The Supreme Court on Monday, November 7, upheld the validity of the 103rd Constitution amendment providing 10% reservation to EWS (Economically Weaker Sections) persons in admissions and government jobs. A five-judge bench comprising Chief Justice UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, JB Pardiwala delivered four judgments in the matter. Three of the judges upheld the contitutional validity of the amendment, while two others, including Chief Justice UU Lalit, passed opposing judgments.
Ahead of delivering the judgments, Justice Dinesh Maheshwari said that the three major points considered in determining the case were whether reservation was a tool for inclusion of social and economically backward classes in the mainstream, whether it violated the basic structure of the Constitution, and whether the exclusion of classes from getting EWS violates the basic structure of the Constitution. Justices Maheshwari, Bela Trivedi, and Pardiwala upheld the constitutional validity of the amendment, while Justice Ravindra Bhat and Chief Justice UU Lalit struck down its validity.
Observing that reservation was an instrument of affirmative action that ensures an inclusive march towards the goal of an egalitarian society, Justice Maheshwari said that it is a means of inclusion of any class or section so disadvantaged. He pronounced, “Reservation on economic basis does not violate basic structure or Constitution of India.”
“EWS reservation does not violate the equality code or violate essential features of the Constitution. Breach of 50% does not violate the basic structure as the ceiling limit is not inflexible. The EWS amendment does not violate the basic structure as it is based on economic criteria,” the Judge said.
Concurring with Justice Maheshwari, Justice Bela Trivedi said that the 103rd Constitution Amendment cannot be struck down citing violation of basic structure. “The amendment has to be treated as an affirmative action by the Parliament for the benefit of the EWS class. Treating EWS as a separate class would be a reasonable classification. Such classification does not violate the equality code,” the Judge said.
Further, Justice Bela added, “It cannot be again said that the age-old caste system in India led to introduction of reservations and so that SC/ST gets a level playing field. At the end of 75 years, we need to take a relook at reservations in general in the spirit of transformative constitutionalism.”
Justice JB Pardiwala also concurred with the other two judges, saying that reservation cannot be allowed to become a vested interest. “The movement started seven decades back and the long standing development and education has helped in minimising the gap. The ones who have moved ahead should be removed from Backward Classes so that ones in need can be helped. The ways to determine backward classes need a relook so that ways are relevant in today’s time,” the Judge said.
However, Justice Ravindra Bhat dissented in his judgment and said that the Constitution does not permit exclusion. He stated that the amendment “undermines the fabric of social justice and thereby the basic structure. This amendment strikes at the heart of the equality code which is the core of the Constitution. EWS amendment's exclusionary mechanism operates against the socially disadvantaged class. The exclusion is based on deprivation but is discriminatory and thus the amendment is nothing but discrimination and thus destroys the equality code and thus the EWS amendment is arbitrary and creates hostility for the socially disadvantaged,” he observed.
“This amendment is deluding us to believe that those getting social and backward class benefits are somehow better placed. This court has held that 16(1) (equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state) and 16(4) are facets of the same equality principle. This amendment bestowing double benefits is incorrect. This exclusion violates the non-discriminatory and non-exclusionary facet of the equality code,” he said. Article 16(4) of the Constitution states, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
He further observed, “Economic destitution, economic backwardness is the backbone of this amendment and on this account, the amendment is constitutionally indefeasible. However, excluding the classes such as SC, ST and OBC is not constitutionally permissible.”
Pointing out to the three questions based on which the decision was taken, he said that for the first question, he said that the state can introduce reservation for the economically backward and those who suffer from ill effects of poverty and thus reservation based on economic criteria is not invalid. But for the second question, excluding SC-ST, OBC, it is unconstitutional, he observed.
“Permitting breach of 50% rule becomes a great way for further infractions which would result in compartmentalisation and then rule of reservation will become right to equality and take us back to ‘Champakam Dorarajam’ since equality was to be a temporary aspect,” he said.
Stating that though economic criteria for accessing public goods is permissible but for discrimination, it is struck down as unconstitutional and ‘becomes void on the ground that it is violative of the basic structure of the constitution’, the judge said that he strikes down the EWS amendment.
After a marathon hearing over six-and-a-half days, the Supreme Court on September 27 reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the Constitution. The Court had heard a battery of senior lawyers, including the then Attorney General (AG) KK Venugopal and Solicitor General (SG) Tushar Mehta. Academician Mohan Gopal had opened the arguments in the case before the bench on September 13 and opposed the EWS quota amendment by terming it "deceitful and a backdoor attempt" to destroy the concept of reservation.
Tamil Nadu, represented by senior advocate Shekhar Naphade, had also opposed the EWS quota, saying that economic criteria cannot be the basis for classification. It was also argued that the top court will have to revisit the Indira Sawhney (Mandal) judgement if it decides to uphold EWS reservation.
On the other hand, the then AG and SG had vehemently defended the amendment, saying that the reservation provided under it was different and had been given without disturbing the 50% quota meant for the Socially and Economically Backward Classes (SEBC).
The bench, on September 8, framed three broad issues for adjudication arising from the pleas challenging the Union government's decision to grant 10% reservation to EWS in admissions and jobs. "Whether the 103rd Constitution Amendment Act breaches the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria," was the first issue framed.
The second legal question was whether the Constitutional Amendment breaches the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions. The third issue is whether it breaches the basic structure of the Constitution in excluding the SEBC/OBC, SC/ST from the scope of EWS reservation.
The doctrine of basic structure says that the Parliament can not amend aspects such as rule of law, separation of powers, and judicial freedom of the Constitution.
The Union government, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.
Earlier, the union government in 2019 had also told the apex court that its law, granting a 10% quota for Economically Weaker Sections, was brought in to promote "social equality" by providing "equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status". The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9 in 2019 respectively.