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Former Supreme Court judge Justice Rohinton Nariman delivered a scathing critique of the recent EWS (Economically Weaker Sections) reservation judgment, arguing that it fundamentally contradicts the core principles of the Indian Constitution. His critique, delivered during the Justice VR Krishna Iyer Memorial Lecture, centers on the 103rd Constitutional Amendment, which introduced a 10% reservation for EWS in education and government jobs. Nariman asserts that the judgment upholding this amendment is flawed both constitutionally and on principle, directly challenging the majority opinion of the five-judge Supreme Court bench that heard the Janhit Abhiyan case.
The heart of Nariman's argument lies in the contention that the EWS reservation, while ostensibly aiming to uplift the economically disadvantaged, fundamentally undermines Article 46 of the Constitution, which mandates the state to promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and Other Backward Classes (OBCs). He forcefully argues that by excluding these very groups from the benefits of EWS reservation, the amendment effectively reverses the original intent of affirmative action. This exclusion, he points out, directly clashes with Articles 15(1) and 16(1), which guarantee equality of opportunity, and Article 46, whose focus on the upliftment of marginalized communities is negated by the EWS reservation's structure. The minority opinion in the Janhit Abhiyan case, presented by Justice Ravindra Bhat, correctly identified these constitutional inconsistencies, a point which Justice Nariman explicitly endorses.
Nariman emphasizes the historical context of reservation policies in India. He underscores the principle that reservations are designed to rectify historical injustices inflicted upon specific communities, namely SCs, STs, and OBCs. The inclusion of upper-caste individuals, Muslims, and Christians within the EWS quota, he argues, fundamentally contradicts this premise. These groups have not historically suffered the systemic discrimination that has necessitated affirmative action. The amendment, in his view, has therefore achieved the exact opposite of its intended aim. Instead of targeting those who truly need the aid, it has extended benefits to groups who have not experienced such systematic disadvantage, a blatant disregard for the intent behind the constitutional provisions regarding reservations.
A further point of contention for Justice Nariman lies in the court’s handling of the 50% ceiling limit on reservations, established in Article 16(4)(B) of the Constitution. The majority judgment in the Janhit Abhiyan case ignored this constitutional provision, resulting in a total reservation exceeding the 50% cap. Justice Nariman labels this a serious oversight, deeming the judgment ‘per incuriam’ because of this significant legal omission. He suggests that a more judicious approach would have involved harmonizing Articles 16(4)(B) and 16(6), possibly by reducing existing quotas for other categories to accommodate the EWS quota while remaining within the 50% limit. This, he argues, would have addressed the concerns about economic disparity without directly contradicting the fundamental principles of reservation policy as enshrined in the Constitution.
Justice Nariman’s critique directly challenges the Supreme Court’s judgment, calling into question the legitimacy and constitutionality of the 103rd Constitutional Amendment. His analysis is deeply rooted in legal precedent, constitutional principles, and an understanding of the historical context of reservation policies in India. By highlighting the apparent contradictions and omissions within the majority opinion, he offers a powerful counter-argument that raises significant concerns about the potential long-term consequences of the EWS reservation scheme. He ultimately concludes that both the majority and minority opinions in the Janhit Abhiyan case fundamentally misunderstood the concept of economic reservation and its interaction with the existing framework of affirmative action.