10% EWS quota SC ruling: Caste has finally overtaken class

10% EWS quota SC ruling: 'Caste' has finally overtaken 'class'

The said reservation is not only a negation of settled principle provided by the framers of the Constitution, but a clear fraud played upon the Constitution itself

At last, the results are out. The upper castes in India can have the last laugh. The Supreme Court has finally upheld the 103rd Amendment to the Constitution, providing for a 10 per cent reservation to the so-called Economically Weaker Sections (EWS). Though it is called a reservation for economically poor, it is actually a reservation for the so-called poor among the upper castes.

The BJP has been armed to go to the 2024 polls with two major plans. The results of the Ram Janambhoomi case (2019) and the Janhit Abhiyan case (2022) will give them convenient slogans to win over the Hindu majority and the upper caste followers. Even when the 103rd Amendment to the Constitution was enacted by amending Articles 15 and 16 of the Constitution, with effect from January 1, 2019, there was very little opposition. When it was challenged, the Supreme Court refused to grant any interim stay, thereby enabling many states to implement the 10 per cent EWS quota in educational institutions and public employment.

Surprising selection

It was also surprising that when Chief Justice ordered the matter to be heard by a Constitution bench, it included JB Pardiwala who, as a Judge of the Gujarat High Court, created a controversy when he wrote an order which was not pertaining to the issue of reservation as follows: “If I am asked by anyone to name two things which have destroyed this country or rather, has not allowed the country, to progress in the right direction, then the same is (i) Reservation and (ii) Corruption. It is very shameful for any citizen of this country to ask for reservation after 65 years of independence.”

Also read: Supreme Court upholds 10% EWS quota in govt jobs, education

When some members of Parliament started collecting signatures for bringing an impeachment motion against him, he immediately removed the paragraph, but nevertheless made his views known. A senior judge from Gujarat, Akil Kureshi, was not elevated to the Supreme Court, but Pardiwala was made a Supreme Court Judge though he was junior. The results are clear. Like the US Supreme Court, we are also witnessing the swing votes which determine the law of this land. The 3-2 majority in the EWS case showed that the inclusion of Pardiwala, the junior-most judge on the bench, had its desired results.

In a way, all five judges did not have any objection to the EWS quota. The dissenting voices only said that the 10% might violate the ceiling of 50% for all reservations fixed by the court earlier.

In a way, all five judges did not have any objection to the EWS quota. The dissenting voices only said that the 10 per cent might violate the ceiling of 50 per cent for all reservations fixed by the court earlier and also that excluding the SC/ST/OBCs from the 10 per cent EWS quota was violative of equality principle. What’s now forgotten are the debates in the Constituent Assembly which considered Article 15 and 16 as affirmative action to uplift the Socially and Educationally Backward Classes (SEBC).

‘Caste’ and ‘class’ in Constitution

The initial Articles 15(1) and 16(2) prevented the State from discriminating or denying equality of opportunities in the matter of employment on several grounds, including the grounds based on ‘caste’.  The words ‘caste’ and ‘class’ were used only under Articles 15 and 16 in a Constitution which has 395 provisions. The term ‘Scheduled Castes’ is used in 12 Articles. The definition of the term ‘Scheduled Castes’ is also set out under Article 366(24). In such a lengthy Constitution, there are no definitions of the terms ‘class’ and ‘caste’.  In the course of the debates in the Constituent Assembly, there was hardly any debate on the distinction between the two terms.

Read TK Arun’s Opinion: A flawed judgment on EWS quota

During the discussion on the draft on Article 16, TT Krishnamachari, a member, mentioned that the loose drafting would become “paradise for lawyers”.  Replying to his criticism that the Drafting Committee, instead of producing a Constitution, had “produced a paradise for lawyers”, Dr Ambedkar said that the Constitution was certainly likely to give rise to questions involving legal or judicial interpretations, and they might often be required to be taken to the highest court; but there was nothing to be ashamed of in this since there was hardly any constitution in the world which was not a “paradise for lawyers”.

