Thread by @barandbench

[EWS Quota: DAY 3]

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

Senior Advocate P Wilson argues: The word in Statement of Objects and Reasons of the 103rd Amendment they have used wird 'weaker section'. This is with the intention to open it to other classes. Please see how equality has been violated and basic structure has been altered

#EWS

Wilson: They have altered the equality clause by bringing in monetary equality and the constitution never recognised this concept of equality. It is not class specific but person specific.

#EWS

Justice Bhat: You are reiterating. The only point you can consider is what is the point of violation which offends the basic structure in the next 10 minutes.
Justice Bhat: You are reiterating. #ews

Justice Bhat: The only point you can consider is what is the point of violation which offends the basic structure in the next 10 minutes. #ews

Justice Bhat: Mere violation of fundamental rights, the court strikes down the action, but is such a violation enough to offend basic structure or strike down constitutional amendment. Something on the lines of Nagaraj judgment. Are you saying delegation is impermissible?
#ews

Justice Bhat: what you are saying is that if government comes with a consequential amendment by carrying out an commission it suffices.. is it?

CJI: You have to show EWS violates one of the postulates of basic structure

Wilson: yes it violates equality code milord #ews

Wison: monetary inequality was never thought in the constitutional scheme and it violates the equality code and thus the 103rd amendment needs to be struck down #ews

Sr Adv Dr KS Chauhan: Kesavananda Bharti judgment held that power to amend does not include the power to alter the basic structure. Like it was asked that there is reservation for women but it can be seen that it was done to remedy the notion that women are inferior to men #ews

Chauhan: Constitution of India notes India as a sovereign, democratic, socialist, and secular republic. It was just sovereign, democratic republic earlier before 42nd amendment and the country was more secular than before the amendment #EWS

CJI: please give us some extra inputs? This has been the tenor of submissions by mostly everyone #EWS

Chauhan: suppose there is discrimination in society based on economic conditions then you can have EWS. But discrimination is based on social conditions. In this country people are stopped from entering into temples and all this is based on caste #EWS

Chauhan: EWS reservation is not based on intelligible differentia and neither it has a relation to the object sought to be achieved. #EWS

CJI: Anything else Dr Chauhan? Please elaborate the tabular chart given by you

Justice Bhat: Sinho committee has taken note of this as well

#EWS

Chauhan: When SC ST reservation was granted.. 4 such SC ST person were burned alive in Gohana and the one who killed were forward classes and now they are recognizing themselves as backward classes. Those who are better placed should pave way for the deprived #EWS

Chauhan: we are in a democracy and democracy is based on deliberation. This constitutional amendment bill was passed in Lok Sabha in January 8, In Rajya Sabha on 9th January.. i could not find any debate

CJI: Very difficult to enter this arena

#EWS

Chauhan: CJI Ramana had noted that there are no discussions in parliament..

Justice Bhat: we cannot enter that. we are barred. this does not concern a legislation

CJI: If we are not going to go into it then why debate this?

Justice Bhat: we are losing energy then

#ews

Adv Yadav Narender Singh: EWS cannot be called a homogenous class. Cites sinho commission report..

Justice Bhat: we are on constitutional amendment... ultimately it is basic structure doctrine. We are not on data. if data then govt will conduct another study thats all

CJI: We are asked to look at Articles 341, 342.. principles of constitution that some sections need protection.. harp on that

Singh reads the Jayshree Patil judgment.

CJI: Very well. Thank you sir

#EWS

Singh concludes: 70% are not so well off in India, then granting EWS is violative of basic structure. this in alternative, EWS could be given to BPL category because we have data on that and that is an alternate submission #EWS

Advocate Shadan Farasat: while supporting all others who argued, reservation can be an anti deprivation measure as done in 103rd amendment and I will proceed on that assumption. #ews

Farasat: But excluding backward classes from such a measure who are poorer from forward class =, it is a direct breach of equality code as it violates both formal and substantive equality. #ews

Farasat: If the court agrees with that then text of Article 15 and 16 could be read to exclude backward class or one which includes. this court will take the one includes the inclusion..

CJI: yes it can be read down.

