EWS Quota Unconstitutional For Including Only The Poor Among Forward Class: Shadan Farast To 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. 103rd Amendment violates the Equality Code by Excluding Backward Classes: Adv Shadan FarasatAdv. Farasat commenced his submissions by stating 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 new amendment which granted reservations on the basis on depravation. He took his arguments one step further and stated that even if it were to be assumed that reservations could be an anti-depravation measure, exclusion of backward classes, when they were in fact poorer than the forward class poor, was a direct violation of the equality code. He elaborated on this point and said–"For example I'm from Bihar, I live in an apartment. My guard comes and tells me that I'm an Upper caste in Bihar and I've never faced discrimination there. But here, I only earn Rs. 16,000 and it is difficult to manage it for a family of four. I take the best case scenario and assume that the 103rd amendment is for such people. Even then, the exclusion of backward class violates equality code. Taking this example only, the guard's annual income translates to Rs. 2 Lakh. The criteria for EWS reservations is 8 Lakh. So, an upper caste earning 2 Lakhs is being given benefits. But a more deprived lower caste person is not getting these benefits. In addition to being more deprived, they are also a constitutionally recognised discriminated category...In the three concentric circles, the heart is SCs and STs. What this amendment does is excludes the heart of it. That violates equality."However, the bench interjected and highlighted that those belonging to the backward classes already had protections and reservations guaranteed to them. CJI Lalit remarked–"The idea with which this amendment is introduced, I think, is that because there is already a protective umbrella given to backward classes, giving them some kind of protection...that is why they are excluded."To this, Adv. Farasat responded –"The quota for backward classes is for a separate purpose. It is a quota for a group, not individual, to correct historical wrongs, to ensure representation. It doesn't speak to an individual. It speaks to the group. So my position, it's completely agnostic too. If I'm SC or an ST–what I am, it doesn't matter, I will get protection. This quota is a different animal, it speaks to the individual on the economic condition of that individual. Therefore, to say that- 'you had that quota, I'll deny you this'- will not be permissible because they serve two different purposes and address two different constituencies."He highlighted that the purpose of both quotas as well as the entities the said quotas were meant for, were both different and thus, inclusion in one quota could not mean exclusion from another.Justice Bhat then posed another question and asked–"Keeping aside the argument of exclusion, after 75 years, we still see generations of poverty. We see BPL, there are a large mass of people falling within that. Why can't there be economic based affirmative action? Even if it is 20%, it's a large mass of people. There will still be a non-discriminated group who are unable to access many things. In theory, government schools are available, jobs are available, but these people are as disadvantaged as others. So per se what's so wrong if they don't belong to a homogeneous group?"Here, Adv. Farasat submitted 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. He stated that the idea of reservation was to provide reparations to historically disadvantaged groups for the oppression they had faced. Referring to certain data submitted to the bench, he stated– "The material shows that at the highest, despite reservations, the backward classes are poorer than the upper caste poor. If there is a correlation, even then, the backward class poor is poorer. The backward class is a) more likely to be poor, b) their poverty is deeper and more intense, c) their poverty is likely to be stickier, more persistent."While elaborating upon his submissions, he explained the concept of 'multidimensional poverty' experienced by backward classes. He stated that the backward classes were over-represented in poor categories and forward classes were under-represented in poor categories. He said–"This shows intersectionality between wealth, inequality and caste. I say address these forward classes, but the largest chunk where the poverty is massive and deeper, how can that be excluded and the equality quote not be thrashed...

EWS Quota Unconstitutional For Including Only The Poor Among Forward Class: Shadan Farast To Supreme Court [Day 3]

Padmakshi Sharma

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