"Only 1/6th Of BPL Section Belongs To General Category" : Supreme Court Remarks During EWS Quota Case Hearing [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. Today's pleadings were continued by the Attorney General of India, K.K. Venugopal from yesterday. Yesterday, the AG had argued that SCs and STs had been "loaded with benefits" by way of affirmative actions and since these groups were highly unequal and in tremendous position so far as reservations were concerned, the EWS Quota did not erode their rights. A report on his submissions from yesterday can be found here.

In today's proceedings, he argued on four grounds. First, that the non-reserved category was an independent category on its own and thus, the 10% reservations granted by the 103rd amendment would not be added to the 50% limit meant for backward classes. Second, that economic criteria could be the sole determining factor for backwardness and third, that the 50% ceiling limit was not inviolable and could be breached in exceptional circumstances. Fourth, he submitted that unequals could not be treated equally and backward classes were unequal to forward classes, in terms of reservations. 

I. The non-reserved category is an independent category

The AG submitted that reservation for the three backward classes was limited to 50% and that the non-reserved category was an independent category among which 10% was now being reserved for the economically weaker. He stated–

"10% reserved for the EWS in General Category cannot be added to the 50% limit. It is only if you add to the 50% reserved with the backward classes, the limit will arise. This 10% fall under an independent compartment, independent from the SCs, STs and OBCs' 50% compartment."

He submitted that the 103rd amendment was introduced in furtherance of the State's duty, mandated under the Directive Principles of State Policy, the Preamble of the Constitution and Articles 46 and 47. He described reservations for the three backward classes as a separate compartment as opposed to reservations for the general category. He stated that these two "compartments" were independent of one another. 

To this, the CJI stated–

"A counsel submitted that so far as creamy layer component in OBCs is concerned...because they would not be entitled to any reservation as a matter of right, those who are above the creamy layer. Correct? So therefore, for them, the area or the compartment which is available is what is normally called the open, general compartment. Correct? Now, you are, by reserving 10%, to categories for whom the reservation is already made in say 50% bracket, you are reserving it only for categories other than those specified under (4) and (5), which means that OBCs who are above the cut-off level, above the creamy layer level, for them the piece of cake gets reduced from 50% to 40%. So therefore you have to keep that in mind. It is true that the general category has not advanced any submissions. But the effect of that, the 10% getting reduced from the quota available to the general category, has been projected and advanced by one of the counsels for OBCs. So please keep that in mind."

The AG reiterated that the 10% would not be reduced from 50% if the two categories are placed in separate compartments. To this, the CJI enquired–

"Are you suggesting what Mr. Gopal Sankaranarayanan argued? That the 10% should be subsumed in the 50%? Or will it be in addition to the 50%... So your submission is that, those categories which are spoken for under (4) and (5), their share remains intact. So the 10% part is eaten into what is available for open or general category, this is your submission?"

The AG responded in an affirmative. The CJI continued his line of questioning and stated–

"There is a complaint that if you go by Balaji, then at least 50% must be available for general category candidates or for general category persons. So that itself is an erosion. 10% is getting sliced out of that quota. Above creamy layer cut off, those people will certainly be a part of the open or general category. For open general category, in the absence of 103rd amendment, it would be 50%. But as a result of the 103rd amendment now it will get reduced to 40%. Is your submission that they can also compete in this category? The 10% category? They cannot. Because by reason of your barrier, they cannot compete."

The AG responded by stating that before the 103rd amendment, the creamy layer would have competed in the general category. He stated that nothing had been changed with regards to that by the 10% reservation for the economically weaker sections. The rest of the OBCs, he stated, were not affected by the reservation as the creamy layer had been skimmed off. He submitted that the only question was whether the 10% in addition to 50% violated the Constitution. He stated that qualitatively, and otherwise, the purpose of the reservation was not to touch the 50% and was placed in a different compartment. 

CJI Lalit reiterated the arguments made by counsels for petitioners and stated–

"What is being argued is that when you say general category, it does not refer to that section of population which is minus those sections for whom reservations are contemplated under sub Article 4 and 5. General category candidates mean that every thing must go purely by merit. It is possible, in that 50%, notionally or if we go by some normative idea that there are 100 seats in a medical college, those 50% may as well have 20% coming from reserved categories. The moment you reduce that slice from 50 to 40, the chances of those meritorious candidates who walk in that arena which is called general category, will also get reduced. So therefore, the submissions are, as a result of this you are reducing the cake which is available to general category. See, category wise, representation and other things, Schedule Caste and Schedule Tribes or anybody can walk in, regardless of what is the income criteria. But for SEBCs, the income criterion or what you call creamy layer criteria, becomes the norm. So those who are above that, they cannot have anything in that. For them the area which is available is actually the general category. So therefore the moment you reduce it, their chances are getting affected."

AG Venugopal stated that–

"Unfortunately, it is decided that castes are homogeneous groups through which runs the entire thread of backwardness without exceptions and this homogeneous group, therefore, is entitled to preference. Therefore, so far as rest are concerned, they are the ones who have no reservations. The non reserved categories consists of Hindus, Jains, Parsis, Sikhs, Muslims. So far as that group is concerned, they aren't homogeneous or merit based selected group. If they were meritorious groups, weaker sections would not exist at all."

