'You Could Have Done Anything Else. Why Do You Have To Indulge In This Reservation Issue?' : SC To Centre On EWS Quota

Observing that poverty is not a 'permanent thing', the Supreme Court said on Thursday the Economically Weaker Sections (EWS) among upper castes could be promoted through various affirmative actions at the 'threshold level' like giving them scholarships instead of 10 per cent quotas in government jobs and educational institutions.

It said the term reservation has different connotations such as social and financial empowerment and is meant for the classes that have been oppressed for centuries.

A five judge constitution bench headed by Chief Justice Uday Umesh Lalit said reservation has been given to those stigmatised for centuries due to their caste and vocations and the EWS among forward classes could have been given facilities like scholarship and free education without the government getting into the 'reservation issue'.

“When it is about other reservations, it is attached to lineage. That backwardness is not something which is temporary. Rather, it goes down to centuries and generations. But economic backwardness can be temporary,” said the bench.

Solicitor General Tushar Mehta, appearing for the Centre, defended the 103rd constitutional amendment, saying the 10 per cent quota for the EWS of general category has been provided without disturbing the 50 per cent reservation available to SCs, STs and OBCs, and the parliamentary wisdom, leading to a constitutional amendment cannot be set aside without establishing that it violated the basic structure of the Constitution.

“The other side is not denying the fact that people, who are struggling or who are poverty stricken in that unreserved class, needed some support. There is no doubt about that.

"What is being submitted is that you can try to elevate that class by giving them sufficient opportunities at the threshold level, say at the 10+2 level... Give them a scholarship. Give them the freeship so that they get the opportunity to learn, to educate themselves  or to elevate themselves,” said the bench which also comprised Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala.

The court said reservation as a traditional concept has different meanings and connotations and it is not just about financial empowerment but social and political empowerment.

"It enables the disadvantaged class to be part of the apparatus of the government. So, the reservation has various other facets to it not just trying to improvise the economic situation...But, here is only one facet that is to improve the economic status of a man or a woman of general class. You could have done anything else. Why do you have to indulge in this reservation issue,” it said.

The Solicitor General argued in detail on the state's power to take affirmative action to elevate the poor among the general category and said the constitutional amendment furthers and strengthens the basic feature of the Constitution and its validity cannot be tested on grounds of some statistics. 

“While analysing the basic structure, the principle guide is the preamble. Considering the preamble of the Constitution, the amendment does not destroy the basic structure, rather it strengthens it by giving justice - economic justice to those who have not been the beneficiaries of affirmative action like reservation,” the law officer said.

He said the income figure of Rs 8 lakh per annum to grant the EWS quota has been arrived at after a detailed study.

Assault on the basic structure?

In the initial days of the hearing, counsels arguing against the EWS reservation had termed it as an 'assault on the basic structure' of the Constitution.

Advocate Mohan Gopal argued that EWS reservation is a tool for financial upliftment of the ‘forward classes’.

He submitted that as the EWS quota excludes socially and educationally backward classes, it violated the principles of equality and justice and therefore infringed the ‘basic structure’ of the Constitution.

He argued that the 103rd Amendment should be seen as an ‘assault’ on the Constitution. 

Adding further to his argument, he said that through the EWS reservation, the government was essentially excluding a person from the benefits of reservation just because the person is from a ‘lower caste’.

He said that denying equal opportunities to backward classes will change the identity of the Indian Constitution and it will become an instrument to ‘protect privileges’.

Following, Mohan Gopal, senior advocates Meenakshi Arora and Sanjay Parikh also made their submissions.

The crux of their argument, similar to that of Gopal, was that the very idea of EWS reservations stemmed from a foul understanding of reservation which is based on the concept of stigmatisation and marginalisation. 

Latest from the SC

On Wednesday, the apex court posed a slew of queries to the Centre on grant of 10 per cent quota in admissions and government jobs to the EWS category, saying the “slice of cake” of 50 per cent open general seats available to OBCs above creamy layer now stands reduced to 40 per cent.

Earlier in the month, the bench of the Supreme Court had framed major issues which are to be discussed while determining the validity of EWS reservation. This includes:

• whether 103rd Constitutional Amendment is violating the basic structure of the Constitution by permitting states to make special provisions for reservation based on economic criteria;

• whether it violates the basic structure by allowing the state to make special provisions in relation to admissions to private unaided institutions;

• and whether 103rd Amendment is violating the basic structure in excluding the socially and educationally backward classes. 

The bench would resume hearing on September 27.

With inputs from PTI.