A 3:2 majority of the five-judge Supreme Court bench affirmed the 103rd
Amendment's legitimacy on November 7, 2022. This amendment grants a 10%
reservation to members of the Economically Weaker Sections (EWS) in government
positions and educational institutions. The 10% quota for the economically
weaker segments of society (EWS), according to Attorney-General of India KK
Venugopal, does not impair the rights of the Scheduled Castes, Scheduled Tribes,
or Other Backward Class.
The petitioner contested the 2019 Constitution (103rd Amendment) Act in the
Janhit Abhiyan v. Union of India case[i], which took effect on January 14, 2019.
This change impacts the new provisions in Articles 15 and 16 of the Indian
Constitution. "Non-discrimination based on religion, race, caste, sex, or
national origin" is covered by Article 15[ii], while "equal opportunity in
public service" is covered by Article 16[iii].
Giving economically vulnerable groups in society a 10% reserve violates the SC's
own declaration that there should be a 50% maximum on quotas, the Supreme Court
recently decided in front of a panel of five judges. The "substantial legal
question" of whether the ceiling cap is broken is taken into account.
to the Supreme Court, the primary issue before constitutional judges is whether
"economic backwardness" may be the only factor considered when allocating quotas
to governmental organizations and educational institutions. The Centre contended
that it was within each state's purview to grant students enrolled in state
institutions and state-owned educational institutions a 10% economic
Current Scenario Of Reservation
- As of right now, 49.5% of India's land is reserved. The total is 59.5%
when the 10% extra reservation for EWS is taken into account.
- Scheduled Tribes, Scheduled Castes, and Other Backward Classes each have
quotas of 7.5%, 15%, and 27%.
- Only 40.5% of seats in educational institutions and jobs would be
distributed based on merit if the EWS Quota Bill is passed into law. A rise of
reservations can endanger merit, as the Supreme Court has noted.
Scope Of EWS Reservation
The Constitution (103 Amendment) Act of 2019 amended Articles 15 and 16 and
added provisions giving state governments the authority to create economic
backwardness reservations. The Economically Weaker Section (EWS) will be defined
by the proposed amendment bill as having an annual household income of less than
Rs 8 lakh, agricultural land of less than 5 acres, a residential home of less
than 1000 square feet, a residential plot of less than 100 yards in notified
municipalities, and a residential plot of less than 200 yards in unnotified
Significance Of The New EWS Judgement
The 10% quota is progressive and could solve concerns with educational and
income inequality in India, where residents from economically disadvantaged
backgrounds have been prevented from enrolling in higher education institutions
and finding jobs in the public sector because of a lack of resources. Other than
the lower classes, many other persons and groups experience hunger and poverty.
The proposed constitutional change will give the lower caste poor constitutional
recognition. Additionally, since reservations have historically been linked to
caste and the upper caste typically looks down on those who enter through
reservations, it will progressively eliminate the stigma associated with
What Does The 103rd Amendment Say?
Additional Article 15(6)[vi]: Up to 10% of seats for EWS may be earmarked for
admission to educational institutions. Minority-serving educational institutions
will not be subject to these limitations. In accordance with the newly added
Article 16(6)[vii], the government may reserve up to 10% of all government
employment for EWS. In addition to the current reserve maximum of 50% for SC,
ST, and OBCs, the EWS will be eligible for reservations of up to 10%. The
federal government will inform citizens about the EWS based on family income and
other signs of economic disadvantage.
Challenges To 103rd Amendment
Contrary to the norm of equality, the ceiling of 50 reserved seats was imposed
to balance the equality of opportunity of the backward classes "against" the
equal rights of all other classes. When the quota exceeds 50%, the equality
standard is violated. In the case of M.Nagaraj v. Union of India (2006)[viii], a
constitutional court held that equality is part of the basic structure of the
Constitution. The 50% deposit is a constitutional requirement without which the
equal opportunity structure would collapse.
