The Hindu Editorial Analysis- 12th November 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

In EWS Verdict, a discrimination antithetical to Equality

Context

• The Supreme Court recently upheld the 103rd amendment to the Constitution by a 3:2 majority.

Special measures:

• Article 15: Enabling the state to take special measures (not limited to reservations) in favor of EWS generally with an explicit sub-article on admissions to educational institutions with maximum 10% reservations.
• Article 16: It allows 10% reservations (and not special measures) for EWS in public employment.

Highlights of the Judgement:

• Caste could not be the sole determinant of backwardness.
• Social groups who would be most deserving must necessarily be a matter of continuous evolution.
• Emerging forms of backwardness: State should uncover emerging forms of backwardness in an evolving society.
• The gates would be opened only to permit entry of the most distressed: Any other inclusions would be a serious abdication of the constitutional duty of the State,” the Court warned
• Article 14 and Article 16: Grave and important decisions in reference to Article 14 and Article 16 must be made on the basis of “contemporaneous inputs.
• Neither educational nor economic backwardness were enough: both may contribute to social backwardness.
• 50% ceiling: Applicable only to caste-based quotas and not for EWS reservation is constitutionally unsustainable.

 Views of Judges in the bench(3:2 judgment) against the EWS:

• Violates equality norm: 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.

 What court suggested?

• Identification of a group as backward should not be solely on the basis of caste: New practices, methods and yardsticks” need to be evolved
• class may be a factor-since a class is “an identifiable section of society.
• Line between ‘past’ and ‘emerging’ forms of backwardness: Progressive advancement of all citizens on all fronts, i.e., social, economic and educational.

 Issue with the current Judgment:

• The Supreme Court judgment of 2015: It has been ignored entirely in the current debate.
• Judgment: State should not go by the “perception of the self-proclaimed socially backward class” on whether they deserved to be categorized among the “less fortunates.

What was the basis of Challenge

• It violates the basic structure of the Constitution: Special protections guaranteed to socially disadvantaged groups is part of the basic structure
• The 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
• Reservation at 50 per cent: It violates the Supreme Court’s ruling in Indra Sawhney & Ors v Union(1992) of India, which upheld the Mandal report and capped reservations at 50 per cent.
• Private, unaided educational institutions: The fundamental right to practice a trade/ profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

 Castes fighting to be declared as backward:

• Meenas and the Gujjars in Rajasthan
• Patels in Gujarat
• Marathas in Maharashtra

 Basic Structure of Constitution:

• The Kesavananda Bharati judgment(1973) introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism
• The Supreme Court recently upheld the 103rd amendment to the Constitution by a 3:2 majority.

Way Forward

• Open to all communities: The Government should consider both opening up the EWS quota to all communities and keeping the income criterion much lower than the ceiling.
• Justices Gogoi and Nariman: “matrix” to justify reservations: List of differently-weighted categories, ranging from income, family situation, disability, education level, etc, in addition to birth in a particular caste.
• Potential beneficiaries:The Government needs to establish a group of potential beneficiaries suffering from backwardness in the present scenario.
• Constitutional amendment: It might have survived the ‘basic structure’ test, the hardest test for governments will be the manner in which they give effect to the amendment.