The caste-blindness in the Supreme Court’s economic reservation case verdict

The recent Supreme Court verdict in the reservation case for the Economically Weaker Sections is inherently exclusionary, feel law experts

India has had a rocky relationship with the issue of reservation since it was first encoded in our Constitution. It has divided communities, been the cause of endless protests and even directed hate towards those who seek to arrive at some semblance of equality because of it. The privileged castes largely view those who are protected under reservation as “beneficiaries” who distort the level-playing field. However, it is lost on the privileged castes that the idea of reservation operates on the principle of affirmative action—to actually provide a level-playing field to those who were never equal to begin with due to societal inequalities.

What is the Supreme Court upholding? 

In the landmark Janhit Abhiyan v. Union of India case, which was decided by a five-judge bench of the Supreme Court on 7 November, the challenge was to the 103rd Amendment to the Constitution of India. This amendment empowered the state to enact reservation for up to 10 per cent for the economically weaker sections of citizens in educational institutions "other than" those who are already provided for under Art. 15 (4) and Art. 16 (4) i.e., Scheduled Castes, Scheduled Tribes, and the non-creamy layer of Other Backward Classes.

According to Shardool Kulkarni, academic fellow, at the National Law University, New Delhi, the Court essentially considered three questions: 

(1) Whether reservation based on economic criteria breaches the basic structure of the Constitution? 

(2) Whether making it permissible to make special provisions in relation to admission to private unaided institutions breaches the basic structure of the Constitution? 

(3) Whether the exclusion of the socially and educationally backward classes/OBCs/SCs/STs from the scope of EWS reservation breaches the basic structure? 

Concerns of social justice

But in our minds, the questions are aplenty . A better part of the public opinion does not entirely disagree with the idea of providing economic criteria. The bone of contention, something even the minority dissenting judgement mentioned, was how this reservation excluded OBCs, SCs and STs. In many ways, it translates to: Those who are economically poor somehow cannot be from backward classes. However, what was the original intention and rationale for providing reservation in the first place? Was it to remedy historical wrongs against communities that were oppressed? 

“There are multiple rationales and justifications for reservation quotas; these range from guarantees of equality, remedial function (to offset the historical discrimination), enhance representation and welfare mechanisms of the state,” says professor (Dr.) Sumit Baudh, who teaches Constitutional Law and Critical Race Theory at Jindal Global Law School in Sonipat. 

He adds that an older variation of the EWS quota appeared in the early 1990s via an office memo of the Government of India. Now the EWS quota has appeared through a Constitution Amendment. “The majority ruling of the Supreme Court has answered the question currently posed to me: Can a constitutional amendment create a new, protected EWS category based on poverty? It’s a  yes.”

On the face of it, Baudh says the criteria appears to be at par with the identification of a “creamy layer” within the OBC category. “Yet the apparent caste-blindness of this parity is remarkable; in the sense, this criteria does not consider the relative disadvantages of caste that distinguish persons in the "backward" and "forward" castes /classes. The criteria advances a certain idea of caste-blindness, ignoring the non-economic ways in which discrimination and exclusion operate.”

The dissenting Justices of the Supreme Court noted that the existing reservation for backward classes is a reparative and compensatory mechanism in light of historical social stigmatisation. To exclude them from EWS reservation, which seeks to address economic deprivation, on the grounds that they can already avail of reservation (which is meant to redress a historical injustice that is) violates the Equality Code of the Constitution. 

“Upholding the reservation on the basis that backward classes can already avail of reservation, results in reservation based on persistent economic deprivation/poverty being equated with reservation seeking to redress historical social exclusion and stigmatisation,” explains Kulkarni. 

Tracing the verdict’s history

However, this isn’t the first time the question of economic reservation on the basis of economic deprivation has been brought up by the apex court. Baudh notes that the question of the constitutional legitimacy of economic criteria was first raised in the early 1990s, before a nine-judge Bench of the Supreme Court, in the case of Indra Sawhney v. Union of India (1992).

“This was in the context of an office memo of the Government of India that had sought to implement the recommendations of the Mandal Commission, for the reservation of seats in the category of Other Backward Classes (OBC) in Central /federal government employment,” he says. “In the scheme of this memo, and in addition to the OBC category, 10 per cent of the seats were required to be reserved for ‘other economically backward sections of the people who are not covered by any of the existing schemes of reservation’. Upon considering this matter at length, Indra Sawhney had ruled against economic deprivation as the sole criteria for providing reservations in jobs.”

It is no surprise that the minority judgment of the Supreme Court strongly pointed out just how discriminatory this criterion of 10 percent was. “…[F]or the first time, the constituent power has been invoked to practice exclusion of victims of social injustice, who are also amongst the poorest in this country, which stands in stark contradiction of the principle of egalitarianism and social justice for all,” wrote Justice Ravindra Bhat in his 100-page-long dissenting verdict. 

A series of setbacks 

One of the biggest ironies of the 10 per cent reservation is also the fact that it assumes that people who need a reservation for earning less than ₹ 8 lakh per annum are not from the “backward” classes already protected. 

“According to the Sinho Committee, 48.4 per cent of all Scheduled Tribes are in the BPL (below poverty line) zone,” the minority judgement added. “This is 4.25 crore of the population. In this manner, the exclusion operates geographically , too, denying the poorest tribals, living in these areas, the benefit of reservation meant for the poor.

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