The Constitution Bench judgment in the case of Janhit Abhiyan v Union of India delivered yesterday was a split verdict (3:2) upholding the constitutionality of reservations for Economically Weaker Sections (EWS) introduced by the Constitution (One Hundred and Third Amendment) Act, 2019.

The system of reservation in India consists of a series of measures, such as reserving access to seats in the various legislatures, to government jobs, and to enrollment in higher educational institutions. The reservation nourishes historically disadvantaged castes and tribes, listed as Scheduled Castes and Scheduled tribes (SCs and STs) by the Government of India and also those designated as Backwards Classes (OBCs/EBCs).

The reservation is undertaken to address historic oppression, inequality and discrimination faced by those communities and to give these communities a place. It is intended to realise the promise of equality enshrined in the Constitution.

The reservation in India comes in the form of positive discrimination and the persons who are socially backward are given the reservation at various platforms. The forward castes and the creamy layer have been excluded from the purview of the reservation.

There has always been a demand for reservation for the economically backward class also, which was not covered under any such reservation schemes. Through the Office Memorandum dated September 25, 1991, when the Union of India finally implemented the recommendation of the Mandal Commission by granting 27% reservation to the Backward classes based on caste and other factors, the 10% EWS quota was also notified.

However, the then Union Government notified the 10% EWS quota halfheartedly, without making necessary amendments to the Constitution.

Resultantly, it was struck down by the Hon'ble Supreme Court in Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217. In Para 859(11) of the Judgment, it has been held that "The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned Office Memorandum dated September 25, 1991, is constitutionally invalid and is accordingly struck down."

The reasoning provided in Para 845 was that such classification of backwardness cannot be based on economic criteria solely, as Articles 15 and 16 of the constitution only recognize socially and educationally backward classes (SEBCs).

This exact lacuna was filled in January 2019 by the virtue of the 103rd Amendment in our Constitution, when economically weaker sections were recognized for granting exclusive benefits by the State by amending Articles 15 and16 of the Constitution.

Therefore, the 10% Reservation policy for EWS was bound to be affirmed by the Hon'ble Supreme Court this time on the strength of the 103rd Constitutional amendment.

So, this unfinished task of the Union Government, which implemented the Mandal Commission Report for OBC reservation, regarding financially weaker sections of the society stands fulfilled today and as expressed by minority judges in the Indra Sawhney (Supra), the backwardness due to economic conditions can also be accepted as a criterion for affirmative action by the State to remove inequality in the society and it is not violative of the basic structure of the Constitution.

The Supreme Court in a plethora of decisions has clearly stated that forward castes cannot be included within the ambit of reservation owing to the historic oppression, inequality, and discrimination under the Hindu Varna system. True, but now the question is how to identify a forward caste. What happens when a caste converts from forward to backward or backward to forward? What are the factors to decide whether a caste or class is forward or backward? Should the status/backwardness of individuals be assessed independent of their caste?

Indian society, in present times, has moved forward from the historic notions of castes. Thus, positive discrimination must also address the economic and social backwardness of a person and it should not solely rely upon the caste on a communal level.

Therefore, the observation made by Justice Pardiwala in support of the majority judgment that reservation should not be allowed to become a vested interest is very relevant. Any class or caste should not be allowed to feel entitled for any reservation for eternity. Reservation for any individual or class is available only till the period of its backwardness subsists, and it can only be ascertained on the individual level.

In Indra Sawhney (2) v. Union of India [(2000) 1 SCC 168], the Supreme Court has stated:

"Para 7 & 8- The Indian Constitution is wedded to the concept of equality which is the basic feature of the Constitution. Though Indian society is caste-ridden, yet it is the constitutional mandate not to discriminate on the basis of caste alone and therefore caste alone cannot be the basis for reservation."

In M.R. Balaji v. State of Mysore [1963 AIR 649], the Supreme Court noted that ultimately, poverty, rather than community identity, was the real marker of social and educational backwardness.

But as a significant development on this issue in a comparatively recent case on Jaat Reservation, the Hon'ble Supreme Court in Writ Petition (Civil) No. 274 Of 2014, Ram Singh & Ors. V. Union Of India while considering the validity of Jaat Reservation has enunciated a similar proposition in Para 52 to 55 of the Judgment whereby it has held that:

"Para 53. …… An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover "lost ground" in claiming preference and benefits on the basis of historical prejudice…."

