Thread by @barandbench

Supreme Court Constitution Bench led by CJI UU Lalit begins hearing pleas challenging the constitutional validity of the 10% quota for the economically weaker sections (EWS) #SupremeCourt #EWS

CJI Lalit informed that AG KK Venugopal is on his way to court

CJI: We have not seen him in court for long. We are indebted. #EWS

The three issues to be looked into are: #EWS

- Whether the 103rd Constitution Amendment 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?

- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions? #EWS

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? #EWS

Dr G Mohan Gopal begins submissions on behalf of petitioners: this amendment is an attack on the constitutional vision of social justice, then I will project the character of the amendment as it cannot be understood on its face and its structure has to be understood #EWS

Dr Gopal: I will argue then how this 103rd amendment is a fraud on the constitution and how this violates the basic structure. So I begin with the foundation of social justice lies in the 85 word preamble. #EWS

Dr Gopal: When I am referring to justice it means social justice as it is first duty cast on republic. Justice is a standard of human conduct. Jus means right value of conduct. Amartya Sen's book on justice says its Jus + stice.. stice means a stand = stand for right value #EWS

Dr Gopal: All ruled based norm based conduct must be governed by the norms of the Constitution. It takes a lot of understanding to take this republic ahead with the concept of liberty, equality and fraternity and make it internalized to have it woven in.

#EWS

Dr Gopal: The constitution is a document of social revolution which casts an obligation on all institutions including judiciary to transform the status quo and translate into a new social order where there is equality in status & opportunity for all
#EWS

Dr Gopal: SC in 2020 also articulated a profound way of understanding constitution. In Prithviraj Chauhan judgment of this court
#EWS

Dr Gopal reads from Justice Arun Mishra's judgment: ".....The Constitution of India is described variously as a charter of governance of the republic, as a delineation of the powers of the state in its various manifestations ..."

Dr Gopal: ".....vis-à-vis inalienable liberties and a document delimiting the rights and responsibilities of the Union and its constituent states. It is more: it is also a pact between people, about the relationships that they guarantee to each other (apart from the guarantee

Dr Gopal: "...of liberties vis- à-vis the state) in what was a society riven1 along caste and sectarian divisions..."

Dr Gopal: "...That is why the preambular assurance that the republic would be one which guarantees to its people liberties, dignity, equality of status and opportunity and fraternity..."

Dr Gopal: "...While submitting the draft Constitution, he stated, on 21 February, 1948, that the Drafting Committee had added a clause about fraternity in the Preamble even though it was not part of the Objectives Resolution..."

Dr Gopal: ".. because it felt that “the need for fraternal concord and goodwill in India was never greater than now, and that this particular aim of the new Constitution should be emphasized by special mention in the Preamble.."

Dr Gopal: Sir, Ma'am, there is need for fraternal concord now compared to more than ever. This judgment assumes importance as it shows unanimous importance of the Constitution. #EWS

Dr Gopal: As per a global research report, 96 percent people of our country earn less than Rs 25,000. We need to yield to this 96% #EWS

Dr Gopal: if we eat up the reservation for backward classes then the entire platform for equality gets disturbed. If this amendment is upheld then it will be a fraud on the vision of Dr Ambedkar.

#EWS

Dr Gopal: time has come for this court to recognize in the basic structure a social justice code as it includes equality code and also the democratic form of governance.

#EWS

Dr Gopal: this amendment shows inequality and it neutralizes the basic agenda of supreme court to treat unequals as equals and this amendment is nothing but an assault on the constitution and it is similar to stabbing the constitution at its heart #EWS

Dr Gopal: if you are not a backward class you are forward class... it means eligible classes for EWS reservation is forward classes. it means that before you grant EWS reservation you have to see the social and educational background, thus just like Articles 15(4), 15(5) and 16

Dr Gopal: economic condition has been substituted with financial incapacity. Centre says 8 lakh per year limit and 66,000 per year is the criteria and below this was EWS and under 1000 sq ft land. This has to be compared with the report that 96 percent earn less than 25,000

Dr Gopal: this is a moral hazard of poor financial decision making, it rewards that behaviour. poverty is a solid well accepted economic criteria #EWS

Dr Gopal: Let us look at SC ST Backward classes reservation.. but caste is not the basis. Justice AN Ray had delivered a judgment on the same lines. #ews

Dr Gopal: we do not want an oligarchy to rule the country. not a forward class oligarchy or backward class oligarchy as when such thing happens policies are all formed favouring the same. we want representation. Even backward segments in Brahmins have given reservations. #EWS

Dr Gopal: In Kerala: I am ashamed to say that in my state a list of castes were rolled out and were listed tog get reservation. So the 103rd amendment is the only amendment which is a caste based amendment. #EWS

