EWS judgement undermines Constitutional code of equality: Legal experts, Bahujan leaders

13 November 2022
ILLUSTRATION BY SUKRUTI ANAH STANELEY
ILLUSTRATION BY SUKRUTI ANAH STANELEY

On 7 November, a Supreme Court bench upheld the provision of reservation for the Economically Weaker Sections among the upper castes in education and employment in a majority decision. UU Lalit, who was then chief justice, and the supreme court judge Ravindra Bhat dissented on the exclusion of the Scheduled Caste, Scheduled Tribes and Other Backward Class communities from the EWS quota. However, they concurred with the other three judges—JB Pardiwala, Bela Trivedi and Dinesh Maheshwari—on an economic basis being a valid ground for reservation. Four of the judges are upper caste Hindus while Pardiwala is a Parsi.

Several legal experts and leaders of political parties I spoke to said that the judgement ignored key aspects of the Constitution as well as legal precedents laid down by the Supreme Court. The bench also made comments unrelated to the EWS case that could further threaten the representation of Bahujan communities in education, employment and elected offices. These comments, referred to as obiter dictum, are not legally binding but may suggest the biases of a judge. Previous comments by Pardiwala indicates that he has taken strident positions against representation for marginalised communities in the past. Four legal experts I spoke to argued that, to them, it put a question mark on the bench selection for the EWS case.

The petitioners laid out three major contentions against the EWS quota. The first was that any reservation based on an economic criteria must be considered unconstitutional since the constitution only allowed for affirmative action on the basis of social and educational backwardness. Second, the EWS quota discriminates against the economically weaker sections of the SC, ST and OBC communities by excluding them from the ten percent EWS quota. Third, the EWS quota violates the 50 percent ceiling which has been the guiding principle for the Supreme Court since the 1992 Indra Sawhney judgment.

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    Sagar is a staff writer at The Caravan.

    Keywords: Economically Weaker Sections Supreme Court Indian judiciary reservation
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