A batch of pleas challenging the validity of the 103rd Constitution amendment granting a 10% reservation to economically weaker sections (EWS) persons in admissions and government employment will be heard by the Supreme Court on Monday.
The apex court’s website shows that the case will be decided by a five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit on November 7.
The apex court had reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the Constitution on September 27 after hearing a battery of senior lawyers, including then-Attorney General K K Venugopal and Solicitor General Tushar Mehta, in the marathon hearing that had lasted for six-and-half days.
The academic Mohan Gopal opened the arguments in the case before the bench of justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala on September 13 and opposed the EWS quota amendment, calling it “deceitful and a backdoor attempt” to undermine reservation.
In addition to opposing the EWS quota, Tamil Nadu also requested that the high court revisit the Indira Sawhney (Mandal) judgement if it upholds this reservation. Shekhar Naphade represented Tamil Nadu.
On the other hand, the then attorney general and the solicitor general had vehemently defended the amendment, stating that the reservation provided under it had been given without affecting the 50% quota set aside for the socially and economically backward classes.
This means that the amended provision does not violate the fundamental structure of the Constitution, as they had argued.
Most of the petitions, including the lead petition filed by Janhit Abhiyan in 2019, challenged the validity of the Constitution Amendment (103rd) Act 2019.
Some petitions had been filed by the central government seeking the transfer of pending cases challenging the EWS quota law from various high courts to the Supreme Court so that an authoritative decision could be rendered.
On September 8, the bench framed three broad issues for adjudication in connection with the appeals challenging the decision of the Centre to grant 10% reservation to the economically disadvantaged in admissions and employment.
The three issues suggested by the then attorney general for the decision “broadly” covered all aspects of the petitions on the constitutional validity of the reservation decision.
First, the first question posed was “Whether the 103rd Constitution Amendment Act violates the basic structure of the Constitution by allowing the State to make special provisions, including reservations, based on economic criteria.”
A second legal question arose regarding the constitutional amendment, which allowed the state to make special provisions regarding admission to private unaided institutions.
A third issue is “whether the 103rd amendment to the Constitution breaches its basic structure by excluding SEBCs/OBCs, SCs/STs from the scope of EWS reservation.”.
A doctrine of basic structure was first articulated by the Supreme Court in 1973 when it decided the Keshavananda Bharati case. As a result, it was agreed that Parliament could not amend every aspect of the Constitution, including factors such as the rule of law, separation of powers, and judicial freedom, which were considered part of the “basic structure” and thus could not be changed.
In the 103rd Constitutional Amendment Act of 2019, the Centre introduced the provision for reserving admissions and public services to Economically Weaker Sections (EWS).
Previously, the Centre had also told the apex court, in 2019, that its law, providing a quota of 10% for Economically Weaker Sections, was intended to promote “social equality” by providing “equal opportunities in higher education and employment to those excluded by their economic status”.
Both the Lok Sabha and the Rajya Sabha approved the bill on January 8 and 9, 2019, respectively, and it was signed by the then President, Ram Nath Kovind. There is an additional quota for the EWS and the existing 50 percent reservation for SCs, STs, and other backward classes (OBCs).