5 min readNov 27, 2022 09:08 AM IST
First published on: Nov 27, 2022 at 07:55 AM IST
The 10 per cent reservation quota for economically weaker sections (EWS) within the general category introduced through the 103rd Constitutional Amendment, 2019, has passed the basic structure constitutional test through a split verdict of 3:2.
The court approved addressing poverty through reservations on a par with other foundations of historical disadvantage and representation. Though relying on varying logic, the separate opinions, three concurring and two dissenting, approve purely economic-based reservations to achieve the constitutional vision of an egalitarian society and for “uplifting the poorest segments of society”. The dissenting opinion of the two judges rightly points out the flaws in the design of the EWS quota, of it being discriminatory against SC/STs and OBCs. That is not, however, the only limitation.
There is a consensus across the separate opinions on what the amendment seeks to achieve — overcoming poverty. The opinions in the same breath conflate, however, poverty with other concepts of destitution, deprivation, economic deprivation, economic injustice, etc., while also failing to ask whether the current executive criterion devised to identify EWS is suitable in achieving the egalitarian goal. Here lies the contradiction in the court’s approach.
The mandate of the so-called EWS quota since its debut in the 1990s has been focused on providing reservations based on economic criteria to “non-beneficiaries of reservations” without explaining why only those in the general category face economic disadvantages, and why only their economic disadvantages are to be addressed. The government followed this trend while constituting the ‘terms of reference’ of the Sinho Commission, on whose 2010 report the EWS amendment was enacted.
This foundational problem is exacerbated by the contradictory findings of the Sinho Commission. It identifies the need for affirmative action for the poorest or the “most economically deprived” within the general category and still proposes an annual family non-taxable income limit to identify EWS as such, ignoring its own intersectional or multiplicities of deprivations approach.
Human capital indicators, income and consumption of poor forward castes, as studies have shown, are more than double of that of SC/ST/OBCs. The dissenting judgment also notes that Sinho Commission’s assessment of empirical data also indicated affluence of poor general category on all parameters when compared to their SC/ST counterparts.
As I found in my research on reservation policy for the dominant castes, the caste privileged have privileges in terms of accumulation of social, economic and human capital – the perception of lagging behind in the race is based on the politics of caste and not empirical indicators.
This contradiction has continued in the central government’s devising of the EWS criterion which was critiqued by the Supreme Court in Neil Aurelio Nunes v Union of India for lacking any empirical basis.
The revised criterion now is only income-based, where individuals qualify as EWS whose annual family income is below Rs 8 lakh and who own agricultural land below 5 acres (to capture agricultural income).
The majority opinions fail to recognise the court’s jurisprudence that has repeatedly raised red flags on the method of EWS group identification and that such a high-income ceiling would ensure that middle classes, and not the poorest, end up siphoning the benefits.
The key implication of this development is that it actualises the key intent of the EWS quota — addressing political demands based on caste and not poverty. If one looks at the composition of the general category as a class, the intra-general category group dynamic becomes clear.
The sheer population dominance of forward-caste Hindus in the general category, to the exclusion of Hindu SC/ST/OBCs, eclipses the access of other religious minorities, who are the de jure beneficiaries of the EWS quota. The majority judgment overlooks these glaring flaws that ensure de facto preferential access to forward castes— which goes against its own ruling that EWS reservations are indispensable to achieve the egalitarian goal of uplifting the poor.
The writer is the author of Affirmative Action for Economically Weaker Sections and Upper-Castes in Indian Constitutional Law: Context, Judicial Discourse, and Critique
The dissenting opinion of the two judges rightly points out the flaws in the design of the EWS quota, of it being discriminatory against SC/STs and OBCs. (Express file photo by Praveen Khanna) 
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