Supreme Court frames issues for adjudication on petitions against EWS quota
A five-judge Supreme Court bench, led by Chief Justice of India (CJI) Uday Umesh Lalit, set down three major legal issues to be debated for scrutinising the validity of the 2019 amendment which provided for quota benefits to the EWS in public employment and educational institutions.
There must be “something shocking” about an amendment that violates equality and the constitutional scheme before it can be declared bad, the Supreme Court observed on Thursday as it cleared the decks for commencing a Constitution bench hearing from September 13 on the challenge to the central law for 10% reservation benefits to the economically weaker section (EWS).
A five-judge bench, led by Chief Justice of India (CJI) Uday Umesh Lalit, set down three major legal issues to be debated for scrutinising the validity of the 2019 amendment which provided for quota benefits to the EWS in public employment and educational institutions.
The bench, which also included justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, approved the legal issues framed by Attorney General (AG) KK Venugopal, noting they broadly cover the spectrum of questions raised against the law through multiple petitions.
These issues included whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria, or by permitting the State to make special provisions in relation to admission to private unaided institutions. “Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SC/STs from the scope of EWS reservation,” stated the third issue.
Deciding to commence the detailed hearing in the matter from September 13, the bench said in its order: “The first three issues suggested by the AG are the issues which arise in the matter. Other issues suggested are in the nature of submissions advancing one of the propositions emerging from issued suggested by the AG. We shall be going ahead with the hearing apropos the first three issues suggested by the AG.” The bench has decided to put aside five working days spanning over 20 hours to complete the hearing on the matter.
During the proceedings, advocate G Mohan Gopal submitted that the EWS quota case is the “ADM Jabalpur of social justice”. “We are crossing the Rubicon. To be born in an upper class is a privilege and to be born in a lower class is a disability,” he added.
In the controversial 1976 ADM Jabalpur ruling, the Supreme Court by 4-1 held that even the constitutional right to life and liberty under Article 21 can be suspended by the declaration of Emergency. Justice HR Khanna was the only judge who dissented with the majority and it cost him the position of CJI.
Meanwhile, responding to Gopal’s submissions, the bench agreed that the entire Constitution talks about social and educational backwardness and without social backwardness, there was no concept of reservation.
“But, at present, we are on the validity of 103rd Amendment with regard to the equality clause. What is sought to be captured is the validity of 103 Amendment having regard to equality as we understand today. What is the facet of equality being violated? It has to be glaring. As the Bheem Singh judgment says, there must be something shocking which breaches equality and constitutional scheme,” added the court.
The bench assured all the counsel that they are at liberty to add “flesh and blood” to the broader issues set down by it, asking them to submit their written submissions by Saturday morning.
On Tuesday, AG Venugopal, through his written note, told the court that the 50% cap on reservation is “not sacrosanct”, as the senior counsel defended the 10% EWS quota law. The Union government’s position could change the paradigm that has governed reservations in India, preventing states from enforcing quotas that take the proportion above the 50% mark laid down in 1992 by the apex court in the Indra Sawhney (famously known as Mandal Commission) judgment.
According to the law officer, the Preamble of the Constitution provides for the upliftment of EWS, which, Venugopal emphasised, could be through reservations in educational institutions, posts in public employment, and a series of welfare measures that the State is bound to hold out for the weaker sections of society.
The AG, in his written submissions presented before the Constitution bench, maintained that the 103rd Amendment of 2019 that provides 10% reservation for EWS is perfectly valid in relying on economic criteria, which has been judicially affirmed as a relevant factor for determination of social and educational backwardness.
The AG’s submissions come even as another Constitution bench in 2021 refused to consider scrapping the 50% ceiling as it quashed a Maharashtra law providing quotas for Marathas in jobs and education. Underlining that the 50% upper limit as fixed by the Indra Sawhney case follows principles of reasonability and equality, the bench unanimously said that “to change the 50% limit is to have a society which is not founded on equality but based on caste rule”.
In August 2020, the court referred to a five-judge Constitution bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for EWS in government jobs and educational institutions.
The Union government, before a three-judge bench in 2020, defended the law, citing Article 46 of the Constitution, under which it has a duty to protect the interests of the economically weaker sections as a part of state’s directive principles. On the challenge that the amendment violates the basic structure, the government argued that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.
