Supreme Court’s Live Stream – Sunlight As Disinfectant

They say sunlight is the best disinfectant. With the live streaming of constitutional cases (Challenge to Economically Weaker Section Quota, Shiv Sena Defection case and Challenge to All India Bar exam) in the Supreme Court, this will culminate into reality. This has been a long time coming. Live streaming of parliament happened as early as 2006 (Lok Sabha) and 2011 (Rajya Sabha). Critics might say that judges and lawyers will play to the gallery, but I am sure this transparency will do more good than bad. 

A Constitution bench of the Supreme Court is hearing the challenge to the reservation and criteria for the Economically Weaker Section (EWS). When the court expressed doubts about the rationality of an 8 lakh income criteria, the government had no answers to defend the same.

Let’s take you back to January 2019 when the 124th Constitutional Amendment Bill was introduced in parliament. It was passed in the Lok Sabha as well as the Rajya Sabha and became what we know as the 103rd Constitutional Amendment Act, 2019. The Act provides for a 10% reservation for the EWS belonging to the general category in education and jobs.

The precedents for scrutiny and review of bills have been used sparingly of late. Only 13% of all Bills were sent to parliamentary committees in the 17th Lok Sabha (till 2021), down from 60% in the 14th Lok Sabha (2004-09). This Bill too was bulldozed, and was not scrutinised by either a standing committee or a select committee of parliament.

The Bill left the criteria for qualifying as EWS to the discretion of the government, entitling it to receive potential political benefits of the reservation. An official memorandum was released by the Union Government three days after receiving the President’s assent to the Bill, mentioning the criterion for applying under EWS reservation would be that the gross annual family income should not exceed ₹ 8 lakh. The criterion was pulled out of thin air in a matter of three days.

The Oxfam Report on Inequality suggests that the top 10% of the Indian population holds 77% of the total national wealth. When basic needs become inaccessible to the poorest of the population, the move to provide reservations to the economically backward becomes essential. Having said this, it is imperative that the other reserved categories are not excluded from the benefit of this policy. It is plausible to assume that other reserved categories might also meet the said criteria. But only people belonging to the general category can avail the reservation, making it exclusionary for the most needy. Moreover, the last census was conducted over a decade ago, and a decision as huge as this cannot be based on a population drawn from ten-year-old data. 

It can be argued that the government’s definition of EWS is ripped off from the criteria for defining the creamy layer for Other Backward Classes (OBCs), which also stands at ₹ 8 lakh. However, it is a grave error to equate the two classes. OBCs comprise those who suffer from social and educational backwardness on account of their birth. They also often lie at the intersection of class and caste deprivations. This limits their ability to access opportunities for social and economic mobility due to intergenerational transmission of social disadvantages. The Union Government is yet to explain how the amount of ₹ 8 lakh, which is way above the average household income of India, has been decided as the criteria for EWS reservation. 

Even if the government is able to provide an explanation for this number, it remains unclear how reservations for EWS reflect the current definition, which is that of a socially and economically emancipatory tool of development. That is why critics would call it a glorified welfare scheme.

The Major Sinho Commission, which called for reservations for EWS, never suggested the ₹ 8 lakh figure. In fact, it recommended that the criteria be fixed according to tax brackets. Secondly, the Commission’s report has a limited view of the problem as it mostly revolves around government representations and not public surveys and data. The report suggested that the individuals entitled to such benefits should possess “economic backwardness compounded with their social and educational backwardness”. When this legislation was finally challenged in the court and the criteria questioned, the government did not justify the manner of its implementation, in line with the full depth of the recommendations of the Commission. This makes the law short-sighted, ambiguous and exclusionary for the most deprived.

Here are five questions that need to be answered.

1) What is the government’s rationale for setting out the current criteria for defining EWS, and why were existing mechanisms for scrutiny and review not availed while doing the same?

2) Why are other reserved categories excluded from availing reservations under EWS if they qualify under the criteria set out by the government?

3) How can the criteria for EWS be equated with that of the creamy layer for OBCs?

4) How does having a household income of ₹ 8 lakh or less limit an individual’s ability to access opportunities for upward social and economic mobility?

5) Why were the full range of recommendations made by the Major Sinho Commission, especially with regard to tax brackets and social and educational backwardness, not considered while setting the criteria for EWS?

Surely, these questions will be answered when proceedings from the Supreme Court are live streamed in the weeks and months to come.

[This article appeared on | Friday, September 30, 2022]