EWS Reservations Day #4: Reservations on Economic Criteria Violates Basic Structure of the Constitution

EWS Reservation

A Constitution bench led by CJI Lalit has started hearing the challenge to the 103rd Constitutional Amendment which provides reservations based solely on economic criteria. Yesterday, Senior Advocate Ravi Varma Kumar argued that Articles 15, 16 cement the right to equality in the Constitution. While they allow states to provide reservations on the basis of race, caste, sex, descent and place of birth, economic weakness is not a ground for reservation.

Sr. Adv. P. Wilson referred to the Statement of Objects and Reasons for the 103rd Amendment which says EWS Reservations were introduced to fulfil the government’s obligation to protect the interests of ‘weaker sections’ as provided in Article 46 of the Constitution. However, Mr. Wilson argued that Article 46 specifically mentions SCs and STs as ‘weaker sections’. Despite this, they are excluded from the scope of EWS reservations which violates the Right to Equality.

Sr. Adv. Dr. K.S. Chauhan began arguments. After many reminders to not repeat arguments, he made 2 points. First, he said Reservation on economic criteria is artificial, as the economic status of a person is ever evolving. Backward classes have faced historic exclusion, which justifies reservation. Second, interest groups based on economic status do not require constitutional protection. Reservation was designed as a tool to protect those historically subjugated for being ‘physically different and inferior’. 

Advocate Yadav Narender Singh began arguments with a specific focus on the lack of data. He pointed out that the Major Sinho Commission (2010) stated that economically weaker sections are not a homogeneous group. Justice Bhat interjected: When assessing the validity of a constitutional Amendment, the SC cannot examine whether the Amendment is backed by data or not. They may only assess whether the Amendment violates the basic structure of the Constitution.

Mr. Singh offered an alternative—at most, reservations can be provided to people who are Below Poverty Line. The State already has data on this, and this would be a reasonable group that may enjoy economic growth. 

Adv. Shadan Farasat began his arguments. He stated that Reservation was provided solely to combat discrimination. It was not devised to help people who are economically deprived. The 103rd Amendment tries to help the deprived—against the basic structure of the Constitution. Mr. Farasat argued that even if reservation can be used as an ‘anti-deprivation’ tool, backward classes, who are the most deprived, must be given reservation. Excluding them from the benefits of reservation for economically disadvantaged breaches substantive equality, a basic component of our Constitution. 

Mr. Farasat stated that inclusion in one reservation cannot mean exclusion in another. He explained that Reservations are provided for backward classes as a group. An individual person’s situation within that group is irrelevant. That is the logic of reservations. However, in EWS reservations, the individual status of a person within this economic group is pointed out. That is, a person of a Constitutionally recognised Backward Class who also falls within the EWS category would not benefit from the EWS Reservation.

Justice Bhat asked: If the problem of exclusion is kept aside for a moment, and only the beneficiaries of EWS res were to be considered, why can’t we have affirmative action based on economic criteria? There will still be many who will benefit. Justice Bhat: People who are economically disadvantaged, often do not have access to many public services and goods. In theory they can compete but they may still be disadvantaged. So what is so fundamentally wrong with identifying economic criteria, for a non-homogenous group?

Mr. Farasat responded that while affirmative action is needed to alleviate the condition of economically disadvantaged persons, the real question is whether Reservation is the best way to do that. Will reservation help their economic development?

Affirmative action can be in the form of many measures. Farmers, for instance, receive subsidies. Reservations are a tool for reparations. It is the most aggressive means of addressing disadvantage, one that economic disadvantage may not need. Moving on, Mr. Farasat argued that the poor among the backward classes are worse off than those among the upper caste.

Experience of poverty is different than what numbers show. Backward classes are more likely to be poor & experience it in a deeper, more intense, and persistent way. Poverty, Mr. Farasat argues, is multi-dimensional. 5/6 people who experience multi-dimensional poverty are SC/STs or OBCs. He referred to data showing that economic disadvantage is felt more severely by socially disadvantaged persons. 

Further emphasising that the experience of poverty is felt more by backward classes, he referred to an article on ‘caste disparities within those officially classified as the poor’. Mr. Farasat then argued that exclusion of backward classes from EWS under Art. 16(6), should be interpreted purposively. That is, a member of a backward class claiming EWS Reservation, not because of their social/educational status but economic status, must be included in EWS Reservation. 

5 Other lawyers argued. Adv Diya Kapur argued that Reservations were not devised for poverty alleviation. It was meant to improve representation of backward classes, and to allow such persons to participate in India’s Constitutional democracy. EWS reservation ignores that purpose. Adv. Dr. M.P. Raju argued that introducing EWS reservation hinders India’s journey to become an ideal, casteless society.

He argued that it goes against ‘fraternity’, as Backward classes will be excluded from the EWS Reservation. Adv. Kaleeswaram Raj repeated previous arguments about how the EWS Reservations under the 103rd Constitutional Amendment protects a forward caste instead of a backward class, and violates equality, a basic structure of the Constitution. Adv. Pratik R. Bombarde argued that the EWS Reservations changes the identity of fundamental rights.

Adv. Akash Kakade argued that ‘weaker sections’ must be categorised carefully to avoid misuse. Further, the income limit must be decided based on realities of income in India.

Sr. Adv. Gopal Sankaranarayanan began arguments. He stated that EWS Reservations should not be frowned upon. He raised concerns over specific parts of the provision. He pointed out that six words of Art 16(6) violate the basic structure of the Constitution.


Last revised at 9:15PM