The Supreme Court said it was “restricted from delving into that domain” and declined to consider a submission that claimed Parliament had approved the 103rd constitutional amendment to grant a 10% quota to the Economically Weaker Sections (EWS) without much discussion. The top court reaffirmed that using economic criteria to ensure that the benefits of government policies reach the target group is not “proscribed,” but rather a “recognized” basis of classification while hearing a number of petitions challenging the Centre’s decision to grant reservation to the EWS in education and government jobs.
“The Constitution is a living, evolving document. Generations of poverty are evident. We also observe the BPL (below the poverty line) groups. There is a sizable group of them. Why is it impossible for the State to implement economic-based affirmative action, said the five-judge Constitutional bench led by Chief Justice Uday Umesh Lalit?
In support of one of the petitioners, senior attorney K S Chauhan cited former Chief Justice N V Ramana’s statements to emphasise the point that laws are being passed in Parliament with little to no discussion. “Deliberations are the foundation of democracy, and we are a democracy. The Lok Sabha and Rajya Sabha both approved this constitutional amendment measure on January 8 and January 9, respectively. The lawyer stated, “I could not discover any disagreement on this. “We are prohibited from participating in that area with respect to what is said in Parliament. We can’t interfere with the legislative process, and this isn’t a defence. We’re unable to step in. Why discuss and debate this?” observed the bench, which also comprised justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala.
The bench stated that “we are losing our energy if we argue about that” and declined to consider the lack of discussion about the modification in Parliament as a basis for a challenge. The bench orally remarked, “Nobody doubts a reality that historical prejudice leads to economic disadvantage as well. This was in response to the vehement argument made by some attorneys that economic factors cannot be the basis for granting quotas. Others are thought to be excluded by the EWS amendment since they are already protected by other protection plans. This is the main problem. It questioned what was “so terrible” if the government used affirmative action, such as the granting of reservations, to help the EWS even though this group is not “homogenous.”
EWS quota
Senior attorney Gopal Sankaranarayanan backed the EWS quota plan at the conclusion of the third day of the hearing on behalf of the NGO “Youth for Equality,” saying it was “long overdue” and a “good move in the right direction.” The EWS concept is not an alien one, he said, adding that the 50% ceiling, as outlined in the Mandal judgement, has also been exceeded in the past. He made reference to the adoption of EWS criteria in the statute on the right to education, where disadvantaged pupils receive free education in schools. The 103rd Bill was approved by both the Lok Sabha and the Rajya Sabha on January 8 and January 9, 2019, before being signed by the president in office at the time, Ram Nath Kovind.
The EWS quota is over and above the existing 50 per cent reservation to SCs, STs, and Other Backward Classes (OBCs).
During the day, senior attorneys P Wilson, K S Chauhan, Sankaranarayanan, and advocate Shadan Farasat spoke before the bench. Wilson used court rulings to criticise the EWS quota, claiming that it violates the equality code found in Articles 14, 15, and 16 because it excludes SCs, STs, and OBCs from employment. Additionally, Chauhan cited rulings, such as the Kesavananda Bharati case from 1973, and claimed that the quota statute changed the basic structure doctrine. He stated that “a component of democracy would be lost by this,” adding that “the reservation exclusively on the basis of economic criteria is not permitted and this has been held by this court.”
Khalid Anis Ansari’s attorney, Shadan Farasat, said that the exclusion of backward classes from the EWS quota amounts to discrimination exclusively on the basis of caste and undermines the formal and actual equality that the equality law is based on. “Data from the UN make it abundantly clear that 85% of India’s poorest people come from the lower social groups. Therefore, the amendment shows its true goal to act as a quota for middle-class members of forwarding castes by eliminating the backward classes from the scope of EWS reservations, according to him.
In fact, the income criteria of Rs 8 lakh per annum, fixed by the Centre for the EWS quota, is not a valid criterion for identifying the poor, he said, adding “at this threshold, as per available data, merely 2-5% of forwarding caste members are ineligible”.
September 20 marks the return of the hearing. As a result of the appeals contesting the Centre’s decision to provide EWS 10% of the seats in educational institutions and in government positions, the top court previously set three main issues for assessment. It stated that by permitting the state to enact such unique provisions, the 103rd amendment violated the theory of the Constitution’s fundamental structure. The bench will also rule if this.