Farasat: Farasat: i am from Bihar. My apartment complex guard in Delhi told me that he makes 16,000 in Delhi and it is difficult to maintain family of five and that he is upper class. #ews

Farasat: thus i take EWS is for upper class poor. but even then exclusion backward class from it violates equality code. #ews

Farasat: exclusion of backward class violates equality code. Taking this example only, this translates to 2 lakh per annum and the criteria for EWS is 8 lakh which is atrocious. it drives a coach through the heart of the equality code. #ews

Justice Bhat: Indira Sawhney did not deal with constitutional amendment and thus it is obiter so as to say.

Farasat: the factum that backward classes are poorer is accepted by all and there is a consensus in that. Let us look at some data

CJI: We do not need a data

#ews

Justice Bhat: you are saying that there is more equally disadvantaged among the disadvantaged one and thus it violates the equality code

#ews

CJI: Nobody denies a fact that historical discrimination leads to economic disadvantage as well. Idea with which ews amendment excludes others is because they are already covered under the umbrella of other protective schemes. This is the core issue

Farasat: quota for backward class is for separate purpose. It is for a group and it is targeted towards correcting a historical wrong or injustice. so my position within that group... that quota is completely agonistic. #ews

Farasat: EWS is a different animal and it speaks to individual on economic condition of that individual. to say you have sc st bc quota so you will be denied EWS is fallacious since they target completely different groups. #ews

Farasat: It is like saying if u get free rice as per sc st quota you wont give me rice at all.

CJI: Economic upliftment you mean

Farasat: inclusion in one cannot mean exclusion in another #ews

Justice Bhat: tell us what is wrong in singling out economic condition and is it cast in stone that it has to be based on caste? #ews

Farasat: reservation is an aggressive way to address a problem. Not every country has it. We have to see experience of poverty and not any specific income level. backward classes have more intense poverty and more stickier

Justice Bhat: the better word for it will be persistent

Farasat cites data from IHD survey of 2011-12 by national council of economic research and NSSO Data from 1996-2001

Farasat: this is the most prestigious data. 2012 figures, all over India, SCs are at the bottom. They're much more represented in the bottom

Farasat: It is multidimensional and the outcome of this is that backward classes are overrepresented in the poor categories and forward classes are underrepresented milord

CJI: so they are not represented much in higher echelons #ews

Farasat: Poor Dalits are worse off that poor Brahmins in terms of income and wealth here...it is not a submission that Upper caste poor are not beneficiaries but by their own perception, they did not see themselves as poor but Scheduled castes did. Poverty is linked with caste

Farasat: reads the Sinoh Commission report: all backward classes have a higher number of BPL and higher percentage too. Now how does it impact basic structure. I can breach formal equality if substantive is saved.. but if both breached then equality code falls #ews

Farasat: exclusion on based of class violates formal equality..

Justice Bhat: are you saying that Article 16(1) and (2) part of basic structure..?

Farasat: it has to advance substantive equality.

#ews

Justice Bhat: core constitution addresses this

Farasat: people whose group has not suffered from non representation but has been subjected to injustice can also be part of substantive equality. But exclusion does not advance substantive equality #ews

Justice Bhat: so if exclusion is done away with then 50 percent limit can be given a go by.. then what..

Farasat: 50 percent rule is not a part of basic structure ,,it can be exceeded till it adheres to substantive equality. #ews

Farasat: when a constitutional text is being interpreted the literal rule of interpretation is not followed but the constitutional purpose is seen. if two interpretations are possible then the one protecting the basic feature of the constitution is taken into account #ews

Farasat: In Keshav Madhav Menon this court held that interpretation of the constitution will be on the basis to uphold the spirit of the constitution and must be give purposive interpretation to give meaning to the true core of the constitution. #ews

CJI: What is the purpose of the amendment? You argue that maximum mass who will be eligible for this is OBC, EWS and they get largest share..

Farasat: if its read down then major share yes

CJI: To rhetorically say all of them will get is something different. #ews

Farasat: .its about 27 percent for SC, 27 for ST and another for OBC at centre. so now they get EWS too.. is thats what was envisioned? #ews

Matter to continue at 2 pm

Farasat: there can be EWS and can be forward class based is only when they are economically weaker. When 2 interpretations is possible bench will lean in favour of the one which strengthens the basic structure and not weakens it #ews

Justice Bhat: This kind of formulation is very general. As CJI Chandrachud said you cannot use it to interpret a statute.

