SC upholds 10% reservation for EWS in 3:2 majority

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New Delhi, Nov 07: The Supreme Court, by a majority view of 3:2, on Monday upheld the validity of the 103rd amendment to the Constitution providing 10 per cent reservation to economically weaker sections (EWS) in admissions and government jobs. The apex court said that the reservation on economic basis does not violate the essential features of the Constitution of India.

At the outset, Chief Justice U U Lalit said there are four different judgements on pleas challenging the EWS quota.

While reading out the judgement J Dinesh Maheshwari said, "After delving with these aspects, conclusions are Reservation is an instrument of affirmative action by State so as to ensure all inclusive approach. It is an instrument not only for inclusion of socially and educationally backward classes." he further said,"Reservation structured singularly on economic criteria does not violate the basic structure of the Constitution."

"Reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible. Treating EWS as separate class would be a reasonable classification. Just as equals as unequals, unequals cannot be treated equally. Treating unequals equally violates equality under the Constitution," the court said.

Justice Bela M Trivedi said the 103rd constitutional amendment cannot be struck down on grounds of being discriminatory. Justice J B Pardiwala concurred with their views and upheld the validity of the amendment.

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 the marathon hearing that had lasted for six-and-half day, as reported by news agency PTI.

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

Tamil Nadu, represented by senior advocate Shekhar Naphade, had also opposed the EWS quota, saying the economic criteria cannot be the basis for classification and the top court will have to revisit the Indira Sawhney (Mandal) judgement if it decides to uphold this reservation.

On the other hand, the then attorney general and the solicitor general had vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50 per cent quota meant for the socially and economically backward classes (SEBC). Hence, the amended provision does not violate the basic structure of the Constitution, they had said.

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 central 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, 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.

The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that Parliament 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 Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.

Earlier, the Centre, in 2019, had also told the apex court that its law, granting a 10-per cent quota for Economically Weaker Sections, 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 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).