Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections
From the UPSC perspective, the following things are important:
Prelims level: Particulars of the Bill, Various judgments mentioned
Mains level: Viability of providing Reservation to economically weaker sections and legal issues surrounding
- The Union Cabinet has given its nod for a Constitutional amendment Bill providing 10 percent more reservation for economically weaker sections in direct recruitment (in Government jobs) and for admission in higher educational institutions.
Proposed EWS Quota
- The proposed amendment Bill will define Economically Weaker Section (EWS) as:
- One having annual income below Rs 8 lakh;
- Agriculture land below 5 acres;
- Residential house below 1,000 sq.ft;
- Residential plot below 100 yards in notified municipality and residential plot below 200 yards in non-notified municipality area.
- The income includes agricultural income; profession etc.
Legal Test of the EWS Quota
(A) Economic Basis
- A Constitution Bench of the Supreme Court in the Indira Sawhney Case (1992) specifically ruled whether backward classes can be identified only and exclusively with reference to the economic criterion.
- It categorically held that a backward class cannot be determined only and exclusively with reference to economic criterion.
- It may be a consideration or basis along with or in addition to social backwardness, but it can never be the sole criterion.
(B) Quota Limit
- The judgment declared 50% quota as the rule unless extraordinary situations inherent in the great diversity of this country and the people.
- If the government proposes to bring a constitutional amendment to include the 10% quota for “unreserved economically weaker sections, the 11-judge Kesavananda Bharati judgment may stand in the way.
- The judgment held that constitutional amendments which offended the basic structure of the Constitution would be ultra vires.
- Neither Parliament nor legislatures could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14.
Exceeding Quota Limit: Sacrificing the Merit
- The government proposes to bring the 10% over and above the 49% quota — 7% for SCs, 15% for STs and 27% for Socially and Educationally Backward Classes, including widows and orphans of any caste, which is permitted.
- But a total 59% (49%+10%) quota would leave other candidates with just 41% government jobs or seats.
- This may amount to “sacrifice of merit” and violate Article 14.
Learning from States
- This proposed Bill finds an echo in an ordinance promulgated in Gujarat in 2016 which provided 10% quota to upper castes there.
- All the arguments here are based on the 104-page judgment of the Gujarat High Court in the DKVerma versus State of Gujarat, which quashed the ordinance in August 2016.
Reasons: Upholding DPSP
- Gujarat had justified the ordinance by referring to how Article 46 of the Constitution, which deals with the Directive Principles of the State Policy, required the State to promote weaker sections.
- It had categorised the 10% quota as a ‘reasonable classification’ under Article 14 and not ‘reservation’.
- It said the 50% ceiling limit in the Indira Sawhney judgment applied only to SC/ST and SEBC.
- The court observed that the “unreserved category itself is a class” and economic criteria was too fluctuating a basis for providing quota.