Thread by @barandbench

[EWS Quota: DAY 2]

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

#SupremeCourt #EWS

Adv for petitioner: Yesterday I made a reference to State of Madras v. Champakam Dorairajan, 1951 judgment of the top court

#SupremeCourt #EWS

Adv: First census was held in 1972. The administration started noting the great imbalance in the caste and nobody knew the population of caste practically ruling state was not that big. This happened in Princely state of Mysore.

#SupremeCourt #EWS

Adv: It was seen that Brahmins who were just 3 percent of population had monopoly in state administration. Reservation was done here in admin first time

#SupremeCourt #EWS

Adv: the then maharaja to promote education among non-brahmins created hostels and allowed all in educational institutions and then said that reservation should be streamlined and be on scientific basis #ews

Adv: reservation has continued in Mysore except when Balaji struck it down and economic reservation was introduced. Maharaja Sahu introduced reservation in 1902 and all states followed suit and was given statutory recognition under GOI Act 1935 #ews

Prof Ravi Verma is arguing the above mentioned tweets.
#ews

Senior Advocate Prof Raviverma Kumar: For SC there is sanaction under clause 4 of Article 16 for ST there is a sanction under Article 16 and OBC also has a sanction after Mandal commission report. So what about others? mandal commission or state commission did not include

#EWS

Senior Advocate Prof Raviverma Kumar: Those who were educationally advanced or those not socially backward were not included. I will come to economic factor later

#EWS

Senior Advocate Prof Raviverma Kumar: all those rejected have now been given benefit of 10% reservation.

CJI: Sir, Champakam case was decided in the era when there was nothing such as Article 16(6). so your attack has to be on 16(6) itself

#EWS

Senior Advocate Prof Raviverma Kumar: I am trying to show how an unconstitutional power has been given the colour of constitutionality. though colorable exercise is not used to strike down a constitutional amendment

#EWS

Senior Advocate Prof Raviverma Kumar: the first part of the Article 14 deals with formal equality or doctrine of equal opportunity.

#EWS

Senior Advocate Prof Raviverma Kumar: State shall not deny equality before law and the second part is equal protection of law. first is to ensure that every citizen gets equal opportunity and the second is substantive equality where India emerges as a classless society

#EWS

Senior Advocate Prof Raviverma Kumar: These two doctrines operate in two different areas .. first is equality doctrine should be made applicable to all citizens and then reinforced through other constitutional provisions.

#EWS

Senior Advocate Prof Raviverma Kumar: The division of the country into thousands of castes had to be addressed and thus caste was inserted as a ground to prohibit discrimination in state action.

#EWS

Senior Advocate Prof Raviverma Kumar: Dr Ambedkar was denied drinking water, access to public spaces.. it was in this backdrop that angry babasaheb walking towards the area where drinking water on caste was prohibited and then drinking from there

#EWS

Senior Advocate Prof Raviverma Kumar: I recollect the temple entry movement, untouchables were not allowed entry in the road. Then came Satyagraha... such was the prevailing situation and thus this clause 2 became important #EWS

Senior Advocate Prof Raviverma Kumar: all this compelled Dr Ambedkar to write his magnum opus Annihilation of Caste

#EWS

Justice Bhat: they did not have an expansive understanding of Article 15(1) so if there was an aided institution of community, they were not in a place to deny it

Senior Advocate Prof Raviverma Kumar: What is missing is discrimination on the basis of sex

#ews

CJI: was it sex or place of birth

Sr Adv Kumar: education for girls was provided mainly in girls schools or colleges and society was not ready for co ed education. Madam curie had to disguise herself as a man..this was in France.. imagine in India

#ews

Sr Adv Kumar: even if we read Article 16 clause 1, both advance doctrine of equal opportunity. This is relevant for our case. #ews

Sr Adv Kumar: As a chairman of backward classes commission, I saw Karnataka has 29,000 villages and all scheduled castes are kept out even today. all villages across India have kept out so called untouchables. #ews

Sr Adv Kumar: We never fought apartheid in India. This is nothing but Apartheid. #EWS

Sr Adv Kumar: Who were the ones who were prohibited entry? Are they the EWS ones? I am pretty sure no. If the eligible ones are not EWS then why they sent their children to be bonded labourers. they come from lowest strata. This is because:

-In India caste decides everything.

Sr Adv Kumar: caste decides everything - status, occupation, education level. Article 23 and 24 liberated them from the clutches of landlords, upper castes. so that they can go to school or be cheated and used by landlords.

Sr Adv Prof Raviverma Kumar: it was done to liberate all Shudras, Dalits and Adivasis that articles 23 and 24 were incorporated, otherwise Right to Education under 15 or freedom of occupation under Art 19, or freedom of movement, cannot be realised.

