EWS Reservation- Supreme Court Constitution Bench Hearing DAY 2- LIVE UPDATES
Kumar: (reading art 46) "protect them from exploitation" Who has exploited these people? Where were they exploited? When were they exploited? They can never be classified under 46, much less can they be conferred a whopping 10% reservation.
Kumar: (reading art 46) "and shall protect them from social injustice" what is this social injustice that a kshatriya, brahmin or vaishya suffer? None of these groups suffered any social injustice. They cannot come under 46
Kumar: Just because they're economically weak, they do not become a class for any state action.
CJI: Yes
Kumar: Article 46 I'm reading for only this purpose
[Reads Article 46] Weaker sections should be understood ejusdem generis SCs and STs.
Kumar: The decision also quotes Kalelkar report and says that upper caste man cannot change his status and become backward just because he starts cleaning shoes. A class as understood should be homogeneous, should have numerical strength and have origin in religion
[Kumar refers to Justice Sawant's opinion on Article 46]
Kumar (citing A. Peeriakaruppan v. State of Tamil Nadu from Indira Sawhney judgement]: "Caste has always been recognised as class..."
CJI: ...Wider definition of weaker sections?
Kumar: Yes, article 46 itself says weaker classes esp SCs and STs.
J Bhat: The reason why exclusion is permissible is because that is another constitutionally mandated class. Affirmative action carries an element of exclusion but it ensures that Target groups get what they're supposed to.
CJI: Communities other than SEBCs can they come in...
J Bhat: So there is an element of exclusion. The SC category cannot get into the seats marked for backward classes. So the answer could be that backward classes are synonymous due to judgements like Indira Sawhney.
CJI: If there is a vertical reservation for OBCs, in that vertical column, those from SCs and STs would be disqualified
Kumar: I bow down to this submission, they're vertical but they're classification. Reservation is a protection given to these designated sections.
Kumar: So they have to be read together - SC, STs and weaker sections. Weaker sections are those which can find company with SCs and STs, cannot be something wholly differently, more importantly it cannot disqualify SCs and STs.