EWS Quota Case - No Anthropological Study To Show Families Suffer From Poverty For Generations If They're Not Backward : Supreme During Hearing [Day 6]

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 Thursday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The hearings were commenced with the submissions of Solicitor General Tushar Mehta. A report on his submissions can be found here.

Taking out 10% from open category is the "Opportunity Cost": Advocate Kanu Agrawal

Advocate Kanu Agarwal commenced his arguments by stating that as per M. Nagaraj v. Union of India, 50% ceiling limit was not the basic structure and that the part of basic structure that needed to be located was that there may not be "excessiveness". He submitted that such excessiveness would always depend upon facts. He added–

"This amendment takes out 10% of open category. That is the opportunity cost. Suppose we remove 15(5) and (6), even when a single seat is reserved for SC/ST/OBC, it is taken out from general pool. That's the opportunity cost. Whenever any kind of reservation is provided, it is supposed to be taken out of the open category. That is the opportunity cost which always exists. The test has to be of excessiveness. Ultimately it is inadequacy in representation is the commonality. It is undeniable that SC/ST are more backward than SEBCs. If that is the case, and the axis of reservation for SEBCs are same- SEBCs should also be allowed to migrate to SC/STs."

However, the bench did not seem to be convinced by this. CJI Lalit stated–

"The principle is that migration from vertical column to open category is always permissible but within the vertical columns, you can't, they are watertight compartments. Now you are carving out another area in the open category which is EWS that was open to SEBCs earlier but now it is not."

Thus the bench remarked that there existed only one way traffic to open categories and that jumping to different categories was not possible. 

He concluded his arguments by stating–

"Social justice in this country cannot just mean representation or equality in the matters of caste. There has been many amendments but this court has only intervened in it 6 times. So we have to contextualise."

Economic Criteria by itself can be a determinant of backwardness: S. Niranjan Reddy 

Sr. Adv. S. Niranjan Reddy appeared for the State of Andhra Pradesh and stated that social backwardness included economic backwardness and that is why economic backwardness was not introduced separately earlier. He stated that nothing could prevent the parliament from introducing a different form of backwardness unless such an action destroyed the basic feature. He argued that while economic criteria may not have been relevant for the purpose of Article 15(4), by itself economic criteria could be a relevant criteria and apropos the specification of economic criteria would not destroy the basic structure. He added–

"Even Indra Sawhney says that amongst the sections that have social backwardness, economic advancement can take away the disadvantage of backward classes. So if economic criteria can be a factor to decide if a person remains backward, it can also decide if a person is backward. In general category, every single disadvantage other than social stigmatisation is due to economic issues. A child may be studying in a village, his father may be a drunkard for all we know; within the General Category, this child will have to compete with children from affluent sections. Because he didn't belong to a homogeneous group, he won't get advantage."

He then stated that what was required was balancing the claims. He stated–

"Balance is to be made between competing claims. This balance cannot be static when the society is so dynamic and keeps on shifting, especially for a volatile nation like India."

However, Justice Bhat did not seem convinced with the arguments and stated–

"Vacancies do not arise in public services every year especially in higher positions. They have only those few vacancies. It is easy to argue in these four walls that this is an opportunity cost. But for a person in ground level, even in college admissions, seniority etc...You have to visualise all this. The opportunity cost is not to be seen at a collective level but at a level where each vacancy arises."

Sr. Adv. Reddy argued that the EWS category was reservations for the unreserved weaker category and not one group. He stated that within these categories were sections of people who suffer disadvantages. He added that this amendment would help them to compete with the affluent class.

He stated that other backward communities were already provided for and therefore they could not have benefits under EWS. He submitted–

"They're excluded to avoid double benefit. If a family is entitled to one cylinder, they cannot be entitled to a second cylinder. Same for housing. If the parliament intends to balance sets of competing values, is it so perverse that it'll go to the roots of constitution?"

Carving out of a class on rational data is permissible: Sr. Adv. Vibha Dutta Makhija

Sr. Adv. Vibha Dutta Makhija appeared by way of an intervention application for persons who fell under the EWS category. Thus, she was representing the beneficiaries of the amendment. She submitted that

"If they are fundamental to our values, which are basic human values, not recognised just by our country but are global values, in that case, if there is any amendment to include certain categories for betterment, it doesn't go against basic structure."

