A uniform 10% EWS quota across states is quite contentious
When it was challenged, the Supreme Court (Janhit case) upheld it in 2022. Most state governments began implementing a 10 per cent EWS quota, irrespective of the percentage of the GC population, which varies from state to state.
Ironically, reservations for SCs, STs and OBCs vary across states.
Such universality in the EWS quota is QUITE contentious. There are also other contradictions regarding the policy basis of this specific provision.
Initial attempts:
The quota for EWS began after overcoming the hurdles posed against its implementation in 1989. The then prime minister V P Singh proposed a five to 10 per cent EWS quota. However, this did not materialise. Subsequently, the P V Narasimha Rao government took the initiative forward and in 1991 mandated implementation of 10 per cent EWS quota and 27% OBC quota.
The Supreme Court, however, struck down the EBC-quota in the Indira Sawhney case (1992) while upholding the Mandal Commission's recommendation of 27 per cent OBCs quota. The reasons cited was that the EWS quota was made purely on an economic-criterion, which has been contended in the judicial scrutiny of OBCs reservation in various occasions. A further, 10 per cent EWS quota exceeds the 50 per cent ceiling laid down by the apex court (Balaji and other cases).
Commission and Amendment:
The UPA government in 2006 constituted a S R Sinho Commission to study economic backwardness among the general category (GC) population and recommend specific policy provisions. In its 2010 report, the panel suggested an economic criterion for identifying EWS in the GC population- all persons in BPL families and those with annual income below the non-taxable income tax slab.
The NDA Government considered the Sinho Commission report and brought in the 103rd Constitution Amendment Act 2019. When it was challenged in the Janhit case, the Supreme Court in 2022 upheld the 10 per cent EWS quota, following which the Centre laid a less than Rs eight lakh income-criterion for identifying the EWS eligible among GC population. Subsequently, the Union Government's Expert Group retained the criterion. Pending the final verdict, the apex court permitted the criterion.
Contradictions:
Certain contradictions persist in the implementation of 10 per cent EWS quota.
Firstly, its policy basis is itself contradictory; study, methodology and procedures. Kaka Kalelkar chaired the first Commission for Backward Classes (1953-55) and identified BCs on the basis of four indicators-social status, education, government employment and participation in industry, trade and commerce).
The B.P. Mandal chaired the second commission (1979-80) devised a three-dimensional (social, education and economic) 11-indicator criterion for identifying backward classes. The thrust was on social, educational and economic dimensions of backwardness. The Mandal Commission conducted a massive survey across 405 districts, including in urban areas. Concomitantly, many state-level committees and commissions for BCs contemplated a rigorous criterion in identifying backward classes.
In contrast, the Sinho Commission solely relied on economic criteria without such rigorous study and methodology. Its recommendations are based on its visits to states and Union Territories and interacting with officials and functionaries implementing the welfare policies, experts and civil society organisations.
When they were contested, the judicial proceedings did not validate the methodology and procedures conducted for the commissions and committees. In all previous verdicts, the economic-criterion has been contended the most in identifying BCs. However, there is a marked difference vis-à-vis the Sinho panel report.
Secondly, the EWS quota exceeding the 50 per cent ceiling is allowed while strictly restricting the SC/ST/OBCs reservation to 50 per cent. The SC/ST quotas are fixed in proportion to the population share in states. Hence, a space for the OBCs reservation quota, at the Centre and in states, is the balance. The OBCs quota is adjusted for the creamy-layer among the OBCs. The OBCs' creamy-layer criteria differ across the Centre and states.
In contrast, EWS quota at the Centre and in states is not bound by the above limitations. Of course, exclusion of GC creamy layer benefiting from EWS quota is applicable on the Rs eight lakh income criterion, the basis of which is again contentious (verdict pending). The 10 per cent EWS quota across states shall also follow the same creamy layer criterion. It is not subject to varying income levels across states and differences between the Centre and states.
Thirdly, the uniform 10 per cent EWS quota is contentious as the population of SCs, STs and OBCs varies across states. Neither is the EWS quota adjusted to the GC share in a state, nor the EWS creamy-layer income to the state income. When the Centre's 27 per cent OBCs quota is not mandatory across states, then why should the 10 per cent EWS quota be?
For instance it makes sense if Uttarakhand implements the 10 per cent EWS quota as more than a quarter of its population come under the GC category, which is not the same case as regards other states, in proportionate terms.
BCs are the losers:
The OBCs are the losers. Each social category is entitled to equal opportunity. Following democracy's basic principle of proportionate representation, quota should be earmarked in accordance with the population share in the states.
The Constitution has ensured that reservations are near to the population share of SCs and STs. However, most Indian states have OBCs that are in excess of 50 per cent of their state population. The OBC quota is around 32 per cent. In many states, around 10 to 15 per cent of the population are in the GC bracket.
Quota is earmarked for all the four mutually exclusive social categories-SC/ST/OBC/GC. However, the difference between reservation quota and population share of each indicates it is the highest for OBCs and hence their relative deprivation is higher.
As a result, EWSs in GCs are safeguarded more than OBCs, who are historically deprived.
(The writer is Associate Professor and Coordinator (Research Cell on Education), CESS, Hyderabad
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