The EWS Quota: It’s a vote-catcher alright

The Supreme Court judgment of November 7 upholding reservations for the ‘economically weaker sections’ couldn’t have come at a more opportune time for the Bharatiya Janata Party. The majority judgment came just five days before polling in Himachal Pradesh and less than a month ahead of polling in Gujarat.

Are Supreme Court judgments subject to the Election Commission’s Model Code of Conduct? Would the heavens have fallen if the verdict came a month after the elections? Is it reasonable to argue that these judgments may affect electoral outcomes?

It was perhaps plain coincidence that the outgoing Chief Justice of India, who was retiring two days later, was also on the bench. Perhaps just another coincidence that two of the three judges who wrote the separate majority judgments (CJI Lalit did not write a separate judgment but assented to the majority) had served in the Gujarat High Court.

Unsurprisingly, both the ‘forward castes’, who are generally opposed to caste-based reservations, and the BJP, which had opposed the movement by Patidars in Gujarat demanding reservations, have welcomed the judgment for securing “social justice for the poor”. The Supreme Court will, no doubt, take its time to hear the review petitions challenging the judgment. What remains to be seen is whether the court stays the reservation after polling is over in the two states, by which time, the short-term focus of the BJP would have been well served.

The court’s majority view that the 50 per cent quota ceiling is applicable only to caste-based quotas but not for EWS reservation is also being questioned as constitutionally unsustainable and discriminatory. It has been argued that EWS is a vertical compartment carved out of the open competition segment.

The judgment has opened up all sorts of dubious possibilities. With the top court effectively validating reservations beyond the 50 per cent ceiling, chances are several states will increase the reserved quota for SC, ST and OBC categories. The Jharkhand assembly has already passed a resolution to take it up to 77 per cent. Chhattisgarh is expected to adopt a similar resolution next month. More states are likely to follow.

The 103rd amendment, to set the record straight, does not mention caste. But by disallowing EWS reservation to those eligible for caste-based reservations, the amendment effectively reserves the 10 per cent quota for the forward castes alone. In Karnataka only five communities— Brahmin, Jain, Aryavaishya, Nagartha and Modaliar—are outside the purview of the existing caste-based reservation. These five communities are said to make up just four per cent of the state’s population and yet they will be eligible for 10 per cent EWS quota. In Karnataka, unlike other states, even religious minorities like Lingayats, Vokkaligas, Digambar Jains and others are eligible for the 32 per cent OBC quota.

Attempts to extend caste-based reservation to Jats in Haryana and Marathas in Maharashtra were earlier thwarted by the Supreme Court judgment of 1993 in the Indra Sawhney case, which laid down the 50 per cent ceiling. It was a nine-judge bench in 1993. Can a five-judge bench in 2022 overturn it? With the EWS judgment allowing a breach, demands are likely to snowball for higher quotas proportionate to the population of communities. The tribal population in Jharkhand is around 30 per cent and in Madhya Pradesh 21.5 per cent. OBCs in Rajasthan and Chhattisgarh are a far bigger chunk of the population in percentage terms than the quotas allotted to them.

Many such demands will have to be adjudicated. There is a visible shift in the tenor of the debate on quotas, an emphasis on the relative merits of economic criteria over caste-based reservation. But even the Sinho Commission report, which forms the basis of EWS reservations, acknowledges the ambiguities and the difficulties in making the switch.

This, however, is not the only conundrum thrown into relief by the SC judgment. Based on a petition, the Madras High Court has issued notice to the Union government to explain why people with income over `2.5 lakh per annum should pay income tax when the EWS quota specifies an income ceiling of `8 lakh per annum. In 2021, the Union government had defended the income criteria in court. It had argued that for the purposes of EWS reservation, the income ceiling is for the family while for caste-based reservations, the income criteria apply to individuals. It had also argued that for EWS reservation, income from all sources, including agricultural income, is included, but not in the case of caste-based reservations. But the government has not been able to explain how it arrived at the ceiling and on what basis the 10 per cent quota was fixed for the economically weaker sections.

No empirical data has been cited to justify the ceiling or the quota. Can upper caste nuclear families earning up to `8 lakh a year (or `66,000 a month), who possibly also own a 1,000 sq. ft home and up to 5 acres of land be deemed economically weak? For perspective, consider that a household earning `75 a day is said to be above the poverty line but an upper caste household earning `2,200 per day is ‘economically weak’. Also data from the Department of Revenue indicates that less than one per cent of the country’s population has a household income of more than `10 lakh. Over 300 million Indians live below the poverty line (spending less than `32 a day in urban areas and under `27 a day in rural areas); all available data show that Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) have a higher share of poor people than upper castes in both urban and rural India. But they will perversely remain outside the ambit of the EWS reservation.

The extension of EWS reservation to institutions offering higher education in the private sector is also contentious. Most such institutions in the private sector are promoted by the forward castes and there is no reliable data to make a case for forward caste reservation. On the contrary, the forward castes are widely believed to be over-represented practically everywhere—in political appointments, in the executive, the judiciary and in universities—and now, thanks to the EWS verdict, have received an additional quota for themselves.

Gujarat saw anti-reservation riots in the 1980s, and then mocked its own history during the Patidar Andolan of 2015, which demanded reservations for the state’s upper-caste Patidars and is widely believed to have set the stage for the EWS quota. This new quota has exposed the so-called ‘Gujarat model’ of development in at least two ways. It shows that this model of development has not even managed to lift the forward castes out of poverty, and has only widened the gap between the rich and the poor. The EWS quota is proof that for the poor in India, even the forward castes, reservations are still the surest ticket to a better future.

Leaders of the Patidar Andolan, who were dealt with ruthlessly during the pro-reservation agitation, are now BJP candidates in the upcoming assembly election. The Patidar community, which can rightfully claim assembly seats in proportion to their population, has also been given a disproportionate number of seats to contest. The social segment that has ceded the maximum political space in the state is the OBC community. The BJP has cultivated an image that is not just pro-Hindu but pro-forward castes as well, and the EWS judgment will bolster its claims with these communities. The arbitrarily determined high income ceiling for the new quota (`8 lakh per annum), and the simultaneous exclusion of social categories covered by other quotas, will simply ensure that nearly everyone qualifies as long as they are from the forward castes. That is a very big catchment area for votes—and the BJP knows it only too well.

MARTIN MACWAN is the founder of Navsarjan, a grassroots Dalit organisation fighting for human rights