EWS Quota Violates Basic Structure Of Constitution Due To Caste-Based Exclusion & Breach Of 50% Ceiling : Petitioners' Arguments On Final Day Of Supreme Court Hearing

A Constitution Bench of the Supreme Court, comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala on Tuesday(September 27), reserved judgment on a batch of petitions challenging the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment.

On the seventh and final day of the hearings, the petitioners' lawyers made rejoinder to the arguments made by the Union Government.

The arguments were commenced by Senior Advocate Ravivarrma Kumar. At the outset, he drew the attention of the court to the most primitive tribes of the country. He stated that these tribes did not belong to the main race of caucasians, which mainland Indians belonged to. Thus, he said that excluding them from the benefits provided by the EWS Reservation was discrimination on basis of race. He said–

"What if two words are deleted from 15 and 16, namely gender and caste? Would it not affect the basic structure? They're not caucasians, mainland Indians are all caucasians. All these tribes have been eliminated only because of their race. Are they not entitled to anything that is done for benefit of poor? Would it not offend the basic structure?"

Falling back on the impact test, he added–

"Put on the glasses and see who are the ones affected. Are they not castes and tribes? It is a clear indication that these two provisions have destroyed the Equality code by allowing race and sex to be grounds of discrimination. Suppose a similar provision was being made that all positions in Indian Navy are for men and not women because women already have benefits. Would it be permissible? The court has already held that it's not permissible. Both impact test and identity test are answered in affirmative. If we lift the veil from these EWS, who are eliminated? Equality code is turned upside down."

He further added that no scholarships or any other form of benefits, including the Right to Education Act, excluded backward classes from within its ambit. He highlighted that none of the counsels for the government had yet provided the nexus between reservation and poverty. He stated that the actions of the State amounted to reverse discrimination. Prof Kumar further rebutted the AG's argument referring to SC/ST/SEBCs as homogeneous classes. He stated–

"With due respect, so far as OBCs are concerned, Indra Sawhney has permitted categorisation. So it's not a homogeneous group. So far as SCs are concerned, in 1965, a committee was appointed and it recognised that it was not a homogeneous group. In the latest case of Devendra Singh, it was held that creamy layer may be eliminated from SCs. In express words, they have said that it's not a homogeneous group."

He submitted–

"As on 31.03.2018, 2530 castes are found in the list of OBCs. Of them 775 are newly added subsequent of Indra Sawhney. All the welfare measures that are in operation, large number of them- education, higher education, skill development - in not a single scheme the ST/SC are excluded."

Senior Advocate Gopal Sankaranarayanan, while drawing the attention of the court to the findings of Sachar Committee and Ranganath Mishra Committee stated that the conditions of general Muslim category were lower than the Hindu OBCs. He argued that if the court accepted the learned AG's submissions on the additional 10% falling in a separate compartment, it would result in excessive reservations which might even go up to 90%. He added that the ceiling limit of 50% was so sacrosanct that its violation would in fact be shocking. For this argument, he relied upon the judgement of M. Nagraj v. Union of India as per which 50% ceiling limit was the standard. Accordingly, he submitted that the words "in addition to" needed to be culled out from the amendment.

His arguments were followed by Senior Advocate P. Wilson who submitted that the AG's argument that reservation could be granted on the basis of poverty alone was contrary to the law laid down by the Supreme Court in Indra Sawhney. Referring to the State's arguments concerning Sinho Commission's recommendations on reservations for the poor, Sr. Adv. Wilson stated that the Sinho Commission itself did not recommend reservations for EWS among the forward classes. He stated that the Commission had suggested various targeted welfare schemes to be brought in for the EWS in the forward class category. He added that there was no data in Sinho Commission Report suitable for reservation and that no empirical data was available with it on the SC, ST & backward classes. He further stated that the data of the NSSO in its 2004-05 report was untenable for the purpose of granting reservations as it was not for identification of "backward classes" and was without reference to the social group of the individuals since the NSSO was not collecting the data with reservations in mind. Taking his argument further, he stated that the AG's submission that there prevailed an extraordinary situation to justify 10% EWS reservation was incorrect as the Sinho Committee never considered or dealt with the issue of whether there was an extraordinary situation that warranted reservations for Forward Classes. He added that the ratio in Indra Sawhney, followed by Jaishri Laxmanrao Patil v. State of Maharashtra stated that to invoke the extraordinary situation exemption, a special case had to be made out by the State. He submitted that poverty was a commonplace feature in India and did not qualify as an extraordinary situation.

