Does EWS quota violate Basic Structure? Constitution Bench asks Union, States, parties to ‘crystallise’ their thoughts by Thursday

Economic reservation was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness

September 06, 2022 01:26 pm | Updated 02:33 pm IST - NEW DELHI:

File photo for representation purposes only.

File photo for representation purposes only. | Photo Credit: Sushil Kumar Verma

A Constitution Bench on Tuesday asked the Centre, States and petitioners to firm up a slew of concerns raised in the Supreme Court about granting reservation on a purely economic basis, one of them being whether it is a violation of the very basic structure of the Constitution to exclude Scheduled Castes, Tribes and some of the most impoverished, socially and educationally backward classes in the country from the scope of the quota.

The five-judge Bench of the Supreme Court led by Chief Justice of India U.U. Lalit is considering the validity of the 103rd Constitutional Amendment, which provides a 10% quota to economically weaker sections (EWS) of the society in government jobs and educational institutions.

Senior advocate Gopal Sankaranarayanan, on the court’s orders, had prepared the draft legal issues for the Bench to examine. 

On Tuesday, the Bench asked the draft issues to be circulated so that the Union, States and petitioners could study them. The court scheduled the next hearing on Thursday to “crystallise” the issues finally. 

The CJI said the Bench would start hearing the case on Tuesday next. Chief Justice Lalit indicated that the arguments on both sides should conclude in seven days.

Mr. Sankaranarayanan has highlighted five draft issues in the case. These include whether the 103rd Amendment violated the Indira Sawhney judgment of 1992 which had prohibited reservation on the basis of a “purely” economic criterion.

Besides raising the question of whether the amendment “breached the Basic Structure of the Constitution in excluding the SEBCs/OBc/SCs/STs from the scope of EWS reservation”, the draft issues highlights if the 10% EWS quota infringed the 50% ceiling limit for reservation.

The draft document has also asked the court ruminate and decide if the EWS quota should be imposed in private unaided institutions.

Finally, the court wants the government, States and parties to consider the draft issue as to “whether the 103rd Constitution Amendment breaches the equality code and the Constitutional scheme by giving sanctity to the ‘existing reservation’ which are only created temporarily by enabling provisions”.

The challenge to the 103rd Constitutional Amendment was referred to a five-judge Bench in August 2020. The three-judge Bench, which had referred the case to the larger Bench, had refused to stay the implementation of the amendment.

Economic reservation was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness.

“It is the case of the petitioners that the very amendment runs contrary to the Constitutional scheme and no segment of available seats/posts can be reserved, only on the basis of economic criterion.  As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five judges,” the three-judge Bench had concluded.

The Centre had argued that it was every State’s prerogative to provide 10% economic reservation in State government jobs and admissions in State-run educational institutions.

“Whether or not to provide reservation to the economically weaker section (EWS) of the society for appointment in State government jobs and for admission to State government educational institutions, as per provisions of the newly inserted Articles 15(6) and 16(6) of the Constitution is to be decided by the State government concerned,” a seven-page affidavit of the Union had said.

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