10% quota for EWS: SC says will examine if the law violates the basic structure

A constitution bench of the Supreme Court, to hear petitions against the 10 percent quota for Economically Weaker Sections (EWS) in government jobs and admissions, will examine whether the Constitution (103rd Amendment) Act, by which it was introduced, violates the original structure.

On Thursday, a five-judge bench headed by Chief Justice of India U U Lalit decided to examine three of the four issues suggested by Attorney General KK Venugopal on the matter.

These are “whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?… whether it can be said to breach the basic structure of the Constitution by permitting the State to make special provisions about admission to private unaided institutions” and “whether it can be said to breach the basic structure of the Constitution in excluding the SEBCs (Socially and Educationally Backward Classes)/OBCs (Other Backward Classes)/SCs (Scheduled Castes)/STs (Scheduled Tribes) from the scope of EWS reservation”.

The Attorney General had drafted four issues for the consideration of the bench. The bench, which also included Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and Justices JB Pardiwala, which dealt with the matter, was of the view that the first three issues were relevant.

“After consideration of the matter, in our view, (a) the first three issues suggested by the Attorney General are the issues to be raised in the matter. Whatever is suggested by the learned counsel through other issues, the same shall be taken up by the Attorney General. One of the suggested issues is like presentation for taking forward the motion. Therefore, we will proceed with the hearing on the first three issues suggested by the Attorney General,” the bench said in its order.

It has fixed September 13 as the date for hearing the arguments of various parties in the matter.

Senior advocate Gopal Sankaranarayanan, who was tasked with collating the questions suggested by various lawyers, told the bench that several of them had raised the issue of whether the amendment by not providing for exclusion of the creamy layer from the EWS had affected the infrastructure.

However, the AG wondered “how could this question arise”. “Where is the question of the creamy layer when we are talking about the poorest of the poor”, he asked, and the question “doesn’t really arise”.

Legal scholar G Mohan Gopal called it the “ADM of Social Justice, Jabalpur”.

“We are crossing the Rubicon. This is the first time in the history of India that privileges are being given to the upper castes, and to be born in a higher caste is a privilege and to be born in a lower caste is a disability… It is a matter of social justice. ADM is Jabalpur”, he said.

In the ADM Jabalpur case, also known as the Habeas Corpus case, the SC had ruled in 1976 that the right to enforce fundamental rights could remain suspended during the Emergency. The ruling came in for much criticism and was eventually overruled by the Supreme Court in the 2017 case of S Puttaswamy v Union of India.

A three-judge bench of the Supreme Court had on August 5, 2020, referred the petitions challenging the amendment to a five-judge bench saying it involved “substantial questions of law”.

“It is the case of the petitioners, that the amendments run contrary to the constitutional scheme, and no clause of the available seats/posts can be reserved based on economic criteria only. Thus, we are of the view that such questions are not subject to the law. There are important questions which need to be considered by a five-judge bench”, a bench of Chief Justice of India S A Bobde and …

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