Reservation in India has been one of the most debated issues because of the persecution and deprivation of certain classes of individuals from society due to historical, social, religious, and cultural practices. Our Constitution makers, who themselves had the experience of that deprivation were very keen on the idea of providing social equality to the certain criteria of deprived classes termed as SCs and STs (Schedule Castes and Scheduled Tribes).

Therefore, they added certain constitutional provisions for the protection of the aggrieved community in Article 14, Article 15, Article 16, Article 17, Article 39, Article 45, and Article 46 in the Constitution of India.1 There have beenmultiple legislation and Stare Decisis which have further translated to the correct picture of the provisions and their future.

In 1951, Hon'ble Supreme Court gave an essential ruling stating that giving reservations on communal lines was not the essence of the constitution makers. The court held that it was violative of the rights conferred in Article 15(1) and Article 29(2).2

The order of the court was annulled by the parliament by adding Article 15(4) to the First Constitutional Amendment.

In another judgement of 1963, the State of Mysore passed legislation giving reservations up to 75% to all the communities except Brahmins under Article

15(4). The Supreme Court once again strike down the order by stating that even though backwardness is a reason for granting reservation but it cannot be the sole reason for the reservation and added that the ceiling for reservation must not exceed the 50% mark.3

In the series of judgement, another landmark judgement came in 1993, where the 9-judge bench passed an order with a 6:3 split verdict stating that the government order of implementing Mandal Commission is correct to give reservation of 27% to SEBCs (Socially and Educationally Backward Classes) but the court initiated a new concept of creamy layer and reiterated that fact that reservation must not break the limit of 50% mark.4

Another landmark ruling of the Supreme Court came with the addition of the new criteria of economic backwardness.

Name of Case: Janhit Abhiyan V. Union of India
Citation: Writ Petition (Civil) 55 Of 2019, (2022) SCC OnLine 1540
Date of Judgement: 07, November, 2022
Petition/Appellant: Janhit Abhiyan
Respondent: Union of India
Judge/ Bench: Constitutional Bench, Led by: UU Lalit CJ., D Maheshwari J., SR Bhat J., BM Trivedi J., JD Pardiwala J.

Constitution/ statutes involved:
The Constitution of India, The 103rd Constitutional Amendment Act 2019

Important Article/Sections Involved:
Article 14, 15, 16,17, 29, 30, 32, 45, and 46.

Facts of the Case:
In the present case, the government of India passed a new amendment to the constitution in the form of the 103rd Constitutional Amendment Act, 2019 which granted reservations of 10% to the economically weaker sections of society. It must be further noted that the constitution only prescribes reservation on the basis of social and educational backwardness.

The amendment added two clauses in the constitution in the form of Article 15(6) and Article 16(6) in Article 15 and Article 16 respectively.

The amendment also created a clause where the government institutes, as well as the private institutes (aided and unaided), were also required to add this reservation clause. The only exception was the minority institutes which were exempted by Article 30(1) of the Constitution of India.

The 10% reservation criteria were added in such a fashion that there will be no difference in the pattern of existing seats of government jobs or educationalinstitutes but there will be an addition to the existing seats by 10%. Suppose an institute has 100 seats in total then the seats will be increased to 110 and those added 10 seats will be reserved for the economically weaker sections.
This led to a huge constitutional debate about whether the state can craft new criteria for the reservation of individuals from economically weaker sections. This led to the filing of 20-odd petitions in the Supreme Court for checking the validity of the constitutional amendment.

The Court listed the matter and resurrected a constitutional bench headed by UU Lalit CJ., D. Maheshwari J., SR Bhat J., B.M Trivedi J., JD Pardiwala J.

Chief Justice intended to club the matter with the Andra Pradesh's (Reservation) 2005 but later dropped the idea and only deliberated on the matter related to EWS (Economically Weaker Section).

Issues Framed:
Later the bench accepted the issues framed by the then Attorney General of India Mr KK Venugopal.

The issues were as follows:

• Whether reservation can be granted solely on the basis of economic criteria?
• Whether other socially deprived classes (i.e., Schedule Casts, Schedule Tribes and Socially and Educationally backward classes) be kept out of the reservation of the Economically Weaker Section?
• Can the reservation be guaranteed under the Economically Weaker section breach the limit of 50% deliberated in Indira Sweney's judgement discussed in 1992?
• Can the Constitution Amendment force the private aided or private unaided institutes to take admission on the basis of economically weaker section criteria?

Arguments of the Petitioner:
The argument given by the petitioners can be classified into the following rationales:

• Constitutional Maker's Vision:
  • The vision envisaged by the constitutional makers for the reservation was specifically made for social and cultural reasons. The addition of economic criteria will demean the idea of constitutional makers. The essential purpose of reservation is for the upliftment of the people who were left behind due to persecution and for the economically poor.
     
• Against the Right to Equality:
  • The 103rd constitutional amendment is against the principle of the right to equality as the criteria keep SCs (Schedule Casts), STs (Schedule Tribes) and SEBCs (Socially and Educationally backward classes) out of range of the EWS (Economically Weaker Sections) Quota. The economically poor person belonging form SCs (Schedule Casts), STs (Schedule Tribes) and SEBCs (Socially and Educationally backward classes) can not avail of the reservation under the EWS (Economically Weaker Sections) regime.
     
• Violates Basic Structure:
  • As it is violative of Article 14 of the Indian Constitution which is part of the Basic structure. Hence, the EWS (Economically Weaker Sections) reservation is violative of the basic structure doctrine.
     
