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Nonetheless, the High Court proceeded to scrutinize the validity of the notification dated 29 July 2021 providing reservation for OBC and EWS candidates in AIQ seats in medical and dental institutions. With respect to the reservation granted to EWS under the notification dated 29 July 2021, the High Court observed that such reservation can be permitted only with the approval of this Court. Special leave petitions were instituted before this Court challenging the order of the Madras High Court. This Court by its order dated 24 September 2021 disposed of the petitions observing that the Madras High Court in its contempt jurisdiction could not have entered into a discussion on the validity of the EWS reservation provided by the notice dated 29 July 2021 and set aside the direction that the approval of this Court should be received before implementing reservation for the EWS category in AIQ seats.
(iv) The income limit in the criteria for the determination of the creamy layer of the OBC category and the EWS category is the same, namely, Rs 8 lakhs. While the creamy layer in the OBC category is identified for excluding a section of the community that has ‘economically progressed’ to such an extent that the social backwardness of the community diminishes, the EWS category is identified to include the segment which is ‘poorer’ when compared to the rest of the community. Therefore (a) the income criterion in respect of the OBC category is aimed at exclusion from a class while in the case of the EWS category, it is aimed at inclusion; and (b) the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome as compared to those belonging to the general category. In these circumstances, would it be arbitrary to provide the same income limit both for the OBC and EWS categories;

(v) Asset Exception: The assets exception is provided to ensure that the reservation is provided only to the needy. ‘Notified municipalities’ refers to all municipalities legally constituted; and

(vi) Other Arguments: The total seats have been increased by 56 percent in MBBS and by 80 percent in PG in the last six years. Therefore, the total number of seats available for the general category has increased. The issue of whether reservation for the EWS would violate the law laid down in Indra Sawhney v. Union of India 8 since it exceeds the 50 percent reservation cap is the subject matter of reference to a five- judge Bench in Janhit Abhiyan v. Union of India 9, which is adjudicating upon the constitutional validity of the Constitution (One Hundred and Third Constitution Amendment) Act 2019. AIR 1993 SC 477 WP (C) 55/2019 PART D D. Major Sinho Commission Report 9 At this stage, a reference must be made to the Major Sinho Commission report since the Union Government has strongly relied on the observations in the report on using the income limit for identifying the creamy layer of the OBC for determining the EWS. The Major Sinho Commission was constituted for determining the EWS among the unreserved categories. Chapter III of the Commission’s report noted that the welfare measures (excluding reservation which would require other considerations) may be extended to the EWS category. 10 Chapter IV of the report discusses the parameters to determine the EWS category. The relevant parameters for the identification of EWS were enumerated as follows:

Q. Based on prevailing conditions and economic disparity in the country, what should be the principles for determining criteria that may be used for identifying EWS?
A feasible criterion for defining EWS can be based on income (family income).
Q. If income criteria is to be used then what would be the threshold for income for identifying EWS A threshold of Rs 8 lakhs of annual family income, in the current situation, seems reasonable for determining EWS.
Q. Is there any justification for adopting a uniform income-based threshold across the country for the identification of EWS - especially in light of the disparity in purchasing power across the country?