He also argued that the Articles 15(6) and 16(6) violated the equality code in as much as they exclude poorer sections of the SCs and STs. He stated–

"Only the OBC category have the creamy layer concept but not the SC, STs. Therefore, for seeking reservations in the SC, ST category, both poor and well-off sections of these communities compete for the same reservation. In the case of Tamil Nadu, the entire backward classes notified in the State List is not included in the Central List of OBC's thereby depriving about 22 to 25 Backward classes from the benefit of reservation even though they are not within the creamy layer threshold. Therefore granting reservations to the EWS belonging only to the forward castes is not a reasonable classification and it further reduces the chances of the meritorious students of SC/ST/OBC category to compete in the open competition."

This was followed by Senior Advocate Meenakshi Arora who commenced her arguments by rebutting the AG's proposition that as per E.V. Chinnaiah v. State Of Andhra Pradesh SC/ST could not be further subdivided and therefore the question of giving EWS to a SC/ST category did not arise. To this, she stated–

"If we accept this, we can't do horizontal reservations also. In horizontal reservations, we already have principle to divide. All horizontal reservations, such as those for women, persons with disabilities, children and wards of ex-servicemen are implemented. This does not mean subdividing. The subdivision that is proscribed in Chinnaiah and other judgements are based on specific caste groups and therefore social. Criteria such as economic weakness are lateral and there is no rational to discriminate people on basis of this. The principles of horizontal and vertical reservations have been discussed in Saurabh Yadav."

She also added that articulations of basic structure as provided in Indra Sawhney I and II were required to be treated as voice of the court and nothing warranted overruling it. Regarding the AG's arguments that not all incursions into basic features destroy the basic structure, she stated–

"It is well settled principle that it's the impact of action has to be taken into consideration, not just objects. It is suggested that not all incursions in basic structure violate basic feature, unless it is shocking. If this is accepted, you can destroy basic structure chip by chip, it won't be shocking. The idea of basic structure destruction cannot be seen only through the lens of excessiveness. It is not only a question of degree but also of nature."

For this, Sr. Adv. Arora referred to the 'Ship of Theseus' doctrine from philosophy.

She further argued that the proposition that Constitution doesn't allow for migration to vertical reservations could not be accepted. She stated that this question had not arisen in the present case and therefore the court ought not to present any views on the same. Additionally, she said–

"There is an argument that exclusion of EWS is not from caste but classes who are already receiving benefits. My response is that reservations aren't given in proportion to population. Therefore, even within those classes receiving benefits of the reservations, there are many individuals within the same group, who despite being recognised as backward are unable to receive the benefits. Thus there is no justification advanced to discriminate them on economic criteria. Whatever be the number of seats, the principle of reservation will apply. So they cannot say that we've increased seats and so there can be more."

Finally, she submitted that if the amendment is upheld, the offending portion, that is, the part of the amendment that excludes SEBCs, SCs and STs from claiming benefits under EWS reservation had to be severed and struck down. 

Senior Advocate Sanjay Parikh followed this by submitting that economic criteria alone could not be basis for reservations. He stated that while debating on introduction of Article 16(4), the framers had kept in mind those socially backward groups who were excluded from the mainstream national life due to historic injustice, discrimination, stigma, and exclusion and thus the concept of economic criteria as the sole basis for providing reservation was not accepted by the framers. He added–

"The economic criteria, if we reverse, in that situation then too, the component of social backwardness has to come. Thus if you only have economic criteria, it cannot sustain the constitution. The impugned amendment provides benefits to that segment which does not require the protection under the substantive equality principle for the reason that they are not the sufferers of historic injustice, discrimination, stigma, and exclusion resulting from social backwardness which is "visualised in terms of accumulated effects of low position in a social hierarchy". At this juncture, it is apposite to quote Oxford Professor Sandra Fredman's paper "Substantive Equality Revisited"...If you give the benefit, you have to bring them here. Ultimately the essence of backwardness should come."

This was followed by Senior Advocate Dr. K.S. Chauhan who, while referring to the AG's argument that SCs/STs were loaded with benefits, stated that benefits should be looked into in historical context. He said–

"I have found an article in American context- Accumulation of disadvantages. We have to say the historical context. If the president is not allowed to enter temple- what is the difference between a labourer and president? The deprivation is not on basis of economic conditions."

Advocate Kaleeswaram added to the arguments that stating that fundamental rights were always individualistic. Therefore, to say that SC/ST/OBCs were already given some rights could not be accepted. In this regard, he referred to K.S. Puttaswamy v. Union of India. He added–

"If individual is the focal point, what is focal point is also basic structure. So individual violation of Fundamental Rights can also be basic structure violation."

