J Bhat: I remember Mr. Venugopal standing where you were standing and saying that.
Arora: The constitutional mandate of reservation requires that reservation should be given to those who are not represented adequately in state services. There should be reservation but criteria is complex. Whether EWS include any such yardstick?
Arora: For 15/16, there is a commission to determine the backwardness. For EWS, there is no such commission, no such yardstick. Today the criteria is 8L, I don't know 80-90% of Indians earn that.
Arora: Reservations are not intended to operate in perpetuity but only till there is inadequate representation.
Arora: Features of equality code is basic structure of constitution. Why? Because substantive equality is ultimate goal. That reminds me of Devidasan judgement- if you go in a horse race and you have a well bred trained horse, you have to give benefit to untrained horse.
Arora: So economic backwardness is an included facet in 15 and 16.
Arora: Reservation is limited to a certain few. The people that have been left out cannot be not given reservation. That is an alternative argument.
Arora: Therefore, summing this part up, nature of disadvantage that reservation targets is group based and is entrenched and cannot be overcome by individuals.
It's class based, entrenched, cannot be overcome by individual effort or by getting lottery, jobs.
Arora: To achieve this goal, we've introduced reservations. The constitution provides certain features where reservations are provided. First, it is a remedy for historic and continuing lack of adequate representation of certain groups in educational and employment spheres.
Arora: This takes form of quotas. This lack of representation has to be caused. There has to be a reason. Because it was caused by structural and institutional barriers qua their membership of particular groups, caste. It's this reason that beneficiaries of reservation are class
Arora: It is our case that conception of equality is a part of basic structure. It is undeniable that equality is a part of basic structure. I'm not going to give judgements but they're footnoted.
Arora: In India we have adapted a specific manifestation of equality which is based on our social, political, history.
Arora: EWS is becoming individualistic. Reservation is class-based structure to uplift their standards to other forward classes. They are not a poverty elevation program as has being held in Indira Sawhney judgement.
Arora: Backwardness is required to be determined on multiple factors by committees which is Article 340 of Constitution. Then lay down the test in Jarnail Singh and Nagaraj. This is one of the guard rails- how to determine backwardness.
Arora: Representation is a guard rail which has been built in. Reservation cannot exceed 50%- Balaji. Reservation of SC and STs must balance administration with social justice.
Arora: Reservations are class based remedies. They're class as against a section. Economically weaker Sections- that is the amendment. Reservations are class based to counteract the historic injustices.
Arora: The court is extremely zealous to the extent that marrying into a backward class doesn't make you backward and even if on your volition you become Kshatriya, you don't...
Arora cites a judgement to say that if you lie about your caste to get reservation you lose everything.
Arora: I'm citing this Madhuri Patil principle that this court has said that take advantage of reservations on basis of fake docs and you lose everything - your qualification as a doctor which you have already acquired. There is no protection.
Arora: Simple illustration - creamy layer. This court said that the creamy layer for those who belong to backward categories, no longer backward as they've overcome a threshold. Even denied reservation when a forward category married a backward class.
Arora: Similarly, when a tribal attained the status of Kshatriya, this court said that it's impossible to do so. This judgement is B.V. Giri...
Arora: [Refers to Ambedkar's speech from Constitution Debates] Reservations which are based on only one class (Balaji struck it down) and only on income (struck down by Indira Sawhney).