The Supreme Court in a majority judgment on Monday upheld the validity of the Constitution’s 103rd Amendment Act 2019, which provides for 10 per cent EWS reservation amongst the general category, and observed that it does not violate essential features of the Constitution.
A five-judge Constitution bench in a 3:2 upheld the validity of the Constitution’s 103rd Amendment Act 2019, where three judges passed the verdict upholding the Act while CJI UU Lalit concurred with Justice S Ravindra Bhat and passed a dissent order.
Observations by Justice Dinesh Maheshwari
– While reading out the judgment J Dinesh Maheshwari said, “After delving with these aspects, conclusions are Reservation is an instrument of affirmative action by State so as to ensure all inclusive approach. It is an instrument not only for inclusion of socially and educationally backward classes.” he further said,”Reservation structured singularly on economic criteria does not violate the basic structure of the Constitution.”
-Reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible as per Justice Maheshwari.
-103rd Constitution Amendment cannot be said to breaching basic structure by providing reservation on economic criteria. 103rd Constitution Amendment cannot be said to breaching basic structure for exceeding 50% ceiling limit.
Observations by justice M Trivedi
– State has come out with amendment for advancement of EWS categories
– Justice Bela M Trivedi says, her judgement is in concurrence with Justice Maheshwari and says the EWS quota in the general category is valid and constitutional.
Observations by Justice JB Pardiwala
– Justice JB Pardiwala also upholds the validity of the Constitution’s 103rd Amendment Act 2019, which provides for the 10 percent EWS reservation amongst the general category.
– While concurring with Justice Maheshwari and Bela Trivedi and while upholding the impugned amendment, I have thought it fit to observe “Reservation is not an end, it is means, it should not be allowed to become a vested interest”
Observation by Justice Bhat
– Justice S Ravindra Bhat passed a dissenting judgment and disagrees with the majority verdict on upholding the validity of the 103rd constitutional amendment.
– EWS amendment’s exclusionary mechanism operates against socially disadvantaged class and it denies mobility from the reserved quota to a reservation quota based on economic criteria.
– The exclusion is based on deprivation but is discriminatory, and thus the amendment is nothing but discrimination and thus destroys the equality code and thus, the EWS amendment is arbitrary and creates hostility for the socially disadvantaged.
Observations by Justice UU Lalit
– I have concurred with the view taken by Justice Bhat. The decision stands at 3:2.
The hearing in the case, lasted for nearly seven days, where a battery of senior lawyers argued for the petitions and Attorney General K.K. Venugopal and Solicitor General Tushar Mehta defended the EWS quota before a five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit, and comprising Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi, and J.B. Pardiwala.
Petitioners argued EWS quota is against basic structure of Constitution
In the rejoinder arguments on Tuesday, legal scholar Dr. G Mohan Gopal, representing some petitioners, argued that socially and educationally backward class was a category, which united all categories as backward classes, based on social, economic, and political backwardness. He contended that compartmentalisation of classes and the quality of forwardness being required as a prerequisite for granting reservations was against the basic structure of the Constitution.
Earlier, Gopal had argued that the 103rd amendment is a fraud on the Constitution and the ground reality is that it divides countries along caste lines. He emphasised that the amendment is an attack on the constitutional vision of social justice and in his state, which is Kerala, he is not happy to say that the government issued an order for EWS and the title was ‘caste’ and they were all most privileged castes in the country.
He further argued that social and educational backwardness are two wings on which reservations have relied and if removed, they would crash. He vehemently argued that the amendment will change the identity of the Constitution in the minds of people as something, which protects the privileged instead of the weak. Gopal added that there are structural conditions, which keep certain communities poor and reservation was introduced to give them representation in education and government jobs.
Senior advocate P. Wilson argued that Articles 15(4) & 16(4) are enabling provisions to grant reservations which are affirmative action to offset centuries of social discrimination and promote equality. He added that the 103rd Amendment nullifies and destroys the substantive equality sought to be achieved by Articles 15(4) & 16(4) & takes SC/ST/OBCs back to pre-a Constitution conditions in the society.
“In Indra Sawhney, this court has held that reservations based on economic criteria will lead to virtual deletion of Art 15(4) and 16(4)”, he said.
Senior counsel argued that the Centre had not provided the nexus between reservation and poverty or explained why other benefits instead of reservations could not be granted to EWS. Another counsel argued against the compartmentalisation of classes and submitted that the 50 percent ceiling limit was sacrosanct and violating it would be a shocking infringement of the basic structure, and also something inflexible could also be basic structure.
“Reliance by AG on the data of Sinha Commission which in turn relies on the National Sample Survey in 2004-2005 (61st Round) is not tenable as the survey of NSSO was not for identification of ‘backward classes’. Nowhere in the NSSO does it speak about either Economically Backward Classes or Economically Weaker Sections”, said Wilson.
Centre defends EWS quota, says SCs, STs given benefits
The Attorney General, representing the Centre, had submitted that SCs and STs have been given benefits by way of affirmative action — given reservation in promotion in government jobs, legislature, panchayat, and municipalities — and the EWS quota does not violate the basic structure of the Constitution, as he defended the 103rd constitutional amendment.
He added that the EWS quota has been given without disturbing the 50 percent quota, which is meant for the socially and economically backward classes (SEBC). The AG added that backward classes including the SCs, STs, and OBCs each contained economically weaker sections within themselves, and also the general category consisted of economically weaker sections, which were grossly poor.
