The five-member bench of the Supreme Court recently upheld the EWS quota law as constitutionally valid in a majority judgement of 3:2 in the Janhit Abhiyan vs Union of India (WP 55 of 2019) case. In January 2019, the Parliament passed the 103^rd Amendment Act, 2019 making a special provision for the reservation of 10 percent of seats in jobs and education for the Economically Weaker Sections (EWS), amongst those who are not eligible for the already existing community-based reservation meant for the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other backward Classes (OBCs). The Amendment incorporated changes in Articles 15 and 16 of the Constitution that includes the right to equality and created the legal basis for reservations. The policy would provide reservation benefits to those whose annual family income is less than INR 8 lakhs and shall exclude households that own more than 5 acres of agricultural land or 1,000 square feet of residential land.

The Amendment incorporated changes in Articles 15 and 16 of the Constitution that includes the right to equality and created the legal basis for reservations.

During the passing of the bill in Parliament, most political parties supported the legislation though the Opposition parties accused the Central government of passing the bill in a haste without much debate and consultation. Subsequently, a number of petitions were filed in the Supreme Court challenging the constitutional validity of this legislation. The key points of the Opposition against the act included: Firstly, an apprehension that it violates the upper cap of 50 percent for reservation that the Supreme Court had ruled in the Indra Sawhney (1992) judgement. Second, the Constitution didn’t explicitly provide for a reservation provision solely based on the economic criterion. Third, the law has been accused of being discriminatory as the SCs, STs, and OBCs are kept outside its ambit because these sections are already covered in the existing caste-based reservation policy. However, the apex court’s recent validation of the EWS reservation law passed by the Union government has significant implications on the discourse of affirmative action in India, which merits attention.

Individual identity and affirmative action

First, the already existing reservation for the SCs, STs, and OBCs has been premised upon their collective group identity whereas the newly enacted law enabling the EWS reservation is based on the economic criteria of individuals who do not belong to SC, ST, and OBC categories. So, the new law has not only expanded the scope of affirmative action in India, which now includes both caste-based and class-based protection, it has also moved from a group-centric approach to a reservation policy that caters to individuals based on income parameters. As the caste-based reservation harps on birth-based collective caste identity, which is largely immutable and socially ascribed, it has been more convenient to identify the target group that needs the affirmative action for their emancipation.

The rationale of the annual income cut-off of INR 8 Lakhs, which is much higher than the national-level annual per capita income, would end up including a large section of the population.

Moreover, the caste-based reservation has adhered to the homogeneity condition that requires that the group which is entitled to the benefits share similar kinds of disadvantages. However, the new EWS category pegs targets to a fluid economic category that is dynamic. In other words, as income and financial situation of individuals might vary from time to time, identifying the genuine target constituencies for this policy might pose a challenge. Moreover, the rationale of the annual income cut-off of INR 8 Lakhs, which is much higher than the national-level annual per capita income, would end up including a large section of the population. Also, the paucity of data on direct income and the possibility of malicious income declarations can create additional hindrances in effectively implementing the reservation policy. Therefore, a more detailed data and guidelines for identifying the most genuine target groups might be crucial to ensure that the extremely needy individuals get the benefit of this policy.

Reservation as conduit of welfare

Most importantly, the Supreme Court, by upholding the EWS reservation policy, has given its imprimatur to the idea that reservations can be provided to accord protection beyond caste-identities and can be carved out for the economically vulnerable sections of people. This has expanded the logic of affirmative action in India as, since Independence, reservation policy has been perceived as an extreme tool for protection of only the historically marginalised caste-based communities to mitigate the social exploitation, discrimination, and backwardness of the vulnerable caste groups.

The reservation policy that was hitherto only perceived as an instrument for inclusive representation and enabler of equal opportunity for historically-marginalised castes, has now also become a supposedly emancipatory tool to battle economic inequalities that are tied to individuals rather than a group.

Now, with the enactment of the EWS, reservation can be seen as the Indian state’s conduit of welfarism to address the present problems of poverty, economic deprivation, and unemployment. So, the reservation policy that was hitherto only perceived as an instrument for inclusive representation and enabler of equal opportunity for historically-marginalised castes, has now also become a supposedly emancipatory tool to battle economic inequalities that are tied to individuals rather than a group. The phenomenon of welfare politics has already demonstrated its enormous potential for electoral mobilisation in India. Further expansion of the logic of welfare to a reservation policy that goes beyond backward castes might open more demands and avenues for mass mobilisation towards other forms of affirmative action. This might have major repercussions of the competitive landscape of India’s democratic politics and governance architecture. Therefore, the EPW law is expected to shape the procedural as well as aspirational dynamics of the discourse of affirmative action in India. In this context, it is important to note that the right to equality of opportunity, right to education and conditions for accessing employment for a dignified socio-economic life have been the basic premise of India’s constitutional imagination while it laid the foundation for a representative democracy. So, with exacerbating economic inequality and increasing political mobilisation around identity, aspirations and access to resources, a new facet of politics based on socio-economic justice can further shape the discourse of affirmative action in India.

• Law and Justice
• India
• Amendment
• EWS
• Janhit Abhiyan
• Judgement
• Quota
• reservation policy

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