SCO Daily: Judgment Upholding Reservations Based on Economic Criteria Explained

A 5-Judge Constitution Bench by a 3:2 split verdict upheld the Union’s reservations for the economically backward.


A 5-Judge Bench led by CJI Lalit delivered the first big Constitution Bench Judgment to come out of the Supreme Court in a while today, on the eve of his retirement.

In a 3:2 split verdict, the Supreme Court upheld EWS Reservations brought in through the Constitution (One Hundred and Third Amendment) Act, 2019. This Amendment allows States to make reservations in educational institutions and matters of public employment after solely considering economic criteria. 

All five Judges agreed that the Constitution permits reservations based on economic criteria alone. But they disagreed on who can avail EWS reservations and how many seats may be reserved, with Justices Maheshwari, Pardiwala and Trivedi writing three concurring majority opinions, while Justice Bhat and CJI Lalit formed the dissenting minority. Who held what? Lets break it down. 

Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala, all writing separate but concurring opinions, upheld the Amendment in its entirety. They stated that the economic criteria for reservations is constitutional. Justice Maheshwari explained that reservations are an affirmative action measure meant to counter all sorts of disadvantages,  not just social and educational backwardness. 

All three majority Judges found that SC/ST and OBC citizens can be excluded from the scope of EWS reservations. Justice Trivedi noted that EWS is a unique category of disadvantage. ‘Just as equals cannot be treated unequally, unequals cannot be treated equally’, she clarified. 

The majority further found that the breach of the 50% limit on reservations, as set out in Indra Sawhney, by providing 10% EWS reservation is constitutional. All three Judges held that the 50% limit is flexible—it may be breached in extraordinary situations. More importantly, they found that the 50% limit applies only to reservations for socially and educationally backward classes, not to all types of reservations. 

On the other hand, Justice Ravindra Bhat, writing for himself and Chief Justice U.U. Lalit, found the concept of EWS reservation itself permissible, but held that the Amendment as a whole is unconstitutional. He stated that the exclusion of SC/STs and OBCs from  EWS reservations violates the basic structure of the Constitution. When pronouncing the Judgment, he said ‘this court has for the first time in several decades of the republic avowed an expressely discriminatory principle…the Amendment’s language of exclusion undermines…the fabric of social justice and the basic structure of the Constitution’. 

Referring to the Major Sinho Commission report, he stated that a bulk of the economically disadvantaged sections of India belong to the excluded backward classes. It is ‘delusional’, he said, to presume that these socially and educationally depressed classes have an advantage for the forward caste poor only because they have access to caste-based reservation benefits. 

Justices Bhat and Lalit further found that the Amendment is unconstitutional because it allows the government to exceed the 50% limit on reservations, as established in Indra Sawhney. Justice Bhat held that allowing EWS reservations to exceed this limit will become a gateway for further breaches, leading to ‘compartmentalisation’. 

Chief Justice Lalit’s role in this Judgment, on the eve of his retirement, is unusual for two reasons. First, he has not written an opinion of his own, choosing to express his agreement with Justice Bhat instead. Second, he forms part of the dissent in this case. Chief Justices more often form the majority opinion in Constitutional Bench cases. 

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