'EWS Quota Is Reservation For Upper Castes With A Creamy Layer Exclusion': All India Backward Classes Federation Seeks Review Of Supreme Court Judgment

A review petition has been filed by All India Backward Classes Federation against the majority judgement of the Constitution Bench judgment upholding the validity of the 103rd Constitutional Amendment which introduced provisions for reservation to Economically Weaker Sections (EWS).

The judgement dated 07.11.2022, by a 3:2 majority, had upheld the validity f the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. While Justices Dinesh Maheshwari, Bela Trivedi, and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment, which was concurred with by the then Chief Justice of India Uday Umesh Lalit. Earlier this month, DMK had also filed a review petition against the judgement.

As per the review petition, which has been settled by Professor Mohan Gopal,  the majority decisions rest on the mistaken assumption that EWS was structured solely on economic criteria. The review petitioner states that an economically weaker section eligible for EWS is formed by two criteria: a) family income and other indicators of economic disadvantage and b) it shall not be OBC, SC or ST (i.e., it shall be part of thesocially and educationally forward classes).

If EWS were to be based solely on economic criteria, the petition states that it should be available to all those disadvantaged in terms of applicable economic criteria (family income and other indicators of economic disadvantage) with priority going to those more disadvantaged. Per contra, it is available only to sections with forward class characteristics. The petition submits–

"EWS is reservation for upper caste/forward classes, with a creamy layer exclusion. It is social/caste reservation, not solely economic reservation."

While stating that Justices J.B. Pardiwala and Bela M Trivedi erroneously refer to OBC, SC and ST reservation as caste-based reservation, the petition submits that a caste can be a class, but a backward class is not a caste. It adds that all castes and communities, transcending caste, religion, region, gender, language, etc., that meet stipulated criteria are entitled to be included in the list of backward classes and to reservations on that basis. In order to provide an example, the petition states–

"It is because OBC reservation is not caste reservation that the Hon'ble Supreme Court could, as it did, ask on the judicial side that the transgender community be included in the OBC category. The eligibility criteria stipulated by the National Commission for Backward Classes consist of over 15 'secular' criteria of marginalization, lack of representation and economic distress covering four dimensions: social, economic, educational and political representation. OBC reservation is therefore in fact economic reservation, not caste reservation."

Further, the review petition provides that the majority decision failed to consider the contention of the petitioner that affirmative action for forward castes/classes was a violation of the basic structure.

The petition refers to the majority decision as one that erroneously assumed that EWS was for an anonymous deprived group of people without a social identity that is in dire poverty and needs reservation for their upliftment from deprivation. It states–

"The recognition of the existence in our society of inequality and therefore "forward" and "backward" classes in their relative rank in the socio-economic order arising from inequality of wealth and power, and the determination to address the inequality by empowering the disadvantaged classes is a corner stone of the very identity of our Constitution. In these circumstances, the denial by the majority judgments of the very existence of forward classes and the refusal to consider whether exclusionary privilege for forward classes is consistent with the basic structure of the Constitution is a grievous and historical error that needs to be corrected."

The petition also submits that the assumption that EWS reservation is for sections of the population who have not received benefit of reservation in public employment and education is incorrect. Further, the principle propounded in the majority judgement that reservation is an exception to the basic rule of equality is also incorrect. It submits–

"In endorsing the use of reservation as a tool for employment and education for the financially distressed, this judgments contradicts its own recognition of the legal principle of the right to equal opportunity in paragraph 57 in which it says, 'to deny opportunities of higher education (which secures employment) and employment is to deny to those who are qualified and deserving what is or at least should be their due'."

The petition also seeks review of the judgement on the ground that the majority decision without any justification in law and in violation of the basic structure divides the population of India for purposes of reservation into mutually exclusive "compartments". This approach of treating the eligibility categories as mutually exclusive compartments is fundamentally destructive of the basic structure principle of fraternity as per the petition. 

"The majority decisions rest on the erroneous assumption that EWS reservation is for sections of the population that have not received benefit of reservation in public employment and education. The fact is that EWS reservation is open to those who qualify for a variety of reservations (such as women's reservation, sportspersons reservation, domiciliary reservation, etc.). This grave legal error about the fundamental nature of EWS reservation entirely vitiates the three majority judgments"

It also highlights that the assumption in the judgement that there is no loss or injury to those entitled to benefit of reservations under 15(4) and 16(4) is unjustifiable and erroneous.

The other grounds raised are :

The majority judgments fail to provide any legal justification for rejecting the petitioner's argument that, because reservation is a tool that inherently and essentially denies equality of opportunity, reservation can only be used (whether under Article 15 or under Article 16) narrowly as a tool for representation, to enhance equality by breaking social monopolies and oligarchies in State institutions, and that its use for any other purpose (such as as an employment/education scheme) would violate the basic structure Equality and Social Justice Codes of the Constitution. The majority judgments are in grave error in deciding on the constitutionality of the 103rd amendment without adjudicating this issue.

Justice Dinesh Maheswari's judgment wrongly bases its decision on the erroneous legal principle that "reservation [is] an exception to the basic rule of equality". This grave legal error vitiates Justice Mr. Dinesh Maheswari's judgment. 

The judgment delivered by Justice J.B. Pardiwala has an erroneous statement that OBCs have received political representation and that there are no ceiling limits for reservation for OBC groups. This statement is in error in that it does not recognize that the Constitution does not provide reservation for OBCs in Parliament or the State Legislatures and does not provide for reservations for OBCs in Panchayats and Municipalities except for enabling clauses (Article 243-D(6) (Panchayats) and 243-T(6) (Municipalities)) that empower State legislatures to make provision for reservation for OBCs in the concerned local bodies, which has not been done in all States. The statement also does not recognize that OBC, SC, ST reservations are all in fact subject to ceilings (such as 27% for OBCs)

Accordingly, the petition seeks a review of the judgement.