Representation of the above castes is sufficient:
The upper class is fully represented in public affairs. It is unclear whether
the government has quantitative data showing that people from low-income groups
are underrepresented in the civil service. The problem with the current SAP
definition is that it is too broad and would include large segments of the
population. Identify beneficiaries: In a country where the taxable population
remains very low due to misreporting of income, implementing economic
eligibility criteria would be a bureaucratic nightmare.
'Pandora's box': SC/ST and OBC sections may want similar sub-categorization
based on economic criteria in their respective quotas.Reservation is not a
poverty alleviation program: In the Indira Sawhney case (1992)[ix], the Supreme
Court invalidated the provision of 10% to the economically backward because the
Constitution only provided for the fight against social backwardness. The
special provisions, such as economic reservations in education and employment,
are completely unconstitutional and violate the basic structure of the
The exclusion of the socially and educationally backward classes (SC, ST and
OBC-NCL) from the benefits of these special provisions for EWS is inexplicable
and discriminatory. weaken the basic structure of the Constitution.
Views Of The Five-Judge Bench On The Matter
With three justices (Justices Dinesh Maheshwari, Bela M Trivedi, and JB
Pardiwala) in favor of the change and two judges (Justice Ravindra Bhat and
Chief Justice UU Lalit) against it, the modification was sustained by a 3:2
margin. Justice Dinesh Maheshwari, Justice S. Ravindra Bhat for himself and on
behalf of the Chief Justice, Justice Bela M. Trivedi, and Justice J.B. Pardiwala
each gave a different decision after hearing the matter for a week.
These were the judgments:
- On Violative of the basic structure of the Constitution
One of the most important legal questions in the present case is whether the
103rd Amendment, which provides for a 10% reservation for the SAP, violates
the Constitution's fundamental principle of equality. Many people believe
that the proposed amendments are consistent with the Constitution's
provisions on equality. Justice Dinesh Maheshwari: Emphasizing that the SAP
reservation does not create any form of inequitable discrimination, he
stressed that it cannot be considered a violation of the basic structure by
"abbreviating or modifying" the constitution moderate principles of
The judge then considered the doctrine of equality, emphasizing that the
crux of the challenge to the amendment lay in the argument that it repealed
the Equality Code and thereby destroyed the basic structure of the
Constitution . He also stated that reservation cannot be considered an
essential element of the Constitution "cannot be amended or the amendment is
motivated by a just cause, including in the interest of any provision any
clause other than the protected clauses".
"Reservation is an instrument not only to bring the socially and
educationally backward classes into the mainstream of society, but also to
bring any deprived class or section to the point where it meets is described
in terms of the weaker part. Therefore, reservation based solely on economic
criteria does not violate any essential element of the Indian Constitution,"
the judge ruled. Justice Trivedi: Agreeing with this, Trivedi said the
amendment cannot be described as a "shocking, unconscionable or immoral
parody of the quintessence of equal justice", as the petitioner's counsel
already requested. Justice JB Pardiwala agreed with Justice Maheshwari and
Justice Trivedi on similar grounds.
Justice Ravindra Bhat and Chief Justice UU Lalit Both issued dissenting
opinions on the issue, finding that although accounting for reserves based
on financial criteria does not constitute a violation of the Constitution,
the issue does not as simple as one might think. The basic structure of the
Constitution is about our fundamental values and constitutional moral
identity. "Our Constitution does not speak the language of exclusion,"
Justice Bhat said. In my opinion, the amendment is exclusionary language and
violates the principle of fairness and therefore the basic structure.
- On Exclusion of SC/ST/OBC-NCL category from EWS reservation
The petitioners have argued that the people belonging to the SC/ST/OBC-NCL
category are the poorest of the poor and excluding them from the benefits of
EWS reservation is violative of norms and principles Constitution. Though
the argument appeared to have some substance on its face, Justice Dinesh
said a brief pause and a closer look showed that the petitioners' complaint
remained completely untenable.
