EWS Quota : Reservation Is Not For Poverty Alleviation, But To Correct Historic Injustices - Lawyers Argue In Supreme Court [Day 1]

The Supreme Court Constitution Bench, on Tuesday, commenced the hearing on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. In the last hearing, the 5-judge bench comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala had proposed to complete the hearing on the matter in five working days, and start the same from today, that is, September 13, 2022. Today's hearings were commenced by acclaimed academician, Dr. Mohan Gopal who submitted 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. A detailed report on his arguments can be found here.The arguments were continued by Senior Advocate Meenakshi Arora who stated that the 103rd amendment was destructive of the Equality Code and the basic structure of the Constitution and it erased the Principle of Reparative Justice from the Constitution. Thus, she submitted that the 103rd amendment was ultra vires the Indian Constitution. In the alternative, she submitted that it could be intra vires, if it were read down. Equality Code and Determination of Reservations Sr. Adv. Arora stated that the equality code had certain non-derogable facets- formal equality; special provisions for backward classes in public employment in the form of reservations and; special provisions for the socially and educationally backward classes in the form of reservations in education. She highlighted that there existed a caveat in form of administrative efficiency when it came to special provisions for backward classes and that under Article 340 of the constitution, a Commission had to be appointed to investigate the conditions of backward classes. She submitted that no such caveat existed for the EWS Quota as per the 103rd amendment. She stated that class disadvantage owed its origin to structural inequality and thus, backwardness became an integral part of any form of reservation. She said–"It was designed as a qualifying phrase to ensure that the exception does not eat the rule. Reservations that ignore the issue of backwardness, or are based only on a single criterion such as caste, or income have been struck down. Reservations based on only one caste were struck down in the Balaji judgement (Balaji v. State of Mysore) and reservations only on income was struck down by Indira Sawhney judgement (Indira Sawhney v Union of India)."In this context, she provided an illustration of the creamy layer doctrine. She said–"This court said that creamy layer is for those who belong to backward categories but are no longer backward as they've overcome a threshold. The court even denied reservation when a forward category married a backward class...This judgement is B.V. Giri...The court is extremely zealous to the extent that marrying into a backward class doesn't make you backward and even if on your volition you become Kshatriya, you don't cease to be a tribal." 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 must balance "efficiency of administration" with social justice. She stated–"Reservations are class based remedies to counteract historic injustice and provide reparations for classes who have been out of the power structure with a view to increase their representation and to uplift them to the standard of other forward classes. They are "class based" as against a section. Economically weaker "Sections"- that is the amendment. Reservations on basis of Economically Weaker Sections is individualistic. Reservations are not poverty alleviation programs as has being held in Indira Sawhney judgement."Sr. Adv. Arora highlighted the difference between 'backward classes' within the meaning of Article 16(4) and Article 46 and stated that while the purpose of 16(4) was limited to a particular class of people and not individuals from weaker sections; the concept of weaker sections under Article 46 had no such limitations. Violation of the Basic Structure of ConstitutionWhile continuing her arguments, Sr. Adv. Arora stated that the core of her arguments was 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." She submitted that mere economic or educational backwardness could not be the criteria of backwardness under Article 16(4). While talking about the...

EWS Quota : Reservation Is Not For Poverty Alleviation, But To Correct Historic Injustices - Lawyers Argue In Supreme Court [Day 1]

Padmakshi Sharma

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