Examining the Historical and Constitutional Development of Economically Weaker Sections Reservation within India’s Affirmative Action Policy

INTRODUCTION

Affirmative action is an important topic that occasionally sparks contentious debates between two groups: those who support it and others who believe that affirmative action cannot achieve equality. Affirmative action in general refers to a collection of laws and procedures that the government has imposed on society in order to include specific groups—based on gender, caste, or other characteristics—where they are underrepresented, particularly in the fields of work and education. The primary goals of affirmative action in India is to eliminate caste-based social injustices, address historical injustices and obstacles, eliminate job disparities that disadvantaged groups confront, and provide equitable access to education for all. Affirmative action policies often referred to as reservation policies aim to address social inequality by distributing opportunities more equitably among lower castes. These measures aim to increase educational access and representation in government positions for historically marginalized groups, granting them a voice that has long been suppressed. Essentially, these policies serve as a corrective measure, countering historical injustices through a form of reverse discrimination and providing compensation to rectify systemic imbalances. Consequently, the key goal of implementing reservation policies is to mitigate historical inequalities entrenched in religion, caste, or gender by reducing the disparities between privileged and marginalized segments of society.

In Indian society, a profound structural inequality and discrimination persist, rooted in the principles of the caste system. This system based on notions of purity and pollution, assigns unequal and hierarchical economic and civil rights at birth. According to Hindu scriptures, ‘Jatis’ belonging to the Brahmin, Kshatriya, and Vaisya Varnas are deemed “twice-born”, affording them participation in Hindu ceremonies and a higher status compared to Sudras and untouchables, who are considered “polluting.” This dichotomy of purity versus pollution governs inter-caste interactions, with the touch of an untouchable viewed as defiling to upper-caste Hindus. Beyond the four-fold Varna system, the so-called lower castes or ‘Avarna’ endure the stigma of “untouchability” facing various forms of social exclusion and discrimination that still persist in contemporary society.¹ To tackle discrimination, governments introduced affirmative action in the form of reservations.

HISTORICAL DISCRIMINATION AND THE GENESIS OF AFFIRMATIVE ACTION POLICIES IN INDIA

In many societies socioeconomic inequities exist and affirmative action is fundamentally needed to eliminate these gaps in order to build a welfare society. Specifically created for underprivileged groups, affirmative action serves as a grievance redressal process that demands correction. The best illustration of Rawls’ theory’s applicability is affirmative action, which emphasizes that those placed in less favorable conditions should receive attention from the government rather than meeting market demands if it is to treat everyone equally and create a friendly environment in society through equal opportunity for all.² Thus, affirmative action refers to a collection of policies and initiatives designed to give those who are perceived as having experienced past discrimination preferred access to social welfare, work, healthcare, education, and other opportunities in order to establish a justified society. Equal opportunity cannot be the exclusive purpose of affirmative action. The foundation of equal opportunity is the idea that discrimination is unacceptable once it is identified. On the other hand, affirmative action implemented such measures that both prevent and subvert discrimination. Because of this distinctive quality, affirmative action has come to have a special place in society, particularly in India where disadvantaged groups—such as those based on race, color, caste, gender, or biological disability—make up the majority of the country’s socioeconomic and political population. In the world we live in today, affirmative action is essential. In addition to compensating for the historical discrimination experienced by a particular category of citizens belonging to SC, ST, and OBC, affirmative action policies taken by administrative bodies in public employment or higher education institutions also benefit society in many other ways, such as fostering diversity, interethnic interaction, fairness in the recruitment and admissions process, gender equity, social mobility, etc.

