EWS Reservation – Supreme Court Observer

Description of the case

On January 9, 2019, the Indian Parliament enacted the Constitution (One Hundred and Third Amendment) Act 2019 which allows the state to make reservations in higher education and public employment matters on the basis of criteria economic only. The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). It received presidential assent on January 12, 2019, and was published in the Official Journal the same day.

The amendment under Article 15(6) allows the state to make special provision for the advancement of any class of economically weaker citizens, including reservations in educational institutions. It states that such reservations can be made at any educational institution, including private grant-aided and non-grant-based institutions, with the exception of minority educational institutions covered by Article 30(1). It further indicates that the upper limit of EWS reservations will be 10% (meaning that up to 10% of the seats can be reserved for citizens belonging to the EWS category). This 10% ceiling is independent of the ceilings of existing reservations.

Section 16(6) allows the state to make reservations in appointments. Here again, these provisions will be subject to a ceiling of 10%, in addition to the existing reserves.

More than 20 petitions have been filed challenging the constitutional validity of the 103rd Amendment. They argue that the amendment violates the fundamental characteristics of the Constitution and violates the fundamental right to equality guaranteed by section 14. In particular, they advance the following arguments:

    1. Reservations cannot be based solely on economic criteria, given the Supreme Court ruling in Indra Sawhney v. Indian Union (1992).
    2. SC/STs and OBCs cannot be excluded from economic reserves, as this would violate the fundamental right to equality.
    3. The amendment introduces reserves that exceed the 50% cap on reserves established by Indra Sawney.
    4. Imposing reservations on educational institutions that not receiving state aid violates the fundamental right to equality.

Currently, 49.5% of seats in education and public appointments are reserved, with quotas of 15%, 7.5% and 27% respectively for Scheduled Castes, Scheduled Tribes and Other Classes arrears.

After five days of hearings in 2019, the Court reserved its order on the question of referring the case to a Constitutional Court. On August 5, 2020, the Court decided to refer this case to a panel of five judges.

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