EWS Quota Violates Basic Structure Of Constitution For Crossing 50% Ceiling Limit : Gopal Sankaranarayanan To Supreme Court [Day 4]

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 Tuesday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The arguments were commenced by Sr. Adv. Gopal Sankaranarayanan, who was appearing for petitioners, 'Youth for Equality', an independent group primarily against caste based reservations. 

In the last hearings on the matter, Sr. Adv. Sankaranarayanan had submitted that the 103rd amendment violated the 50% ceiling limit and as such EWS Reservations had to be evolved to confine themselves within the 50% ceiling limit. In today's proceedings, Sr. Adv. Sankaranarayanan broadly made three submissions. First, that the phrase "economically weaker sections" was not a new one and had been accepted both statutorily and by judgements. Second, the creation of EWS did not violate the prohibition of caste classification as per the Constitution. Third, the words "in addition to the existing reservations" under Article 15(6) and 16(6) violated the basic structure of Indian Constitution.

I. EWS has been previously accepted both statutorily and by judgements.

Sr. Adv. Sankaranarayanan started his arguments by stating–

"First, if there is a challenge, I am not sure if there is one but if there is one to the EWS classification itself and its insertion in the Constitution, the challenge should normally proceed on the basis of saying that the basis of the judgement (Indra Sawhney & Others v. Union of India) has not been properly removed. Or independent of the basis removed, on its own there can't be a classification of EWS. Now, I have conceived that it is the latter argument because I am afraid I haven't heard an argument saying that Indra Sawhney judgement's basis is not removed. So if it is the latter, the broad submissions on that are that the economical weaker sections, or any other parlance as used to that effect– economically disadvantaged, poverty stricken, weaker sections et cetera, are phrases that have been accepted both statutorily and by judgements."

He submitted that EWS was an age old classification which was introduced because the interpretation of backward classes in Articles 15 and 16 had included economically weaker sections. However, after Indra Sawhney judgement stated that backward classes could not be identified solely on an economic basis, an interpretation of EWS being included in Articles 15 and 16 was not possible. Therefore, the Constitution had to be amended to add Articles 15(6) and 16(6). 

He added that the mere naming of the EWS as a class could not be considered violative of the Constitution as economically weaker sections had been granted assistance previously in housing, admission to schools, filing PILs etc. In this regard, he placed on record 33 judgements establishing the same. He added that even statutes had recognised EWS as a class and provided the example of the Right to Education Act. 

II. EWS does not violate caste prohibition 

Moving to his second submission, Sr. Adv. Sankaranarayanan stated that there had been many arguments made to the effect that the creation of the EWS class was caste based as it afforded an opportunity to forward castes and therefore it violated the prohibition in the Constitution of caste classification. He stated–

"I argue that it is exactly the opposite. The caste classification was done by virtue or in pursuance to the Indra Sawhney judgement where it said that you can use caste as a starting point. That is where it emanates. If at all, there is an ADM Jabalpur, that is the ADM Jabalpur. I can even show you passages from Mr. Palkiwala, writing in the Hindustan Times in April 1992- saying that this judgement more than any other will create cleavages going forward and we have seen that in last 30 years. This is the first, most welcome step away from that saying that let us not use caste, let us move away from it. Therefore, this is not a classification which violates in any way a caste-based prohibition. It is precisely the opposite and by excluding those classes for whom reservations are already made, there is no violation of the equality code. Those are not castes for whom protection has been granted, that is what Indra Sawhney says. Those are classes. In excluding those classes and in providing 10%, there is no violation of the equality code. In fact it sustains the equality code."

He added that the reason why the amendment was not casteist was because it included poor muslims, poor Christians, poor Sikhs and so on. He further stated that EWS had nothing to do with caste, but was solely concerned with class. He stated–

"Those sections who are economically weak are covered in Articles 15 and 16. If they want to be included here, your lordships would upset the balance. The idea is to have them in separate circles. This amendment today strikes a balance- OBCs, SCs and STs get reservations and include EWS in it. Rest of EWS get it from here."

He then drew the attention of the court to political reservations granted to SCs, STs and OBCs and stated that there were no ceiling limits for such reservations.  He stated that in almost all of such States, the addition of EWS would take reservations beyond 50%. He submitted–

"Since there are no ceiling limits as far as SC, ST, OBCs are concerned, they extend to political reservations and the same doesn't apply to EWS- there is no strong foundation that is being shaken up. It's a small brick that's being added. This is an enabling provision. Suppose none of the states activate it, whose rights are being violated? It's just sitting there."