• Breach of 50% ceiling:
  • The said amendment (i.e., 103rd Constitutional Amendment) is in utter violation of the ceiling limit of 50% as stated in the Mandal Commission case of 1993. It is a fact that the 50% ceiling can be breached but only in exceptional circumstances and in the present context there has been no reason whatsoever to consider the 103rd Amendment as exceptional.

Arguments of the State:

• Not affecting SCs, STs and OBCs:
  • The reservation granted in the form of EWS is not violative of any reservation granted previously to the SCs (Schedule Casts), STs (Schedule Tribes) and SEBCs (Socially and Educationally backward classes). The state's motive while granting reservation is to give representation to those who have been left to the margins due to their economic status.
     
• 50% Rule is flexible:
  • The collective reservation provided to the SCs (Schedule Casts), STs (Schedule Tribes) and SEBCs (Socially and Educationally backward classes) is 15%, 7.5%, and 27% respectively. The total percentage of reservations stands at 49.5%. The ceiling defined in the Mandal Commission case was established as 50% and it was also stated that the limit can be breached during exceptional circumstances. In the present situation, the state has created new criteria hence, it needs to be considered an exceptional situation.

The Majority Judgement:

• Vision of the Constitution Makers:
  • The judges broadly interpreted that the reservation criteria which were added by constitutional makers nowhere define that the reservation policy was only brought for the SCs (Schedule Casts), STs (Schedule Tribes) and SEBCs (Socially and Educationally backward classes) but there can be an addition to the criteria of the reservation based on the economic deprivation. Pardiwala J. in his judgement said that "Reservation is an affirmative action of the state so as to ensure an all-inclusive approach of growth."5
     
• 50% breach possible:
  • The learned bench concerned that the fact that the reservation granted to the EWS (Economically Weaker Section) quota will breach the limit of 50% but the precedent passed in 1993 also clarified that the breach is acceptable in exceptional circumstances. In the present situation, the state has created new criteria hence, it needs to be considered an exceptional situation. D Maheshwari J. in his judgement said that "Reservation on EWS does not violates basic structure on accounts of 50% ceiling as the ceiling is not inflexible".6
     
• Substantive Equality:
  • The concept of equality under Article 14 is not only on the basis of procedural equality but the court has time and again taken the view that the process of substantive equality is rather more important. Substantive equality is also defined as the principle of equity which states that "Equals must be treated equally and unequals must be treated differently." BM Trivedi J. in her judgement said that "the state has come for the advancement of EWS categories. Hence, the 103rd Amendment must be seen as an affirmative action of the state. The Amendment cannot be considered as unreasonable classification, treating EWS as a separate class would be a reasonable classification."7

Dissenting Judgement:

• Vision of the Constitution Makers:
  • The bench of UU Lalit CJ. and SR Bhat J. agreed with the fact that the reservation criteria which were added by constitutional makers nowhere define that the reservation policy was only brought for the SCs (Schedule Casts), STs (Schedule Tribes) and SEBCs (Socially and Educationally backward classes) but there can be an addition to the criteria of the reservation on the basis of the economic deprivation.
     
• 50% breach possible:
  • The dissenting bench considered that there has been an utter violation of the ceiling limit of 50% as stated in the Mandal Commission case of 1993. The dissenting judge agreed that the breach is acceptable in exceptional circumstances but the current situation doesn't seem exceptional. UU Lalit CJ. and SR Bhat J. in their judgement said that "Breaching the ceiling of 50% would lead to compartmentalisation and the right to equality will become the right to reservations".8
     
• Unnecessary Exclusion:
  • The biggest reservation of the dissenting judge was that there has been a huge exclusion of SCs (Schedule Castes), STs (Schedule Tribes) and OBCs (Other Backward Classes) from the list of economically weaker sections. The judges interpreted that poor belonging from the SCs (Schedule Castes), STs (Schedule Tribes), and OBCs (Other Backward Classes) categories have not been represented in the new criteria of reservation.
    
    UU Lalit CJ. and SR Bhat J. in their judgement said that "Our Constitution does not permits exclusion and this amendment undermines the social fabric of the society and thereby the basic structure. This amendment is deluding us to believe that those getting social and backward classes benefit is somehow better placed.".9
     

Conclusion:
Overall, the issue of EWS (Economically Weaker Section) reservation is a complex issue, and there are valid arguments on both sides. Providing reservation based on economic criteria is per se not an incorrect move but not allowing the economically poor individual from the SCs (Schedule Castes), STs (Schedule Tribes), and OBCs (Other Backward Classes) categories is problematic as well as a troublesome issue because it has the capacity to destabilize the social fabric of the nation.

It further creates a fallacious idea of victimisation of those who were never a victim. A person's economic situation is under their own control but a person born in a persecuted category and is further shamed for her caste is not in that individual's control. Therefore, economic reservation must be inclusive of all the cast and not the other way around.

End-Notes:

1. The Constitution of India
2. State of Madras V. Chamkapam Durairajan {(1951) SCR 525}
3. M.R. Balaji & Ors. V. State of Mysore {AIR (1963) SC 649}
4. Indira Swaney V. Union of India {AIR (1993) SC 477}
5. Page: 117, SCC Online Judgement Copy
6. Page: 147, SCC Online Judgement Copy
7. Page: 169, SCC Online Judgement Copy
8. Page: 332, SCC Online Judgement Copy
9. Page: 310, SCC Online Judgement Copy