Supreme Court upholds EWS 10% reservation in education and government jobs

A bench of five judges consisting of Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, JB Pardiwala and Chief Justice UU Lalit rendered four judgments in the matter.

On Monday, November 7, the Supreme Court upheld the validity of the 103rd Amendment to the Constitution providing for a 10% reservation for EWS (Economically Weaker Sections) individuals in admissions and government jobs. A bench of five judges consisting of Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, JB Pardiwala and Chief Justice UU Lalit rendered four judgments in the matter. Justices Maheshwari, Bela Trivedi and Pardiwala upheld the constitutional validity of the amendment, while Justice Ravindra Bhat and Chief Justice UU Lalit overturned its validity.

Before handing down the judgments, Judge Dinesh Maheshwari said that the three main points considered in determining the case were whether the reservation was a tool for including the social and economically backward classes into the mainstream, whether it violated the basic structure of the Constitution and whether the exclusion of classes from obtaining SAP violates the basic structure of the Constitution.

Divided verdict

Observing that the reservation was an instrument of affirmative action which ensures an inclusive march towards the goal of an egalitarian society, Justice Maheshwari said that it was a means of inclusion of any class or section if disadvantaged. He said that “booking on an economic basis does not violate the fundamental structure or constitution of India”.

“The EWS reservation does not violate the equality code or violate the essential characteristics of the Constitution. A 50% violation does not violate the base structure because the cap limit is not inflexible. The EWS amendment does not violate the basic structure as it is based on economic criteria,” the judge said.

Agreeing with Justice Maheshwari, Justice Bela Trivedi said the 103rd Amendment to the Constitution cannot be undone by citing violation of the basic structure. “The amendment should be treated as positive action by Parliament for the benefit of the EWS class. Treating EWS as a separate class would be a reasonable classification. Such a classification does not violate the equality code,” the judge said.

Further, Justice Bela added, “It can no longer be said that the age-old caste system in India has led to the introduction of reservations and that SC/ST gets a level playing field. After 75 years, we must revisit reserves generally in the spirit of transformative constitutionalism.

Judge JB Pardiwala also agreed with the other two judges, saying the reservation could not become a vested interest. “The movement started seven decades ago, and long-standing development and education have helped bridge the gap. Those who have advanced should be removed from the backward classes so that those in need can be helped. The means of determining the backward classes must be rethought so that the means are relevant at the present time,” the judge said.

However, Justice Ravindra Bhat dissented in his judgment and said the Constitution does not allow the exclusion. He said the amendment “undermines the fabric of social justice and therefore the basic structure”. “This amendment goes to the heart of the equality code which is at the heart of the Constitution. The exclusion mechanism of the EWS amendment works against the socially disadvantaged class and it denies mobility from reserved quota to reservation quota based on economic criteria. The exclusion is based on deprivation but is discriminatory and therefore the amendment is nothing but discrimination and thus destroys the equality code and therefore the EWS amendment is arbitrary and creates hostility for the socially disadvantaged,” he observed.

“This amendment misleads us into believing that those with social benefits and backward class are somehow better off. This court held that 16(1) (equal opportunity for all citizens in employment or appointment to any state office) and 16(4) are facets of the same principle of equality. This amendment conferring double benefits is incorrect. This exclusion violates the non-discriminatory and non-exclusive part of the equality code,” he said. Section 16(4) of the Constitution states: “Nothing in this section shall prevent the State from making provision to reserve appointments or positions for any class of backward citizens who in the opinion of the State, is not sufficiently represented in the services coming under the State.

He further observed, “Economic misery, economic backwardness is the backbone of this amendment and as such, the amendment is constitutionally binding. However, the exclusion of classes such as SC, ST, and OBC is not constitutionally permitted.

Highlighting the three issues on the basis of which the decision was taken, he said that for the first issue, he said that the state can introduce reservation for the economically backward and those who suffer the adverse effects of poverty and therefore a reservation based on economic criteria is not invalid. But for the second question, except SC-ST, OBC, it is unconstitutional, he observed.

“Allowing the breach of the 50% rule becomes a great way of further breaches which would lead to compartmentalization and then the reserve rule will become a right to equality and bring us back to ‘Champakam Dorarajam’ since equality was to be a temporary aspect,” he said. .

Stating that although economic criteria for access to public property are permitted but for discrimination, they are struck down as unconstitutional and “become void on the grounds that they violate the basic structure of the constitution”, the judge said he canceled the SAP. amendment.

After a six-and-a-half-day marathon hearing, the Supreme Court on September 27 reserved the verdict on the legal issue of whether the EWS quota violated the basic structure of the Constitution. The Court had heard from a battery of experienced lawyers, including former Attorney General (AG) KK Venugopal and Solicitor General (SG) Tushar Mehta. Academician Mohan Gopal opened the case in front of the bench on September 13 and opposed the EWS quota amendment calling it a ‘misleading attempt and backdoor’ to destroy the concept reservation.

Tamil Nadu, represented by senior lawyer Shekhar Naphade, had also opposed the EWS quota, saying economic criteria could not be used as the basis for classification. It has also been argued that the higher court will have to review the Indira Sawhney (Mandal) judgment if it decides to uphold the EWS reservation.

Read: Three reasons DMK objected to 10% EWS booking

On the other hand, the AG and SG at the time had vehemently defended the amendment, saying that the reservation it contained was different and had been given without touching the 50% quota intended for socially and economically classes arrears (ESCB).

The bench on Sept. 8 framed three major issues to be decided arising from the pleas challenging the Union government’s decision to grant EWS a 10% reservation in admissions and jobs. “Whether the 103rd Constitution Amendment Act violates the basic structure of the Constitution by permitting the state to make special provisions, including reservations, based on economic criteria,” was the first question asked.

The second legal issue was whether the constitutional amendment violated the basic structure by allowing the state to make special arrangements regarding admissions to private, unsubsidized institutions. The third question is whether it violates the basic structure of the Constitution by excluding the ESCB/OBC, SC/ST from the scope of the EWS reservation.

The Basic Structure Doctrine says that Parliament cannot alter aspects such as the rule of law, separation of powers and judicial freedom of the Constitution.

The Union Government, through the 103rd Constitutional Amendment Act, 2019, introduced the Economically Weaker Sections (EWS) reservation provision in Admissions and Public Services.

Earlier, the Center in 2019 also told the Supreme Court that its law, granting a 10% quota to economically weaker sections, was introduced to promote “social equality” by providing “equal opportunities in higher education and employment to those who have been excluded because of their economic situation”. The Lok Sabha and the Rajya Sabha approved the bill on January 8 and 9, 2019 respectively.

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