Economic Backwardness Can Be Temporary, Other Forms Of Backwardness Attached To Lineage : Supreme Court Says During EWS Case Hearing [Day 6]

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 Thursday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The arguments were commenced by Solicitor General of India, Tushar Mehta, who had provided a brief framework of his arguments in the last hearings. 

I. Constitutional Amendments can only be challenged on violation of basic structure

SG Mehta commenced his arguments by submitting that constitutional amendments could be challenged only on the ground of violation of basic structure of the Constitution. He stated that while challenging statutory provision, it was permissible to state that a given provision violated an Article of the Constitution. However, he submitted that when the Parliament itself inserted a provision, the validity of such a provision could not be questioned unless the said provision shook the very identity of the Constitution. He added–

"The Constitution is not a static formula which can never take care of aspirations of the nation. Who decides the aspirations of nation? The parliament. So if the parliament feels that without disturbing 15(4) or (5), some affirmative action is needed, your lordships won't intervene in it."

In this context, SG Mehta also quoted Jaishri Laxmanrao Patil v. The Chief Minister And Ors. and stated–

"Constitutional adjudication involves making choices, which necessarily means that lines have to be drawn, and at times re-drawn, depending on "the cauldron of change."

He submitted that due to these new aspirations of people and the constant drawing and redrawing of lines, if one additional class was added without disturbing the existing classes, it could not be challenged. He stated that when the constitution is amended, the validity of amendment could only be tested upon whether the amendment changed the very basic structure of the constitution. He added that it was never permitted to argue that a constitutional amendment was impermissible because it was different than or not completely in tune with other provisions of the Constitution. He submitted–

"While testing the insertion of a new clause, reliance cannot be placed on another clause unless you say that the edifice of the Constitution goes away by adding the new clause."

While submitting that the Parliament's power to amend the constitution was a delegated and constituent power, he stated that, challenging a constitutional amendment needed an extremely high degree of threshold. He added–

"Most petitioners have fallen into this fallacy. Indira Nehru Gandhi, Minerva Mill, Waman Rao, A.K. Roy, Kihoto, M Nagaraj and State NCT of Delhi v. UOI- all these judgements state a high degree of threshold is required. If 15(6), it's insertion, if it violates basic structure, the first exercise the petitioners should have undertaken is which is the basic structure which was violated? This would be my quintessential submission, that a constitutional amendment may even touch upon a basic structure, hypothetically, but unless it is shown that it alters the basic structure, it cannot be struck down."

II. Identification of Basic Structure

SG stated that in order to identify what constituted the basic structure, the principle guide was the Preamble of the Constitution. He stated–

"Considering the preamble, the amendment not only not destroys the basic structure but it strengthens the Preamble by giving justice- economic justice which is a fundamental part of the Preamble. The amendment enhances the basic structure if Preamble is the base."

While referring to the judgements of State of Madras v. Champakam Dorairajan, M. R. Balaji And Others v. State Of Mysore, Indra Sawhney v. Union of India and Jaishree Patil v. Chief Minister, he submitted that the Equality code was part of the basic structure. He added–

"Equality code can suitably be legislatively touched upon if it doesn't destroy the basic structure. It's an elastic concept, not static."

He stated that the exercise of constituent power may in certain cases be regarded as enhancing the basic structure, when it introduces new human rights and in that context, the 103rd amendment strengthened the basic structure by giving justice on economic principles. 

III. What constitutes violation of Basic Structure

On the point of what constituted a violation of the basic structure, SG Mehta quoted Justice Sikri from the Kesavananda Bharati v. State of Kerala and stated that–

"It's like four legs of a chair. Unless you remove one leg and it stops being a chair, it's not to be struck down." He further referred to Minerva Mills v. Union of India and added–

"It should completely change the identity, if they wish to scrutinise the constitutional amendment. Basic features aren't general constitutional rules but only those which are central to the constitution. Identifying basic features isn't by identifying best features but the central features. When it comes into its functional form- when it is implemented, suppose it is wrongly implemented, your Lordships can remove it. Someone challenging the implementation is permissible. But based on apprehensions on what would happen if they're implemented, that can't be a ground. It is submitted that issue of basic structure has been discussed right from Keshavananda Bharti where the position emerges...I won't read but a comparison between the level of basic structure defined and what we have done - we have just added a level for economic rights. Building a welfare state contained in the DPSPs- this is how the amendment has strengthened the basic structure."

