Day 5 Arguments

EWS Reservation

July 31st 2019

Today, in the challenge to the constitutional validity of the 103rd Constitutional Amendment, the Supreme Court heard arguments on whether the matter should be referred to a larger bench. A three-judge bench comprising Justices Sharad Bobde, Subhash Reddy and Bhushan Gavai presided over the hearings.



The 103rd Constitutional Amendment Act, 2019 provides upto 10% reservations in private and public educational institutions and public service for economically weaker sections, in addition to the existing reservation for SC/STs and OBCs. The amendment’s validity is under challenge for violating the right to equality and the basic structure of the Constitution.


On March 11th, a three-judge bench of the Supreme Court declined to stay the amendment while hearing arguments that the matter should be referred to a larger bench. On March 28th, the matter was re-assigned to a two-judge bench, which denied staying the amendment on April 8th. On July 30th, a three-judge bench comprising Justices Sharad Bobde, Subhash Reddy and Bhushan Gavai began hearing arguments on whether the matter raised substantial questions of law and whether it should be referred to a larger bench.


Today’s hearing

Today’s hearings began with Justice Bobde clarifying that the court was inclined to refer the matter to a larger bench, unless it was given strong reasons not to.


Gopal Sankaranarayanan, counsel of the petitioner Youth For Equality, argued that the 103rd amendment raises different challenges – such as basing reservations on economic criteria only, and possibly violating equality for excluding scheduled castes and scheduled tribes. However, he clarified that he will challenge the amendment only on the ground that it exceeds the 50% ceiling limit on reservations.


He explained that existing reservation is at 49.5% (15% for Scheduled Castes, 7.5% for Scheduled Tribes and 27% for Other Backward Classes). Since the amendment provides reservation of 10% “in addition to the existing reservation”, he demonstrated that it exceeds the 50% limit. He contended that the 50% limit is inherent in the right to equality and is a basic feature of the Constitution. He therefore prayed that the amendment should either be struck down or modified to ensure that 10% reservation is provided to economically weaker sections without exceeding the 50% limit. He submitted that the Union government could decide how to accommodate 10% reservation under the 50% limit, but made no proposal. He merely stated that the Union government  has many means of adhering to the 50% limit, including proportionally reducing existing reservations for different classes to accommodate the 10% EWS reservation or making the 10% EWS reservation horizontal among the existing classes of reservation.


He also flagged two important issues. First, there is a difference between the determination of income for creamy layer exclusion and EWS inclusion which leaves many members of the SC, ST and OBC communities neglected. Second, minority private educational institutions continue to be exempted from all such reservation obligations, including the 25% reservation for children from lower-income backgrounds under Article 21A of the Constitution.


Justice Bobde urged Gopal Sankaranarayanan to not conflate the issue of EWS reservations with minority status by concluding that the poor can belong to all communities. He also stated that determining the existence of a mandatory 50% limit on reservations was a substantial question of law.


Rajeev Dhavan, counsel for petitioner Tehseen Poonawalla, interjected to add that the matter concerns the scope of the right to equality under Article 14 of the Constitution, and has little to do with Articles 15 and 16 of the Constitution. He offered to list out specific questions to refer to the larger bench. He also cautioned against excluding the question of whether the 103rd amendment completely alters the width and identity of equality. Further, he impressed upon the court to restrict the larger bench’s scope of inquiry to the three important constitutional law cases of Indra Sawhney v. Union of IndiaM. Nagaraj v. Union of India and Jarnail Singh v. Lacchmi Narain Gupta, as there was no need to revisit earlier cases preceding these judgments.


Justice Bobde agreed that there was no need to revisit all cases on reservations. However, he clarified that the court’s order would not limit the scope of inquiry of the larger bench.


Mr .Rao, on behalf of the petitioner, argued that the Constitution never intended to make reservations for any community other than the backward classes. He quoted Dr B.R. Ambedkar and K.M. Munshi’s speeches in the Constituent Assembly to emphasise that backward classes includes scheduled castes and scheduled tribes and that the Constitution seeks to balance efficiency, non-discrimination and equality of opportunities through reservations. He clarified his arguments by referring to Articles 10(3) and 12(3) of the Draft Constitution. He added that reservation is an opportunity for those communities that have not served the State to provide their service to it. He also touched upon the fact that the cap on reservation is 50% due to the court’s decision in M.R. Balaji v. State of Mysore. Mr. Rao further urged the court to include the question of legality of excluding SCs, STs and OBCs in the 10% EWS reservation, while referring the matter to a larger bench.


Justice Bobde responded to Mr Rao by stating that the court would consider the Draft Constitution, although that is not needed for deciding whether to refer the matter to a larger bench.


Rajeev Dhavan added that Article 10 of the Draft Constitution is a composite provision that provides equality of opportunity, non-discrimination and opportunities for backward classes. He stated that the Court should enquire if the 50% limit is mandatory and if there are circumstances where it can be breached.


Gopal Sankaranarayanan added that the question of whether a 50% limit on reservations is reasonable has never been settled and always been referred to a larger bench. He emphasised that the matter must be referred to a larger bench as it raised substantial questions of law, particularly pertaining to identity. He drew the example of referral to a 9 judge bench in K.S. Puttaswamy v. Union of India, which also dealt with questions of law pertaining to identity.


