EWS Reservations Upheld: Economic Criteria and an Additional 10% Quota Do Not Breach the Constitution’s Basic Structure — A Commentary on Janhit Abhiyan v. Union of India

Introduction

The Supreme Court’s decision in Janhit Abhiyan v. Union of India resolves a constitutional challenge to the 103rd Amendment Act, 2019, which introduced Articles 15(6) and 16(6), authorising up to 10% reservation for Economically Weaker Sections (EWS) of citizens other than those covered by Articles 15(4), 15(5), and 16(4) (i.e., SCs, STs, and non-creamy layer OBCs). The challenge invoked the Basic Structure Doctrine, asserting that “economic criteria” is unconstitutional as a sole basis for reservation and that the exclusion of SC/ST/OBCs violates the Equality Code. It also questioned whether breaching the 50% ceiling renders the amendment unconstitutional and whether EWS quotas can extend to private unaided institutions.

In a set of four judgments, the Court’s majority (Maheshwari, Trivedi & Pardiwala, JJ.) upheld the amendment in full; the minority (Bhat, J. for himself and the Chief Justice) struck down the amendment. The decision resets the reservation discourse by expressly recognising “economic deprivation” as a constitutionally valid axis for affirmative action, while also drawing a sharp and enduring debate on the constitutional core of equality and fraternity.

Summary of the Judgment

Issues Framed

1. Whether the 103rd Amendment (permitting special provisions, including reservation, based on economic criteria) breaches the basic structure?
2. Whether EWS reservation can extend to private unaided institutions without violating the basic structure?
3. Whether excluding SCs/STs/OBCs from EWS reservation violates the Equality Code/basic structure?
4. Whether the 10% EWS quota breaches the 50% ceiling in a manner that damages the basic structure?

Majority (Maheshwari, Trivedi & Pardiwala, JJ.)

• Economic Criteria Valid: Economic deprivation is a constitutionally cognisable basis to identify the beneficiaries of special provisions. It is aligned with the Preamble and Directive Principles (Arts. 38, 39, 46) and does not, by itself, violate the basic structure.
• Exclusion Clause (“other than”): Excluding SCs, STs and OBCs from EWS does not abrogate the Equality Code. These groups already benefit from reservation under Arts. 15(4), 15(5), and 16(4); EWS targets a distinct class that was previously outside reservation frameworks.
• 50% Ceiling: The 50% cap is not an inviolable, inflexible rule and, in any case, applies to reservations under Arts. 15(4), 15(5), 16(4). The additional 10% EWS quota does not collapse the equality framework nor damage the basic structure.
• Private Unaided Institutions: EWS reservation can be applied to private unaided institutions (following Pramati and Society for Unaided Schools), as it fosters substantive equality without abrogating fundamental freedoms.
• Nature of Amendment: Articles 15(6) and 16(6) are “enabling provisions”. The Basic Structure Doctrine does not impugn such provisions unless they fundamentally alter constitutional identity—which they do not.

Minority (Bhat, J. for himself and the Chief Justice)

• Economic Criteria: Agree that economic deprivation alone can ground special provisions under Article 15(6). However, as to Article 16(6), reservations in public employment are about representation of backward classes; hence, economic-only reservations are not permitted under Article 16.
• Exclusion Clause Unconstitutional: The phrase “other than” excludes the poorest SC/ST/OBCs from EWS solely because they already receive other reservations. This violates the non-discrimination and non-exclusion facets of the Equality Code, which are part of the basic structure (also tied to the constitutional value of fraternity).
• 50% Ceiling: Cautioned that breaching the 50% cap risks transforming equality into a right to reservation and foreshadowed conflicts with pending Ninth Schedule litigations.
• Reading Down Not Possible: “Other than” cannot be read as “in addition to” since that would contradict the clear legislative intent of exclusion; reading down cannot reverse clear constitutional text.

