A constitution bench of the Supreme Court upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation in government jobs and educational institutions to the ‘economically weaker sections of the society but excludes the ‘poorest of poor’ among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope. It was a majority verdict divided in the ratio 3:2.
Justices Dinesh Maheshwari, Bela M. Trivedi and JB Pardiwala in the five-judge bench delivered the majority opinions in an hour-long session that saw the pronouncement of a constitution bench judgment live-streamed for the first time.
Chief Justice UU Lalit, on his last working day, and Justice S Ravindra Bhat, gave the minority view, which Justice Bhat authored.
Dealing with the question whether reservation on the sole basis of economic criterion violated the “basic structure of the constitution”, Justice Maheshwari took the expansive view that reservation was an “instrument of affirmative action by the state” and should not be confined to just SCs, STs, SEBCs, and the non-creamy layer of OBCs, but also include “any class or sections so disadvantaged as to answer the description of ‘weaker section’”.
Justice Trivedi noted that the legislature understood and appreciated “the needs of its own people”. The three judges in the majority held that quota on economic criteria alone did not violate the basic structure of the constitution.
On the other hand, Justice Bhat and Chief Justice Lalit maintained that even though quota on the basis of economic deprivation, destitution and poverty was “per se permissible/valid” and even “constitutionally indefeasible”, the “othering” of socially and educationally disadvantaged classes, including the SC/ST/OBC/SEBC communities, on the ground that they already enjoy the benefits of a pre-existing 50% reservation on the basis of their caste and class origins, would amount to heaping injustice based on their past disability.
The CJI said such an exclusion was simply “Orwellian” as the government’s statistics itself showed that the “bulk of economic deprived section of the society belonged to SC/ST/SEBC/OBC”. He said the SCs constituted 38% of the population, STs made 48.4%, and OBCs comprised 13.86% of the 31.7 crore people living under the poverty line in the country. Forward castes or the unreserved category occupy only 5.85% of the Below Poverty Line (BPL) population, CJI Lalit said.
The petitioners had argued that the exclusion of SC/ST/SEBC/OBC had left only the “middle class” among the forward castes drawing less than Rs 8 lakh as annual family income to reap the benefits of the EWS quota.
Justice Bhat said the exclusion from the EWS quota based on social or identity origins struck at the essence of the “non-discriminatory rule” and destroyed the equality code of the constitution. It was tantamount to a “hostile discrimination” of the poorest members of the society, who were already socially and educationally backward and subjected to caste discrimination.
“The court for the first time in seven decades of the Republic has sanctioned an avowedly exclusionary and discriminatory principle,” Justice Bhat referred pointedly to the majority law that would become the law.
“Our constitution does not speak the language of exclusion,” Justice Bhat underscored. He said the poorest of poor among SC/ST/OBC/SEBC had been kept out of EWS quota on the delusion that they benefit from the existing 50% reservation and were thus “somehow more fortunate”. The government, Justice Bhat said, believed that including SC/ST/OBC/SEBC members in the EWS quota would bestow them a “double benefit”.
Existing reservation should not be seen as a “free pass to equal opportunity” for these backward classes, he noted, but as a reparative and compensatory mechanism to level the field for those crippled by social stigmatisation.
Justice Trivedi disagreed. He held that the 103rd amendment only created “a separate class of EWS without affecting the special right of reservation provided to SEBCs, STs, SCs and OBCs”. Even the SC/ST/SEBC/OBC members had been treated as a separate category for the purpose of the 50% reservation. Now, they cannot be treated at par with citizens belonging to the general or unreserved category, Justice Trivedi said.
“The amendment certainly cannot be termed as a shocking, unscrupulous travesty of equal justice. Just as equals cannot be treated as unequals, unequals cannot be treated equally. Treating unequals as equals will offend the doctrine of equality in Article 14,” Justice Trivedi reasoned.
Justice Maheshwari dismissed the contention that the 10% EWS quota would breach the ceiling limit of 50% on reservation. He said the 50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992 was “not inflexible”. Further, it had applied only to SC/ST/SEBC/OBC communities and not the general category.
In his spirited dissent, Justice Bhat responded that permitting the breach of 50% ceiling limit would become “a gateway for further infractions and result in compartmentalisation”.
However, Justice Maheshwari, as well as Justice Bhat, accepted the state’s prerogative to make special provisions for implementing reservation in private unaided institutions, including professional colleges. Justice Maheshwari held that the Amendment “cannot be said to violate Basic Structure by permitting the state to make special provisions in relation to admission to private unaided institutions”. Justice Bhat said reservation in institutions where education was imparted cannot “per se be violative of the Basic Structure”. He said the Amendment would be valid were it not for the fact that it excluded the other backward classes.
Interestingly, the argument that accepting quota for the OBC — excluding the SC and ST who were already covered by the pre-1990s reservation policy — as per the recommendations of the BP Mandal Commission implied that it was possible for people to remain backward despite not belonging to an alleged deprived caste, and hence they deserve reservation too, was neither made by the side that supported the EWS quota (the government) nor covered in the Supreme Court verdict.