EWS Reservation: 103rd Constitutional Amendment necessary for social equality, Centre to SC

The Central government has averred before the Supreme Court that the introduction of reservation for Economically Weaker Sections (EWS) of society is necessary for social equality..The Centre made the submission in its the counter-affidavit filed in the plea challenging the Constitution (103rd) Amendment Act. The amendment introduced a 10% reservation for financially weaker sections of the population i.e. EWS in public employment and education..The affidavit points out that the EWS reservation was introduced on the recommendations of the SR Sinho Expert Commission in its July 2010 report. The Commission was formed following the 1992 Indra Sawhney judgment. Earlier, the Sinho Commission had also pushed for excluding ‘creamy layer’ persons from the reservation benefits available to Socially and Economically Backward Classes (SEBC)..Therefore, it has been submitted that EWS reservation is necessitated “to promote social equality by providing opportunities in higher education and employment to those who have been excluded by virtue of their economic status.” .It is further contended that the Centre has an obligation to introduce such measures under Article 46 of the Constitution, which provides for the welfare of the weaker sections and reservation for backward classes. By providing for the same, it is submitted that there is no violation of the Basic Structure of the Constitution either. In this regard, the affidavit states,.“To sustain a challenge against a constitutional amendment, it must be shown that the very identity of the constitution has been altered….… a mere amendment to an Article of the Constitution, even if embodying a basic feature, will not necessarily lead to a violation of the basic feature involved.”.It is also argued that EWS reservation is in conformity with the principle of affirmative action, in line with the scheme of Articles 15 and 16 of the Constitution..“It is submitted that the newly inserted provisions of Article 15(6) and Article 16(6) are enabling provisions for advancement of the economically weaker sections and are in fact, in conformity with the principle of Reservation and Affirmative action, which are the touchstones of protection of equality of citizens and also the basis under Article 15(1), Article 15(2), Article 16(1) and 16(2). Therefore the impugned Amendment is in conformity with the constitutional principles and does not violate the basic structure doctrine.” .Notably, it is the government’s case that since EWS reservation did not exist at the time of pronouncing the Indra Sawhney judgment, the case is not applicable in challenging the constitutionality of this form of reservation. On this aspect, the affidavit states,.“…The present challenge, however, is in relation to the validity of a constitutional amendment made wherein Article 15(6) and Article 16(6) have been inserted, which did not exist on the book when Indra Sawhney was delivered. Indra Sawhney and the findings therein can, therefore, have no application thereafter…“.As per the state’s submissions, there is a clear distinction between the newly introduced reservation for the EWS category and the earlier reservation available for SCs, STs and other backward sections..“… this Hon’ble Court in Indra Sawhney did not have the opportunity to deliberate or hold in relation to the constitutional amendment, whereby the new criteria of ‘economically weaker sections of the society’ has been introduced. The decision was therefore purely on the anvil of the yardsticks available under Article 16 (4) and Article 16 (1), which are distinct from Article 15(6) and Article 16 (6) and will have to, therefore, be tested independently….…Article 16 (4) and Article 16 (6) are distinct as Article 16 (4) deals with backwardness whilst Article 16(6) deals with economically weaker sections of the society.”.While this is the case, it has also been contended that the EWS reservation would not breach the 50% reservation limit which is intended only for the earlier demarcated backward sections. The affidavit states,.“That in order to provide reservation to Economically Weaker Sections without disturbing the existing reservations for SCs, STs and OBCs, the constitutional amendment has provided for a maximum of 10% reservation for Economically Weaker Sections in addition to the existing reservations. The limit of 50% is only applicable to reservation made under Article 15(4), 15(5) and 16(4) and does not apply to Article 15(6)“.The Economic Reservation Bill was passed by both Houses of Parliament in January this year. Three days after it was approved by Parliament, the President accorded his assent for the legislation. However, even as Presidential assent was pending, the NGO Youth for Equality moved the Supreme Court challenging the legislation..Two days after it received Presidential assent, on January 14, the Economic Reservation Act came into force..Subsequently, a slew of petitions came to be filed in Supreme Court challenging the amendment. The Supreme Court had issued notice in the matter on January 25..Read the Counter Affidavit filed by the Central Government:.Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.