Recently, a five-judge constitution bench of the Supreme Court decided to go ahead with the hearing of batch of petitions challenging 10 per cent reservation for Economically Weaker Sections (EWS) amongst the general category of population introduced in 2019.
Background –
- EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho.
- The Commission for Economically Backward Classes was constituted by the then Union government in 2005, and submitted its report in 2010.
- To implement this, a Cabinet Note was prepared by the Ministry of Social Justice and Empowerment in 2019.
- Based on this, the Cabinet, in 2019, decided to amend the Constitution (103rd Amendment) to provide reservation to EWS.
What is the amendment?
- It provides for 10% reservation in government jobs and educational institutions for EWS, by amending Articles 15 and 16 that deal with the fundamental right to equality.
- While Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, Article 16 guarantees equal opportunity in matters of public employment.
- An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS like it does for Scheduled Castes, Scheduled Tribes and Other Backward Castes. The states are to notify who constitute EWS to be eligible for reservation.
Why is it challenged?
The law was challenged primarily on two grounds –
- First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
- The petitioners have also challenged the amendment on the grounds that it violates the SC’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
- Another challenge has been made on behalf of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.
Arguments of government –
- The government argued that under Article 46 of the Constitution, part of Directive Principles of State Policy, it has a duty to protect the interests of economically weaker sections. “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation,” the law says.
- On the challenge that the amendment violates the Basic Structure, the government argued that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.
- Countering the claims that the amendment violates the Indra Sawhney principle, the government relied on a 2008 ruling— Ashok Kumar Thakur v Union of India, in which the SC upheld the 27% quota for OBCs. The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors, to prove that caste need not be the sole criterion for according reservation.
- For the unaided institutions, the government argued that the Constitution allows the Parliament to place “reasonable restrictions” on the right to carry on trade.
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