Senior Advocate Meenakshi Arora argued that Articles 15 and 16 were introduced to protect communities that face structural marginalisation in Indian society. She stated that the definition of backward classes reflects this constitutional goal, whereas the definition of economically weaker sections fluctuates and does not capture the realities of structural discrimination and oppression. She therefore contended that the 103rd amendment mutilates the constitutional guarantee of equality.


Attorney General KK Venugopal contended that the 50% limit on reservations is not mandatory, by citing Indra Sawhney v. Union of India. He further stated that reservation based on economic criteria alone has already been held valid in a binding judgment of the court, by citing Society for Unaided Private Schools of Rajasthan v. Union of India. He argued that as a welfare state with 200 million poor people, the Indian State had an obligation to give effect to the Preamble’s goals of economic justice and equality of opportunity, as well as Articles 45 and 46 in the Directive Principles of State Policy. He further added that there was no reason to refer the matter to a larger bench as every matter of grave effect on Article 14 has already been settled by the Supreme Court.


He added that the 103rd amendment does not infringe the 50% limit on reservation under Articles 15(4) and 16(4) of the Constitution. He contended that amendment provided 10% reservation for the poor among the 50% that is not covered by reservation. He stated that it was government’s constitutional duty to uplift the poor by educating them.


Justice Bobde asked if the 103rd amendment is the occasion for breaching the 50% limit on reservation. Attorney General KK Venugopal answered that it had been 70 years since the country’s formation and that poverty had only increased and that now is as good a time as any to exceed the 50% limit on reservations.


Justice Bobde also asked for the Attorney General’s response to the argument that the Draft Constitution never provided for reservations other than to the backward classes. The Attorney General replied that Article 21A of the Constitution provides 25% reservation in primary education for children belonging to poor families.


He added that six of the nine judges in Indra Sawhney v. Union of India stated that while the rule stands for a 50% limit on reservations, it is not rigidly mandatory and provides relaxations in peculiar, extraordinary or exceptional circumstances. He clarified that the existing reservation for backward classes was not being diminished and that an additional 10% reservation was being provided to the poor through the amendment. He added that the Parliament, following the constitutional duties of the State, unanimously passed the amendment to uplift the poor. He submitted that there was no reason to refer the matter to a larger bench as he had demonstrated that the 50% limit can be exceeded and that reservations may be provided only on economic criteria.


Rajeev Dhavan interjected to remind the court that the Attorney General was attempting to restrict the case to the two issues of a mandatory limit of 50% on reservations, and whether reservation can be based on economic criteria alone. He stated that the amendment was also attempting to insidiously redefine backward classes and that this risks falling foul of the Constitution as it alters the width and identity of equality.


Attorney General KK Venugopal then cited High Court judgments that upheld statutes granting reservations over the 50% limit. Rajeev Dhavan however pointed out that these cases dealt with state’s legislative amendments and that they granted reservations in excess of 50% to SCs, STs and OBCs only and not new classes of people.


In the afternoon, Attorney General KK Venugopal cited Voice (Consumer Care) Council v. State Of Tamil Nadu to substantiate that High Courts have upheld reservations in excess of 50%.


Justice Gavai pointed out that the case cited by the Attorney General may have exceeded the 50% limit, but it still preserved the balance of equality in reservation by including OBCs in the 69% reservation.


Justice Bobde once again enquired why the matter did not involve a substantial question of law for referral to a larger bench when counsels for petitioners were arguing that it interfered with the width of other constitutional guarantees.


Attorney General KK Venugopal replied that the matter involved only a question of fact, not law. He contended that the nine-judge bench in Indra Sawhney v. Union of India was wrong to hold that reservations cannot be based on economic criteria alone as the Preamble as well as Directive Principles of State Policy of the Constitution urge the upliftment of economically weaker sections of society.


Justice Gavai rhetorically asked if the three-judge bench hearing the matter could hold the nine-judge bench in Indra Sawhney v. Union of India wrong.


Attorney General KK Venugopal proceeded to distinguish Articles 15(6) and 16(6) from the remaining clauses in Articles 15 and 16 to point out that they did not infringe the aims of the existing clauses in the communities they catered to. He added that the Constitution sought to uplift the poor and because the court had erred in Indira Sawhney v. Union of India, the Parliament had stepped in with the unanimous 103rd amendment.  He added that democracy and State must provide for the poor, not the rich.


He then drew the court’s attention to  Article 21A of the Constitution and the Right of Children to Free and Compulsory Education Act, 2009 . Reading out sections 2 and 12 of the Act, he demonstrated that reservations had been made for the poor in education only on the basis of economic criteria and income of parents alone. He also cited Pramati Educational and Cultural Trust v. Union of India to contend that reservation on the basis of economic criteria alone is valid.


Justice Gavai stated that the only challenge considered by the court was whether the State infringed the rights of unaided minority private institutions by requiring 25% reservation for children belonging to poor backgrounds.


Justice Bobde concluded the day’s hearings by stating that the court was only deciding if the matter must be referred to a larger bench. He assured all parties that the court had enough material to make its decision. He stated that the controversy was unnecessarily getting enlarged, with the court spending more time on the case than needed. He reiterated that the court was dealing with a limited question of reference and reserved the order.


(Court reporting by Srujana Bej)