The dissenting judgment versus the razing of equality
GS Paper: 2- Government policies and interventions, Judiciary
Important for
Prelims exam: Economically Weaker Sections (EWS) reservation
Mains exam: Concept of reservation in India
Context
In the Supreme Court of India’s verdict on the economically weaker sections case, it is the dissenting judgment that imparts strength to fight for the promise of equality forming the core of the Constitution.
About Economically Weaker Sections (EWS) reservation
- The 103rd Amendment inserting Articles 15 (6) and 16(6) to the Constitution, permits 10% reservation in educational institutions and public employment for those from the EWS.
- This reservation explicitly excludes persons from the Scheduled Castes (SC), Scheduled Tribes (ST) and the Other Backward Classes (OBC) categories.
- The majority judgment of Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala upheld the constitutionality of the amendment and held that such exclusion was justified because the SC, ST and OBC categories had reservations under Articles 15(4), 15(5) and 16(4).
Highlights of the Supreme Court judgement
- Backwardness could not only be determined by caste.
- Most deserving social organisations must unavoidably be a topic of ongoing change.
- New forms of backwardness: In a society that is changing, the state should identify emerging forms of backwardness.
- Articles 14 and 16: “The gates would be opened solely to facilitate entry of the most distressed: Any other inclusions would be a severe abdication of the constitutional obligation of the State. Grave and significant choices pertaining to Articles 14 and 16 must be based on “contemporaneous inputs.”
- Both economic and educational backwardness may contribute to social backwardness.
- 50% ceiling: Constitutionally unviable is the restriction that only applies to caste-based quotas and not to reservations for EWS.
Assessment of the Verdict
Majority View
- One cannot claim that the 103rd constitutional amendment violates the Constitution’s fundamental principles or basic structure of the constitution.
- The EWS quota does not go against the fundamental principles of the constitution or equality. The reservation is an instrument used by the state to promote inclusion of backward classes.
- Basic structure cannot be violated by enabling the state to make provisions for education.
- Reservations are important not just for integrating economically and socially disadvantaged classes into society, but also for other disadvantaged classes.
- Due to the 50% maximum limit set by the Mandal Commission, reservations for EWS do not violate the basic structure because the ceiling limit is not inflexible.
- The Supreme Court’s 50% rule, established in the Indira Sawhney decision in 1992, was “not rigid.” Furthermore, it had not been applied to the general category but just to the SC/ST/SEBC/OBC communities.
- As opposed to the general or unreserved group, the Scheduled Castes, Scheduled Tribes, and the backward class for whom the specific provisions have previously been provided in Articles 15(4), 15(5), and 16(4) create a separate category.
Minority view
- Reservations are an effective strategy for enabling equal access. It is unfair to introduce economic criteria and exclude SC (Scheduled Castes), ST (Scheduled Tribes), and OBC (Other Backward Classes) on the grounds that they already received these advantages.
- The EWS quota may have a reparative mechanism to create a level playing field, and the exclusion of SC, ST, and OBC discriminates against equality code and violates the basic structure of equality code.
- Allowing the 50% ceiling limit to be exceeded would “open the door for additional violations and lead to compartmentalization”.
Turning intersectionality on its head
- If poverty is the criterion for reservation, it is a matter of record that the bulk of the poor in the country are from Dalit, Adivasi and Bahujan communities due to centuries of stigma and discrimination they have experienced. Therefore they should not be excluded based on their caste status.
- The dissenting judgment eloquently recognises that human beings do not exist in separate distinct ‘silos’. A person, who is poor, would also most likely be from an oppressed caste background, minority religion, and female or may have a disability, and in fact many of these conditions may be the reason for her poverty.
- The UN Committee on Economic, Social and Cultural Rights recognizes that “discrimination may cause poverty, just as poverty may cause discrimination”. The EWS amendment turns the theory of intersectionality on its head. The concept of intersectionality is a lens for seeing the way in which various forms of inequalities often operate together and exacerbate each other.
- Crenshaw argues that we may talk about race or caste inequality as separate from inequality based on gender, class, sexuality or disability, but fail to see how some people can be often subject to all of these, and the experience is not just the sum of its parts. Instead of recognising the aggravated discrimination faced by persons at the intersections of caste and poverty, the EWS amendment punishes them for being at the intersections.
- Reservations on the basis of caste in Articles 15(4) and 16(4) are not privileges or benefits, but reparative measures meant to level the field for communities facing social stigmatization. To use this as a ground to deny EWS reservation to the poorest, based on their social backwardness and legally acknowledged caste stigmatization, the dissent held that it would amount to discrimination which is prohibited under the Constitution.
The essence of equality
- The dissent also makes the link between equality, non-discrimination and the abolition of untouchability. First, it recognises the importance of Article 15(1) or the obligation of non-discrimination on the grounds of caste, race, sex, religion and place of birth as an integral part of the Equality Code.
- This is important, because Article 15(1) has been one of the least used Articles in Equality Code. Courts have historically been reluctant to give a finding of discrimination on any of the prohibited grounds under Article 15(1).
- Second, the dissent reiterates the importance of Article 17 on the abolition of untouchability in any form. It recognizes that Article 17 imposes an obligation on the state to prohibit caste discrimination in any manner and is not only part of the Equality Code but indeed the entire framework of the Constitution.
- The dissent states that the obligation not to exclude or discriminate against SC/ST communities by reason of the express provisions in Articles 17 and 15(1) constitutes the essence of equality, and this can be said to be part of the basic structure of the Constitution. This is by far the most crucial part of the dissenting judgment, and we would all be at a loss if we fail to recognise its importance.
- Poverty or socio-economic disadvantage would be a useful marker for reservations, but can poverty have exclusions on the basis of caste? The dissent holds that the Equality Code under Articles 14, 15, 16 and 17 of the Constitution promotes the inclusiveness of all sections of society, and the EWS amendment which excludes people based on their caste would destroy our constitutional ethos of non-discrimination.
Conclusion
The government should think about extending the EWS quota to all communities while maintaining a very low income threshold.