EWS Quota Arbitrary As It Excludes Poor On The Ground Of Caste; Only Benefits The Privileged : Ravi Verma Kumar To Supreme Court [Day 2]

The Supreme Court Constitution Bench, on Wednesday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. In the last hearing, submissions were made by Dr. Mohan Gopal, Senior Advocate Meenakshi Arora and Senior Advocate Sanjay Parikh. A detailed report of the submissions can be found here and here. Today's pleadings were commenced by Senior Advocate Prof. Ravi Verma Kumar, who, while addressing the Bench comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, submitted that weaker sections had to be understood ejusdem generis Scheduled Castes and Scheduled Tribes and that economic depravity was not a ground of discrimination under the Indian Constitution. 

State of Madras v. Champakam Dorairajan: Ratio of the Judgement

Prof. Kumar commenced his arguments by providing a history of reservations in India, tracing it through the landmark judgement of State of Madras v. Champakam Dorairajan. He stated that the first reservation policy was conceived in Mysore in 1872 and in Champakam Dorairajan, the reservation policy of Mysore was challenged and struck down by Madras High Court. He quoted from the judgement–

"It is argued that the petitioners are not denied admission only because they are Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for, so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community lot whom those reservations have been made...The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Article 29(2)."

Prof. Kumar stated that this ratio of Champakam Dorairajan had stood the test of time and been adopted in various other judgements such as Indira Sawhney v. Union of India, M. R. Balaji v. State Of Mysore and Ashoka Kumar Thakur v. Union of India. He stated that this was a prelude to show how an unconstitutional exercise had been given a colour of authority by enacting the 103rd Constitutional Amendment. 

Substantive Equality under Indian Constitution 

Elaborating upon the right to equality as provided under the Indian Constitution, Prof. Kumar stated that Article 14 had two limbs – the doctrine of equal opportunity and; equal protection of laws. He stated that this guaranteed substantive equality to citizens, as opposed to formal equality. Prof. Kumar elucidated upon the same by stating–

"First limb is to ensure equal opportunity and second one is to ensure that the country emerges as a casteless and classless, egalitarian society. These doctrines operate in different areas. Principle of equal opportunity, which should be made available to everyone– is reinforced by many provisions in the Constitution. One example is Article 15(1). It prohibits discrimination on enumerated grounds– religion, caste and sex, race, or place of birth."

He highlighted that despite having a provision for equality, the Constitution of India still prohibited discrimination because the Constitution framers found that Indian society was uneven and was divided on basis of religion, sex and caste. In this context, he referred to Article 15(2) and Article 29 of the Indian Constitution. Prof Kumar then elaborated upon how Article 16(1) and 16(2) both advanced the doctrine of equal opportunity by providing public employment, which was considered a means of empowerment at that time, to backward classes. On prohibition of untouchability as under Article 17 of the Indian Constitution, he stated–

"I also have had personal experience as the Chairman of Backward Classes Commission. Karnataka has 29000 villages but not a single village has any resident from Scheduled Caste. All SCs are kept out...We never fought apartheid in India. This is nothing but Apartheid. I have had occasion to study apartheid, it only means, 'living apart'. We have kept out all Dalits and SCs. Therefore, Article 17 stated this."

In this context, Prof Kumar also drew the attention of the court to Article 35 and Article 372 of the Indian Constitution to show that the mandate under Article 16 was itself is a fundamental right. He then referred to Articles 23, 24 [freedom from exploitation] and stated–

"Who are the persons who are exploited? Are they accommodated under EWS? Respectfully not.These are people who are classified as SCs, STs or backward classes. If not, why are they bonded labourers, why did they send their children to work in industries? Court may take judicial note that they're all people coming from the lowest strata because in India, caste decides everything - status, occupation, education level. Everyday we're taught Ramayana and told what happened to Shambuka, Eklavya, Karna- what did they do, except being born in low caste? Therefore, 23 and 24 liberated them from clutches of landlords and upper castes. It is to liberate entire mass of Shudras, Dalits and Adivasis that Articles 23 and 24 were incorporated, otherwise Right to Education under Article 15 or freedom of occupation under Art 19, or even freedom of movement, cannot be realised."

He reiterated that–

"Having said that all people have equal opportunities, why was it felt necessary to prohibit discrimination by enumerating grounds specially- caste, sex, religion? That is the beautiful concept of equality under the Constitution. It wanted to halt all inequality."

