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

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.

The ruling that the EWS quota is not unconstitutional has found little purchase with Bahujan leaders around the country. Prakash Ambedkar, the president of the Vanchit Bahujan Aghadi, called the judgment “intellectually corrupt.”  He argued on Twitter that the Parliament had power to make “addition, variation and deletion” to only “already existing social principles.” Since “a new principle [economic basis]” which was not part of the constitution has been introduced by the government, he wrote, the supreme court “must specify the source from where Parliament derives this power.” He tweeted, “It [judgment] can’t be sustained under any circumstances. Further, the condition that those availing, social reservation cannot avail economic reservation is in fact the introduction of Manusmriti by backdoor. It has consequently compartmentalised society on the basis of social and economic reservation.”  This compartmentalisation, he added, has “damaged” and “destroyed” the “structure of the Constitution.”

MK Stalin, Tamil Nadu’s chief minister and the president of the Dravida Munnetra Kazhagam, which is also one of the petitioners in the case, called the verdict a “setback for our century-long crusade for social justice.” Thol Thirumavalavan, the president of the Viduthalai Chiruthaigal Katchi, another petitioner in the case, said the verdict “is against the principle of social justice and the fundamentals of the Constitution.” D Raja, the general secretary to the Communist Party of India, wrote on Twitter that the, “SC judgment on EWS has raised critical questions and must be referred to a larger bench. Reservation is NOT a poverty alleviation program but affirmative action for historically deprived sections.”

C Siddaramaiah, the leader of opposition in the Karnataka Assembly,  emphasised that reservation was never meant to address economic inequality, even as leaders from his party celebrated the judgement. “[The] Constitution states that reservation should be provided on the grounds of social and educational backwardness. There is no mention of economic backwardness for reservation,” he tweeted. 

According to data placed before the court, India has 31.7 crore people who are below the poverty line. Of them, 7.74 crore SC, 4.24 crore ST and 13.86 crore OBC people—a total of 25.84 crore—fall below the threshold. These figures constitute 38 percent, 48 percent and 33.1 percent of the total SC, ST and OBC population respectively. The remaining 5.8 crore people in the “general category” who fall below the poverty line are presumably from upper castes, constituting constitute 18.2 percent of the total upper caste population. Bhat and Lalit accepted that the EWS quota resulted in the exclusion of weaker sections from SCs, STs and OBCs.

Petitioners in the case have said that the judgement largely ignores engagement with the arguments they made. “The judges who supported the majority verdict did not provide any reasons as to why they are rejecting the argument put forward by senior advocate Meenakshi Arora [on behalf of the VCK] that this law should be struck [down] because it excludes the weaker sections of OBCs, SCs and ST communities, which goes against equality enshrined in the Constitution,” Thirumavalavan told The Hindu. In the judgment, Maheshwari justified the exclusion by saying the provisions that granted reservation to SCs, STs and OBCs already restricts the creamy layer—those with a parental income higher than eight lakh rupees. According to him SC, ST and OBC reservation already had an exclusionary nature. What the judge failed to mention was that the creamy layer concept was instituted by the supreme court itself and was never a constitutional or legislative restriction.

In 1990, after the union government implemented 27 percent reservation for OBCs in jobs and education, Sawhney, an upper caste journalist, challenged the constitutionality of OBC reservation. The court upheld OBC reservation but put an embargo on reservation rising beyond 50 percent of the total number of seats. This assessment was repeated in a later judgement in 2018. As recently as May 2021, the Supreme Court struck down reservation given by Maharashtra government to Maratha communities under the OBC category citing it exceeding the 50 percent ceiling. And yet, ignoring all precedents, on 7 November, the Supreme Court allowed an exception to its own ceiling for savarna communities.

On 1 December 2015, Pardiwala, who was then a judge in the Gujarat high court, made an unrelated observation on reservation while passing judgment on a criminal application. The Press Trust of India quotes him as saying, “[two things have] destroyed this country or rather, (have) not allowed this country to progress in the right direction...(i) reservation and (ii) corruption.” Pardiwala also said, “When our Constitution was framed, it was understood that the reservations would remain for a period of ten years, but unfortunately, it has continued even after 65 years of independence.” Two weeks later, 58 legislators of the Rajya Sabha—belonging to SC, ST, OBC and upper caste communities—moved an impeachment petition against Pardiwala.

