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Will Kerala’s EWS Quota Hurt Backward Communities Even Further?

Reserving jobs for the economically weaker section (EWS) in forward communities Kerala is not going to help achieve social justice, a prominent Dalit thinker has said.

“On the ground in Kerala, agreeing to reserve seats for the EWS in forward communities in jobs and education in Kerala is going to kill opportunities of scheduled caste, scheduled tribe, and other backward class aspirants,” Sunny M Kapikkad told The Lede.

On October 21, the Kerala Cabinet had amended the reservation rules in the state and Subordinate Services Rules by reserving 10% of government appointments in Kerala for EWS in the general category who are not eligible for any reservation.

And on Monday, the Kerala Public service commission formally adopted the state government order introducing a 10% job reservation for candidates belonging to EWS who are not eligible for caste or community-based reservations for securing government jobs.

“A case is still on in the Supreme Court regarding the EWS reservation. Additionally, the central government in January, had told the Supreme Court that the decision to implement the 10% quota for the EWS in states is a call that rests with the individual regional legislatures. But the Kerala government has already accepted this unjustifiable reform,” Sunny said.

Still In Court

On 09 January 2019, the Indian parliament enacted the Constitution (103rd) Act, 2019 enabling states to make reservations in higher education and matters of public employment based on economic criteria alone.

The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). It received presidential assent on 12 January 2019, and was published in the Gazette on the same day.

The Amendment under Article 15(6) enables the state to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions.

It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under Article 30(1).

It further states that the upper limit of EWS reservations will be 10% and this ceiling is independent of ceilings on existing reservations.

Meanwhile, Article 16(6) enables the state to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations.

However, around 20 petitions have been filed, challenging the Constitutional validity of the 103rd Amendment. After hearing the case for five days in 2019, a three-judge bench consisting of CJI Bobde, and Justices Reddy and Gavai passed a unanimous order on 06 August 2020 referring the case to a five-judge bench.

Interestingly, a PIB statement says that the Central Ministry of Social Justice & Empowerment has allotted an amount of Rs 4315.15 crore for the creation of additional 2,14,766 seats (1,18,983 additional seats during 2019-20 and 9783 additional seats during 2020-21) in 158 Central Educational Institutions.

According to the Act, a person belonging to any forward community can avail of EWS reservation, if (s)he has annual household income below Rs 8 lakh, agriculture land below 5 acres, a residential house below 1000 sq ft, residential plot below 100 yards in notified municipality and residential plot below 200 yards in the non-notified municipality area.

However, in Kerala, a person belonging to any forward community can avail of EWS reservation, if annual family income is below Rs 4 lakh; if (s)he does not have more than 2.5 acres of land in Panchayats, less than 75 cents in Municipalities and less than 50 cents in Corporation limits.

Additionally, people owning house plots below 20 cents in Municipal Corporations limits and less than 15 cents in City Corporation limits will be eligible.

“What does the Kerala government want to say? Does it want to say that a person who is having 2.4 acre land in Panchayat or who owns a 14 cents housing plot in the city Corporation limits is economically weaker and deserves reservation? Isn’t it?” Sunny asked.

Violation Of Equality

Meanwhile, talking to The Lede, Bineesh BS, a legal expert who is keenly following the developments on this front, said that as far as his understanding goes, the 103rd Amendment violates the basic features of the Constitution and violates the fundamental right to equality under Article 14.

“Reservations cannot be based solely on economic criteria, given the Supreme Court’s judgement in Indra Sawhney v Union of India (1992). SCs/STs and OBCs cannot be excluded from economic reservations, as this would violate the fundamental right to equality. And the Amendment introduces reservations that exceed the 50% ceiling on reservations, established by Indra Sawhney,” Bineesh said.

At present, 49.5% of seats in education and public appointments are reserved, with 15%, 7.5%, and 27% quotas for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively.

