THE Supreme Court today brought the curtains down on the hearing of the 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, and government employment. The matter was being heard by a Constitution bench of the court comprising the Chief Justice of India U.U. Lalit, and Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela Trivedi and J.B. Pardiwala. This was the seventh day of hearing, and the bench has now reserved judgment on the petitions.
Advocate V.K. Biju, for one of the respondents, began proceedings by emphasising that the amendment took away no one’s rights, and referring to reservations for different categories such as EWS, Scheduled Castes (‘SCs’), Scheduled Tribes (‘STs’) and Other Backward Classes (‘OBCs’) as ‘compartments’. He also stated that the Supreme Court has, in its M.R. Balaji, Indra Sawhney and Ashok Kumar Thakur judgments, stated that poverty should be the basis for reservation. He further stated that the EWS reservation was instituted on the basis of the 2010 recommendations of the Major Gen. S.R. Sinho-led Commission for Economically Backward Classes, appointed by the Union Government. He also cited the example of Kerala, where the government had instituted a reservation quota for EWS students in higher education as far back as 2008.
The Solicitor General of India Tushar Mehta argued that the reservation was in response to the wishes and aspirations of the public. When Justice Bhat asked him for details on the kind of scholarships offered by the Union Government for professional courses for students from poor backgrounds, Mehta responded that that is a policy issue, and doesn’t impact the constitutionality of the amendment, which is under question.
He also defended keeping other reserved categories out of the EWS quota, on the basis that not doing so would result in double reservation, and would amend the Constitution beyond what was envisioned.
The rejoinder arguments by the petitioners’ counsel, to address the respondents’ contentions, were begun by senior advocate Prof. Ravi Varma Kumar. Referring to remote and primitive tribes in the Nicobar islands, Prof. Kumar asked why they were excluded from something done for the benefit of the poor. He thus averred that the EWS quota, by excluding STs, SCs and OBCs, offends the basic structure of the Constitution. He then gave the hypothetical scenario of the Indian Navy delineating certain positions only for men on the basis that women already have benefits; such a provision has been held by the Supreme Court as impermissible.
He further pointed out that in no government scholarships for EWS students, or any other public welfare schemes or legislative measure, are SCs, STs or OBCs excluded from EWS; only the amendment has such a provision. He then argued that the respondents had not established a nexus between poverty and reservation, and questioned the need for reservation as a poverty alleviation measure. He contended that extending reservation to everyone, whether needed or not, is unconstitutional, since it creates reverse discrimination.
He then disputed the assertion of the Attorney General for India that STs/SCs/OBCs are homogenous classes, referring to Indra Sawhney, which permitted categorisation among OBCs, and the 1965 report of the Union Government-appointed Advisory Committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes, which recognised that SCs are not a homogenous group.
Senior advocate Gopal Sankaranarayanan argued against creating compartments for different reservation categories, warning that it could be used to increase reservation up to 90 per cent of all seats. He called the 50 per cent reservation ceiling the standard, and part of the basic structure of the Constitution, as held previously by two five-judge Constitution benches of the Supreme Court, which is why it couldn’t be violated.
Senior advocate P. Wilson argued that reservation is not a poverty alleviation scheme. Recalling the respondents’ reference to the Sinho Commission report, he said that the commission didn’t recommend any sort of reservation. He also claimed that as per Indra Sawhney, any reservation on economic criteria would cause the virtual deletion of Article 15(4) of the Constitution.
Challenging the respondents’ reliance on National Sample Survey Office (‘NSSO’) data, he averred that NSSO doesn’t relate to social conditions or backward classes, and doesn’t help establish reservations. Contesting the compartment theory, he referred to two judgments that upheld that reserved category candidates could compete for open category positions.
Referring to the respondents’ claims of an extraordinary situation arising that necessitated the amendment, he questioned what the extraordinary situation exactly is, since it is neither mentioned by the Sinho Commission nor by the amendment act.
Senior advocate Meenakshi Arora began her arguments by first referring to the Attorney General’s contention that SCs/STs cannot be further subdivided and therefore they cannot be placed within EWS; if that is accepted, then horizontal reservations of any sort won’t be permitted. Referring to the principle that the impact of an act, rather than only its object, must be considered, she called Indra Sawhney as the “voice of the court” that cannot be overruled.
Referring to the respondents’ contention that not all incursions into the basic structure violate the basic structure, unless it is shocking, she averred that this would lead to the basic structure being gradually destroyed, chip by chip. She reiterated that migration from reserved category to the general category is permitted, and that there is no justification advanced by the government to discriminate against SCs, STs and OBCs on the basis of economic criteria by excluding them from EWS.
Senior advocate Sanjay Parikh emphasised the primacy of social backwardness, as opposed to economic criteria, for instituting reservation.
Senior advocate Dr. K.S. Chauhan referred to the former President Ram Nath Kovind being refused entry into a temple to illustrate that the historical context of discrimination must be kept in mind while providing reservation.
Advocate Kaleeswaram Raj referred to the court’s Puttaswamy judgment to highlight that the individual is the focal point of the Constitution, and therefore it cannot be accepted that SCs/STs/OBCs have already been given rights. He concluded that in the context of exclusion, it must be seen whether there has been any discrimination, and any individual violation of fundamental rights.
Finally, Professor G. Mohan Gopal referred to Justice S.H. Kapadia’s opinion in M. Nagraj to determine whether there has been a violation of the basic structure. Reading out the criteria for inclusion among Socially and Educationally Backward Classes, Prof. Mohan Gopal noted that it is a heterogeneous category, not based only on caste, but also on social, economic and political backwardness. He argued that all these criteria go together, and cannot be separated.
He stated that the amendment, for the first time, creates membership of a forward caste as an eligibility criterion for government assistance, which is violative of the basic structure of the Constitution. Another reason why it violates the basic structure is because, he averred, it “destroys the harnesses on reservation”: harnesses which were put in place to ensure that reservation is only used for those who are discriminated against, since, according to Dr. B.R. Ambedkar, reservation is a dangerous instrument that shouldn’t be applied to more than 50 per cent of the total seats.
He made a reference to Justice Kapadia’s opinion in M. Nagraj to emphasise that the amendment’s object, of providing reservation to those who are poor and socially and educationally forward, is not an established principle in constitutional law, and is in “violent violation of equality”.
He concluded by requesting the court to take a “constitutionalist approach”, and interpret the term “other than” in Article 16(6) to mean distinct criteria with intelligible differentia, in order to retain the amendment without letting reservation loose and disconnecting it from backwardness.
At the conclusion of the hearing, the bench prevented more interveners from presenting submissions, and requested advocates Shadan Farasat and Kanu Agarwal to put together the written compilations in a concise form within two-three days.