The Supreme Court on November 7, 2022, upheld the validity of the 103rd amendment to the Constitution which introduced a 10 percent reservation for the Economically Weaker Sections (EWS) in admissions to educational institutions and government jobs. The verdict was given by the bench led by the Chief Justice of India (CJI) UU Lalit and comprised of justices Dinesh Maheshwari, Bela Trivedi, JB Pardiwala, and S Ravindra Bhat.

The verdict was passed by a 3:2 majority. Justice Maheshwari, Justice Trivedi, and Justice Pardiwala who formed the majority upheld the validity of the 10% EWS quota. The CJI and Justice Bhat had dissenting views.

The judges who upheld the 103rd amendment agreed that the amendment does not violate the basic structure of the Constitution.

“Reservation should not continue for an indefinite period of time so as to becomes a vested interest”, Justice Pardiwala stated.

“Reservation is not an end, but a means to secure social end economic justice. Reservation cannot be allowed to become a vested interest. The real solution lies in eliminating the causes that have led to the social and educational backwardness of the weaker sections. This exercise of eliminating the causes started immediately after the independence , that is almost 7 decades back and still continues. The long standing development and the spread of education have resulted in integrating the gap between the classes to a considerable extent”, Justice Pardiwala added.

Justice Pardiwala quoted Dr BR Ambedkar and said that the idea was to bring social harmony by introducing reservation for only ten years. However, it has continued past seven decades.

Justice Trivedi said that the 103rd amendment which enabled the state to make special provisions for EWS other than scheduled castes (SC), scheduled tribes (ST) and socially and educationally backward classes (SEBC) is required to be treated as affirmative action on the part of the Parliament for the benefit and betterment of the EWS category. Justice Trivedi further said that treating the EWS class of citizens as a separate class would be a reasonable classification and it cannot be called an unreasonable, or unjustifiable classification, much less a betrayal of basic features or as violative of Article 14.

“I have said what was envisioned by the framers of the Constitution and what was proposed by the Constitution Bench in 1985 and what was sought to be achieved on the completion of 50 years of the advent of the Constitution that the policy of reservation must have a time span has still not been achieved even at this stage, that is the completion of 75 years of our independence”, Justice Trivedi said.

“It cannot be said that the age old caste system of India was responsible for the origination of the reservation system in the country. It was introduced to address the historic injustice faced by persons belonging to SC, ST, and other backward classes to provide them a level playing field. However, at the end of 75 years of independence, we need to revisit the system of reservation in the larger interests of the society as a step forward towards transformative constitutionalism, Justice Trivedi added.

Justice Maheshwari said that the reservation is an instrument of affirmative action by the state to ensure an all-inclusive march towards the goal of an egalitarian society while countering inequalities.

“It is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society, but also for the inclusion of any class or section so disadvantaged as to be answering the definition of a weaker section. In this background, reservation singularly on economic background does not violate any essential feature of the Constitution and does not cause any damage to the basic structure of the constitution,” Justice Maheshwari said.

The CJI and Justice Bhat while dissenting said that although reservation on economic criteria is per se not violative, by excluding the poor among SC/ST/OBC communities from economically backward classes on the ground that they have enjoyed benefits, the 103rd Amendment practices constitutionally prohibited forms of discrimination.

“Our constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby the basic structure. This amendment is deluding us to believe that those getting social and backward class benefit is somehow better placed. This court has held that 16(1) and (4) are facets of same equality principle. The characterization of excluding the poor of SEBCs is incorrect. What is described as benefits cannot be understood as free pass, it is a compensatory mechanism to reparate…The exclusion is based on social origin which destroys the equality code”, Justice Bhat said.