To address discrimination, governments have introduced affirmative action in the form of reservations. These policies encompass two primary strategies: firstly, addressing discrimination against Scheduled Castes (SCs) and Scheduled Tribes (STs), and secondly, implementing compensatory measures such as reserved seats in educational institutions and government employment for these communities. The aim of these reservation policies is to boost the representation of SCs and STs across various spheres of public life, including legislatures, employment, education, and other sectors. By doing so, these policies ensure that these communities have a meaningful presence in governance and society. Reservations have played a crucial role in promoting greater equality among historically disadvantaged groups. As a cornerstone in the pursuit of social justice, reservations aim to address historical injustices and inequalities. They are not primarily intended as tools to alleviate poverty, but rather as mechanisms to provide educational and employment opportunities to marginalized individuals who have been historically exploited, discriminated against, and underrepresented. The reservation system also aids in societal development by assisting the most vulnerable members through benefits such as job opportunities, access to educational institutions, and other essential resources. This system provides a platform for society’s most vulnerable citizens to step forward and become self-sufficient. These unprivileged, disadvantaged, and vulnerable segments of society include, among others, Scheduled Castes, Scheduled Tribes, minorities, women, backward classes, unorganized labor, differently-abled persons, and the elderly. However, the system does not address the needs of higher caste individuals who are economically disadvantaged and have limited options for meeting their needs. As a result, the Indian Constitution includes measures to support other vulnerable segments of society. In 2019, India passed legislation targeting the economically disadvantaged sector, resulting in the 124th Constitutional Amendment. This amendment grants a 10-percent reservation to the Economically Weaker Section (EWS) of society. The EWS category includes individuals from the general category who earn less than ₹8 lakhs annually and do not fall under any other reserved categories such as SC, ST, or OBC. The Indian government implemented this measure to address the needs of economically disadvantaged individuals within the general category. The Indian government grants a 10 percent reservation for enrollment and employment in the public sector.

HISTORICAL CUM LEGAL PERSPECTIVE OF RESERVATION POLICY IN INDIA.

The reservation policy in India has been a topic of significant debate and discussion since its inception. Addressing the issue of underrepresentation in employment, the government introduced the policy of job reservation. Originating in the western state of Maharashtra, the Maharajah of Kolhapur Sahu Ji initiated the practice by allocating half of all government jobs for non-Brahmins. Subsequently, the southern state of Madras adopted a similar approach in the 1920s when the Justice Party government came into power, implementing various measures to boost the presence of non-Brahmins in government positions.³ In the Pre-Independence Era, the history of the Indian reservation officially starts with The Government of India Act, 1935⁴ and The Poona Pact 1932⁵. The issues of minorities were tried to initiate times before in The Government of India Act 1919⁶, When Dr. B.R. Ambedkar asked for the separate electoral for the depressed classes. But Mahatma Gandhi strongly opposed the appeal for separate electorate for depressed classes and because of this strong opposition from Mahatma Gandhi the issue of minority remained unresolved in the Conference. But after Poona Pact, the Prime Minister Macdonald announced the separate representational communal reward for the Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits Depressed classes where the number of seats for them is to be reserved special constituencies in which voters belonging to the depressed classes could only vote. This scenario was before the independence of India. After the Independence of the India in 1947, [On 29 August, 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India. The Constitution of India was adopted on 26 November, 1949 and the hon’ble members appended their signatures to it on 24 January, 1950.]⁷

The constitution was in force and in Article 15 there are provisions related to the Prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. There was an Amendment to add the clause 4, an exception to the clause 1 and clause 2 of the Article 15. The Constitution first Amendment Act 1951⁸, after the decision of the Supreme court in the case of the State of Madras v. Champakam Dorairajan.⁹ This was brought on the ground that it is enacted with a view to promote the social justice for all the sections of the people as required by Article 46 of the Directive Principles of State Policy. In our country the reservation provisions were built to clear the difference of the upper caste and lower caste by providing some reservation in educational institutes, employments for certain classes which are termed as the Scheduled Caste, Schedule Tribes and other backward classes. Initially reservation was only for the Schedule Caste and for Schedule tribes, the Other Backward class was added to the reservation category after the case on the Mandal commission case.¹⁰ By Article 340 of the Constitution, President appointed a backward class commission in December 1978 under the chairmanship of B.P. Mandal. The Commission adopted the following criteria for identifying the socially and educationally backward classes:

•  Social criteria,

•  Educational criteria

•  Economic criteria

The commission submitted its report in December, 1980. It stated that the OBC population was around 52% of total population of India including Hindus and non- Hindus. 27% reservation for the OBC was recommended by the commission. No action was taken on the basis of mandal report for long after it was submitted. The commission by and large identified castes with backward classes and more or less entirely ignored the economic test¹¹. After the report of backward class commission, the question of characterizing backward classes again came before the SC in case of Vasant Kumar¹². All the judges of the SC agreed on the point that ‘caste’ shall not be the sole determinant of backwardness.

