It's about social justice, not welfare -Abusaleh Shariff and Mohsin Alam Bhat

-The Indian Express

To fulfil the constitutional requirement, reservation must be based on a rigorous identification of economic backwardness.

The introduction of the 124th constitutional amendment that provides the possibility of quotas for the “economically weaker sections” (EWS) has rekindled the debate on reservations. These quotas diverge from reservation policies for the Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes, by jettisoning caste or community identity as the basis of identifying beneficiary groups.

Parliament’s power to amend the Constitution is limited by the basic structure doctrine, according to which no law can violate the Constitution’s essential features. In order to meet the established constitutional parameters, the conceptualisation and implementation of EWS reservations must satisfy the principle of equality and the constitutional mandate of social justice that are basic features of the Constitution.

Before the Supreme Court approved caste as the basis of defining “socially and educationally backward classes” or OBCs in 1992, caste reservations beyond SCs and STs had attracted controversy. In the Indra Sawhney case, the Court held that reservations were designed, among other things, to provide a share in power and representation to the classes, which were historically excluded from such avenues.

The key to the acceptance of a caste-based interpretation of the OBC category was the Court’s endorsement of the Mandal Commission’s argument that a low caste status represented a form of marginalisation that was so entrenched and trans-generational that it could not be dismantled by either being blind to it, or only through welfare measures. The Court’s observation that reservations are not poverty alleviation programmes should be interpreted in this light. Reservations are particularly ineffective for distributing economic benefits but more meaningful in distributing opportunities, as a matter of representation, among the marginalised classes which do not have an adequate share in governance.

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The Indian Express, 18 May, 2019,

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