Petitioners continue their relentless attack on EWS quota before the Supreme Court

Reservation for economically weaker sections has been described as a “colourable exercise” and a “mockery” of affirmative action by the counsel for the petitioners. 

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THE Supreme Court, today, continued to hear arguments against 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 Professor Ravivarma Kumar, at the outset, outlined the historical background of reservations in favour of the socially and educationally backward classes (‘SEBCs’), and the Scheduled Castes (‘SCs’) and Scheduled Tribes (‘STs’). On the merits of the case, Prof Kumar argued that economic criteria for reservations is incapable of rational classification. He submitted that the weaker section is the one which can find company with SCs and STs, not one which disqualifies SCs/STs. He submitted that all those who were rejected from being given the reservations under Articles 15(4) and 16(4) of the Constitution have now been given 10 per cent of the reservation. This, he argued, was a colourable exercise.

Article 15(4) and 16(4) talks of special provisions and reservations in favour of the SEBCs and STs/SCs. Prof Kumar sought to contend that the 103rd amendment gives benefit to a small fraction of the privileged class, who are not among the backward classes. He also questioned the basis for the ten percent quota. He submitted that this is arbitrary and a fraud on the Constitution. He added that the 10 percent quota condemns those belonging to SEBCs and SCs/STs because they are excluded from the EWS only because they belong to certain castes.

Referring to Article 46 of the Constitution, Prof Kumar asked, “Can SCs/STs be excluded from the purview of the EWS?” This Article states, The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

“What ‘social injustice’ a kshatriya, brahmin or vaishya have suffered to demand reservation?”, Prof Kumar asked. He further asked when have the EWSs been exploited, and if so, then by whom.

He also contended that Article 46 is not available to EWSs. He sought to rely upon the Supreme Court’s nine-judge Constitution bench decision in the Indra Sawhney case of 1992.

Prof Kumar submitted that there could not be any nexus between poverty and providing jobs.

“Poverty can be a classification for social measures, but executive action cannot be made on economic conditions, else it would violate the equality doctrine”, he noted.

He vehemently submitted that the 103rd amendment militates against the basic structure doctrine.

Senior advocate Salman Khurshid also argued briefly against the 103rd amendment. He said that the entire category of reserved persons in the country is based on caste.

Senior advocate P. Wilson termed the 103rd constitutional amendment as a mockery of affirmative action. Reservations are an affirmative action to narrow the social gap, he pointed out. Granting reservations to “upper castes”, irrespective of their present economic status, is a mockery of the concept of reservations, he stated.

Wilson added that the EWS classification is not reasonable and valid. He contended that the said amendment does not meet the width and identity tests of Articles 15 and 16 of the Constitution, and of the equality code as laid down in M. Nagraj versus Union of India (2006).

Wilson warned that the said amendment is a potential threat to equality. He relied upon the Indra Sawhney judgment, which held that “[r]eservation for backward class seeks to achieve the social purpose of sharing in services which had been monopolised by few of the forward classes. Such affirmative actions have been upheld as the social and educational difference between the two classes furnished the reasonable basis for classification. The same cannot be said for the rich and poor. Indigence cannot be a rational basis for classification for public employment”. He thus submitted that amendments fall foul of the ratio in the Indra Sawhney judgment.

He added that the reservations are constitutionally valid only when made to achieve social equality, and are not constitutionally valid when made on economic factors. He adopted the line taken by senior advocate, Meenakshi Arora yesterday that reservations cannot be a poverty alleviation scheme.

Wilson couldn’t finish his arguments today, and will continue with them during the hearing tomorrow.

Before the bench rose for the day, Justice Bhat remarked, You have to show what is the value of equality in the face of a constitutional amendment. The classification does not answer the basic structure argument”.

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