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On the face of it, a new kind of reservation in education and jobs solely based on income or economic criteria was destined to face several constitutional hurdles. However, given that the special provision in favour of ‘Economically Weaker Sections’ (EWS) among those who are not eligible for community-based quotas meant for Scheduled Castes, Scheduled Tribes and Other Backward Classes, was introduced through an amendment to the Constitution, only a demonstration that the new quota violated the basic structure of the Constitution would have succeeded in dislodging it. By a majority of three to two, the Supreme Court of India has ruled that the amendment does not violate the basic structure. In the process, the Court has recorded a major paradigm shift in its conception of what constitutes valid affirmative action. For the first time, it has upheld a kind of reservation that specifically excludes those from the three existing categories of beneficiaries and is extended solely on the basis of economic criteria. When in Indra Sawhney (1992), a nine-judge Bench upheld OBC reservation, but favoured exclusion of advanced sections of the beneficiary communities from its purview, it introduced a form of economic criteria for the first time. However, the criteria were used to exclude individuals, while the groups continued to be eligible for reservation. At the same time, the Court struck down a provision for 10% reservation for economically backward sections introduced by the Congress regime, on the ground that the Constitution does not provide for reservation solely based on economic criteria.

The logic behind this scheme of affirmative action was that reservation is a tool of reparation for groups excluded from mainstream avenues of advancement due to caste discrimination, while it should not become a benefit or reward for individual members of the same groups who may have made reasonable progress. This logic was wholly inverted in 2019 when the BJP-led regime amended the Constitution to provide reservation solely on economic criteria to sections other than those enjoying reservation under the categories of SCs, STs and OBCs. The resort to economic or income criterion as the sole marker for identifying a beneficiary is obviously unsustainable from the point of view of equality of opportunity. All five judges agree that the introduction of an economic criterion does not violate the Constitution. However, Justice S. Ravindra Bhat, with Chief Justice of India U.U. Lalit, concurring, has correctly found that the exclusion of groups that already enjoy reservation from accessing this new form of affirmative action violates the equality norm, which is a basic feature of the Constitution.