EWS Quota : Supreme Court Constitution Bench Reserves Judgment On Pleas Challenging 103rd Constitutional Amendment

A Constitution Bench of the Supreme Court on Tuesday, reserved judgment on a batch of petitions challenging the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment.

The 5-judge bench comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala held hearing for seven days. On the final day, the petitioners' lawyers made rejoinder to the arguments made by the Union Government.

The rejoinder arguments were commenced by Senior Advocate Prof. Ravi Varma Kumar. While highlighting the plight of various scheduled tribes living in mountains, deep valleys and areas which were far away from modern civilisation, he stated that these tribes were not caucasians, and that it was the mainland Indians which were all caucasians. He relied on the "impact test" to stated that it was these tribes which were being excluded based upon their race and this destroyed the equality code by discriminating on the basis of race. He further submitted that the Union Government had yet not provided the nexus between reservation and poverty or explained why other benefits instead of reservations could not be granted to economically weaker sections. Rebutting the contentions of the State regarding the SC/ST/OBCs being a homogenous group and economic criteria already having been used in granting Right to Education, Prof. Ravi stated that the court had itself noted that these classes were not homogenous groups and that Article 21A (RTE) never excluded backward classes from its ambit. Senior Advocate Gopal Sankaranarayanan argued against the compartmentalisation of classes and also submitted that the 50% ceiling limit was sacrosanct and violating it would be a shocking infringement of the basic structure. In this regard, he also submitted that something inflexible could also be basic structure. Further, Senior Advocate P. Wilson argued that the data submitted by the government was not empirical in nature and as such reliance on Sinho Commission data and the NSSO data would not help the government establish any reservation. The hearings also saw arguments raised by Senior Advocate Meenakshi Arora who submitted that the Indra Sawhney judgements were required to be treated as a voice of the court and nothing warranted their overruling merely because they were concerning an Office Memorandum. She also submitted that it was the impact of the action which had to be taken into consideration. While referring to the philosophical doctrine of the "Ship of Thesus", she submitted that if the arguments of the government that "not all incursions in basic structure violate basic feature, unless they are shocking" is accepted, the basic structure could be destroyed chip by chip. The arguments were continued by Senior Advocate Sanjay Parikh who stated that the essence of backwardness, which was not economic, should come in the forefront which providing reservations and; Dr. Chauhan who submitted that historical context and discrimination had to be taken into account while providing reservations.

Finally, the rejoinder was concluded by Dr. Mohan Gopal who argued that socially and educationally backward class was a category that united all categories as backward classes- based on social, economic and political backwardness. He submitted that the compartmentalisation of classes, the quality of forwardness being required as a pre-requisite for granting reservations and the letting loose of reservations in the society as a benign welfare activity violently opposed the basic structure. While urging the court to take a "constitutionalist approach", he stated that the interpretation of the amendment must be one where "other than" is interpreted to mean that the criteria shall be distinct. He stated that this would allow the court to keep the amendment going without letting reservation run loose and disconnecting it from backwardness.

Following this, the bench reserved the judgement on the matter. Additionally, the bench requested Advocate Shadan Farasat and Advocate Kanu Agarwal to assist the court in putting the written compilations in a concise form within 2-3 days.

A detailed report on submissions advanced in the hearings today will be published separately.  

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

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