[EWS Quota] Can Posts Be Reserved Only On The Basis Of Economic Criterion? Is 50% Ceiling Absolute? : SC Refers Substantial Questions Of Law To 5-Judge Bench

A bench comprised of Chief Justice SA Bobde, Justice Subhash Reddy and Justice BR Gavai said that the matter involves "substantial questions of law" that should be considered by Bench of five Judges.

"It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges," the bench observed.

Article 145(3) of the Constitution stipulates that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.

Similarly, Order XXXVIII Rule 1(1) of the SC Rules provides: Every petition under article 32 of the Constitution shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges.

In light of the above provisions, the Court noted that the Constitutional challenge needs to be examined by a larger bench as it involves interpretation on the touchstone of equality and further it is to be ascertained whether the Government can bypass the 50% ceiling cap in the matters of reservation, in special circumstances.

"As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges," it thus held.

The Petitioners had pleaded that a backward class cannot be determined only and exclusively with reference to economic criterion. Social backwardness is the cause and not the consequence of either of their economic or educational backwardness, they had submitted.

Further, it was their case that the impugned Amendment violates the rule of 50% quota for affirmative action and reservation as enunciated by the Top Court in Indra Sawnhey & Ors. v. Union of India & Ors., 1992 Supp (3) SCC 217.

It was contended that the Amendment Act dilutes the basic structure of Constitution and it ought to be tested by applying the tests of 'width' and 'identity' of equality provisions, and therefore the matter should be heard by a Constitution Bench. Reliance was placed on M. Nagaraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212.

Based on these submissions, the bench proceeded to examine whether the question raised in the writ petitions will involve a substantial question of law or not.

It observed,

"It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges."

The Court added,

"Whether the impugned Amendment Act violates etc. basic structure of the Constitution, by applying the tests of 'width' and 'identity' with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law..."

Further, on the plea of ceiling of 50% for affirmative action the Court said,

"It is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges…"

The matter has therefore been placed before the CJI for constitution of a five-Judge bench.

Inter alia, the Court has also allowed the transfer applications filed by the Union of India, seeking transfer of all similar challenge to the impugned Amendment Act pending before various high courts, to the Supreme Court. This is to avoid conflicting findings by different high courts and prevent multiplicity of proceedings.

Know the Law

In the case of M. Nagraj (supra), a Constitution Bench of five Judges had held that in the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the 'width test' and the test of 'identity'.

The 'width test' examines the boundaries of the amending power and checks whether the amendments obliterate any constitutional requirement, such as the 50% ceiling for reservations, the concept of creamy layer, the backwardness and inadequacy of representation, and the overall administrative efficiency. The 'identity test' on the other hand, examines whether the amendment has altered the identity of the Constitution beyond recognition.

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