In the surrounding paragraphs, the Hon'ble Court breaks this down into five issues, explaining why Jats couldn't just be made OBC because of the way they have been treated in the past.

Historical perception, i.e. caste, is not good enough

The court insisted that the long-held perceptions of 'advanced classes' or 'less fortunates' cannot be a constitutionally permissible yardstick to determine backwardness. Caste might have been a Hindu way of ordering society, but they don't rule modern India.

Things can change in even 10 years

Just because states gave Jats reservations a decade ago doesn't mean they're still backward. The court said that one can legitimately presume that the country has progressed in the last 10 years and so data that's a decade old can't be the basis of inclusion in the OBC list.

Backwardness can't be relative

Simply because Gujars, believed by the Delhi government to be ahead of Jats in socio-economic terms, were put into an OBC list somewhere isn't reason enough. "Possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed," the order said.

Incorrect inclusions are not small mistakes

The court must not err on the side of including communities in the list because doing so wouldn't just be wrong, it would be unconstitutional.

Who is now really backward?

Pointing to the decision by the court to recognize third gendered citizens as economically and socially backward, the Court has held that "The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness."

In a radical suggestion, the Madras High Court has observed, "The poor, in the so-called forward communities, have been neglected, so far and no one could speak about them fearing protest voices in the name of social justice." Justice Kirubakaran was hearing a petition filed by 14 students from forward castes against allotment of MBBS seats in the open category to reserved category students on merit basis. The students called the allotment "illegal, arbitrary and violative."[1]

In the Gujarat High Court, the state government has argued that the EWS reservations will allow 'excluded' groups – in other words, upper caste communities – to "share the fruits of the policies of the government". Its arguments liberally utilised Mandal's idiom of social justice and inclusion.[2]

In 2016, the Uttarakhand Assembly passed a resolution demanding reservation for the economically weak among forward castes. Moving a resolution to this effect in the state Assembly, Chief Minister Harish Rawat said there are many forward caste families which deserve to be brought under the ambit of reservations because of their economic conditions.[3]

In the year 2015, the Rajasthan government also passed two bills giving reservation to Economically Backward Classes or EBCs, and Special Backward Classes or SBCs, in education and jobs.

In Indra Sawhney (2) v. Union of India [(2000) 1 SCC 168], the Supreme Court in Para 9 held that "once backward, always backward is not acceptable and in any case, creamy layer has no place in the reservation system." Therefore, individual financial status is a very relevant factor to recognize or to remove the backwardness of a person in his individual capacity. Naturally, there was a demand for affirmative action for those who were traditionally from forward casts but are now economically very weak, to get a level playing field in comparison with the other persons of reserved SEBCs.

It would be in nobody's interest that while supporting SEBCs with affirmative action, some other general class or caste will slip into social and educational backwardness. In reality, it is a play of wealth in the long run in any society which creates backwardness or forwardness in any caste or class. This is the basic principle behind the exclusion of creamy layers from the SEBCs from getting reservation benefits.

Therefore, the economic criterion is always a better and long-serving test to address inequality in the society. The entire doctrine of the Marxist school of thought revolves around the same for equal distribution of wealth for the creation of an egalitarian society.

It is only in India due to its unique social structure; the problem of unequal social status has been originally identified by the Constituent Assembly to bring equality in our society. But with the changing need and social structure of our society, it was really a call of the time to address the plight of the poor, who were not getting any help from the state only because of their birth into a certain caste.

If affirmative action is necessary for creating an equal society, then it should be considerate of all the members of the society and any class, or any individual should not be left unattended only because of his birth in a certain caste, which was considered as forward at one point of time. The test should always play in the present and the present status of the individual or any class becomes very relevant for this purpose. Reservation should not be allowed to become a tool to show political superiority or conflict to satisfy the historical baggage of rivalry on communal and caste levels.

So, this is a welcoming step and should be appreciated by all sections of society as it will help in equalizing our society up to a level where reservation will become no longer be necessary in our Country, where everyone shall be on a level playing field.

The Author is an Advocate practicing in the Supreme Court and the Delhi High Court.