Any illusions that this is a step forward in the fight against poverty can easily be laid to rest if you compare the EWS scheme to any of our anti-poverty schemes. (File)With its majority verdict upholding the 103rd Amendment to the Constitution delivered on November 7, the Supreme Court has finally performed the antyeshti – or last rites – of reservation as an instrument for the redressal of caste discrimination. The anti-discrimination idea of reservation had already died on January 9, 2019, when the bill to provide reservation for the “economically weaker sections” (EWS) became a full-fledged act of Parliament in just three days. This idea had been on its deathbed for well over a decade as demands for reservation from relatively prosperous and powerful castes like Jats, Patidars, Marathas or Kapus gathered momentum across the country. In any case, the dominant common sense shaped by the upper castes had always rejected the idea, preferring to think of reservation as a kind of government charity driven by electoral compulsions. The Supreme Court has ensured that the upper castes can now drink from the only well that was ever forbidden to them.
The real damage to the anti-caste-discrimination dimension has been done by the unanimous opinion that economic criteria alone may be used to determine eligibility for reservation. The even-handed use of economic criteria across all castes denies the possibility of a specifically caste-based form of discrimination (or even disadvantage or deprivation). Since the majority opinion of the Court also sets aside its own earlier limit of 50 per cent on the extent of reservation, the social justice apparatus of the Indian state is poised to recreate the Madras presidency’s “Communal Government Order” of 1921 that distributed government jobs and seats to different castes and communities according to a political formula.
In fact, the November 7 judgment can be seen as the culmination of a journey that began with the Supreme Court’s 1951 decision in the State of Madras vs. Srimathi Champakam Dorairajan case, which struck down the Communal Government Order as violative of the fundamental right to non-discrimination guaranteed by the new Constitution. In June 1950, the Madras High Court admitted the plea of Dorairajan that she was being denied admission to a government medical college solely because of her Brahmin caste. Seats had been distributed as per the Communal GO and the Brahmin quota had been filled by candidates with higher marks than Dorairajan. But she had higher marks than some candidates awarded seats under the share allotted to other castes, and the High Court agreed that denying her admission amounted to discrimination based on caste alone. The Madras State’s appeal against this decision was dismissed by the Supreme Court on the grounds that, while an explicit exception (permitting caste quotas as part of the state’s constitutional duty to redress caste disabilities) had been made for job reservations, a similar exception had not been made for educational reservations. This omission was corrected by the First Amendment to the Constitution passed in July 1951, which inserted Clause 4 into Article 15 protecting “any special provision for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and the Scheduled Tribes”.
The 103rd Amendment uses exactly the same method to protect EWS reservations from challenge on grounds of discrimination. However, EWS reservation is represented here as “any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5)”. This effectively means that EWS beneficiaries are “any economically weaker sections of citizens other than” those already provided reservation — SC, ST or Other Backward Classes (OBC). By declaring that such a provision does not violate the Constitution, the majority judgment of 2022 reverses the logic of the unanimous Full Court judgment of 1951. Then, writing on behalf of his six other colleagues, Justice Sudhi Ranjan Das had argued that though the plaintiffs had not qualified for the seats within the Brahmin quota, they were still entitled to compete for the seats allocated to other castes. Now, writing on behalf of two of his colleagues, Justice Dinesh Maheshwari has effectively argued that the existence of quotas for the SCs, STs and OBCs disqualifies them from competing for seats in the EWS quota. This is despite the fact that, according to the letter of the law, eligibility for the EWS quota is determined not by caste, or social or educational backwardness, but solely by economic “weakness” – an attribute that any citizen might possess.
But the spirit behind the EWS law (now ratified by our highest court) achieves exactly what it aims for and struggles so hard to avoid stating openly – reservation for the Hindu upper castes. And so a new chapter begins in the long saga of the appeasement of our most powerful and most pampered minority.
Any illusions that this is a step forward in the fight against poverty can easily be laid to rest if you compare the EWS scheme to any of our anti-poverty schemes. Though estimating poverty after 2011 is difficult because of data issues, the most recent rural and urban all-India poverty lines are pegged at Rs 972 and Rs1,407 respectively. Taking the average to be roughly Rs 1,200 per person per month, and assuming a household of five members, this amounts to a yearly consumption expenditure of Rs 72,000. The eligibility limit for EWS of Rs 8 lakh per annum is more than 11 times this amount. Clearly, economic “weakness” has nothing to do with poverty. Moreover, there are important differences with the “creamy layer” exclusion – also pegged at Rs 8 lakh – required for availing the OBC reservation. In the OBC case, this is a condition for the disentitlement or exclusion of some members of a group that is otherwise entitled to reservation. In the EWS case, it is a positive condition for creating entitlement within a group (upper castes) whose members are otherwise not entitled to reservation.
Our Constitution has continually struggled to balance the conflicting demands of tacitly supporting the status quo by insisting on strictly formal equality, and offering hope to the have-nots by promoting substantive equality. The EWS decision marks the beginning of the end of this struggle.
The writer teaches sociology at Delhi University. Views are personal