Thread by @barandbench

[EWS Quota: DAY 4]

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

An advocate seeks to mention a fresh writ petition supporting the 103rd Constitutional amendment

CJI UU Lalit: we cannot list it now
We are half way through

Adv: I am sorry but..

CJI: We are also sorry

#EWS

Adv: I will take 5 minutes

CJI: we will see as when matter ends.. but we will not list it #EWS

Adv Kanu Agarwal submits that a list has been prepared showing EWS reservations in different states

Senior Adv Gopal Sankarnarayanan appears

Justice Bhat: your submissions are of 6 pages. You had earlier given only a page note. This is what we wanted to avoid #EWS

Gopal S: My first submission is either challenge to EWS classification itself in Constitution, challenge should proceed on basis that the basis of judgement has not been properly removed #ews

Gopal S: or you say that there cannot be an EWS classification at all...here interpretation of backward classes in Articles 15,16 had included weaker sections however Indira Sawhney declined #EWS

Gopal S: then caste classification was done due to the Indira Sawhney judgement. This is not a classification which creates a caste basis it is the opposite. For excluding backward castes there is no violation of equality code. I have attached a diagram #EWS

Gopal S: I submit that in this case a commission is necessary since when EWS issues come up, a commission may be necessary #ews

Gopal S: There is a diagram of the three concentric circles. The middle is SC/ST- their definition, special provisions provided to them, commissions for them. Outside those are other backward classes. Outside of that is EWS, a new creation. #ews

Gopal S: Everyone outside the large circle and not inside the inner circle are covered by EWS. The reason why it is not casteist is because it includes poor muslim,poor Christians, poor Sikhs and such ones.. #ews

Gopal S: The moment you include caste as a starting point you exclude muslims, Christians and so on..

Justice Bhat: not a correct understanding

Gopal S: Very well taken #ews

Gopal S: The insertion of EWS is valid for their advancement, admissions, reservations in post. The mere naming of the EWS as a class cannot be considered violative of basic structure of the Constitution since they are granted same in housing, admission to schools #ews

Gopal: 25 percent of every private school in this country is reserved for sections of this class. So the EWS is being catered too. #ews

Justice Bhat: Kesavananda Bharathi was dealing with law and interpreted 31A and 31B but 31B was not in question there

Gopal S: it would not be fair to argue that EWS classification violates the basic structure doctrine. #ews

Justice Bhat: Entire rubric of class is an identifier and other indices of backwardness has to be there and thus meaningful exclusion has to be there

Gopal S: Cate has nothing to do here. It disappears when creamy layer is excluded. #EWS has nothing to do with caste

Gopal: hope one day there is a day where we use less and lesser of caste and caste comes to an end and EWS increases from 10 percent to 20 then 30 and one day 50. #ews

Gopal S: Kerala has 40% for OBC...EWS takes it beyond 50%. the clear winner is Tamil Nadu of course. Many states have not even activated EWS. this is the extent of political reservation.

Gopal S: EWS is not leading to caste exclusion. it is only attaching a brick in this quota structure to show that let us take care of those not covered and this is 30 years after Indra Sawhney

Justice Bhat : It's the first time Article 15 uses the word reservations. So they're recognising that 15(4) has reservations. So a liberal interpretation has to be given. So it is 0 plus 1

CJI: So the provision itself does not become redundant

Justice Bhat: you are also looking at the larger picture. Not only state wise

Gopal S: It says state can make any special provisions

Bench discusses #ews

Gopal S: reading from a judgment: ...enabling power under Article 16(4) cannot be rendered invalid

Justice Bhat: but this is recognising that there is a limit notwithstanding the 50% limit. may be 16(4)(b) is the reason why 16(6) was constructed in this way #EWS

Gopal S refers to Sr Adv Fali Nariman's article in Indian Express: Supreme Court’s basic structure doctrine in a new context #ews

The concept in all reservation matters has been balance.. balance of competing interests, balance in receiving measures from the state: Gopal S #EWS

Gopal S: While historical inequalities have existed and there have been other inequalities, there is no greater inequality than income inequality. Parliament has sought to remedy this very thing #ews

Gopal S: My final suggestion on the commission.. one is the presence of guardrails like data etc.. i submit that guardrails are specific and it will efficiency of service as applicable to SC ST. #ews

Gopal S: Saying that in absence of guardrails constitutional amendment should fall is not correct. Here the guardrails are very specific.

