The Supreme Court is slated to pronounce its judgement on the challenge to the validity of the 103rd Constitutional Amendment Act today (Monday, 7 November).
A five-judge constitution bench started hearing the petitions challenging the validity of the amendment, which introduced the 10 percent Economically Weaker Sections (EWS) reservation in government jobs and educational institutions, on 13 September.
The bench is headed by Chief Justice UU Lalit and includes Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala. They heard the case over a course of seven days and reserved their verdict on 27 September.
As per the initial cause-list uploaded on the Supreme Court's website, there were to be two judgements delivered on Monday – one by Chief Justice UU Lalit and the other by Justice Ravindra Bhat. However, the cause list was later updated to reflect that there would be four judgments.
What is the SC Expected to Answer Today?
One of the central questions that the top court is expected to answer is whether reservations can be granted solely on the basis of economic criteria.
The other questions that have emanated in this case include:
Whether the EWS reservation is valid even though it excludes Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes from its scope
Whether states can provide reservations in private educational institutions which do not receive government aid
During the course of the hearing CJU UU Lalit had also orally observed:
“When it is about other reservations, it is attached to lineage. That backwardness is not something which is temporary but goes down centuries and generations. But economic backwardness can be temporary."
But wait, what is the case all about? What did the petitioners' contend? And what did the State argue?
What is the 103rd Amendment, Allowing EWS Reservations, All About?
Simply put, the constitutional amendment (of 2019) lets the centre provide reservations for Economically Weaker Sections of citizens, solely on the basis of economic backwardness.
And it does so by adding an additional clause both to Articles 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 16 (equality of opportunity in matters of public employment) of the Indian Constitution. What this essentially entails is:
1) The central government can make special provisions for the progress of economically weaker citizens, including reservations in educational institutions
2) Such reservation can be made in any educational institution, including private institutions (aided or unaided).
3) Minority educational institutions covered under Article 30(1), however, are exempt from such reservations
4) The upper limit of such reservations will be ten percent, which will be in addition to existing reservations
A Brief Timeline
On 10 January 2019: Parliament passes the Constitution 103rd Amendment Act 2019
In January 2019: A slew of petitions challenging the constitutional validity of the amendment are filed
On 5 August 2020: A three-judge bench comprising the then Chief Justice of India SA Bobde, Justice R Subhash Reddy and Justice BR Gavai refer the case to a Constitution Bench
On 13 September 2022: A five-Judge constitution bench (CB) led by CJI UU Lalit and including Justices Dinesh Maheshwari, Ravindra Bhat, Bela M. Trivedi, and J.B. Pardiwala start hearing the case
After a 7-day hearing, bench reserves verdict on 27 September
So, What Have the Petitioners Said in Court?
The petitioners’ arguments come down to the following questions:
1) Should Reservation Become a Tool for Financial Upliftment?
According to the petitioners’ lawyers: no.
They have argued that the 10% EWS quota will interfere with the basic structure of reservations, whose purpose is to provide representation and not financial upliftment.
How?
Senior Advocate Meenakshi Arora argued before the court that backwardness was often a consequence of "non-representation in the country.”
Which is why she argued, that so far, Articles 15 and 16 of the constitution were not aimed at providing economic aid.
Supreme Court Advocate Shadan Farasat added, over the course of hearings, that this is primarily the reason why reservations were granted solely on "anti-discrimination basis", and not on an "anti-depravation basis".
2) But Wait, Then How Do We Solve Economic Problems?
The petitioners’ lawyers had an answer to that too during the hearing: “money or scholarship.”
"You don't take a person suffering from tuberculosis to a maternity ward. If a poor man has a problem, give him money or scholarship,” Professor Ravi Verma Kumar, appearing for the petitioners, had said.”
Advocate Shadan Farasat had similarly argued that there were other affirmative actions which could be taken to address the problems faced by economically disadvantaged groups, which did not require enacting reservations.
3) Does it Violate the Basic Structure of the Constitution?
The petitioners seem to think yes.
Dr Mohan Gopal argued that since the EWS quota excluded socially and educationally backward classes and limited the benefits only to the poor among the "forward classes", it resulted in the violation of the principles of equality and social justice.
This, he added, in turn infringed the basic basic structure of the Constitution.
Advocate Shadan Farasat has said that exclusion of backward classes in the quota, especially in cases where they are poorer than the forward class poor, was an outright violation of the equality principle in the constitution.
4) And How Do We Decide Who is Backward?
The petitioners’ lawyers have pointed out loopholes with this process too. The main problem, they think, is the lack of “guardrails” which exist for other forms of reservations granted by the constitution.
For instance, Senior Advocate Meenakshi Arora pointed out that the following factors should be considered while granting reservation:
If those getting reservation had limited representation which required reservations to undo historical injustice
If the reservations for them were not exceeding more than 50% of seats as held in the Balaji v State of Mysore case
If the reservations were balancing efficiency of administration with social justice
5) Can the 50% Limit be Breached?
Senior Advocate Gopal Sankaranarayanan, argued that in clause 6 of Article 15, the words: "in addition to the existing reservations" violated the 50 percent ceiling limit.
He further contended that EWS Reservations were permissible only if they were allowed to evolve and confine themselves within the prescribed limit.
How Has the Centre Responded?
10% reservations wouldn't be included in the 50% reserved for backward classes
Advocate General KK Venugopal, on his part, submitted that reservations for the three backward classes was limited to 50% and that the non-reserved category was an independent category in which 10% was now being reserved for the economically weaker sections
Moreover, the 50% ceiling limit can be breached in "exceptional circumstances"
Both Venugopal and Solicitor General Tushar Mehta argued that the 50% ceiling limit on reservations was not inviolable and could be breached in exceptional circumstances.
Thus, they have said that the 50% ceiling limit could not be equated to “basic structure”
Constitutional amendments can only be challenged in cases of violation of basic structure
Solicitor General Tushar Mehta submitted that constitutional amendments could be challenged only on the grounds of violation of basic structure of the constitution. He argued that in order to identify what constituted the basic structure, the principle guide was the Preamble
Now What?
The final outcome in the case can range from the amendment being upheld as constitutionally valid, scrapped, read down (ie dilution of specific components, but not a complete invalidation) or even a reference of the matter to a larger bench.
In case there is a difference of opinion amid the bench, the majority verdict prevails.
(With inputs from LiveLaw and Bar and Bench.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)