Article 15(4): A 'wide canvas' for upliftment of backward classes

Prof. Kumar bought the attention of the court to Article 15(4) which provides that the State shall not be prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. He stated–

"Please mark, it is "socially and educationally", not socially and economically or economically and educationally. Here, no limit was imposed, not even a suggestion to provide reservation. It says "any special provision" - such a wide canvas for the upliftment of these sections- SCs and STs and backward classes! Because it's not inequality created by loss of wealth or by accident but by birth, by historic disadvantages. That is why such a wide ambit was given. Those belonging to other categories were found to be socially, economically and educationally advanced. In a case, a Backward Classes Committee report classified an education average. The state average was 6.9. Those below were classified as backward. The government made an interesting exercise - they said- 'what is this 6.9, we will round it up to 7'. The ruling class belonged to a class which had state average of 7.1., they again said why 7.1, make it 7, round it up, and by doing that they made them backward. This was the challenge in Balaji- a fraud on constitution. The exercise of making a round up integer and making a forward community backward."

Determination of Class & the issue of Data Collection

He then referred to Article 340 of the Indian Constitution and stated that the said Article provided a machinery to identify classes and study their problems. Under Article 340, he stated, the first commission was appointed in 1953 under Chairman Acharya Kaka Kalelkar who sent a report in 1955, on which the Balaji judgement was decided and it was held that caste could not be the sole criteria for identification of socially and educationally backward classes. Here he stated that–

"Criteria of classification as backward classes is important. Caste has a social and a hierarchical meaning. When we say that so and so belongs to this caste, it can mean, especially in rural area, what his social status or occupation is. Hindu society is vertically divided in 5000 sects- if you're born on 7th floor you die there, you can't climb to 12th floor...These are the realities of caste. Ambedkar was never promoted as a kshatriya or Brahmin. He was born as an untouchable and lived as an untouchable. Therefore, when Balaji says don't go by caste, it means don't go by hierarchy."

He highlighted that 22 parameters were prescribed to determine class and only those groups which passed in all parameters, earned the label of SEBCs He compared this with EWS and asked–

"Now look at EWS, who decides this criteria for identification?"

He further highlighted the issue of data being obsolete and stated–

"Greatest debate in this court is on this identification. How do you reach that identification? You get data, what kind of data? How do you collect? Who collects? These are important factors. Every time reservation is challenged, the first argument is that it is based on obsolete data. Why? Because first census was conducted in 1872, and it was a comprehensive census operation. Every aspect- membership, family, occupation, property holding and more importantly, membership of religion, caste, race, language were all collected. 1872 it was done, 1881 it was done and by 1911, they had perfected it. Even today researchers, they fall back on it. In 1951, the first decision they took after framing Constitution is to delete caste from census. So we don't know how many Brahmins or lower castes are there. With great reluctance in 2011, GOI enumerated caste. But by the time the census was done. How can you determine backwardness unless you know their population- how many doctors, engineers, politicians are there? Nothing! It's all suppressed. It was recommended that caste should be included and census without it will only result in a headcount like a shepherd counting sheep."

He stated that the last census where caste details were collected was in 1931. However, Mandal Commission fell back on the data of 1931 and calculated growth of each caste in a report. As per the same, they classified 52% of Indian population as SEBCs. He said that as per more recent census, 85% of the Indian population would fall under the category of SEBCs as per Article 16(4). He stated that without any survey, the constitution was now saying that all those who were not backward classes would be under EWS. He submitted–

"Only 15% of population will be beneficiaries under EWS. About 30% of these, who are not covered will be economically weak. So, 5% of the population of the country will be the target population. My first ground of attack is giving a quota of 10% to a small population of a privileged class- what's the foundation? It's manifestly arbitrary and fraud on constitution to give such a privilege. Second ground of attack is, you not only give 10% but take away 10% from rest of the population. You disqualify everyone under 16(4). We have a fundamental right which was available to us to apply for 50% posts and professional colleges and that is now shrunk. We're disqualified. It's an affront to the constitution to say that somebody is disqualified. It is understandable if it's said that you got a seat in medical College under 15(3) so hence you are out, but no, it's because your caste is enumerated as Scheduled Caste, therefore you're removed. Is it not discriminatory on ground of caste? This violates the equality code...If casteless society is the law that constitution has envisioned, it should be recognised. I'm condemned to this caste."