In Indra Sawhney case¹³, the Supreme Court uphold 27 percent quota for backward class and struck down the government notification of reserving 10% government jobs for the economically backward classes among the higher castes and upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population. The main positive aspect of the SC can be highlighted here-

•  Over all reservation is limited to a maximum of 50% in a year.

•  The backward classes of citizens’ can be classified on the basis of caste and such classification cannot be restricted to an economic basis.

•  Creamy layer should be excluded from the backward class.

The 77th Amendment of the Constitution¹⁴ was enacted by the Parliament to include reservation in promotions under Article 16(4A) and its validity was upheld by the Supreme Court in the case of the M. Nagaraj ¹⁵with three main constitutional requirements;

1. The SC and ST communities should be socially and educationally backward

2. The SC and ST communities are not adequately represented in the Public Employment.

3. Such reservation should not affect the overall efficiently in the administration.

ECONOMICALLY WEAKER SECTIONS RESERVATION AND ITS LEGAL POSITION IN INDIA

The original beneficiaries of the reservations under Indian Constitution are Schedule Casts and Schedule tribes and later on OBC were also given the benefit of reservation. In the post modern period the Indian Government has now made a drift from its long history of caste-based reservation by moving towards a class-based reservation. For the purpose of uplifting the economically weaker sections (EWS) of the society, the Government of India has introduced a 10 per cent reservation by virtue of the One hundred and third Constitutional Amendment Act¹⁶. It was the S R Sinho Commission, which in 2010 submitted a report on the need for a constitutional amendment for the purpose of giving reservation to poor of the general category in education as well as in government jobs. This commission recommended that a constitutional amendment is necessary to guarantee that the general category of poor receive accommodations in government employment and education. The commission emphasized that people who do not pay income taxes are often disadvantaged economically and should be treated similarly to OBCs. Children from economically disadvantaged families should be eligible for grants, scholarships, training for federal and state civil service examinations, subsidized health care facilities, and government housing assistance. In order to oversee financial assistance to economically disadvantaged classes, it is also recommended that a national commission be constituted. Further the Mandal commission in its report submitted in 1980 had also recommended that reservation should be given on basis of economic criteria. But the Supreme Court had observed in Indra Sawhney Judgment¹⁷(1992) that “a backward class cannot be determined only and exclusively with respect to economic criterion. However much has changed since then. Firstly the huge difference between the social and economic backwardness has reduced since early 1990s, it is mainly because of the caste-based reservations which provided a gateway for the economic upliftment of socially backward class. Secondly, the economic reforms introduced by the Government of India in 1991 increased the gateway for privatization and economic liberalization. These economic reforms although increased the economic mobility among the depressed class, however these reforms also led to increase in economic inequalities. The economy became the new social. As per Oxfam international India’s 1% owns more than 40% of the total wealth. It is because of these economic inequalities and vicious poverty that the Supreme Court of India has upheld constitutional validity of 103rd constitutional amendment providing reservation to economic weaker section in Janhit Abhiyan case¹⁸, despite its contrary stance in the earlier Indra Sawhney case¹⁹.

