The Supreme Court verdict determining the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment is to come out on November 7, 2022.
The matter was heard by a 5-judge bench comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala. As per the cause list, there are two judgments by Chief Justice UU Lalit and Justice S Ravindra Bhat in the case. It is to be noted that Chief Justice UU Lalit is to retire on 8th November 2022.
This article provides with a brief gist of all the arguments raised before the court.
I. Reservation a tool for representation, not financial upliftment
The arguments which spanned over seven days were commenced by acclaimed academician Dr. Mohan Gopal who appeared for the petitioners in the matter. He argued that the EWS quota inverted the concept of reservation as a tool of representation for the disadvantaged groups and converted it into a scheme for financial upliftment. Senior Advocate Meenakshi Arora echoed a similar sentiment and submitted that reservations under Article 15 and 16 of the Constitution were not aimed at providing economic aid but because backwardness caused to such sections was both the cause and consequence of "non representation in the country." Advocate Shadan Farasat also argued on similar grounds and submitted that originally, reservations were granted solely on an "anti-discrimination basis", and not on an "anti-depravation basis". He stated that this was the basic structure which was being violated by the amendment which granted reservations on the basis on depravation.
II. Exclusion of SEBCs violates basic structure
Dr. Mohan Gopal submitted that because the EWS quota excluded socially and educationally backward classes and confined the benefits only to the "forward classes", it resulted in the violation of the principles of equality and social justice. This amounted to infringement of the basic structure of the Constitution. Dr. Gopal, in his rejoinder, also argued that socially and educationally backward class (SEBC) was a category that united all categories as backward classes- based on social, economic and political backwardness. He argued that the compartmentalisation of classes; forwardness being required as a pre-requisite for granting reservations and; the letting loose of reservations in the society as a benign welfare activity violently opposed the basic structure of the Indian Constitution.
Prof. Ravi Verma Kumar, furthering the submissions for the petitioners, stated that weaker sections had to be understood ejusdem generis Scheduled Castes and Scheduled Tribes. He supplemented his argument with the text of Article 46 which states that the State shall promote the educational and economic interests of the weaker sections of the people, in particular, of the Scheduled Castes and the Scheduled Tribes. As such, these classes could not be excluded from the meaning of weaker sections. On a similar note, Senior Advocate P. Wilson submitted that weaker sections 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. Advocate Shadan Farasat argued that exclusion of backward classes, when they were in fact poorer than the forward class poor, was a direct violation of the equality code.
III. Economic Criteria cannot be the sole criteria to determine backwardness
Prof Ravi Verma Kumar also argued that economic criteria could not be the sole criteria to determine backwardness. He stated that a "class" should be homogeneous, should have numerical strength and have its origin in religion. Thus, a person's economic background couldn't determine their class.
To this, Justice Bhat had remarked–
"Government frames policies which are rested on an economic basis. That classification is recognised by court. Economic criteria is a basis for classification. Its non enumeration in Article 15 means perhaps that it is permissible."
Prof Kumar had retorted this question by stating that the amendment was misplaced and that - "You don't take a person suffering from tuberculosis to a maternity ward. If a poor man has a problem, give him money or scholarship. After abolishment of princely states, all princes became paupers. Should they get reservations?"
Adv. Shadan Farasat had similarly argued that there were other affirmative actions which could be taken to address the problems faced by economically disadvantaged groups, which did not require providing them with reservations.
IV. No "guardrails" for EWS Reservation
In the course of headings, Sr. Adv. Meenakshi Arora had also argued that the 103rd Amendment did not consist of any "guardrails" which otherwise existed for other forms of reservations granted by the Constitution. She submitted that backwardness was required to be determined on multiple factors by committees which were constituted under Article 340 of Constitution. She described this as one of the "guardrails" to determine backwardness. Other such guardrails as per Sr. Adv. Arora were that backward classes had limited representation which required reservations to undo historical injustice; reservations could not exceed more than 50% of seats as held in the judgement of Balaji v. State of Mysore and; reservations had to balance "efficiency of administration" with social justice.
V. 50% Ceiling Limit sacrosanct: Sr. Adv. Gopal Sankaranayanan
The arguments raised by Sr. Adv. Gopal Sankaranarayanan, who was appearing for petitioners, 'Youth for Equality', an independent group primarily against caste based reservations, were on a different footing than other petitioners in the case. He submitted that that EWS Quota was not an alien concept and had been employed before in cases such as that of 'Right to Education'. As such, he it should not be frowned down upon. He argued that the 103rd amendment violated the 50% ceiling limit. Thus, EWS Reservations should be evolved to confine themselves within the 50% ceiling limit. He submitted that the words "in addition to the existing reservations" under Article 15(6), breached the basic structure of the Indian Constitution and needed to be severed.
