NEW DELHI: In a landmark verdict on Monday, the Supreme Court by 3:2 majority upheld the the 103rd Constitutional Amendment that granted 10% reservation to the Economically Weaker Section (EWS) in admission to public and private educational institutions and central government jobs.
Since the EWS excluded socially and economically backward classes (SEBCs) /OBCs /SCs/STs from its ambit, the legal question was whether it violated the basic structure of the Constitution and the equality code. While justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala found the EWS kosher, Chief Justice of India U U Lalit and Justice S R Bhat, in their minority view, called the amendment unconstitutional, void and violative of the basic structure of the Constitution.
But Justice Maheshwari opined that since quota is an enabling provision, it could not be regarded as an essential feature of the Constitution, so the doctrine of basic structure does not apply. “Exclusion... from getting the benefit of reservation as EWS, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate Equality Code.”
Justice Trivedi said the amendment created a separate class of “economically weaker sections of the citizens” from the general/unreserved class, without affecting the special rights of quota provided to the SCs/STs/OBCs. Underscoring the need to revisit the system of reservation in the larger interest of the society, she said, “However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.”
Justice Pardiwala said the amendment signifies Parliament’s intention to expand affirmative action to hitherto untouched groups. Justice Bhat in the verdict he wrote for himself and the CJI said, “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. ”
VCK to file appeal: P4
Who stands where in constitution bench
Treating EWS as separate class would be a reasonable classification. Just as equals cannot be treated unequally, unequals cannot be treated equally... The exclusion of SEBCs cannot be said as discriminatory
Reservation is an instrument ... not only for inclusion of socially and educationally backward classes...Reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible
This court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle....Our Constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby the basic structure. This amendment is deluding us to believe that those getting social and backward class benefits are somehow better placed. This court has held that 16(1) and (4) are facets of the same equality principle... The exclusion is based on social origin which destroys the equality code
This amendment also shows how a progressive democratic legislature does not hesitate even to amend the Constitution with a view to harmonise the fundamental rights of the individual citizen with the claims of social good