It is an injustice to deny this right to SCs, STs, and OBCs

A majority of the judges disagreed with the majority view regarding the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019, which introduced a 10 percent reservation for economically weaker sections (EWS) in the unreserved category. According to Justice S Ravindra Bhat and Chief Justice U U Lalit, it creates an “exclusion” that violates the fundamental principle of equality in the Constitution.

Justice Bhat, who wrote the judgment for himself and the Chief Justice of India, stated that the court had sanctioned an avowedly exclusionary and discriminatory principle for the first time during the seven decades of the republic. We do not speak the language of exclusion in our Constitution. I consider that the amendment undermines the fabric of social justice through the language of exclusion.

“This exclusion violates the non-discrimination and non-exclusionary aspects of the equality code. As a result, the Constitution is violated.”

Abolition of the ‘economic criteria’ for affirmative action in aid of those population groups facing poverty-related deprivation is following Article 46 and does not in itself alter, violate, or destroy the Constitutional principles in such a way as to alter, violate, or destroy its fundamental structure.”, he argued that the problem lay in the “method of implementation, which implicitly excluded Scheduled Castes (“SC”), Scheduled Tribes (“ST”), and socially and educationally back.

As Justice Bhat pointed out, the application of the doctrine of classification differed between the poorest segments of society, as one group (i.e., the forward classes) did not receive reservation benefits. In contrast, the poorest are subjected to additional disabilities as a result of caste stigmatization or social barriers – the latter being justifiably kept out of the new reservation benefit is an exercise in deluding ourselves that those getting social and educational-backwardness based reservations are somehow more fortunate. This classification is contrary to the essence of equal opportunity”.

In response to the argument that backward classes are already benefiting from several benefits, he stated that these were not a “free pass” but rather a “reparative and compensatory mechanism designed to level the playing field, where they are unequal due to their social stigmatization”.

As stated by the minority ruling, “excluding socially and economically disadvantaged classes, such as SCs, STs, and OBCs, from this new reservation based on their pre-existing benefits, amounts to heaping fresh injustices on existing disabilities”.

Firstly, it “others” those subjected to socially questionable and illegal practices, even though they are among the poorest sections of society. A second reason for the exclusion is that the purpose of the new reservation, it operates absolutely against the socially disadvantaged classes and castes by confining them to their allocated reservation quotas… As a third consequence, it denies the opportunity for mobility from a reserved quota (based on past discrimination) to a reservation benefit based solely on economic hardship.”

“The net effect of the entire exclusionary principle is Orwellian, as all the poorest are entitled to be considered, regardless of their caste or class, yet only those belonging to forward classes or castes would be considered, and SC/STs from socially disadvantaged classes would not be considered.”

According to the minority ruling, economic conditions can be used to justify affirmative action. It states that the amendment provides pathways, gateways and opportunities for the poorest segments of society. They are able to access spaces they were unable to reach, places they were unable to fill, and opportunities that they were unable to seek ordinarily because of their poverty, economic deprivation, and poverty.

Even though destitution, economic deprivation, and poverty are markers or intelligible differentia that serve as the basis for the classification upon which the impugned amendment is entirely based. Therefore, the amendment is constitutionally indefeasible to the extent that it excludes a large section of similarly poor and destitute individuals as a result of their social backwardness and legally recognized class stigmatization from taking advantage of the new opportunities created for the poor, a practice which is constitutionally prohibited.

Justice Bhat pointed out that the Sinho Commission, which was established to examine the economic condition of the economically backward classes, cited NSSO statistics from 2004-2005 in its 2010 report. According to the NSSO statistics, a total of 31.7 crore people were living below the poverty line (“BPL”), of whom 7.74 crore people were scheduled castes (38 percent of total scheduled castes), 4.25 crores were scheduled tribes (48.4%), 13.86 crores of OBCs (33.1% of total OBCs), and 5.85 crores of general category (18.2% of total general category), respectively.

According to him, “these facts indicate that most of the economically disadvantaged sections of society belong to the classes described in Articles 15(4) and 16(4).”

The minority ruling agreed that the State was empowered to make provisions for reservations for admission in private, unaided institutions, asserting that unaided private institutions, including those that offer professional education, cannot be seen as standing out from the national mainstream.

The court stated that, as held in previous judgments, “reservations in private institutions do not constitute a violation of the basic structure.”. Therefore, reservations cannot be excluded from private educational institutions. The value they add may not be associated with the State or State instrumentalities; however, they are part of the national effort to develop skills and disseminate knowledge. A number of these institutions are also material resources of the community in which the state has a vital interest. They are not merely vehicles for achieving the personal objectives of their founders, as in the case of shareholders in a corporation.

Justice Bhat disagreed with the majority’s view regarding a 50 percent reservation cap and pointed out that some states are already filing petitions challenging this breach. The majority view is that “the creation of another class which may receive up to 10% of reservations over and above 50% permitted under Article 15(4) and 16(4)… has a direct bearing on the likely outcome of the challenge”. Therefore, I would like to sound a cautionary note since this judgment may seal the fate of the pending litigation – without permitting them to be heard”.

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