The Supreme Court on Thursday, 15 September, refused to entertain a submission about Parliament having cleared the 103rd constitutional amendment to provide 10 percent quota to the Economically Weaker Sections (EWS) without much debate, saying it was “barred from entering into that arena”.
The top court, while hearing a batch of pleas challenging the Centre's decision to grant reservation to the EWS in education and government jobs, reaffirmed that providing for economic criteria to ensure the benefit of government policies reach the target group is not “proscribed” but a “recognised” basis of classification.
“The Constitution is an organic and transformative document. We see generations of poverty. We see the below poverty line (BPL) groups as well. These are a large mass of people. Why cannot there be an economic based affirmative action (by the State)...,” a five judge Constitution bench headed by Chief Justice Uday Umesh Lalit said.
'We Cannot Intervene': SC Bench
Senior lawyer KS Chauhan, appearing for one of the petitioners, referred to the speeches of former CJI NV Ramana to drive home the point that legislations are being passed in Parliament without much debate.
“We are a democracy and democracy is based on deliberations. This constitutional amendment bill was passed in Lok Sabha on 8 January and in Rajya Sabha on 9 January. I could not find any debate on this,” the lawyer said.
“We are barred from entering into that arena as to what is spoken in Parliament. We cannot intervene into the legislature and this cannot be a ground. We cannot intervene. Why discuss and debate this?” observed the bench, which also comprised justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala.
The bench refused to entertain the lack of discussion in Parliament on the amendment as a ground of challenge, saying “we are losing our energy if we talk about that”.
On the vehement submission by some lawyers that economic criteria cannot be the basis for granting quota, the bench orally observed, “Nobody denies a fact that historical discrimination leads to economic disadvantage as well. The idea with which the EWS amendment excludes others is because they are already covered under the umbrella of other protective schemes. This is the core issue”.
It asked what was “so wrong” if the government takes affirmative action, including the grant of reservation, to benefit the EWS despite the fact that it is not a “homogenous” group.
'Right Step in a Right Direction'
At the fag end of the third day of the hearing, 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 a right direction.” He referred to the introduction of EWS criteria in the law on Right to Education where poor students are provided free education in schools and said, “The EWS concept is not an alien one” and the 50 per cent ceiling, as prescribed in the Mandal judgement, has been breached in the past as well.
The Lok Sabha and the Rajya Sabha cleared the 103rd Bill on 8 January and 9 January in 2019 respectively before it was signed by then President Ram Nath Kovind.
The EWS quota is over and above the existing 50 percent reservation to SCs, STs, and Other Backward Classes (OBCs).
'Facet of Democracy Will Be Destroyed by This'
Senior lawyers including P Wilson, KS Chauhan, Sankarnarayanan and advocate Shadan Farasat addressed the bench during the day.
Wilson referred to judgements to assail the EWS quota and said it vitiated the equality code enshrined in Articles 14, 15 and 16 as it keeps poor SCs, STs and OBCs out.
Chauhan also referred to judgements, including the 1973 Kesavananda Bharati verdict, and insisted the quota law altered the basic structure doctrine.
“The reservation solely on ground of economic criteria is not permissible and this has been held by this court," he said, adding, a “facet of democracy will be destroyed by this”.
Lawyer Shadan Farasat, appearing for Khalid Anis Ansari, said the exclusion of backward classes from the EWS quota amounts to discrimination solely on the basis of caste, and negates the formal and substantive equality underpinning the equality code.
“Data from the United Nations demonstrates plainly that around 85 percent of the poorest in Indian society belong to the backward classes. Thus, the amendment, by excluding the backward classes from the ambit of EWS reservations, betrays its actual intent to serve as a quota for middle-class members of forward castes,” he said.
In fact, the income criteria of Rs 8 lakh per annum, fixed by the Centre for the EWS quota, is not a valid criteria for identifying the poor, he said, adding “at this threshold, as per available data, merely 2-5 percent of forward caste members are ineligible".
The hearing will resume on 20 September.
Earlier, the top court had fixed three broad issues for adjudication arising from the pleas challenging the Centre's decision to grant 10 percent reservation to EWS in admission to educational institutions and for securing government jobs.
It had said the bench will also decide whether the 103rd amendment breached the doctrine of the basic structure of the Constitution by allowing the state to make such special provisions.