NEW DELHI, Nov 7 (PTI): In a landmark verdict on Monday, a Supreme Court Constitution bench in a 3:2 majority decision upheld the 10 percent reservation for economically weaker sections (EWS) in admissions and government jobs that excluded the poor among the SC/ST/OBC categories, saying it was not discriminatory and did not violate the basic structure of the Constitution.
Treating EWS as a separate category is reasonable classification and the 50 percent ceiling on the total reservation under the Mandal judgment is “not inflexible”, the judges said while dismissing petitions challenging the 103rd Constitution Amendment of 2019.
The bench headed by Chief Justice U U Lalit delivered four judgements on 40 petitions against the Amendment that was passed after the Centre decided to grant quotas to the economically weaker sections.
Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala upheld the EWS quota.
The CJI, on his last day of presiding court proceedings, was in minority with Justice S Ravindra Bhat when they ruled against it, holding that due to exclusion of poor of SCs, STs, and OBSs from its ambit the Amendment practices “constitutionally prohibited forms of discrimination”.
Justice Maheshwari, who read the judgement for himself, said the 103rd Constitutional Amendment cannot be said to breach the basic structure of the Constitution.
He said reservation is an instrument of affirmative action so as to ensure an all-inclusive march towards the goals of an egalitarian society and it is a means of inclusion of any class or section so disadvantaged.
“Reservation is an instrument of affirmative action by the State so as to ensure an all-inclusive approach. It is an instrument not only for the inclusion of socially and educationally backward classes.
“Reservation for the EWS does not violate basic structure on account of 50 percent ceiling limit because ceiling limit is not inflexible,” Justice Maheswari, who was called upon to pronounce the operative part of his judgement first, said.
The views of Justice Maheswari were echoed and concurred by Justices Trivedi and Pardiwala who said that the quota in jobs and admissions on the sole economic criteria did not violate the basic structure of the Constitution.
They were also of the same view in dismissing the vehement submissions that the 50 percent ceiling on the total reservation as envisaged in the Mandal judgement was inviolable and held that its alleged breach did not violate the basic structure.
Justice Maheswari, at the outset of the pronouncement, referred to the questions which were deliberated upon by the bench saying that the first issue was whether the 103rd Constitution Amendment was violative of the basic structure for providing reservation solely on the basis of economic criteria.
“Whether the amendment is violative of the basic structure for excluding the poor among the SC/ST/OBC categories from EWS Quota,” he said, adding that the third question was if the amendment violated the basic structure for breaching the 50 percent ceiling limit of quota.
The majority opinion answered the three questions in the negative.
Justice Trivedi said that the State was empowered to take “an affirmative action” by providing reservation for the EWS category and “it cannot be said to be unreasonable classification”.
“Treating EWS as a separate class would be a reasonable classification. Just as equals cannot be treated unequally, unequals cannot be treated equally. Treating unequals equally violates equality under the Constitution,” she said in her separate but concurring verdict.
Justice Trivedi said that the amendment created a separate class of EWS and the exclusion of socially and educationally backward classes (SEBCs) cannot be said as “discriminatory or violative of the Constitution”.
Justice Trivedi and Pardiwala, however, said that there was a need to have a time-span for such reservations as they cannot be continued for all the time.
Both the judges said the reservation is meant to secure social justice but it should not continue for indefinite time so that it becomes vested interest.
Justice Bhat, who pronounced the verdict at the fag end, said that the quota on the ground of economic criteria was not “per se not violative”, but it has to go due to the exclusion of poor of SCs, STs, and OBSs from its ambit.
“ However, by excluding the poor among SC/ST/OBC from economically backward classes …, the 103rd Amendment practices constitutionally prohibited forms of discrimination,” Justice Bhat said in his minority view.
“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,” the minority verdict said.
The apex court had on September 27 reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the Constitution after hearing a battery of senior lawyers, including the then Attorney General K K Venugopal and Solicitor General Tushar Mehta, in a marathon hearing that had lasted for six-and-half-days.
The top 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 bench, on September 8, had framed three broad issues for adjudication arising from the pleas challenging the Centre’s decision to grant 10 per cent reservation to EWS in admissions and jobs.
It had said the three issues suggested by the then 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, to be adjudicated upon by the bench, read.
Lok Sabha and Rajya Sabha cleared the bill on January 8 and 9 in 2019 respectively and it was then signed by then President Ram Nath Kovind. The EWS quota is over and above the existing 50 per cent reservation to SCs, STs, and Other Backward Classes (OBCs).