Dr Gopal: Equality code of the Constitution will be destroyed if forward classes are given reservation. Economic weakness results from social and educational backwardness. It is in our interest that all section have a voice in corridors of power #EWS

Dr Gopal: EWS reservation is focussed on individuals. But Article 2 of the Constitution focuses on inter group equality. Now I am moving to the violation of basic structure doctrine. This amendment nullifies the basic structure doctrines' core.. inter group equality #EWS

Dr Gopal: This amendment is a deceitful and a backdoor attempt to destroy the concept of reservation by granting this to the forward class. #EWS

Dr Gopal: people are getting confused as people are saying it is for economically weaker section but I am getting rejected. This plan has been implemented with such alacrity and this reservation has penetrated panchayats and it is being implemented as forward class reservation

Dr Gopal: the ground level reality is that this amendment is dividing the country on caste lines. it may not seem as it is in this hallowed chambers but this is the reality ! #EWS

Dr Gopal: this amendment is being seen as an instrument to protect the privileged and rather than safeguarding the marginalised. #EWS

Dr Gopal: representative state will protect interest of all but an oligarchic state will only protect the interest of the oligarchy. #EWS

Dr Gopal: Now let me show how this 103rd amendment is a fraud on the constitution. Justice Gajendragadhkar in MR Balaji case said: ".....When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the .."

Dr Gopal: "...action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra, vires the State's authority.."

Dr Gopal: "...If, on the other hand, the executive action does not patently or overtly transgress the authority conferred oil it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power."

Dr Gopal: Sir, I beseech you to strike down the 103rd amendment following the same reasoning. #EWS

Dr Gopal: There is a relation between Article 46 and the 103rd amendment. Govt says 103rd amendment implements the objective of Article 46. This is a blatant lie sir. The article says scheduled caste and scheduled tribes be protected.. but they are very much excluded!

Dr Gopal: This EWS reservation is a reservation for the forward classes only. This is the class which is the source of committing inequalities in the country. #EWS

Dr Gopal: the real underlying issue is the caste system today. While caste is justified using religion, it is political in nature. we will welcome any program to help those below poverty line or genuinely economically weaker... #EWS

Dr Gopal: before I conclude let me quote from the Prithviraj Chauhan judgment:

"When the framers of the Constitution began their daunting task, they had before them a formidable duty and a stupendous opportunity: of forging a nation, out of several splintered sovereign states.."

Dr Gopal reads: "...and city states, with the blueprint of an idea of India. What they envisioned was a common charter of governance and equally a charter for the people. The placement of the concept of fraternity, in this context was neither an accident."

Dr Gopal reads: "...nor an idealized emulation of the western notion of fraternity, which finds vision in the French and American constitutions and charters of independence. It was a unique and poignant reminder of a society riven with acute inequalities.."

Dr Gopal reads: "..more specifically, the practice of caste discrimination in its virulent form, where the essential humanity of a large mass of people was denied by society- i.e. untouchability..."

Dr Gopal quotes the below excerpt from the Prithviraj Chauhan judgment: I beseech this court to follow this reasoning and strike down the 103rd amendment

CJI UU Lalit: Very nice. Thank you

Sr Adv Meenakshi Arora to begin submissions after 5 minutes #ews

Sr Adv Arora: I submit that EWS amendment violates the basic structure doctrine..also the equality code and how the code determined reservation, what is equality #ews

Arora: even in terms of backward classes there has been numerous facets before they get the reservation. There is Article 340, a commission etc. Then there are special provisions for social and economic backwardness
#EWS

Arora: the class disadvantage owes its roots from structural and historical inequality.

#EWS

Arora: reservation which ignore the criteria of backwardness and bases it on caste or income. Any one criteria based reservation has been struck down in MR balaji and Indira Sawhney
#EWS

Arora: when it is reservation under Articles 15 and 16 the court has been cautious to lay down the guardrails. thus this court has zealously looked at who can avail reservation. One aspect is creamy layer.
#EWS

Arora: SC said that creamy layer for those who belong to backward categories are no longer backward as they are ahead of a threshold. marrying backward does not make a backward as it is a birth mark
#EWS

Arora: this morning I get an admission into an institute under EWS category. By afternoon my father gets a job which is much more than 8 lakhs and even then I am EWS. This shows how nebulous the criteria is. This excludes majority of population #EWS

Arora: reservation is class based but the EWS is caste based. Representation is a guard rail which has been built in and it cannot exceed 50%. reservations are not a poverty alleviation program and it was held in Indira Sawhney. #EWS

Arora: It is undeniable that equality is basic part of the basic structure and in India we have adopted a specific manifestation of equality. #EWS

Arora: nature of disadvantaged which is encompassed under Article 15 and 16 cannot be overcome by good luck or an individual effort. It is ingrained and entrenched. #EWS

Arora: Equality as per constitution means from where all can compete from an equal starting point. Justice K Subba Rao said that when you go for a race, an ill trained horse has to be on par with a well bred horse #EWS

Arora: reservation for EWS is not intended to ameliorate to address inadequate representation.

