Context

• As the Supreme Court verdict is awaited on the validity of 103rd constitutional amendment for granting 10% reservation to economically weaker sections (EWS), the article examines the EWS threshold criteria from the perspective of Principle of affirmative action for the poor.

About EWS

• Amendment: The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 by inserting Article 15 (6) and Article 16 (6).
  • Article 15 (6) is added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1).
  • Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.
• Applicability: The EWS provisions apply to economically weaker sections other than backward classes, schedules castes and scheduled tribes.
• Conditions for identifying EWS: The income criterione. Rs 8 lakh gross family income of beneficiary
  • Land criteria: Not more than five acres of agricultural land
  • Property area: A residential flat of not more than 1,000 square feet or residential plot of not more than 100/200 square yards in notified/non-notified municipalities.

The issues SC is examining

• A writ petition has been filed by Youth for Equality contending that 103rd amendment violates the basis structure doctrine as follows:
• Covering economic deprivation: Whether the EWS Act is said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria.
  • Earlier government notification providing 10% reservation to weaker economic sections of society was struck down in Indra Sawhney v. UOI in 1992.
• Breach State’s limit: Whether this 103^rd amendment is valid constitutionally by permitting the state to make special provisions in relation to admission to private unaided institutions.
• Left-out bias: Whether the EWS criteria violate the constitution provisions by “excluding the SEBCs (Socially and Educationally Backward Classes)/ OBCs (Other Backward Classes)/ SCs (Scheduled Castes)/ STs (Scheduled Tribes) from the scope of EWS reservation.

State’s justification

• The government argues that the 103rd Constitution amendment does not breach the basic structure of the Constitution owing to following reasons:
  • EWS quota does not disturb the reservation given to other castes like SCs, STs and OBCs
  • The State has the power to take affirmative action to elevate the poor among the general category

Arguments against the EWS reservation

• Historical injustices: The quotas in the Constitution were envisaged as a means to ensure adequate representation to those historically disadvantaged because of their caste identity, and not as a poverty alleviation scheme.
• Perpetuity: As per critics, caste and its oppressions are permanent and passed down generations, while poverty can be temporary.
• Against constitutional provisions: The 10 per cent EWS quota is in addition to the 50 per cent reservation for the SCs, STs, and OBCs which exceeds the reservation limit set by apex court in the Indra Sawhney Judgment 1992.
• Deceitful act: The citizens who are educationally and socially backward as well as SCs and STs cannot take the benefit of reservation even if they fall within the economically weaker sections.

Examining EWS income threshold scenario

• Fair picture: If the quota is 10%, the line should be so determined that it covers only the poorest 10% of the population.
• Wide coverage range: The EWS quota is extended to persons whose family has a gross annual income below Rs 8 lakh, i.e. a family having a monthly income of about Rs 66,000 is eligible. However, a family at this income threshold would actually be within the top 10%.
• Demonstration: The 2011 Census had 248. 8 million households for a population of a little over 1. 2 billion, which translates to an average household size of 5.
  • An annual household income of Rs 8 lakh would mean a per person income of a little over Rs 13,000 per month assuming a family of five.
  • However, as per latest NSSO survey of 2011-12, the top-most income slice is of over Rs 2,625 per person per month in rural areas and Rs 6,015 in urban areas, both well under the Rs 8 lakh mark. Yet this top slice has a mere 5% of the households in it.
• Income tax data: As per official data, for 2018-19, just over 28 million individuals declared gross incomes of over Rs 4 lakh.
  • Assuming two such individuals in each family on average, would mean about 1. 4 crore families at best would be over the Rs 8 lakh cut-off which translates to roughly 5% of Indian families.
• Not-so-poor: Incidentally, government data shows average per capita income of about Rs 1. 3 lakh in 2019-20, the year EWS quota came into being. It translates to Rs 6. 5 lakh for a family of five.
  • Thus, a household that gets Rs 8 lakh a year would be significantly above the national average, certainly not poor.

Examining other EWS thresholds

• Land holding threshold : EWS Act 2019 provides that a family should not own or possess agricultural land of size 5 acres or above to be classified under its statute.
  • But, the Agricultural Census for 2015-16 revealed that 86. 2% of all land holdings in India were just under five acres in size.
• Residential flat area: To be classified under EWS, a family should not own or possess a residential flat of area 1000 sq.feet or more.
  • The NSSO report on housing conditions in 2012 shows that even the richest 20% of the population had houses with an average floor area of almost exactly 500 square feet, barely half the ceiling being imposed. Thus, here too at least 80% and more likely well over 90% would be eligible under EWS quota.

Other limitations of EWS classification criteria

• Not comprehensive: The EWS criteria explicitly exclude those covered by the quotas for socially backward groups like the SC, ST and OBCs.
  • Anomalous situation: The argument is that these sections already have quotas but with this argument the most deprived (both from historically disadvantaged groups and are poor) will have to compete with people richer than them to access the quota while the poor from the upper caste will need to compete only within themselves.

Conclusion

• A quota for the poor makes sense, but one that defines the poor more rigorously than the current criteria. This implies 10% quota within quota for SC, ST, OBC and ‘open’ categories.