- Two judges differ, say any affirmative action only on the basis of economic criterion, which keeps out the SCs, STs (among the country’s poorest), is Orwellian
Nitiriti Bureau
New Delhi, November 7.
In a 3:2 ruling the Supreme Court on Monday upheld the 103rd constitutional amendment which enables state governments to set aside up to 10 percent of quotas for the purely economically weaker sections or the poor as valid.
The amendment will allow state governments to bring in separate laws providing for up to 10 per cent admission and job quotas for the poor defined as those with annual incomes less than Rs 8 lakh.
“The amendment cannot be said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria,” three of the five judges said.
The amendment cannot be said to breach the basic structure only because it permits the state to make special provisions in relation to admission to private unaided institutions, the majority said.
Amendment can’t be said to be invalid merely because it excludes SCs, STs, OBCs from EWS quota
The amendment also cannot be said to breach the basic structure merely because it excludes the SEBCs, OBCs, SCs, STs from the scope of such EWS reservation, the majority said.
The majority included Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala.
Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting benefits of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate the equality code, they said.
Court’s 50 per cent cap not inviolable for all times to come; applies only to 15(4), 15(5), 16(4)
The majority said that the court-mandated ceiling of 50 per cent reservations is not inviolable for all times to come. The ceiling in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India, they said.
The total reservation has, with the 10 per cent EWS quota, now gone up to the extent of 59.50%.
Majority wants end to reservations at a future point of time
The majority also spoke up against continuing reservations forever and sought to have it phased out after some time. Or at the least have a public debate on when reservations should end.
The majority ruling was a sharp departure from a long line of judgements in which the court had said that socio-educational backwardness would only be determined on the basis of caste plus factors.
Minority says exclusion of poorest of the poor i.e., SCs, STs, OBCs from OBC quota “Orwellian”
Seen in that light, reservations based purely on a citizen’s economic status and income was a travesty. Outgoing Chief Justice of India U.U. Lalit and Justice Ravindra Bhatt said as much, dubbing the new reservations based solely on economic factors as “Orwellian”.
“There is nothing to suggest how, keeping out those who qualify for the benefit of this economic-criteria reservation, but belong to this large segment constituting 82% of the country’s population (SC, ST and OBC together), will advance the object of economically weaker sections of society.”
SCs, STs, OBCs poorest of the poor
Quoting the Sinho Commission Report, the minority said that STs, 48% are the poorest; amongst the Scheduled Castes 38% are the poorest and amongst the OBCs no less than 33% are the poorest. Crimes against those marginalized and stigmatized by caste also continue till this date.
The statistics belie the perception that such classes which can benefit from compensatory discrimination can be rightfully excluded from the benefit of reservations for the poor.
The endeavour of the Constitution makers was to ensure that past discriminatory practices which had, so to say, eaten the vitals of the Indian society and distorted it to such an extent that when the republic was created, an equal society was merely an illusion, which compelled them to enact special provisions such as Article 16(4) – and later Article 15(4), to ensure equality, the duo said.
It was not compensatory but also reparatory.
Amendment against equality code
The equality code in its majestic formulation (Article 14, 15, 16 and 17) promotes inclusiveness.
Even provisions enabling reservations foster social justice and equality, to ensure inclusiveness and participation of all sections of society. These provisions assure representation, diversity, and empowerment. Conversely, exclusion, with all its negative connotation – is not a constitutional principle and finds no place in our constitutional ethos.
Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion, they said.
Destitution, economic deprivation, poverty, are markers, or intelligible differentia, forming the basis of the classification on which the impugned amendment is entirely premised. To that extent, the amendment is constitutionally indefeasible.
Amendment practices constitutionally prohibited forms of discrimination
However, by excluding a large section of equally poor and destitute individuals – based on their social backwardness and legally acknowledged caste stigmatization – from the benefit of the new opportunities created for the poor, the amendment practices constitutionally prohibited forms of discrimination.
The overarching principles underlying Articles 15(1), 15(2), and Articles 16(1), 16(2) is that caste based or community-based exclusion (i.e., the practice of discrimination), is impermissible.
Whichever way one would look at it, the Constitution is intolerant towards untouchability in all its forms and manifestations which are articulated in Articles 15(1), (2), Articles 16, 17, 23 and 24. It equally prohibits exclusion based on past discriminatory practices.
The exclusion made through the “other than” exclusionary clause, negates those principles and strikes at the heart of the equality code (specifically the non-discriminatory principle) which is a part of the core of the Constitution.
The characterisation of reservations for economically weaker sections of the population (EWS) as compensatory and on par with the existing reservations under Articles 15(4) and 16(4), in my respectful opinion, is without basis.
Economic criterion per se permissible
Introducing the economic basis for reservation – as a new criterion, is permissible.
Yet, the “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability.
The exclusionary clause operates in an utterly arbitrary manner.
Firstly, it “others” those subjected to socially questionable, and outlawed practices – though they are amongst the poorest sections of society.
Secondly, for the purpose of the new reservations, the exclusion operates against the socially disadvantaged classes and castes, absolutely, by confining them within their allocated reservation quotas (15% for SCs, 7.5% for STs, etc.).
Thirdly, it denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation.
The net effect of the entire exclusionary principle is Orwellian, which is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible.
Within the narrative of the classification jurisprudence, the differentia (or marker) distinguishing one person from another is deprivation alone. The exclusion, however, is not based on deprivation but social origin or identity. This strikes at the essence of the non-discriminatory rule.
Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens – and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining and destroying the equality code, and particularly the principle of non-discrimination.
Therefore, it is clear that the impugned amendment and the classification it creates, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination.
For these reasons, the insertion of Article 15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution.
While the ‘economic criteria’ per se is permissible in relation to access of public goods (under Article 15), the same is not true for Article 16, the goal of which is empowerment, through representation of the community.
