Referral Order in Plain English

EWS Reservation

After hearing the case for 5 days in 2019, a three-judge bench consisting of CJI Bobde, and Justices Reddy and Gavai passed a unanimous order on August 6th 2020 referring the case to a five-judge bench.

The order first referred to the submissions made by the petitioners and the Union of India.

Petitioners Pointed Out Crucial Constitutional Issues

Rajeev Dhawan had relied on Article 145 (3) of the Constitution of India, 1950 and Order XXXVIII of the Supreme Court Rules, 2013 to contend that the challenge to the Constitution (One Hundred and Third Amendment) Act, 2019 (‘Act’) involved a ‘substantial question of law’ and merited a constitution bench. The Act violated the right to equality which is a part of the basic structure of the Constitution. Relying on the cases of M. Nagaraj v. Union of India (2006), IR Coelho v. State of Tamil Nadu (2007) and Jarnail Singh v. Lachhmi Narain (2018), Dhawan noted that the constitutional validity of the Act must be tested against the ‘width’ and ‘identity’ principles of equality.

M.N Rao invoked provisions of the Draft Constitution of India, 1948 and the debates in the Constituent Assembly, and argued that ‘educational backwardness of the backward classes is on account of their social backwardness’. Further, economic backwardness could not form the sole basis for determining backwardness.

Gopal Sankaranarayan pointed out that the reservation policies were fundamentally guided by the 50% ceiling limit and the Act blatantly violated this. This limit has been recognised by M.R. Balaji v. State of Mysore and Indra Sawhney v. Union of India. Meenakshi Arora made a similar argument wherein she contended that violating the 50% limit would contravene the basic structure of the Constitution.

Union Resisted Referral to a Larger Bench

K.K. Venugopal, Attorney General for India, urged that the current petitions did not pose unique unsettled constitutional questions. First, he noted that the Act by providing reservation for economically weaker sections (‘EWS’) was giving force to the Preamble and Article 46 of the Constitution of India, 1950. He further relied on Society for Unaided Private Schools of Rajasthan v. Union of India to support the contention that reservation could be made solely on an economic basis. Further, he argued that the 50% limit imposed by the Indra Sawhney judgment did have an exception: it allowed for this limit to be exceeded in extraordinary circumstances. Upliftment of persons from EWS met this threshold.

Court Sided with the Petitioners

After examining the arguments of the parties, the Court noted that the present case posed substantial questions around the interpretation of the Constitution which required more attention. The judges identified two crucial issues which motivated them to constitute a five-judge bench:

a) The question of the Act violating the basic structure of the Constitution in light of the ‘width’ and ‘identity’ equality principles.

b) The issue of the 50% ceiling limit and whether reservation to EWS constituted an exception to this limit.

Similar High Court Challenges to be Transferred

The Court noted that several petitions were filed before various High Courts challenging the constitutionality of the Act. Several transfer petitions were filed as per Article 139A (1) read with Order XLI Rules 1 to 5 of the Supreme Court Rules, 2013. The Court allowed this and transferred such cases to the Supreme Court.