However, Justice Bhat was not satisfied and stated–

"You can't trace even federalism in preamble, yet it is in basic structure. In Minerva Mill, the amendment had sought to undo Keshavananda. So the court went back to basic structure and said you cannot transcend the amending power. The point is, even newly amended features can violate basic structure. Right to Education, earlier it was a directive principle and now it is a fundamental right. Article 265 says noone can be taxed without authority, it's not Fundamental Right but it is important. If you delete it, would it not violate basic structure?"

The SG stated that the amendment had only introduced an enabling provision so states were not mandated to, but permitted to introduce EWS quotas. He agreed with the CJI in basic structure theory being ever-evolving and stated–

"Of course, otherwise the constitution would never develop. Like Right to Education, if it was not introduced, constitution would never develop. Basic structure comprises of many features like the legs of the chair. The petitioners have to establish that incurring of affirmative action on economic criteria amounts to egregious violation of basic structure. Petitioners have to show an absolute prohibition of economic criteria in equality code. If they can show this, this amendment violates basic structure. And they have to show that 50% is inviolable. My submission is that amendment treats poor people as a class. It's flexible and cannot violate basic structure.  Adequate representation is not the only reason for reservation. For eg., in many states there is reservation for physically disabled, there is no reason of representation, only for their enablement reservations are given." 

Here, Justice Bhat stated–

"One part is that all this adds up even in the unreserved category. Whether we like it or not, one part goes to the reserved category. The other parts stacks up into horizontal categories such as ex-servicemen, gender and disabled candidates etc. So they stack up. So when we say that the tendency to keep out general category is equally. So a man, a boy who is not disabled, who does not belong to the reserved category, and who is not a civil service man, his chance gets shrunk. For you to say that the seat has gone to a girl or a disabled person, for that boy it is cold comfort. He has lost that opportunity. That means take up to 10%. You have to also take that into consideration. The general category today, there is no way to say it is horizontal. Justice Jeevan Reddy visualised this, it is intersecting to the extent of the reserved category. But there is no intersection when it comes to the unreserved category. If you add up these, they will stack up. If they stack up it will be 10%, 15%, depending upon each state. In UP there is 20% gender reservation, then there is civil servant, the disabled categories etc. So we have to go with that reality. When you enhance the equality for some section, to give them representation, to empower them, there is nothing wrong in that per se. All that I'm saying is that this is the hidden part of it. This does not enter the constitutional discourse. The effect of horizontal reservations has not been studied after Indra Sawhney except in the cases of horizontal reservation."

III. Economic Criteria can be a determinant for backwardness : SG

SG Mehta then submitted that many were being benefitted by EWS and that economic criteria being a determinant of backwardness had been accepted by the court before. He stated–

"We have broadly 50% of reservations, 50% of non reservation. The 10% are again general category, open category students. In civil services, more than 50% are below yearly income of 2.5 Lakh, per family is just Rs 20000. This is where substantive equality comes.You equalise them with others. That is justice, economically and as expected in the preamble. To satisfy your Lordships conscious, what is being done has not been done for the first time. This has always been upheld or indicated in various judgements."

While quoting the judgement of M. Nagaraj v. Union of India, he stated–

"Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above, we are bound by the decision in Indra Sawhney"

He further added that something which was flexible could never be basic structure and highlighted that reservations went up till 70% in some states. 

