Former Supreme Court Justice Rohinton Fali Nariman criticized the Economically Weaker Section (EWS) reservation during the 10th Justice Krishna Iyer Memorial Lecture. He argued that it contradicts the Indian Constitution’s principles by excluding socially backward communities and merely benefiting economically weak groups without historical discrimination. He emphasized the necessity for reservations to address historical injustices.
Kochi: Former Supreme Court Justice Rohinton Fali Nariman delivered a scathing critique of the Economically Weaker Section (EWS) reservation, terming it a reversal of the foundational principles of the Indian Constitution.
Speaking at the 10th Justice Krishna Iyer Memorial Lecture organized by the Saradha Krishna Sadgamaya Foundation for Law and Justice, Justice Nariman highlighted the fundamental flaws in the EWS reservation policy and its divergence from the original intent of the Constitution’s framers.
Historical Basis of Reservation and the Role of Article 46
Justice Nariman emphasized that reservation was designed to correct historical wrongs inflicted upon certain communities and was never intended to be based solely on economic criteria.
“Those who have been exploited for centuries are still socially backward. Poverty is not the only criterion for reservation,”
he said. The Constitution, through Article 46, mandates the state to promote the educational and economic interests of Scheduled Castes (SCs), Scheduled Tribes (STs), and other weaker sections.
“According to me, Article 46 does not at all sanctify a classification based on economic criteria. A simple reading will show you that. The last part is completely missed by all 5 judges,”
Justice Nariman stated, questioning the Supreme Court’s interpretation in upholding the EWS reservation.
EWS Reservation: A Constitutional Aberration
The EWS quota, introduced via the 103rd Constitutional Amendment, reserves 10% of government jobs and educational institution seats for economically weaker sections among communities that have not traditionally faced social discrimination. Justice Nariman strongly criticized this, saying:
“What you have achieved by the amendment is nothing short of turning the Constitution on its head. You exclude all those who require to be included ie SC, ST, OBC. Having excluded them, who do you include? You are only including Brahmins, Kshatriyas, Vyshyas, and also Muslims and Christians. This becomes a huge problem because the founding fathers would say there is no question of any reservation except because of historical wrongs.”
He argued that upper-caste Hindus, Muslims, and Christians, who have never suffered systemic social discrimination, now benefit from reservation, undermining its original purpose.
The Fault in Judicial Reasoning
Justice Nariman expressed disapproval of both the majority and minority opinions in the 2022 Supreme Court ruling that upheld the EWS reservation.
“This is a rare case where both majority and minority were in error when it comes to the very concept of economic reservation,”
he remarked.
He pointed out that Muslims and Christians were already protected under Article 30, which grants them the right to establish and manage their institutions.
“Article 30 gives minorities the right to establish and run minority organizations. All this is given a complete go-by, and now a constitutional amendment which completely turned the Constitution on its head is given full sanctity by these three learned judges,”
he lamented.
Justice Nariman also questioned the constitutional soundness of the amendment, arguing it violated fundamental provisions like Articles 46, 16(1), and 15(1), which focus on social justice and equality.
The Road Ahead for Reservation
While critiquing the EWS reservation, Justice Nariman urged caution in transitioning from the existing reservation system for historically backward communities.
“The current reservation given to backward communities, which have historically faced injustice, should not be stopped all at once and should be changed only gradually,”
he said. He reaffirmed that India’s Constitution is unparalleled in its consideration for the socially backward and should not deviate from its original vision.
Criticism of the EWS Framework
Justice Nariman decried the EWS framework as fundamentally flawed. He underscored that it misrepresents the principle of reservation by extending benefits to groups that do not meet the criteria of historical social disadvantage.
“We have major problems with the majority on how they view constitutional amendments in the first place and how it is to be struck down. So respectfully, this economic criteria judgment is not correct either in constitutional law or in principle of any kind,”
he concluded.
A Call for Reflection
The lecture, attended by prominent legal figures such as Kerala High Court Chief Justice Nitin Jamdar, delved into one of the most contentious aspects of modern Indian jurisprudence. The event also featured the presentation of awards to top-ranking LLM and LLB students from Kerala’s universities.
Justice Nariman’s remarks reignite the debate over reservation policy in India, emphasizing the need to align it with the Constitution’s founding vision while addressing contemporary inequalities.
“Reservation must reflect social realities and not stray from its purpose of redressing historical injustices,”
he reiterated, leaving his audience with a call for measured, principled reform.
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