EWS Quota Case: 103rd Amendment Changes Constitution's Identity - Lawyers Argue In Supreme Court [Day 3]

The Supreme Court Constitution Bench, comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, on Wednesday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The report on Advocate Shadan Farasat and Senior Advocate Gopal Sankaranarayanan's submissions from today can be found here.

Violation of Equality Code: Senior Advocate P. Wilson

Today's hearing was commenced by Sr. Adv. P Wilson, who continued his arguments from yesterday which can be found here. 

He submitted that weaker section under Article 46 were not the same as those under Articles 15(6) and 16(6) and that the SCs and STs had earned a special mention under Article 46. He stated that 103rd amendment was an infiltration as Article 46 had never envisioned upper caste to fall within its meaning. To supplement his submissions, Sr. Adv. Wilson made reference to State Of Kerala & Anr v. N. M. Thomas & Ors. He then drew the attention of the bench to the Statement of Objects and Reasons of the 103rd Amendment and stated–

"Kindly see words used in Statement of Objects and Reasons. Here, the word used is 'weaker section'. They want to open this to other classes. Please come to Art 15(6). They're excluding (4) and (5), which weaker sections include. That originally was never thought when the object was made because they wanted to do something for weaker sections. But when it came to the substantive act, they widened it. There is a clear violation of equality by bringing a monetary equality which Constitution never thought of. 15(6) is not class, but caste specific. When we take the curtain away, we see that person's standing behind are upper castes who can never been seen as educationally or socially weaker. Intention of amendment is to change the identity of the Constitution."

He further submitted that the explanation to the newly added articles, which states that "economically weaker sections" shall be such as may be notified by the State from time to time, breached the theory of 'guided power' as provided under M.Nagaraj & Others v.  Union Of India. To this Justice Bhat remarked–

"Let us take this argument forward. So then the government only has to set up another commission to determine EWS. That can be remedied. Is that satisfactory?" 

Sr. Adv. Wilson answered in negative and continued his submissions stating that the 103rd amendment violated the Equality code and that the court didn't need to wait for a potential threat to occur. He concluded by stating–

"To sum up, equality that our forefathers thought of has been destroyed. That 10% also matters a lot when equality is concerned."

Reservations solely on Economic Grounds Destroy Democracy: Sr. Adv. Dr. K.S. Chauhan

Sr. Adv. Dr. K.S. Chauhan submitted for petitioners next and stated that the Indian Constitution has constituted India with certain principles and that Dr. Ambedkar had thought of a society which was moving forward. However, the impugned amendment stalled that process of change. He submitted–

"This court in Keshavananda Bharti v State of Kerala held that the power to amend does not give power to alter basic structure. My concern is change in identity. The Constitution has constituted India in sovereign, socialist, democratic, secularist, republic. Originally, it was just sovereign, democratic, republic. But if we see the history of Constitution, even prior to incorporation of these words, socialistic activities were carried out."

He stated that reservation solely on economic criteria, would destroy a facet of democracy because democracy needed representation. he continued–

"If we give representation on economic criteria, it's artificial. Economic criteria is a temporary thing- today I might be poor but if I win a lottery my situation will change. But backward classes have been historically excluded and that's why 16(4) was added...In Indira Sawhney, it was found that there could be classification but based on intelligible differentia and rational nexus. Economic criteria has neither. Because if I'm placed at a high position and my brother is a farmer in village, if I'm SC/ST, then the differentiation will be same. But if economic criteria prevails we'll be both in different places."

He also submitted that democracy had to be based upon deliberation but the bill was introduced on 7th Jan, passed in Lok Sabha on 8th Jan and in Rajya Sabha on 9th Jan. However, the bench was unwilling to get into this discussion and Justice Bhat remarked–

"We are barred from entering into that arena- what's spoken in parliament. We cannot intervene into legislature and this cannot be a ground. We're losing our energy if we talk about that."

Sr. Adv. Chauhan concluded his arguments by referring to Madhavrao Scindia v Union of India and said–

"This court said that constitutional philosophy is the obligation of the executive. If a particular class is eligible for identification in a category and it's not identified as such, the constitution scheme will be destroyed. In Scindia judgement it was also said if under Constitution scheme an obligation is given to a wing, and that wing is not discharging the function, it's a fraud on the Constitution."

Lack of Independent Data: Adv. Yadav Narender Singh

Adv. Yadav Narender Singh commenced his arguments by referring to the Sinho Commission Report and highlighted that even the commission was of a view that EWS could not be constituted because it was not a homogeneous mixture. He said–

"Even the committee reports that the condition of general categories were much better than SC/ST/OBCs. The average of General Categories was Rs. 685 and it was 22% higher than other categories."

He then stated that data being referred to was not independent in nature and relied upon other data and thus, determination of a class was an issue. To this Justice Bhat remarked–

"These are administrative law principles. We're testing a constitution amendment, where we don't go into this. How can we do that for a constitutional amendment? Ultimately it's only the basic structure doctrine. There are two parts to this. In principle this violates the basic structure because it introduces a new sect and counters it. If you go into nitty-gritties of this, that's curable. Whether introduction of this harms the identity or structure? We can't look into data, that is all gone into Pavitra."

CJI further added–

"That is also on adequacy of representation. The constitutional mandate is that if you're not adequately represented. You cannot elevate it as a constitutional principle. It is good research but it must take us somewhere."