Meanwhile, adding more clarity on the quota, Sunny said that by reserving 10% seats for EWS in the general category, the chances of SC/ST/OBC is also lost.

“When five seats are reserved in 50 general seats, then only 45 seats are available there. When we say general seats, it is open to all, isn’t it? Now, let us assume that an SC candidate gets good marks and that he can go to the open category with merit. If there were 50 seats, then his chances are higher when compared to when it is 45, right?” Sunny said.

According to Sunny, when an SC candidate gets a seat in the general category with his good marks, he leaves an SC vacant and that can be given to another SC candidate.

“Now this EWS has skewed it,” he said adding that between 2019 and 2020, the cut-off marks set for EWS were tricky for many examinations.

“The 2019 Civil Services Examination (CSE) and SBI junior associate examination results were impacted due to EWS cut off marks which were either lower than of SC/ST/OBC category or equal to it,” he said adding that admissions in certain education institutions are also impacted due to the new EWS reservation.

In 2019 March, the Communist Party of India (Marxist)-led Pinarayi Vijayan Kerala government had appointed a two-member legal panel to prepare a report on how the reservation norms for the EWS in forward community can be set up.

And in January 2020, the panel submitted its report.

After considering the report, the Kerala government decided to provide reservation for the EWS in forward communities.

During the 2016 Kerala Assembly polls, the CPM-led front had said in its manifesto that “along with that the poor in forward committees have to be assured 10 percent reservation. To implement these two things, a proper constitutional amendment is necessary. LDF will strive to implement such a constitutional amendment.”

Caste And Class

Meanwhile, talking to The Lede, KPCC president Mullappally Ramachandran, questioned the timing of the introduction of the reservation.

“The LDF has taken this step with an eye on the election. A case is in court. This can be a harmful sport,” Ramachandran told The Lede, adding that by implementing EWS, there should not be a dilution in the current reservation for different backward communities.

The Indian National Congress has supported the Bill presented in the Parliament. But its ally, the Indian Union Muslim League (IUML) has opposed the amendment from the beginning.

ET Mohammed Basheer, Member of Parliament and IUML leader, said Kerala is trying to derail the reservation system in the country.

“The new reservation system will lead to injustice. The eligibility criteria for the economic reservation itself proves it. A person with 50 cents of land in a corporation area is eligible for economic reservation. In Corporation limits, a cent of land is worth around 25 lakhs. Those people cannot be included among the economically weaker sections,” said.

Muslims constitute around 27% of Kerala’s population.

Meanwhile, the Nair Service Society (NSS), an organisation representing the forward community of Nairs, said that the state government should implement the proposal with retrospective effect.

The NSS wants the reservation announced by the central government implemented from 03 January 2020, the day Kerala decided to go ahead with it.

In a statement shared with The Lede, NSS general secretary G Sukumaran Nair has said, “Kerala has delayed the implementation of reservation for forward communities. Though the Centre had made a constitutional amendment in January 2019, the state government approved the same only on January 3, 2020.” He added that the state government took another eight months to make changes to the Kerala State and Subordinate Rules (KSSR) to implement the reservation.

While saying that the reality of reservation in India is that it was/is always a “political & social balancing act”, Rahul Easwar, a right-wing activist, added that today too, EWS is a balancing act, and that the Left in Kerala and the BJP nationwide want to address “perceived grievances” of the forward community.

However, Sreerag Parayil, a Dalit student at University of London, said that job and educational reservation for poor among ‘Oppressor Castes’ aka EWS reservation is to curtail the present minuscule representation of SCs/STs and OBCs.

“Theoretically, it is a traditional Marxian logic which only talks about haves and have-nots which dilutes the very pertinent question of caste into a mere class issue in a caste society like India. Besides, it also misinterprets the core idea of the reservation into skimpy ‘poverty alleviation’ scheme, which is catastrophic and against Article 15 and 16 of the Constitution of India,” Sreerag, who was also former University of Hyderabad president, said.

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