Sr Adv Gopal Sankaranarayanan concludes #ews

Counsel for Tamil Nadu: Principle of reasonableness and absence of arbitrariness are part of Art 14 and it has been held to be the soul of Constitution. If you look at Indra Sawhney: "A caste is a social class in India...several other groups that are backward for article 16"

TN: Article 14 is now a part of basic structure and it is a principle of equality and Question is economic criteria by itself would violate the principle of economic criteria.

TN: In Indra Sawhney it was held that any classification on economic criteria will be violative of Article 14

CJI: But it was then and as per then circumstances.. you have to speak about now.

TN: Then it has to be seen if the parliament can form a new principle of equality

TN: If this court holds that economic criteria can be basis for classification,this court will have to revisit Indira Sawhney and that cannot be done. Can we think of reservation for upper classes as within principles of equality?

State of TN Concludes
Hearing after 2 pm
#EWS

Intervenor: Economic criteria cannot be the sole basis of this classification. Union cannot take shelter under Article 46. Article 46 is not applicable. The basic structure of 50% cannot be violated. Reading down not possible in this case, I am relying on Minnerva mills

Intervenor: This is a vertical reservation for the forward class. This is in garb of EWS. Purely a forward class reservation and is it contemplated in the constitution and does it violate the equality code.

Intervenor: This is like granting reservation to the social and economically advanced class. Till today there is no single judgment saying weaker section is forward class. It only means backwardness. #EWS

Justice Bhat: generations of people are poor, lakhs are poor, stats too show this. What about them who are at the base level? Those who are beneficiaries of MNREGA. It is from this angle we are looking at economic criteria

#Ews

Adv: But it is not under Article 46. Govt has to support all needy and not exclusively support the forward class
#EWS

Intervenor: This 10 percent quota destroys the basic structure of the Constitution. #EWS

Adv Sachin Patil: This matter needs to be referred to a larger bench of 11 judges since it involves relook at Indra Sawhney judgmemt

All India OBC Quota Students union: The question is being raised on generationally poor. There may be a person who may have land etc and still may get that

CJI: Dont get into this. be on conceptual plane. dont repeat the submissions #ews

Justice Bhat: If we look at tribes, there are families who have seen development, equally there are families who have not seen anything

Attorney General For India KK Venugopal begins submissions for the Government of India: #EWS

AG: Some of the contentions stating to be violating the basic structure is addition of 10% to the general category for the benefit of the EWS would exceed the 50% limit and that is not accepted by this court except in exceptional circumstances #ews

AG: Benefit today of EWS reservation would violate Article 14 and this has been argued by petitioners. please refer to Article 15(4) which is an enabling provision. #ews

AG: This amendment is an affirmative action for the weaker sections of the society. SC ST OBC are a self contained section based on backwardness in so far as they are concerned. Then you have general category which also has weaker sections as recognised by 15(5) and 15(6)

AG: total population of EWS of this country is 25% which means 140 million.

CJI: Do you have any data to show what percentage of EWS is in entire population of general category?

AG: It is 18.1% of entire open category

Justice Bhat: this is Sinho commission report #ews

Justice Bhat: last census was in 2011. what has been the update since then? what is the updated status? #ews

AG: The 50 percent is not breached since balance of 50 was to remain for general category. A large population of this country who are meritorious will be deprived to apply for jobs in government service and educational institutions #ews

AG: So far as 50 percent for backward classes exist, it was held it cannot be made into a excessive reservation. EWS is not getting any excessive reservation, only the poor among the general category is getting this #ews

AG: EWS reservation is an evolution. It does not erode rights given to SC ST OBC. This is independent of 50%. Question of it exceeding and violating the basic structure does not arise #EWS

AG: SC ST are loaded with benefits due to affirmative action and they are not equal with EWS as they are highly unequals. EWS cannot be segregated in regard to a homogenous group such as the scheduled class. #ews

AG: SC ST has far additional advantages to them since they are backward compared to EWS in General category and thus cannot be segregated into a homogenous group #ews

CJI: there is something very urgent and thus we have to rise today.

SG: Hope it is nothing serious

CJI: No No...

Hearing to continue tomorrow

#EWS