The cynical calculus of EWS

In January 2019, Parliament passed the 103rd constitutional amendment carving out a new quota in government jobs and admissions to government educational institutions. This was a new 10 per cent quota for persons from the economically weaker section (EWS).

A slew of petitions challenged the constitutionality of the amendment, which had been passed without much consideration or debate in Parliament because the ruling BJP has a brute majority in the Lok Sabha. One of the few objections against the amendment was made in a spirited speech by Kanimozhi, an MP of the DMK from Tamil Nadu, but there was no real discussion.

On 7 November 2022, a five-judge Constitution bench of the Supreme Court upheld the constitutionality of the EWS quota, dismissing all the petitions that challenged it. The verdict of the bench was unanimous in affirming that the economic criteria can be used as a basis for reservation, something the petitioners had challenged.

The bench was also unanimous in its implied conclusion that because of this new category, the aggregate of constitutionally mandated reservation (Scheduled Castes, Scheduled Tribes, Other Backward Classes, and now EWS) would exceed 50 per cent, but this was not per se against the Constitution. This too was one of the contentions of the petitioners. The bench was split (3:2) on only one issue: whether SC, ST and OBC groups could be excluded from the newly created reservation category of EWS. The majority view was that their exclusion is also okay.

This amendment and the stamp of validity on it from the highest court of the land has many consequences. Has the judgment dealt a blow to the doctrine of protecting the basic structure of the Constitution (something that flowed from the landmark 1973 Supreme Court judgment in the Kesavananda Bharati case)? This famous judgment did not explicitly define ‘basic structure’, but it held that the amendments passed by Parliament cannot be of such an extreme nature that they distort the very basic principles of the Constitution.

Parliament is supreme, but the spirit of the Constitution is paramount. Some questions linger: have we violated the right to equality (Article 14) by creating a new category based on economic criteria, to whom special treatment (reservation) will be accorded? Or have we breached the principle of non-discrimination (Articles 14 and 15) by excluding SC, ST and OBC groups from this new category?

These are questions for scholars of jurisprudence. Much has already been written, including a blog post by Ayan Gupta (at indconlawphil.wordpress.com) that this author found quite perceptive. It’s also possible that in days to come a larger bench will review the decision.

For now, let’s examine other aspects of the amendment and the judgment. First, it is clear the amendment itself was politically motivated. The word ‘quotas’ has radioactive resonance in the Indian polity, and there is an impression that the amendment was passed to benefit a vote bank of upper-caste voters. But now even Muslims and Christians have become eligible for the EWS quota.

Second, the quotas in our Constitution were meant to correct longstanding and historical injustice based on caste. They are meant to help those who have suffered from social backwardness for generations. How can economic backwardness be put in the same category as social backwardness stemming from historical injustice and social backwardness?

A person’s economic status is fluid and can change with effort or luck or both. Even a person’s religion can be a matter of choice. But caste is an unchangeable marker from birth. So, overcoming caste-based discrimination is not in the same league as economic deprivation.

Third, the eligibility cut-off for the EWS quota is an annual income of Rs 8 lakh, which seems like a very generous threshold. It is far above the poverty line. By one estimate, more than 95 per cent of households in India will fall under this limit. Is it, then, really for the ‘economically weaker’ category it supposedly targets?

Fourth, if indeed the EWS quota is meant to help the poor, then let’s look at the profile of those below the poverty line. According to the Sinho Commission (2010), nearly 82 per cent of the people below the poverty line are from scheduled castes, scheduled tribes and other backward classes. Poverty and social backwardness have a high correlation. But those very categories have been denied opportunities in the EWS quota. It is on this point that two judges on the bench dissented.

Even if you take a pragmatic view of poverty, doesn’t the new quota appear questionable as a policy designed for the poor? It is like launching an anti-poverty programme that excludes people from rural areas and from the agriculture sector because they get other subsidies. The status of economic backwardness is fluid. It should be addressed by affirmative action and not quotas. For instance, providing education loans to students from poor households is better than a quota system for the poor.

The EWS policy will inevitably unleash a mad scramble for income certificates. In an economy where 92 per cent work in the unorganised, unregistered or informal sector, getting authentic income data is notoriously difficult. Only about five per cent of the population pays income tax. Where will we get authentic income data, based on which this EWS policy will be implemented? Are we opening the gates for more corruption, litigation and rent seeking?

The EWS quota has political capital simply because of the scarcity of well-paying, stable and quality jobs. Most jobs will be created in the private sector anyway, where these quotas won’t apply. The surest way to correct social or economic injustice is high, sustained and inclusive growth — of the economy and of jobs and livelihoods.