The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 was introduced in Lok Sabha by Mr. Thaawar Chand Gehlot (Minister of Social Justice and Empowerment) on January 8, 2019. After four and half hours of the long and rancorous debate, 323 Lok Sabha members voted in support of the bill while only three voted against it.²⁰ This purely aims to provide the development of “economically weaker sections” of citizens. Prime Minister Narendra Modi stated this bill as “landmark moment in our nation’s history.”²¹

As a result Economically Weaker Sections reservation was introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16. This amendment inserted Article 15 (6) and Article 16 (6). Article 15(6)²² in Constitution of India states that “Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.²³

And article 16(6) of the Indian Constitution states that nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.²⁴

Thus the 103rd Constitutional Amendment was enacted to provide 10% reservation for the Economically Weaker Sections (EWS) among forward castes in government jobs and colleges across India. It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs), Socially and Educationally Backward Classes (SEBC). However the validity of this 103^rd Constitutional amendment Act was challenged before the Supreme Court in case of Janhit Abhiyan v. Union of India (2022).²⁵ In this case the Supreme Court of India was to determine whether the Constitutional 103^rd amendment Act, 2019 violated the basic structure of the Constitution. The Supreme Court framed three points for determination which can be summarized as –

1. Whether reservations that are based singularly on economic criteria violate the basic structure of the Constitution?

2. Whether the exclusion of classes covered under Articles 15(4), 15(5), and 16(4) from the benefits of EWS reservation violates the basic structure doctrine?

3. Whether a breach of the ceiling of 50% to create additional reservation of up to 10% for the EWS violates the basic structure of the Constitution²⁶?

On these issues, the petitioners argued that affirmative action measures, and in particular reservations, could only be enacted to address historical inequalities The Petitioners contended that affirmative action measures, particularly reservations, should solely address historical inequalities. They argued that these measures must be based on historical injustice or stigma. By introducing Articles 15(6) and 16(6), they claimed that the foundational concept of social and educational backwardness in reservation policy has been undermined. Furthermore, the Petitioners asserted that economic criteria are inherently temporary and cannot be connected to the historical lack of adequate representation required to justify affirmative action measures.²⁷ The Petitioners further contended that reservation policies should not be transformed into poverty alleviation schemes. Regarding the second issue framed by the court, the Petitioners argued that excluding socially and educationally backward classes violates the basic structure of the Constitution. They claimed this exclusion is caste-based and effectively creates reservations favoring certain forward caste groups, thereby breaching the basic structure. Lastly, the Petitioners maintained that the 50% ceiling on reservations is a fundamental aspect of the Constitution’s basic structure and must not be exceeded²⁸.

In response to the petitioners’ case, the respondents argued that “economic justice” is one of the constitutional goals outlined in the Preamble, and that poverty is a fundamental cause of social and educational backwardness. Therefore, there is no prohibition against using “economic criteria” as the sole basis for affirmative action measures. They contended that basing reservation policies on “economic criteria” addresses “intersecting disadvantages” rather than “generational disadvantages.” Additionally, the Respondents pointed out that “economically weaker sections” within the Scheduled Castes, Scheduled Tribes, and Other Backward Classes already receive protection under Articles 15(4) and 16(4) of the Constitution. These groups were excluded to extend special provisions to individuals not covered by Articles 15(4) or 16(4). Lastly, the Respondents noted that previous Supreme Court of India rulings did not establish the 50% ceiling on reservations as an inviolable limit, thus the proposed additional 10% reservation does not violate the basic structure.²⁹

The Supreme Court of India in its Judgment delivered on November 7, 2022 upheld the legality of the One Hundred and Third Amendment Act of 2019 with a majority decision of 3:2. Supreme Court ruled that the Amendment Act did not violate any provision of the Constitution much less the ‘basic structure’ of the Constitution. Justices Pardiwala, Maheshwari and Trivedi, formed the majority opinion in their respective concurring judgments, while Justice R. Bhat wrote the dissenting (minority) judgment on behalf of himself and the then CJI UU lalit.

