Excluding SC/ST/OBC from EWS reservation is fresh injustice: Justice Bhat The CJI and Justice Bhat dissented from the decision upholding EWS as constitutionally valid

09, Nov 2022 | Sanchita Kadam

On November 7, the Supreme Court in a majority judgment, upheld the Constitutional amendment that introduced 10% quota for the Economically Weaker Sections (EWS) or the economically deprived in education and public employment. While Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the said amendment, CJI UU Lalit and Justice Ravindra Bhat gave a powerful dissenting judgement, holding the amendment to be unconstitutional, exclusionary towards Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) and violative of the Equality Code of the Indian Constitution.

The dissenting judgment authored by Justice Ravindra Bhat and concurred by Chief Justice UU Lalit gets straight to the point. Justice Bhat does not mince his words as he begins the minority judgment by saying that “this court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle”. Justice Bhat made it clear that introduction of deprivation based affirmative action, is consistent with constitutional goals as long as it addresses deprivation resulting from discriminatory social practices.

The petitioners contended that the exclusion enumerated in Article 15(6) falls foul of the equality code and amounts to a violation of basic structure, as it introduces a new class of “economically weaker sections” while excluding the classes covered in Article 15(4) [i.e., socially and educationally backward classes including Scheduled Castes and Scheduled Tribes]

At the outset, Justice Bhat’s judgment concludes that introduction of reservation for EWS is exclusionary and violates the basic structure on the ground of exclusion. To reach this conclusion, he delved into provisions of the Equality Code (Articles 14, 15, 16, and 17) and how it is a part of basic structure of the Constitution. It held that introduction of EWS reservation [through insertion of Article 16(1)] violates the right to equal opportunity, in addition to the nondiscriminatory facet of equality, both of which are part of the equality code and the basic structure.

The Equality Code

It was observed in the judgement that the debates in the Constituent Assembly leading to the framing of Articles 15(1) and 15(2) clearly point to the overarching idea of nondiscrimination as one of the basic facets of equality.

“41. As far as Article 16 goes, the idea behind that provision was to achieve the goal of equal opportunity (as appearing in the Preamble) in matters of public employment…Article 16(4) is the only provision in the original Constitution which enabled reservation – in favour of any backward class of citizens that were not adequately represented in the services under the State.”

Justice Bhat has opined that the Equality Code is not about the grand declaratory sweep of equality: but equally about the absolute prohibition against exclusion from participation in specified, enumerated activities, through entrenched provisions.

“60. …in this Court’s opinion, the basic framework of the constitution or the idea and identity of equality was that:

(i) There ought to be no discrimination in any form, for any reason whatsoever on the proscribed grounds, including in matters of public employment;

(ii) That the provision for affirmative action was an intrinsic part of the framework and value of equality, i.e., to ensure that the equality of classes hitherto discriminated and ostracized, was eventually redressed.” (Para…)

“71. …The idea of the twin assurance of non-discrimination and equality of opportunity, is to oblige the state to ensure that meaningful equality is given to all,” said Justice Bhat. It has been observed that the idea of equality is tethered to non-discrimination, that there cannot be any exclusion by the state in vital spheres of human activity

Basic structure

The judgement states that, “(para 77) the irresistible conclusion is that non-discrimination – especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provisions in Articles 17 and 15]constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure”. (Para…)

Reasonable Classification

“80. I am of the opinion that the application of the doctrine classification differentiating the poorest segments of the society, as one segment (i.e., the forward classes) not being beneficiaries of reservation, and the other, the poorest, who are subjected to additional disabilities due to caste stigmatization or social barrier based discrimination – the latter being justifiably kept out of the new reservation benefit, is an exercise in deluding ourselves that those getting social and educational backwardness based reservations are somehow more fortunate,” Justice Bhat opined.

The judgement in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 where discrimination faced by transgender persons was deprecated and the court had held that treatment of equals and unequals as equals, is violative of the basic structure.

The judgement categorically holds that the fact that SC/ST are covered by reservations cannot be a ground for reasonable classification since none of the material placed before the court suggest that SC/ST/OBC should be excluded from the poverty or economic criteria-based reservation, on the justification that existing reservation policies have yielded such significant results, that a majority of them have risen above the circumstances which resulted in, or exacerbate, their marginalization and poverty.

Amendment is exclusionary

The concern raised in this dissenting judgement is that “There is nothing to suggest, how, keeping out those who qualify for the benefit of this economic-criteria reservation, but belong to this large segment constituting 82% of the country’s population (SC, ST and OBC together), will advance the object of economically weaker sections of society.” (para 91)

The judgement states that EWS category has no connection with social or educational backwardness and hence caste or community is not the identifying criteria or classifier; and by the exclusion clause Article 15(6) “keeps out the socially and educationally backward classes, particularly SC/STs operates to discriminate them, because overwhelming numbers of the poorest are from amongst them.” (Para 93)

By excluding SC/ST/OBC from the EWS category. Their existing reservations have been viewed as “benefits and privileges” and thus disentitles them from accessing EWS reservation which is based on economic deprivation. Even though the reality is that they fall under the description of economically deprived, they are excluded from EWS as “they are loaded with benefits” (as contended by the respondents) and this belittles their plight.

It is cold comfort for the person who otherwise fulfils all the characteristics of an identifier such as poverty to be told that she is poor, as desperately poor or even more so than members of other communities yet she is being kept out because she belongs to a scheduled caste or scheduled tribe, the judgment points out. (para 98)

The argument that including the poor among SC/ST/OBC in the EWS category would be bestowing “double benefit” is flawed since what is being described as “benefits” by the Union, “cannot be understood to be a free pass, but as a reparative and compensatory mechanism meant to level the field – where they are unequal due to their social stigmatisation.” The judgment states that “this exclusion violates the non-discrimination and the non-exclusionary facet of the equality code, which thereby violates the basic structure of the Constitution.” (para 100)

It further observes that destitution, economic deprivation, poverty, are markers, or intelligible differentia that form the basis of classification for EWS, however excluding a large section of equally poor and destitute individuals based on their social backwardness, the amendment practices constitutionally prohibited forms of discrimination.

Justice Bhat observed that introduction of reservations for economically weaker sections of the society is not premised on their lack of representation (unlike backward classes); the absence of this condition implies that persons who introduction of reservations for economically weaker sections of the society is not premised on their lack of representation (unlike backward classes); the absence of this condition implies that persons who are not socially backward, and whose communities are represented in public employment – violates the equality of opportunity which the Preamble assures, and Article 16(1) guarantees. (Para 131)

He further explains his stance with an example as follows:

“132. …For instance, if the poorest citizens among a certain community or that entire community, is unrepresented, and the quota set apart for the concerned group (SC) as a whole is filled, the requirement of “representation” is deemed fulfilled, i.e., notwithstanding that the specific community has not been represented in public employment, no citizen belonging to it, would be entitled to claim reservation. However, in the case of non-SC/ST/OBCs, whether theindividual belongs to a community which is represented or not, is entirely irrelevant. This vital dimension of need to be represented, to be heard in the decision-making process, has been entirely discarded by the impugned amendment in clause (6) of Article 16. Within the amended Article 16,therefore, lie two standards: representation as a relevant factor (for SC, ST and OBC under Article 16(4)), and representation as an irrelevant factor (for Article 16(6)).”

Enabling provision

The Union contended that the amendment was only an enabling provision and thus cannot violate basic structure and while this view was accepted in the judgment authored by Justice Pardiwala, Justice Bhat refused to accept the same.

“157. …The enabling provision in question’s basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court’s inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted…To view a newly added provision as only “enabling” can be an oversimplification in constitutional parlance.,” he opined.

Article 46

Justice Bhat, through his judgement, has reminded us that the scope of Article 46, which is part of Directive Principles of State Policy, is to ensure upliftment of all poor sections, including SC/ST/OBCs.

“165. In my considered opinion, it would be wrong to characterize that the classification made for upliftment of SC/STs for whom special mention is made, is a “classification” for the purpose of upliftment of economically weaker sections, under Article 46, which permits a later classification that excludes them. If anything, the intent of Article 46 is to ensure upliftment of all poor sections: the mention of SC/STs is to remind the state that especially those classes should not be left out. But ironically, that is exactly the result achieved by their exclusion,” he wrote.

Article 46  reads as follows:

Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”

In his opinion, “The mention of SC/STs in Article 46 is a reminder to the state never to ignore them from the reckoning whenever a measure towards economic emancipation under Article 46 is introduced by the State.” (Para 167)

Breach of 50% cap in reservations

Justice Bhat threw caution to the wind on the consequence of upholding the EWS reservation as it breaches the 50% limit on reservations but refused to give specific opinion on the same since it has been challenged in another case which is pending before another bench. However, the majority judgement did comment on the same while upholding the reservation that creation of another class which can be a recipient of up to 10% of the reservation, over and above 50%,  that is permitted under Articles 15(4) or 16(4). Justice Bhat dissented from this view as well and opined that “because permitting the breach  of the 50% rule as it were through this reasoning, becomes a gateway for further infractions whereby which in fact would result in compartmentalization”.  By doing this, the minority judgement argues and by allowing this, the right to equality could be easily reduced to right to reservation and also recollected Dr BR Ambedkar’s cautionary words that reservations are temporary else they would “eat up the rule of equality”. (para 178)

Conclusion 

The dissenting minority judgement holds thus:

“187. The exclusionary clause (in the impugned amendment) that keeps out from the benefits of economic reservation, backward classes and SC/STs therefore, strikes a death knell to the equality and fraternal principle which permeates the equality code and non-discrimination principle.”

“188. … exclusion, with all its negative connotation –is not a constitutional principle and finds no place in our constitutional ethos. Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion.”

Justice Bhat (Chief Justice UU Lalit in concurrence) opines that the impugned amendment – by excluding backward classes – is violative of the basic structure of the Indian Constitution.

He explains it in simple words: the marker for inclusion under EWS is poverty or deprivation, irrespective of which community or caste the beneficiary belongs to. But at the same time the State is excluding certain communities who may be equally or desperately poor from benefits of this EWS quota since they belong to those communities.

“190. …This dichotomy of on the one hand, using a neutral identifier entirely based on economic status and at the same time, for the purpose of exclusion, using social status, i.e., the castes or socially deprived members, on the ground that they are beneficiaries of reservations (under Article 15(4) and 16(4)) is entirely offensive to the Equality Code.”

He further states thus

“191. …the “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability.”

The judgement ultimately concludes to hold that the impugned constitutional amendment i.e. Sections 2 and 3 of the Constitution (One Hundred and Third Amendment) Act, 2019 which inserted clause (6) in Article 15 and clause (6) in Article 16, respectively, are unconstitutional and void on the ground that they are violative of the basic structure of the Constitution.

The complete judgement may be read here:

 

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