Some judgments give definitive answers to questions. Some raise more questions than answers. The Supreme Court’s split 3:2 verdict on the validity of the 10 percent reservation for economically weaker sections (EWS) raises several questions, leaves the door open for states to make their own interpretations, and potentially attempt to raise quotas to well beyond the 50 percent ceiling that has hitherto remained sacrosanct (except in Tamil Nadu which has 69 percent).
All five judges on the Bench agreed that providing reservation on the basis of economic criteria does not violate the basic structure of the Constitution. However CJI UU Lalit and Justice Ravindra Bhat felt that limiting the benefits of the EWS to the so-called forward communities while excluding the OBC’s and the SC/ST’s from its ambit did not stand judicial scrutiny. The crux of their argument was that “the characterisation of reservations for economically weaker sections of the population (EWS) as compensatory and on par with the existing reservations under Articles 15(4) and 16(4), is without basis.” Therefore, the judges questioned the exclusion of the OBC’s and the SC/ST’s from the ambit of the EWS on the basis that they were given the benefit of reservation in the said Articles. “Excluding SC/ ST, OBC from EWS reservation amounts to heaping fresh injustice on them,” they opined.
The question of what happens to the ceiling of 50 percent for reservations as outlined in the Indra Sawhney case is now the worry. For long the 50 percent ceiling has been held sacrosanct, but this majority judgment by stating that the 50 percent ceiling referred to what was provided under Article 15 and 16 and that reservation for EWS was a different category of reservation altogether raises several questions. Also stating that the 50 percent ceiling could be breached in exceptional circumstances could open a Pandora’s Box. The two judges who delivered the minority judgment, however, felt that raising the limit beyond 50 percent would not be correct, and could lead to further compartmentalisation.
Can individual states now increase the reservation percentage beyond 50 percent as long as they put it in a category outside the ambit of Articles 15 and 16? If social, educational, and economic backwardness are already covered, what new form of disadvantage could possibly be thought of to raise quotas further? Also how much higher beyond 50 percent can the total reservation go? All these questions need answers.
While most political parties have welcomed the verdict, some like the Dravida Munnetra Kazhagam (DMK) have promised to continue the legal battle, and seek a review. Calling the verdict a blow for social justice Tamil Nadu Chief Minister MK Stalin said he would be consulting legal experts to plan the next steps. He also appealed to like-minded parties to come together on this issue. However except perhaps for the RJD, few other parties are likely to join the DMK. Its ally the Congress while welcoming the verdict went a step further and even tried to claim credit by pointing out that it was the Congress-led United Progressive Alliance government that set up the Sinho Committee in 2005-06. Most other parties voted for the Bill in Parliament, and are unlikely to do a volte face now.
It is too early to predict what the impact of this judgment will be, but at least for the moment the EWS reservation is here to stay. For sure there will be a legal challenge and some Opposition-ruled states could try to raise quotas further to test this judgment.
Another key issue that was raised in the majority judgment was the question about the need to review reservations, and how they are being implemented. Justice Bela Trivedi in her judgment wrote, “At the end of 75 years of Independence we need to revisit the system of reservation in the larger interest of society.” While it is a fact that there is hardly any data available over the last several decades to modify reservations based on castes making progress or slipping backwards (data obtained on caste during the last census has not been published), these observations in the Judgment made some of the political parties who derive their vote-bank from caste/social polarisation question whether reservations themselves were in peril.
In the midst of strong arguments for and against the EWS quota, and who its beneficiaries should be, is the stark reminder of the urgent need for a caste-based census. The BJP backed the appeal for one in 2010. Even as late as 2019 Defence Minister Rajnath Singh said that the next census would collect data on caste basis for OBC’s. Since then there has been silence. Some states like Bihar announced they would carry out a caste-based census but that too has not seen much progress.
If there was hope that the Supreme Court judgment would bring to an end the debate on reservations for EWS, it clearly does not seem that way. Instead, the split verdict may have opened a can of worms that now calls into question issues that were hitherto thought to have already been answered.
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