EWS Reservation Judgment: SC Upholds 103rd Amendment in 3-2 MajorityEWS Reservation
In a 3-2 verdict, the Supreme Court upheld EWS Reservations introduced through the Constitution (One Hundred and Third Amendment) Act, 2019. This Amendment allows States to make reservations in educational institutions and in matters of public employment on the basis of economic criteria alone. All five Judges agreed that the Constitution permits reservations based solely economic criteria, but disagreed on who can avail EWS reservations and how many seats may be reserved.
Justices Maheshwari, Trivedi, and Pardiwala Uphold Amendment
Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala upheld the Amendment in its entirety in separate concurring opinions. They stated that the economic criteria for reservations is constitutionally valid. Justice Maheshwari explained that reservations are an affirmative action measure to counter not just social and educational backwardness, but all sorts of disadvantages.
All three Judges found that SC/ST and OBC citizens can be excluded from the scope of EWS reservations. Justice Trivedi noted that EWS is a category of disadvantage of its own. ‘Just as equals cannot be treated unequally, unequals cannot be treated equally’, she clarified.
The majority further found that 10% EWS reservation in excess of the existing 50% limit on reservations, as set out in Indra Sawhney (1992), 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.
Chief Justice Signs on To Justice Bhat’s Dissent Declaring EWS Reservation Unconstitutional
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 is unconstitutional. Expressing his dissent, he stated that ‘this court has for the first time in several decades of the republic avowed an expressly discriminatory principle…the Amendment’s language of exclusion undermines…the fabric of social justice and the basic structure of the Constitution’.
Justice Bhat held that the exclusion of SC/STs and OBCs from EWS reservations violates the basic structure of the Constitution. Referring to the Major Sinho Commission report (2010), he stated that a bulk of the economically disadvantaged sections of India belong to the 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 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 Constitution Bench cases.
Read SCO’s Judgment Matrix breaking down of all four opinions here.