EWS Reservations Day #3: (Sr. Adv. Ravi Varma Kumar): 103rd Amendment Violates the Right to Equality

On September 14th, 2022, a Constitution Bench led by CJI U.U. Lalit comprising Justices Dinesh Maheshwari, Ravindra Bhat, Bela Trivedi, and J.B. Pardiwala continued hearing the challenge to reservations provided to economically weaker sections of society (EWS reservations). The Constitution (103rd) Amendment Act, 2019 (the Amendment) allows states to provide reservations solely on the basis of economic criteria. 

On September 13th, the Bench heard arguments from Dr. Mohan Gopal, Senior Advocates Meenakshi Arora, and Sanjay Parikh all of whom represented petitioners challenging the Amendment. 

Today, the Court continued hearing arguments for the petitioners from Sr. Adv. Ravivarma Kumar. He argued that the EWS reservation violated the Right to Equality and gives states wide and arbitrary powers to identify persons who could receive the benefits of EWS reservations.

EWS Reservations violate the Right to Equality

Sr. Adv. Ravi Varma Kumar, representing the petitioners, argued that the Right to Equality ensures that all citizens will receive equal opportunities. This is reinforced by other fundamental rights like Article 15 which prohibits discrimination and Article 16 which provides equality of opportunity in public employment. 

He argued that Articles 15 and 16 were introduced as the Constitution framers recognised that society presented an uneven playing field for different classes of people. Articles 15(4) and 16(4) allows states to provide reservations on the grounds of religion, race, caste, class, sex, and place of birth. These provisions were included to provide equal opportunities and ‘bridge the gap’ between different classes. 

However, an individual’s economic status is not included as a ground. Further, he referred to Indra Sawhney v Union of India (1992) where the SC held that economic standing cannot be the sole basis to recognise a backward class for reservations. EWS reservations, he argued, contradicted this Judgment.  

Mr. Kumar argued that reservations under Articles 15 and 16 were meant to deal with inequalities that were a result of historic and systemic oppression faced by classes of people. He argued that in India this oppression was often a result of caste discrimination, which justifies their inclusion as a class for reservations. When it comes to EWS reservations, he said there is no similar justification. 

Further, he drew the Court’s attention to the text of the Amendment which excludes all persons who are beneficiaries of reservations on the grounds of religion, race, caste, class, sex, and place of birth including Scheduled Castes (SCs) and Scheduled Tribes (STs). He argued that this amounted to caste discrimination and violated the Right to Equality.

Bill for EWS Reservations Incorrectly Invokes Article 46

Article 46 of the Constitution places an obligation on the government to promote the educational and economic interests of ‘weaker sections’ of people, particularly SCs and STs, and protect them from exploitation. The Statement of Objects and Reasons for the Bill which eventually became the 103rd Amendment, stated that the Union government was fulfilling its obligation under Article 46 by providing EWS reservations. 

However, Prof. Kumar argued that the Union had not presented any evidence of exploitation faced by economically weaker sections to explain how Article 46 justified the reservations. Further, he added that Article 46 specifically mentions protecting SC and ST interests so any reservations provided on the basis of this Article cannot disqualify them from being beneficiaries. 

No Data to Justify EWS Reservations

Prof. Kumar referred to the Sinho Commission Report which found that only 5% of the country could be classified as EWS and said that the Amendment provides 10% reservations which is disproportionate and not based on any scientific criteria or data. According to him, the Court often requires reliable data to uphold reservation schemes, which has not been provided to justify EWS reservations. 

The Amendment only provides a broad criteria, allowing states to determine who benefits from EWS reservations on the basis of family income and ‘other indicators of economic disadvantage’. Prof. Kumar argued that this gives states the arbitrary power to prescribe any family income and has been carefully worded to minimise interference from the Courts. 

Dig Deeper

1. EWS Reservations in medical admissions –  An SC Bench led by Justice Chandrachud is assessing whether the Union governments Rs. 8 lakh income limit for EWS reservations in medical admissions is based on reliable data. Doctors and students challenged the reservations in 2021. They argue that it crosses the 50% limit on reservations imposed by the Court in Indra Sawhney (1992) and amounts to ‘reverse discrimination’ against general category students. 
2. The SC Emphasises Data in Reservation Cases –  Data collection to justify reservations has been a sticking point for reservation schemes which are the subject of cases at the SC. States often suffer from a lack of clarity in the kind of data that is required to justify reservation schemes, which often results in schemes being struck down at the High Courts and the SC.