EWS Quota Creates Principal of Exclusion

The Constitution (One Hundred and Third Amendment) Act, 2019, was enacted to provide a 10% reservation to Economically Weaker Sections (EWS) in colleges and government jobs by amending Articles 15 and 16.

The Supreme Court (SC) upheld the Act on Monday while hearing 40 petitions challenging the law breaching the 50% national cap on reservation set by the court itself in 1992 and whether it changed the Constitution’s basic structure.

Though Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, it also allows special provisions for the “advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.

Similarly, Article 16 prohibits employment on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them but also allows provision for the “reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.

The Act introduced new clauses in Articles 15 and 16 which enabled the State to make provisions for the reservation of EWS in higher educational institutions, including private (aided or unaided).

A large section of the population has been historically subjected to stigma and discrimination on the basis of the caste system for centuries. Their caste was a huge barrier to access education, employment and overall a better standard of living. 

On the other hand, a few socially and educationally advanced castes has had access to a disproportionate amount of higher education and public employment. Science does not have any evidence of proclaimed genetic superiority of one class of citizens over another. However, because of their acquired social and cultural capital over the years, these castes enjoyed a higher status, leading to a highly unequal social structure.

Therefore, the Constitution aimed to redress the injustice and correct the imbalance in higher education and public employment by delineating an ‘equality code.’

Articles 14 (equality before law), 15 and 16, among others, provide for correcting this historical and structural injustice. The Other Backward Classes (OBC) got reservation only in 1990 following the implementation of the Mandal Commission report, which was upheld by the top court.

Understandably, the basis of reservation was to undo the caste-based structural and historical injustice. 

Economic status-based reservation in not new. In the Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992, the SC quashed the government’s 10% order. A lack of constitutional basis and breaching the 50% quota ceiling meant that the government could not introduce reservation on the basis of economic status.

The UPA government revived its efforts to provide such reservation with the constitution of the Commission for Economically Backward Classes (CEBC), or the Sinho Commission, in 2010, which suggested the introduction of broad provisions in the Constitution and policies of the State (Centre and state governments) to facilitate the welfare of EWS.

The Narendra Modi government introduced the 103rd Amendment Bill in 2019 on the basis of the Sinho Commission report.

The criteria for defining EWS are as follows:  

1. A general category person (not covered under any other reservation) with a gross annual income below Rs 8 lakh.

2. The exclusion criteria are as follows: 

1. 5 acres of agricultural land and above;

1. Residential flat at of 1,000 sq ft and above;

1. Residential plot of 100 sq yards and above in notified municipalities;

2. Residential plot of 200 sq yards and above in areas other than the notified municipalities.

Since its inception, the law has been controversial. The 103rd amendment directly benefits upper-caste Hindus, who are already represented in majority in government facilities and corporate entities and own a disproportionately large amount of public health.

Articles 15 and 16 mention special provisions for communities affected by historical and social backwardness. By introducing the economic basis of reservation in these Articles, governments seem to have misunderstood the basis of affirmative action.

The apex court has time and again reaffirmed the 50% ceiling on reservation (M.Nagaraj & Others vs Union Of India & Others)—introducing a separate quota for upper castes naturally breaches this cap and is difficult to comprehend. Furthermore, the Indira Sawhney case mandated that mere economic deprivation cannot be a basis of reservation as it does not adequately explain backwardness of a community.

These issues question the constitutional validity of the EWS reservation. 

Exclusivity of the quota

The EWS quota clearly states that 10% of seats in the general category will be reserved for EBC, who do not benefit from other reservations. This creates the ‘principal of exclusion’ by including only a section of a population and excluding others from its purview.

Previous reservation criteria were not based on caste per say but rather on social and educational backwardness arising due to the caste-based hierarchical system. The general category seats, as the name suggests, are open to all meritorious students coming from all categories. Therefore, there was never a case of exclusion in the reservation system. The EWS quota has introduced that exclusion.

Reservation is for representation

That a certain section of the population was inadequately represented in government jobs and higher education institutes paved the way for reservation. The elite castes are more than adequately represented. Therefore, reservation for EWS, especially for the forward castes, is not a valid idea. Such a quota will only further create unequal and social structures we are struggling to overcome in spite of affirmative action.

Criteria of EWS

The Rs 8 lakh income criterion was challenged in the SC. The same income criterion is used for identifying the creamy layer of OBC, which is then identified as not eligible for reservation. Therefore, a particular income criterion to determine progression of a community (here, the OBC) is applied to determine the backwardness of a community (here, the EWS, unreserved category).

The top court questioned Such unequal comparison and the government set up a panel to review the criteria of EWS reservation in November 2021. The panel recommended the same criteria for the said quota. An annual income of Rs 8 lakh is a high number and runs a high risk of inclusion of economically advanced classes, who don’t need additional quota. So, despite the panel’s report, the validity of the criterion for EWS is highly questionable.

Economic criteria to determine EWS

The Bill categorically mentions that “annual income in the last one year will be considered for determining EWS”. Economic situation by itself is a labile entity. In the Indira Sawhney case, the court upheld the creamy layer criterion in OBC reservation and stated that there should be economic advancement of such a nature that it necessarily means social advancement.

The Sinho Commission had mentioned using the EWS criterion to include such families which have income below the non-taxable limit (as defined from time to time). So, if that is the basis, the current non-taxable income is Rs 2,50,000. The panel, framed to reconsider the criterion, still went ahead and decided that Rs 8 lakh can still be the upper limit.

As per the panel, if adequate financial planning can be done, even income up to Rs 8 lakh can be non-taxable. According to multiple surveys, including the Central government’s 2015-2016 Economic Survey, 95% of the population falls below the Rs 8 lakh limit. This leads us to believe that the government assumes that this proportion of the population needs a quota in jobs and education.

Economic criteria cannot be equated to social backwardness

Social backwardness is a result of centuries-old accumulated injustice. Even when a Dalit family progresses economically, it still faces social ostracisation in one way or the other. Affirmative action cannot depend solely on economic criteria as evidently economic progression cannot undo the social fabric of caste-based Indian society.

The amendment introduces reservation solely on economic criteria. A poor forward-caste family may not have resources to compete in education or jobs. However, the family can still cope with the stress with the help of a solid social and cultural capital. This capital is earned after centuries of a hierarchical social system and not a variable entity like family income.

Whereas, an SC or ST family does not possess such support structures and therefore needs affirmative action in the form of quota. To equate economic backwardness with that of social backwardness is clearly invalid.

Welfare measures for EWS

The government can provide economic benefits to EWS in the form of scholarships. With education and support to acquire skills from the government, a candidate is better placed to get employment too. Notably, such welfare measures alone cannot uplift communities who are backward due to their caste. 

Reservation for EWS in medical post-graduation 

An MBBS has a range of employment opportunities. An MBBS from a government institute has to serve a bond in which he/she receives a good salary. An MBBS with adequate financial resources can compete with open category students on merit. Introducing a separate quota at this stage may create an assumption that MBBS are not employable and hence need quota. This is a gross misjudgement.

Lack of debate and consideration

The 103rd Amendment was passed rather quickly both in the Lok Sabha and the Rajya Sabha. Even though it had the Opposition’s support, such a fundamental change in Articles 15 and 16 needed detailed discussions and debates. The fact that it was not debated enough led to such a detailed scrutiny from civil society and the court of law. 

Evidently, the new quota is disturbing the chances of students. The numbers of postgraduate seats in MD/MS/Diploma are already limited. The EWS quota is creating another hurdle for students who want to enter reputed institutes.

The writer is an MBBS.