The last person to conclude the petitioners' rejoinder was Dr. Mohan Gopal who commenced his arguments by rebutting the proposition that reservations under Articles 15(4) and 16(4) were casteist. He read out the social criteria of including a class in SEBCs. This included class and communities that depended upon manual labour and agriculture, were identified by traditional occupations which are considered unclean, stigmatised or undignified, which had poor representation, whose literacy rate was at least 8% less than average, whole matriculation was at least 20% less than average etc. Stating that the reservations were not casteist, he added–

"This is why (in National Legal Services Authority v. Union of India), this court stated that transgender persons should be treated as "socially and economically backward classes". Orphans are also considered as such. This category unites all as backward classes fighting for a greater share. Every Varna is represented, every religion, every muslim is represented. This reservation is repeatedly been vilified as casteist reservation. What is the basis? We must see the value of a uniting category. Is that being abused? Yes but this mechanism is working. It should be monitored, yes, but we should not throw the baby out."

He then spoke about the relationship between weakness and backward. He stated that the two were not totally opposed to each other but they were also not homogeneous. He stated that while weakness was a quality, backwardness was a rank. He added–

"Weakness produces that rank but they cannot be opposed to each other. Lastly, please don't divide the joint family of social, political and economic- they go together. The rest of the world has just begun to realise that they're all sides of the same condition. Poverty is defined as a multidimensional problem that goes beyond economics. If you told me that reservation should be only on social, or political criteria- I'd be the first to oppose."

In his arguments, Dr. Mohan Gopal provided three basic structure violations caused by the amendment. While the other petitioners focused on exclusion of backward classes as a violation, Dr. Gopal focused on inclusions. He stated that–

"My problem with inclusion is that for the first time, being a member of the forward class has been made prerequisite for getting government assistance. You have to be socially and educationally forward. There are genuine cases, I understand. I know someone who was very poor from a princely family because their father and grandfather decided to be priest but no door was closed to them by society when they decided to uplift themselves. Our problem is doors being closed."

The second violation, he stated, was the way the 103rd amendment treated reservations. On this point, he referred to reservation as a very dangerous instrument as it involved displacement and discrimination. He said–

"Since it's a dangerous instrument, Dr. Ambedkar himself said don't apply it to more than 50%. Therefore they anchored the reservation - put chains on it. The chain was that it should only be used for representation of those who are being discriminated against. What 103rd amendment does is that it destroys those harnesses on reservations. It says "to uplift someone" you can use reservation unbound. If this is approved, there will be 1000s of programs in country to give assistance to various groups. Reservations will be unbound."

He stated that this amendment only made compartmentalisation worse. Referring to racial segregation in train compartments in the USA in 1890s, he stated that the Union of India was asking for separate compartments. This, he said, was a violation of basic unity and harmony.

Dr. Gopal then provided the bench with a methodology to decide the constitutional validity of laws in context of basic structure. In this context, he quoted Justice Kapadia in M. Nagaraj v. Union of India–

"For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending power of the Parliament, i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure."

He then added–

"What is the underlying principle of Article 15(6)? That those who are poor and socially and educationally forward must get reservations. This underlying principle is not an established principle in constitutional law. And it's in violent violation of equality."

Thus, he argued that these three things–  compartmentalisation, the quality of forwardness as a pre requisite for reservations and the letting loose reservation in the society as a benign welfare activity– violently opposed the basic structure.

He added that there were three ways forward- one to strike the amendment, one to keep it and the final one to interpreting the amendment through its constitutionalist version instead of the forward class version. While supporting the third way, he stated–

"This is like a yellow star that Nazis gave to Jews. That you stick it on you and wherever you go you can be identified. The status of SC/ST are only relevant when claiming benefits. If you're not claiming, you're a human, not a yellow star. Socially and educationally forward reservations are converting class into caste. So we take a constitutionalist approach. For eg, in 16(4) you have to be Backward. So you cannot use that criteria in 15(4), but you can use poverty. The Constitution is always at the level of criteria, not on level of human beings. It gives broad criteria. The criteria should be "other than" That is not a manner which is referring to human beings. For eg. criteria for sportsperson is different than disabled persons. So an SC sportsperson who is disabled overlaps. Eligibility criteria should be distinct with intelligible differentia.  The political intention for providing a separate compartment may not be achieved. But that's not the intent of the court. This interpretation where we say that "other than" means that the criteria shall be distinct will allow you to keep this going without letting reservation run loose and disconnecting it from backwardness." 

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