Union Counter Affidavit Summary

EWS Reservation

The Government’s Representations in its Counter Affidavit

The Government contends that the Act is a valid legislation which does not violate the Constitution’s basic structure or the law in Indra Sawhney.


It contends that:

  1. The State has a duty to promote social equality and pursue the welfare of weaker sections of Indian society under Article 46 of the Constitution. The Constitutional Amendment is necessary; it provides fair and equal opportunity for a large number of impoverished Indians who are excluded from higher educational institutions and are not covered under existing reservation schemes. The Government appointed Commission for Economically Backward Classes recommended reservations in education and government employment for all Below Poverty Line general category families (i.e. the economically backward classes).
  2. The law has held economic criteria as a relevant factor in identifying social and educational backwardness. Therefore, it is a relevant factor for affirmative action mandates under the Constitution.
  3. Articles 15(6) and 16(6) are in conformity with the equality doctrine and therefore do not violate the Constitution’s basic structure doctrine. It must be shown that an amendment embodying a basic feature alters the very identity of the Constitution in order to be struck down.
  4. The 50% ceiling limit does not apply to Article 15(6). The law decided in Indra Sawhney v Union of India does not apply to the present case, as it related to social and educational backwardness under Articles 16(1) and 16(4). However, Articles 15(6) and 16(6) relate to economic backwardness and should be tested independently.
  5. Private unaided institutions play a crucial role in providing education to India’s large population. Therefore, the Government can direct reservation in private unaided institutions to promote educational interests among economically weaker sections. Furthermore, the petitioner is not a private unaided institution and does not have the locus to challenge Article 15(6).