EWS Quota Violates Basic Structure Of Constitution For Crossing 50% Ceiling Limit : Gopal Sankaranarayanan To Supreme Court [Day 4]

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 Tuesday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The arguments were commenced by Sr. Adv. Gopal Sankaranarayanan, who was appearing for petitioners, 'Youth for Equality', an independent group primarily against caste based reservations. In the last hearings on the matter, Sr. Adv. Sankaranarayanan had submitted that the 103rd amendment violated the 50% ceiling limit and as such EWS Reservations had to be evolved to confine themselves within the 50% ceiling limit. In today's proceedings, Sr. Adv. Sankaranarayanan broadly made three submissions. First, that the phrase "economically weaker sections" was not a new one and had been accepted both statutorily and by judgements. Second, the creation of EWS did not violate the prohibition of caste classification as per the Constitution. Third, the words "in addition to the existing reservations" under Article 15(6) and 16(6) violated the basic structure of Indian Constitution.I. EWS has been previously accepted both statutorily and by judgements.Sr. Adv. Sankaranarayanan started his arguments by stating–"First, if there is a challenge, I am not sure if there is one but if there is one to the EWS classification itself and its insertion in the Constitution, the challenge should normally proceed on the basis of saying that the basis of the judgement (Indra Sawhney & Others v. Union of India) has not been properly removed. Or independent of the basis removed, on its own there can't be a classification of EWS. Now, I have conceived that it is the latter argument because I am afraid I haven't heard an argument saying that Indra Sawhney judgement's basis is not removed. So if it is the latter, the broad submissions on that are that the economical weaker sections, or any other parlance as used to that effect– economically disadvantaged, poverty stricken, weaker sections et cetera, are phrases that have been accepted both statutorily and by judgements."He submitted that EWS was an age old classification which was introduced because the interpretation of backward classes in Articles 15 and 16 had included economically weaker sections. However, after Indra Sawhney judgement stated that backward classes could not be identified solely on an economic basis, an interpretation of EWS being included in Articles 15 and 16 was not possible. Therefore, the Constitution had to be amended to add Articles 15(6) and 16(6). He added that the mere naming of the EWS as a class could not be considered violative of the Constitution as economically weaker sections had been granted assistance previously in housing, admission to schools, filing PILs etc. In this regard, he placed on record 33 judgements establishing the same. He added that even statutes had recognised EWS as a class and provided the example of the Right to Education Act. II. EWS does not violate caste prohibition Moving to his second submission, Sr. Adv. Sankaranarayanan stated that there had been many arguments made to the effect that the creation of the EWS class was caste based as it afforded an opportunity to forward castes and therefore it violated the prohibition in the Constitution of caste classification. He stated–"I argue that it is exactly the opposite. The caste classification was done by virtue or in pursuance to the Indra Sawhney judgement where it said that you can use caste as a starting point. That is where it emanates. If at all, there is an ADM Jabalpur, that is the ADM Jabalpur. I can even show you passages from Mr. Palkiwala, writing in the Hindustan Times in April 1992- saying that this judgement more than any other will create cleavages going forward and we have seen that in last 30 years. This is the first, most welcome step away from that saying that let us not use caste, let us move away from it. Therefore, this is not a classification which violates in any way a caste-based prohibition. It is precisely the opposite and by excluding those classes for whom reservations are already made, there is no violation of the equality code. Those are not castes for whom protection has been granted, that is what Indra Sawhney says. Those are classes. In excluding those classes and in providing 10%, there is no violation of the equality code. In fact it sustains the equality code." He added that the reason why the amendment was not casteist was because it included poor muslims, poor Christians, poor Sikhs and so on. He further stated that EWS had nothing to do with caste, but was solely concerned with class. He stated–"Those sections who are economically weak are covered in Articles 15 and 16. If they want to be included here, your lordships would upset the balance. The idea is to have them in separate circles. This amendment today strikes a balance- OBCs, SCs and STs get...

EWS Quota Violates Basic Structure Of Constitution For Crossing 50% Ceiling Limit : Gopal Sankaranarayanan To Supreme Court [Day 4]

Padmakshi Sharma

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