EWS reservations: What you need to know about the constitutional challenge before the Supreme Court

Starting Tuesday, the Supreme Court will begin hearing a clutch of petitions challenging the constitutionality of the 10% quota in educational institutions and government jobs for economically weaker sections of citizens.

On January 12, 2019, the Union government brought a constitutional amendment to Articles 15 and 16 of the Constitution, which deal with the right to equality and reservations. Before this, there were provisions for seats and jobs to be reserved for Scheduled Castes, Scheduled Tribes and socially and educationally backward classes. With this amendment, the government introduced a 10% reservation for general category citizens who are economically weaker.

The Centre defined economically weaker sections as those with an annual family income of less than Rs 8 lakh.

These reservations cover all government jobs and educational institutions, whether private or state-funded. However, educational institutions run by minorities are excluded from this.

Starting from January 14, 2019, several petitions were filed arguing that this move violated the basic structure – the unamendable foundational feature of the Constitution – as it awarded reservations solely on the basis of economic backwardness and pushed the total quantum of reserved seats to more than 50%.

However, the Union government has contested this argument. They have submitted that these reservations are in line with promoting equality, which could entail reservations on solely economic grounds.

Issues before court

The Supreme Court, on September 8, chose three primary issues that it will have to decide on. These will examine whether the EWS amendment breached the basic structure of the Constitution by:

1. allowing the state to make reservations based solely on economic criteria.
   
2. allowing for reservations in private institutions unaided by the government.
3. excluding Scheduled Castes, Scheduled Tribes and socially and educationally backward classes from the scope of the 10% economic reservation quota.

Other issues were also suggested, such as whether a cap of 50% while granting reservations forms a part of the basic structure of the Constitution. However, the court said that these issues are “supplementing and substantiating” these three points.

Also being challenged in other cases are other aspects related to EWS reservations. For instance, the Supreme Court is separately examining the legality of the Centre’s definition of economically weaker sections.

Stand of both sides

The petitioners have pleaded that these amendments go against principles that form the basic structure of the Constitution, such as those of equality. However, the Union government has contended that only an amendment that changes the identity of the Constitution could violate the basic structure, something that EWS reservations do not do.

The petitioners have submitted that according to a 1992 judgment of the Supreme Court, economic criteria may be a consideration in addition to social backwardness. But they cannot be the sole criteria.

However, the Union government has maintained that economic criteria are a relevant factor for determining backwardness. It said that the 1992 case was looking at the legality of some office memorandums, whereas the present challenge is to a constitutional amendment, which the court did not have a chance to deliberate upon in 1992.

50% criteria

Further, the petitioners have argued that the Supreme Court has declared that reservations cannot exceed 50% of the total available seats, which has become a part of the basic structure. However, the Centre has submitted that the 50% limit is only with regard to reservation for Scheduled Castes, Scheduled Tribes and socially and educationally backward classes – but does not apply to economically weaker sections reservation.

Further, the Union has also argued that the 50% limit is not absolute and can be breached on the basis of quantifiable data.

Unaided institutes

Regarding reservations in educational institutions that are not receiving any aid from the government, the petitioners have submitted that these institutions can have their own admission policy, provided they are “fair, transparent, non-exploitative and based on merit”. Restricting this goes against the fundamental right to carry on any occupation, trade or business as per Article 19(1)(g) of the Constitution.

But the Centre has contended that the number of seats available in government-maintained or aided institutions is limited. Therefore weaker sections of society must have access to unaided institutions. This restriction, being reasonable and in the interest of the general public, would not violate Article 19(1)(g).

Preamble and directive principles

Further, the Centre has also contended that the Preamble and Article 46 of the Constitution support the legality of EWS reservations.

The Preamble aims to secure social, economic and political justice for all citizens whereas Article 46 states that the government and its institutions must promote the educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. Article 46 is a directive principle of state policy – which is not enforceable in court but should be applied by the government while making laws.