EWS Quota Case - No Anthropological Study To Show Families Suffer From Poverty For Generations If They're Not Backward : Supreme During Hearing [Day 6]

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 Thursday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The hearings were commenced with the submissions of Solicitor General Tushar Mehta. A report on his submissions can be found here.Taking out 10% from open category is the "Opportunity Cost": Advocate Kanu AgrawalAdvocate Kanu Agarwal commenced his arguments by stating that as per M. Nagaraj v. Union of India, 50% ceiling limit was not the basic structure and that the part of basic structure that needed to be located was that there may not be "excessiveness". He submitted that such excessiveness would always depend upon facts. He added–"This amendment takes out 10% of open category. That is the opportunity cost. Suppose we remove 15(5) and (6), even when a single seat is reserved for SC/ST/OBC, it is taken out from general pool. That's the opportunity cost. Whenever any kind of reservation is provided, it is supposed to be taken out of the open category. That is the opportunity cost which always exists. The test has to be of excessiveness. Ultimately it is inadequacy in representation is the commonality. It is undeniable that SC/ST are more backward than SEBCs. If that is the case, and the axis of reservation for SEBCs are same- SEBCs should also be allowed to migrate to SC/STs."However, the bench did not seem to be convinced by this. CJI Lalit stated–"The principle is that migration from vertical column to open category is always permissible but within the vertical columns, you can't, they are watertight compartments. Now you are carving out another area in the open category which is EWS that was open to SEBCs earlier but now it is not."Thus the bench remarked that there existed only one way traffic to open categories and that jumping to different categories was not possible. He concluded his arguments by stating–"Social justice in this country cannot just mean representation or equality in the matters of caste. There has been many amendments but this court has only intervened in it 6 times. So we have to contextualise."Economic Criteria by itself can be a determinant of backwardness: S. Niranjan Reddy Sr. Adv. S. Niranjan Reddy appeared for the State of Andhra Pradesh and stated that social backwardness included economic backwardness and that is why economic backwardness was not introduced separately earlier. He stated that nothing could prevent the parliament from introducing a different form of backwardness unless such an action destroyed the basic feature. He argued that while economic criteria may not have been relevant for the purpose of Article 15(4), by itself economic criteria could be a relevant criteria and apropos the specification of economic criteria would not destroy the basic structure. He added–"Even Indra Sawhney says that amongst the sections that have social backwardness, economic advancement can take away the disadvantage of backward classes. So if economic criteria can be a factor to decide if a person remains backward, it can also decide if a person is backward. In general category, every single disadvantage other than social stigmatisation is due to economic issues. A child may be studying in a village, his father may be a drunkard for all we know; within the General Category, this child will have to compete with children from affluent sections. Because he didn't belong to a homogeneous group, he won't get advantage."He then stated that what was required was balancing the claims. He stated–"Balance is to be made between competing claims. This balance cannot be static when the society is so dynamic and keeps on shifting, especially for a volatile nation like India."However, Justice Bhat did not seem convinced with the arguments and stated–"Vacancies do not arise in public services every year especially in higher positions. They have only those few vacancies. It is easy to argue in these four walls that this is an opportunity cost. But for a person in ground level, even in college admissions, seniority etc...You have to visualise all this. The opportunity cost is not to be seen at a collective level but at a level where each vacancy arises."Sr. Adv. Reddy argued that the EWS category was reservations for the unreserved weaker category and not one group. He stated that within these categories were sections of people who suffer disadvantages. He added that this amendment would help them to compete with the affluent class.He stated that other backward communities were already provided for and therefore they could not have benefits under EWS. He submitted–"They're excluded to avoid double benefit. If a family is entitled to one cylinder, they cannot be entitled to a second cylinder. Same for housing. If the parliament intends to balance sets of competing values, is it so perverse that it'll go to the...

EWS Quota Case - No Anthropological Study To Show Families Suffer From Poverty For Generations If They're Not Backward : Supreme During Hearing [Day 6]

Padmakshi Sharma

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