PTI quotes the legislators as saying, “the ten-year limit was prescribed for the political reservations i.e. representation to the SCs and STs in the Union and state legislatures, and not the reservation in the areas of education and employment.” Their petition states that, “It is distressing that Justice J B Pardiwala should be unaware of the constitutional provision with respect to the policy for the SCs and the STs. … These are unconstitutional in nature and amount to behaviour misconduct towards the Constitution of India that forms the ground for an impeachment.” Hours after the impeachment petition was moved, Pardiwala expunged his remarks from the judgment saying that they were not “relevant and necessary” to the main matter.

Pardiwala’s comments were not merely irrelevant to the judgement, but were also not factual. Anurag Bhaskar, a Harvard alumnus and assistant professor at the Jindal Global Law University, has written in a research paper about how the ten-year limit on reservation for SCs, STs and OBCs is a myth. Using primary sources such as debates of the constituent assembly and the minutes of the meetings of the assembly’s minorities sub-committee, Bhaskar establishes that the ten-year limit was not recommended by the constitution makers for reservation in jobs and education. The limit was accepted in the constituent assembly only with reference to political reservation for SCs and STs. This time limit was also conditional to a decadal parliamentary review. After each review, the Parliament has been extending political reservation. If an opinion of the court is not grounded in history but instead on myth and falsehood, it could indicate bias.

Seven years after he was forced to expunge his comment, Pardiwala made the same comment again in the EWS judgment. Pardiwala was promoted to the Supreme Court in May and is in line to become the chief justice of India in 2028.

Pardiwala was not alone among the majority judges to bring in unrelated unquestioned matters into their judgment. Trivedi wrote that the cessation of reservation for people from SC and ST communities in legislative assemblies and Parliament will be “a way forward leading to an egalitarian, casteless and classless society.” The reservation for the two communities was not even in question.

“Why was there a vocally anti-reservation judge on the bench?” a supreme court lawyer, on the condition of anonymity, told me. “Are there no standards and neutrality expected while constitution benches are composed?” The power to determine the composition of a constitution bench rests with the chief justice of India. Another lawyer, who also wished to remain anonymous, told me they could not make sense of Trivedi inserting comments about her wish for an end to political reservation for SCs and STs in her judgement. “SCs and STs reservation was not in question before the court, what was then the anxiety in the judge to make such a comment?” the lawyer asked.

There have been several landmark government reports that have questioned the overrepresentation of savarna communities in the judiciary and the influence this can have on their impartiality. In 2000, the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes chaired by the Bharatiya Janata Party leader Kariya Munda noted the glaring lack of SC, ST and OBC judges. The committee also included Kanshi Ram, the founder of the Bahujan Samaj Party, and Ram Nath Kovind, the former president of the country. “Judges take oath that they (will) uphold the Constitution and the laws,” the committee’s report stated. “But the Supreme Court and a few high courts by claiming power over the Constitution practise untouchability and are disobeying the Constitution with regard to Article 16(4) and Article 16(4A).” It suggested that the union government take steps to give adequate representation to the deprived sections in the higher judiciary.

In 2013, the National Commission for Scheduled Castes tabled a report to the Parliament which noted that, “the present constitution of working framework relating to Judiciary does not fully meet the national objective of social equity and justice.” It said that judges, “however objective fair they might be in their decisions, they are bound to be influenced by their likes and dislikes/prejudices. In an environment of ongoing social struggles, the resultant bitterness is likely to influence their judgements if they happen to share the sentiments of their warring communities.” The report pointed out that judicial caste bias could have influenced specific Supreme Court judgements about reservation as well as caste atrocities. The report calls for SC and ST reservation in the judiciary, but the Indian Parliament has refused to act on these recommendations for the past nine years.

Several legal experts told me that the EWS judgement might only be the first step in a larger effort to remove all the Constitutional protections guaranteed to SC and ST communities. “In para 187, Justice Pardiwala justifies the EWS quota by saying it can do away with ‘caste-based reservation,’” Disha Wadekar, a lawyer who practices in the Supreme Court, told me. “If given form this would affect reservations for SCs, STs and OBCs. Even though this observation is in the form of an obiter or remark, in effect it is the reasoning behind his decision. Such observations made by judges are not binding on future cases. But such observations end up becoming a part of the larger legal discourse. We have seen in the past that such benign observations are reiterated in future judgments and are used as precedents. They form the reasoning against caste-based reservation.”

- SAGAR

https://caravanmagazine.in/law/ews-reservation-judgement-supreme-court-caste-bias

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