AG defends EWS quota as distinct and not violative of basic structure theory

The Attorney General of India, K.K. Venugopal suggested that exclusion of SCs, STs, and OBCs from the EWS category is justified, because including them would have breached the 50 per cent ceiling, thereby violating the basic structure theory.


EARLIER today, the Attorney General for India (‘AG’), K.K. Venugopal strongly defended the validity of the Constitution (One Hundred and Third Amendment) Act, 2019 that provides for a ten per cent quota to economically weaker sections (‘EWS’) of citizens in admission to educational institutions, including private educational institutions. The petitions challenging the amendment are being heard by a five-judge Constitution Bench comprising the Chief Justice of India U.U. Lalit, and Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela Trivedi and J.B. Pardiwala.

Supporting the amendment, Venugopal said that the introduction of reservation up to ten per cent has to be necessarily treated as an extraordinary situation, and hence cannot be the subject of any argument of violation of the basic structure.

Citing the decision of the Supreme Court in K.C. Vasanth Kumar versus State of Karnataka (1985), Venugopal submitted that it was held in this case that economic backwardness could be the only criterion for identifying socially and educationally backward classes.

On the extent of reservation, that is the ceiling of 50 per cent reservation, Venugopal cited the decision in the court’s Indra Sawhney judgment of 1992 and referred to the following extract from it:

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 the conditions peculiar to end characteristic of 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.

In Jaishri Laxmanrao Patil versus The Chief Minister & Ors. (2021)this was further affirmed, the AG added.

The AG sought to argue that there exists a clear demarcation, as a result of which two compartments exist. One, relatable to the backward classes with 50 per cent reservation, and the other, with the general category, with up to ten per cent reservation.

The 103rd Constitutional Amendment, therefore, is the evolution of a new chapter where poverty in this entire country, based on available statistics, was a matter of concern for the law makers, who therefore sought to relieve those EWS in the general category by giving them reservation in seats and jobs up to ten per cent. This reservation of up to ten per cent, being distinct and separate for a new class and category other than the backward classes, cannot be included within the 50 per cent ceiling limit to contend that the reservation exceeds 50 per cent. The reservation for the backward classes still remains at 50 per cent“, the AG argued.

He thus criticised the contention that the new evolution of affirmative action for those among the general category belonging to EWS would be violative of the basic structure doctrine.

Citing from the seven judge bench decision in State of Kerala versus N.M. Thomas (1975), the AG said that it is the duty of the State to ameliorate the economic and disadvantaged conditions of the poor.

The AG added that the reservation is ‘up to ten per cent’, which gives the executive flexibility in deciding as to whether the reservation, in view of the circumstances existing among the EWS in the general category, should be modulated and to what extent, which could also be the subject matter of judicial review. He further contended that discrimination can arise only between two classes, which are otherwise equals, and if they are unequal, they cannot possibly compare themselves against the other class and claim the same rights that are bestowed on the other class.

Venugopal completed his arguments today.

Senior advocate Mahesh Jethmalani, for the Madhya Pradesh Government, defended the 103rd amendment as well.

Solicitor General Tushar Mehta will resume his arguments in support of the 103rd amendment tomorrow.