Has general category pool shrunk due to EWS quota? Supreme Court asks [Day 5]

On day 5 of the hearing in petitions challenging the validity of the 103rd Constitutional Amendment, the Supreme Court sought to know whether after creating a 10% quota for Economically Weaker Sections (EWS), the general category was denied a share which was earlier open for competition on merit..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 also sought to know whether this reservation deprived opportunities to the creamy layer of the Other Backward Classes (OBC)..CJI Lalit asked Senior Advocate Mahesh Jethmalani, appearing for the State of Madhya Pradesh, "You were trying to give something to have-nots at the expense of haves. But now it will be reverse."."Now you are reducing the share of the pie who could have got seats on own merit in general category? Suppose there are 5 per cent seats for Muslims and there could be more meritorious Muslims than this 5 percent and the last person in this category could be less meritorious than who is left out. Idea is that open general category has to be open. Idea is share is getting lesser. Question is if the open category is being eaten into and if their share is less, then is it violative of the basic structure?" the CJI asked. .Jethmalani responded that if after 30 years there is no progress, then the entire reservation project is a failure."A little bit of disproportion is permissible. Historical injustices have been rectified to a large extent. Somebody will always be a little left out. Here at least the situation is a little better. Here at least disparity is being reduced," he added. .The CJI then highlighted,"OBCs who are above creamy layer, for them scope is only 50 percent. Has that not got reduced due to this 10 per cent? Hasn't everyone's pool which was open for merit shrunk now, and if shrunk, then it is at whose expense?".Justice Bhat then queried whether the framework of equality can tolerate such a kind of reservation which is a new kind of category. "This is kind of fragmenting the society. This Constitution is a forward-looking Constitution and thus we cannot fragment it.".Attorney General KK Venugopal, arguing in support of the amendment, said, "EWS is for people who don't go to school, and for those who have to be compelled to go to school. They just cannot get admission where they want. This quota ensures they are also getting opportunities...one day will come when this 10% will reduce and this is just an enabling provision.".The Bench called for data from the states to see if the EWS reservation beneficiaries in public employment and educational institutions are those who are if at all better than the last person receiving help under the SC-ST OBC quota. .Solicitor General Tushar Mehta stated that the data being sought from states would not be helpful in striking down an amendment to the Constitution."The moot aspect which may not be forgotten is the fact that what is under challenge is an amendment to the Constitution itself, and not any legislation regarding reservation or any measure taken under the legislation providing for reservation.A Constitution amendment can be tested only on the ground that it destroys the “basic structure” of the Constitution itself. In other words, whether such an amendment if permitted to stand, the very foundational edifice of the constitution would fall.".The matter will continue to be heard on Thursday, September 22..[Read our live coverage of today's hearing]