Rajat Sharma

SC verdict on EWS quota will have major political ramifications

akb fullIn a historic 3:2 judgement, a five-judge Constitution Bench of Supreme Court on Monday upheld the validity of the 103rd amendment of Constitution, which provided for 10 per cent reservation for economically weaker sections from general category in admission to educational institutions and in government jobs.

The apex court also held that the 50 per cent cap on reservations, laid by Supreme Court earlier in Indira Sawhney case, is not inviolable. As a result of the Supreme Court verdict, total reservations in admissions and government jobs will now go up to 59.5 per cent

For the first time, people across India saw the Supreme Court proceedings, in which the judges read out their judgements, live on television and social media. Monday was the last working day of Chief Justice U.U. Lalit, and he introduced this live telecasting of Supreme Court proceedings before demitting office.

There were three main points before the Constitution Bench, One: Is special quota for EWS from upper castes against the basic structure of the Constitution? Two: Is EWS quota for upper castes in private educational institutes against the Constitution? Three: Is the decision to keep SC/ST/OBC away from the purview of EWS quota, discriminatory and does it go against the Constitution?

The opinions of judges were divided on these issues. Chief Justice of India U. U. Lalit and Justice S. Ravindra Bhat gave dissenting judgements, while Justice Dinesh Maheshwari, Justice Bela Trivedi and Justice J. B. Pardiwala gave judgements in favour of EWS reservation. While supporting quota for EWS in general category, the judges pointed out that quota system must not be allowed to go on for an indefinite period and a time limit must be fixed to pave the way for a casteless and classless society.

Justice Bela Trivedi and Justice Pardiwala said, reservation system must be done away with after some time. They said in their judgements that the framers of the Constitution wanted the objectives of reservation to be achieved within 50 years of the adoption of the Constitution, but it has not been achieved even till this day, that is the completion of 75 years of our Independence.

Justice Bela Trivedi said in her judgement: “It cannot be gainsaid that the age-old caste system in India was responsible for the origination of the reservation system in the country. It was introduced to correct the historical injustice faced by the persons belong to the SCs and STs and other backward classes, and to provide them a level playing field to compete with persons belonging to forward classes. However, at the end of 75 years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.”

Justice Pardiwala said, “reservation is not an end, but a means to secure social and economic justice and it should not be allowed to become a vested interest…Large number of backward class members have attained acceptable standards of education and employment and they should be removed from the backward categories so that attenction can be paid toward those classes which genuinely need help.”

Justice Maheshwari in his judgement said, “reservation for economically weaker section does not violate the basic structure of the Constitution on account of 50 per cent ceiling, because the ceiling limit is not inflexible”. Justice Bela Trivedi said, “treating economically weaker section 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 the right to equality given in the Constitution”.

On the other hand, Chief Justice U U Lalit and Justice Bhat said, “By excluding the poor among SC/ST/OBC, the amendment practises 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 exclusionary clause that keeps them out from the benefits of economic reservation, backward classes and SC/STs, therefore, strikes a death knell to the quality and fraternal principle which permeates the equality code and non-discrimination principle.”

Prime Minister Narendra Modi’s government had announced 10 per cent reservation in admission to educational institutions and in government jobs for economically weaker sections from General category, and, for this purpose, the 103rd Constitutional amendment was passed by Parliament. The amendment was brought because the Supreme Court had put a 50 per cent cap on all reservations, and the Constitution needed to be amended. Through this step, a separate category of Economically Weaker Sections was created apart from SC, ST and OBC categories.

This decision was opposed from several quarters and the amendment was challenged in Supreme Court. The eligibility for EWS category set was annual income not less than Rs 8 lakhs, cultivable land less than five acres, residential plot not bigger than 200 sq. metres.

I feel the Supreme Court majority verdict is historic from several aspects. One, the verdicts were announced live and watched by the entire country, clear arguments were given by the judges, who said the aim at the time of Independence was a casteless and classless society which could not be achieved. Two, the judges reminded the executive of its responsibilities to provide equal rights to all and help those families who lack resources. Three, they said such economically weaker sections cannot be deprived of reservation only because they belong to upper castes.

Modi’s government has its declared objective: “Sabka Saath, Sabka Vikas”. What we have seen in the past few years is that reservations were being given in the name of castes, like quotas for Gujjars in Rajasthan, quotas for Marathas in Maharashtra, but the Supreme Court set them all aside because the 50 per cent cap had already been put.

The problem began when entire upper castes demanded that they be included in SC, ST or OBC, thereby causing inter-caste rivalries in society. It was necessary to stop this and Prime Minister Narendra Modi announced 10 pc reservation to economically weaker sections. This will help millions of people from upper castes, who are poor and economically weaker. Modi did not reduce the quotas of either SC, ST or OBCs. He gave extra 10 pc quota for poor people from upper castes.

Soon after the Supreme Court verdict came, political parties sprang into action. Congress leaders welcomed the verdict and sought to claim credit by saying it was “ the result of a process initiated by former Prime Minister Dr Manmohan Singh during UPA-1”. But another Congress leader Udit Raj’s reaction caused a controversy. Udit Raj blamed the Supreme Court as ‘casteist’. He questioned, why the Supreme Court ,which had stuck to the 50 per cent quota limit for the last 30 years after the Indira Sawhney case judgement, suddenly changed its stand.

BJP leaders hailed the verdict and said it was a victory for Prime Minister Modi in his mission to provide social justice to the poor. “Supreme Court’s nod to uphold 10 pc reservation for EWS is a slap on the face of parties with vested interests who have tried to sow discord amongst citizens with their propaganda”, said Education Minister Dharmendra Pradhan.

Tamil Nadu chief minister M K Stalin said, the Supreme Court verdict is “a setback to the century-long social justice struggle”. He called on all like-minded parties and organisations to come together to protect social justice.

On Congress trying to take credit for upper caste quota, let me state some facts. In January, 2005, the then PM Dr Manmohan Singh’s government had set up a commission to find ways and means to help poor people from upper castes. The Commission gave its report in 2010 and recommended quota in admission and jobs. Dr Manmohan Singh’s UPA government could not take any action on this report. When Narendra Modi became Prime Minister, he started work on this report to find out about legal obstacles that could arise. In 2019, the 103rd Constitutional Amendment Bill was brought and passed by Parliament, but it was challenged in Supreme Court.

Now that the apex court has upheld the EWS quota, Congress leaders have come forward to claim credit. But the question is, why UPA government did not take any action on the report for four years. Congress leaders do not have any answer to this question. It is an issue which nobody wants to oppose in public, but try to put hurdles.

It was Lalu Yadav’s RJD which opposed the 10 pc EWS quota bill in Parliament. RJD had then alleged that the “rights” of SC/ST/OBC would be affected because of this quota. The fact is, in Bihar, Lalu Yadav emerged as the leader of OBCs, Ramvilas Paswan emerged as the leader of Dalits, and Nitish Kumar created Mahadalit and Very Backward Class to attack their political space, but nobody spoke about poor upper castes. The 10 per cent EWS quota for upper castes will now pose a serious challenge to both Lalu Yadav and Nitish Kumar, because BJP can gain support from Bhumihar, Brahmin and Rajput communities.

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