EWS Quota Violates Basic Structure Of Constitution Due To Caste-Based Exclusion & Breach Of 50% Ceiling : Petitioners' Arguments On Final Day Of Supreme Court Hearing

A Constitution Bench of the Supreme Court, comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala on Tuesday(September 27), reserved judgment on a batch of petitions challenging the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment.On the seventh and final day of the hearings, the petitioners' lawyers made rejoinder to the arguments made by the Union Government.The arguments were commenced by Senior Advocate Ravivarrma Kumar. At the outset, he drew the attention of the court to the most primitive tribes of the country. He stated that these tribes did not belong to the main race of caucasians, which mainland Indians belonged to. Thus, he said that excluding them from the benefits provided by the EWS Reservation was discrimination on basis of race. He said–"What if two words are deleted from 15 and 16, namely gender and caste? Would it not affect the basic structure? They're not caucasians, mainland Indians are all caucasians. All these tribes have been eliminated only because of their race. Are they not entitled to anything that is done for benefit of poor? Would it not offend the basic structure?"Falling back on the impact test, he added–"Put on the glasses and see who are the ones affected. Are they not castes and tribes? It is a clear indication that these two provisions have destroyed the Equality code by allowing race and sex to be grounds of discrimination. Suppose a similar provision was being made that all positions in Indian Navy are for men and not women because women already have benefits. Would it be permissible? The court has already held that it's not permissible. Both impact test and identity test are answered in affirmative. If we lift the veil from these EWS, who are eliminated? Equality code is turned upside down." He further added that no scholarships or any other form of benefits, including the Right to Education Act, excluded backward classes from within its ambit. He highlighted that none of the counsels for the government had yet provided the nexus between reservation and poverty. He stated that the actions of the State amounted to reverse discrimination. Prof Kumar further rebutted the AG's argument referring to SC/ST/SEBCs as homogeneous classes. He stated–"With due respect, so far as OBCs are concerned, Indra Sawhney has permitted categorisation. So it's not a homogeneous group. So far as SCs are concerned, in 1965, a committee was appointed and it recognised that it was not a homogeneous group. In the latest case of Devendra Singh, it was held that creamy layer may be eliminated from SCs. In express words, they have said that it's not a homogeneous group."He submitted–"As on 31.03.2018, 2530 castes are found in the list of OBCs. Of them 775 are newly added subsequent of Indra Sawhney. All the welfare measures that are in operation, large number of them- education, higher education, skill development - in not a single scheme the ST/SC are excluded."Senior Advocate Gopal Sankaranarayanan, while drawing the attention of the court to the findings of Sachar Committee and Ranganath Mishra Committee stated that the conditions of general Muslim category were lower than the Hindu OBCs. He argued that if the court accepted the learned AG's submissions on the additional 10% falling in a separate compartment, it would result in excessive reservations which might even go up to 90%. He added that the ceiling limit of 50% was so sacrosanct that its violation would in fact be shocking. For this argument, he relied upon the judgement of M. Nagraj v. Union of India as per which 50% ceiling limit was the standard. Accordingly, he submitted that the words "in addition to" needed to be culled out from the amendment.His arguments were followed by Senior Advocate P. Wilson who submitted that the AG's argument that reservation could be granted on the basis of poverty alone was contrary to the law laid down by the Supreme Court in Indra Sawhney. Referring to the State's arguments concerning Sinho Commission's recommendations on reservations for the poor, Sr. Adv. Wilson stated that the Sinho Commission itself did not recommend reservations for EWS among the forward classes. He stated that the Commission had suggested various targeted welfare schemes to be brought in for the EWS in the forward class category. He added that there was no data in Sinho Commission Report suitable for reservation and that no empirical data was available with it on the SC, ST & backward classes. He further stated that the data of the NSSO in its 2004-05 report was untenable for the purpose of granting reservations as it was not for identification of "backward classes" and was without reference to the social group of the individuals since the NSSO was not collecting the data with reservations in mind. Taking his argument further, he stated that the AG's submission that there...

EWS Quota Violates Basic Structure Of Constitution Due To Caste-Based Exclusion & Breach Of 50% Ceiling : Petitioners' Arguments On Final Day Of Supreme Court Hearing

Padmakshi Sharma

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