EWS Reservations Day #7: SG Tushar Mehta Argues Amendment Does Not Violate Equality

EWS Reservation

On September 22nd, 2022, the Constitution Bench led by Chief Justice U.U. Lalit heard arguments from the Union and Andhra Pradesh governments defending reservations for economically weaker sections (EWS). In the morning, Solicitor General Tushar Mehta argued that the Constitution (One-Hundred and Third) Amendment, 2019 was not a ‘shocking’ violation of the Right to Equality, nor did it fundamentally alter the basic structure of the Constitution. This is the only ground to strike down a Constitutional Amendment. 

In the afternoon, Senior Advocates Niranjan Reddy and Vibha Makhija defended the Amendment. Mr. Reddy argued that reservations were not a part of the basic structure of the Constitution. Ms. Makhija presented the example of Uttar Pradesh teacher recruitment where a large number of people who could benefit from existing reservations received employment in the general category. 

SG Tushar Mehta: Need to Meet High Threshold to Strike Down Constitutional Amendments

On multiple occasions when the Bench’s questioning drove him into a corner, Mr. Mehta would fall back on a single argument. The threshold for striking down a Constitutional Amendment is extremely high, and can only be done if there is a ‘shocking and unconscionable’ violation of the Right to Equality. This standard was laid down in Bhim Singhji v Union of India (1985). 

He then argued that EWS reservations strengthened the basic structure of the Constitution. It furthered to the obligation to provide economic justice to citizens from the Preamble of the Constitution. 

Mr. Mehta referred to the 50% limit on reservations laid down in Indra Sawhney v Union of India (1992) and said the Court held that this was not an absolute bar. The limit could be breached in extraordinary circumstances. According to him this meant that the 50% limit was flexible which immediately shut down any notion that it can be a part of the basic structure of the constitution. This argument in favor of rigidity was curious as it followed his submission that the Right to Equality should evolve with society, when that right is a part of the basic structure as well. 

CJI Lalit and Justice Bhat questioned the lack of clarity in EWS reservations. Justice Bhat said Articles 15(4) and 16(4) clearly say that they’re meant to alleviate social and educational backwardness. CJI Lalit added to this, stating Article 340 requires the creation of a commission to figure out the criteria to identify backward classes for the purposes of reservation. Mr. Mehta stated that these gaps could be filled in the future but for now, the absence of guidelines is not a sufficient reason to strike down the Amendment. 

CJI Lalit then questioned Mr. Mehta on the exclusion of Scheduled Castes and Scheduled Tribes from the scope of EWS reservations. He said the Amendment created a distinction between economically weaker sections in the general category and in SC/ST classes. Justice Bhat piled on, stating that 48% or STs fell under the label of ‘poorest of the poor’ but were still being excluded. Mr. Mehta said that the Amendment cannot be struck down based on these statistics. 

Mr. Mehta handed the reins to his junior, advocate Kanu Agarwal, to make his final arguments. Mr. Agarwal stated that the Amendment had inbuilt ‘guardrails’ or safeguards by providing a 10% cap to EWS reservations in a State. He said this automatically curtails any possibility of excessive reservations in a State.

Sr. Adv. Niranjan Reddy: EWS Reservations are for Individuals While Existing Reservations are Class-Based

Representing the State of Andhra Pradesh, Mr. Reddy argued that reservations were initially designed to be temporary measures. Due to this limitation, they cannot be considered to be a part of the basic structure of the Constitution as they are meant to lapse once the objective of alleviating social and economic backwardness is achieved. 

Further, he argued that EWS reservations adopted a different approach to existing reservations. They directly addressed economic inequalities at an individual level within the general category which is ‘disparate’ and non-homogenous—the general category is not divided into distinct classes of people. He drew the comparison to existing reservations which are specifically meant for specific groups like SCs and STs. 

Sr. Adv. Vibha Makhija Refers to Reservations in Teaching Posts in U.P.

The Bench allowed Sr. Adv. Vibha Makhija to argue for over 40 minutes despite limiting previous Intervenors for the petitioners to 15 minutes each. She was representing a potential beneficiary for EWS reservations from Uttar Pradesh. 

The main thrust of her argument relied on data for teacher recruitment in U.P. Of the roughly 34,000 vacancies available for general category candidates, 20,000 were filled by candidates who were solely eligible through the general category. The other 14,000 vacancies were filled by candidates who were also eligible through existing reservation schemes. She intended to use this as an example to show that potential beneficiaries of existing reservations had multiple avenues for representation in employment and education.

However, CJI Lalit said these 14,000 candidates were more meritorious and therefore received the positions. 

The Bench concluded the hearing. The petitioners will present their rejoinder in response to the arguments made by all the respondents on Tuesday (September 27th).