Would It Be Arbitrary To Provide Same Income Limit For OBC & EWS Categories? Supreme Court Asks Centre

The Supreme Court has sought explanations from the Central Government on the criteria of annual income of Rupees 8 lakh adopted by it for Economically Weaker Sections(EWS) quota.

The Court noted that the income limit in the criteria for the determination of the creamy layer of the OBC category and the EWS category is the same, namely, Rs 8 lakhs. The Court has asked if it would be arbitrary to adopt the same income limit for both categories, as EWS has no concept of social backwardness, while OBC takes into account social and educational backwardness.

A bench comprising Justices DY Chandrachud, BV Nagarathna and Vikram Nath raised the following query :

"While the creamy layer in the OBC category is identified for excluding a section of the community that has 'economically progressed' to such an extent that the social backwardness of the community diminishes, the EWS category is identified to include the segment which is 'poorer' when compared to the rest of the community. Therefore (a) the income criterion in respect of the OBC category is aimed at exclusion from a class while in the case of the EWS category, it is aimed at inclusion; and (b) the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome as compared to those belonging to the general category. In these circumstances, would it be arbitrary to provide the same income limit both for the OBC and EWS categories"

The bench was considering petitions challenging the decision of the Central Government to introduce EWS reservation in the All India Quota for medical admissions through National Entrance cum Eligibility Test(NEET).

The following are the specific queries raised by the bench :

(i) Whether the Union government undertook an exercise before arriving at the criteria for the determination of the EWS category;

(ii) If the answer to (i) above is in the affirmative, whether the criteria are based on the report submitted by Major General Sinho (2010). If the criteria are based on Major General Sinho's report, a copy of the report should be placed on the record of these proceedings;

(iii) Whether the EWS category is over inclusive;

(iv) The income limit in the criteria for the determination of the creamy layer of the OBC category and the EWS category is the same, namely, Rs 8 lakhs. While the creamy layer in the OBC category is identified for excluding a section of the community that has 'economically progressed' to such an extent that the social backwardness of the community diminishes, the EWS category is identified to include the segment which is 'poorer' when compared to the rest of the community. Therefore (a) the income criterion in respect of the OBC category is aimed at exclusion from a class while in the case of the EWS category, it is aimed at inclusion; and (b) the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome as compared to those belonging to the general category. In these circumstances, would it be arbitrary to provide the same income limit both for the OBC and EWS categories;

(v) Whether the differences in the GDP/per capita income of different States have been accounted for while arriving at Rs 8 lakhs income limit;

(vi) Whether the differences in the purchasing power between rural and urban areas have been accounted for while fixing the income limit; and

(vii) According to the notification of Union government (OM No. 36039/1/2019), families which have an income lower than Rs 8 lakhs would be excluded from the EWS category if the family holds assets of (a) five acres of agricultural land and above; (b) a residential plot of 100 square yards and above in notified municipalities and 200 square yards and above in areas other than notified municipalities; and (c) a residential flat of 1000 square feet and above. In this context, a disclosure may be made on the following aspects:

(i) On what basis has the asset exception been arrived at and was any exercise undertaken for that purpose;

(ii) Whether municipalities as required under the exception have been notified;

(iii) The reason why the residential flat criterion does not differentiate between metropolitan and non-metropolitan areas.

The Court has said that it must be apprised of the nature of the exercise undertaken while fixing the income criterion for the EWS category.

The Court highlighted that  it would be significant to note that the explanation to Article 15(6) which was introduced as a result of the 103rd Constitutional Amendment in 2019, specifically enunciates that for the purposes of Article 15(6) and for Article 16(6), economically weaker sections shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

"It is in this context that it would be necessary for the Union government to disclose before the Court the nature of the exercise which was undertaken to categorize the economically weaker section as mandated by the provisions of the explanation to Article 15. We may clarify at this stage that the Court is not embarking upon any issue of policy while requiring such a disclosure to be made before it, but will determine as to whether the constitutional requirements have been duly complied with", the Court added.

The Court has sought an affidavit from the Centre responding to these issues by October 26. The matter will be heard on October 28.