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Economic criteria to ensure that the benefits of government policies reach the target group is not ”proscribed” and a ”recognised” basis of classification, the Supreme Court orally observed Wednesday while hearing pleas challenging the Centre's decision to grant a 10 per cent quota for the EWS category in admissions and jobs.
A five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit was told by several lawyers that the Economically Weaker Sections (EWS) quota on the sole criteria of the financial position of a family is unconstitutional as the grant of such a quota under the Constitution is not part of the poverty alleviation scheme.
The lawyers said the EWS quota is ”wholly unwarranted, arbitrary, illegal and unconstitutional” and amounted to ”legislative judgment” by the government to overrule the Indra Swahane or the Mandal verdict which had specifically held that economic criteria cannot be the sole one to grant reservation.
While hearing the arguments, the bench also comprising justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala, observed, “The government frames policies on the ground of economic criteria to ensure benefits of such policies reach out to target people... and the economic criteria is a permissible ground and forms part of a reasonable basis for classification. It is not proscribed.”
At the outset, lawyer Ravi Verma Kumar, appearing for one of the petitioners, referred to the historical background of reservations and cited the apex court judgment in the case of Champakam Dorairajan that had led to the first amendment in the Constitution.
The apex court in 1951 upheld the Madras high court verdict which had set aside a government order of 1927 of the Madras Presidency providing for the quota policy in state-run institutions based on the caste system.
This led the central government to make the first amendment in the Constitution saying that the State can take steps like providing for reservations.
Seeking to challenge the validity of the EWS quota, he said that it discriminates on the ground of caste and religion and hence is violative of the right to avail equal opportunities to public employment which is part of the basic structure of the Constitution.
”Dr B R Ambedkar was born as a Hindu and died as a Buddhist and even he would not have got the reservation under the EWS quota scheme because it excludes SCs, STs, and OBCs...,” Kumar said.
Stressing that the quota on the economic ground alone is impermissible, he said that instead of granting jobs, the poor in the forward class be granted financial support, free hostel, and education as such a constitutional benefit is meant for those class of citizens who are ”oppressed and suppressed” socially, educationally and financially for centuries.
He also urged the top court to take judicial note of the fact that only five per cent of the forward castes have been given a 10 per cent quota in jobs and admissions.
Referring to the figures, lawyer Ravi Verma Kumar said that OBCs, SCs, and STs constitute 85 per cent of the population and they are being granted around 50 per cent of the quota and five per cent of EWS will get a 10 percent quota.
Terming the EWS quota as a ”militant violation of the basic structure of the Constitution”, the lawyer referred to the abolition of princely states and said many of the princes have become paupers and does it meant that they should get the EWS quota.
Senior advocate P Wilson, appearing for another petitioner, quoted an author and opposed the EWS quota saying that it cannot be equated with reservations for SCs, STs, and OBCs as "one law for lion and ox is oppression."
”Equality will be robbed away if Article 15(6) is implemented... Reservation is not a poverty alleviation scheme under Article 46 (directive principles of State policy),” he said.
The hearing on pleas would resume on Thursday.
On Tuesday, the top court was told by the lawyers that the Centre's decision to grant a 10 percent quota for the EWS category in admissions and jobs violates the basic structure of the Constitution on multiple counts including that it breaches the 50 per cent cap on the reservation.
The quota for the Economically Weaker Sections(EWS) is a "deceitful and a backdoor attempt" to destroy the concept of reservations, a lawyer submitted before the court, which was told it also excludes the poor belonging to the SCs, STs, and OBC category and defeats the creamy layer concept. The 10 per cent EWS quota is in addition to the 50 per cent reservation for the SCs, STs, and OBCs.
Earlier, the top court had fixed three broad issues for adjudication arising from the pleas challenging the Centre's decision to grant 10 per cent reservation to EWS in admissions and jobs through the amendment to the Constitution. in 2019.
It had said the bench will also decide whether the Constitution (103rd Amendment) Act breached the doctrine of the basic structure of the Constitution by allowing the State to make such special provisions.
The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that Parliament could not amend every bit of the Constitution, and aspects such as rule of law, separation of powers, and judicial freedom formed part of the "basic structure" of the Constitution and hence, could not be amended.