Here, Justice Bhat stated–

"When you come to non reserved category, it is not as if these economic criteria people have no identifiers. They also belong to some caste. Therefore, there is a negative connotation - that you shouldn't belong to this caste. Any line you draw, in the non reserved category, there would be millions of outliers. Then you'll do it on, you're not poor enough. Yet the line you've drawn is that though they're not earning, they aren't poor enough. Is that intelligible differentia? The Constitution doesn't give any guidelines. When it comes to (5) and (4) the guidelines are clear- social and educational backwardness. When it comes to economic criteria, there is no identification. There are 25 states, they can come up with any criteria. There is indeterminability- you call it flexibility but it's indeterminability. You might enact something but the point is that basic controlling provision, EWS, is not capable of control by Constitution."

When SG Mehta retorted by stating that social backwardness was also not defined in Article 15(4), Justice Bhat pointed out that for the definition of social backwardness, one had to go beyond the constitution– to the Preamble, speeches of Dr. Ambedkar, debates in constituent assembly etc. The CJI added≠

"When it is about other reservations, it is attached to lineage. That backwardness is not something which is not temporary but goes down to centuries and generations. But economic backwardness can be temporary."

The SG refuted this by stating that–

"For SEBC, there is no permanence like SC/STs. There is flexibility. There is no set guidelines to determine SEBCs, just like there is none for EWS. This 8 lakh figure has not been arrived at just like that- by a detailed study parameters have been fixed. Earlier, a person having a telephone was not poor but today a person with a telephone can be poor...Further, absence of guidelines, is not a ground for challenging amendment, it's not basic structure. It is curable, the government can come out with a commission. If without that exercise, some state implements EWS, that act, that executive act can be challenged."

IV. SC/STs are a separate "protected" compartment

SG Mehta also contended that the 50% limit was a thumb rule and not sacrosanct. Thus, it could not be elevated to the level of basic structure. He stated that there existed two kinds of judgements on this issue– the ones which stated that 50% rule should not be ordinarily accepted and the other category, which stated that 50% ceiling limit was merely a thumb rule and not an inviolable rule. He added that–

"Their submission ignores that SC/STs and SEBCs in comparison to EWS would at least be entitled to avail existing reservations. They already have protection. EWS were completely kept outside, despite being weaker sections. If the argument of petitioner in this context is accepted that 15(6) should apply to 15(4) and 15(5) too, to SEBCs, it will make 15(4) and 15(5) unworkable. SC/STs being more backward, there is a separate compartment for them. If SC/STs are asked to share seats with SEBCs, this is not how reservation works. The only way is to create a third compartment- based on economic criteria. If 15(6) applied to 15(5), then it will be asked for 15(5) to also apply to 15(4)."

Here, Justice Bhat stated–

"Is it right for an egalitarian govt to say that sorry you are the poorest of poor but you've exhausted your reservation. I am not looking at totality. I am looking at the individual. The constitution has to have meaning to an individual. Argument of collective goes on but it breaks down at individuals...We're looking at the impact on equality...If you're an SC or ST of a particular state so you have a right. The moment you move out, your choice to move out debars you from claiming the SC/ST status. There it is an individual choice. Here, there is no choice."

The CJI added–

"As compared to those EWS in SC/ST, those coming from EWS in General Category, are better off."

While referring to a report, SG Mehta submitted–

"This committee has undertaken an exhaustive exercise. See how this has worked for the poorest of poor- they're getting benefits of this. In 2019, in UPSC exams, 79 were selected and maximum were in economic group of 0-2.5 lakhs. 2.5 lakhs means 20000 per month. There were arguments that 8 lakhs is such a huge limit. Kindly see this- the household income of EWS category- only 9% of EWS are in the highest."

Here, Justice Bhat stated– "Here it is only percentage, we don't know the actual figures. Even if you have 15, you can say 50%."

To this, the SG remarked–

"Someone has beautifully said about statistics- Statistics are used like a drunken man uses a pole, not for illumination, but for support."

Justice Bhat laughed and stated– "My father was a statistician."

CASE TITLE: Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues

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]