Wednesday 7 December 2022
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PoliticsIndiaEWS quota hangs in the balance in Supreme Court

EWS quota hangs in the balance in Supreme Court

The Supreme Court today reserved its on a batch of pleas challenging the validity of the 103rd amendment in the constitution that provided 10% reservation to economically weaker sections (EWS) individuals in admissions and government jobs. A five- constitution bench headed by Chief Justice Umesh Lalit reserved the on the legal question of whether the EWS quota violated the basic structure of the constitution.

The Supreme Court heard a battery of senior lawyers including Attorney-General KK Venugopal and Solicitor-General Tushar Mehta in a marathon hearing that lasted for six-and-half-day.

Academic Mohan Gopal opened the arguments in the case before the bench, which also comprised Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, on 13 September and opposed the EWS quota amendment by terming it as "deceitful and a backdoor attempt" to destroy the concept of reservation.

Senior lawyers including Ravi Verma Kumar, P Wilson, Meenakshi Arora, Sanjay Parikh, and KS Chauhan and advocate Shadan Farasat assailed the quota, saying it excluded the poor belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) categories and defeated the creamy layer concept.

Tamil Nadu, represented by senior advocate Shekhar Naphade, opposed the EWS quota too, saying the economic criteria could not be the basis for classification and the top court would need to revisit the Indira Sawhney (Mandal) judgment if it were to decide to uphold this reservation.

At the other end, the attorney-general and the solicitor-general vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50% quota meant for the socially and economically backward classes (SEBC). Therefore, the amended provision does not violate the basic structure of the constitution, they said.

The solicitor-general detailed the state's power to take affirmative action to elevate the poor among the general category and said the constitutional amendment strengthens the basic feature of the constitution and its validity cannot be tested on grounds of some statistics. He said the EWS quota was "necessitated" to benefit the general category poor, a "large segment" of the population not covered under any existing reservation scheme.

Senior advocate Gopal Sankaranarayanan, appearing for NGO Youth for Equality, supported the EWS quota scheme, contending it was “long overdue” and a “right step in the right direction”

The Supreme Court heard as many as 40 petitions and most of the pleas, including the lead one filed by 'Janhit Abhiyan' in 2019, challenged the validity of the constitution Amendment (103rd) Act 2019.

The union government had filed some petitions seeking the transfer of pending cases, challenging the EWS quota law, from various high courts to the apex court for an authoritative pronouncement.

The bench had on 8 September framed three broad issues for adjudication arising from the pleas challenging the union government's decision to grant 10% reservation to EWS in admissions and jobs. The bench had said the three issues suggested by the attorney general for the decision "broadly" covered all the aspects relating to the petitions on the constitutional validity of the decision to grant the reservation. "Whether the 103rd constitution amendment Act 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," read the first issue framed.

The second legal question was whether the constitutional amendment could be said to breach the basic structure by permitting the state to make special provisions concerning admissions 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," the third issue, which the bench will adjudicate upon, says.

The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that the could not amend every bit of the constitution, and aspects such as rule of law, separation of powers, and judicial freedom formed part of the "basic structure" of the constitution and hence, could not be amended.

The union government had, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.

The union government had, in 2019, told the apex court that its law, granting a 10% quota for the EWS was brought in to promote "social equality" by providing "equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status".

The Lok Sabha and the Rajya Sabha cleared the bill on 8 and 9 January  2019 respectively and it was then signed by then-President Ram Nath Kovind. The EWS quota is over and above the existing 50% reservation to SCs, STs, and OBCs.

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