For this purpose, she highlighted two tests– first, the identity test as laid down in Kesavananda Bharati v. State of Kerala; and second, the width test as laid down under M. Nagaraj v. Union of India. She added–

"The third aspect is transformation of constitution. The values are all in context of the changing times and there are numerous examples where your lordships have read it in context of time and manner in which society has progressed. For eg. Section 377, transgender rights, environment rights. Even right to legal aid has been read into Art 21. At this juncture, equality has several manners in which it is affected. Carrying that forward is Article 21A. Article 21A is with regards to free and compulsory education. Where did that right arise from? It came from Article 21, which provides the right for dignity. That's where my right also arises from. Poverty affects dignity."

She stated that poverty alleviation was so important that it was made a part of sustainable development goals as well. She stated that this had been a goal since the very beginning and finally a measure had been taken which recognised the said goal. Referring to other means of poverty alleviation, she stated that other measures to alleviate poverty were not empowering measures and it was this measure, as introduced by the 103rd amendment, which had become an empowering measure to persons who suffered from systematic poverty.

At this juncture, the CJI intervened and stated–

"There is no anthropological study which shows that there are families who suffer for generations from poverty if they're not backward."

When Sr. Adv. Makhija referred to Mr. Amartya Sen's work in this regard and his writings on poverty caused due to famine, CJI Lalit remarked–

"That is not poverty which is permanent or not temporary, it's not poverty which will go down from generations to generations. It is not systematic poverty."

To this, Sr. Adv. Makhija responded–

"Everything changes and nothing is constant except change. Even caste birth mark is subject to change. Of course there is a longer time required. For eg. there is inter caste marriage, there is erasure. So going historically only at one point of time, which is when constitution was made, caste was an issue. Today it is not. Reservations have provided empowerment. I will show through statistics. We never recognised physically, mentally handicapped persons, we never recognised sexual autonomy. But today we do. The caste based reservation is based on fact that poverty is generated due to social and educational backwardness. Because you don't have ability to generate skills required. That historic distinction very much remains. However, just because this class doesn't have historical basis, does that take away from it being a class? Does our constitution stop us from dealing with classes on not caste basis? I don't think so. Therefore, carving out of class on rational and manageable data is permitted. If you have a rational parameter, which is a well defined scientific parameter, can that class be excluded from being empowered? Nobody is taking away the fact that caste is primary factor for backwardness. Here, poverty is the reason and result of backwardness. So even if I have the misfortune of being a son to a drunkard father, can I be deprived from education, access to good education, coaching classes, jobs? Intergenerational is not a limitation, it's one criteria and it cannot be the only criteria. This amendment has to be tested at its own level."

She then referred to the equality principle and submitted that there existed three kinds of inequalities– formal inequality, substantive inequality and the equality based on equity. While placing on record documents which showed the benefits of EWS, she state that the said amendment provided substantive equality. However, referring to the statistics provided in the said documents, CJI Lalit remarked–

"As against 34,000, only unreserved categories could walk away with 20,000. So the difference is 14,000 and out of these 12,000 have been taken by OBC because they're more meritorious. So far as the forward communities are considered, they've shown lack of merit."

To this, Sr. Makhija submitted–

"The persons who were extremely poor, if they weren't belonging to reserved category, these persons could not access it from any direction. Thus, they couldn't study enough."

While referring to the UP Public Services (Reservations for Economically Weaker Sections) Act, 2020, as an example of application of the EWS Quota, Sr. Adv. Makhija stated that migration was permissible as per the Act and this equalised the economically weaker with the affluent classes. She stated that in the Act, since the vacancies were not been carried forward, it operated as horizontal reservation and not vertical reservation.

Proceeding with her arguments, she also submitted that the amendment in question was in line with India's international goals. She stated–

"Article 13(2)(a) of the ICESCR, which we are party to, is with regard to primary education being compulsory free and Article 21 A of our constitution is also a commitment."

Here, the CJI orally remarked–

"The other side is not denying that there are people who are poverty stricken in unreserved class. They're saying that their poverty can be alleviated by other means- subsidies, scholarships etc. Reservation is not just financial empowerment, it is social empowerment. You could have done everything else. Why do you have to enter reservations?"

Sr. Adv. Makhija answered–

"Because this is enabling more measures. A new classification is permissible under our transformative constitution and is in line of the goals. So the 10% cannot be disturbed."

The hearings will continue on September 27.

CASE TITLE: Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues

Economic Backwardness Can Be Temporary, Other Forms Of Backwardness Attached To Lineage : Supreme Court Says During EWS Case Hearing [Day 6]