Analysis

Precedents Cited and How They Shaped the Outcome

Basic Structure Doctrine and its Contours

• Kesavananda Bharati v. State of Kerala: Parliament’s amending power is wide but cannot damage the Constitution’s basic structure/identity. Majority and dissent cited its “identity” test heavily.
• Indira Nehru Gandhi v. Raj Narain; Minerva Mills v. Union of India; L. Chandra Kumar v. Union of India; P. Sambamurthy; Waman Rao: These decisions clarified that core values—equality, rule of law, judicial review, separation of powers, democracy, federalism—form the Constitution’s basic structure and circumscribe the amending power.
• M. Nagaraj v. Union of India: Equality has facets; formal equality (in law) and proportional (egalitarian) equality (in fact). The Basic Structure Doctrine involves an “identity” and “width” test; reservations in promotion are valid if they meet data-based constraints. The majority leaned on Nagaraj’s methodology and flexibility.

Equality and Reservations

• E.P. Royappa, Maganlal Chhaganlal, Minerva Mills: Equality is antithetical to arbitrariness; the Constitution aspires to substantive equality—bridging historical and structural inequalities.
• M.R. Balaji, R. Chitralekha, Janki Prasad Parimoo, N.M. Thomas: Basis, methods, and limits of identifying backwardness; the centrality of social and educational markers in Articles 15(4)/16(4).
• Indra Sawhney (Mandal): Economic criteria cannot be the sole basis for backward-class reservation (Arts. 15(4)/16(4)); creamy layer exclusion; 50% ceiling; positive discrimination to secure adequate representation of historically oppressed groups.

Private Institutions and Equality

• Society for Unaided Private Schools of Rajasthan, Pramati Trust: Upheld RTE Act’s 25% quota for disadvantaged/EWS in private unaided schools; affirmed that equality goals can shape obligations for private actors in education.
• T.M.A. Pai (11-Judge): Recognised Article 19(1)(g) right to establish educational institutions but allowed regulatory obligations in public interest.

Legal Reasoning of the Majority

• Economic basis as a valid axis for affirmative action: The Preamble’s “Justice—social, economic and political” and Directive Principles mandate the State to redress systemic poverty, making economic criteria a constitutional ground to classify beneficiaries.
• Exclusion justified: EWS targets citizens outside the protective umbrella of Articles 15(4)/16(4). Those already covered retain their substantive benefits; the EWS quota avoids “double counting” and preserves balance among competing claims.
• 50% cap not sacrosanct: The cap developed judicially for Art. 16(4) and Art. 15(4)/(5) reservations; EWS is a distinct vertical quota under Arts. 15(6)/16(6). In extraordinary contexts—and EWS is one—the cap is flexible.
• Unaided institutions: Reservations for EWS in unaided institutions continue the constitutional trajectory of Pramati and Society for Unaided Schools, and promote the integrated equality framework.
• No breach of basic structure: The amendment is enabling; it neither annuls equality nor curtails judicial review or rule of law; instead, it furthers socio-economic equality and distributive justice.

Legal Reasoning of the Minority (Bhat, J., for himself and the Chief Justice)

• Equality Code as Basic Structure: The non-discrimination and non-exclusion principles under Articles 14–17 and fraternity in the Preamble form an indivisible equality framework. Excluding the poorest SC/ST/OBCs from EWS—while including equally poor forward classes—violates this core.
• Article 16 and representation: Reservations in public employment exist to ensure representation of historically excluded communities. EWS quota (based only on poverty) breaks the link between reservation and representation, making Article 16(6) invalid.
• Reading down impermissible: The phrase “other than” is clear and intentional. The Court cannot rewrite the constitutional text to include SC/ST/OBCs in EWS.
• 50% cap caution: The Court should be wary of the consequences of breaching the cap; it risks unsettling the carefully constructed equality framework and impacts pending Ninth Schedule litigations.