#EWS

Sr Adv Prof Raviverma Kumar: Doctrine of equal opportunity will be farce if this is not looked at else rich will become richer and illerates will become more and more uneducated #ews

Sr Adv Prof Raviverma Kumar: the champakam case is almost in para materia and except women didn't enjoy the non obstante clause.. please mark, it is socially and educationally, not socially and economically or economically and educationally. No limit or suggestion was imposed

Sr Adv Kumar: For the upliftment of these sections- SCs and STs and backward classes and that was because it is not inequality created by loss of wealth or by accident but by birth. They were disadvantaged historically and that is why such a wide ambit was allotted #EWS

Sr Adv Kumar: now 15(4) is to bridge the gap between, Backward classes, scheduled caste and scheduled tribes and other castes. #ews

Sr Adv Kumar: Caste has a social and a hierarchical meaning. When we say that a person hails from this caste, it can mean, in rural area what is his social status or occupation. Dr Ambedkar unable to be in shackles of casteism that he walked out of Hinduism and embraced Hinduism

Sr Adv Kumar: everytime a reservation is challenged in court first argument is it is based on obsolete data or not current data... why so? when britishers conducted census it was a comprehensive one. Even now it is relied on #EWS

Sr Adv Kumar: Mandal commission calculated growth of population and projected the growth of each caste to 1987 and came to the conclusion that 58% of population of socially and educationally backward. #ews

Justice Bhat: Mr Kumar Please show us one state where there is a restriction showing that one section of the class has progressed. you can show and we will get an idea

#EWS

Justice Bhat: Give one example where there is an area restriction is placed.

CJI: Committee in Justice Barucha led one... Palghat etc.. those coming from Malabar were alone considered to be backward as an example #EWS

Prof Raviverma Kumar: If you recollect milord there was a criminal tribes act where the Britishers recognized some tribes to be so and if they went out of the area they were arrested

CJI: Situation was such that an FIR was registered as soon as a child was born for record #ews

CJI: Where are we leading now? we are waiting for your submissions... you have laid a good background.. but where are we going sir? #ews

Sr Adv Kumar: my first ground to attack is giving this benefit to a small fraction of the privileged class who are not among the backward class (enjoying near monopoly).. then what is the basis of the 10 percent quota.. it is manifestly arbitrary and fraud on the constitution

Kumar: here you are not giving 10 percent ews but you are taking away 10 percent from rest of the population and discard everybody coming under Article 16(4)

Kumar: Right to be considered for a state aided institution is a fundamental right and that right which was available to us as 50 percent is now shrunk and we are disqualified from even making an application in 10 percent quota #EWS

Kumar: 103rd amendment is an affront on the constitution. all rights taken away in case of this 10 percent. even in respect of one post i could not have been denied

#ews

Sr Adv Kumar: this 10 percent quota condemns me to a caste to which I was born because i am not allowed. I did not apply for a job or university seat under the quota. #EWS

Sr Adv Kumar: directive principles of state policy is a directive to follow the constitution and it cannot destroy the fundamental rights. All DPSPs are bridges to eliminate inequalities caused by discrimination
#EWS

Sr Adv Kumar: Please refer to grounds of prohibition in discrimination. Where is the mention of economic depravity? It is not a ground of discrimination. it cannot be permitted that you put economic criteria in 15(1) and then introduce a bridge by way of Article 15(6) #ews

Justice Bhat: economic basis is a recognised basis for classification. Its non enumeration under 15 and 16 will perhaps mean it is permissible

Kumar: What is permissible is already written. Can poor man be given cabinet berth or seat in rajya sabha. this is a misplaced provision

Kumar: this is not a remedy. A tubercolosis patient cannot be taken to the maternity ward. if someone is poor you give them money, help them in fees and hostels. #ews

Kumar: Equality code allowed economic factors to be taken into note. give them free hostel, free boarding and lodging.. but why give them quota instead of those who have always been denied jobs or place in an institution historically #EWS

Kumar: economically weaker category cannot be prescribed to without any criteria..like this anyone can be declared economically weak

Hearing to resume at 2 pm #EWS

Hearing resumes

Sr Adv Kumar: Please see Article 46 of the Constitution

#EWS

Kumar: Can Article 46 be used to exclude SC STs ?

CJI: but what about vertical reservation?

Kumar: but that is a classification and #EWS is not a classification. SC ST is excluded to compete. Reservation is a protection to designated sections so their opportunities not robbed

Justice Bhat: SC ST cannot eat into states of backward classes. So it can be said that SC ST is on a similar footing of backward classes. The reason why this exclusion is permissible is because it is another Constitutionally sanctioned class. #EWS

CJI: Concentrate on the target group..

Kumar: Article 46 itself says SC ST..