Dr Ambedkar said the Constitution was certainly likely to give rise to questions involving legal or judicial interpretations; but there was nothing to be ashamed of in this since there was hardly any constitution in the world which was not a “paradise for lawyers”

The debate centred primarily around the addition of the word ‘backward’ before ‘classes’, which was added by the Drafting Committee between the 1947 and 1948 debates. Critics of the provision attacked it as being vague and indefinable. While responding to these criticisms in a speech, Ambedkar offered some insight into the principles that grounded the clause.

Noting that there existed ‘three points of view’ in the Assembly, which had to be ‘reconciled’, he observed: “The view of those who believe and hold that there shall be equality of opportunity has been embodied in sub-clause(1) of Article 10. It is a generic principle.  At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now – for historical reasons – been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services.” (Constituent Assembly Debates)

First case in Madras HC

The first test on the interplay between ‘caste’ and ‘class’ came up before the Madras High Court and later before the Supreme Court. The then government of Madras Presidency was distributing government employment on the basis of caste and religion and this continued for long. After the Constitution of India came into force on January 26, 1950, the government adopted the communal government order (GO) even for admissions to medical and engineering colleges and on that basis the following reservations were made: Non-Brahmin Hindus (6), Backward Hindus (2), Brahmins (2), Harijans (2), Anglo-Indians and Indian Christians (1), Muslims (1).

Also read: EWS quota limit for NEET-PG will be ‘revisited’, Centre tells SC

Champakam Dorairajan, who was never an applicant for a medical seat, challenged this order stating that it was violative of Article 15(1) wherein any discrimination in terms of caste is prohibited. Though she claimed to be a Brahmin, and the GO reserved for Brahmins 2 out of 14 seats, her contention was that admission should be based on merit and not on caste and religion. The Madras High Court quashed the Madras government’s GO on July 27, 1950. The matter was taken to the Supreme Court by the State of Madras.

The Supreme Court agreed with the High Court’s reasoning and refused to uphold the communal GO. It held: “If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to, complain of an infraction of his fundamental right under this article… The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances, be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Article 29 of a clause similar to clause (4) of Article 16.” (Champakam Dorairajan, 1951).

On the same day, the Madras High Court extended the principle to reservation in public employment and struck down the communal quota in regard to government posts also. Article 16(4), it found, permitted reservations only for ‘backward classes’. The court concluded that of the groups on the Madras list, only Harijans and “backward Hindus” could be said to be of backward classes.  The reservations for these groups were allowed, the others struck down.

Venkataramana case

One may imagine a result in Dorairajan, along the lines of the result in Venkataramana. The court might have said that Article 46 directs the State to promote the educational and economic interests of the weaker sections — and mentions the Scheduled Castes and Tribes in particular; these groups then are clearly “weaker sections”; therefore the classification is not on the basis of caste “only”; therefore reservation for these groups is permissible in spite of Article 15 and 29.  As for other groups, the State had the burden of showing that they are “weaker sections” and within the exception to Article 15 and 29 implied by the Directive Principle; since there was no such showing, the reservations for these should be struck down. (Venkataramana, 1951)

Raising of doubts

Nearly 17 years later, a larger bench of the Supreme Court, commented on the Champakam Dorairajan’s case and expressed reservation in the conclusions arrived at by them. It observed: “To remove the effect of centuries of discriminatory treatment and to raise the downtrodden to an equal status cannot be regarded as discriminatory against any one. It is no doubt true that in the State of Madras vs Champakam, the reservation of seats for Backward Classes, Scheduled Castes and Tribes in public educational institutions was considered invalid.

