On 7 November, a Supreme Court bench upheld the provision of reservation for the Economically Weaker Sections among the upper castes in education and employment in a majority decision. UU Lalit, who was then chief justice, and the supreme court judge Ravindra Bhat dissented on the exclusion of the Scheduled Caste, Scheduled Tribes and Other Backward Class communities from the EWS quota. However, they concurred with the other three judges—JB Pardiwala, Bela Trivedi and Dinesh Maheshwari—on an economic basis being a valid ground for reservation. Four of the judges are upper caste Hindus while Pardiwala is a Parsi.
Several legal experts and leaders of political parties I spoke to said that the judgement ignored key aspects of the Constitution as well as legal precedents laid down by the Supreme Court. The bench also made comments unrelated to the EWS case that could further threaten the representation of Bahujan communities in education, employment and elected offices. These comments, referred to as obiter dictum, are not legally binding but may suggest the biases of a judge. Previous comments by Pardiwala indicates that he has taken strident positions against representation for marginalised communities in the past. Four legal experts I spoke to argued that, to them, it put a question mark on the bench selection for the EWS case.
The petitioners laid out three major contentions against the EWS quota. The first was that any reservation based on an economic criteria must be considered unconstitutional since the constitution only allowed for affirmative action on the basis of social and educational backwardness. Second, the EWS quota discriminates against the economically weaker sections of the SC, ST and OBC communities by excluding them from the ten percent EWS quota. Third, the EWS quota violates the 50 percent ceiling which has been the guiding principle for the Supreme Court since the 1992 Indra Sawhney judgment.
The ruling that the EWS quota is not unconstitutional has found little purchase with Bahujan leaders around the country. Prakash Ambedkar, the president of the Vanchit Bahujan Aghadi, called the judgment “intellectually corrupt.” He argued on Twitter that the Parliament had power to make “addition, variation and deletion” to only “already existing social principles.” Since “a new principle [economic basis]” which was not part of the constitution has been introduced by the government, he wrote, the supreme court “must specify the source from where Parliament derives this power.” He tweeted, “It [judgment] can’t be sustained under any circumstances. Further, the condition that those availing, social reservation cannot avail economic reservation is in fact the introduction of Manusmriti by backdoor. It has consequently compartmentalised society on the basis of social and economic reservation.” This compartmentalisation, he added, has “damaged” and “destroyed” the “structure of the Constitution.”
MK Stalin, Tamil Nadu’s chief minister and the president of the Dravida Munnetra Kazhagam, which is also one of the petitioners in the case, called the verdict a “setback for our century-long crusade for social justice.” Thol Thirumavalavan, the president of the Viduthalai Chiruthaigal Katchi, another petitioner in the case, said the verdict “is against the principle of social justice and the fundamentals of the Constitution.” D Raja, the general secretary to the Communist Party of India, wrote on Twitter that the, “SC judgment on EWS has raised critical questions and must be referred to a larger bench. Reservation is NOT a poverty alleviation program but affirmative action for historically deprived sections.”