On the face of it, a new kind of reservation in education and jobs solely based on income or economic criteria was destined to face several constitutional hurdles. 


What was the issue?

Given that the special provision in favour of ‘Economically Weaker Sections’ (EWS) among those who are not eligible for community-based quotas meant for Scheduled Castes, Scheduled Tribes and Other Backward Classes, was introduced through an amendment to the Constitution, only a demonstration that the new quota violated the basic structure of the Constitution would have succeeded in dislodging it.


What did the Supreme Court observe?

  • By a majority of three to two, the Supreme Court of India has ruled that the amendment does not violate the basic structure.
  • In the process, the Court has recorded a major paradigm shift in its conception of what constitutes valid affirmative action. For the first time, it has upheld a kind of reservation that specifically excludes those from the three existing categories of beneficiaries and is extended solely on the basis of economic criteria.



  • In Indra Sawhney (1992), a nine-judge Bench upheld OBC reservation, but favoured exclusion of advanced sections of the beneficiary communities from its purview, it introduced a form of economic criteria for the first time. However, the criteria were used to exclude individuals, while the groups continued to be eligible for reservation.
  • At the same time, the Court struck down a provision for 10% reservation for economically backward sections introduced by the Congress regime, on the ground that the Constitution does not provide for reservation solely based on economic criteria.
  • The logic behind this scheme of affirmative action was that reservation is a tool of reparation for groups excluded from mainstream avenues of advancement due to caste discrimination, while it should not become a benefit or reward for individual members of the same groups who may have made reasonable progress.


How did the EWS quota change this dynamic?

  • In 2019, the government amended the Constitution to provide reservation solely on economic criteria to sections other than those enjoying reservation under the categories of SCs, STs and OBCs.
  • The resort to economic or income criterion as the sole marker for identifying a beneficiary is obviously unsustainable from the point of view of equality of opportunity.
  • All five judges agree that the introduction of an economic criterion does not violate the Constitution. However, Justice S. Ravindra Bhat, with Chief Justice of India U.U. Lalit, concurring, has correctly found that the exclusion of groups that already enjoy reservation from accessing this new form of affirmative action violates the equality norm, which is a basic feature of the Constitution.


Why socially disadvantaged communities from EWS were excluded?

  • The exclusion of communities that benefit from existing reservation norms is necessary to achieve the intended object of emancipating economically weaker sections and, if they are included, it may undermine the entire idea of providing such reservation.
  • This approach is clearly flawed because this creates a vertical reservation scheme based on economic weakness, a factor that could be applicable to all communities, but consciously excludes a large segment.
  • There was some merit in the argument that reservation cannot be used as a poverty alleviation measure, and that a collective remedy meant to be compensatory discrimination in favour of historically deprived classes cannot be converted into a scheme to identify individuals based on their low-income levels and confer the same benefit.


Way forward

  • By introducing an income criterion and barring OBCs, besides SC/ST communities, from the EWS silo, there is a clear violation of equality in their eligibility to avail of a part of the open competition opportunities.
  • The Government should consider both opening up the EWS quota to all communities and keeping the income criterion much lower than the ceiling, perhaps at the same level as the income tax slab, to identify the ‘creamy layer’ so that some poorer sections of communities, if they are crowded out on the OBC or SC/ST merit list, could still avail of some residual benefits under the EWS scheme.


SourceThe Hindu


QUESTION – The Supreme Court has upheld the constitutional validity of the 103rd Constitutional Amendment Act. What was the contention? Explain in brief.