Nitesh Ranjan & Aditya Dwivedi
On 7th November 2022, the Hon’ble Supreme Court of India in Janhit Abhiyan v. Union of India, upheld the Constitution (One Hundred and Third Amendment) Act, 2019,(hereinafter referred to as “Amendment Act”) which provided 10% reservation for Economically Weaker Sections (EWS) in both education and employment. The insertion of Articles 15(6) and 16(6) created a huge debate in the country, and a writ petition was filed by the opponents of the amendment Act. In the judgment, the 5-judge Constitution bench of the Hon’ble Supreme Court of India declared the amendment Act constitutional by 3:2 ratio. While the majority favored the amendment, the dissenting judges’ viewpoint is to be dwelt upon to understand the negative side of providing of the reservation for EWS. This paper aims at countering the dissenting opinion given in the aforementioned judgment. Subsequently, the paper submits its conformity with the majority opinion and hails the majority opinion. Furthermore, the paper argues how the discrimination which arises by the implementation of the reservation is constitutionally permitted. Lastly, the paper argues why reservation on the economic basis is the need of the hour and how this judgement is the step taken in the right direction to promote equality and social justice.
Five-judge constitutional bench led by CJI UU Lalit delivered the much-awaited judgement Janhit Abhiyan v. Union of India famously known as EWS reservation (hereinafter referred to as ‘reservation’). The judgement was delivered by ration of 3:2 wherein the majority was delivered by Dinesh Maheshwari, Bela M Trivedi, and JB Pardiwala JJ, while S Ravindra Bhat J, wrote the dissenting opinion which was further concurred by CJI Lalit.
In the majority opinion Dinesh Maheshwari J. noted, “The basic structure of the constitution was not tinkered by the EWS reservation on account of the 50% ceiling limit because the ceiling limit is not inflexible”.
Bela M Trivedi J, by concurring to the majority view held, “The said reservation should be treated as an affirmative action by the parliament for the benefit of EWS class. Treating EWS as a separate class would not amount to an unreasonable classification. Just as equals cannot be treated unequally, unequals cannot be treated equally. Treating unequals equally violates equality under constitution ,and thus, violates basic the structure of the constitution. The exclusion of SEBCs (Socially and Economically Backward Class) cannot be said discriminatory or violative of constitution”.
JB Pardiwala J, further strengthened the majority view and held, “the reservation should not continue for an indefinite period to make it a matter of vested interest and by agreeing to the Bela M Trivedi J, said that the reservation policy should be revisited”
On the other hand, while delivering the dissenting opinion S Ravindra Bhat and UU Lalit JJ. were of the view that this amendment propagated the concept of exclusion and segregation. They held that the amendment practices constitutionally prohibited discrimination. According to them, the said amendment should also include SC, ST, and OBC as large number of economically weaker people came from these categories, hence, they should also be included under the umbrella of the reservation.
However, the applied reasoning does not take into account that these classes already enjoy the benefits of their respective reservation. Therefore saying that by not including the SC, ST and other backwards caste under the umbrella of EWS, the legislature has discriminated against them would not be correct.
Upholding Egalitarianism: Equality among Equals
It is a well settled principle that the equality needs to be established among equals, in E.P Royappa v. State of Tamil Nadu, the apex court ruled that “every law would be liable to be tested with reference to the test laid down under Article 14”. This enshrines special treatment to person in different scenario and circumstance to establish equality. Further in the Indira Sawhney v. Union of India and Ors, which became the landmark judgement for reservation, the Supreme applied this principle while setting the concept of creamy layer and held that persons who have reached to a higher level of social advancement and economic status cannot be treated as backward but rather are to be treated as the creamy layer.
The classification done between SC/ST/OBC and general category under the EWS reservation seems to be based on the said principle. As observed by Bela M Trivedi J, equating both these categories would amount to treating unequals as equals which goes against the principle and the basic structure of the constitution.
The categories other than the general category are already availing the reservation, hence they cannot be equated on the same pedestal, therefore there was a need to classify them as two individual classes; one which already has the reservation and the other which needs it, that is what the legislature did through this reservation.
Excluding SC/ST/OBC: Promotes Discrimination?
It is evident from the judgment that the reservation aimed at inclusion rather than exclusion as it included the section of society which was never considered eligible for reservation. As a result, it helps in enhancing diversity in education and public employment, therefore terming it as discriminatory in nature would be ill found. It aims at the welfare of a large group of people in the society.
In Kesavananda Bharti v. State of Kerala it was held by the Hon’ble Supreme Court that the constitution provides for the establishment of a welfare state, which is not possible without looking after the welfare of every individual of the society. The reservation is one of the steps taken by the parliament in that direction, it encompasses the needs of a large swath of the population which was always left high and dry by not giving any of the reservation benefits, thus keeping them out of the social security net.
Also, in the case of K.C. Vasanth Kumar & Anr v. State of Karnataka it was observed that poverty is the primary source of social and educational backwardness. Therefore, unless poverty was not eradicated, social and educational upliftment would remain a distant dream.
In this judgment as well, all the five judges have agreed to the abovementioned point, however the main contention was over the exclusion of SEBCs which already have their reservation based on their caste and they are availing the same. However, the objective behind providing EWS reservation is primarily to grant reservation to that stratum of society which given its size and contribution forms the backbone of the society and economy, yet always found itself in a disadvantaging position due to the double strike of poverty and neglect of the government.
This reservation as rightly said by Bela M Trivedi J, is “an affirmative action by the parliament” to provide some sort of relaxation to those whose contribution in taking the nation to a new height is the most and to those who form the largest group in the society. The primary eligibility criteria of having family income less than 8 lakhs per-annum encapsulates a large number of people of the country, thereby serve the cause of social justice by encouraging the participation of large number of the people in educational and employment sector.
Breach of 50% Ceiling Limit: Violation of Basic Structure?
The other contention raised by the dissenting judges was that, the reservation breached the 50% ceiling limit set in Indra Sawhney, and thus violated the basic structure of the constitution.
However, it is pertinent to note that a close reading of the Indra Sawhney categorically suggests/presents that the 50% ceiling limit is not a sacrosanct inviolable rule but just a thumb rule which should be followed in the matters of reservation. Therefore, as observed by Dinesh Maheshwari J, this limit is flexible and can be altered. Also, the apex court in the Indira Sawhney judgement fixed this limit for reservations based on social and educational backwardness but, here the reservation is purely based on the economic criteria, this further strengthens its position.
EWS reservation should be understood as a step to further the spirit of the constitution by promoting the cause of social justice. Therefore, It is an affirmative step of the parliament to fulfill the duty imposed upon itself by the preamble of the constitution.
Our preamble itself establishes India as a sovereign, socialist, secular, democratic republic where social, economic, and political justice, as well as equality of status and opportunity, are to be ensured, along with fostering fraternity, ensuring the dignity of individuals, and maintaining the unity and integrity of the country. These fundamental commitments to the Constitution alone would necessitate making provisions for the uplift of economically underprivileged sections. This judgement in the long run will help in achieving the constitutional goal of establishing a welfare state wherein justice: social, economic and political, is achieved and the dignity of the individual is maintained.
The authors are second-year students pursuing B.A. LL.B from National University of Study and Research in Law, Ranchi
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