For the first time, EWS has received a 10% admissions and employment quota out of a total of 50% general category seats without compromising the “completely autonomous” reservation for SCs, STs, and OBCs, the Centre informed the Supreme Court on Tuesday. Atty General K K Venugopal argued vehemently in favour of the 103rd constitutional amendment, which grants a 10% quota to the EWS and does not interfere with the 50% quota set aside for the socially and economically disadvantaged classes before a five-judge constitution bench chaired by Chief Justice U U Lalit (SEBC).
Tamil Nadu, on the other hand, objected to the EWS quota, arguing that economic factors cannot serve as the foundation for classification and that, if the EWS reserve is upheld, the top court will need to review the Indira Sawhney (Mandal) decision. The chief law officer went on to discuss the state’s affirmative action policies outside of the quota, citing constitutional laws and claiming that Scheduled Castes and Scheduled Tribes have received preference for promotion in government posts, the legislature, panchayats, and municipalities. This is the first time that EWS has received it. However, as far as the SCs and STs are concerned, they have received many advantages due to State affirmative action.
They are highly unequal…,” he told the bench which also comprised Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala.
Venugopal attempted to make a distinction between the SEBC and the EWS of the general category, insisting both are unequal and not homogenous groups. “A large population of this general category, which is perhaps more meritorious, will be deprived of the opportunities in educational institutions and jobs (if the quota for them is scrapped).” According to him, the EWS reserve is separate and the quotas for SCs, STs, and OBCs are “self-contained divisions of backwardness.”
The bench questioned, “Do you have any data showing that EWS in the open category, how much will be their percentage?” The law officer used the Multi-dimensional Poverty Index established by the Niti Ayog and stated that EWS made up 18.2% of the general category’s entire population. He stated, “In terms of statistics, that would be around 350 million (3.5 crores) of the population. In contrast to the EWS quota, the reservations for OBCs, SCs, and STs fall under distinct categories, and Venugopal said they do not go against the Constitution’s fundamental principles. “I’ve come to the conclusion that there were actually two compartments for reservations. One is restricted to 50% for backward grades.
The other is a class which is also 50 per cent which is for general category,” he said. Venugopal would resume his argument on Wednesday.
The EWS quota system was initially backed by prominent attorney Gopal Sankaranarayanan, who was representing the NGO “Youth for Equality.” He claimed it was “far overdue” and a “good move in the right direction.” “The fact that the maximum EWS reservation percentage has been set at 10%, on top of the existing reservations, means that the 50% ceiling restriction would be exceeded. In fact, he stated, “the reservation numbers across the country show how things stand in disturbing the delicate balance that has been achieved by the 50% limit,” and he cited Tamil Nadu and Kerala as two places where the 50% threshold had been exceeded.
It may be worth noting that the SCs, STs and OBCs receive political reservation as well under the Constitution, and there are no ceiling limits to the extent of reservation each of the groups can receive, he said. “On the other hand, EWS reservation is capped at 10 per cent and is not extended to the political reservation, thereby providing a balance,” he added. The insertion of the Economically Weaker Sections is perfectly valid as a class for the extension of special provisions for their advancement, for admissions and for reservations in posts, he said.
The notion of reasonableness and the absence of arbitrariness, according to senior attorney Shekhar Naphade, who is representing Tamil Nadu, are provisions of Article 14 (right to equality) of the Constitution. According to him, it would be unlawful to define economic criteria for quota distribution alone because the right to equality is a fundamental component of society. The highest court had already declined on September 15 to consider a submission that claimed Parliament had swiftly approved the 103rd constitutional amendment to grant a 10% quota to the EWS, claiming it was “barred from going into that domain.”
The Lok Sabha and the Rajya Sabha cleared the 103rd Amendment Bill on January 8 and 9 in 2019 respectively before it was signed into law by then President Ram Nath Kovind. The apex court had said the constitution bench will also decide whether the 103rd amendment breached the doctrine of the basic structure of the Constitution by allowing the state to make such special provisions.
