The Supreme Court will belatedly start hearing petitions next week challenging the Modi government’s decision to grant a 10% reserve to economically weaker sections, or EWS, in January 2019. It is late because the Supreme Court failed to suspended the 10% EWS quota at the time and has more than three years to rule on its constitutional validity.
In contrast, the Supreme Court had suspended the 1990 decision by the VP Singh government to grant a 27% reservation to the socially and educationally backward classes, commonly referred to as the other backward castes or OBCs. The adversarial approach of the Supreme Court prompted K Chandru, a former Madras High Court judge, To note“Certainly, the Supreme Court’s refusal to suspend the EWS reserve gave an advantage to Prime Minister Narendra Modi in the 2019 [Lok Sabha] election.”
The 10% EWS reserve includes within its scope only socially advanced groups, mainly upper castes and a pinch of middle castes, such as Marathas, Patels, Jats and Kapus. The EWS quota therefore not only gave an advantage to Modi but also to the upper castes, who have long spoken out against reservations undermining meritocracy. They will now be forced into the administrative system. Their fears of lower caste assertions were partially allayed.
From Rao to Modi
It had long been argued that denying reservation to the poor among the upper castes was unfair. This argument underpinned the policy of the PV Narasimha Rao government decision to reserve 10% of government jobs for “other economically backward categories of the population who are not covered by any of the existing reservation schemes”. The Supreme Court in 1992 overturned Rao’s decision in the Indra Sawhney case, which however upheld the OBC’s 27% reservation. The Supreme Court said the reservation could not be granted solely on economic criteria and that social backwardness begets educational and economic backwardness.
In other words, reservation is justified only for social groups, or castes, which are socially and educationally backward.
To overcome the grounds on which the Supreme Court rejected the EWS reservation, the Modi government amended the Constitution through the 103rd Constitutional Amendment Act of 2019, which inserted new clauses in Section 15 and Section 16. These authorize the state to make special provision for the “advancement of any economically weaker section of citizens” other than Scheduled Castes (SC), Scheduled Tribes (SC) and OBCs. A constitutional basis was provided for the EWS reservation.
Class vs. Caste
The Supreme Court, beginning Sept. 13, will hear arguments on whether the 103rd Amendment violates the basic structure of the Constitution. In the Constituent Assembly, which drafted the Constitution, debates took place on whether economic criteria should be the sole basis of the reservation or whether the cumulative social, educational and economic disadvantages resulting from the structure of Indian society had to be taken into account.
Summarizing these debates, lawyer and academic Malavika Prasad concluded“Unlike social disadvantage suffered collectively by groups of people, a disadvantage which varies from individual to individual, manifesting itself as a purely economic disadvantage, should not be constitutionally corrected by special provisions or reservations.
The reason why caste, not class, should be the basis for determining who gets the reservation is obvious from this swap between two members of the Constituent Assembly. S Nagappa said he was prepared to support the abolition of the reserve in case “every Harijan [referred to as Dalit today] the family gets 10 acres, 20 acres of dry land,” and their children received free education through college. Mohan Lal Gautam countered that he would be willing to trade places with a Harijan granted such largesse. This prompted Nagappa to retort that a “Hindu” could not simply become a Harijan unless he was willing to “collect and sweep for others”.
The Nagappa-Gautam duel shows that a large part of the Indians have been trapped in humiliating and menial occupations for centuries. Their choice of occupation was not theirs. It was determined by caste rules, which prevented them from accessing modern education and breaking the caste-profession link.
Put simply, this historical disadvantage explains the low representation of STs and SCs in the professional class and in administrative jobs. Indeed, low social status often produces economic backwardness. Reservation seeks to decouple caste from its traditional occupation and to socially diversify the middle class, which, even after decades of reservation, is dominated by upper castes.
