Directions: Continuation of editorial: The EWS judgment and the shadow of Pandora
- Prelims: EWS, Article 15, Article 16, 103rd Constitution Amendment Act, Indra Sawhney etc
- Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc
ARTICLE HIGHLIGHTS
- The majority judgment in EWS 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).
INSIGHTS ON THE ISSUE
Context
EWS:
- The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16.
- It inserted Article 15 (6) and Article 16 (6).
- Economic reservation in jobs and admissions in educational institutes for Economically Weaker Sections (EWS).
Special measures:
- Article 15(6): Enabling the state to take special measures (not limited to reservations) in favor of EWS generally with an explicit sub-article on admissions to educational institutions with maximum 10% reservations.
- Article 16(6): It allows 10% reservations (and not special measures) for EWS in public employment.
What was the majority Judgment?
- Mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, not reasonable or not equating equal justice.
- Moderate violation: If any constitutional amendment moderately abridged or alters the equality principles, it cannot be said to be a violation of the basic structure’.
Views of Judges in the bench(3:2 judgment) against the EWS:
- Violates equality norm: Exclusion of groups that already enjoy reservation from accessing this new form of affirmative action violates the equality norm, which is a basic feature of the Constitution.
Issue with the judgment;
- Basic structure of the Constitution:
- Equality is an integral part of it(one of those core features)
- It can never be taken away, however ‘minor’ such a violation may be.
- Poverty as the criterion for reservation: Bulk of the poor in the country are from Dalit, Adivasi and Bahujan communities which have been excluded.
- Against The UN Committee on Economic, Social and Cultural Rights: It recognises that “discrimination may cause poverty, just as poverty may cause discrimination”.
- Reservations on the basis of caste in Articles 15(4) and 16(4): They are not privileges or benefits, but reparative measures meant to level the field for communities facing social stigmatization
Importance of the judgment:
- It recognises the importance of Article 15(1): 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.
- Article 15(1) has been one of the least used Articles in our Equality Code.
- Dissent reiterates the importance of Article 17: 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.
Way Forward
- Minority opinion of the Chief Justice of India (CJI)(now former CJI) and other judge:It may be a dissenting judgment but it gives us strength to fight for the promise of equality which forms the core of the Constitution.
- The UN Special Rapporteur on Extreme Poverty and Human Rights: Recognising status-based horizontal inequalities is essential since victims of discrimination on the grounds of status are disproportionately represented among people living in poverty.
- The dissent holds that the Equality Code under Articles 14, 15, 16 and 17 of the Constitution: It 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.
- Upholding of the 103rd Amendment: which excludes members of communities which faced continual discrimination and whom poverty afflicts in the most aggravated form, marks the annihilation of equality under the Constitution.
- It will open doors to creating more exclusions and distinctions within our society and may lead to damaging the very identity and the soul of the Constitution.
QUESTION FOR PRACTICE
Q. Besides the welfare schemes, India needs deft management of inflation and unemployment to serve the poor and the underprivileged sections of the society. Discuss.(UPSC 2022) (200 WORDS, 10 MARKS)
