Tuesday, December 6, 2022

EWS quota: Supreme Court Constitution bench reserves order on petitions challenging validity of 103rd Constitutional Amendment

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The Supreme Court’s 5-judge Constitution Bench headed by CJI UU Lalit after having heard seven days of arguments and over 20 counsels has reserved its orders in the petitions challenging the validity of the 103rd Constitutional Amendment providing 10% quota to Economically Weaker Sections.

The 5-judge bench comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala have heard this case for 7 days and now on the final day, the petitioners’ lawyers made their rejoinders to the arguments made by the Union Government.

A quota for the economically backward has long been demanded and debated. In January 2019, the Union Cabinet cleared the 10 per cent quota for EWS.

The rejoinder arguments were by Senior Advocate Prof. Ravi Varma Kumar who rebutted the contentions of the State regarding the SC/ST/OBCs being a homogenous group and economic criteria already having been used in granting Right to Education.

Senior Advocate Prof. Kumar stated that the court had itself noted that these classes were not homogenous groups and that Article 21A (RTE) never excluded backward classes from its ambit.

The Constitution of India talks of the the principle of equality, which prohibits the State from discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15(1), and guarantees “equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” under Article 16(1), in addition to prohibition against discrimination against any citizen on the same grounds as in Article 15(1), specifically with respect to employment or appointment under the State.

Another special provisions, which comes under Article 15(4) empowers the State to “make any provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”, and under Article 16(4) provides “for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State”.

For the past days, the Government has been discussing on these major issuesWhether 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?

– Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution 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/SCs/STs from the scope of EWS reservation?

The Apex Court is currently dealing with petitions filed by NGOs Janhit Abhiyan and Youth for Equality, which challenges the validity of Constitution (103rd Amendment) Act, 2019 saying that reservation cannot be based solely on the economic classification.

As per the 103rd Constitutional Amendment Act, reservation of 10% seats in public and private educational institutions and in public employment are marked for “economically weaker sections” of citizens other than Scheduled Castes, Scheduled Tribes and socially and educationally backward classes of citizens.

The petitioners contended that the amendment violates the basic structure of the Constitution and breaches the overall 50 per cent ceiling of reservation as mandated by the dictum in Indra Sawhney case.

He stated that the reservation of 10% seats for EWS other than SC/ST/OBCs is arbitrary and excessive.

He further argued that reservation in an educational institution is breach of basic structure and the term ‘class’ under Article 46 of the Constitution does not mean people who are EWS (economically weaker sections) but those who are educationally backward.

The debate was also saw the definition of backward by the Supreme Court in the Mandal case (Indra Sawhney vs Union of India, 1992) judgment, which said to include SCs, STs, and BCs. These are not exceptions, but special provisions to ensure that the principle of Equality enshrined in Articles 14, 15(1) and 16(1) becomes really effective, in the peculiar inherited Indian context of a society riddled by gross inequalities between social classes.

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