EWS quota: Principles of social justice undermined

The 103rd Amendment of the Constitution, providing 10% reservation to economically weaker sections (EWS) has been seen as a major tool to appropriate the aspirations of the poorer groups amongst the upper castes. However, doubts were raised about its legal validity and the attempt was seen as a political ploy to impress the social elite constituencies. Surprisingly, the Supreme Court endorsed the amendment by suggesting that reservation for the poorer sections does not harm the basic structure of the Constitution.

Though the EWS quota has received the top court’s sanction, legal authorities are under scrutiny for ignoring the historical context and constitutional principles under which the social justice policy was constituted.

In the court’s 3:2 decision, the two judges who opposed the EWS quota have raised pertinent questions highlighting the ethical aspect of the reservation policy. The sole criterion of economic backwardness for the quota does not sit well with the constitutional principles behind the reservation policy and defeats its basic purpose.

Read | Explained: What is the EWS quota? Who can benefit from it?

There are three major guidelines and historical contexts that have crafted the reservation policy in India. First, it acknowledges that the social history of caste relationships in India has allowed exclusive privileges to the social elites whereas the lower strata remained perpetually burdened under precarious social and class conditions.

The untouchables suffered the worst kind of religiously ordained prejudices that forced them to survive under sub-human conditions. Under the Hindu customarily laws, they were disallowed access even to basic human entitlements (like potable water) and remained excluded from every civic engagement (starting from access to school education).

It was the moral duty of the post-colonial State to challenge such an oppressive social system and build the new nation on modern values of inclusion, justice and equality. In the Constitution, multiple safeguards, affirmative action policies and reservations were announced in order to invite the worst-off social groups to become an integral part of the nation-building exercise. Reservation policy, thus, emerged as the ethical duty of the State that engages the socially deprived communities for their socio-economic empowerment.

Second, nation-builders acknowledged that the institutions of the State shall not be dominated by particular caste combinations (upper castes). Instead, the Constitution directs that the institutions shall represent the social pluralities in its workforce, making the institutions inclusive and responsible towards vulnerable communities.

Therefore, the reservation policy was mandated to democratise the bureaucratic apparatus by welcoming Dalit and Adivasi candidates (extended to the Other Backward Classes/Castes (OBCs) later) and make modern institutions more representative and heterogenous. The representation of socially-deprived communities in the corridors of power has helped create a robust middle-class section and empowered them as crucial civil society and political actors.

Third, during the formation of the reservation policy for the OBCs (especially during the deliberation on the Mandal Commission Report), the State empirically substantiated that the backward caste identity is based upon 11 indicators of deprivation that included lower caste identity, economic backwardness and educational marginalisation.

The Supreme Court in the Indra Sawhney judgement has further notified that caste and class inequalities overlapped and, in combination, create the logic of backwardness and vulnerability. Backward caste groups were extended constitutional safeguards as they fulfil the foundational requirements of the reservation policy. Though the criterion of ‘creamy layer’ amongst the OBCs is applied here, reservation on the basis of the group’s backward social identity remained the essential principle.

The EWS case is different from the socio-historic exigencies that have made socially marginalised communities a core subject of the reservation policy. Interestingly, until recent times, there was negligible public pressure, social movements or popular political claims demanding reservations for the poor among the upper castes. The government crafted and implemented this policy not only to cater to and impress the upper caste constituencies but also to undermine the foundational principles of social justice policies. The arrival of the EWS quota will disturb the conventional political guidelines and constitutional principles that have determined the social justice agenda in the past.

In comparison with the lower caste groups, the general (upper caste) poor are not challenged because of historical disadvantages, do not face discriminatory prejudices in everyday civic relations, or are affected by perpetual neglect by the State.

There is no empirical evidence that demonstrates that an upper caste candidate has faced discrimination and exclusion in the job market, especially in State institutions, because of being economically weak.

In contrast, state institutions are overwhelmingly dominated by social elites. There are no surveys/commission reports to demonstrate that the poorer sections of the upper castes face structural discrimination and exclusion. Extending reservation for the EWS makes the policy look like a poverty alleviation programme (which the reservation policy is not) and will now open the field for several interpretations and claims.

The new conditions applied in the Supreme Court’s decision may be used to claim separate reservation for Jain, Muslim and Christian communities, as the bulk of the EWS quota will likely be appropriated by the Hindu upper castes.

There is a growing demand that the Muslim minority should be made beneficiaries of reservation policy. The Sachar Commission Report overtly demonstrated that the Muslim minority suffers communal prejudices, that the majority amongst them survive in deplorable class conditions, and a section amongst them also belong to the lower and untouchable castes (Arzal Muslims).

Similarly, Dalit Christians are demanding special social status and a separate quota on the basis that they suffer identical social exclusions as Hindu Dalits. Though many of these demands are based on substantive evidence and are democratically raised by the struggling groups quite often, decision-makers in the political and judicial system have relegated these issues as unconstitutional.

With the arrival of the EWS policy, it is obvious that the reservation policy is here to stay. The decision on the EWS quota has overtly disturbed the directive principles and introduced economic backwardness as a sufficient criterion to avail the benefit of reservation, thus compromising and tampering with the foundational mandate of the policy.

The idea of ‘the poor’ may sound more universal, but the EWS quota is mainly aimed at upholding upper caste privileges and to complicate the established principles of the social justice policy.

(The writer teaches at the Centre for Political Studies, JNU)