#EWS

Kumar: Class as understood should be a homogenous one and should have origin in race or religion.. Thus, just because they are economically weak they cannot become a class for any state action much less quota of 10% seats #EWS

Kumar: Where is the point of exploitation for EWS? Who exploited then? When they got exploited. Thus then 10% is not warranted by and Indira Sawhney says Article 46 protection is not available to economically weaker section
#Ews

Kumar: By introducing this provision there is an attempt to overrule Indira Sawhney. Let me refer to Justice Sahay's judgment ..it was in minority.
#EWS

Kumar: How will you test EWS is inadequately represented? Every unemployed fellow is inadequately represented.. beyond this family there is no criterion which can bring them together. Explanation to 15(6) lays down who are economically weaker section #EWS

Justice Bhat: There was an office memorandum saying if not Article 16(4) it can be 16(1). Justice Jeevan Reddy struck it down. So under the old regime it could not be done that's why the constitutional amendment #EWS

Sr Adv Kumar: what nexus can be there between poverty and providing jobs? Poverty can be a classification for social measures but for executive action cannot be made on economic condition else it would violate the equality doctrine

#EWS

Kumar: When did you exclude a poor man from EWS ? So many farmers lost lands in Karnataka.. after princely estates were abolished and inheritors became paupers, can they also use EWS. After demonetisation also people became poor. Thus these are only transitory provisions. #EWS

Kumar: the 103rd amendment is a militant violation of the basic structure doctrine #EWS

Sr Adv Salman Khurshid begins: In India there is a special area of affirmative action and that is reservation.

#EWS

Sr Adv Salman Khurshid: entire category of reserved persons in our country is based on caste. every protected class is based on caste and it is true about other religions also like Sikhism and Islam where people have come based on class which in someway based on caste

#EWS

Sr Adv Khurshid: from time to time this court has said that American Decisions are not binding ...but this..

Justice Bhat: But this may not be a good ruling since racial factor has been frowned upon as a tie breaker.. #EWS

Sr Adv Khurshid takes the court through the example of Israel, Africa, China.
#ews

Sr Adv Khurshid: Diversity can be one reason for affirmative action for a candidate one kind to be given an opportunity but that is different from reservation under 15(1) and 16(1). #EWS

CJI: Earlier counsel states that maximum that could be given to EWS could be 5 percent but now by your submission it is 2 percent #EWS

Sr Adv Khurshid concludes

CJI: Thank you. Okay now Dr Wilson

Senior Adv P Wilson: I am not Dr. This is P Wilson (smiles)

#EWS

Wilson: reservation purely on economic consideration is violation of the basic structure of the constitution. It destroys the identity of the constitution and the parliament has travelled in a forbidden area by invoking Article 368 by brute majority and trampled the rights #ews

Wilson: Gujarat ordinance 1 of 2016 was a replica of the 103rd amendment. This was challenged before the Gujarat HC. HC quashed the ordinance. #ews

Wilson cites Dayaram Khemkaran Verma vs Stae of Gujarat. " it is clear that reservation cannot exceed 50% and 50% shall be the rule. Exception is carved out only in certain extraordinary situation, as referred in the above paragraph, to make some departure by some relaxation.."

Wilson: ".... As we do not find any such extraordinary circumstance for making departure to 50% of reservation, we hold that reservations exceeding 50% by virtue of the impugned Ordinance also cannot be sustained..." #EWS

Wilson reads from Constitution Bench Judgement of Ashoka Kumar: it reads Non exclusion of creamy layer and inclusion of forward classes violates equality

Justice Bhat: we have to know the context

Wilson: Context is that exclusion of creamy layer #EWS

Wilson: what is the indicator of economic disadvantage. tomorrow they may say people without a car also falls in the same criteria.

Justice Bhat: wouldn't it be useful to refer to Article 366 of the Constitution, definitions.

Justice Bhat: So there is no definition of economically weaker..okay..
#EWS

Wilson: SC ST Backward class... constitution is overseeing the reservations. Articles 338, 338B, 340.... Constitution has seen authorities oversee these reservations but for EWS it is left to executive whims that too at state level. potential threat to equality #EWS

Wilson: because of the historical discrimination.. now it is called caste.. it was called jaati and varna. even a dead body they cannot take on the main road. #ews

Wilson: I dont want to quote Ekalavya and Mahabharata to show presence of caste. President of India was turned away from a temple and even a first lady was not allowed in the temple. so this is still going on #ews

Wilson: reservation is only to remedy the historical injustice. the structural barriers have to be seen, they were kept away from mainstream for generations after generations. Tamil Nadu was a front runner in this #EWS

Wilson: now which is weaker section as per Article 46. caste, social backwardness is not mentioned. it is a poverty alleviation scheme and to see the economic interests of SC ST is lifted. reservation is not a poverty alleviation scheme. #EWS

Wilson: I will take half an hour tomorrow

CJI: Very well. if it gets over in first half tomorrow then we will allow the intervenors. Mr Wilson just give us your views. not just paragraph numbers. #ews

Justice Bhat: you have to show what is the value of equality in the face of a constitutional amendment.... earlier OMs or executive OMs were struck down.. it is okay... but please see this is a constitutional amendment. counsels have argued on this, so labour on this point #ews

Justice Bhat: classification does not answer basic structure, remember that

Constitution bench rises

#EWS