Adv. Singh then referred to Jaishri Laxmanrao Patil v. The Chief Minister and quoted–

"I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are that: (i) Indian sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens".

He argued that–

"Equality of status of opportunity shall be maintained. The most fundamental requirement for any protective reservation is discrimination. In our country, 70% are not so well, then granting EWS is violative of basic structure. In alternative, EWS should be given to BPL category because we have data on that."

Reservations are not a poverty alleviation scheme: Adv Diya Kapur 

Adv Diya Kapur appeared next and provided a brief historical background of Articles 15 and 16. She stated that reservations had nothing to do with poverty alleviation but were meant for representation to neutralize the oppression faced by backward classes. She added–

"The entire equality code rests on this- that reservations are for participation and representation. It was for historical reasons that the right to equality has equality before law, equal protection of law and equality of opportunity. And then there were additional non discrimination clauses because these classes needed protection. There is limited scope to add a category of reservations. Reservations are to give representation to depressed classes. This forms the foundation of the Constitution. If the foundation is taken away, you're violating the basic structure."

She further submitted that subsidies and other methods could be utilised to provide people with money. She said–

"Government jobs are not to put money in pockets. There are other ways to give money- subsidies etc. Government jobs are to become a part of the government. Which is what Nagaraj says too."

Adv Kapur then made a reference to Article 340 and stated that for reservations there was a full mechanism which was provided for under Article 340. She added–

"Poverty alleviation is certainly a goal for the State to strive for as per DPSPs. We have reservations for SC/ST/OBCs for years. But we see where they are on poverty. So reservation isn't even a good way to alleviate poverty. You have to alleviate poverty without trampling on fundamental rights."

While concluding with her arguments, she submitted that just as Article 16(4) has to be in furtherance of 16(1); similarly, 16(6) also had to be in furtherance of Article 16(1). Thus, she said–

"So if 16(6) is violating 16(1), it cannot stand. 16(6) can only be in furtherance of equality of opportunity under 16(1). Unless it's in furtherance, it cannot stand. Income is not necessarily due to discrimination. Article 15 cannot come in the absence either of abuse of power by state or citizens. Welfare measures can be provided but that cannot be under Article 15 because that changes the character of fundamental rights. Further, 103rd amendment is discriminatory of SCs and STs. Threshold for EWS is lower than that of reservations for SEBCs. EWS is 5% people. For these 5% people, if you're giving 10% reservations, naturally the threshold becomes lower."

Castlesness an Ideal of Constitution: Dr. M.P. Raju

The arguments were then continued by Dr. M.P. Raju who stated that the amendment provided for two sets of classifications, first between SEBCs and SEFCs and then between the SEFCs on basis of economic criteria. He submitted that as per Indira Sawhney judgement, castelessness was an ideal of the constitution. He stated that if the said ideal was into the basic identity of constitution, then the constitutional amendment, even if it passed the test of equality, violated basic structure. He added–

"Even if it stands the test of equality, you may see if diversity, adequate representation, which is the purpose of reservation is met. Reservation, once it starts, it has to end. Reservation cannot be forever. To stop it, allow it to become adequate representation. My submission is, in the context of the Constitution is, one basic pillar of constitution is diversity. Diversity is the content of secularism and is the ideal of the Constitution. As per MA Pai, it should not just be allowed but promoted. Other argument is on the ideal of fraternity. Fraternity cannot allow taking away 10% of seats which have been going on. Once classification is done, even for a good purpose, then it affects the dignity of all of us twice."

Relativity of poverty is antithetical to immutability: Adv. Kaleeswaram Raj

Adv. Kaleeswaram Raj appearing from virtual mode stated that while he accepted that the legitimacy of parliament was no less than that of Constituent asssembly, the principle of exclusion had to be tested in terms of modern jurisprudence. For this, he quotes Prof. Tarunabh Khaitan of Oxford Law. He added–

"Two things to be considered - one is immutability and two, it should constitute a fundamental choice. Relativity of poverty is antithetical to immutability. An SC candidate's right to be considered as a general candidate on the basis of his choice is being taken away by the 103rd amendment. This amendment on account of its exclusive character fails the preference test. The preference given to a Brahmin because he's a Brahmin while rejecting SC's claim."

Identity of Fundamental Rights changed

Adv. Pratik R. Bombarde submitted that social backwardness was a cause, not consequence of economic backwardness. He stated that the amendment would change the identity of Fundamental Rights and thus violate basic structure. While referring to Saurav Yadav v. State of U.P., he further submitted:

"The equality of opportunity will also affect SC/STs choice of fighting in the open category. This judgement says- "Open category is open to all." There is a negation of merit which will come my lord."

Adv. Akash Kakade argued that Articles 15(4) and (5) had two conditions–social and educational backwardness. Additionally, he stated, Article16 has two conditions as well, which were, backwardness and adequate representation. He stated–

"This amendment, picks from both- educational backwardness and backwardness and leaves other two. That is impermissible."

He added–

"They're widening the meaning and scope of Article 46 where they're keeping aside SC/STs and bringing in EWS along with it– which was never the idea of Article 46. Weaker sections cannot be given the widest possible meaning. Because then Hindu forward classes will exploit and eat up the remaining 50% of the lower categories. Financial incapacity needs to be established some how. As observed in Sawhney and Nagaraj, there needs to be an in-depth analysis of backwardness."

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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