The Supreme Court, on November 7, upheld the validity of reservation to economically weaker section (EWS) of society among general category by a majority judgment of 3:2.
While justices Dinesh Maheshwari, Bela Trivedi and B. Pardiwala held that the EWS quota does not violate basic structure of the Constitution, CJI U.U. Lalit and Justice Ravindra Bhat did not concur with the majority view.
Justices Dinesh Maheshwari and Bela Trivedi in their opinions said the state can make special provisions and exclusion of SEBCs, STs, SCs, OBCs does not violate equality code. Challenge to 103rd Amendment of the Constitution, according to the two judges, does not hold water.
Justice Trivedi also added reservation should have a deadline to usher in an egalitarian society.
Justice B. Pardiwala also concurred with Justice Maheswari’s view. He also said efforts should be made to eliminate the causes of backwardness.
On the other hand, Justice Ravindra Bhat said while economic deprivation and penury seems to be whole premise of the EWS quota and is this indeafisable, excluding equally poor sections of the society personified by SC, ST, SEBC, OBCs amounts to “constitutionally prohibited form of discrimination”. He said though the Amendment is valid, on the question of excluding backward classes in its scope it should go. Permitting a breach of the 50% reservation for backward classes would lead to compartmentalisation, he added.
Justice Bhat summed up: Reservation on the basis of economic criterion is per se valid, but excluding others who are backward (SC/ST/OBC/SEBC) is a violation of basic structure. All the poorest, regardless of caste or class, is discriminatory. Strikes at the essentials of non-discriminatory rule. Chief Justice U.U. Lalit too concured with Justice Bhat’s view.
The Constitution Bench had heard marathon arguments for seven days before reserving the case for judgment on September 27.
Some of the vital issues the judgment may address include whether the EWS quota violated the Basic Structure of the Constitution; whether the reservation was contrary to the equality code to treat all equally without discrimination; and more importantly if the reservation ate into the future prospects of merit-based candidates.
The government maintained that the 10% quota was not an addition to the 50% ceiling on reservation. It said the EWS quota was an “independent compartment”. The court had repeatedly asked the government during the hearing whether the EWS quota would take a piece of the pie from the 50% available non-reserved or open category who compete purely on the basis of merit. The court had also questioned the exclusion of backward classes from availing the quota.
The government has said it will increase seats by 25% in its institutions to accommodate the EWS quota.
Dr. Mohan Gopal, in his rejoinder, had said this was the first time that being a member of the forward classes has been made a pre-requisite for getting government assistance.
Advocate Kaleeswaram Raj submitted that fundamental rights are individualistic and the government’s justification for excluding SC, ST and OBCs on the ground that they already take benefit of the 50% quota does not hold water.
Senior advocate P. Wilson had asked whether it was possible to uplift through reservation. He said reservation was not a poverty alleviation scheme.
Senior advocate Sanjay Parikh argued that a reservation based solely on economic criterion cannot be sustained in the Constitution.
Advocate V.K. Biju had supported the quota, contending that the amendment was democratically passed and not a fraud on the Constitution. He said it was a step towards a casteless society.