Focus must shift to economic and capabilities approach where not only caste but also class, intersectional views are considered.
By Pavan Kasturi
Hyderabad: The Supreme Court in Janhit Abhiyan v union of India recently upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation to Economically Weaker Sections (EWS) in admission to educational institutions, including private ones, and appointment to any office under the state.
The policy and the decision of the court need the closest public attention as even though the name suggests reservation for EWS, it is in essence a forward class reservation programme as Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) are excluded. This is the first time the country has implemented a forward-looking reservation policy which even all the five judges agreed upon, in the judgement, that the affirmative action regime could expand beyond compensating (backwards-looking) caste-based backwardness.
The Judgment
The bench held the following opinions: on the issue of reservation based on economic criteria violating the basic structure (BS) of the Constitution, the majority believed that reservation is not only an exception to the general rule of equality but an enabling provision that could not affect the doctrine of BS and hence cannot be invoked. The minority considered it oversimplifying to consider this just as an enabling provision not affecting BS as they are like a loaded weapon with the potential to destroy core constitutional values.
On excluding SEBC (Socially and Economically Backward Classes), OBCs, SCs and STs from the EWS quota, the majority held that the exclusion is inevitable and ‘peripheral inequality is inevitable when large-scale equalisation processes are put into action’. This satisfies reasonable classification by targeting a particular group and preventing ‘double benefit’. The dissenting opinion stated excluding BCs from the ambit of Articles 15(6) and 16(6) violated the non-exclusionary and non-discriminatory facet of the equality code.
On breaching the cap of 50% ceiling as held in Indra Sawhney judgment, the majority held that the limit is not inflexible and applies only to the reservations envisioned by Articles 15(4), 15(5) and 16(4) to SEBCs. The minority opined that equality would be reduced to the right of reservation, leading us back to the first case of reservation Champakam Dorairajan and would be a gateway to further infractions resulting in compartmentalisation.
Clarity Issues
In the case of the income level criterion of Rs 8 lakh for both EWS and creamy layer for OBC, there is a subtle difference. In EWS, income in the financial year prior to the year of application is considered whereas, in the creamy layer, gross annual income for three consecutive years is considered. Income from salaries, agriculture and traditional artisanal professions are excluded from the consideration in the latter, whereas the EWS includes income from all sources, including farming.
Even the definition of family income in EWS is much broader than the creamy layer. Still, EWS reservation should have even more stringent criteria as it essentially targets the poorest of the poor or otherwise it would suffer from over-inclusion. Also, it incentivises the forward class to not disclose individual income, thereby benefiting them not only with reservation but also evading income tax.
As these issues are still pending in Neil Aurelio Nunes (NEET reservation) case, the result could potentially impact the criteria aspect of EWS.
Would it be a double reservation situation if OBCs, SCs and STs are included, and are we treating the poor equally under the Constitution? When we look at the intent behind the amendment, it was brought for those who are not covered in the normal scheme thereby creating a vertical reservation. Hence, it is logical that the classification made has a link with the objective. But is it morally defensible to leave a large segment of the population who are even more economically weaker than those in forward castes and not able to reap the fruits of reservation because of the design faults of the Indian reservation system? This in a way portrays social and educational backwardness-based reservations as more fortunate than EWS.
Caste Census
This problem can be confronted by orchestrating a thorough caste census to effectively deliver affirmative action, as the data we rely on is appalling and of the 1931 census. Without empirical analysis, achieving substantive equality would be a myth, because not only then different ceiling limits for SCs, STs and OBCs could be set, there is a chance to inspect the need for 10% reservation among the forward caste according to the population ratio.
Critics have misunderstood the precedents delivered by the SC where it was held that a beneficiary group to attain reservation must show evidence that it suffers from a disadvantage and is under-represented. But these cases are the instances where new castes are added to a particular category (OBC, ST & SC) lists such as in Article 342A, 342, 341 to avail reservation, as happened in the Maratha reservation. But in EWS there is a constitutional amendment creating a new category, which is unlike adding new castes to existing categories.
There is also a curious case of Tamil Nadu. The State offers 69% reservation by placing its policy in the 9th Schedule and shielding it from judicial review back then. Now with an additional 10% reservation, it further compartmentalises the reservation policy and makes little space for open category. But since reservations in Articles 15 and 16 are enabling provisions, States which are against EWS can prefer not to implement it as a policy decision, and there is no fundamental right to reservation as held in the Mukesh Kumar v Uttarakhand judgement.
Unless the design flaws in EWS reservation, along with critical legal issues in the reasoning of the judgment, are resolved, ‘quotafication’ is inevitable. This judgment, however, signals a shift where economic justice has acquired equal focus alongside the principles of social justice which is much needed in our reservation policy.
The historical injustices are not fully corrected as there is a problem with the design of the reservation policy which does not allow the benefits to reach the most downtrodden. Even though the creamy layer came up in 1992 for OBCs, and even SC/STs in promotions (Jarnail Singh case, 2018), the criteria for this is not effective as the reservation benefits the privileged section of the underprivileged.
The idea of sub-classification in reservation is great, but its constitutionality is pending before a seven-judge (Davindar Singh case) for the last two years. Hence, the focus at least in the next two decades must gradually shift toward having an economic and capabilities approach (Amartya Sen) perspective, and sub-classification-based reservations among all categories where not only caste but also class and intersectional views are considered. But one must remember not to delegitimise the lived realities and oppression faced by depressed classes while innovating new forms of affirmative action.
(The author is an LLM candidate at National Law School, Bengaluru)