3-2 verdict: SC upholds validity of 10 per cent reservation for EWS; BJP, Cong seek creditfor quota

The Supreme Court on Monday upheld by a 3-2 majority the 10 per cent quota for the economically weaker sections (EWS) in educational institutions and government jobs, saying it was not discriminatory and did not violate the basic structure of the Constitution.

While Chief Justice U U Lalit and Justice S Ravindra Bhat dissented from the majority opinion that upheld the 103rd Constitution amendment of 2019, Justice Dinesh Maheshwari said use of basic structure doctrine as a ''sword'' to ''stultify'' the effort to do economic justice cannot be countenanced.

Justice Bhat, who pronounced the minority verdict, said the EWS quota on the ground of economic criteria was ''per se not violative'', but struck down the amendment due to the exclusion of poor among the SC/ST/OBC categories from its ambit. People with less than Rs 8 lakh gross annual family income are eligible for the EWS quota.

He further said the exclusion on the ground that the SC/ST/OBC categories enjoy pre-existing benefits is to heap fresh injustice on them. The CJI concurred with Justice Bhat's view. It is quite rare for a CJI to end up in the minority in a Constitution bench decision.

A five-judge constitution bench headed by Justice Lalit delivered four judgements on 40 petitions challenging the Centre's 2019 decision to grant EWS quota through the 103rd Constitution amendment. It was the last working day for the CJI who demits office on Tuesday after a short tenure of 74 days.

''Reservation is an instrument of affirmative action by the State so as to ensure all-inclusive march towards the goals of an egalitarian society while counteracting inequalities,'' the court said in the majority verdict, observing that the EWS quota does not violate the basic structure of the Constitution. Justices Bela M Trivedi and J B Pardiwala were also part of the majority verdict.

Rejecting the vehement submissions that the 50 per cent ceiling on total reservation as envisaged in the Mandal judgement was inviolable, Justice Maheshwari said in his separate 155-page verdict that treating EWS as a separate category is reasonable classification and the 50 per cent ceiling is ''not inflexible''.

A nine-judge bench in the 1992 Indra Sawhney judgement(also known as the Mandal verdict) had ruled that ''reservation should not exceed 50 per cent, barring certain extraordinary situations''. The EWS quota will be over and above the existing 50 per cent reservation to the SC/ST/OBC categories.

The pronouncement of a Constitution Bench judgment during proceedings that lasted 35 minutes on Monday was live-streamed for the first time.

Agreeing that reservation is an instrument of affirmative action by the State so as to ensure an all inclusive approach, Justices Trivedi and Pardiwala, however, said 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 as to become a vested interest.

The BJP and the Congress sought to claim credit for the EWS quota even as Tamil Nadu Chief Minister and DMK leader M K Stalin criticised the verdict and called it a setback to the century-long social justice struggle.

''Supreme Court upholds the legality of EWS reservation for unreserved sections. Another big credit for PM Narendra Modi's vision of Gareeb Kalyan. A big boost in the direction of social justice,'' said BJP general secretary (organisation) B L Santhosh, as party leaders hailed the verdict as historic.

Congress general secretary in-charge communications Jairam Ramesh said the EWS reservation was the outcome of a process initiated by the Manmohan Singh-led UPA government in 2005-06 with the appointment of the Sinho Commission, which submitted its report in July 2010.

Parliament passed the constitutional amendment bill brought by the BJP-led NDA government in 2019.

The court verdict evoked mixed reactions from activists, social groups and social media users. While some described it as a ''landmark decision'', others called it a ''blunder'' for breaching the 50 per cent reservation ceiling.

The Hyderabad-based group Bahujan Students' Federation Of India (BSFI) also questioned the apex court for breaching the 50 per cent quota ceiling.

Justice Maheshwari, who read the judgement for himself, said reservation is a means of inclusion of any class or section so disadvantaged.

Justices Trivedi and Pardiwala concurred with the views of Justice Maheswari and said the quota in jobs and admissions on the sole economic criteria did not violate the basic structure of the Constitution.

Justice Maheswari, at the outset of his pronouncement , referred to the questions which were deliberated upon by the bench saying the first issue was whether the 103rd Constitution amendment was violative of basic structure for providing reservation solely on the basis of economic criteria.

“Whether the amendment is violative of basic structure for excluding the poor among the SC/ST/OBC categories from EWS Quota,” he said about the second issue, adding that the third question was if the amendment violated the basic structure for breaching the 50 per cent ceiling limit of quota.

The majority opinion answered the three questions in negative.

Justice Trivedi said 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 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''.

In the minority verdict, Justice Bhat said that by excluding the poor among the SC/ST/OBC categories from economically backward classes the 103rd Amendment practices constitutionally prohibited forms of discrimination.

''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 apex court had on September 27 reserved the verdict 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.