#EWS

Justice R Bhat: Article 16(4) speaks about representation and Article 16 does not speak. essentially it means empowerment. Article 15's idea is representation and access to resources, places of public importance. those who have representation they are given it
#EWS

Arora: in our submission that does not meet with our equality code at all. The phrase used in 103rd amendment is sections and not class. #EWS

Justice Bhat: basically your proposition is that it is only for backward classes and representation is not proportionate to the population

Arora: It becomes contrary to the equality code #EWS

Sr Adv Arora: this court has struck down economic criteria as a single criteria for reservation.

#EWS

Hearing to resume at 2 pm
#EWS

Sr Adv Meenakshi Arora resumes submissions #EWS

Arora: Article 340 was structured to remove backwardness. Economic criteria alone was discarded as a measure..now on to the impact. There is an end point when they are adequately represented. EWS has no end point and no guard rails #EWS

Arora: Now on violation of basic structure doctrine. This 103rd amendment excludes SCBCs which damages the heart of constitution which is on equality. excluding sc st obc to avail #ews benefit goes against the right to equality

Arora: backward people are poorest poor and it is them who need the reservation. Thus the justification if any given will appear to be fallacious. The 103rd amendment is also violative of Articles 15 and 16.. most vulnerable is not represented and poorest of poor excluded #EWS

Arora: To pretend that EWS and backward class both need reservation is not proper. Economic disadvantage is neither entrenched nor enduring. It is temporary and it's based on individual disadvantaged which can be remedied with money #EWS

Arora: There are also forms of horizontal reservation which we made for disability

Justice Dinesh Maheshwari: How can horizontal be asked here ?

Justice Bhat: The effect and impact is vertical. For gender reservations also, man is discriminated against but that is permitted under Article 15(3)

CJI: In a vertical category which is open. There is a sub vertical which is 10%

Arora: Today the way EWS is worded..

CJI: we are trying to consider whether reading down the amendment is possible or not ? #EWS

Sr Adv Arora quotes the Nagaraj judgment: in matter of application of principle of basic structure, twin tests have to be satisfied namely the width test and the test of identity..

CJI: that was in context of express language of Article 16

Justice Bhat: more than that part what is relevant is the test of width and identity

Arora: but there are no guardrails at all..

CJI: Yes you are correct on that.. there is nothing.. #EWS

Justice Bhat: The original constitution also thought of reparative channel which did not have guardrails.
There cannot be a departure. First amendment uses same words. Answer could be that women are a class which are recognised and identified easily #EWS

Arora: Article 15(1) has gender, sex, specifically...

Justice BHat but no one knew that it would create a reservation unless the Thomas judgment came up

Arora: yes milord #ews

Arora: Now let me read the Jayshree Patil judgment, everything said here ameliorates economic criteria of the backward class and when that happens there is no need for reservation.

Arora: everywhere in the world when reservation is made in Canada, US etc.. its based on race etc, no where it is economic criteria as it is a very nebulous criteria which can be easily overcome.

Sr Adv Arora concludes #EWS

Sr Adv Sanjay Parikh begins: criteria for backwardness as discussed in constituent assembly debate was social backwardness. This is due to the humiliation, historical injustice. this is for them to participate #EWS

Parikh: Sharing of power is important. if we bring in any other criteria in it we are violating the constitutional principle and anyone else apart from the ones who suffered historical injustice cannot be included. #EWS

Sr Adv Parikh: here the objection behind reservation was to ensure adequate representation of SEBCs milord

CJI UU Lalit: lets move on

#EWS

Justice Bhat: idea of social justice, meaning of social disadvantaged.... all of this is like pushing an open door Mr Parikh. We discussed all this whole day. Tell us something new

Parikh: each idea is interlinked hence some repetition #EWS

Parikh: the point is not only a backward person cannot take part but if the BC person comes under the EWS criteria.. then also they cannot take part. this is what arbitrary in 103rd amendment. #EWS

Parikh: Economic criteria is not a part of the equality code under Article 14, 15,16 #EWS

Justice Bhat: when it comes to weaker sections there can be other weaker sections like the socially disempowered, What Justice Sawant says is that Article 46 is for the larger mass and how affirmative action is needed

Parikh: but affirmative action cannot be reservation

Hearing concludes for the day
Constitution Bench rises
#EWS #SupremeCourt