The Economically Weaker Section or EWS quota will come in for judicial scrutiny soon. But it’s not only a matter for the judiciary, India’s Parliament should revisit the law too.
The Madras High Court has nixed the implementation of 10 per cent EWS reservation in All India Quota in medical admissions — popularly known as AIQ in NEET— and said that it can be implemented only with the approval of the Supreme Court. Meanwhile, 27 doctors have challenged the Union government notification to implement the OBC and EWS quota in medical education. The Supreme Court has issued notice to the Narendra Modi government and sought its response in this matter. Not pronouncing a judgment means that EWS reservation will be put on hold as far as medical admissions are concerned.
This will probably be the first legal test the 103rd Constitution Amendment Act of 2019 will face. Meanwhile, a bunch of petitions have been filed in the Supreme Court (Janhit vs Union of India) to challenge the constitutionality and legality of the EWS quota and these are yet to be taken up by the apex court.
The EWS quota literally may mean quota for the economically weaker sections. But in the case of this act, SC, ST, OBCs are not considered poor or EWS. This amendment gives power to the State to make provisions for the reservation of appointments or posts in favour of any economically weaker section of citizens other than SC, ST and OBCs.
Currently, there is an income threshold of Rs 8 lakh per annum to avail this quota. So, we can say that this quota is for those poor or middle-class persons who belong to ‘upper’ castes of various religions.
There are four reasons why the EWS quota needs a rethink, even at the legislature level.
Also read: Reactions to OBC medical quota are exposing Indians’ flawed merit argument all over again
A law in haste
First, this law was passed in haste. It was legislation by stealth. The Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 was introduced in Parliament unannounced on 8 January 2019, as if some national security matter was involved. It was passed in both the houses within 48 hours, and got presidential approval the next day.
The Constitution (One Hundred and Third Amendment) Act, 2019 was notified on 12 January 2019 in the Union gazette. As this was a Constitution amendment bill and the purpose of the bill was to insert clause15(6) and 16(6) in the chapter on Fundamental Rights, so it should have been discussed thoroughly in the highest law-making body of India — Parliament. Ideally, the draft should have been circulated to the parliamentarians before its introduction, so that they could go through the bill and prepare their responses. Ideally, such bills with far-reaching implications should be sent to department-related committees for wider discussion and consultation. It’s not illegal to introduce and pass a bill in haste, but this is certainly against constitutional morality and propriety. The bill didn’t have a chance to go through proper scrutiny of Parliament.
Where’s the data?
Second, this Constitution amendment is based on a wrong or unverified premise. The Statement of Object and Reason in the bill clearly mentions that: “The economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.” This is at best a wild guess or a supposition because the government has not produced any data to back this point. As a matter of fact, the Union or state governments have no such data to prove that ‘upper’ caste individuals, who have less than Rs 8 lakh annual income, are not adequately represented in government jobs and higher educational institutions. There is a strong possibility that they are actually over-represented in these places.
My assertion is based on the fact that we have different data to prove the under-representation of SC, ST, OBCs. That implies that ‘upper’ castes are over-represented. I will wait for the caste enumeration in census in this matter. I hope that the Union government will include the column of caste in Census 2021, so that if the judiciary asks for data in the EWS case, the government can provide it. Without any data to prove the under-representation of the EWS upper castes, bringing them under the ambit of reservation is bad law.
There is one more problem in this regard. The SC and ST quota is based on their total population. OBC population, according to the Mandal Commission, is 52 per cent, but as there is a cap of 50 per cent on reservation, the OBCs got 27 per cent. But what is the rationale for the 10 per cent quota for the EWS? Why not 7 per cent, or 15 per cent? It sounds arbitrary.
Also read: How UPSC ‘reserve list’ helps SC/ST candidates & why it’s not a ‘backdoor entry’ for IAS
Breaches reservation cap
Third, there is a cap on reservation. It was not in the original Constitution and Parliament never put a cap. But in the Indira Sawhney case, the nine-judge Constitution bench put a cap of 50 per cent. The judgement says that: “Reservation being an extreme form of protective measure or affirmative action it should be confined to a minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality, the principle of balancing equality ordains reservation, of any manner, not to exceed 50%.”
The EWS quota breaches this limit, without even putting this issue into consideration. In the purpose statement of the bill, this issue finds no mention.
Also read: Caste census is important — whether you are for or against reservation
Who is ‘backward’?
Fourth, this amendment is against the spirit of the Constituent Assembly. The provision of reservation in the Constitution finds place in clause 16, which discusses equality. In the original draft tabled before the Constituent Assembly, it was said:
(1) There shall be equality of opportunity for all citizens in matters of employment under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or any of them by ineligible for any office under the State.
(3) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any class of citizens who in the opinion of the State are not adequately represented in the services under the State.
It was the Drafting Committee under the chairmanship of Dr B.R. Ambedkar that inserted the word “backward” between the words “in favour of any” and “class of citizens”. This term “backward” was finally approved by the Constituent Assembly and became part of the Constitution.
Now the question is, do the EWS upper caste people pass the test of ‘backwardness’? Has the government conducted any study to find out the state of backwardness of this group of people? Do they face any stigma or discrimination? Economic backwardness is quite a fluid identity. It can change at any moment. Rich people can become poor and vice versa at any moment. Moreover, it has more to do with individuals and families, rather than a cluster of castes. Whereas being a tribal and being someone from a class of people who faced/facing untouchability, are fixed identities. Social and educational backwardness of a group is also comparatively fixed.
This amendment makes the provision of reservation just another poverty alleviation programme, which is not the purpose of reservation. Reservation is a constitutional scheme to ensure the participation of backward classes in the nation-building process. It was there to ensure representation of the backward classes. The EWS quota is the subversion of the constitutional scheme for reservation.
The author is the former managing editor of India Today Hindi Magazine, and has written books on media and sociology. He tweets @Profdilipmandal. Views are personal.