13 Sep Amendment 103, EWS quota
Why is it in the news?
The Supreme Court will recheck whether The Constitution (103rd Amendment) Act, which gave 10 percent reserved seats for Economically Weaker Sections (EWS) in government jobs and admissions, violates the basic structure of the Constitution.
What is Constitutional Amendment Act 103?
- The constitutional amendment act 103 comes up with particular reservation to the “economically weaker sections of citizens [EWS]” in appointments to posts under the state and in admissions to educational institutions too.
- This reservation can extend up to 10% of the total seats available.
- In a way, it is applauded as a tool for economic justice but on the other hand, it is criticized for violating the very basics of the constitution.
- It mandates Article 46 of the Constitution of India, a Directive Principle that urges the government to protect the educational and economic interests of the weaker sections of society.
- Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Article 16 guarantees equal opportunity in matters of public employment. The additional clauses gave Parliament the power to make special laws for EWS as it does for SCs, STs, and OBCs.
- On the basis of the recommendations of the commission headed by Major General (retd) S R Sinho, the EWS reservation was granted.
- The commission, submitted its report in July 2010, which was constituted by the UPA government in March 2005.
- The Sinho Commission recommended that all below-poverty-line (BPL) families within the general category as notified from time to time, and also all families whose annual family income from all sources is below the taxable limit, should be identified as EBCs (economically backward classes).
How does the law determine the EWS?
- The EWS criteria for employment and admission werec notified on January 31, 2019 by the Department of Personnel and Training (DoPT) based on the 103rd Amendment.
- Under the 2019 notification, a person who was not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, was to be identified as EWS for the benefit of reservation. The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.
- In October 2021, the Supreme Court, while hearing a challenge to reservation for EWS in the All-India quota for PG medical courses, asked the government how the threshold of Rs 8 lakh had been reached. The Centre told the court that it would revisit the income criterion, and set up a three-member panel for this purpose.
- In January 2022, a report by the committee was accepted by the government, saying that the “limit of Rs 8 lakh of annual family income, recent period, seems reasonable” and “may be retained”.
On what basis the law has been challenged?
- The prime argument of the petitioners, in this case, is that the amendment violates the basic structure of the Constitution. Although there is no clear definition of the basic structure of the Indian constitution, any law that violates it is understood to be unconstitutional.
- The petitioners have also challenged the amendment on the ground that it violates the Supreme Court’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal report and capped reservations at 50 percent. The court held that economic backwardness cannot be the sole criterion for identifying a backward class.
- This argument in the present case stems from the view that the special protections guaranteed to socially disadvantaged groups are part of the basic structure, and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
- There is another challenge, on behalf of private, unaided educational institutions. They have argued that their fundamental right to practice a trade/ profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.
What has been the government’s stand in this matter so far?
- The Ministry of Social Justice and Empowerment, in counter-affidavits, argued that under Article 46 of the Constitution, part of Directive Principles of State Policy, the state has a duty to protect the interests of economically weaker sections: “The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
- Against the argument of violation of the basic structure of doctrine, the government said that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.
- On the Indra Sawhney principle, the government has relied on the SC’s 2008 ruling in Ashoka Kumar Thakur v Union of India, in which the court upheld the 27 percent quota for OBCs. The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors; thus, there need not be a sole criterion for according reservation.
- This particular reservation unfavorably affects all the categories except the EWS by reducing the competitive pool accessible to them.
- Practically, it does not look justifiable because candidates from EWS are already well represented in higher educational institutions.
- Now is the time to bring change in the Indian political class to overcome its tendency of continually expanding the scope of reservation in pursuit of electoral gains, and to realize that it is not the panacea for problems.
- In place of providing reservations based on different criteria’s government should focus on the quality of education and other effective social upliftment measures. It should create a spirit of entrepreneurship and make them job-givers instead of job seekers.
https://bit.ly/3QMuUti (TheIndianExpress)(Supreme Court’s three-question test for the validity of 10% EWS quota)