The Supreme Court’s three-question test for validity of 10% EWS quota

* “Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria”;

* “Whether it (the amendment) can be said to breach the basic structure…by permitting the state to make special provisions in relation to admission to private unaided institutions”;

* Whether the basic structure is violated by “excluding the SEBCs (Socially and Educationally Backward Classes)/ OBCs (Other Backward Classes)/ SCs (Scheduled Castes)/ STs (Scheduled Tribes) from the scope of EWS reservation”.

What is the 103rd Amendment?

The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to EWS other than backward classes, SCs, and STs in higher educational institutions and initial recruitment in government jobs. The amendment empowered state governments to provide reservation on the basis of economic backwardness.

Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Article 16 guarantees equal opportunity in matters of public employment. The additional clauses gave Parliament the power to make special laws for EWS like it does for SCs, STs, and OBCs.

The EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho. The commission, which was constituted by the UPA government in March 2005, 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).

How is EWS status determined under the law?

The EWS criteria for employment and admission was notified on January 31, 2019 by the Department of Personnel and Training (DoPT) based on the 103rd Amendment.

Under the 2019 notification, a person who was not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, was to be identified as EWS for the benefit of reservation. The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.

In October 2021, the Supreme Court, while hearing a challenge to reservation for EWS in the All-India quota for PG medical courses, asked the government how the threshold of Rs 8 lakh had been reached. The Centre told the court that it would revisit the income criterion, and set up a three-member panel for this purpose.

In January this year, the government accepted the committee’s report, which said that the “threshold of Rs 8 lakh of annual family income, in the current situation, seems reasonable for determining EWS” and “may be retained”. However, the committee said, “EWS may…exclude, irrespective of income, a person whose family has 5 acres of agricultural land and above”. Also, the committee recommended, “the residential asset criteria may altogether be removed”.

What is the basis of the challenge to the amendment?

When a law is challenged, the burden of proving it is unconstitutional lies on the petitioners. The primary argument in this case is that the amendment violates the basic structure of the Constitution. Although there is no clear definition of basic structure, any law that violates it is understood to be unconstitutional.

This argument in the present case stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the basic structure, and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.

The petitioners have also challenged the amendment on the ground that it violates the Supreme Court’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal report and capped reservations at 50 per cent. The court had held that economic backwardness cannot be the sole criterion for identifying a backward class.

Another challenge is on behalf of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/ profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

What has been the government’s stand in this matter so far?

In counter affidavits, the Ministry of Social Justice and Empowerment argued that under Article 46 of the Constitution, part of Directive Principles of State Policy, the state has a duty to protect the interests of economically weaker sections: “The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

Against the argument of violation of the basic structure, the government said that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.

On the Indra Sawhney principle, the government has relied on the SC’s 2008 ruling in Ashoka Kumar Thakur v Union of India, in which the court upheld the 27 per cent quota for OBCs. The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors; thus, there need not be a sole criterion for according reservation.