Day 4 Arguments

EWS Reservation

July 30th 2019


Today, a three-judge bench of the Supreme Court – comprising Justices Sharad Bobde, Subhash Reddy and Bhushan R Gavai – heard a challenge to the 103rd Constitutional Amendment, which introduces 10% reservations for Economically Weaker Sections (EWS).



In January 2019, the Parliament enacted the 103rd Constitutional Amendment Act. It introduces Articles 15(6) and 16(6), which provide up to 10% reservations in private and public educational institutions and appointments to public service. These 10% reservations are in addition to the existing reservation for SC/STs and OBCs. It is under challenge for violating the basic structure of the Constitution, specifically the basic feature of equality.


On 11 March, a three judge bench led by Chief Justice of India Ranjan Gogoi heard Senior Advocate Rajeev Dhavan argue that the matter should be referred to a larger bench. It declined to stay the amendment for the course of proceedings. On 28 March, the matter was re-assigned to a two judge bench, comprising Justice Sharad Bobde and Abdul Nazeer. On 8 April, this new bench once again denied placing a stay order.


Today’s Hearing

In today’s hearing, Senior Advocate Dr. Rajeev Dhavan on behalf of the petitioner Tehseen Poonawalla argued in favour of referring the matter to a larger bench. On the other hand, Attorney General KK Venugopal on behalf the Union opposed referral.


Justice Bobde decided to begin hearing Rajeev Dhavan’s arguments on referring the matter to a larger bench. He expressed that he did not want to commence final hearings only to find out that the matter must be referred to a larger bench.


Senior Advocate Rajeev Dhavan argued that the matter involved interpreting a substantial question of law on the definition of the phrases ‘backward classes’ and ‘socially and educationally backward classes’ (SEBC). He stated that as per the law in M. Nagaraj v. Union of India, the Supreme Court is the final arbiter on the content of equality. However, by way of the 103rd Constitution Amendment Act, the Parliament had changed the definition of equality by altering both its identity and width.


Further, he submitted that equality is a part of the ‘golden triangle’ of individual freedoms in the Constitution, as stated by Justice YV Chandrachud in Minerva Mills v. Union of India. He urged that every amendment should be tested for meeting constitutional principles and submitted that an amendment as unique as the 103rd Constitution Amendment, which affects equality by altering reservations, must be judged separately for adherence to constitutional principles.


He therefore submitted that the matter must be referred to a larger bench to decide whether the amendment alters equality and violates the basic structure of the Constitution. He stated that the amendment could be struck down, or that it could be upheld but with the issue of directions to control the width of its application.


Attorney General KK Venugopal maintained that referring the matter to a larger bench was not necessary even if it touched upon the Constitution’s basic structure, as the issue had already been settled by both a three-judge bench and a nine-judge bench (Indra Sawhney).


Justice Bobde remarked that the definitions of ‘backward classes’ and ‘socially and educationally backward classes’ affect equality and therefore the basic structure of the Constitution. He reasoned that inclusion and exclusion from reservation affects the scope (‘width’) of the right to equality. He also stated that the question of who benefits from reservation impacts the identity of equality, since reservation is itself a means of achieving equality. He concluded that issues touching upon the scope of reservation cannot be decided without examining equality.


Rajeev Dhavan reiterated that even if the amendment was upheld, the court would need to issue directions, as it did in the M Nagaraj case, as key concerns of equality would remain.


Then he proceeded to expand on two primary issues – the definition of OBC and SEBC, and the 50% ceiling limit on reservations. On the first issue, he argued that the nine-judge bench in Indra Sawhney v. Union of India had held that the definition of OBC did not include economically backward classes. Therefore, he contended that if the issue is deemed to be decided by a nine-judge bench, then the amendment must be struck down. On the second issue, Rajeev Dhavan stated that the issue was whether interim relief could be granted, as was done in the 2006 case of M Nagaraj v. Union of India.


Gopal Sankaranarayanan, on behalf of the petitioners Youth for Equality, submitted that the court could intervene in two ways. Either, it could strike down the 103rd constitutional amendment or it could uphold it with regulations and directions to ensure that it does not exceed the total 50% ceiling limit on reservations. To establish the 50% ceiling, he presented the law established in a long line of cases, particularly Indra Sawhney and M Nagaraj. He clarified that Youth for Equality are in favour of the second course of action.


He submitted that since the existing 10% EWS reservation introduced through the 103rd amendment is provided ‘in addition to the existing reservation’, it exceeds the 50% ceiling limit. Therefore, he argued that the court could strike down the words ‘in addition to the existing reservation’, to ensure that states can grant up to 10% EWS reservation without exceeding the 50% reservation ceiling limited established by law.


Rajeev Dhavan also appeared to support this option by quoting passages from M Nagaraj that laid down the 50% ceiling limit. Further, he suggested that the existing 10% reservation could be lowered as it provides reservation for the poor and not any special class of people such as the tribals. He also said it could be struck down.


As the Court’s working hours drew to an end, Justice Bobde stated that the court will first decide whether the matter must be referred to a larger bench before entertaining the question of interim relief. The hearings are set to continue tomorrow.