Accordingly, he submitted that EWS was reliant of SC/ST/OBC reservations by requiring it to be 'in addition to the existing reservations'. He stated that if there were no reservations, Articles 15(6) and 16(6) could not be activated at all as EWS could not exist on its own. However, Justice Bhat asked–

"It's the first time Article 15 uses the word reservations. So they're recognising that 15(4) has reservations. Article15(4) doesn't include reservations. Article 15(6) introduces it. Why give that a strained expression? In case there is 1%, you can have more, in case there is 49%, less EWS reservations would be granted. If there is 0%, in addition to zero, there can be even more. The phrase- there is none, does not mean it's zero, it means the reservation for EWS would be zero plus one."

Thus, the bench noted that the provision of Article 15(6) or 16(6) would not become redundant if no reservations are granted under Article 15(4).

Justice Bhat also added–

"If there are certain grounds on which you exclude someone, the state cannot say I'm excluding on basis of a, b, c and also because you are an SC. So you can have a standalone reservation which is not dependent on other castes."

III. The phrase "in addition to the existing reservations" under Article 15(6) and 16(6) violate basic structure 

For his last submission, Sr. Adv. Sankaranarayanan argued that the words "in addition to the existing reservations" under Article 15(6) and 16(6) violated basic structure of the Indian Constitution. He gave three grounds for his argument. He stated that–

"One, it gives a type of sanctity or cementing or permanence to reservations. Second, it converts an enabling provision into an enabled provision which is impermissible. Third, giving a 10% limit to which you can go, in addition to the existing reservations, beyond 50%, is a violation which cannot be in any way permitted. Therefore, those seven words have to be severed. You have applied the severability provision on at least three occasions on a constitutional amendment...This amendment converts Articles 15(4) and (5) into enabled provisions which is inconsistent with the constitution. There are 17 judgements which say that these are enabling provisions. This is contrary to the view of the court on the temporary nature of the reservations."

He added that the 50% ceiling limit was a part of the basic structure. While referring to the judgements of Nagaraj v. Union of India and Jaishree Patil v. Chief Minister he stated that the ceiling of 50% had been provided constitutional recognition. He stated–

"These are 54 judgements, over 130 judges speaking unanimously- this is the overwhelming voice of this court."

Finally, he submitted that severability of constitutional provisions was permissible and had been accepted by the court in many judgements including Kihoto Hollohan v. Zachillhu & Others. He added–

"Regarding the issue of guardrails which were argued- my argument is that guardrails are very specific. The guardrail is there for specific and time bound purposes."

The proceedings also saw arguments from various intervenors today.

Arguments by Intervenors

A counsel appearing for the State of Tamil Nadu, in support of petitioners, submitted that the principle of reasonableness and absence of arbitrariness were both part of Article 14, which had been held to be soul of the constitution. He stated that economic criteria by itself could not be basis of classification and any such classification based solely on economic criteria would be an infringement of Article 14. He added that Article 14 was a part of the basic structure. Further, he said–

"If this view is taken that economic criteria can be basis for classification, your Lordships will have to revisit Indira Sawhney and that cannot be done. Second, 9 judges in Keshavananda do not agree with the view of 2 judges that legislature can evolve the principle of equality. So even that will have to be revisited."

Advocate Jayanth Muthuraj appearing for OBC communities from Tamil Nadu and Kerala submitted that due to the exclusion of creamy layer in SEBCs/OBCs, more and more people belonging to those classes were now competing in the open category. Thus, he argued that the seats available in open category had to be increased and not decreased. He further argued that reservation for forward classes was not envisioned by the framers and it went against the scheme of the Constitution and the Equality code. He stated that educational and economical interest mentioned in Art. 46 were confined to SCs/STs and other weaker sections only and that the weaker section mentioned in Art. 46 pertained to people who had undergone social injustice. While arguing that 50% ceiling limit was part of the basic structure, he added–

"The effect of this can be seen in Tamil Nadu. 69% reservations for SEBCs are there. If they add 10%, that will become 79% and then other quotas for women etc. will be given. This way you're giving less than 15% chances for open category."

Advocate Sachin Patil submitted that the present Constitution bench of the strength of 5 judges was not adequate or of competent strength to decide the present matter as the judgment in Indira Sawhney v. Union of India was pronounced by a 9 judge bench and had held that reservations to the economically backward sections were impermissible. 

The arguments were then continued by Attorney General K.K. Venugopal, who appeared for the state. A report on his arguments can be found here.

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