EWS Reservation Day #2: Petitioners Argue that EWS Reservations are a ‘Constitutional Fraud’

EWS Reservation

Judges: U.U. Lalit CJI, Dinesh Maheshwari J, S.R. Bhat J, B.M. Trivedi J, J.B. Pardiwala J

On September 13th 2022, a Constitution Bench comprising Chief Justice U.U. Lalit and Justices Dinesh Maheshwari, Ravindra Bhat, Bela Trivedi and JB Pardiwala continued hearing the challenge to reservations provided to economically weaker sections of society (EWS). The Constitutional (103rd)  Amendment Act 2019, enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone.

Academic Dr. Mohan Gopal, appearing for Justice (retd) Vangala Eshwariah, argued that the EWS reservation is a ‘fraud on the Constitution’. Sr. Adv Meenakshi Arora, appearing for Tamil Nadu politician Thol Thirumavalavan, argued that reservations are class based remedies to improve representation of the backward classes—EWS reservation, however, is individualistic based solely on financial backwardness. 

What is the 103rd Constitutional Amendment?

The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). 

The Amendment under Article 15(6) states that the government may make schemes to provide EWS reservations in public and private educational institutions, except in educational institutions owned by minority groups under Article 30(1). It further states that a maximum of 10% of seats can be reserved for citizens falling in the EWS category. 

Article 15 (6) exempts persons belonging to SC/ST and OBCs from availing the EWS reservation. 

The Amendment is a Fraud on the Constitution, Argues Dr. Mohan Gopal

Opening the arguments for the petitioners, academic Dr. Mohan Gopal submitted that the Amendment is a fraud on the Constitution. Dr. Gopal noted that reservation should be used only as a tool to enable the representation of the backward classes. However in EWS reservation, this aspect is ignored. 

Dr. Gopal submitted that the Amendment turns reservation from being a weapon of social justice to one against social justice. Dr. Gopal further argued that only forward classes are eligible for EWS reservations.

He argued that the word reservation is used 8 times in the Constitution, only as a tool for representation. Criticising the criteria of the centre classifying persons earning below Rs. 8 lakhs of annual income for EWS reservation, he submitted that 96% of the population earns below the stipulated amount. Dr.Gopal submitted that in several states, marginalised Brahmin communities have been given the benefits of Other Backward Class (OBC) reservation while pointing out that Article 15 (6) specifically exempts those who are covered under SC/ST and SEBC reservation. 

 Mr. Gopal argued that the 103rd amendment violates Article 46 of the Constitution, which directs the nation to promote the educational and economic interests of the weaker sections of the society. Dr.Gopal submitted that this is a forward caste amendment and is dividing the nation on caste lines. 

Dr.Gopal concluded by urging the court to strike down the amendment and noting that the amendment is reservation which is meant only for Socially and Economically Forward Classes. 

Reservations are class based remedies, EWS individualises it, Says Meenakshi Arora, Sr. Adv

Senior Counsel Meenakshi Arora, appearing for Tamil Nadu politician Thol Thirumavalavan, argued the Constitution makes special provisions to ensure their representation in public institutions for backward classes who would be unable to achieve representation without State intervention.  She argued that reservations are class based remedies to counteract historic injustice. The logic of reservations recognises some classes who have been out of the power structure for generations, and aims to provide reparations by increasing representation. 

Critiquing the 103rd amendment, she emphasised that backwardness in the constitutional scheme is historic—it cannot be gained overnight. For example, she argued that one cannot claim reservation by marrying a person belonging to a backward class. However if a person wins a lottery overnight they might not come under the EWS category. 

Ms. Arora stressed that EWS will make the concept of reservation individualistic as opposed class based. Ms. Arora quoted Leo Tolstoy’s famous line that argued that similar to every unhappy family being unhappy in its own way. Similarly, she argued that every type of backwardness has its own distinct reason. Poverty cannot be said to be a class in the same way as socially/economically backward classes for the purpose of reservation.  

Ms. Arora submitted that the essential scheme of Articles 15 and 16 deal with uplifting a backward class and they come with an end date, however, the EWS reservation does not have safeguards or end date. 

Ms. Arora argued that the 103rd amendment carves out a percentage of public employment and education which excludes SEBC (Socially and Economically Backward Classes),severely damaging the heart of The Constitution. She argued that forward class reservation such as this violates Articles 15 and 16. Ms. Arora reasoned that for the first time the nation has a system of reservation which formally excludes the poorest of the poor.

She concluded by saying that even in countries like the United State of America and Canada, reservation is based on racial criteria and not economic criteria alone. 

Senior Advocate Sanjay Parikh’s arguments:

Appearing for Puttanjiah, Senior Advocate Sanjay Parikh quoted SC judgments in Indira Sawhney v Union of India (1992) , M.Nagaraj & Ors v Union of India (2006) and Jaishri Laxmanrao Patil v Chief Minister (2021) to state that the Court interprets the meaning of reservation provisions as per the constituent assembly debates. 

He argued that the makers of the Constitution concentrated on injustices like untouchability prior to granting reservation. He argued that the makers concluded that the backward classes required some intervention in public employment for a democratic share in State power. Mr. Parikh argued that the criteria to look at backwardness was a social one and not education or financial backwardness. He contemplated that economic criteria was not accepted by the constituent assembly. 

The Constitution Bench will continue hearing the matter on September 14th, 2022. Senior Advocate ADN Rao, appearing for petitioner P.V.Ramakrishna, is likely to address the Court first.