SC’s EWS order raises more questions than it answers

The Union Government said the Major Sinho Commission report was used as a basis for the 10% quota legislation, which interestingly is not mentioned in the majority judgment.

Published: 26th November 2022 05:23 AM  |   Last Updated: 26th November 2022 05:23 AM   |  A+A-

Supreme Court.

Supreme Court. (Representational Image)

Express News Service

The Supreme Court’s verdict upholding the 103rd Amendment as not violating the basic structure of the Constitution has opened more doors than it has closed. For starters, one is left to contemplate the speed exhibited by the Government towards instituting reservation for economically weaker sections (EWS) among communities not classified as Other Backward Classes or Scheduled Castes or Scheduled Tribes.

After an attempt in 1991, that was deemed unconstitutional by the SC in 1992, and the constitution of the Major Sinho Commission in 2005-06, the 10% EWS quota surfaced in 2019. It was approved by the Union Cabinet on January 7, 2019 (Monday), and came into force on January 14 (Monday). Four opposition parties DMK, RJD, IUML and AIMIM opposed the bill in Parliament ahead of the 2019 general elections.

The Ministry of Human Resources Development, on January 15, claimed the quota would be implemented across 40,000 colleges and 900 universities, and additional seats would be created to implement the reservation. In contrast, the saga of reservation quotas for OBCs started in 1953, if we were to consider the first Backward Classes Commission (Kaka Kalelkar Commission) as the start point followed by the second Backward Classes Commission (Mandal Commission) in 1979. The quota was implemented in parts: in 1992 (jobs), 2006 (central educational institutions), and 2021 (all India quota). The case of reservations for SCs and STs vis-a-vis implementation is similar.

The Union Government said the Major Sinho Commission report was used as a basis for the 10% quota legislation, which interestingly is not mentioned in the majority judgment. This Commission was constituted by the UPA Government to study economic backwardness among Forward Castes. Its methodology involved conversations with government functionaries, media persons and activists.

The Mandal Commission report on which OBC reservation is based, on the other hand, used quantitative and qualitative data from case studies, census data, and interactions with experts. In addition, it conducted an expansive survey of two villages and one urban block in every district of the country. Also, the Commission obtained extensive evidence from the public through questionnaires published in newspapers.

This judgment also raises new concerns, as it changes the basis of reservation, from it being a tool for state intervention to correct historic inequities to one addressing transient life standards. In fact this quota was not rigorously questioned on the contemporaneous data on backwardness, the status of representation of groups and its potential impact on administrative efficiency.

These are the three questions so far raised to judge reservations. In fact, in this judgment, the five judges unanimously agreed that reservations solely based on economic standing are valid and that nothing precludes the state from creating a new criterion for affirmative action through constitutional amendment. The contention between the majority and the minority was if such a quota could be caste-agnostic or not.

Surveys reveal significant gaps in the proportion of SC, ST, OBCs in institutions of national importance, like IITs, NITs, IIMs, in bureaucratic positions and in Public Sector Enterprises. The story of SC, ST and OBC quotas so far has been marked by unwillingness, lax implementation, and above all a gaze that strips the beneficiaries of any and all sense of achievement. Studies also tell us that with the Rs 8 lakh annual income limit, the poor sections among the caste groups eligible for the EWS quota are not reaping the benefit.

The lack of informed deliberation of this issue, at a depth required, in courts, legislative assemblies, the parliament and the public sphere, has resulted in a semi-informed manufactured consent. An eerie normalcy prevails, in face of this judgment which could potentially impact how affirmative action will be instituted by governments in days to come. It also raises concerns around the issue of how ‘obiter’ (a non-binding remark) should be viewed. It is worth remembering that the 50% rule which is oft quoted in courts, was an obiter in MR Balaji v the State of Mysore in 1962, when the five-judge bench held that ‘generally’ reservations should be below 50%, which then became a part of the ruling in the Indra Sawhney & Others v. Union of India case, albeit without any study backing such a ruling.
Footnote is a weekly column that discusses issues relating to Tamil Nadu

Yazhini PM is a doctor and the State Deputy Secretary of the NRI wing of DMK & Vignesh Karthik KR is a doctoral researcher at King’s College London

India Matters


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