‘103rd amendment was a fraud on Constitution’

During the argument in SC, lawyer says reservation cannot be implemented as poverty alleviation programme

Reservation cannot be implemented as a “poverty alleviation programme” for the socially and educationally forward classes, which is what the quota for the economically weaker sections does, petitioners opened their challenge before a Constitution Bench led by Chief Justice of India (CJI) U.U. Lalit on Tuesday.

Reservation addresses structural inequality and is not a means to become financially well-off. The purpose of reservation is to provide representation or empowerment to classes of people who were historically denied access to education and employment. Benefits of reservation cannot be given solely on the basis of economic criterion, they argued.

‘Quota a moral hazard’

Poverty in the forward classes can also be due to “poor personal wealth management”. Reservation on the basis of economic criterion creates a “moral hazard” — a gambler who lost all his money cannot be made eligible for reservation.

“Winning a lottery would be a quicker way of ending financial incapacity than reservation. Using financial incapacity [as a criterion for reservation] creates what economists call a moral hazard… It has the potential to reward those who lose money foolishly or carelessly or “immorally” such as through gambling by making them eligible for reservations,” renowned jurist, Dr. G. Mohan Gopal, opened the arguments for the petitioners before the five-judge Bench.

Dr. Gopal said the 103rd Constitutional Amendment, which introduced the 10% EWS quota, was a “fraud on the Constitution”.

“Parliament knew well that it has no power to provide reservations for socially and educationally forward classes. That it has no power to provide reservation to any class except backward classes as held in the Indra Sawhney judgment. Yet, because of political considerations, it did so deliberately and falsely projecting the Amendment as economic reservation for the benefit of economically weaker sections…” he contended.

Petitioners and intervenors, represented by senior advocates Meenakshi Arora and Sanjay Parikh and advocate Prasanna S., found chinks in the criteria set to identify EWS in society.

“To judge anyone as poor on the basis of self-declaration and only on the basis of one previous year’s income makes the implementation of the whole scheme full of loopholes. No one can be termed as poor by having one year’s income as less than Rs. 8 lakh. In a country where less than 5% file income tax returns, and that too is open to manipulations, any such scheme is practically not implementable. To make such unreal, arbitrary and impractical scheme a part of the Constitution is disrespectful to the Constitution makers and shows lack of thinking on the part of the Union of India,” one of the petitioners argued.

Dr. Gopal argued that those earning a gross annual family income of at or below Rs. 66,666 a month or Rs. 8 lakh annually were eligible for the EWS quota.

“These numbers should be compared against the 2021 estimate of Pew Research, the renowned global fact-tank, once helmed by Dr. M.S. Swaminathan, that 93.7% of the people of India have a family income of less than Rs. 25,000 per month per family of four. The EWS criteria will therefore give eligibility not only to Forward Classes amongst this 93.7% but also to those who earn between Rs. 25,000 and Rs. 66,000 per month per family of four, who fall amongst an elite 6% of the country that earn above Rs. 25,000 per family per month,” he contended.

Submissions drafted by advocate Kaleeswaram Raj pointed out how the amendment clearly excluded citizens belonging to OBC/SC/ST who were economically weaker. Poverty is an impediment which knows no caste or social backwardness. It transcends across categories and across geographical spread. It is an impediment which cannot be restricted to advanced castes alone, by any stretch of imagination, the petitioners argued.

Mr. Raj said no demographic study was conducted before proposing the 103rd Amendment, which was only a “populist measure”. The court would resume hearing on Wednesday.

Earlier, the court had fixed three issues for adjudication arising from the pleas challenging the Centre’s decision to grant 10% reservation to EWS in admissions and jobs through the amendment to the Constitution.