“To remove the effect of centuries of discriminatory treatment and to raise the downtrodden to an equal status cannot be regarded as discriminatory against any one,” said the Supreme Court about 50 years ago

Articles 16(4) and 340 had already provided for special treatment for these Backward Classes and Article 46 had provided that the State shall promote, with special care, their educational and economic interests. With all due respect, the question of discrimination hardly arose because, in view of these provisions, any reasonable attempt to raise the status of the Backward Classes could have been upheld on the principle of classification. In any event, the inclusion of this clause to Article 16 does not abridge or take away anyone’s Fundamental Rights unless the view be taken that the backward classes forever must remain backward.” (Golaknath, 1967)

The vexed question of caste vs class kept on haunting the courts all the time. In the context of the Karnataka government appointing a commission to identify backward classes, a similar question came before the Supreme Court. Justice O Chinnappa Reddy explained the interplay between the terms caste and class: “Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hesitation say that if poverty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a person’s caste. Poverty, caste, occupation and habitation are the principal factors which contribute to brand a class as socially backward…

“But mere poverty, it seems, is not enough to invite the constitutional branding because of the vast majority of the people of our country are poverty-struck but some among them are socially and educationally forward and others backward…True, a few members of those castes or social groups may have progressed far enough and forged ahead so as to compare favourably with the leading forward classes economically, socially and educationally.

In such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it…Class poverty, not individual poverty, is therefore the primary test. Once the relevant conditions are taken into consideration, and the backwardness of a class of people is determined, it will not be for the court to interfere in the matter. But, lest there be any misunderstanding, judicial review will not stand excluded.” (Vasanth Kumar, 1985)

Also read: SC fixes 3 issues for adjudication on pleas challenging Centre’s 10 pc EWS quota

Mandal Commission report

Based on the Mandal Commission report, when reservation for the Socially and Educationally Backward Classes (SEBC) were announced during the 1990s, there were riots by motivated students engineered by right-wing political parties. The matter once again came before the Supreme Court and heard by a nine-judge bench. Of the 14 questions answered, the court held that while the criteria to be considered should be the twin tests of social and educational backwardness, the creamy layer among them should be excluded. It also held that the OBCs cannot be identified exclusively with reference to economic criteria.

Based on the Mandal Commission report, when reservation for the Socially and Educationally Backward Classes were announced during the 1990’s, there were riots by motivated students engineered by right-wing political parties

In fact, the court also ruled: “The reservation of 10 per cent of the posts in favour of ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservation’ made in the impugned office memorandum dated September 25, 1991, is constitutionally invalid and is accordingly struck down. Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.” (Indra Sawhney, 1992)

It was when the Mandal Commission report was sought to be implemented by the V P Singh government, the BJP and its youth and students wing started a nationwide agitation against the reservation for OBCs and took to the streets which saw tremendous violence. The argument was that the reservation was against merit and denied the right of equality for the unreserved classes.

The 50 per cent ceiling

After the Mandal judgment, the Constitution was amended twice — 77th amendment (1995) and 93rd amendment (2005).  These amendments provided for reservation in higher educational institutions and also providing for reservation in promotion for SC/STs in public employment if they are not adequately represented.

Though these amendments were upheld by the Supreme Court, it also held: “The State is not bound to make reservation for SC/ST in matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely.” (Nagaraj, 2006)

When several state governments sought to implement reservation promotion for SC/STs, almost every scheme was struck down. Uttarakhand appointed a committee for collecting quantifiable data. When the committee recommended the need to provide for reservations for the SC/STs who were poorly represented, the state government refused to do so. When an action was brought to the Supreme Court, the Supreme Court said it was not necessary for the state to provide reservation promotion and they can never be compelled to do so by the courts. (Mukesh Kumar, 2020)

Also read: Critics fume as TN varsity marks EWS quota in Centre-sponsored course

By this action, any kind of affirmative action through court’s intervention in the matter of providing reservation in promotions in public services thus became a pipedream. The public sector units (PSUs) — which have to follow the mandate of reservation in view of they being an instrument of the state within the meaning of Article 12 of the Constitution — by the action of disinvestment due to liberalisation and privatisation of economy, will also cease to have any mandate for reserving posts for Socially and Educationally Backward Classes (SEBC).

The 103rd Amendment

At the tail-end of the tenure after the 2014 election, the Modi government suddenly brought the 103rd Amendment Act and bulldozed the same in Parliament and got it passed on January 14, 2019. They thought that this sudden quota for EWS with a huge income ceiling would help them to face the 2019 election. They did not bother whether the 10 per cent special quota will be violating the 50 per cent ceiling fixed by the Supreme Court on all kinds of reservations.

