The law providing quota to EWS or Economically Weaker Sections of non-SC/ST/OBCs Indians is under the judicial scanner, and the NDA government has found the rationale and validation for perhaps one of its most controversial and politically impactful legislation in a document produced at the time of the UPA government. Now, the burden of unconstitutionality and immorality pertaining to the implementation of the EWS quota does not lie solely with the BJP and NDA government. The Congress and its leaders such as Rajiv Gandhi, P.V. Narasimha Rao and Manmohan Singh had actually paved the way and, in fact, done the groundwork for the EWS quota. The BJP knew that the Congress cannot oppose the EWS quota.
The matter is in court and, at this juncture, the Supreme Court has only questioned the income cut-off decided under the EWS — fixed at Rs 8 lakh per annum — and not the law itself. The Narendra Modi government has defended the income criteria by citing the near-forgotten 2010 Sinho Commission report. The committee was constituted by the UPA government in 2006 to study the status of the Economically Weaker Sections of the upper castes or “General Caste” (non-SC/ST/OBC) population. Reservation on the basis of economic backwardness was not part of the constitutional scheme (social backwardness and under-representation were the only prerequisites).
The NDA government introduced the Constitution (124th Amendment) Bill in the Lok Sabha on 8 January 2019. On the same day, it was passed in the lower House and introduced in the Rajya Sabha and passed the next day, becoming one of the most hurried legislation in India. A perfect case of law-making by stealth.
Later, in reply to a question on 11 December 2019, the Social Justice Ministry informed the Rajya Sabha that “No Census/Survey has been conducted for the Economically Weaker Section category by this Ministry/Government of India as the reservation for EWS started only in January, 2019.” In fact, prior to the sudden implementation of EWS quota, the NDA government always maintained the position that “economic backwardness cannot be the sole criterion for providing reservation”.
The Modi government is still not in a position to present any data that can provide the basis for the 10 per cent EWS quota. In its recent affidavit submitted in the Supreme Court, the government defended the EWS income limit by saying that OBC creamy layer criteria can be used to determine who should come under the purview of this legislation — Rs 8 lakh figure comes from here. But by doing this, the government is ignoring the social and educational backwardness, factors that form the constitutional foundation of Article 340 and provide backing to the idea of the OBC reservation.
Selective reading of the Sinho Commission report
That the Modi government wants the court to take note of specific portions of the Sinho report becomes clear on a careful and complete reading of the document. The Rs 8 Lakh income limit is arbitrary. Whereas the Sinho Commission had a formula and recommended that: “All BPL families among GC (General Category) as notified from time to time and all those families among GC whose annual family income from all sources is below the taxable limit (currently Rs. 1,60,000/ annum and as may be revised from time to time) should be identified as EBCs (EWS).” (Page 98, Sinho Commission Report).
Importantly, the report never suggested that reservation in jobs and education should be provided to the Economically Backward Classes: “On the basis of the above (deliberations), this commission gathers the Constitutional and legal understanding that ‘Backward Classes’ cannot be identified for providing reservation in employment and admission in educational institutions on the basis of economic criteria” (Page 20, Sinho Commission Report).
However, the purpose of this article is not to critique the inadequacies of the arguments by the Modi government. I have already said that the EWS quota is a bad law and it should go.
Why UPA and Congress have to be blamed
If we go through the history of reservation in India, we will find that the SC and ST quota is more or less settled as far as political discourses are concerned. The contentious part is the OBC or the Socio-Educational Backward Classes Quota.
On 7 August 1990, then-Prime Minister V.P. Singh announced the implementation of OBC quota in government jobs. Back then, the Congress failed to support the move and raised the issue of poverty and economic backwardness to scuttle the reform. In his speech on 6 September 1990 in the Lok Sabha, Prime Minister and Congress leader Rajiv Gandhi argued for the inclusion of the economic criteria for the implementation of OBC quota and blamed the V.P. Singh government for not taking this aspect into consideration. He said: “The point is within a particular class who you want to help. Do you want to help those persons in a particular class, who are already well off? The fact is that within a class when you want to give some assistance, it should go to the poorest.”
This was the first full-blown entry of ‘economic criteria’ in the quota debate. Prior to this, the quota was always about social backwardness and under-representation as clearly mentioned in Article 16 of the Constitution. This debate on poverty and opportunity finally led to the concept of ‘creamy layer’ within the OBCs after the famous Indra Sawhney judgment of the Supreme Court. This very idea of making reservation another poverty alleviation programme has finally culminated in today’s EWS quota law, Forward Commissions and Brahmin Development Boards, and so on.
If we see the history of the EWS quota, we will find that the policy process for it was first initiated by the Narasimha Rao government. The Rao government, on 25 September 1991, made provision for 10 per cent reservation for the economically backward sections that were not covered by any other existing quota. The memo was declared unconstitutional by the Supreme Court in the Indra Sawhney judgment in 1992. The court observed that “a backward class of citizens cannot be exclusively identified by economic criterion.”
But the quest for the EWS quota continued.
Twelve years later, the Manmohan Singh government formed a commission for the Economically Backward Classes (not covered by existing reservation policies) on 6 July 2004. This Commission was reconstituted on 10 July 2006. It was headed by Maj. Gen S.R. Sinho (retd), with Narendra Kumar as the second member and Mahendra Singh as Member Secretary.
The biggest problem the commission faced was the lack of good and reliable data. The Commission noted that: “Data on castes/communities other than the SCs and STs were not available as the census of India did not project the population of all castes/communities after the 1931 census. The states and UTs could not make available the data.” Many states including Tamil Nadu and Bihar explicitly expressed their reservations. SC, ST and minority commissions also opposed the move to give reservations to the EWS. After many extensions, the Commission submitted its report to the Social Justice Minister Mukul Wasnik in July 2010. The UPA government never acted on it. It was marked as “Confidential” and never discussed in public. Now, the NDA government is making use of it. The report mainly talks about the welfare measures for the non-SC/ST/OBC Economically Backward Classes (EBCs).
Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. Views are personal.
(Edited by Anurag Chaubey)