Supreme Court’s three-question test for validity of 10% EWS quota

Subject- Polity

A Constitution Bench, hearing petitions against the 10% quota for Economically Weaker Sections in government jobs and admissions, will examine whether the Constitution (103rd Amendment) Act, by which it was introduced, violates the basic structure of the Constitution.

EWS quota: What are the issues fixed by the Supreme Court?

“Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria”;
Whether it (the amendment) can be said to breach the basic structure…by permitting the state to make special provisions in relation to admission to private unaided institutions;
Whether the basic structure is violated by “excluding the SEBCs (Socially and Educationally Backward Classes)/ OBCs (Other Backward Classes)/ SCs (Scheduled Castes)/ STs (Scheduled Tribes) from the scope of EWS reservation”.

What is 103^rd amendment?

The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to EWS other than backward classes, SCs, and STs in higher educational institutions and initial recruitment in government jobs. The amendment empowered state governments to provide reservation on the basis of economic backwardness.
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. The additional clauses gave Parliament the power to make special laws for EWS like it does for SCs, STs, and OBCs.

Sinho Commission

The EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho. The commission, which was constituted by the UPA government in March 2005, submitted its report in July 2010.
The Sinho Commission recommended that all below-poverty-line (BPL) families within the general category as notified from time to time, and also all families whose annual family income from all sources is below the taxable limit, should be identified as EBCs (economically backward classes).

How is EWS status determined under the law?

Under the 2019 DOPT notification, a person who was not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, was to be identified as EWS for the benefit of reservation. The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.

What is the basis of challenge to the amendment by petitioner?

The amendment violates the basic structure of the Constitution. Although there is no clear definition of basic structure, any law that violates it is understood to be unconstitutional.
The special protections guaranteed to socially disadvantaged groups are part of the basic structure but promising special protections on the sole basis of economic status violates basic structure
It violates the Supreme Court’s 1992 ruling in Indra Sawhney &Ors v Union of India, which upheld the Mandal report and capped reservations at 50 per cent.
The court had held that economic backwardness cannot be the sole criterion for identifying a backward class
Private, unaided educational institutions have argued that their fundamental right to practise a trade/ profession (Article19(1)(g)) is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

Governement’s stand

Under Article 46 of the Constitution, part of Directive Principles of State Policy, the state has a duty to protect the interests of economically weaker sections
- Article 46 “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.”
To sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered
The SC’s 2008 ruling in Ashoka Kumar Thakur v Union of India, in which the court upheld the 27 per cent quota for OBCs
- The court accepted that the definition of OBCs was not made on the solecriterion of caste but a mix of caste and economic factors; thus, there need not be a sole criterion for according reservation.