Deviating from the aim of reservation

Reservation for EWS would end up benefiting those having income closer to the Rs 8 lakh limit

Reservation in India has always been considered as a powerful tool to provide power in form of representation to the marginalised caste groups which include Schedule Cast (SC), Schedule Tribe (ST) and the Other Backward Classes (OBC) who have suffered historic injustice because of the caste hierarchy that has persisted in the Indian society. However, in January 2019, the Central Government passed the 103rd Constitutional amendment which added Article 15(6) and Article 16(6) to the Constitution of India 1950.

It allowed the state to make “any special provision for the advancement of any economically weaker sections (EWS) of citizens” other than the classes mentioned in Article 15 (4), 15(5), 16(4) and 16(5), which essentially excluded ST, SC and OBC’s from claiming reservation as EWS. Article 15(6) allowed the State to make special provision for EWS with respect to admission to educational institutions and Article 16(6) provided reservation in appointments and post for EWS.

As per Robert Hale, law plays an important role in the distribution of resources among social classes. In every distributive action, there exists a group that has a coercive capacity that enables it to exercise withholding power over every action that is taken.

Such a group always has higher bargaining and simply leaves a volitional choice for the remaining group, which means their choice is limited and decided by the group having higher withholding power. This results in an asymmetry in the structure of mutual coercion where irrespective of whether you keep two groups at the same position they will end up having unequal power and imbalanced distribution of resources.

Such asymmetry in the distribution of resources is very evident in the Indian context wherein the rigid caste structure has always discriminated against the marginalised caste groups which have led to unequal distribution of resources.

As per the amendment, the EWS are entitled to 10% reservation in educational institutions and government jobs. The criteria for determining the EWS is that the family must have an annual gross income below 8 lakh rupees, the agriculture land ownership must be less than five acres and the area of the house must not be above 1,000 sqft.

As per the Union Cabinet note this criteria was set based on the report of the expert committee in 1983 that decided the fixed limit for identifying creamy layer among the Socially Backward Classes and is presently the income limit for OBCs.

However, it is important to note that this limit was set up for OBCs who as a collective group were entitled to the reservation because of their social and economic backwardness and then Rs 8 lakh income limit was carved out as a creamy layer because they were considered to have overcome economic backwardness, but in the present case, reservation is claimed solely on economic backwardness basis and the general category does not constitute a class collectively entitled to reservation, therefore, an attempt to draw parity between economically disadvantaged sections and socially discriminated classes is completely misleading.

In addition to this, the official documents have cited 2011-12 NSSO survey stating that the survey found out that people spending less than average per capita monthly expenditure belong not only to SC, ST and OBC categories, but also include the general category. Even if this survey is considered, it does not explain why Rs 8 lakh was chosen as the limit in the case of the general category.

The main problem with the Rs 8 lakh limit is that it would cover almost 90% of the general category which in a way deviate from the very object of affirmative action, which is the upliftment of the economically weaker sections and not almost the entire population. Because of the Rs 8 lakh income cap, the high-income households would be the ones receiving the highest benefits in both education/employment as compared to the low-income groups.

According to the Human Development Survey conducted in 2012, it was highlighted how there exists unequal opportunities in education and employment across caste and classes due to economic and social backwardness. A low-income household chance of getting opportunities through reservation is 30% less than that of high-income households. It is ironic how the government has set Rs 2.5 lakh income per annum as the limit for paying income tax and consider this limit high enough to make people eligible to pay tax and on the other side considers Rs 8 lakh family income as economic backwardness.

As per the income tax returns data from 2019-20, only 50 lakh people declared their income to be above 9.5 lakh which constitutes approximately, 1.5% of the country’s population. Although the precise number of people earning less than Rs 8 lakh is not known, the percentage cannot be less than 90%. In such a case, the cap of Rs 8 lakh is too broad and unfair for the people at the lower strata of Rs 8 lakh income cap among the general category. Accordingly, it is concluded that EWS would end up benefitting those having income closer to the Rs 8 lakh limit amongst the EWS and would result in increase in inequality.

(The writer is with National Law School India University)