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Journalism of Courage
IN UPHOLDING the 103rd Constitutional amendment introducing a 10 per cent quota for Economically Weaker Sections (EWS), the Supreme Court on Monday endorsed a crucial shift in affirmative action from being a tool for enabling community-based representation to tackling individual deprivation.
“…The observations of this Court in the past decisions that reservations cannot be claimed only on the economic criteria, apply only to class or classes covered by or seeking coverage under Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court has not put a blanket ban on providing reservation for other sections who are disadvantaged due to economic conditions,” the majority opinion by Justice Dinesh Maheshwari said.
The 103rd amendment delinked the need for class-based reservations from “inadequacy of representation” and the “need to show backwardness”, and provided guardrails to reservations connected with poverty by allowing a 10 per cent quota based on income criteria of individuals.
Counsel arguing against the amendment had told the Supreme Court that the newly-protected class (under 10 per cent EWS) lacks historical and continuing lack of adequate representation caused by structural or institutional barriers, so as to be eligible for reservation. Further, there would be no end to such reservations because there would always be people poorer than others.
Senior advocate Sanjay Parikh, who argued against the amendment also cited Constituent Assembly debates to show that ‘backward’ should precede ‘class of people’; the framers wanted the backward classes to share state power, and extend the benefits of affirmative action only to those socially and educationally backward groups that were excluded from the mainstream due to historical injustice, stigma, and discrimination.
Justice Ravindra Bhat, who wrote the minority opinion along with Chief Justice of India U U Lalit, also identified this shift in affirmative action while striking down the amendment.
“The identifier for the new criteria is based on deprivation faced by individuals. Therefore, which community the individual belongs to is irrelevant. An individual who is a target of the new 10 per cent reservation may be a member of any community or class. The state does not — and perhaps justly so — will not look into her background,” the minority opinion said.