Justice Dinesh Maheshwari:
"This exclusion has a clearly defined logic; On the contrary, this exclusion
is inevitable for the actual operation and effectiveness of the EWS
reservation system. � Responding to Parliament's decision to introduce an
amendment, the judge said it was not necessary to expand classes that
already enjoyed "another benefit". Reserves are reserved for other divisions
with weaker economies because these classes already have reservations. He
also said that the quota reserved for other classes under consideration will
not be reduced due to EWS reservation.
The judge also observed that when there is vertical reservation, exclusion
becomes important to benefit the target group. "The same principle has been
applied to affirmative action on reservation for Socially and Economically
Backward Classes (SEBC), OBC, SC and ST," he said, adding that their
complaint "cannot be considered a legal right.
Complaint submitted to the Court:
"By excluding certain groups from the benefits of reservations like EWS, we
balance the requirements of non-discrimination and compensatory
discrimination," he observed. Justice Bela M Trivedi: She agreed, holding
that SC/ST and Backward Classes, for whom special provisions have been made,
"form a category distinct from the general category or ineligible" and
cannot be treated on an equal basis with citizens of the general or
The judge also said that the amendment created a separate class of
economically deprived citizens from the general/unprotected class and did
not affect the reservation for the public classes SC, ST and backward
people. The judge therefore concluded that their exclusion from the EWS
category could not be considered discriminatory or a breach of equality
She also said the amendment came after Congress became aware that
economically disadvantaged citizens were largely barred from accessing
higher education institutions and public employment "due to their don't have
the financial ability to compete with those who are more economically
Justice Pardiwala: He held that Article 16(4) was adequate but applied only
to reservations for backward classes.The judge pointed out that Section
16(4) does not provide an adequate explanation of the concept of reservation
as such and, therefore, the creation of a separate category of economically
weaker sections is irrelevant. discrimination, so long as reservation for
backward classes is not affected.
Justice Bhat and CJI UU Lalit: Both expressed strong disagreement on this
point. He stated that the amendment capping SC/ST/OBC in the pre-allocated
reservation quota, prevents them receiving additional benefits that address
the specific discrimination they face due to social inequality and
According to the judge, this violates the principles of fraternity and
furthermore limits socially disadvantaged people from receiving benefits
based on economic deprivation.
- On Breach of the 50% ceiling cap on Reservation
Justice Dinesh Maheshwari: The argument that the state can implement any
poverty-relief measure but cannot provide reservation for EWS is based on
the supposition that reservation in our constitutional framework is only
reserved for Socially and Economically Backward Classes (SEBCs)/OBCs/SCs/STs,
according to Justice Dinesh Maheshwari.
"Such an assumption is neither valid nor consistent with our constitutional
scheme," he argued. The judge added that candidates who fall within "the
bracket of already available reservation" have no basis for complaining
about the additional 10% reservation for the benefit of a different group of
people because the prescription of a ceiling limit of 50% for general caste
candidates provides no such basis.
"The reservation of EWS of citizens up to 10% in addition to the existing
reservations does not result in violation of any essential provision of the
Indian Constitution, as the ceiling itself is not inflexible and applies
only apply to the reservations provided for in Articles 15 (4) [x],
15(5)[xi] and 16(4)[xii] of the Constitution of India," the judge added.
Judge Pardiwala: He pointed out that although economic reservation excludes
socially backward classes, such reservation is not prohibited by the
He cited other provisions that created reservations based on economic
status, such as the right to free and compulsory education, to support his
argument that reservations were not based on backwardness. society still
exists and does not violate the ideas of constitutional integrity. Justice
Ravindra Bhat and CJI UU Lalit: Both emphasized that, although the
constitution does not prohibit the creation of financial reserves, one must
keep in mind the spirit of the debate of the Constituent Assembly and
consider the nature of the formation of reserves.
