EWS Quota Case - Economic Condition Can't Be Sole Basis To Provide Reservation : Lawyers Argue In Supreme Court [Day 2]

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. Today's pleadings were commenced by Senior Advocate Prof. Ravi Verma Kumar whose arguments can be found here. This was followed by submissions made by Senior Advocate Salman Khurshid and Senior Advocate P. Wilson.Reservations as 'Affirmative Action': Sr. Adv. KhurshidSr. Adv. Salman Khurshid commenced his arguments by stating that this issue fell in the area of justice and affirmative action. He stated that the idea of affirmative action was like a larger circle, within which reservation fell. He stated that in India reservations formed a part of a special area of affirmative action. In general, he said, many countries such as Israel and Germany had incorporated affirmative action. Sr. Adv. Khurshid submitted that he further wished to preface his argument with the idea of equality, equality code and the idea of classification. He submitted–"Under Article 14, reasonable classification is what you have upheld. Nexus should be achieved and object must be reasonable. The first point I wish to make is that the entire list of reserved category of citizens in our country is based on caste. We don't look at caste for any other purpose except for purpose of constitutional support. In the list of Mandal commission, every protected class is based on caste"He submitted that to understand the parameters on which caste was converted to class, reference must be made to Indira Sawhney v. Union of India, where the reference made was to communities and not to class. He said–"Class is the second stage which one will reach after examining communities...There is an overlap between class and caste."While continuing his arguments on affirmative action, he relied upon international jurisprudence on the issue. He submitted–"I am conscious of the fact that your lordships have said that American decisions may not be exactly but periodically you do refer to them...In the US, in some regions when quotas are not used, minorities are given special provisions...They said you cannot exclude someone on basis of reservations but you can take into account race and give special preference to them."To this, Justice Bhat remarked–"This may not be good law there as racial tie breaker is frowned upon now as they have said that their Constitution is colour blind."However, Sr. Adv. Khurshid stated that the tie breaker and alternative approach in the US and Europe was common. He also gave an example of Israel in this context, where in certain cases some reservations were made to promote gender justice. He referred to this policy of Israel as a "class based affirmative action policy" which emphasised upon structural disadvantages and made institutions more diverse than they otherwise would have been.Thus, he submitted that diversity could be one of the many reasons why affirmative action was taken in different countries. "One law for lion and ox is oppression": Sr. Adv. P. Wilson Sr. Adv. P Wilson started his arguments by quoting William Blake – "One law for lion and ox is oppression." He stated–"That is what I want to say about reservations for SC/ST/OBCs and EWS on other hand."He submitted that the 103rd amendment granted reservation to upper castes and this was violation of the basic structure of the Indian Constitution. He also submitted that the said amendment constituted a "mockery on idea of affirmative action" and was violative of Article 14. He added that the classification of EWS was neither reasonable nor valid and failed the "guided test" as laid down under Nagaraj v. Union of India. To supplement his arguments, Wilson referred to the Office Memorandum which was challenged in the Indira Sawhney judgement. He drew parallels between the said O.M. and the 103rd amendment and stated that the two were similar in nature. He further submitted–"What happened is as a test, this (103rd amendment) was introduced in Gujarat. Ordinance 1 of 2016, a replica of amendment was introduced. This was challenged in Gujarat High Court. The High Court quashed this ordinance." While quoting from the said Gujarat High Court judgment (Dayaram Khemkaram Verma v. State of Gujarat), he stated–"While extending the benefit of reservation to the socially and economically backward class and for removal of creamy layer, economic criterion can also be looked into. But it is not open for the State to make any reservation for section of citizens in unreserved category, only on the ground that section of such category of citizens belong to economically weak. As the economically weaker sections among unreserved category cannot constitute as homogeneous group for the purpose of reservation and such reservation will not withstand to the scrutiny of twin test under Article 14 of the...

EWS Quota Case - Economic Condition Can't Be Sole Basis To Provide Reservation : Lawyers Argue In Supreme Court [Day 2]

Padmakshi Sharma

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