Youth for Equality contended before the Constitution bench that EWS is a valid classification, but reservation for them cannot increase the overall reservation beyond 50 per cent ceiling, which is a part of basic structure of the Constitution.
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THE Supreme Court earlier today resumed hearing on a batch of petitions challenging 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.
Senior advocate Gopal Sankaranarayanan, appearing for an organisation named ‘Youth for Equality’, resumed his arguments from last week. His submissions were primarily in support of the EWS quota; however, he contended that the ten per cent EWS quota has breached the 50 per cent ceiling on total reservation which, he argued, is core to the equality code of the Constitution.
Sankaranarayanan submitted that the mere naming of the EWS as a class for special provisions in the Constitution cannot possibly be considered a violation of the basic structure of the Constitution. He added that EWSs or the economically disadvantaged have been the subject matter of several provisions of law and judgments of the Supreme Court. He pointed out that provisions for EWSs have been made in housing, admissions to schools and hospitals, stage carriage permits and even for public interest litigation on their behalf.
Sankaranarayanan contended that the Scheduled Castes (‘SC’), Scheduled Tribes (‘ST’) and Other Backward Classes (‘OBCs’) receive political reservation as well under the Constitution, and there are no ceiling limits to the extent of reservation each of the groups can receive. On the other hand, EWS reservation is capped at ten per cent, and is not extended to political reservation, thereby providing a balance.
Sankaranarayanan further averred that the 103rd Amendment inserts enabling provisions and it effectively makes the EWS reservation reliant on OBC/SC/ST reservations by requiring it to be in addition to the existing reservations. Hence, the same, he submitted, effectively converts the enabling provisions in Articles 15(4), 15(5) and 16(4) of the Constitution into enabled provisions, which is inconsistent with the Constitution itself. He termed it manifestly arbitrary that while political reservation is circumscribed by time in Article 334 of the Constitution, social and educational reservation is now permanently engrafted by virtue of these words being inserted. This, according to Sankaranarayanan, violates the basic structure for it gives reservations, originally meant as a special measure, a permanent status, and affords the SCs/STs/OBCs this avenue as a right.
He highlighted that a maximum of ten per cent fixed as the limit for EWS reservation in addition to the existing reservations suggests that the 50 per cent ceiling would be crossed. He argued that the 50 per cent limit is now not only a part of the constitutional interpretation of reservation provisions, but is also a part of the basic structure of the Constitution.
He summed up that the 103rd amendment, in effect, does the following: A. it cements the “existing reservations” which are not supposed to be permanent; B. it converts enabling provisions into enabled provisions; C. it permits the breach of the 50 per cent ceiling. Consequently, he concluded, it violates the basic structure of the Constitution.
Before moving to hear the Attorney General for India, K.K. Venugopal, the court also heard four advocates very briefly on behalf of interveners after they insisted they be heard. They all took the line adopted by their predecessors in opposition to the 103rd amendment.
Attorney General Venugopal was heard today briefly as the bench had to rise for a meeting before its scheduled time. In his brief submissions, he contended that it was not open for the petitioner to challenge the 103rd amendment unless they show how they were affected by it. He also cited a NITI Aayog report on poverty to justify the EWS quota. He submitted that the EWSs cannot be segregated with regard to homogenous groups such as SCs or STs, because by doing so, it will disturb the homogenous group.