Opinion DMK’s Manuraj Shunmugasundaram writes: EWS judgment is a setback to social justice, India’s constitutional scheme
The Dravida Munnetra Kazhagam has consistently opposed the concept of EWS quota in its present form, and has called for an all-party meeting in Tamil Nadu to discuss the next steps forward. It has committed to filing a review of the Janhit Abhiyan judgment
The present judgment is one of the most disappointing expositions of law on the judicial thinking around reservations. (Express File Photo) 
The Supreme Court of India (SC) verdict upholding the 103rd Constitutional Amendment in Janhit Abhiyan v. Union of India 2022 should be regarded as nothing more than a temporary legal setback to the long trajectory of social justice. I do not doubt that the present judgment will be overturned on the ground that it has irrevocably dented the basic structure of our constitutional framework. Nevertheless, constitutional repair seldom is carried out within the confines of courts alone; and it is important that these battles are endured across society at large.
The judgment suffers from serious infirmities. Firstly, the SC should introspect why it has taken nearly four years to deal with such an important issue with widespread social, political and legal ramifications. During the course of the pendency of this case, the Union and states had begun implementing the quota of Economically Weaker Sections (EWS), thereby embedding it within the constitutional psyche. As such, undoing this had become increasingly difficult.
Some of the observations in the Janhit Abhiyan case around statements with regard to a time limit for reservations were surprising, given these issues were not central to the case itself. It is also ironic that while affirming a reservation policy, individual judges have questioned the future of reservation itself. Nevertheless, all such statements must be regarded as obiter and without any binding effect on the future legal evolution of the core issues.
The present judgment is one of the most disappointing expositions of law on the judicial thinking around reservations. As recently as in January 2022, a Supreme Court bench led by Justice DY Chandrachud (Neil Aurelio Nunes vs. Union of India 2022) had explained how reservation was not at odds with merit and also the role of reservation in “remedying the structural disadvantages” faced by marginalised groups. The Janhit Abhiyan judgment is at stark odds with this line of argument and instead regards reservation as a poverty alleviation scheme. Therein lies the most fundamental flaw in this judgment and one that goes to the roots of the basic structure of the Constitution. In the long trajectory of constitutional evolution, the country has witnessed low points such as ADM Jabalpur vs. S.S Shukla, which have been rectified by later courts. It is not unforeseeable that Janhit Abhiyan judgment will be subject to similar scrutiny in the years to come.
Reservation is not a poverty alleviation mechanism. Reservation was always implemented to address representation or the lack thereof in educational institutions and public employment. The Supreme Court has failed to recognise that the 103rd Constitutional Amendment has relied on economic criteria to extend reservations, something that has been expressly barred in law. In Indra Sawhney vs Union (1992), it has been categorically held that in the determination of backwardness, economic condition can never be the sole criterion. The reason for this is that income is a variable factor and not a structural or systematic tool for discrimination.
On the other hand, caste is structural and systematic discrimination and poverty is a consequence of such discrimination. Various surveys have confirmed that the other backward classes, Scheduled Castes and Scheduled Tribes are over-represented in the proportion of poor. The forward caste groups are considerably better off as a class or group, even if there are poor individuals amongst them. Therefore, the reservation has always dealt with class poverty. By determining a class on the basis of economic criteria – income below Rs 8 lakh per annum of a family or individual – the EWS quota, ex facie, infringes the principles of constitutional equality and renders the concept of reservation, as known to the Indian Constitution, virtually unrecognisable. In short, EWS is ambiguous, arbitrary and alien to the established principles of constitutional equality.
The Dravidian Movement has a chequered history when it comes to social justice and especially affirmative action. The Justice Party (South Indian Liberal Federation) introduced and implemented the Communal Government Order in 1926, forming the basis for reservation policies in education and employment. Over the next 10 decades, the Dravidian Movement systematically extended reservations to marginalised communities. As a result, Tamil Nadu has been a pioneer in formulating and implementing reservations.
One of the earliest setbacks to affirmative action of the then Madras State was the State of Madras vs. Champakam Dorairajan 1951, wherein the Supreme Court struck down the 1926 reservation policy. This eventually led to political mobilisation that resulted in the very first constitutional amendment to include Backward Classes within Article 15 of the Constitution and has now formed part of the basic structure of the Constitution.
Over the next 60 years, affirmative action policies were successfully introduced and implemented to alleviate the caste-based discriminatory structures and age-old inequalities that prevail within society. A composite understanding of social justice has helped formulate special provisions for women, Persons with disabilities (differently-abled persons) and transpersons to provide substantive societal inclusion and social justice.
Ultimately, issues going to the root of our Constitution and the core of our national character are seldom determined by the courts. The way ahead and out of the constitutional conundrum of Janhit Abhiyan judgment lies in taking forward the Social Economic and Caste Census as an empirical basis to understand structural disadvantages in society. Though the 103rd Constitutional Amendment was enacted before the 2019 General Elections to the Parliament, political mobilisation of the discourse around reservation has now been enabled in the lead-up to the 2024 elections. The Dravida Munnetra Kazhagam has consistently opposed the concept of EWS quota, in its present form, and has called for an all-party meeting in Tamil Nadu to discuss the next steps forward, in addition to committing to filing a review of the Janhit Abhiyan judgment.
The writer is an advocate and DMK Spokesperson. This article has inputs from Dhileepan Pakutharivu
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