Rajya Sabha MP Manoj Jha who spoke out against the 103rd Amendment in 2019 did a good job explaining the economic dimension in a meeting“I am Manoj Jha, and I might be poor. But my poverty does not come from being born into a particular caste. On the other hand, says Jha, there are those whose “poverty is defined, described, prescribed and perpetuated because they are born in a particular caste. Who dies in the sewers? Dalits. Reservation cannot be a solution to poverty. “The solution can be scholarships and other mechanisms of this guy,” Jha said.
The Supreme Court will answer whether the Modi government’s decision to provide reservations solely on economic grounds violates the basic structure of the Constitution, as people like Jha say.
Who is EWS?
The norm has been to carry out socio-economic surveys before determining whether reservations should be extended to any category of social group or caste. For example, the Mandal Commission conducted surveys before recommending a 27% reservation for OBCs. In 2019, however, Modi extended the reservation without determining who among the upper castes belonged to the economically weakest section, their population and whether they were underrepresented in government jobs.
In 2006, the United Progressive Alliance government formed, under the leadership of Major General (Retired) S.R. Sinho, a committee for the Economically Backward Classes (EBCs) not in the SC, ST and reservation pool. CBO. EBCs are today’s EWS. He is valued that EBCs made up only 5% of India’s population. Thus, with the stroke of a pen, 10% reservation was granted to only 5% of the population.
It is debatable whether the truly poor among the upper castes can benefit from the EWS reserve, for all those whose parents earn Rs. 8 lakh per year qualify to fall under this category. It has been calculated that 95% of the upper castes can compete for the 10% reserve!
Force feed the system
From this point of view, the EWS reserve forced feeding the well-to-do among the upper castes in the administrative system, largely at the expense of the SCs, STs and OBCs. This is due to the recruiting rule, which states that an SC, ST, or OBC who achieves the qualifying marks for the General category will be assigned a position labeled as General, not the reserved one.
This recruitment process suggests that SCs, STs and OBCs could be recruited for more than 49.5% of government jobs. How? Suppose there are 100 OBC-only messages. Assume that no OBC candidate obtains marks above the qualifying mark for the general category. In this case, only 100 OBCs will be recruited. Now suppose that 10 OBCs achieved more than the qualifying scores for the general category. In this case, 110 OBCs will be recruited if 100 of them have obtained a mark equal to or higher than the qualifying marks for the OBC category.
The EWS reservation effectively eliminates 10% of jobs in the general category. There will be fewer positions for SCs, STs and OBCs to compete in the general category. Fewer positions will also raise the general category threshold. Indeed, the EWS reserve is designed to ensure that the balance in the system does not tip against higher castes now or in the future.
Midnight flight or…
The EWS reserve has left many OBC leaders simmering — and rightly so. The Mandal Commission had counted OBCs as representing 52% of the country’s population, but it recommended only 27% reservation for them. BP Mandal, who headed the commission, said he did not wish to violate several Supreme Court judgments capping reservation at 50% of all vacancies in government jobs. “Given this, the proposed reserve for OBCs should be pegged to a figure which, added to 22.5% for SCs and STs, remains below 50%,” Mandal said.
OBC leaders say the reservation quantum for them should have been increased before the state removed the 50% cap to provide a quota for upper castes. They say Modi took advantage of Mandal’s impeccable conduct to adhere to the Supreme Court’s 50% rule and favored the upper castes.
One school of thought claims that the population of the OBC exceeds Mandal’s estimate of 52%, derived from the last caste census in 1931. This is precisely why they called for a caste-based census, which the government, in an affidavit to the Supreme Court, said can’t be done, citing various reasons. In 2011, a socio-economic and caste census was carried out. His data, however, remains secret.
Rajya Sabha MP Jha, in 2019, felt it “The other backward classes of the  data constitute nearly 68% of the country’s population. He went on to say, “That’s why I say 10% booking is nothing less than a midnight flight.”
Call the EWS reservation a midnight flight. Or yet another proof of what militant academic Jean Dreze has described as the upper caste revolt. Over the next few weeks, we will know whether the counter-revolution, which has been creeping in for nine years, can be slowed down or stopped.
The author is a freelance journalist. Opinions are personal.