EWS Reservation Day #8: Responses to Governments Arguments on Last Day of HearingEWS Reservation
On September 27th, 2022, the Constitution Bench led by CJI Lalit heard multiple petitioners respond to the Government’s arguments defending reservations based solely on economic criteria which were introduced by the Constitution (103rd) Amendment Act, 2019. Before hearing their arguments, the Bench briefly heard submissions from Advocate V.K. Biju and Solicitor General Tushar Mehta.
Senior Advocates Ravivarma Kumar, Gopal Shankaranarayanan, P. Wilson, Meenakshi Arora, and Dr. Mohan Gopal argued against reservations for economically weaker sections (EWS). The Bench concluded the hearings and reserved Judgment in the case.
On January 9th 2019, the Parliament of India enacted the Constitution (One Hundred and Third Amendment) Act, 2019 which enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). It received presidential assent on January 12th 2019 and was published in the Gazette on the same day.
The Amendment under Article 15(6) enables the State to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under Article 30(1). It further states that the upper limit of EWS reservations will be 10% (meaning up to 10% of seats can be reserved for citizens falling in the EWS category). This 10% ceiling is independent of ceilings on existing reservations.
Article 16(6) enables the State to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations.
More than 20 petitions have been filed challenging the constitutional validity of the 103rd Amendment. They argue that the Amendment violates the basic features of the Constitution and violates the fundamental right to equality under Article 14. In particular, they make the following arguments:
- Reservations cannot be based solely on economic criteria, given the Supreme Court’s judgment in Indra Sawhney v. Union of India (1992).
- SCs/STs and OBCs cannot be excluded from economic reservations, as this would violate the fundamental right to equality.
- The Amendment introduces reservations that exceed the 50% ceiling-limit on reservations, established by Indra Sawhney.
- Imposing reservations on educational institutions that do not receive State aid violates the fundamental right to equality.
At present, 49.5% of seats in education and public appointments are reserved, with 15%, 7.5% and 27% quotas for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively.
Issues In Focus Today
- Is the exclusion of SCs, STs and OBCs from EWS reservation discriminatory?
- Does the 50% limit on reservations apply to EWS reservation?
- Has the Union provided any reasonable data to support the need for EWS reservations?
Adv. Biju Argues EWS Reservations Move India Towards Casteless Society
Mr. Biju, appearing as an intervenor, argued that the debate around existing reservations has only reinforced the role of caste in Indian society. According to him, this contrasts with EWS reservations which are meant to alleviate poverty and move the country towards a casteless society. He also repeated previous arguments made by Attorney General K.K. Venugopal and Solicitor General Tushar Mehta that EWS reservations are only in addition to existing reservations and do not take away from any existing reservation benefits.
SG Mehta then briefly appeared to tell the Bench about a notification issued by the Union government. Central educational institutions have been told to increase the total number of seats so that EWS reservations do not eat into the number of seats available for general category applicants.
Sr. Adv. Ravivarma Kumar Argues EWS Reservations are Discriminatory
Mr. Kumar argued that Scheduled Tribes (STs) are excluded from EWS reservations based on their race which amounts to discrimination. He submitted a list of Central and State welfare schemes to highlight how EWS reservations were the only welfare measure that excludes backward classes like SCs, STs and OBCs from its scope.
Echoing an argument made by many parties over the course of this case, Mr. Kumar argued that the Union has provided no basis to connect reservations with the objective of alleviating poverty. He said there is an ‘obsession that reservation is the only panacea for all ills’.
Without this justification, Mr. Kumar argued that reservations extended to those who did not need it would amount to ‘reverse discrimination’. He referred to the SC’s decision in Ajit Singh v State of Punjab (1999) where a 5-Judge Constitution Bench held reserve discrimination was unconstitutional.
Mr. Kumar then responded to AG K.K. Venugopal’s argument that existing reservations were only provided to homogenous classes of people and EWS reservations were meant for everyone in the general category. Mr. Kumar countered, saying the Court in Indra Sawhney (1992) allowed further categorisation within OBC reservations. Further, the validity of sub-classification in Scheduled Caste reservations is pending before a 7-Judge Bench. So, He argued AG Venugopal’s argument was not accurate. Read more about sub-classification in reservations here.
Finally, he responded to the Union’s argument that the EWS classification had been accepted in the Right to Free and Compulsory Education Act, 2009. He said the act recognises EWS but includes SCs, STs and OBCs within its scope, unlike EWS reservations which explicitly exclude these classes.
Sr. Adv. Shankaranarayan Argues EWS Reservations are Valid, But Not a Separate ‘Compartment’
Mr. Shankaranarayanan argued that the petitioners had mischaracterised EWS reservations as a ‘forward class’ reservation. It included other religious communities within its scope. He referred to the Sachar Committee Report (2006) which highlighted the lack of Muslim representation and found that 47% of Muslims in the general category faced worse conditions than OBCs.
However, he countered AG Venugopal’s argument that EWS reservations formed a separate ‘compartment’ from existing reservations and should not be included within the 50% limit on reservations. According to him, this argument provided the groundwork for more reservation ‘compartments’ to be introduced.
Sr. Adv. P. Wilson Argues Sinho Commission Report Does Not Justify EWS Reservations
Mr. Wilson argued the Union could not justify EWS Reservations based on the findings of the Sinho Commission Report (2010). The Report says reservations for economically backward classes should only be provided if all other existing reservations are withdrawn. Further, it says there is no empirical data available to justify economic reservations and socio-economic surveys should be conducted.
The Union relied on a 2011-12 survey conducted by the National Sample Survey Office. However, Mr. Wilson claimed this survey was only based on household expenditure and did not consider social indicators.
Sr. Adv. Meenakshi Arora Argues Constitutional Amendment Cannot ‘Chip Away’ Basic Structure
Ms. Arora responded to the Union’s argument that a Constitutional Amendment can ‘touch upon’ the basic structure of the Constitution, and cannot be struck down unless is ‘destroys’ the basic structure. She argued that accepting this argument would allow the Union to continuously ‘chip away’ at the basic structure of the Constitution over time until the founding document was unrecognisable.
She likened this to the ‘Ship of Theseus’ Paradox. This is a philosophical concept that discusses if an object maintains its identity when all of its distinct parts have been replaced over time.
Dr. Mohan Gopal Suggests an Alternative to Striking Down EWS Reservations
Dr. Gopal argued that OBC reservations as they currently stand already provide benefits to different groups based on a wide array of factors. This included reservations for religious groups and gender minorities, so the Union’s argument that existing reservations were all caste-based was inaccurate.
He suggested an alternative way forward that did not involve striking down the 103rd Amendment. He said the words ‘other than the classes mentioned’ does not have to mean beneficiaries of existing reservations are excluded. Instead, it could mean that the criteria for these reservations are different than the criteria used for existing reservations. With this interpretation, backward classes who are covered by existing reservations can also receive the benefits of EWS reservations.