EWS reservation: Recognising the poor
Dr Ashwani Kumar writes: Economic deprivation, with its attendant consequences, must be addressed as part of the government's affirmative action policies for empowerment of the poor, not covered by caste-based reservation. The verdict in the EWS case is in keeping with the vision of a dynamic Constitution with equity at its heart.
The defining logic of the majority view, also accepted in principle by the minority, is that the debasing impact of poverty on human dignity is caste neutral. (Express Photo: Prashant Nadkar, File) The Supreme Court’s majority judgment in Janhit Abhiyan is a watershed moment in the nation’s endeavour to advance inter-generational justice. It views reservation in government employment and educational institutions as a tool of affirmative action and reparative justice, beyond identity and representation. Endorsing the 103rd constitutional amendment, the Court has expanded the sweep of affirmative action by extending the benefit of quotas to the hitherto excluded economically weaker sections (EWS) of the “forward classes”. It repelled the legal challenge to the amendment, mounted principally on the ground that reservation on the basis of economic backwardness alone was a species of class discrimination constitutionally impermissible and violative of the Constitution”s basic structure (Kesavanand Bharti, 1973). The Court also rejected the argument that the exclusion of SCs, STs and the non-creamy layer of OBC’s from the 10 per cent reservation was discriminatory and that the amendment breached the judicially-mandated 50 per cent cap on reservation. The majority thus endorsed the central premise of the amendment — economic deprivation, with its attendant consequences, must be addressed as part of the government’s affirmative action policies for empowerment of the poor, not covered by caste based reservation.
The defining logic of the majority view, also accepted in principle by the minority, is that the debasing impact of poverty on human dignity is caste neutral. Indeed, the ravages of history and histories of marginalisation including our own experience as an oppressed colonial nation tell us that “calculated oppression” is a function of economic deprivation that scars the soul in a dehumanising perpetuation of poverty. An acute awareness of the social and economic inequities that have inspired the Constitution’s preambular promise, elaborated in the inter-play of Directive Principles (Articles 38, 39A, 46) and Fundamental Rights provide the edifice for the Court’s majority judgment. In upholding the challenged amendment, the majority reasoned that reservation was an exception to the equality principle and therefore, not a part of the basic structure of the Constitution. It could thus be modulated for the benefit of those not already availing of the benefits of affirmative action. It held that the new beneficiaries could be treated as a distinct and separate category for the purpose of reservation with reference to the twin constitutional tests of rational differentiation and the object sought to be achieved. Breaching of the 50 per cent cap on reservation has been justified on the basis that it was judicially conceived only in respect of the backward classes and is not “inflexible and immovable for all times to come”.
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