EWS quota: Supreme Court reserves judgment in challenge to Constitution (103rd) Amendment Act

The Supreme Court on Tuesday concluded hearing the batch of pleas challenging the validity of the Constitution (One Hundred and Third) Amendment Act, 2019, which provides reservation for the Economically Weaker Sections (EWS) [Janhit Abhiyan v. Union of India]..A five-judge Constitution Bench of Chief Justice of India UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala reserved its judgment in the matter today after hearing replies to the Central government's arguments..In today's hearing, Justice Bhat asked Solicitor General (SG) Tushar Mehta for data on scholarships available for admission to professional courses in Central universities. The SG replied that seats have been increased so as to not reduce the absolute number of seats that were earlier there for the other reserved groups. "Ultimately when they get in, what is the aid that they get and fees they pay?" Justice Bhat asked. The SG replied, "Those figures would be for Parliament to act on, and would not affect the constitutionality of this [amendment] Act." "Yes. We just need the figures, ultimately [the] EWS are [the] poorest of poor getting scholarships," Justice Bhat insisted. The SG's response was,"But since they are getting scholarship so...reservation is a policy issue, not a constitutional issue."He added that the scholarships can be merit-based and need-based. .The top court was hearing a batch of petitions filed by NGOs Janhit Abhiyan and Youth for Equality, among others, challenging the amendment on the ground that economic classification cannot be the sole basis for reservation.The Amendment Act provides for reservation of 10 per cent seats in public and private educational institutions, and in public employment, for the “economically weaker sections” of citizens other than Scheduled Castes, Scheduled Tribes and socially and educationally backward classes.The petitioners contended that the amendment violates the basic structure of the Constitution and breaches the overall 50 per cent ceiling of reservation as mandated by the dictum in the Indra Sawhney case.The reservation of 10 per cent seats for EWS other than SC/ST/OBCs is arbitrary and excessive, they have stated..Attorney General KK Venugopal had framed the constitutional questions of law for consideration as under: - Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?.Today's arguments.Advocate VK Biju, supporting the EWS reservation, stated that the some of the petitioners are misguided that their rights are being taken away. "This section is not a vote bank, I'm for poor rickshaw pullers and not against anyone else's compartment. Nothing happened to that...We must be cautious of section of protected people being misguided that their rights are being taken away."Senior Advocate and former Karnataka Advocate General Professor Ravivarma Kumar, opposing the Amendment Act, began by narrating the plight of Nicobari tribals after the 2005 tsunami. "...they found that not single Nicobari was touched. After research, it was seen that they are in such close touch with nature. They saw monkeys climbing up the hills, and knew. Why I'm saying this is because they're the most primitive tribes, away from civilisation and not being Caucasian race like mainland Indians. All these other races are eliminated [from availing EWS quota] because they are the Scheduled Tribes. Entire SC-ST list are castes or tribes."Kumar compared the EWS quota in its present form to the Communal Government Order of 1927 that was struck down by the Madras High Court, and upheld by the apex court. He added, "Even a constitutional provision eliminating races, castes and tribes also hits at the basic structure. Equality test is turned upside down on the basis of caste, race and tribes. Article 41 [right to work, to education and to public assistance in certain cases] may not be a fundamental right but still". Senior Advocate Meenakshi Arora countered the Attorney General's submissions that alternate facts and figures towards representation of EWS could not invalidate a constitutional amendment."My response to this is - the test of a vires is testing if it [Act] has vices, not merely [testing] its objects and reasons. Impact of this actually affects basic structure and equality."She added that the contention that not all incursions into the basic structure are breaching it unless it is a travesty of justice, cannot be accepted. "If this is accepted, then you can go ahead and hit the basic structure chip by chip by saying it is not shocking."Professor G Mohan Gopal pointed out how that Act made being being a forward community member a prerequisite to get government assistance. Coupled with the Act effectively 'letting loose reservation in the society as some benign welfare activity', this means that the same is in 'violent opposition' to the basic structure of the Constitution, he stressed. The Bench asked Advocates Shadan Farasat and Kanu Agarwal to prepare a concise compilation of all the submissions made in the case. .Follow our day-wise coverage of earlier hearings:Day 1Day 2Day 3Day 4Day 5Day 6.[Follow our live coverage of today's hearing]