EWS Reservation Turns Constitution On Its Head, Supreme Court Erred By Upholding It : Justice Nariman

While delivering the Justice VR Krishna Iyer Memorial Lecture, former Supreme Court judge Justice Rohinton Fali Nariman critiqued today the EWS judgment for upholding the 103rd Constitutional Amendment which excluded from the ambit of economic reservation people belonging to Schedules Castes/Scheduled Tribes/Backward Classes.

The former judge commented that the EWS judgment (which upheld 10% reservation for economically weaker sections) was wrong.

"This economic criteria judgment is not correct either in constitutional law or in principle of any kind. It is in fact in the teeth of Article 46 and certainly in the teeth of Articles 15(1) and 16(1)".

Recalling the decisions of Justice Krishna Iyer, in whose memory the lecture was organized, Justice Nariman underlined that the idea of reservation has been to reach those "at the bottom of the barrel".

It was emphatically stated that although the 103rd Constitutional Amendment claimed to be in pursuance of Article 46 of the Constitution, it "turned the Constitution on its head", by excluding people for whom the reservation was originally intended (SCs, STs and backward classes). Remarking that the decision was in the teeth of Articles 15(1), 16(1) and 46 of the Constitution, Justice Nariman further pointed out that Article 46 does not sanctify classification on the basis of economic criteria.

To recap briefly, in the EWS judgment (Janhit Abhiyan case), a 5-Judge Constitution Bench upheld by 3:2 majority the validity of 103rd Constitutional Amendment which introduced 10% reservation for EWS in education and public employment.

As per the majority view, reservation based only on economic criteria and exceeding of the 50% ceiling limit on reservation did not violate the basic structure of the Constitution. The dissenting minority view (of Justice Ravindra Bhat and then CJI UU Lalit), on the other hand, did not support breach of the 50% ceiling limit and/or the exclusion of the poor among SC/ST/OBCs from the EWS quota (on the ground that they already enjoyed benefits).

Appreciating the minority view in part, Justice Nariman said :

"Justice Bhat also said that there was additional reason why Article 16(6) would be bad. Article 16(6) does not have what Articles 16(4) and 16(4A) have namely that everything has to be posited on adequacy of representation in the service. But he did not go the logical step further to say that this won't apply only to Article 16(6)...it applies down the board to the entire amendment. Entire amendment would be bad because you are keeping the have-nots out and you are putting in only those for whom the reservation was never meant. Whether it be Brahmins, Kshatriyas...in my respectful submission, this is a rare case of both majority and minority being in error when it comes to the very concept of an economic reservation."

On the 50% ceiling limit issue, Justice Nariman noted that all the judges ignored Article 16(4)(B) of the Constitution (which constitutionally recognized the 50% ceiling limit), rendering the judgement per incuriam in a way.

It was further pointed out that the 103rd Amendment, which was under challenge in the EWS quota case, had the effect of bringing within the ambit of reservation the Upper Castes, Muslims and Christians, against whom one may say that no historical wrong had been done (basis for reservation).

“what we have achieved by the amendment is nothing short of turning the Constitution on its head. First, you exclude all those who are required to be included (SCs, STs, backwards)…having excluded them, who do you include? This is most important – not looked at. You are only including Upper castes- Brahmins, Kshatriyas and Vaishyas, and also Muslims and Christians…When you include these people, the founding fathers would say that there is no question of any reservation except because there has been historical wrongs done. Where persons have never suffered from these wrongs, you are reserving something for them. And where historical wrongs have been suffered, you are not reserving.”

Justice Nariman further suggested that Articles 16(4)(B) and 16(6) could have been harmonized in the EWS judgment by, for example, reducing the quota for OBCs to accommodate EWS. However, letting total reservation exceed 50%, though the cap was sanctified by Article 16(4)(B), was not correct.

Kerala High Court Chief Justice Nitin Jamdar, Justice Jayashankaran Nambiar, Justice [Retd] Balakrishnan Nair, Advocate Sanand Ramakrishnan also participated in the event.

Also read - Periodically Review Reservations, Slowly Reduce Quotas For Classes That've Developed: Justice Nariman