Supreme Court’s three-question test for validity of 10% EWS quota

Source: The post is based on the article “Supreme Court’s three-question test for validity of 10% EWS quota” published in The Hindu on 13th September 2022.

What is the News?

The Supreme Court will examine whether The Constitution (103rd Amendment) Act, which introduced a 10% quota for Economically Weaker Sections(EWS) in government jobs and admissions violates the basic structure of the Constitution.

What is the 103rd Constitution Amendment Act?

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What are the recommendations given by the committee to revisit the criteria for determining EWS?

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Why the 103rd Constitution Amendment Act is challenged in court?

The 103rd Constitution Amendment Act has been challenged on the following grounds:

Firstly, it violates the basic structure of the Constitution. The special protections guaranteed to socially disadvantaged groups are part of the basic structure. But the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.

Secondly, it violates the Supreme Court’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal report and capped reservations at 50 per cent. The court held that economic backwardness cannot be the sole criterion for identifying a backward class.

Thirdly, it has been challenged on behalf of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/ profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

What has been the government’s stand on this matter?

The government has brought this amendment under Article 46 of the Constitution, part of Directive Principles of State Policy, the state has a duty to protect the interests of economically weaker sections.

On the argument of violation of the basic structure, the government said that to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered.

On the Indra Sawhney principle, the government has relied on the SC’s 2008 ruling in Ashoka Kumar Thakur v Union of India in which the court upheld the 27% quota for OBCs. The court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors; thus, there need not be a sole criterion for according reservation.

How is the Supreme Court going ahead on this case?

Attorney General had drafted four issues for the consideration of the Bench. The court decided to take up three of them:

First: Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria”

Second: Whether it (the amendment) can be said to breach the basic structure by permitting the state to make special provisions in relation to admission to private unaided institutions.

Third: Whether the basic structure is violated by excluding the SEBCs (Socially and Educationally Backward Classes)/ OBCs (Other Backward Classes)/ SCs (Scheduled Castes)/ STs (Scheduled Tribes) from the scope of EWS reservation.