The Supreme Court on Thursday put several serious questions to the Union Government regarding its decision to adopt the criteria of annual income of Rupees 8 lakhs to determine Economically Weaker Sections (EWS) for the purpose of reservation in the All India Quota for seats under the National Eligibility-cum-Entrance Test(NEET).
Hearing a batch of petitions challenging the decision of the Union Government to introduce 10% EWS and 27% OBC reservation in NEET-AIQ, a bench comprising Justices DY Chandrachud, Vikram Nath and BV Nagarathna asked the Additional Solicitor General KM Nataraj regarding the studies and deliberations undertaken for fixing this criteria.
The ASG submitted that the income criteria for EWS was a "matter of policy". Explaining the basis for the decision, the ASG submitted that the decision was based on the national cost of living.
The ASG mentioned that the same criteria of 8 lakhs is there for determining creamy lawyer under the Other Backward Classes(OBC) quota. "In 2015 it was 6.5 lakhs for creamy layer, in 2017 it was increased to 8 lakhs for creamy layer", the ASG submitted.
How can criteria for creamy layer be applied for EWS?
On hearing the ASG's submissions, the bench wondered if the criteria for creamy layer has been mechanically lifted and applied for EWS as well. The bench pointed out that there is no concept of social backwardness for EWS category, and hence the creamy layer criteria for the Socially and Educationally Backward Classes may not automatically fit the former.
"As far as EWS is concerned, there is no social or educational backwardness. So can you apply the same yardstick of 8 lakh limit for creamy layer to the EWS? In the case of EWS, we are not dealing with social and educational backwardness. So have you lifted the criteria for creamy layer mechanically for EWS? And have you considered only income or income and assets?", Justice Chandrachud asked.
"Mr. Nataraj, you better reflect on these. On what is the indicia for EWS? And what exercise has been done for arriving at this by the Govt of India? You cannot apply the same indicia as you apply for the SEBC. See because in the case of creamy layer, the concept of creamy layer is that by reason of economic advancement, indicia of backwardness is completely obliterated. But in the case of EWS, there is no concept of obliteration of social backwardness. We are not looking at social backwardness at all", Justice Chandrachud continued.
How can uniform criteria apply across the country?
The bench also asked how a uniform criteria can be made applicable across the country, without taking into account the huge disparities in per incapita income in different states.
"Mr. Nataraj, I will tell you a fable. Not a fable, a real happening. When we recommend lawyers as judges, there is an income criteria. For example, income criteria of "X". But for a person in Allahabad, "X" will be a huge income. It might be different in Mumbai. The scale of pay, living cost etc are different. In one place you may have corporate clients paying", Justice Chandrachud cited an example.
"The reason we say is that, the explanation to Article 15(6) says the the states will define the income criteria. There is a reason behind this. For example, in a hilly state with remote areas, income of 3 lakhs might be the economically weaker section. It may not be the economically weaker section in any other developed state .
Even within a state, there will be different parameters. For example, in Maharashtra, different parameters will be there for Gadchiroli and Mumbai. For UP, different parameters will be there for Ghaziabad, or Eastern UP or Behraich or for any other interior districts", Justice Chandrachud further remarked.
The judge pointed out that even for House Rent Allowance(HRA), there was the concept of Class-1, Class-2 cities.
"What is this exercise ? How can you say 8 lakhs everywhere for the country?Who carried out the study? What were the contemporaneous studies which the government relied?", the judge further sought to know.
"You can't say it is a matter of policy. For EWS quota, there is a constitution amendment. But what about this income criteria, who deliberated?", Justice Chandrachud further commented.
The ASG at this point said that these are larger issues which are pending before the larger bench. However, Justice Chandrachud said that the larger bench was examining the validity of the 103rd Constitution Amendment(which introduced provisions for EWS), and the present bench was concerned with the implementation of the amendment.
The ASG pointed out that it was the Ministry of Social Justice and Empowerment and the Department of the Personnel and Training need to reply to these aspects. Since these Ministries/Departments have not been added as respondents in the case, the ASG said that he was not in a position to give a ready answer.
He sought for time to get instructions from the concerned Ministries to file an affidavit.
Senior Advocate Arvind Datar, who had earlier argued for the petitioners that the income limit was arbitrary, submitted that when the ASG is appearing in a matter, the appearance is for the entire Central Government and the non-joinder of a particular Ministry was immaterial.
Granting leave to the petitioners to amend the writ petition to formally add these two Ministries as parties in the case, the bench directed the ASG to respond to the queries raised by it by taking instructions from the concerned Ministries. The bench also asked the ASG to respond to the arguments raised by Senior Advocate Shyam Divan, who appeared in a connected matter, against the applicability of OBC quota in AIQ of PG medical seats.
The hearing will continue on October 22.
He stressed that the income tax limit of Rs 8 lakh per annum to determine the EWS category is arbitrary.
"A uniform figure of Rs 8 lakh is arbitrary. Statistics show that per capita income varies across states. Therefore determining the criteria for All India applications requires careful study," Senior Advocate Datar submitted.
He also contended that there was no clarity on the term, "annual income".
"Now we have a situation where there's a report by Major Sinho and the Office Memorandum which lays down various criteria. In the report, only annual income is given. We don't know on what basis this Committee had decided. There is the absence of clarity," Senior Counsel added to substantiate his contention.