I. EWS Quota an affirmative action; backward classes do not require "additional benefits"
The arguments for the respondents were commenced by the then Attorney General for India K.K. Venugopal who appeared for the Union of India. He stated that SCs and STs had been "loaded with benefits" by way of affirmative actions and thus didn't require additional benefits. He added that backward classes including the SCs, STs and OBCs each contained economically weaker sections within themselves. However, even forward sections consisted of economically weaker sections, which were grossly poor. Thus, he submitted that through the amendment, the State provided affirmative actions to such economically weaker sections which did not get benefits under the existing reservations. He also argued that unequals could not be treated equally and backward classes were unequal to forward classes, in terms of reservations.
Senior Advocate Vibha Dutta Makhija, appearing by way of an intervention application for persons who fell under the EWS category, argued on identical grounds. She added that any amendment meant to alleviate poverty of certain categories for their betterment could not be understood as going against the basic structure of the Constitution.
Sr. Adv. Makhija was intervened by CJI Lalit who said-
"There is no anthropological study which shows that there are families who suffer for generations from poverty if they're not backward...They (petitioners) are saying that poverty (of forward classes) can be alleviated by other means- subsidies, scholarships etc. Reservation is not just financial empowerment, it is social empowerment. You could have done everything else. Why do you have to enter reservations?...As compared to those EWS in SC/ST, those coming from EWS in General Category, are better off."
Advocate Mahesh Jethamalani, appearing for the State of Maharashtra submitted that those envisioned under Article 15(4) had the same position as the forward class minus the people falling in the EWS category. In this context, CJI UU Lalit also said-
"When it is about other reservations, it is attached to lineage. That backwardness is not something which is not temporary but goes down to centuries and generations. But economic backwardness can be temporary."
On the argument by AG Venugopal that economic criteria could be the sole determinant for granting reservations, CJI UU Lalit had remarked -
"In mathematical numbers, 31.7 crore are poor and out of them only 5.85 are general (category). So only 1/6th of the total population below poverty line comprises general category."
II.10% Reservations wouldn't be added to 50% limit
The AG submitted that reservation for the three backward classes was limited to 50% and that the non-reserved category was an independent category in which 10% was now being reserved for the economically weaker sections. Sr. Adv. Mahesh Jethamalani resounded identical submissions and stated that the backward classes would not be affected by the introduction of EWS quota as reservations were not being taken away from the 50% that was granted to them.
"There is a right to be treated as an open category. Depending upon performance, you get into merit. In the open category, you could have (people) from all (classes). Once you put this 10% embargo, you're excluding them on basis of caste."
Here, CJI Lalit also gave an example of Election Law. He said-
"In election law, there could be reservations for certain wards for SCs/STs etc. Those persons can compete in general ward. But general candidates cannot compete in that ward. Can you tomorrow create a separate ward and say SC/STs can't compete in this ward?
"Is it right for an egalitarian govt to say that sorry you are the poorest of poor but you've exhausted your reservation. I am not looking at totality. I am looking at the individual. The constitution has to have meaning to an individual. Argument of collective goes on but it breaks down at individuals."
III. Constitutional Amendments can only be challenged in cases of violation of basic structure
The Solicitor General of India Tushar Mehtasubmitted that constitutional amendments could be challenged only on the ground of violation of basic structure of the Constitution. He stated that while challenging statutory provision, it was permissible to state that a given provision violated an Article of the Constitution. However, when the Parliament itself had inserted a provision, the validity of such a provision could not be questioned unless the said provision shook the very identity of the Constitution. He stated that in order to identify what constituted the basic structure, the principle guide was the Preamble of the Constitution.
Here Justice Bhat had stated–
"You can't trace even federalism in preamble, yet it is in basic structure."
Similar argument was also raised by Sr. Adv. Mahesh Jethamalani who submitted that the amendment was not such a violation of the constitution that it destroyed its very identity. He stated that at the most it was "marginal tweaking".
"Take for instance OBCs above creamy layer, will their share not get reduced? Just as the open general category, for everyone, hasn't the size shrunk? And if it has shrunk, at whose expense? Emphasis is that there are certain classes who need special protection. So you have identified scientifically these classes and then said that this is the target class. So up till now you're giving affirmative action but suddenly you're saying now that you're from a particular caste do you can't get it?"
IV. 50% Ceiling Limit can be crossed in "exceptional circumstances"
Both AG Venugopal and SG Tushar Mehta argued that the 50% ceiling limit was not inviolable and could be breached in exceptional circumstances. Thus, the 50% ceiling limit could not be elevated to the level of basic structure.
The respondents' arguments were followed by rejoinder from petitioners, following which, the bench had reserved its judgement.
CASE TITLE: Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues