The dissenting judges in the EWS verdict have quoted various figures to demonstrate greater poverty among the SC/ST/OBCs.
‘What cannot be done directly cannot be done indirectly’ is a principle applied in courts of law very often.
The courts have, in the past, quashed reservation in favour of dominant castes, be it the Patel community of Gujarat, Marathas of Maharashtra, or Jats of Haryana.
Yet when it comes to the 103rd Amendment to the Constitution, paving the way for quota for forward castes to the exclusion of SC/ST/OBCs, the majority of Supreme Court judges constituting a Bench of five judges found no fault. It has been presented in a new avatar as the quota for “economically weaker sections” (EWS). There is a fault in the design since 95% of the population of India will come within reservations if this quota is implemented in its present form.
No judge found fault with the economic criteria per se, but a minority of two judges held the amendment invalid for excluding the SC/ST/OBCs from the EWS quota.
The Supreme Court (majority of judges) ignored the rationale behind affirmative action: Historical deprivation, and social stigma at birth of the people belonging to SC category and the geographical exclusion of STs. In the case of OBCs, it was inadequate representation.
According to Prof. Amartya Sen, there is no perfect justice. The aim is to clarify how we can proceed to address questions of enhancing justice and removing injustice, rather than to offer resolutions to questions about the nature of perfect justice.
Courts are tasked with the difficult task of ensuring justice in each case before them. The Supreme Court of India has devised a mechanism to quash even an amendment to the Constitution — if it violates the basic structure of the Constitution.
In other words, an amendment to the very basic legal document, the Constitution, can be called into question in the Court if it alters its basic structures or core values. Equality is a core value and the challenge to the 103rd Amendment was on the ground that it violated these core concepts.
The two major grounds were 1. Inclusion of a new criterion, “economic backwardness” for affirmative action: This was rejected by all the five judges. 2. Exclusion of SC/ST/OBCs from the EWS quota: There are divergent views from the court on this issue.
The concept of equality is enshrined in the Indian Constitution through various Articles, more particularly Articles 14–17 in the Fundamental Rights chapter. The equality code, coupled with the idea of “fraternity assuring the dignity of the individual” (words in the Preamble), forms the basic structure of the Constitution. The very basis of these ideas was shaken through the amendment when it excluded the poor from the reserved category.
According to Nobel laureate and economist Abhijeet Banerjee, the social policy framework of the nation was designed at a time when it was one of the poorest countries in the world, but now it requires a reset in these policies.
The new social policies should focus more on improving education, healthcare, jobs, social protection, and urbanisation. He cited the example of 2.8 crore people applying for 90,000 low-level Railway jobs.
Amartya Sen too has said, “If the whole of the population is covered by reservation, then that would be removal of reservation.”
Recently while delivering the 27th Justice Sunanda Bhandare Memorial Lecture on the topic “Democracy on the Ground: What works, what doesn’t and why”, Abhijeet Banerjee had these words, “There is very compelling evidence that reservation, both for SC/ST and women, has had a salutary effect.”
The Preamble, the key to open the mind of the framers of the Constitution, has these words, “Justice social, economic and political”.
The Directive Principles of State Policy, which is non-justiciable (i.e., courts cannot direct its enforcement), is nevertheless fundamental in the governance of the country and contains the following provisions:
Article 38: “State to secure a social order for the promotion of welfare of the people—(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Article 39 speaks of distributive justice.
Article 46 deals with the 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.”
And there is Article 335 of the Constitution about the claims of SC/STs to services and posts: “The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken 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 or of a State”
In the words of Justice Krishna Iyer, the State has been obligated to promote the economic interests of harijans and like backward classes. Articles 46 and 335 being a testament and Articles 14 to 16 being the toolkit, to blink at this panchsheel is to be unjust to the Constitution.
The Supreme Court upholding the ‘economic criteria’ is understandable but what is not logical is the exclusion of SC/ST/OBCs from the EWS. The reasoning recorded by the majority that they are already beneficiaries of one form of affirmative action is no answer. The dissenting judges Justice Ravindra Bhat and the then Chief Justice UU Lalit (who has concurred with the former) have in their separate opinion quoted various figures to demonstrate greater poverty among the SC/ST/OBCs.
Affirmative action for economically weaker sections is to be discussed with the support of data, in an unbiased manner, with an intention to address the inequalities.
The benefit of any affirmative action must reach the truly deserving class of people. Quelling the unrest among unemployed youth, on account of inadequate income from land holdings or lack of employment opportunities, should not be through more and more “poor forward-caste quota,” in an already shrinking public sector job market. That is one possible dangerous outcome of this green signal from the majority view of the Supreme Court.
(Prashant Padmanabhan is an advocate in the Supreme Court)