Is EWS Quota Not Reducing Share For Those Competing On Merit?Is It Not Caste-Based Exclusion From General Category? Supreme Court Asks [Day 5]

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. The pleadings were commenced by the Attorney General of India, K.K. Venugopal. A report on his submissions from yesterday can be found here.AG Venugopal's arguments were followed by Senior Advocate Mahesh Jethmalani's submissions. Sr. Adv. Jethmalani was appearing for the State of Maharashtra. He commenced his arguments by submitting that those envisioned under Article 15(4) had the same position as the forward class minus the people falling in the EWS category. While referring to M. Nagaraj & Others v. Union Of India, he stated that a literal approach, instead of a purposive approach had to be taken while interpreting the Constitution. He submitted that the content of the expression 'equality by law' took within its sweep, Article 46 as well. Further, he stated that while the Indra Sawhney judgement laid down that economic criteria shall not be a criteria for inclusion of a category within the backward class, the creamy layer OBCs were excluded on basis of economic criteria. Thus, there existed a contradiction. However, Justice Bhat intervened and asked–"Did the concept of creamy layer exist during Indra Sawhney?"When Sr. Adv. Jethmalani stated that it was argued in the court, Justice Bhat clarified that despite being argued, it was not a concept which had been established. He added–"For three years, there is a creamy layer so some people are excluded but a child might get it. Same thing might happen today. But with EWS you're moving around, you're crossing a line. You may continue being poor."The CJI followed this by stating–"Let's test it. The essence of the submissions is that take for eg ceiling law- the source is someone who is earning lots of wealth, distributing it to those who are have nots. So it is distribution of wealth. Therefore, at whose expense? The haves. You're giving to have nots, from the haves. Today it is reverse. You're carving out a separate area. The persons who are getting affected are not from the category that are from the better lot. The concept of open category is not something which is meant for someone. It's meant for everyone depending upon merit. The moment you make a departure and say it's not open for all, you're departing from the rule. So far as General Category is concerned, keep at least 50%. As a result of carving 10%, are you not reducing the share for those who were competing on basis of merit? So far as (4) and (5) are concerned, you can have reservations. But so far as open category is concerned, it is open for all. By this 10% you're reducing the share of that open category."Justice Bhat continued this line of questioning and stated–"There is a right to be treated as an open category. Therefore, it's a floating thing. Depending upon performance, you get into merit. In the open category, you could have from all. Once you put 10% embargo, you're excluding them on basis of caste."Sr. Adv. Jethmalani argued that even if forward classes were falling back, it was not such a violation of the constitution that it destroyed its very identity. He stated that at the most it was a "marginal tweaking".To this, the CJI stated–"Take for instance OBCs above creamy layer, will their share not get reduced? Just as the open general category, for everyone, hasn't the size shrunk? And if it has shrunk, at whose expense? Emphasis is that there are certain classes who need special protection. So you have identified scientifically these classes and then said that this is the target class. So up till now you're giving affirmative action but suddenly you're saying now that you're from a particular caste you can't get it. Therefore, you say is that you have a special reservation so you must confine yourself to that. We will not permit you from that arena to this arena. This is reserved to those who have no reservations."Justice Bhat also added–"As far as legal arguments go one can understand. If today your creamy layer definition is 8 lakhs and it's 3 years. So in a given set of 3 years you are creamy layer, in other 3 years you're not. It's only a line which is drawn for entitlement. In case of EWS, there is no status there. OBCs- each caste is a grouping. EWS are also identifiable by some class or caste- they too would be floating. Some would be in 2 years, 3 years. They belong to non backward classes which means they are not homogeneous. So to say all unreserved are homogeneous is an assumption. That's not how reservations work. Adding this EWS, we don't know. But exclusion is what is hurting. The way you can reach it is by exclusion. To understand all as one homogeneous class is wrong. Each one of them is different. Constitution has seen them as differently- SC, ST and OBC. To tell a man that...

Is EWS Quota Not Reducing Share For Those Competing On Merit?Is It Not Caste-Based Exclusion From General Category? Supreme Court Asks [Day 5]

Padmakshi Sharma

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