Impact and Future Trajectory

• Constitutional architecture: The judgment recognises economic deprivation as a legitimate, stand-alone constitutional ground for affirmative action. This is a major doctrinal advance.
• Reservation arithmetic: EWS quota is additional (over and above social justice reservations). The ruling clarifies that the 50% cap is not inviolable—though confined, for now, to EWS reservations.
• Exclusion logic stands—debate continues: The majority’s acceptance of exclusion of SC/ST/OBCs from EWS will likely shape policy; however, the minority’s rich articulation of the Equality Code and fraternity as basic structure principles supplies conceptual bases for future constitutional discourse.
• Private education sector: EWS reservations can extend to private unaided institutions—cementing the trend that education is a public good where distributive justice can shape obligations.
• Implementation concerns: States must craft precise criteria for identifying “EWS” (income, family assets, landholdings, etc.). Expect litigation around thresholds, verification, overlap with other welfare schemes, and interface with open-category competition.
• Pending and connected litigation: The Court’s cautious note about the 50% cap suggests that Ninth Schedule and state-level policies exceeding the cap remain a live area for constitutional scrutiny.

Complex Concepts Simplified

1) What is the Basic Structure Doctrine?

Parliament can amend the Constitution (Article 368) but cannot alter its basic structure—core features like democracy, rule of law, judicial review, separation of powers, equality, and federalism. The Court asks: does the amendment change the Constitution’s identity or damage its core principles?

2) The Equality Code

A cluster of provisions (Arts. 14–18, 29(2), 325) forming the constitutional guarantee against discrimination. It includes:

• Formal Equality (Art. 14): Equality before law, equal protection of laws (no arbitrariness).
• Non-discrimination (Art. 15): No discrimination on grounds of religion, race, caste, sex, place of birth; allows special provisions for women, children, SEBCs, SCs/STs and now EWS.
• Equal Opportunity (Art. 16): Equal opportunity in public employment; reservation for “backward classes” not adequately represented; EWS now added.
• Untouchability (Art. 17): Abolished, with penal consequences.

3) Vertical v. Horizontal Reservations

• Vertical: Separate “silos” like SC, ST, OBC, EWS (mutually exclusive categories); candidates generally cannot “migrate” across verticals.
• Horizontal: Cut across verticals (e.g., women, persons with disabilities) and are adjusted within each vertical category.

4) The 50% Cap

Judicially evolved in Indra Sawhney for reservations under Articles 15(4)/16(4). The majority here holds it is not inviolable and, in any case, does not apply to EWS (Arts. 15(6)/16(6)). The dissent sounds caution.

5) Why Exclusion Became Contentious

“Other than” (in Arts. 15(6)/16(6)) means SC/ST/OBCs cannot avail EWS quota even if they meet the economic criteria. Majority says: they already have reservation elsewhere; EWS targets those left out. Minority says: this constitutionally excludes the poorest among SC/ST/OBCs, violating the non-exclusion principle at the heart of equality and fraternity.

Conclusion

Janhit Abhiyan radically enlarges India’s equality jurisprudence by constitutionalising “economic criteria” as a standalone axis for affirmative action, while maintaining that EWS reservation is additional and distinct from social justice reservations. The majority reads the Equality Code harmoniously with the Preamble and Directive Principles, treating the 103rd Amendment as a legitimate calibration for distributive justice. The minority, however, insists that exclusion of SC/ST/OBCs erases the non-discrimination and non-exclusion core of the Equality Code and violates fraternity—values they consider unamendable.

Practically, the judgment empowers the State to address poverty with an EWS reservation paradigm across public education, public employment, and private unaided institutions. Normatively, it engraves a fault line that will animate constitutional debates: whether affirmative action aimed at poverty can exclude the poorest among historically oppressed groups without fracturing the Constitution’s identity. The Court has settled the law for now; the conversation on equality, fraternity, and representation continues.

Key Takeaways

• The 103rd Amendment survives basic structure scrutiny: economic criteria are valid for affirmative action.
• EWS (up to 10%) is an additional vertical reservation; it does not count towards the 50% cap applicable to SEBC/SC/ST reservations.
• Exclusion of SC/ST/OBCs from EWS stands (majority); viewed as unconstitutional in dissent.
• EWS may be applied to private unaided institutions.
• States/Union should craft precise, transparent EWS identification norms with robust verification to avoid litigation and ensure credibility.