The EWS quota parameters are under a cloud, with the Supreme Court asking some penetrating questions.
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Income parameter for EWS category under S.C. lens
- The story: Asked by the Supreme Court to do a “high-level policy rethink”, the Union government has decided to review the ₹8 lakh annual income limit to identify economically weaker section (EWS) for providing 10% quota in public jobs and educational institutions.
- Reservations on economic basis: The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 which is under challenge before a five-judge Constitution bench of the Supreme Court.
- Since the Act has not yet been stayed by the apex court, the government issued a notification on July 29 introducing 10% EWS quota along with 27% quota for OBC within AIQ seats for postgraduate medical courses from this academic year. By this decision, 2,500 PG seats in government medical colleges would go to OBCs and 1,000 to those from EWS.
- This was challenged in a clutch of petitions. The income criterion of ₹8 lakh fixed by the Centre was one of the grounds taken by the petitioners to question the July 29 notification.
- How it developed: The Court's questioning started with the methodology adopted by the Union government in determining the annual income limit. It demanded data used to decided that reservations will be given to families whose annual income was less than ₹8 lakh. The Court asked whether per capita GDP, purchasing power, and cost of living index that varied across states was taken into account before arriving at this figure.
- The government did not have any categorial response. The Court reasoned that the Centre cannot “pull” the ₹8 lakh annual income limit “out of thin air”, and questioned if the attempt was to “make unequals as equals”.
- The Court asked whether the Union government undertook any exercise before arriving at the income criteria to determine EWS and if so, whether the Sinho Commission report was the basis of this fixation.
- It said that “The income limit for determining creamy layer in OBC and EWS is same at ₹8 lakh. In the OBC, those economically progressed is excluded so that social backwardness diminishes. In EWS, it is done to include the segments. Therefore, the income criterion in OBC, which is based on exclusion, is based on inclusion for EWS. In such a scenario, will it be arbitrary to provide similar income limit for EWS and OBC?”
- Government tried reasoning that in matters of reservation, there cannot be mathematical precision to determine an income ceiling to identify the poor, the central government told the Supreme Court.
- Sinho Commission report: The Sinho Commission report of 2010, which the Centre cited as the basis for its legislation to grant 10 per cent reservation to the Economically Weaker Sections (EWS) mainly among upper castes, never explicitly recommended a reservation for EWS but was only emphatic about ensuring that the EWS get access to all welfare schemes. The report had noted that economic criteria cannot be the indicator for identifying backward classes for reservation and that EWS can be identified by states “for extending welfare measures only”. The three-member commission, headed by Major Gen (retd) S R Sinho, was instituted by the UPA government and had submitted its report in July 2010. In the chapter reviewing the history of attempts to extend reservation to EWS, the report stated: “The Commission gathers the Constitutional and legal understanding that ‘Backward Classes’ cannot be identified for providing reservation in employment and admission in educational institutions on the basis of economic criteria and hence ‘Economically Backward Classes’ (EBCs) can be identified by the State for extending welfare measures only”.
- Moreover, it said that “in order to provide any quantum of reservation to them (EBCs) two essential aspects need to be considered”. Listing the first aspect, the report notes that economic backwardness needs to be combined with social and educational backwardness for the purpose of reservation.
- Secondly, the 50 per cent upper limit for reservation is binding on the State until the Supreme Court gives a different direction or a Constitutional amendment is made. The same points are repeated by the Commission in its final recommendations where it notes that “reservation in Indian context is a form of affirmative action.. for socially and educationally backward classes of citizens”.
- The Sinho Commission too recommended welfare measures for EWS including easy access to existing schemes in the areas of housing, healthcare, sanitation, skill development, and ensuring that EWS women in General Category avail jobs under NREGA and such children get special scholarships to pursue their education.
- Govt. logic: The government added that it is not necessary to have different income scales for different cities, states and regions as economic conditions keep changing with time and that a broad criterion applicable to the entire country should be taken as the basis for providing reservation for EWS. These are matters of policy in which courts need not interfere. The petitioners have argued in the case that the per capita income in states differs widely, and therefore determining EWS at the all-India level requires a careful study by an expert committee so that the ends of social justice are attained. For this year, EWS reservation should not be given effect in the absence of any criteria explaining the reservation. The petitions also referred to a government order of January 17, 2019 which said income from all sources will be counted for EWS reservation. However, in August 2021, another government communication referred to the Sinho Commission that formed the basis for providing EWS reservation by fixing ₹8 lakh as the income limit.
- Give me time: The SG asked for a period of four weeks for the exercise of reviewing the EWS criteria, and pending its conclusion, the date for counselling for medical admissions for the current academic year shall stand postponed. The bench pointed out that implementation of quota benefits for EWS could be a “progressive” policy decision, but there were multiple questions over the manner of implementing it. “If they (government) have to do something, let them to do something reasonably and let them now do it properly. Four weeks is not unreasonably long to revisit the criteria,” remarked the bench while adjourning the case.
- EXAM QUESTIONS: (1) Explain what were the original criteria for granting reservations to backward classes, in the constitution of India. (2) What are the clear lessons one derives from the Sinho Commission report? Explain.
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