Date: 11/11/2022

Relevance: GS-2: Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure; issues relating to development and management of Social Sector/Services relating to Health,Education, Human Resources.

Key Phrases: Janhit Abhiyan (EWS) judgment, Economic and Social backwardness, Supreme Court of India, Economically Weaker Sections (EWS), 103rd Constitution (Amendment) Act, 2019, Right to Equality

Context:

• Recently, the Supreme Court has upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation for the Economically Weaker Sections (EWS) among forward castes in government jobs and colleges across India.

The Idea of caste discrimination and economic backwardness

• As per Owen M Fiss a Yale university professor, “economic criteria” is artificial, and has no basis for discrimination in social life.
• Caste degradation denotes membership of a group that is seen as physically different and inferior.
• Class and interest groups do not need constitutional protection because their economic commonalities do not demand invocation of constitutional values.
• Use of economic criteria to understand marginalization can result in the subjugation of historically-disadvantaged groups.
  • This is why scholars reject economic criteria as the sole basis for understanding discrimination.
  • For Instance:In India there has not been an instance of deprivation or discrimination or social exclusion against any person solely on the ground of his/ her economic standing but many are discriminated based on their caste.
  • Jitan Ram Manjhi former Chief Minister of Bihar and Babu Jagjivan Ram, the then Deputy Prime Minister, are examples of caste based discrimination which shows the seriousness of the issue and the practice of untouchability.

The current verdict and grounds of validity

• The five-member Constitution Bench that heard the validity of the 103rd constitutional amendment did not reject the idea of caste based discrimination.
• Although the majority verdict held that the introduction of economic criteria in reservations is constitutionally valid.
• The majority judges and even dissenting judges acknowledged that “criteria of economic standing alone” along with the 50 percent ceiling on reservation.
  • But the 50 per cent ceiling, a judicially-created criteria with no roots in the Constitution, could deprive members of SC, ST and OBC communities, as well as the deprived among the Muslims and Christians.
• Even one of the judges justified the economic criteria and held the view that the “exclusion of classes covered by Articles 15(4) and 16(4) from reservation as economically weaker sections does not violate the equality code.
• Also, it does not in any manner cause damage to the basic structure of the Constitution of India.
• Need to revisit the system of reservation in the larger interest of reservation of the society as a whole, as a step forward towards transformative constitutionalism.
• Reservation should not be allowed to become a vested interest as larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories.

Why is the verdict against the spirit of the constitution?

• To restrict or limit the rights of a set of people or class that has been historically deprived and socially excluded is against the spirit of the Constitution and is constitutionally impermissible.
• The social conditions of the society wherein a President of India or a Chief Minister can face discrimination on the basis of their caste.
• To deny the recognition of social factors and to recognise economic factors alone to mark discrimination is constitutionally perverse and is meant to further perpetuate deprivation and even untouchability, which is abolished by Article 17 of the Constitution.
• The rights are derived from the constitutional values, which were adopted by the Constituent Assembly after a marathon process of deliberations.
• Kesavananda Bharati (1973) held that the basic features of the Constitution are unalterable.
  • Democracy is one of the basic features of the Constitution and the real facet of democracy is Social democracy which requires adequate representation of different sections of society.

The Parliament has tried to deprive social democracy

• By providing an economic basis for reservation, Parliament has tried to deprive social democracy and democratic rights to all sections of the society.
  • The savarnas or upper castes, who constitute 10 to 15 per cent of the total population are already represented in 45 to 50 per cent of the total services.
  • The SCs, STs and OBCs constitute the majority of this country, and are only provided 49.5 per cent reservation and are yet to achieve that level of representation in services and in educational institutions
  • Moreover, reservation in promotions for SCs and STs is yet to be implemented 27 years after the 77th Amendment was passed.
• Parliament failed in its duty as it passed the 103rd amendment without deliberation or a parliamentary committee discussion.
• The category of “social and educational backwardness”, devised by the founders of the republic has been altered to “economic backwardness” without any scientific basis.

Conclusion

• Indian society has developed on the edifice of graded inequality and a deep-rooted caste system pervades Indian society.
• The Constitution intends to establish an egalitarian social order, allowing no scope for discrimination of any kind.
• Through the constitution Ambedkar had inculcated principles in the constitution to protect human dignity by assuring equal protection to the members of socially-marginalized sections of society.
• The Janhit Abhiyan (EWS) judgment, unfortunately, is a denial of the constitutional rights of a larger section of the population that ought to be protected under the scheme of the Constitution of India.

Source: Indian Express

Mains Question:

Q. The EWS judgment fails to uphold the constitutional values meant to end the perpetuation of discrimination against the socially disadvantaged classes, Discuss. (250 words).