General Category EWS quota has to pass basic structure test
By Satya Prakash
The Constitution 103rd Amendment Act, 2019, providing for up to 10% reservation to economically weaker sections (EWS) of General Category in education and public employment over and above the existing quota for SCs, STs and OBCs has triggered a fresh debate on the divisive issue.
Passed by Parliament in two just days and assented to by the President on Saturday, it takes total reservation to 59%, much beyond the 50% ceiling fixed by the Supreme Court in the Indra Shawney case (1992), popularly known as Mandal Case. It also extends reservation to private aided and unaided educational institutions.
Various social groups (not covered under the existing quota benefits) in Gujarat, Rajasthan, Maharashtra, Haryana and certain other parts of the country have been demanding reservation, often by resorting to violent agitation. But coming barely few months before the Lok Sabha elections, the political motive behind the move is bound to be questioned.
The EWS among the General Category have largely remained excluded from higher educational institutions and public employment on account of their financial incapacity to compete with economically more privileged sections of society. Also, the benefits of existing reservations under clauses (4) and (5) of Article 15 and clause (4) of Article 16 are generally unavailable to them.
It’s for this reason that the Act amends Articles 15 and 16 of the Constitution and adds an additional clause i.e. clause 6 to each of the two Articles. But EWS quota law is likely to hit legal hurdles for more than one reason. An NGO has already filed a petition in the Supreme Court challenging the validity of the Constitution 103rd Amendment Act, 2019, on the grounds that it violates the basic structure of the Constitution.
The new quota law exceeds the 50% ceiling fixed by the Supreme Court in Indra Shawney case. There is speculation regarding placing the Constitution 103rd Amendment Act in the Ninth Schedule of the Constitution to shield it from possible judicial scrutiny. But the top court has already ruled in IR Coelho's case in 2007 that there is no blanket immunity from judicial review available to a law placed in the Ninth Schedule.
Placing of a law in the Ninth Schedule after the IR Coelho verdict only changes the level of judicial scrutiny as a two-fold test would be applied to test its validity. First, it would be examined whether the law violates a provision in Part-III of the Constitution (Fundamental Rights) or not. If, yes, then it would be further examined if the violation also amounts to violation of basic structure of the Constitution as well.
Ultimately, the Supreme Court will have to judge whether breaching of the 50% ceiling on reservations amounted to violation of basic structure of the Constitution or not.
Further, imposing reservations on unaided institutions has also raised questions on the State passing on its burden on the private sector. It’s being seen as an arbitrary move as it goes against Supreme Court’s Constitution Bench verdicts in TMA Pai Foundation (2002) and PA Inamdar (2005), which said the State’s reservation policy cannot be imposed on unaided educational institutions.
There have been demands from various quarters, including some political leaders, that reservation should be extended to private sector as very few jobs are available in the government sector. It appears the government is testing waters. If the amendment, which provides for quota in private aided and unaided educational institutions, is upheld by the Supreme Court, the demand to extend quota in private sector jobs will gain further momentum.
Caste-based quota has been very divisive and runs counter to the objective of achieving a casteless society as envisaged by Dr BR Ambedkar. For the first time, caste will not be a criterion for quota in India under this law. The Supreme Court may or may not uphold the new quota law. But the fact is that scope for merit in the system is getting restricted in India is something to worry about.
