It does not violate the fundamental structure of the Constitution: Supreme Court upholds 10% EWS quota in a 3-2 decision

A 3:2 majority on Monday upheld the 103rd amendment to the Constitution, which introduces a 10 percent reservation in admissions to educational institutions and government employment for Economically Weaker Sections (EWS).

Despite the unanimous agreement of Justices Dinesh Maheshwari, Bela M Trivedi, and J B Pardiwala that the amendment does not violate the basic structure of the Constitution, Chief Justice of India U U Lalit and Justice S Ravindra Bhat dissented.

In his judgment, Justice Maheshwari stated that reservations are instruments of affirmative action by the government to promote equality and counter inequalities by ensuring an all-inclusive march toward an egalitarian society. “It is an instrument not only for integrating socially and educationally backward classes into mainstream society but also for integrating any class or section so disadvantaged as to qualify as a weaker section. Therefore, a reservation based solely on the economic background does not violate any fundamental feature of the Constitution and does not damage its fundamental structure,” he noted.

According to him, excluding the reserved categories from the EWS quota does not violate the equality code or harm the Constitution.

Furthermore, Justice Maheshwari argued that reservations for EWS over and above the 50 percent cap do not violate the Constitution because the ceiling itself is not inflexible and, in any case, applies only to reservations envisaged by Articles 15(4), 15(5), and 16(4).

According to Justice Bela M Trivedi, the amendment enabling the state to make special provisions for EWSs other than Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes must be considered an affirmative action on the part of Parliament to benefit and improve the EWS category. The inclusion of EWS citizens as a separate class of citizens would be a reasonable classification, adding that this classification cannot be called unreasonable or unjustifiable, much less a betrayal of a fundamental right or a violation of Article 14.

According to her, the impugned amendment creates a separate class of EWS from the general or unreserved category without affecting the special reservation rights of SCs, STs, and SEBCs. The exclusion of SCs, STs, and SEBCs from such reservations is not unreasonable.”

Even though it was envisaged that reservations would have a period, it has not been accomplished, even after 75 years of independence. As a step towards achieving transformative constitutionalism, the policy needs to be reevaluated in the more significant interest of society.

On a separate occasion, Justice J B Pardiwala concurred with the views expressed by Justices Maheshwari and Trivedi. He said it should not be allowed to become a vested interest because the reservation is not a goal but a means of securing social and economic justice.

Lawyers gather as the Supreme Court pronounces the judgment on the EWS quota case. (Deccan Era Photo)

There is, however, a natural solution to eliminating the underlying causes of the social, educational, and economic backwardness of the weaker sections of the community. As a large number of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories so that attention can be focused on those classes that need assistance,” he explained, adding: “In such circumstances, it is necessary to review the method of identification and ways of determining backward classes as well as determine whether the criteria adopted are suitable for today’s needs.” Even though B R Ambedkar intended the reservation to last only ten years, it has continued for seven decades. He also asserted that reservation should not be allowed to continue indefinitely so that it becomes a vested interest.

According to Justice Bhat, who also received support from the Chief Justice of India, U U Lalit, who disagreed with the majority opinion, the amendment by the language of exclusion undermines the basic structure of the Constitution and the fabric of social justice.

As a result of this exclusion, the non-discrimination and non-exclusionary aspects of the equality code are violated, as well as the basic structure of the code. While the amendment provides opportunities for the EWS sections, it practices constitutionally prohibited principles of discrimination by keeping poor SCs, STs, and SEBCs out of its purview.

In contrast, the dissenting view stated that the amendment strikes at the heart of the Constitution’s equality code.

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