The justices said reservations, as our ancestors intended, are
community-centered, not individual-centered. Reservations aim to reverse
marginalization, which has historically denied certain communities access to
a level playing field in society. Reserves are used to solve this problem,
not to meet the needs of individuals or groups that have historically
benefited from social capital and access.
- On the time limit for reservation
Recalling that the framers of the Constitution and the Constitutional Court
had proposed in 1985 that the reservation policy should be time-limited,
Justice Trivedi said this has not been implemented even after 75 years of
Independence. Adding that it cannot be said that the caste system is
responsible for the origin of the reservation system and that it was
introduced to correct the historical injustice suffered by the members of
the Scheduled Castes, the Tribes scheduled and other backward castes faced,
while also providing them a level playing field to compete with members of
the advanced classes, she said the reservation system should be
reconsideration "for the greater good of society, as a step toward
Referring to the 104th Amendment to the Constitution, which ended the
representation of the Anglo-Indian community in the Parliament and state
legislative assemblies, Justice Bela M Trivedi said that a similar period
was prescribed. for the special provisions relating to reservations and
representation provided for in Article 15 and Article 16 of the Constitution
"may be the path towards an egalitarian, casteless and classless society"
Major Drawbacks Of The New Ews Judgement
This decision contradicts the constitutional system, which stipulates that no
part of a seat/position can be reserved solely for economic reasons. The EWS
quota transformed the concept of reservations as a tool for representing the
marginalized into a program of financial upliftment. Reservations are given only
on "anti-discrimination" grounds, not on "anti-depravity" grounds.
The Union or the state government has no such data to prove that "upper" caste
individuals earning less than Rs 8 lakh per annum are not adequately represented
in government jobs and other higher education institution. It is very possible
that they are over-present in these places.
The government's criteria for determining eligibility for this reservation are
vague and not supported by data or research.
The delay will be assessed using various criteria by the committees established
under Article 340 of the Constitution. The backward classes were represented,
demanding reservations to correct historical injustices; Reservations cannot
exceed 50% of seats, as stipulated in Balaji v. State of Mysore[xiii] and;
reservations must balance "administrative efficiency" with social justice.
Further, the Supreme Court asked the government whether it considers the per
capita GDP of each state while determining the monetary limit for EWS
reservations. According to statistics, the per capita income of the states has
significant differences: Goa has the highest per capita income at nearly Rs 4
lakh, while Bihar has the lowest at Rs 40,000.
Equal educational opportunities: The Union and State Governments should take a
long-term approach and make efforts to improve educational infrastructure (at
all primary, secondary and tertiary levels) and quality of education. Equality
of opportunity for quality and affordable education will reduce the struggle
among the growing number of communities classified as "backward".
Discrimination based on caste: Justice Bhat, in his dissenting judgment, noted
Dr Ambedkar's observation that "reservation must be treated as temporary and ad
hoc". Until caste-based discrimination is eradicated from society, grounds for
reservation based on caste will continue to exist and be valid.
Reservations negatively impact all categories except EWS as it reduces the
competitiveness they have. Empirically, this seems implausible because EWS
candidates are already overrepresented in higher education institutions.
It is time for the Indian political class to overcome the trend of continuously
expanding the scope of reservations in pursuit of electoral gains and realize
that this is not a panacea for all problems.
Instead of booking reservations based on various criteria, the government should
prioritize quality education and other effective measures to improve society.
This will instill in them a sense of business, making them job providers instead
of job seekers.
Experts' opinions on the ruling appear to be divided. Reservation remains a
controversial and politically charged issue in India. The long-term solution is
to raise awareness and eliminate all forms of discrimination through
socio-political mobilization. Unless this happens, the status quo (on bookings)
or the request for further expansion of bookings will continue. Reservations
have historically been based on social inequality.
Despite excellent qualifications and scores, candidates from higher castes or
open categories are still denied employment. justice for the higher castes does
not mean injustice to the lower castes. This violates the principle of natural
justice. However, the exclusion of SC/ST and OBC from the EWS category is