10% quota for EWS: SC says will examine if law violates basic structure

On Thursday, a five-judge bench, presided by Chief Justice of India U U Lalit, decided to examine three of the four issues suggested by Attorney General K K Venugopal on the matter.

These are “whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?… whether it can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions” and “whether it can be said to breach the basic structure of the Constitution in excluding the SEBCs (Socially and Educationally Backward Classes)/OBCs (Other Backward Classes)/SCs (Scheduled Castes)/STs (Scheduled Tribes) from the scope of EWS reservation”.

The Attorney General had drafted four issues for the consideration of the bench. The bench, also comprising Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala, which perused the matter was of the view that the first three issues were the pertinent ones.

“Having considered the matter, in our view, (the) first three issues suggested by the Attorney General are the issues which arise in the matter. Whatever has been suggested through other issues by the learned counsel are in the nature of submissions advancing one of the propositions emerging from the issues suggested by the Attorney General. We, therefore, shall be proceeding further with the hearing apropos the first three issues suggested by the Attorney General,” the bench said in its order.

It has fixed September 13 to commence hearing arguments of the different sides in the matter.

Senior Advocate Gopal Sankaranarayanan, who was entrusted with the task of collating the questions suggested by the different counsel, told the bench that many of them had raised the point whether the amendment violated the basic structure by not providing for exclusion of creamy layer from the EWS.

The AG, however, wondered “how that question (can) arise”. He asked “where is the question of creamy layer when we are talking of the poorest of the poor” and that the question “really does not arise”.

Senior Advocate P Wilson said the court should examine if it violated the 50 per cent cap placed on reservation by the Indra Sawhney judgement (Mandal Commission case).

Legal scholar G Mohan Gopal called it the “ADM Jabalpur of social justice”.

“We are crossing the Rubicon. This is the first time in the history of India that privilege is being given to forward classes, and to be born into an upper caste is a privilege and to be born into a lower caste is a disability… This is the ADM Jabalpur of social justice”, he said.

In the ADM Jabalpur case, also known as the Habeas Corpus case, the SC had in 1976 ruled that the right to enforce fundamental rights can remain suspended during Emergency. The ruling came in for much criticism and was eventually overruled by the Supreme Court in the 2017 case K S Puttaswamy vs Union of India.

A three-judge bench of the Supreme Court had on August 5, 2020 referred petitions challenging the amendment to a five-judge bench, saying it involves “substantial questions of law”.

“It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a bench of five judges”, the bench of Chief Justice of India S A Bobde and Justices R Subhash Reddy and B R Gavai had ruled.

The Supreme Court also ordered that petitions on the issue pending before different High Courts be transferred to the five-judge bench.

The petitions challenge the constitutional validity of The Constitution (One Hundred and Third Amendment) Act, 2019. By this, new clause (6) was introduced in Articles 15 and 16.

Article 15(6) empowers states to make special provision for advancement of any EWS other than those mentioned in clauses (4) and (5) and to make a special provision on their admission to educational institutions — including aided or unaided private — other than the minority educational institutions referred to in clause (1) of Article 30. This will be in addition to existing reservation and subject to a maximum of 10 per cent of the total seats in each category.

Article 16 (6) empowers the State to make any provision for reservation of appointments or posts in favour of any EWS other than classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of 10 per cent of the posts in each category.

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The petitioners have contended that the amendments are ultra vires as they alter the basic structure of the Constitution. They argue that the amendments run contrary to the dictum in the majority judgment, in the 1992 case Indra Sawhney & Ors. V. Union of India, that a backward class cannot be determined only and exclusively with reference to economic criterion.

The petitioners have also pleaded that the reservation of 10 per cent of vacancies, in available vacancies/posts, in open competition on the basis of economic criterion will exclude all other classes of those above the demarcating line of such ten per cent seats.

They contend that reservation in unaided institutions violates the fundamental right under Article 19 (1) (g) of the Constitution. The State, they say, cannot insist on private educational institutions which receive no aid from it to implement the policy on reservation for granting admission on any criterion except merit.