EWS Quota Case: 103rd Amendment Changes Constitution's Identity - Lawyers Argue In Supreme Court [Day 3]

The Supreme Court Constitution Bench, comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, on Wednesday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The report on Advocate Shadan Farasat and Senior Advocate Gopal Sankaranarayanan's submissions from today can be found here. Violation of Equality Code: Senior Advocate P. WilsonToday's hearing was commenced by Sr. Adv. P Wilson, who continued his arguments from yesterday which can be found here. He submitted that weaker section under Article 46 were not the same as those under Articles 15(6) and 16(6) and that the SCs and STs had earned a special mention under Article 46. He stated that 103rd amendment was an infiltration as Article 46 had never envisioned upper caste to fall within its meaning. To supplement his submissions, Sr. Adv. Wilson made reference to State Of Kerala & Anr v. N. M. Thomas & Ors. He then drew the attention of the bench to the Statement of Objects and Reasons of the 103rd Amendment and stated–"Kindly see words used in Statement of Objects and Reasons. Here, the word used is 'weaker section'. They want to open this to other classes. Please come to Art 15(6). They're excluding (4) and (5), which weaker sections include. That originally was never thought when the object was made because they wanted to do something for weaker sections. But when it came to the substantive act, they widened it. There is a clear violation of equality by bringing a monetary equality which Constitution never thought of. 15(6) is not class, but caste specific. When we take the curtain away, we see that person's standing behind are upper castes who can never been seen as educationally or socially weaker. Intention of amendment is to change the identity of the Constitution."He further submitted that the explanation to the newly added articles, which states that "economically weaker sections" shall be such as may be notified by the State from time to time, breached the theory of 'guided power' as provided under M.Nagaraj & Others v. Union Of India. To this Justice Bhat remarked–"Let us take this argument forward. So then the government only has to set up another commission to determine EWS. That can be remedied. Is that satisfactory?" Sr. Adv. Wilson answered in negative and continued his submissions stating that the 103rd amendment violated the Equality code and that the court didn't need to wait for a potential threat to occur. He concluded by stating–"To sum up, equality that our forefathers thought of has been destroyed. That 10% also matters a lot when equality is concerned."Reservations solely on Economic Grounds Destroy Democracy: Sr. Adv. Dr. K.S. ChauhanSr. Adv. Dr. K.S. Chauhan submitted for petitioners next and stated that the Indian Constitution has constituted India with certain principles and that Dr. Ambedkar had thought of a society which was moving forward. However, the impugned amendment stalled that process of change. He submitted–"This court in Keshavananda Bharti v State of Kerala held that the power to amend does not give power to alter basic structure. My concern is change in identity. The Constitution has constituted India in sovereign, socialist, democratic, secularist, republic. Originally, it was just sovereign, democratic, republic. But if we see the history of Constitution, even prior to incorporation of these words, socialistic activities were carried out."He stated that reservation solely on economic criteria, would destroy a facet of democracy because democracy needed representation. he continued–"If we give representation on economic criteria, it's artificial. Economic criteria is a temporary thing- today I might be poor but if I win a lottery my situation will change. But backward classes have been historically excluded and that's why 16(4) was added...In Indira Sawhney, it was found that there could be classification but based on intelligible differentia and rational nexus. Economic criteria has neither. Because if I'm placed at a high position and my brother is a farmer in village, if I'm SC/ST, then the differentiation will be same. But if economic criteria prevails we'll be both in different places."He also submitted that democracy had to be based upon deliberation but the bill was introduced on 7th Jan, passed in Lok Sabha on 8th Jan and in Rajya Sabha on 9th Jan. However, the bench was unwilling to get into this discussion and Justice Bhat remarked–"We are barred from entering into that arena- what's spoken in parliament. We cannot intervene into legislature and this cannot be a ground. We're losing our energy if we talk about that."Sr. Adv. Chauhan concluded his arguments by referring to Madhavrao Scindia v Union of India and said–"This court said that constitutional philosophy is the obligation of the executive. If a particular class is eligible for identification in a category and ...

EWS Quota Case: 103rd Amendment Changes Constitution's Identity - Lawyers Argue In Supreme Court [Day 3]

Padmakshi Sharma

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