A five-judge bench of Supreme Court, on Monday, 7 November, upheld the constitutional validity of the 103rd amendment, which provides up to 10% reservations to Economically Weaker Sections of citizens.
While three of the five judges upheld the amendment as valid, two others, including Chief Justice of India UU Lalit, dissented. But, as in such cases, which are adjudicated by an odd number bench, the majority view prevailed.
This verdict is important not just because it relates to a constitutional amendment but also because it significantly alters the basic principles of India's affirmative action policy.
Before the introduction of clause 6 in Article 15 and clause 6 in Article 16 respectively, the State identified three distinct groups for the purpose of reservations in public sector jobs and higher educational institutions: (i) Scheduled Castes, (ii) Scheduled Tribes, and (iii) Socially and Educationally Backward Classes (more popularly known as Other Backward Classes).
The newly introduced category – Economically Weaker Sections (of citizens) – fundamentally differs from these earlier groupings, and thus also transforms the purpose the reservation policy is supposed to serve.
Achieved Status vs Ascribed Status
Justice Dinesh Maheshwari emphatically spoke about economic backwardness in his judgment on Monday.
"In this country with a population of around 1.41 billion, the economic backwardness is not confined only to those who are covered by Article 15(4) or Article 16(4) of the Constitution. In a country where only a small percentage of the population is above the poverty line, to deny opportunities of higher education (which secures employment) and employment is to deny to those who are qualified and deserving what is or at least should be their due".Justice Dinesh Maheshwari
"The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities. Poverty is not merely a state of stagnation but is a point of regression," he added further later in the judgment.
While no one can deny that India has a high proportion of poverty and it can be found across castes – though to varying degrees – the poor do not constitute a class analogous to SCs, STs or OBCs. In order to understand why, one needs to study the sociological concept of achieved status vs ascribed status.
Achieved status, as the phrase suggests, is acquired by an individual's own efforts. Being a politician, entrepreneur or athlete is an achieved status. Ascribed status is beyond an individual's control. It is something that people are born with or don't have control over.
Caste is an example of ascribed status.
How do we understand economic backwardness in the binary of achieved status vs ascribed status?
An individual born in poverty doesn't necessarily remain poor all their life. The reverse is true too – a child born in a rich family can slide into poverty later in life. While external factors do affect one's economic status, there is enough scope for human agency to play a role too. Therefore, one's economic status cannot be said to be an ascribed status.
On the other hand, for one to qualify for SC, ST or OBC category, one needs to belong to either a certain caste or tribe – both of which are ascribed statuses; you are born with them and you don't have control over them.
The basis for reservations for SCs, STs or OBCs is their ascribed status, which is not the case with regards to reservations for Economically Weaker Sections. The Supreme Court judgments that have upheld the reservation are completely silent on this point. Rather, they treat economic backwardness as similar to social backwardness, overlooking the fact that social backwardness is a result of one's ascribed status – caste – while economic backwardness can arise due to various different factors.
Justice Bela Trivedi, for example, says in her judgment,
"The impugned amendment enabling the State to make special provisions for the 'economically weaker sections' of the citizens other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for the advancement of the economically weaker sections of the citizens. Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14."
Discrimination vs Deprivation
The other key difference between SC/ST/OBC categories and the EWS category, which the judges ignore, is the unit of measurement. The Union government maintains lists of SCs, STs and OBCs and these lists explicitly mention the names of castes and tribes that qualify to be included in them. Can we have a similar list for EWS category? We cannot, because this category targets "families" as opposed to castes or tribes.
This is significant because this shifts the reservation policy from its goal of correcting "social injustice" to correcting "individual deprivation."
The reservations for SCs, STs and OBCs are meant to correct historical injustice. While the Constitution doesn't make it explicit, the Constituent Assembly debates and court judgments over the years make it clear that caste discrimination is what the affirmative action policy is supposed to address. This was most stridently stated in the Indra Sawhney judgment of 1992, which upheld the validity of reservations for OBCs.
"In our opinion [too], the words 'class of citizens - not adequately represented in the services under the State' would have been a vague and uncertain description. By adding the word 'backward' and by the speeches of Dr. Ambedkar and Sri K.M.Munshi, it was made clear that the 'class of citizens...not adequately represented in the services under the State' meant only those classes of citizens who were not so represented on account of their social backwardness."Justice B.P. Jeevan Reddy in Indra Sawhney v Union of India (1992)
The key phrase to note in Reddy's judgement is "social backwardness." Every caste (or tribe) that is part of either SC, ST or OBC list has a history of ill-treatment that goes back decades or centuries.
Comparing Apples and Oranges?
The reservations in public sector jobs and higher educational institutions, up till this point, were meant for castes or tribes. The particular castes and tribes were to be empowered by assimilating some of the members of those communities either in the State apparatus or in the "mainstream" society. The logic was that if a certain number of individuals from a particular caste were elevated, the entire caste would be empowered, and, in turn, that caste would be less susceptible to discrimination and other social pressures by upper castes.
Further, if the material gap between castes was reduced – and reservations were expected to aid in that goal – it would increase the fraternity among the castes and eventually would lead to annihilation of castes.
The EWS category completely alters this framework. An individual family, which is the basic unit for the EWS category, is not analogous to a caste or tribe. Therefore, comparing SC/ST/OBC categories with EWS category is like comparing apples with oranges.
Constitution Is a Living Document but Not Every Change is Desirable
The 103rd amendment of the Constitution has changed reservation policy from "social" to "individual." This also allows for a great deal of arbitrariness to be introduced into the policy.
Once you delink reservation from ascribed statuses with a clear history of marginalisation, the Parliament, theoretically speaking, can use any other attribute to introduce more quotas. For example, a case can be made to give reservation to families residing in villages located more than 200 kilometre from the nearest tier 1 or tier 2 city. A case can be made to show the backwardness that these families suffer on account on their geographic remoteness from urban areas.
However, this deviates from the core principle that underpins India's affirmative action policy – undoing the societal discrimination faced by various castes and tribes historically.
Constitution is a living document, as was pointed out in Monday's judgments multiple times, and therefore changes in the Constitution needn't come as a shock. However, the 103rd amendment significantly changes what India's affirmative action policy has come to mean and what goals it had set for itself and, therefore, it cannot be argued that this particular change is desirable.