Excluding SC/ ST, OBC from EWS reservation amounts to heaping fresh injustice on them: Justice S Ravindra Bhat in dissenting verdict

The 103rd Constitutional Amendment that grants 10 percent reservation to Economically Weaker Section (EWS) among the forward castes is unconstitutional for excluding the Scheduled Caste, Scheduled Tribe (SC/ST) and Other Backward Classes (OBCs) from reservation, Justice S Ravindra Bhat of the Supreme Court said in his dissenting opinion. .The judgment upholding the EWS reservation was rendered today by a bench comprising Chief Justice of India (CJI) UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala by a 3:2 majority.Justice Bhat and CJI Lalit dissented. The Amendment Act provides for reservation of 10 percent 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.It came to be challenged on the ground that economic classification cannot be the sole basis for reservation..In his dissenting judgment, Justice Bhat observed that the total and absolute exclusion of constitutionally recognised backward classes of citizens and more acutely SC and ST communities, is nothing but discrimination which undermines the equality code. "Introducing the economic basis for reservation – as a new criterion, is permissible. Yet, the “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability," the judge held. .He further reasoned that the exclusionary principle in the amendment, separated those subjected to socially questionable, and outlawed practices – though they are amongst the poorest sections of society. Further, for the purpose of the new reservations, the exclusion operated against the socially disadvantaged classes and castes by confining them within their allocated reservation quotas. Finally, he stated that it denied them the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation. "The net effect of the entire exclusionary principle is Orwellian, which is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible," the judge opined. "The total and absolute exclusion of constitutionally recognised backward classes of citizens - and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of non-discrimination" the judge added. .Justice Bhat also highlighted the Sinho Commission report as per which a large number SC/ST population still fall below poverty line. "The Sinho Commission Report itself is a testimony to the fact that amongst the entire population of STs, 48% are the poorest; amongst the entire population of Scheduled Castes 38% are the poorest and amongst the OBC’s no less than 33% are the poorest," he pointed out.He also did not accept the breach in 50 percent ceiling set by Indra Sawhney case. "Permitting the breach of the 50% rule as it were through this reasoning, becomes a gateway for further infractions whereby which in fact would result in compartmentalization; the rule of reservation could dealt well become rule of equality or the right to equality, could then easily be reduced to right to reservation - leading us back to the days of Champakam Dorairajan," Justice Bhat said..Thus he concluded that the amendment and the classification it created, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination."For these reasons, the insertion of Article 15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the principle of non- discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution," the judge held..[Read dissenting opinion]