The Centre’s new law to provide ten per cent quota to Economically Weaker Sections (EWS) in the general category is framed such that it offers more flexibility for reservation among forward castes than the existing quotas for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC).
While the new law, notified by the Ministry of Social Justice and Empowerment Monday, provides reservation for those whose gross family income from all sources is up to Rs 8 lakh, states can set their own income cut-off to decide who constitutes EWS and even exceed the income criteria set by the Centre.
It also allows states to notify EWS “from time to time on the basis of family income and other indicators of economic disadvantage” even if they are “adequately represented” in government jobs.
Sources in the government said, “This means that even if the Union government, through its Office Memorandum (OM), notifies Rs 8 lakh annual family income as the ceiling for availing the EWS reservation, states (defined under Article 12 of the Constitution as ‘union and state governments’) can set their own upper limit.”
Effectively, while OBC candidates across the country will have to follow the Rs 8 lakh per annum creamy layer cut-off, General category candidates have no such limitations and can avail the quota depending on the largesse of individual states.
Ramesh Nathan of the National Campaign on Dalit Human Rights (NCDHR), a coalition of Dalit rights groups across the country, said, “Until recently, the ceiling for students to avail of SC, ST scholarships was Rs 2.5 lakh annual family income. Only last year, it was increased to Rs 6 lakh per annum. Still, it is lower than the Rs 8 lakh ceiling that the Union government plans to set for forward community reservation. We do not understand the rationale of a law that propagates further injustice against SC/ST persons”.
The NCDHR plans to file a petition in the Supreme Court against the EWS reservation stating that it is against the very principle of social justice.
According to sources, the Centre has already received inquiries from BJP states such as Uttar Pradesh, Uttarakhand and Gujarat, who want to expedite the implementation of the new law while Andhra Pradesh and Telangana have also communicated their eagerness.
States such as Tamil Nadu and Bihar are unlikely to implement the EWS quota at all, say sources. The Centre is expected to issue its OM setting the Rs 8 lakh income criteria next week. However, states can issue separate OMs to set their own income cap.
Also, under the 124th Constitutional Amendment recently passed by both Houses of Parliament, to provide the ten per cent reservation, states can provide for EWS General category reservation even if they are “adequately represented” in government jobs, which is not the case for OBC reservation or reservation in promotion for SC and ST candidates.
According to Article 16 (4) of the Constitution, states can reserve government jobs “in favour of any backward classes of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.
This is the basis for providing reservation to OBC candidates in all union and state government jobs. Article 16 (4a), for reservation in promotions for SC and ST candidates, also requires states to demonstrate that the communities are “not adequately represented”.
However, the recently introduced Article 16 (6) on EWS quota for General category candidates leaves out the words “adequately represented”. Instead, it only states, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4)…”
P S Krishnan, former Union Secretary for Ministry of Welfare, pointed out that reservation is conceived only for those who cannot on their own secure reasonable representation be it in the legislature, universities, or employment.
“It is only for those who were excluded and deprived as a social group. That principle was not followed in this case. The government feels that by omitting the phrase ‘not adequately represented’ they will be absolved of the necessity to abide by the basic principle. The so-called EWS are not under-represented and this will come up in the Supreme Court debate,” he said.