Tuesday, Nov 29, 2022

SC Reserves The Verdict On EWS Quota: What Have Transpired So Far

In a marathon hearing the bench of CJI U U Lalit heard several parties but kept the cards close to the chest.

Supreme Court of India
Supreme Court of India PTI

The Supreme Court on Tuesday reserved its verdict on a batch of pleas challenging the validity of the 103rd Constitution amendment providing 10 per cent reservation to economically weaker sections (EWS) persons in admissions and government jobs.

A five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the constitution after hearing a battery of senior lawyers including Attorney General K K Venugopal and Solicitor General Tushar Mehta in the marathon hearing that lasted for six-and-half-day.

The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.

Earlier, the Centre, in 2019, had also told the apex court that its law, granting a 10-per cent quota for Economically Weaker Sections (EWSs), was brought in to promote "social equality" by providing "equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status".

A throwback at what happened till now in the case will help us to understand what the stance of the SC has taken throughout the marathon hearing.

SC focusing on Three Contentions: Making a Framework

Since the 103rd amendment of the constitution had been passed multiple cases were filed in different High Courts challenging constitutionality of the decision. The Central Government had requested the SC to bring in all the petitions under it for an authoritative pronouncement.

Taking the suggestions of the Attorney General the SC on September 8 made a three-point framework on which it decided to hear the case. It mentioned that the identified framework broadly covered the area of constitutional validity and basic structure argument of the petitions.  

The first issue dealing with the basic structure of the framework reads, “Whether the 103rd Constitution amendment Act 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”

The second legal question was whether the constitutional amendment could be said to breach the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions.

The third issue to look into was “whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation.”

The basic structure doctrine that came up several times in the hearing comes from 1973 SC verdict regarding Keshavananda Bharati case where the top court said that the Parliament could not amend every bit of the Constitution. Rule of law, separation of power and judicial freedom constitutes the basic structure of the Constitution.

The Supreme Court heard as many as 40 petitions and most of the pleas, including the lead one filed by 'Janhit Abhiyan' in 2019, challenged the validity of the Constitution Amendment Act 2019.

The Arguments heard in the Case:

Academician Mohan Gopal had opened the arguments in the case before the bench, which also comprised Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala, on September 13 and opposed the EWS quota amendment by terming it as "deceitful and a backdoor attempt" to destroy the concept of reservation.

Senior lawyers including Ravi Verma Kumar, P Wilson, Meenakshi Arora, Sanjay Parikh, and K S Chauhan and advocate Shadan Farasat also assailed the quota, saying it also excluded the poor belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) categories, and defeats the creamy layer concept.

Tamil Nadu, represented by senior advocate Shekhar Naphade, also opposed the EWS quota, saying the economic criteria cannot be the basis for classification and the top court will have to revisit the Indira Sawhney (Mandal) judgement if it decides to uphold this reservation.

On the other hand, the attorney general and the solicitor general vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50 per cent quota meant for the socially and economically backward classes (SEBC).

Hence, the amended provision does not violate the basic structure of the Constitution, they said.

The solicitor general argued in detail about the state's power to take affirmative action to elevate the poor among the general category and said the constitutional amendment strengthens the basic feature of the Constitution and its validity cannot be tested on grounds of some statistics.

He said the EWS quota was "necessitated" to benefit the general category poor, a "large segment" of the population not covered under any existing reservation scheme.

Senior advocate Gopal Sankarnarayanan, appearing for NGO 'Youth for Equality’, supported the EWS quota scheme, contending it was “long overdue” and a “right step in the right direction.”

Observations of the Supreme Court:

During the hearing the Court looked at the different strands of the arguments and put forth a few significant observations that could also guide us to understand the SC’s probable verdict.

Instead of supporting the EWS quota, the SC observed that the poorer sections among the upper castes could be elevated through different affirmative actions like providing them with scholarships and other financial helps. The SC also noted that poverty is not a permanent thing like the baggage of caste that affects the dignity of a person.

Responding to the statement of the solicitor general Tushar Mehta who was defending the 103rd amendment saying that as the basic structure of the constitution has not been violated as the reservation has not been carved out of the existing coterie of 50%, the bench of CJI U U Lalit said, “The other side is not denying the fact that people, who are struggling or who are poverty stricken in that unreserved class, needed some support. There is no doubt about that. What is being submitted is that you can try to elevate that class by giving them sufficient opportunities at the threshold level, say at the 10 2 level... Give them a scholarship. Give them the free-ship so that they get the opportunity to learn, to educate themselves or to elevate themselves.”

Taking note of the meaning of reservation the bench said that it is meant for the depressed classes who have been at the margins for centuries. “When it is about other reservations, it is attached to lineage. That backwardness is not something which is temporary. Rather, it goes down to centuries and generations. But economic backwardness can be temporary,” observes the bench.

It also observed that the reservation has different facets. It is not only about developing the economic situation of a person; rather it refers to the inclusion in different sectors. So, the government could opt for any other option apart from reservation, says the court.

The statements of the bench though indicate a verdict against the EWS quota, the political analysts are of the opinion that it will be complicated decision keeping in mind the people it addresses.

(With PTI Inputs)