Supreme Court upholds 10 per cent EWS quota by 3:2 verdict

Satya Prakash

New Delhi, November 7

The Supreme Court on Monday upheld the constitutional validity of 10 per cent quota for Economically Weaker Sections (EWS) in government jobs and educational institutions, saying it didn’t violate basic structure of the Constitution.

By 3:2 majority, a five-judge Constitution Bench – which had reserved its verdict on September 27 after hearing the petitioners, the Centre and others — declared that the 103rd constitutional amendment providing for the EWS quota was valid.

There were four separate judgments. Justice Dinesh Maheshwari, Justice Bela M Trivedi and Justice JB Pardiwala – who delivered separate verdicts — upheld the validity of EWS quota law, while Justice S Ravindra Bhat delivered a dissenting verdict. CJI UU Lalit agreed with Justice Bhat.

The minority verdict faulted the 103rd Amendment and declared it unconstitutional for excluding the SC/ST and Other Backward Classes (OBCs) from the ambit of EWS reservation.

However, the majority said the EWS quota law did not violate the equality code of the Constitution or the basic structure of the Constitution. On the issue of exceeding the 50 per cent ceiling, the majority said it would not apply to EWS reservation.

“The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria,” Justice Maheshwari held.

He said the amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions or for excluding the socially and educationally backward classes (SEBCs)/OBCs/ SCs/STs from the scope of EWS quota.

Justice Maheshwari said the amendment did not cause any damage to the basic structure of the Constitution on account of breach of the 50 per cent ceiling “because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.”

In her concurring verdict, Justice Trivedi said EWS quota was based on “reasonable classification”. As laid down by this Court, just as equals cannot be treated unequally, unequals also cannot be treated equally,” she said.

Justice Trivedi said it’s time to revisit the reservation/affirmative action system followed in India. “However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism,” she said.

Justice Pardiwala said that reservation should not continue for an indefinite period. “The idea of Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years. However, it has continued past seven decades. Reservation should not continue for an indefinite period of time so as to become a vested interest,” he said.

Noting that the 103rd Amendment signified Parliament’s intention to expand affirmative action to hitherto untouched groups who suffer from similar disadvantages as the OBCs competing for opportunities, Justice Pardiwala said, “If economic advance can be accepted to negate certain social disadvantages for the OBCs, the converse would be equally relevant, at least for considering the competing disadvantages of the EWS.”

He hailed the 103rd Amendment for offering “a basis not frowned upon by Article 15(1) or 16(2) for providing a population generic and caste/religion/community neutral criteria” which also harmonized with the eventual constitutional goal of a casteless society.

Holding that development and the spread of education have resulted in tapering the gap between different classes to a considerable extent, Justice Pardiwala said, “As larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories so that the attention can be paid toward those classes which genuinely need help.”

The Centre had defended the EWS quota law, asserting that it did not violate the basic structure of the Constitution and did not disturb the 50 per cent existing quota meant for SCS, STs and OBCs. It has been given for the first time without eroding the “totally independent” reservation for SCs, STs and OBCs, it had contended during the hearing.

There are 40 petitions challenging the 103rd Constitutional Amendment Act, 2019, which introduced 10 per cent EWS reservation in public employment and educational institutes over and above the existing 50 per cent reservation to SCs, STs and Other Backward Classes.