Here, Justice Bhat intervened and stated–

"Every state has backward classes, socially and educationally backward classes. They are caste based and community based and now there are large numbers. For eg, in Bihar there are 25 Muslim groups, in Gujarat there are 20. In Madhya Pradesh also there are 15-20 muslim groups. In Bihar, converts from Dalits to Christianity are considered backward in some areas. So that argument may not float, in the sense that they are not getting any reservations. Backward class is what? Caste reflects our society. Even the EWS category, it is not that they are caste-less. They are communities and castes. That identity of community and caste cannot be denied. The argument that the amendment is targeted for community that may not be Hindu, may not be accurate because if you pull out each state, even in the central list there are many Muslim communities for many states. Please keep that in mind."

II. Economic Criteria can be the sole determining factor for backwardness 

With this, the AG moved to his second submission stating that economic criteria could be a relevant factor for affirmative action as per the Indian Constitution. He stated that the equality of opportunity had to be provided to all sections that were handicapped and poverty was a factor which affected a large section of the Indian society. He referred to the judgements of the State Of Kerala v. N. M. Thomas & Ors and K.C. Vasanth Kumar v. State of Karnataka. He also referred to Ashoka Kumar Thakur v. Union of India. The gist of his arguments under this submission was that the state had an obligation to help the weaker sections of the society. He submitted that elimination of inequality included the elimination of social as well as economic inequality. He highlighted that equality of opportunity had to be granted to all and not just one section of the society. He relied upon Article 46 to submit that the State had an obligation to promote the economic interest of weaker sections, especially the Schedule castes and Schedule Tribes. He stated that special reference made to these Castes and Tribes did not suggest that the state should promote the economic interest of these castes and tribes at the expense of other weaker sections of people. 

III. Exceeding the 50% ceiling limit is permissible in exceptional circumstances

Proceeding with his third argument, AG Venugopal stated that the 103rd amendment could be described as a constitutional attempt to break the ceiling. Relying upon the judgement of Jaishri Laxmanrao Patil v. The Chief Minister, he quoted–

"While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."

He stated that there were many examples on similar lines which stated that exceeding the 50% limit was permissible in exceptional circumstances. Accordingly, AG Venugopal attempted at establishing that EWS was introduced under exceptional circumstances. Referring to the Sinho Commission Report, he submitted that there were 5.8 crore people suffering in poverty within the general category and that these people were as poor as the poor people in OBC category. He added that those who were below the poverty line in the general category were 4.25 crores. However, Justice Bhat intervened and stated–

"I am just pointing out that of 100 general categories, 18.2% are the poorest. Out of 100 OBCs, 33.7% are poor, in STs 38.7% and in SC, 48 out of 100 are poorest. The proportion of General Category poor is far less."

CJI Lalit added–

"Cumulative average of 30.8% are BPL. From the national average, only 18% GCs are poor. This is a minuscule percentage as compared to national numbers. In mathematical numbers, 31.7 crore are poor and out of them only 5.85 are general. So only 1/6th of the total population below poverty line comprises general category."

AG Venugopal submitted that leaving OBCs or SCs and STs aside, the court would not have interfered if the EWS category was taken in isolation. He said–

"If there is a person below poverty line and if parliament says that on basis of EWS, that person gets reservation, taken in isolation, your lordships won't intervene and say that parliament shouldn't do that. It's a far cry to say that constitution is shaken. By itself if you take the 103rd amendment, a progressive state, which looks at a person's suffering and grants them reservation when state's welfare is not able to reach them, would your Lordship say that the amendment shouldn't be passed? Thus, my submission is that this doesn't shake any foundation of the constitution but it implements all that constitution states. Article 38 states that the State should promote welfare of people...In West Bengal, General Category BPL were 23.3% against the total of 25% BPL. The average status of BPL in economically backward classes was as backward as BPL in other backward classes, especially in OBC."

He further submitted that the 10% quota was flexible as it was left up to the States to decide upon the percentage and when the economic conditions were improved, the States could reduce the said 10%. While highlighting the difficulties faced by economically weak, he submitted–

"Even workers in factories are far above the EWS. Their children are sent to factories, farms. They don't go study in school. They'll have to be compelled to go to school.  They'll have to be told you'll get free meals. Then their parents will send them. These are the people getting benefits. A day will come when the 10% will be reduced to 9,8,7 and 6. If you find that they're all advanced, then in such a case, your Lordships can step in and ask on what basis reservation is being continued. A mechanism has been given to regulate the benefit."

IV. Unequals cannot be treated as equals

Finally, the AG submitted that no violation of the Equality Code would arise by the 103rd amendment as unequals could not be treated as equals as per the code. Here, he highlighted that benefits to SCs and STs were given under Article 330. Further, Article 332, provided them reservations in the legislative assembly and Article 243D ensured that seats in panchayat were reserved for them. He submitted that even municipalities reserved seats for candidates from these categories. So far as OBCs were concerned, he stated that as per Article 338B, a National Commission for Backward Classes was framed and continuous monitoring was done ensure that they are not subjected to any deprivation of their rights. Under Article 340, a commission was also made to investigate the conditions of backward classes. He stated that all these benefits made backward classes "unequals". In this context he said–

"Can unequals claim that they should be given the same benefits as a given group whose benefits are being looked into? Today, they are unequals. Maybe 10-20 years later they won't be but today they are unequals. It is a well settled principle that unequals can't be treated as equals. Treating of unequals as equals will offend doctrine of equality...Three categories of SEBCs constitute a homogeneous group. Are you going to ask for reservation, in addition to reservation already given? A reservation in a reservation? That is not contemplated."

He added–

"My submission is that if they are given 10%, it would then become 10-10-10 and be 80% and that would certainly violate all judgements."

With this, the Attorney General concluded his arguments. 

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

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