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The EWS Decision and the Pandora’s Box


The recent decision of the Supreme Court of India upholding the constitutional validity of the law granting 10% reservation to Economically Weaker Sections (EWS) of the upper castes has sparked heated debate. In this context, the article sheds light on previous Supreme Court rulings on reservation and their ramifications in subsequent events across the country, as well as the need to develop a holistic and new criterion for granting reservation.


GS Paper – 2: Indian ConstitutionJudgements & CasesGovernment Policies & Interventions

Mains Question

What is the 103rd Constitution Amendment Act? What are the recommendations given by the committee to revisit the criteria for determining EWS? (150 Words)

About Economically Weaker Sections (EWS) quota

  • Description: The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 for economic reservation in jobs and admissions to educational institutes for Economically Weaker Sections (EWS).
    • It was passed to help the poor who were not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBC).
    • It enables both the Centre and the States to make reservations for society’s EWS.
  • Recent court decision: Reservations for EWS do not violate the basic structure due to the Mandal Commission’s 50% ceiling limit because the ceiling limit is not inflexible.
  • The Supreme Court’s 50% rule, established in the Indira Sawhney decision in 1992, was “not inflexible.”
    • Furthermore, it only applied to the SC/ST/SEBC/OBC communities, not the general category.
    • The SC/ST/SEBC/OBC communities, for whom special provisions have already been made in Articles 15(4), 15(5), and 16(4), constitute a distinct category distinct from the general or unreserved category.

Reservation location

  • Background: To compensate for millennia of discrimination based on birth, the Indian constitution guaranteed SCs and STs not only equality of opportunity but also outcomes, with reserved seats in educational institutions, government jobs, and even seats in Parliament and State Assemblies.
  • Caste and no class criterion: Reservations were granted to groups listed in the Constitution’s Schedules based on their caste o
  • For example, the addition of the OBC category had no effect on the basis on which people were benefited; despite the “C” in “OBC” referring to “classes,” the OBC lists included castes and sub-castes.
  • National unrest: For example, the Meenas and Gujjars in Rajasthan competing to be deemed more backward than each other, and similar agitations by Patels in Gujarat and Marathas in Maharashtra.

Scrapping of Jat reservation in 2015

  • Central notification: In 2015, the Supreme Court (SC) overturned the Central Government’s decision to include Jats among the Other Backward Classes (OBC).
  • Court rationale: The Supreme Court stated that caste cannot be the sole determinant of backwardness, arguing that Jats do not belong to the socioeconomically backward class.
    • The court also stated that the state should not rely on the “perception of the self-proclaimed socially backward class” to determine whether they deserved to be classified as “less fortunate.”
    • It also stated that “grave and important” decisions under Articles 14 and 16 of the Constitution must be based on “contemporaneous (existing) inputs,” which were not available.
  • The court concluded that the issue was not whether reservations were a tool for addressing millennia of caste discrimination or an instrument of affirmative action, but rather how to determine who deserved consideration for reservation benefits.
  • A new perspective: The Supreme Court ruled that “caste” and “historical injustice” cannot blind a state in granting backward status to a community, and that new formulae for determining backwardness must be developed.

Identifying “social backwardness”

  • The most critical observations made by the Supreme Court in the Jat reservation case were as follows:
    • It stated that neither educational nor economic backwardness, as mentioned by the government, were sufficient, though both may contribute to social backwardness.
    • According to the Court, social backwardness “is a distinct concept” that emerges from a variety of circumstances ranging from social and cultural to economic, educational, and even political.

‘Open the gates for the most vulnerable.’

  • Discourage caste-based reservations: While acknowledging caste as a historical source of injustice in the country, the Supreme Court emphasised that it could not be the sole determinant of backwardness and that the State should identify emerging forms of backwardness in an evolving society.
  • New determinants of backwardness: In order to move away from a caste-centric definition of backwardness, new practises, methods, and yardsticks must be continuously evolved.
  • Identifying genuine categories: The court held that the Constitution’s affirmative action principle obligated the state to “reach out to the most deserving” class, and that gates would be opened only to allow entry of the most distressed.
    • Any other inclusions would be a serious violation of the State’s constitutional duty,” the Court advised.
    • The court warned that a palliative policy based solely on historical injustice would result in a failure to protect the most deserving backward class of citizens.

Solicit new methods and yardsticks.

  • Class as a new factor: The Court acknowledged that caste may be a prominent factor for ‘easy determination of backwardness,’ but added that class may also be a factor, because a class is “an identifiable section of society,” but it may not be sufficient to justify reservation.
  • Transgender quotas: The court praised itself for identifying a type of social backwardness unrelated to caste or class, citing its decision to recognise transgender people as a distinct community with justiciable rights and eligibility for government benefits.
  • A fresh perspective: The transgender quota was philosophically fascinating. The most contentious aspect of the Court’s decision, however, was its assertion that caste and the need to right historical wrongs are no longer sufficient grounds for government benefits.
  • The judgement insisted on the development of new methods for identifying a group’s backwardness.
  • No looking back: Using a hazy distinction between “past” and “emerging” forms of backwardness, the Court advanced the presumption of “progressive advancement of all citizens on all fronts, i.e., social, economic, and educational,” rendering history insufficient as a guide.

Identifying genuine reservation recipients

  • The Supreme Court requested that the government provide a “matrix” to justify reservations, which would include a list of differently weighted categories such as income, family situation, disability, education level, and so on, in addition to birth in a particular caste, which would serve as the foundation for such a matrix.
  • But, not wanting to open Pandora’s box, the government never returned with one, and the Court did not renew or repeat its demand either.
  • The EWS decision has cast a shadow over the Supreme Court, but her infamous box may have already been opened by this dramatic and 2015 decision.


December 2023