CRITERIA OF INCOME AND ASSETS FOR EWS RESERVATION

Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8 lakh (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application. Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:-

1.  5 acres of agricultural land and above;

2.  Residential at of 1000 sq ft. and above;

3.  Residential plot of 100 sq. yards and above in notified municipalities;

4.  Residential, plot of 200 sq. yards and above in areas other than the notified municipalities³⁰.

CONCLUSION

Affirmative action in postmodern India particularly with the introduction of EWS reservation, represents a dynamic and evolving approach to social justice. While the traditional reservation system focused on addressing historical and social disadvantages, the EWS quota marks a shift towards recognizing economic vulnerability as a criterion for affirmative action. Further the Janhit Abhiyan judgment is a significant step in the evolution of affirmative action in India, expanding the basis for reservations to include economic criteria. While it addresses the need for economic justice, it also raises important questions about the balance between economic and social considerations in affirmative action policies. The judgment’s long-term impact will depend on how effectively it is implemented and whether it can address the concerns of all disadvantaged groups in a comprehensive and equitable manner.

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Footnotes

1. Dr. Manosanta Biswas, “ Reservation Policy In India: Urge For Social Justice And Equality In Education And Government Services”, Ijrar Volume 5, Issue 3(July 2018).

2. Surovtsev, V., & Syrov, V. (2015). Outlooks of J. Rawls’s Theory of Justice. Procedia – Social and Behavioral Sciences, 166, 176–181.

3. Despande, Ashwini. “Affirmative Action in India: Oxford India Short Introductions” (Oxford University Press, 2012), p.p. 44−47.

4. Constitution of India- Read, Search, Learn and Explore, Government of India Act, 1935 https://www.consti tutionofindia.net/historical_constitutions/government_of_india_act_1935_2nd%20August%201935

5. Constitution of India- Read, Search, Learn and Explore, Poona Pact 1932 (B.R. Ambedkar and M.K. Gandhi) https://www.constitutionofindia.net/historical_constitutions/poona_pact_1932__b_r_ambedkar_and_m_k_gandhi__24th%20September%201932

6. Constitution of India- Read, Search, Learn and Explore, Government of India Act, 1919 https://www.cons titutionofindia.net/historical_constitutions/government_of_india_act__1919_1st%20January%201919

7. http://164.100.47.194/loksabha/constituent/facts.html Draft- Lok Sabha,

8. The Constitution (First Amendment) Act, 1951.

9. AIR 1951 SC 226

10. [AIR 1993 SC 477] Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. on 16 November, 1992.

11. Report of the Backward Classes Commission, Chapters IV, V and VII (1980).

12. K. C. Vasant Kumar v. State of Karnataka, AIR 1985 SC 1495.

13. [AIR 1993 SC 477] Indra Sawhney vs Union Of India And Others, Etc. on 16 November, 1992,

14. The Constitution (Seventy-Seventh Amendment) Act, 1955 http://legislative.gov.in/constitution-seventy-seventh-amendment-act-1995-

15. [(2006) 8 SCC 212] M.Nagaraj & Others vs. Union Of India & Others on 19 October, 2006

16. The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to the economically weaker sections (EWS) among non-OBC and non-SC/ST sections of the population

17. Indra Sawhney v. Union of India :1992 SCC (L & S) supp. 1, cross-citation 1992 supp. (3) SCC 217

18. Janhit Abhiyan v. Union of India (7 November, 2022).

19. Indra Sawhney v. Union of India :1992 SCC (L & S) supp. 1, cross-citation 1992 supp. (3) SCC 217

20. 15Lok Sabha clears 124th Constitution Amendment Bill to give quota for general category, January 9, 2019, https://economictimes.indiatimes.com/news/politics-and-nation/lok-sabha-clears-124-constitution-amendment-bill-to-give-quota-for-general-category/articleshow/67441684.cms.

21. 16Narendra Modi hails passage of quota bill in Lok Sabha, Livemint.

22. https://indiankanoon.org/doc/180923419/

23. Explanation.—For the purposes of this article and article 16, “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.

24. https://indiankanoon.org/doc/211089/#:~:text=Clause%20(6)%20was%20added%20to,of%20society%20to%20government%20posts

25. Janhit Abhiyan v Union of India (2023) 5 SCC 1.

26. Ibid.

27. Janhit Abhiyan v Union of India (2023) 5 SCC 1.

28. ibid

29. ibid

30. No.36039/1/2019-Estt (Res),Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, North Block, New Delhi, dated the 3lstJanuary, 2019