Farasat: then the 103rd amendment has to be struck down

Justice Bhat: nothing is sacrosanct. it all depends on what is presented before court

Justice Bhat: you are taking a constitutional amendment headon so the argument has to be a little different

Farasat: on analogy it does not militate the bench from using the interpretation which favours the basic structure doctrine. #ews

Adv Shadan Farasat concludes.

Farasat acknowledges the names of all his juniors who contributed to the research: I am only a speaker. It is all their work

CJI: Very well Thank you #EWS

Advocate Diya Kapur cites the constituent assembly debates to explain the origin of the term backward class and the Article 16
#ews

Kapur: govt jobs is not put money in pockets of people, there are fees concession etc. govt job means becoming part of govt. reservation is not for poverty alleviation. #ews

Kapur: If EWS is in contravention of 16(1). Then it cannot stand on the basis of 16(4). It has to be in furtherance of Article 16(1). #ews

Kapur: character of fundamental rights is being sought to be changed through this amendment. 103rd amendment discriminates against SC ST and solely on the basis of class. When medical exams results were out, EWS cut offs were much lesser #ews

Dr. M.P. Raju: it is nothing but a clever drafting of rejecting. There is a clear exclusion. Does it affect the secularism feature to the extent it destroys other features. Similar fraternity.

CJI: Concentrate on the matter in hand #ews

Dr Kaleeswaram Raj: Every SC ST or backward class candidate is also a general candidate unless they claim it for reservation. An SC right to be considered as a general candidate based on choice is taking away by the exclusionary nature of 103rd amendment #EWS

CJI: All of this has been argued..

Dr Raj: we have to approach the living tree concept for the basic structure

CJI: We have to see what area violates the basic structure #EWS

Adv. Pratik R. Bombarde: There is a negation of merit which takes place here through this amendment. In words of Dr Mohan Gopal breaching the equality code will be a fraud on the Constitution #EWS

Adv Aakash Kakade: Kakade: when something is adopted there be shouldn't be exclusion because it will negate the intention of having them in the Constitution.

CJI: Just give us the source of data you are quoting

Kakade: economic backwardness cannot be mere yardstick #ews

Adv Sachin Patil argues:

CJI: But your name is not there. We can just get up and leave now. You are all counsel of this court and you all should help us

#EWS

Sr Adv Gopal Sankarnarayanan appears for Youth for Equality:

CJI: We haven't heard anyone from forward community saying that our chance is being taken away

Gopal S: This was long overdue and EWS reservation is welcome. #EWS

Gopal S: In both 15(6) and 16(6) language is a little different in arrangement of words. Minute Constitution says in addition to existing reservations, you are cementing the reservations existing through Constitution. These existing ones have a percentage

#EWS

Gopal S: since its a living constitution, we have to look at this clause in a different way.

Justice Bhat: addition could be existing categories or existing when point of reckoning comes...virtually this is a fetter. if you take liberal interpretation that will not help Court

Gopal S: there is no obligation for EWS quota. For basic structure, the task is to tell you what is being violated and that what is being violated is much higher than just the basic structure. Indira Sawhney judgment is no longer relevant to decide this question

Gopal S: Now if basis of the judgment is properly removed by constitutional amendment then Indira Sawhney is not the way. But when basis is not removed, we move further ahead. #EWS

Gopal S: Last 10 amendments of the Constitution are under challenge before the court and in some judgments have been delivered

Justice Bhat: There is one judgment on 73rd amendment...

Gopal S: i will try to establish that the 50 percent ceiling in reservation is part of basic structure. 130 judges of this court though 75 years has cemented something down, perhaps there is reason for that

Gopal S: Constitution today says in addition to existing reservations.. this means the limit is breached and is recognised. So these 6 words should be taken off since the ceiling limit is the part of basic structure #ews

Hearing to resume on Tuesday before the Constitution bench
#EWS #SupremeCourt