Quota for Economic Weaker Section (EWS)

The Constitution (103 Amendment) Act, 2019, was introduced in the Constitution by amending Articles 15 and 16 that deal with the fundamental right to equality. An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS like it does for Scheduled Castes, Scheduled Tribes and Other Backward Castes.

Why in News?

The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section.

Petitioners grounds of challenge

• The law was challenged primarily on two grounds. First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status. 
• The petitioners have also challenged the amendment on the grounds that it violates the SC’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal Report and capped reservations at 50%. 
• In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
• Reservation in unaided institutions violates the fundamental right under Article 19(1)(g) (which allows every citizen to practise any profession, or to carry on any occupation, trade or business) of the Constitution.

Government’s Arguments

• The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment. When a law is challenged, the burden of proving it unconstitutional lies on the petitioners.
• The government argued that under Article 46 (State shall promote with special care the educational and economic interests of the weaker sections of the people) of the Constitution, it has a duty to protect the interests of EWSs.
• The government argued that to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered.
• Countering Indra Sawhney judgement’s argument, the government cited a 2008 ruling in Ashok Kumar Thakur v Union of India case.
• In this 2008 ruling, the SC upheld the 27% quota for OBCs. The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors.
• The government made this argument to prove that there need not be a sole criterion for according reservation.
• For the unaided institutions, it argued that the Constitution allows the Parliament to place reasonable restrictions on the right to carry on trade.

Terms of reference framed by the court:

The Supreme Court agreed that the case involved at least three substantial questions of law, whether,

• The economic criteria alone cannot be the basis to determine backwardness;
• The EWS quota exceeds the ceiling cap of 50% set by the court;
• The rights of unaided private educational institutions.

References:

1. https://www.thehindu.com/news/national/ews-quota-challenge-for-statute-bench/article32279564.ece
2. https://indianexpress.com/article/explained/ews-quota-law-what-a-five-judge-constitution-bench-will-look-into-6543170/
3. https://www.mondaq.com/india/constitutional-administrative-law/773144/103rd-constitutional-amendment-act-2018-economic-reservation-in-india-highlights-and-analysis
4. https://www.prsindia.org/billtrack/constitution-one-hundred-and-twenty-fourth-amendment-bill-2019