Is EWS Quota Not Reducing Share For Those Competing On Merit?Is It Not Caste-Based Exclusion From General Category? Supreme Court Asks [Day 5]

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 Wednesday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The pleadings were commenced by the Attorney General of India, K.K. Venugopal. A report on his submissions from yesterday can be found here.

AG Venugopal's arguments were followed by Senior Advocate Mahesh Jethmalani's submissions. Sr. Adv. Jethmalani was appearing for the State of Maharashtra. He commenced his arguments by submitting that those envisioned under Article 15(4) had the same position as the forward class minus the people falling in the EWS category. While referring to M. Nagaraj & Others v. Union Of India, he stated that a literal approach, instead of a purposive approach had to be taken while interpreting the Constitution. He submitted that the content of the expression 'equality by law' took within its sweep, Article 46 as well. Further, he stated that while the Indra Sawhney judgement laid down that economic criteria shall not be a criteria for inclusion of a category within the backward class, the creamy layer OBCs were excluded on basis of economic criteria. Thus, there existed a contradiction. However, Justice Bhat intervened and asked–

"Did the concept of creamy layer exist during Indra Sawhney?"

When Sr. Adv. Jethmalani stated that it was argued in the court, Justice Bhat clarified that despite being argued, it was not a concept which had been established. He added–

"For three years, there is a creamy layer so some people are excluded but a child might get it. Same thing might happen today. But with EWS you're moving around, you're crossing a line. You may continue being poor."

The CJI followed this by stating–

"Let's test it. The essence of the submissions is that take for eg ceiling law- the source is someone who is earning lots of wealth, distributing it to those who are have nots. So it is distribution of wealth. Therefore, at whose expense? The haves. You're giving to have nots, from the haves. Today it is reverse. You're carving out a separate area. The persons who are getting affected are not from the category that are from the better lot. The concept of open category is not something which is meant for someone. It's meant for everyone depending upon merit. The moment you make a departure and say it's not open for all, you're departing from the rule. So far as General Category is concerned, keep at least 50%. As a result of carving 10%, are you not reducing the share for those who were competing on basis of merit? So far as (4) and (5) are concerned, you can have reservations. But so far as open category is concerned, it is open for all. By this 10% you're reducing the share of that open category."

Justice Bhat continued this line of questioning and stated–

"There is a right to be treated as an open category. Therefore, it's a floating thing. Depending upon performance, you get into merit. In the open category, you could have from all. Once you put 10% embargo, you're excluding them on basis of caste."

Sr. Adv. Jethmalani argued that even if forward classes were falling back, it was not such a violation of the constitution that it destroyed its very identity. He stated that at the most it was a "marginal tweaking".

To this, the CJI stated–

"Take for instance OBCs above creamy layer, will their share not get reduced? Just as the open general category, for everyone, hasn't the size shrunk? And if it has shrunk, at whose expense? Emphasis is that there are certain classes who need special protection. So you have identified scientifically these classes and then said that this is the target class. So up till now you're giving affirmative action but suddenly you're saying now that you're from a particular caste you can't get it. Therefore, you say is that you have a special reservation so you must confine yourself to that. We will not permit you from that arena to this arena. This is reserved to those who have no reservations."

Justice Bhat also added–

"As far as legal arguments go one can understand. If today your creamy layer definition is 8 lakhs and it's 3 years. So in a given set of 3 years you are creamy layer, in other 3 years you're not. It's only a line which is drawn for entitlement. In case of EWS, there is no status there. OBCs- each caste is a grouping. EWS are also identifiable by some class or caste- they too would be floating. Some would be in 2 years, 3 years. They belong to non backward classes which means they are not homogeneous. So to say all unreserved are homogeneous is an assumption. That's not how reservations work. Adding this EWS, we don't know. But exclusion is what is hurting. The way you can reach it is by exclusion. To understand all as one homogeneous class is wrong. Each one of them is different. Constitution has seen them as differently- SC, ST and OBC. To tell a man that you're an ST and hence excluded, is that right? Answer that. You're actually discriminating on basis of caste at the most basic level of education."

Here, the CJI also gave an example of Election Law. He said

"In election law, there could be reservations for certain wards for SCs/STs etc. Those persons can compete in general ward. But general candidates cannot compete in that ward. Can you tomorrow create a separate ward and say SC/STs can't compete in this ward?"

To this Sr. Adv. Jethmalani stated that the example of election law was different as there existed no criteria in it. However, in the case of EWS, the government was trying to advance a criteria which it considered rational.

The bench still was not satisfied and Justice Bhat stated–

"The question is how does it fit in the scheme of the framework of equality. We're not looking at a particular article. What is the constitution? It is a forward looking constitution. All inequalities have to vanish. We shouldn't fragment society. This is our concern. Of course the state will keep experimenting, we don't have an issue with that."

Sr. Adv. Jethmalani reiterated that the amendment was not such that it destroyed the identity of the constitution. In fact, he submitted that as per the judgement of Jaishri Laxmanrao Patil v. The Chief Minister, the harmony and balance of fundamental rights and the directive principles was a basic feature of the Constitution and the said amendment sought to strike that harmony. He added–

"Between the haves and the have nots, just because the 50% ceiling doesn't allow them to get reservation, why should this compartment be closed for reservations? Is it so detrimental to the constitution and its identity that you can't tweak the 10% to reduce the disparity between the non reserved category? Ultimately that's what it boils down to. Somebody will always be left out. There were forward class poors who didn't get any slice of the cake because of their financial capacity. If trying to achieve a balance between fundamental rights and DPSPs is a basic feature and the very objects of the 103rd amendment seek to do that, how can it change the identity of Constitution? Is it a fraud on the constitution as the other side suggested? Your lordships may even say it's misconceived but is it a fraud? Trying to improve equity between a very rich class of a country and a low middle class is an advancement of the basic feature of constitution. There are Muslims and Christians who do not fall under any caste- they are a casteless community. They too will get it. This is one solution, well intentioned. And not drastically, if at all, violates basic feature of the constitution. It's working may turn out to be counter productive but then it can be struck down."

Justice Bhat remarked here that Article 15(5) did not indicate any limit and thus it was possible to maintain a limit of 50%, however, Article15(6) provided a cap. He added that when the Right to Education Act was enacted, it bought in only 25% reservations and it also included all backward classes as well as forward classes poor within its ambit.

At the end of his submissions, CJI Lalit requested him to produce data and statistics on how the experience of adopting EWS Quota had been in State of Madhya Pradesh. He also requested to know what was the criteria for EWS in State of Madhya Pradesh and if the implementation was flexible or inflexible.

The Solicitor General of India, Tushar Mehta also appeared and provided a brief framework of his arguments which he said he would continue in the next hearing. CJI Lalit also asked him to provide statistics of application of principles emanating from the amendment from a few Stated. He said–

"Who are the beneficiaries? Where exactly do they compare? We would like those statistics from some of the states."

The arguments will continue today.

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

"Only 1/6th Of BPL Section Belongs To General Category" : Supreme Court Remarks During EWS Quota Case Hearing [Day 5]