At the tail-end of the tenure after the 2014 election, the Modi government suddenly brought the 103rd Amendment Act and bulldozed the same in Parliament and got it passed on January 14, 2019

The quotas for SC/STs were fixed based on population. But when the OBC reservation came, it was not on the population ratio and it was reduced to 27 per cent in the Mandal case. But what is surprising is that the 10 per cent quota would be violating the 50 per cent quota ceiling fixed by the court. It is also not clear as to how the 10 per cent was arrived at when the population figures of excluded reservation categories were ever gathered by the state.

The income ceiling fixed for EWS far exceeded the ceiling fixed for eliminating OBCs from their reservation quota by excluding the so-called creamy layer among them. What is shocking is that the EWS quota consciously excluded the other reserved categories being considered under the said quota even if they were economically poor. No reasons were assigned. In fact, this aspect was dissented by the two judges, Chief Justice Lalit and Justice Ravindra Bhatt. Justice Bhatt also questioned the exceeding of the 50 per cent quota fixed by the judiciary earlier.

Another notable absence was the non-extension of the restriction brought in by Article 335 in the case of reservation for SC/STs. It was stipulated that while providing for reservation for SC/STs, the state “shall take into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union of a State”.

Selective on efficiency

It is shocking to note that the central government, led by the BJP, did not put any rider regarding the efficiency of administration to be taken into account while providing for reservation for EWS. This means the question of efficiency will come only when reservations are made for the SCs and STs and not for other caste people. It was surprising that major political parties like the Congress and the communists did not oppose this fraud committed upon the Constitution.

In the last 27 years, not in a single scheme of either the state government or PSUs, the authorities could provide reservations in promotion. Almost every move was resisted by the court and the amendments made by respective state governments in their service rules were struck down by the Supreme Court by stating that the state had not provided enough data to substantiate such a move. It was held that Article 16(4A) was only an enabling provision and it was not mandatory for the state to make any scheme providing for promotion to the SC/STs in public employment.

In the last 27 years, not in a single scheme of either the state government or PSUs, the authorities could provide reservations in promotion

Little was it realised that Article 46 already provides for such a scheme to be implemented. The said Article incorporated in Part IV of the Constitution is not enforceable and hence the specific amendment was thought of and attempts were made to frame regulations. Even today, one does not know what concrete data was that the Supreme Court was asking for implementing a scheme. Was it not enough for the state to show that the members of the SC/STs have not been adequately represented in the higher posts and that it requires further affirmative action by providing reservation in promotions also?

Skewed representation in judiciary

It is not a question of only the services under the Union and the States, but even in the higher judiciary one does not find adequate representation for women, minorities, SC/STs and other backward classes. The high courts and the Supreme Court do not have enough representation for such categories even though competent hands are available. One cannot understand that even after 72 years of the working of the Constitution, the higher judiciary is dominated by persons drawn from upper castes and not from the other communities as well as minorities and women.

Also read: ‘UPSC’ for judicial posts? Why the Centre-State row is in the news again

The debate on ‘caste’ over ‘class’ is never ending in the judicial quarters. Champakam Dorairajan’s case, which rejected caste-based reservation notwithstanding the enabling provision under Article 46, has now finally been buried by the 103rd amendment which provides for a 10 per cent EWS quota purely for the upper castes. The said reservation is not only a negation of settled principle provided by the framers of Indian Constitution, but a clear fraud played upon the Constitution itself.

Now the debate has come full circle.  But there’s nothing to be cheerful about as the caste here represents the upper castes of the society who initially opposed the reservation on the grounds of merit, but finally got themselves a new EWS quota which is not only disproportionate to their population, but the fixation of the income ceiling enables them to overtake the OBCs who were excluded from the reservation on the grounds of creamy layer, but not considered under the EWS quota

The caste has thus overtaken the class.

(Justice K Chandru is a former judge of the Madras High Court. After retirement, he writes extensively for leading newspapers and magazines.)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)

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