Challenging the Statement of Objects and Reasons of the Amendment

Prof Kumar then referred to the Statement of Objects and Reasons of the 103rd Amendment and stated that as per the same, the amendment was introduced to fulfil the State's obligations under Article 46. He stated–

"With great respect, Article 46 does not give license to destroy the constitution. It is an authority to follow the principles enumerated in constitution, honor the principle of equal opportunity, construct bridges under the constitution. This is unwarranted and unconstitutional. Let me refer to grounds of prohibition against discrimination under Article 15(1). Grounds prohibited are religion, caste, sex, place of birth...In respect of every ground constitution has provided a bridge. Where is the mention of economic depravity? It is not a ground of discrimination. It's an impermissible exercise to put economic criteria in 15(1) and then introduce a bridge by way of 15(6)."

To this, Justice Bhat remarked–

"What you're saying is that government frames policies which are rested on economic basis. Who can be the recipient? Only those with certain income level. That classification is recognised by court. Come to commercial field, you cannot have more than a certain turnover. Economic criteria is a basis for classification. Its non enumeration in Article 15 means perhaps that it is permissible."

However, Prof. Kumar highlighted that the provision was misplaced by stating–

"Whatever is permissible was provided for. If EWS were to be given, what can a poor man be given? Can he be given a berth in cabinet? That's not a remedy. This is a misplaced provision. You don't take a person suffering from tuberculosis to a maternity ward. If a poor man has a problem, give him money or scholarship. Open hostels for them...Those who are kept out of educational institutions historically because of their caste, give them education. But these are not the people who have suffered on such factors. Construction of a bridge can only be to fill the gap to bring them on a level playing field, to eliminate inequalities which have created this gap, remove disadvantages which have created these premises. Being economically weaker is not a factor."

He also highlighted that the Statement was not supported by any empirical data and also denied judicial remedy, which was a fundamental right. He stated that without prescribing any criteria, anyone could be declared economically weak and given benefits of reservation and the same could not be challenged in Court. 

Weaker Sections are ejusdem generis SCs and STs

While elaborating upon his submission under Article 46, Prof Kumar stated that SC, STs and weaker sections were to be read together and that weaker sections were those which could find company within SCs and STs and not sections that could disqualify SCs and STs altogether. However, the bench was not satisfied with the argument. CJI Lalit remarked–

"If there is a vertical reservation for OBCs, in that vertical column, those from SCs and STs would be disqualified."

Justice Bhat added to this and said–

"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. 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 Lalit then asked–

"So communities other than SEBCs– can they come in wider definition of weaker sections?"

Prof Kumar answered in an affirmative and stated that Article 46 itself said that the State shall promote special care in interests of the weaker sections, specially the Scheduled Castes and the Scheduled Tribes. 

Economically Weaker People do not constitute a 'Class'

He stated that caste had always been recognised as a class but the same could not be said for EWS as just because some people were economically weaker, did not mean that they became a class. In this context, he said–

"A class as understood, should be homogeneous, should have numerical strength and have origin in religion. Weaker sections should be understood ejusdem generis SCs and STs. Art 46 states "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. Art 46 also says "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...Backward class cannot be only on basis of solely economic criteria. This is the view uniformly taken by this court (in Indira Sawhney judgement). That is why this is a legislative Judgement to overrule Indira Sawhney...How will you determine if these people are inadequately represented? What is the group? You cannot take a family and say that they're inadequately represented...If there is a disparity between rich and poor, it has to be minimised. This is remedy for poor man, that is, minimum inequality. Economic criteria is incapable of rational classification."

He continued this line of argumentation and remarked–

"Let us test it on first principle. What is the ration? Poverty. What is the nexus with the object of classification? Object is to provide jobs. How are these poor people different than other poor people? All grounds of discrimination were to arrest the increase of inequality. All measures were to bridge the gap thus created...same cannot be said for rich and poor- This statement (from Indira Sawhney judgement) cuts the roots of amendment's validity...It fails the twin test of rationality and nexus."

While concluding his arguments, Prof Kumar stated–

"When will you exclude a poor man from the list of EWS? Soon after land reforms were introduced in Karnataka, all landlords lost their lands and became poor. Will you admit them as poor? After abolishment of princely states, all princes became paupers. Will you admit them? They had no income and more taxes to pay. Come to the explanation of Article 15(6)– EWS shall be such as notified by state on basis of family income and other indicators of economic disadvantage– Backward classes have to answer so many tests. If they're living in good houses, not kacha houses, they're not excluded. But if their caste are included, they're excluded. Such is the arbitrariness. This is a militant violation of basic structure of the Constitution."

With this, he concluded his submissions.

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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