On 7 August 1990, then-Prime Minister V P Singh announced the implementation of the Other Backward Castes (OBC) quota in government-run institutions and jobs based on caste because of “historical oppression.”
Singh, then it was believed, decided to implement the recommendation of the Mandal Commission that was gathering dust since the days of Indira Gandhi, to stave off a rebellion by his deputy PM Devi Lal.
Expectedly, there was furore from the opposition parties and among the non-backwards caste youth who were opposed to a caste-based reservation and felt they would never make it to government institutions or jobs.
As the political dividends began to play out for the backward caste-based parties, Congress then raised the issue of poverty and economic backwardness. It sensed the mood among the large middle class that felt cheated by Singh’s decision.
In fact, on September 6, 1990, Congress leader Rajiv Gandhi argued for the inclusion of the economic criteria for the implementation of the OBC quota and blamed the V P Singh government for not taking this aspect into consideration.
Gandhi voiced support for those agitating for economic criteria, saying that “the point is within a particular class who you want to help. Do you want to help those persons in a particular class, who are already well off? The fact is that within a class when you want to give some assistance, it should go to the poorest.”
Even as the OBC quota generated new momentum in the sphere of affirmative action and related politics, the plea for a quota for economic backwardness gained support.
When the OBC quota reached the Supreme Court, the Narasimha Rao government made provision for a 10 per cent reservation for the economically backward sections, which were not covered by any other existing quota. But this was declared unconstitutional by the Supreme Court in the Indra Sawhney judgment in 1992. The court observed that “a backward class of citizens cannot be exclusively identified by economic criterion.”
Nevertheless, in 2004, the Manmohan Singh government formed a commission for the Economically Backward Classes which were not covered by existing reservation policies. It was headed by Maj. Gen S.R. Sinho (retd), with Narendra Kumar as the second member and Mahendra Singh as Member Secretary.
But those political groups that had dominant backward castes as their support base strongly opposed the idea.
Even the Sinho commission observed that there was no good and reliable data for it to act upon for a quick report. The Commission noted that: “Data on castes/communities other than the SCs and STs were not available as the census of India did not project the population of all castes/communities after the 1931 census. The states and UTs could not make available the data.” Many states including Tamil Nadu and Bihar strongly opposed reservations on the basis of economic backwardness.
Finally, the Sinho Commission submitted its report to the Centre in July 2010. The UPA government put it in cold storage. never acted on it. It was marked as “Confidential” and never discussed in public.
It was not until influential caste groups like the Jats of Haryana, Marathas of Maharashtra and the Patels or Patidars began agitation for a quota for their community by declaring them as OBCs, the Modi government realised something had to be done. The EWS quota seemed like a safety valve to take off pressure on the government.
Hence, just before the Lok Sabha polls of 2019, the Modi government got Parliament’s approval for the 103rd Constitutional Amendment for a separate 10 per cent quota for the Economically Backward classes. Most opposition parties, including Congress, did not oppose the law. The amendment allowed the government to institute the EWS quota by modifying Articles 15(6) and 16(6) of the Constitution, which give the power to institute affirmative action for specific categories. It received an overwhelming majority in both Houses, especially in the Lok Sabha.
The law stipulated that to qualify for the EWS quota, a candidate’s family income must be less than ₹8 lakh rupees per annum, own less than 5 acres of land, have a flat of less than 1,000 square feet in size, have a residential plot of less than 100 square yards in size in a notified municipality area or less than 200 square yards in a non-notified municipality area.
The Centre’s move saw several state governments also support the EWS reservation in their respective jobs and educational institutions.
But as many as 40 petitions were heard by the Supreme Court against it, including by the state of Tamil Nadu, which has among the highest reservations in the country.
On November 7, the top court, in its 3-2 split verdict, said the law on EWS quota does not violate the basic structure of the Constitution. The BJP was naturally relieved because it came as a booster for Prime Minister Narendra Modi ahead of the assembly elections in Gujarat and Himachal Pradesh where the upper caste voters hold the key.
The main opposition to the EWS quota was on the ground that it violated the basic structure of the Constitution, which envisioned reservations as a mechanism to help socially disadvantaged groups such as scheduled castes and scheduled tribes, and not as an economic tool to alleviate poverty.
Secondly, it was argued before the apex Court that the implementation of the quota breached the 50% quota cap instituted by the Supreme Court in its landmark Indira Sawhney judgment in 1992 because the current quantum of reservation stood at 49.5% (15% scheduled caste, 7.5% scheduled tribes, and 27% other backward classes).
Lastly, the EWS quota had kept out the scheduled castes, scheduled tribes and other backward classes. The EWS quota is only for the people who are not covered under any other existing form of reservation.
Last year, the Madras high court, in a judgment, rejected the EWS reservation in all-India quota seats for medical education. Of course, the Supreme Court later set aside the verdict.
The Centre rejected arguments that the EWS quota should be struck down because it exceeded the 50% quota cap. It said the EWS quota was necessary because the meaning of the word “backward” was strictly defined to mean socially and educationally backward, leaving it with no choice but to legislate a new category of affirmative action. It rejected arguments that the quota was unfair to the existing categories of affirmative action, and would eat into either their share or the general category. It assured the Court that it would proportionally increase the number of seats or jobs.
That brings us to the question: will the reservation in India be a mix of social backwardness and economic deprivation?
Ultimately, should not poverty be the sole basis for reservations in education and employment? The debate is bound to continue but major political parties will not like to be seen as opposing the EWS quota.
The Supreme Court bench that delivered the verdict on EWS was one of the few Constitution benches. They were set up by outgoing Chief Justice of India U U Lalit when he took charge and completed a hearing that lasted for six-and-half days.
Justices Dinesh Maheshwar, Bela M. Trivedi and J.B. Pardiwala upheld the verdict while CJI Lalit went with the minority view against the amendment, which was authored by Justice Ravindra Bhatt.
Justices Maheshwari, Trivedi and Pardiwala held that the EWS quota does not violate the basic structure of the Constitution, CJI U.U. Lalit and Justice Ravindra Bhat did not concur with the majority view.
Justices Maheshwari and Trivedi in their opinions said the state can make special provisions and the exclusion of SEBCs, STs, SCs, and OBCs does not violate the equality code. Justice Trivedi also added reservations should have a deadline to usher in an egalitarian society. Justice B. Pardiwala also concurred with Justice Maheswari’s view. He also said efforts should be made to eliminate the causes of backwardness.
On the other hand, Justice Bhat summed up that reservation based on an economic criterion is per se valid, but excluding others who are backward (SC/ST/OBC/SEBC) is a violation of basic structure. Excluding them strikes at the essentials of non-discriminatory rule. He held that economic deprivation and penury may seem to be the whole premise of the EWS quota. But excluding equally other poor sections of the society (personified by SC, ST, SEBC, OBCs) amounts to a “constitutionally prohibited form of discrimination.”
(The author is a senior journalist and a well-known political commentator)