What is about Economic Reservation for India’s Dominant Castes?

Recently the Supreme Court (SC) in Janhit Abhiyan v. Union of India[1] has upheld the validity of the 103^rd Constitutional Amendment[2] which provides a ten percent reservation to Economically Weaker Sections (EWS) of citizens in admission to educational institutions, including private educational institutions, 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 it as a Reservation for economically weaker sections, it is in essence a forward class reservation program as the persons under the scheme of reservation for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) are excluded. This is the first time our nation has implemented a forward-looking reservation policy which is even agreed upon by all the five judges in the judgment that the affirmative action regime could expand beyond compensating (backward-looking) caste-based backwardness.

Despite 75 years of an uphill battle against inequality through policies and the SC’s constant engagement on various occasions, the issue of merit versus reservation binary always surfaces. Even though the justice and equality principles in the Constitution morally call for a reservation policy, this constant push of a ceiling limit of reservation which is now 60 per cent calls for introspection. As we have witnessed reserved groups are determined to safeguard the reservations and more groups are claiming vociferously for ‘legal backwardness’, another dimension to this tussles adds on now, where people in forward castes wanting to be recognized as economically weaker.

What does the Judgment Say?

Before delving into the judgment it is important to know the difference in the courts’ approach of reviewing basic legislation and constitutional amendments. The former is considered as an ordinary democratic law-making where the touchstone to check the validity is the violation of Fundamental rights (FRs) and Legislative competence of the State (Union Govt. or State Govts.) and in the latter, which is an extraordinary situation of amending the constitution, the principles of the Basic Structure(BS) of the Constitution are also inspected. This is because the intention of Parliament while exercising constituent power in amending the constitution operates in a higher plane when compared to the legislative intent of ordinary law.

The Five Judge bench has held the following opinions, On the issue of reservation based on economic criteria violating the BS, the opinion of the majority was 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. While the minority considered that it is 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 the issue of excluding SEBC, OBCs, SCs and STs from EWS reservations, the majority held that the exclusion is inevitable and “Peripheral inequality is inevitable when large-scale equalization processes are put into action”. This satisfies reasonable classification by targeting a particular group and preventing “double benefit”. While the dissenting opinion stated excluding backward classes from the ambit of Articles 15(6) and 16(6) violated the non-exclusionary and non-discriminatory facet of the equality code violating the BS.

On the issue of breaching the cap of 50 per cent ceiling limit of reservations as held in Indra sawhney[3] 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. While the minority opinion was that equality would be reduced to the right of reservation, leading us back to the first case of reservation Champakam Dorairajan[4] and permitting the breach of the 50% rule would be a gateway of further infractions resulting in compartmentalization.

Possible Reservations on the Reservation policy:

On the issue of whether the same income level criterion of 8 Lakhs for the EWS category and Creamy layer for OBC is applied, there is a subtle difference, the former looks more stringent. In EWS, income in the financial year prior to the year of application is considered whereas, in the creamy layer in OBC, 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 in the 8 lakh criteria for EWS includes income from all sources including farming. Even the definition of family income in EWS is much broader than OBC’s creamy layer. But even then, EWS reservation should have even more stringent criteria as it would essentially target the poorest of the poor or otherwise it would suffer from over-inclusion. Another practical aspect around the criteria is that it incentivizes the forward class to not disclose the individual income and thereby benefiting not only with reservation but also evading income tax. As these issues around the criteria are still pending in Neil Aurelio Nunes[5] (NEET) case, the result could potentially impact the criteria aspect of EWS.

On the question of whether 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 this 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 nexus 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. It is also utter dismay that the SC in its majority opinion observed that there is no need to raise any grievance about an extra ten per cent from the candidates standing in the bracket of already available reservations. As this newly added ten per cent will affect the merit irrespective of castes but also reduces the chance of category candidates stepping into the open category as its size is considerably reduced to forty per cent.

The above 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, essentially because not only then different ceiling limits for SCs, STs and OBCs could be set, there is a chance to inspect the need for ten per cent Reservation amongst the forward caste according to the population ratio or else the figure of ten per cent in the most arbitrary number that the Union Govt. could come up with. This is a mockery of constitutional ideals where you reserve ten per cent to EWS of the forward caste but only have 7.5 per cent reserved for the ST category who are not only economically backward but also socially and educationally.

On a similar issue, many critiques have misunderstood the previous precedents delivered by the SC where it was held for a beneficiary group to attain reservation must show evidence that the group so identified suffers from disadvantage and under-representation. But these cases are the instances where new castes are added into a particular category (OBC, ST&SC) lists such as in Article 342A, 342, 341 to avail reservation, as happened in the Maratha reservation[6]. But EWS is a case where there is a constitutional amendment creating a new category, which is unlike adding new castes into existing categories.

There is also a curious case of Tamil Nadu as it offers 69 per cent reservation in the country, it has managed this by placing its policy in the 9^th Schedule and shielding it from judicial review back then. Now with an additional ten per cent reservation, it further compartmentalizes the reservation policy and makes little to no space for open category. But since reservations in our constitution in Articles 15 and 16 are enabling provisions, states who are against the EWS can prefer not to implement it as there is no Fundamental right to reservation against the state as held in Mukesh Kumar v. Uttarakhand[7] Judgement. Unless the design flaws in EWS reservation along with critical legal issues in the reasoning of the judgment are resolved, ‘Quotafication’ is inevitable.

Can this Judgement be considered a first step towards breathing new life into Classism? The answer is Yes, even though it appears as vote politics, one must recollect our preamble which underlines the ideals of economic justice before voicing against the idea of economic-based reservation. This judgment 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 doesn’t allow the benefits to reach the most downtrodden, even though the creamy layer has come up in 1992 for OBCs, and even SC/STs in promotions (Jarnail Singh case[8]) the criteria for this is not effective as the reservation benefits the privileged section of the underprivileged. Even though the idea of Sub-classification in reservation is a great idea, its constitutionality is pending before a 7-Judge (Davindar Singh case[9]) 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’s theory[10]) perspective, and sub-classification based reservations amongst all categories where not only caste but also class and intersectional views are considered. But one must remember to not delegitimize the lived realities and oppression faced by depressed classes while innovating new forms of affirmative action.

( The Author is an LL.M Candidate at the

National Law School, Bengaluru.

He can be reached at sai.pavan@nls.ac.in)

The above-expressed views are personal.

A part of the article is previously published in the Telangana Today daily

[1] (2021) 11 SCC 78.

[2] One Hundred and Third Amendment Act 2019 https://egazette.nic.in/WriteReadData/2019/195175.pdf.

[3] AIR 1993 SC 477.

[4] The State of Madras v Srimathi Champakam dorairajan 1951 AIR 226.

[5] Neil Aurelio Nunes v Union of India (2022) 4 SCC 64.

[6] Jaishri Laxmanrao Patil v State of Maharashtra (2021) 2 SCC 785.

[7] (2020) 3 SCC 1.

[8] Jarnail Singh v Lachhmi Narain Gupta (2018) 10 SCC 396.

[9] State of Punjab v Davinder Singh (2020) 8 SCC 1; Also read E.V. Chinnaiah v State of A.P. (2005) 1 SCC 394.

[10] Ingrid Robeyns and Morten Fibieger Byskov ‘The Capability Approach’ (The Stanford Encyclopaedia of Philosophy, 14 April 2014) https://plato.stanford.edu/archives/win2021/entries/capability-approach/.