To aver that there was no criteria based on which the income of 8 lakh limit was decided, Senior Counsel while relied on the Top Court's judgement of Indira Sawhney and pointed to the criteria based on which people belonging to socially and educationally backward classes were to be classified.
He thus submitted that there's complete dark as to how the parameter had been considered.
"There has to be some scientific criteria for determining economically weaker sections. There's a Commission for Backward Classes but there's no Commission for EWS. Normally a policy is not reviewable but the Court can go into the reasons behind the policy. If there are no reasons, policy is subject to judicial review. We are entitled to know the reasons. Today taking into consideration that apart from income no other criteria has been considered, 10% EWS cannot be carved out for this year," Senior Counsel also submitted.
Referring to the Top Court's judgement in K Duraisamy and Anr v The State of Tamil Nadu Senior Counsel Datar also contended that there should not be reservations at PG level.
"Poor are the ones who are most deserving. The seats should go to them. De jure there is 50% seats but de facto there is only 5%/6% seats," Senior Counsel submitted to conclude his submissions.
During the course of his submissions, Senior Counsel also referred to the recently appointed Justice AK Rajan Committee by the Tamil Nadu Government which says that students of state boards are suffering because of NEET.
During the earlier hearing, the bench on September 6 had issued notice in the writ petition filed by Dr Neil Aurelio Nunes and on September 17, 2021 had issued notice in the writ petition filed by Dr Madhura Kavishwar.
Submissions of Senior Advocate Shyam Divan
Senior Advocate Shyam Divan appeared for the petitioners who are challenging the OBC quota in AIQ. He submitted that the decision to introduce 27% OBC reservation in AIQ has resulted in removing 2500 PG Medical Seats from the "just merit" section. The decision was announced in July, for the exams scheduled in September. He pointed out that had it not been due to the postponement due to the COVID Second Wave, the exams would have got over in April. So, the decision to introduce OCB quota after the exam dates were announced amounted to "changing the rules of the game after it has begun".
Divan further pointed out the All India Quota was created as per the orders of the Supreme Court so to balance the domiciliary preferences adopted by different states. For introducing SC/ST reservation in AIQ, the Centre had sought the permission of the Supreme Court. Hence, the same course should have been adopted before taking the decision to implement OBC/EWS quota.
However, at this juncture, the bench pointed out that the decision was announced as a result of a mandamus issued by the Madras High Court.
Divan further referred to decisions like Pradeep Kumar Jain, Abhay Nath etc, to argue that there should be limited reservations at PG level.
"Society requires doctors of enormous merit. During the pandemic, we have seen their services.If we are talking about the difference, that is 2500 PG seats. They are now not available. If we are to remove 2500 seats from "just merit", that is a factor which should weigh with the Court", Divan submitted.
States need to be heard : Solicitor General
Solicitor General Tushar Mehta, who had appeared for a brief while in the forenoon session, had submitted that the views of the State Governments also need to be considered before the Court taking a final decision.
But the bench pointed out that the All India Quota is under the jurisdiction of the Central Government, and asked how will the States be concerned with it.
The SG replied the decision of the Court is likely to have a "pan-India effect" and was bound to impact the States as well.
Details of the petitions :
The bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna were hearing hearing the following pleas:
Plea by Dr Neil Aurelio Nunes filed through Dubey Law Associates and filed by Advocate Charu Mathur challenging the amended reservation policy (27% OBC and 10% EWS) in the All India Quota category scheme by the Central Government for UG and PG medical/dental courses as released vide notification dated July 29, 2021 by the Medical Counselling Committee. The petition had also sought a stay on the effect and operation of the July 29 notification and for issuing directions for the constituting committee of experts to examine modalities relating to the current reservation policy. Writ petition by Nunes also sought to declare the One Hundred and Third (Amendment) Act, 2019 ("Amendment Act'') and income limit of Rs 8 lakh per annum for EWS Category as unconstitutional.
Plea Dr Yash Tekwani filed through Dubey Law Associates and filed by Advocate Charu Mathur seeking Supreme Court's directions to quash the July 29, 2021 notification which provided for implementation of the prescribed reservation criteria with effect from the current academic year.
Plea by Dr Madhura Kavishwar filed through Advocate Vivek Singh challenging Centre's notification dated July 29, 2021 providing 27% reservation for OBC and 10% for EWS in All India Quota in admission to Postgraduate medical courses on the ground that it was in direct contravention of the Top Court's judgement in Union of India v R Rajeshwaran & Ors (2003) 9 SCC 294 and Union of India v K Jayakumar & Anr (2008) 17 SCC 478 in which the Court had held that requirement of reservation should not apply to seats of All India Quota.
Plea Dr Apurv Satish Gupta filed through Advocate Subodh S Patil which sought quashing of Centre's decision to introduce 27% reservation quota for OBC and 10% quota for EWS Category in 15% UG Quota and 50% PG quota in All India Medical seats in the State Government Medical Institutions being ultra vires to Constitution of India (102nd) Amendment Act, 2018 by notice dated July 29, 2021, through Director General of Health Services from Academic Year 2021-2022. The petition had also sought ex parte stay on the operation of notice dated July 29, 2021, issued by Director General of Health Services till the disposal of the case.
For live-updates posted from the hearing, refer this page.
Case Titles: Neil Aurelio Nunes and Ors v Union of India and Ors; Yash Tekwani and Ors v Medical Counselling Committee (MCC) and Ors