The Supreme Court is hearing a bunch of petitions, including a special leave petition filed by the Centre, against a Madras High Court order on EWS and OBC reservation in the all-India quota under the NEET entrance exam for postgraduate medical admissions.

On July 29, the Centre issued a notification implementing 10% reservation for EWS along with 27% for OBC within the all-India quota for postgraduate medical courses, starting this academic session. Following the petitions, the Supreme Court has stayed counselling for admission until the matter is decided.

At present, those with an annual income below Rs 8 lakh fall in the EWS category. When the Supreme Court questioned the criteria used, the Centre first justified the benchmark but later said it was ready to revisit it.

When were the income criteria fixed?

The criteria for EWS and OBC quotas, as notified for NEET admissions in September, are the same as criteria notified for employment and admission on January 31, 2019 by the Department of Personnel and Training (DoPT) based on the 103rd Amendment to the Constitution (see box).

EWS, as defined

Under the 2019 notification, persons who are not covered under the scheme of reservation for SCs, STs and OBCs, and whose family has gross annual income below Rs 8 lakh, are to be identified as EWSs for benefit of reservation. It also specifies what constitutes “income”, and excludes some persons from the EWS category if their families possess assets specified in the notification (see box).

EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho. The commission had been constituted by the then UPA government in March 2005, and submitted its report in July 2010. The Sinho Commission recommended that all below poverty line (BPL) families within the general category as notified from time to time, and also all families whose annual family income from all sources is below the taxable limit, should be identified as EBCs (economically backward classes).

The present income ceiling of Rs 8 lakh fixed for EWS is the same as that for OBCs for quotas for people outside of government. For the OBC quota in government, there is a different criteria based on the ranks of the parents of the candidate. Outside of government, there is an income criteria, which was raised from Rs 6 lakh to Rs 8 lakh in 2017.

How was the ceiling decided?

On August 3, Minister of State for Social Justice and Empowerment Pratima Bhoumik told Lok Sabha in a written reply: “The annual income limit of Rs 8 lakh per annum for EWS category was decided after detailed deliberations by the government”.

The file regarding EWS reservation, accessed by The Indian Express, includes a Cabinet Note dated January 6, 2019 prepared by the Ministry. “Since establishing of BPL is open to debate and in order to maintain parity with similar categories, it would be appropriate to apply the income/wealth test made applicable in the case of OBCs for the purpose of exclusion from the benefit of reservation.” Based on this note, the Cabinet in its January 2019 meeting decided to amend the Constitution to provide reservation to EWS.

With months to go for that year’s Lok Sabha elections, the government rushed the legislation through. The Bill was tabled and passed in Lok Sabha on January 8, 2019 and in Rajya Sabha next day.

Why has the Supreme Court termed the income ceiling arbitrary?

On October 21, the Supreme Court observed: “The income limit in the criteria for the determination of the creamy layer of the OBC category and the EWS category is the same, namely, Rs 8 lakhs. While the creamy layer in the OBC category is identified for excluding a section of the community that has ‘economically progressed’ to such an extent that the social backwardness of the community diminishes, the EWS category is identified to include the segment which is ‘poorer’ when compared to the rest of the community. Therefore (a) the income criterion in respect of the OBC category is aimed at exclusion from a class while in the case of the EWS category, it is aimed at inclusion; and (b) the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome as compared to those belonging to the general category. In these circumstances, would it be arbitrary to provide the same income limit both for the OBC and EWS categories.”

The court also questioned “on what basis has the asset exception been arrived at and was any exercise undertaken for that purpose; whether municipalities as required under the exception have been notified; The reason why the residential flat criterion does not differentiate between metropolitan and non-metropolitan areas.”

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