No Limit To Quotas Is Basic Message In EWS Verdict: SC Bench Bids Goodbye To Common Sense

A five-judge bench of the Supreme Court yesterday (7 November) upheld the constitutional validity of the 10 per cent quota for the economically weaker sections (EWS) in a split 3-2 verdict.

The EWS quota was the result of the 103^rd constitutional amendment passed by Parliament during the dying days of the Narendra Modi government’s first term in 2019.

The amendment was broadly supported by most parties, with some parties demurring only because the new quota excluded SCs/STs and Other Backward Classes (OBCs) for whom there were anyway separate quotas.

The immediate implications of this judgement are the following:

One, upholding the EWS quota implies that the bench has breached the court’s own previously instituted limit of 50 per cent on reservations in the Indra Sawhney etc, etc, Vs Union of India and Others verdict of November 1992.

The Supreme Court has reversed itself just three decades later, indicating how durable its verdicts can ever be.

Two, apparently a judgement by a nine-judge bench in Indra Sawhney case can be overturned by a five-judge bench, implying that the size of the bench no longer matters for the Supreme Court to change its mind.

The Indra Sawhney judgement went 6-3 in favour of extending quota benefits to OBCs, with some riders, including limiting the total reservations to 50 per cent and excluding the “creamy layer”. The current judgement went 3-2 in favour of breaching the limit.

Three, the general assumption that the EWS quota is largely intended to benefit the upper castes/classes is not quite correct, for it can now accept anyone who earns less than Rs 8 lakh, which includes Muslims and Christians who do not get separate quotas.

Aspiring OBC classes can also take advantage, as Maharashtra Deputy Chief Minister Devendra Fadnavis has already indicated. Soon after the verdict, Fadnavis asked Marathas to register for quota benefits under EWS.

Four, despite the existence of a new EWS quota over and above the Indra Sawhney judgement limit, there is now effectively no limit to how far the quota categories can be stretched in future. Quotas will now be determined by political and voter demographics, not any real logic of social of economic backwardness.

The EWS verdict can, in the short term, be used to deflect the growing demands from Pasmanda Muslims and Dalits who converted to Christianity to be brought under quotas. They can now be asked to apply under the EWS quota.

But it is far from certain that they will not demand to be included in the SC/ST quotas, which in turn, implies that political demands for expanding this overall SC/ST/OBC quota limit will increase. The 60 per cent limit post EWS is no longer sacrosanct.

The Karnataka government has already announced an intent to raise SC/ST quotas in the state. Tamil Nadu already has a 69 per cent quota limit.

In the next five years, one should assume that quota backers will set 69 per cent as the immediate target, and 75 per cent as a future limit.

While justices Dinesh Maheshwari, Bela M Trivedi, and J B Pardiwala wrote the majority verdict, Chief Justice UU Lalit, who retires now, and Justice Ravindra Bhat, wrote the dissent notes.

Here is what the five-judge bench said in its individual voices (all quotes taken from The Times of India), and the questions that arise from their views.  

Dinesh Maheshwari: Reservation for the EWS does not violate basic structure (of the Constitution) on account of 50 per cent ceiling because ceiling limit is not inflexible.

Comment: If every limit is flexible, Indra Sawhney is effectively junked. Also, to say that the basic structure is not violated is just blah.

The notion of the Constitution having any basic structure is just a moving target, based on what any bench decides to do in any particular verdict. And these verdicts tend to take note of popular sentiment and support.

The nationwide riots and agitations for an OBC quota in the 1980s could not but have impacted the Indra Sawhney judgement that upheld 27 percent quotas for OBCs.

Bela M Trivedi: Treating EWS as a separate class would be a reasonable classification. Just as equals cannot be treated unequally, unequals cannot be treated equally. Treating unequals equally violates equality under the Constitution.

Comment: Justice Trivedi’s trite statement about not treating unequals equally sounds fine, but there is no real objective criterion for deciding what constitutes “equal” or “unequal”, and when someone who is today considered socially or economically handicapped can be taken out of the quota bucket after achieving equality.

Seven decades after the Constitution mandated 10 years of reservations, there is not a snowball’s chance in hell that these will ever be eliminated.

So, yes, the EWS quota too could remain forever, as new reasons will be invented to help every caste or group that does not benefit from SC/ST reservations.

J B Pardiwala: It’s necessary to take into review the manner of identification and ways of determining backward classes and also ascertain whether the criteria adopted is relevant to today’s conditions. Though B R Ambedkar wanted it (quotas) for only 10 years, it has continued for seven decades.

Comment: Quite, right. However, there is little chance of any government, which is elected by a coalition of various religious groups and castes, can get rid of any quota even based on objective criteria.

So, no, even if objective criteria are evolved, the chances of any quota being reduced or junked will depend on politics and electoral logic, not common sense.

U U Lalit and Ravindra Bhat: By excluding the poor among SC/ST/OBC… the amendment practices constitutionally prohibited forms of discrimination… our Constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby the basic structure… the othering of socially and educationally disadvantaged classes… is to heap fresh injustice based on past disability.

Comment: This is the most bogus statement of them all. If the only way to be fair to the SC/ST/OBC groups is to give them a share of every additional quota, then it is an obtuse understanding of social justice.

If somebody already has a quota dedicated to him or her, what is the logic of extending yet another quota benefit to him or her?

Is it unfair to say that no one should get more than his fair share of state support and quotas?

The CJI has not crowned his departing judgement with the injection of common sense.