"Only 1/6th Of BPL Section Belongs To General Category" : Supreme Court Remarks During EWS Quota Case Hearing [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. Today's pleadings were continued by the Attorney General of India, K.K. Venugopal from yesterday. Yesterday, the AG had argued that SCs and STs had been "loaded with benefits" by way of affirmative actions and since these groups were highly unequal and in tremendous position so far as reservations were concerned, the EWS Quota did not erode their rights. A report on his submissions from yesterday can be found here. In today's proceedings, he argued on four grounds. First, that the non-reserved category was an independent category on its own and thus, the 10% reservations granted by the 103rd amendment would not be added to the 50% limit meant for backward classes. Second, that economic criteria could be the sole determining factor for backwardness and third, that the 50% ceiling limit was not inviolable and could be breached in exceptional circumstances. Fourth, he submitted that unequals could not be treated equally and backward classes were unequal to forward classes, in terms of reservations. I. The non-reserved category is an independent categoryThe AG submitted that reservation for the three backward classes was limited to 50% and that the non-reserved category was an independent category among which 10% was now being reserved for the economically weaker. He stated–"10% reserved for the EWS in General Category cannot be added to the 50% limit. It is only if you add to the 50% reserved with the backward classes, the limit will arise. This 10% fall under an independent compartment, independent from the SCs, STs and OBCs' 50% compartment."He submitted that the 103rd amendment was introduced in furtherance of the State's duty, mandated under the Directive Principles of State Policy, the Preamble of the Constitution and Articles 46 and 47. He described reservations for the three backward classes as a separate compartment as opposed to reservations for the general category. He stated that these two "compartments" were independent of one another. To this, the CJI stated–"A counsel submitted that so far as creamy layer component in OBCs is concerned...because they would not be entitled to any reservation as a matter of right, those who are above the creamy layer. Correct? So therefore, for them, the area or the compartment which is available is what is normally called the open, general compartment. Correct? Now, you are, by reserving 10%, to categories for whom the reservation is already made in say 50% bracket, you are reserving it only for categories other than those specified under (4) and (5), which means that OBCs who are above the cut-off level, above the creamy layer level, for them the piece of cake gets reduced from 50% to 40%. So therefore you have to keep that in mind. It is true that the general category has not advanced any submissions. But the effect of that, the 10% getting reduced from the quota available to the general category, has been projected and advanced by one of the counsels for OBCs. So please keep that in mind."The AG reiterated that the 10% would not be reduced from 50% if the two categories are placed in separate compartments. To this, the CJI enquired–"Are you suggesting what Mr. Gopal Sankaranarayanan argued? That the 10% should be subsumed in the 50%? Or will it be in addition to the 50%... So your submission is that, those categories which are spoken for under (4) and (5), their share remains intact. So the 10% part is eaten into what is available for open or general category, this is your submission?"The AG responded in an affirmative. The CJI continued his line of questioning and stated–"There is a complaint that if you go by Balaji, then at least 50% must be available for general category candidates or for general category persons. So that itself is an erosion. 10% is getting sliced out of that quota. Above creamy layer cut off, those people will certainly be a part of the open or general category. For open general category, in the absence of 103rd amendment, it would be 50%. But as a result of the 103rd amendment now it will get reduced to 40%. Is your submission that they can also compete in this category? The 10% category? They cannot. Because by reason of your barrier, they cannot compete."The AG responded by stating that before the 103rd amendment, the creamy layer would have competed in the general category. He stated that nothing had been changed with regards to that by the 10% reservation for the economically weaker sections. The rest of the OBCs, he stated, were not affected by the reservation as the creamy layer had been skimmed off. He submitted that the only question was whether the 10% in addition to 50% violated the Constitution. He stated that qualitatively, and...

"Only 1/6th Of BPL Section Belongs To General Category" : Supreme Court Remarks During EWS Quota Case Hearing [Day 5]

Padmakshi Sharma

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