EWS Quota Case : Supreme Court Constitution Bench To Hear 3 Issues Framed By Attorney General

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, took up the the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The bench decided that it will be proceeding apropos the three issues suggested by the Attorney General of India. It noted that the suggestions made by the other counsels were in nature of submissions advancing out of one of the propositions emerging from issues suggested by the AG. 

The three issues suggested by the AG are as follows:

a) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?

b)  Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

c) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation? 

After hearing suggestions by various counsels, CJI Lalit noted that the court wished to frame issues which were "barest minimum possible" and that after framing those issues the court would have a better idea. He remarked that–

"We will be testing those issues on various parameters but at this juncture let us try to put it at barest minimum level like we're marking the ground...All contentions are left open...What we propose is that the questions framed by AG have broad parameters which lay down submissions. It is left to counsel to reach destination per their creativity. For our consideration, these issues shall be good enough. It is left to discretion and creativity of counsel. So everyone of you is welcome. We will frame issue 1,2,3 and proceed with the matter."

CJI also stated that counsels were welcome to intervene to the extent that the court had not covered any submissions but no he stated that no repetitions should occur. He said–

"Intervenors are welcome to submit in writing. If they're repeated we will not take note."

Thus, while leaving it to the discretion of the counsels to include more facets to the suggested issues, the bench gave the order which reads as follows–

"Various facets of the matter are touched upon by other counsels. In an attempt to crystallize and capture every facet issues, Mr. Sankarnarayan has proposed three issues which broadly capture various facets of submissions sought to be advanced. Whatever has been suggested by other counsels are in nature of submissions advancing one of the propositions emerging from issues suggested by AG. We therefore shall be proceeding apropos first three issues suggested by AG...The applicants who have moved intervention applications may also file their applications and counsels will be allowed submissions depending upon written submissions placed for our consideration. The idea is to not repeat the submissions already advanced."

In the last hearing, the 5-judge bench had decided to list the matter for today (September 8) for directions. The bench had state that the hearing in the matters will commence from September 13. The court had further stated that 18 hrs would be required to hear the matter. 

Background

The petitions challenge the validity of Constitution (103rd) Amendment Act 2019.

Economic reservation in jobs and education was proposed to be provided  by inserting clause (6) in Articles 15 and 16 of the Constitution through the amendment passed by the Parliament in January 2019. The newly inserted Article 15(6) enables the State to make special provisions for advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservation can be made in any educational institution, including private institutions, whether aided or unaided, except minority educational institutions covered under Article 30(1). It further states that the upper limit of the reservation will be ten percent, which will be in addition to the existing reservations. After the amendment was notified by the President, a batch of petitions were filed in the SC challenging the constitutional validity of economic reservation.

It was on August 5, 2020 that a 3-judge bench comprising the then CJI SA Bobde, Justice R Subhash Reddy and Justice BR Gavai referred the matters to the Constitution Bench. Some of the referred issues include whether the ceiling limit of 50% for reservation can be breached in special circumstances and whether affirmative action can be provided on the sole criteria of economic status.

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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