Thread by @barandbench

[EWS Quota: DAY 5]

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).

Attorney General for India KK Venugopal to argue

#SupremeCourt #EWS

A lawyer seeks to submit before the court that he wishes to argue on behalf of Respondent No 3

CJI UU Lalit declines request

#ews

AG: The 50% limit was introduced Balaji onwards so that nothing eats into the right of the remaining class that is the general category. There was a duty on the state cast by directive principles through Article 46 to ensure equality and thus new innovation such as #EWS quota

AG: This innovation is with regard to separate and distinct group. #EWS

CJI: OBC above creamy layer gets reduced from 50% to 40%. Nobody from general category has argued but this point needs to be addressed..

AG: Balaji onwards..

CJI: are you suggesting that 10 will get subsumed within 50 or will be above

AG: 50 percent is not being eroded

CJI: It has been argued that 10 percent is eating the field available to the open category. There is an issue that if Balaji is adhered to then 50% has to be made applicable to open category and cannot be eaten too #EWS

CJI: For open general category it will be 50% before 103rd amendment but after this it is 40%> so can the open category compete within EWS? They cannot thus it is 40 percent for them #EWS

AG: Nothing has been altered for SC-ST, OBC and OBC will be in advantageous position since creamy layer has been skimmed off. But qualitatively the purpose of EWS quota was not to touch the 50 percent reservation. This 10 percent is in a different compartment

AG: Once this court comes to the conclusion that 103rd amendment is valid and upheld, there cannot be qualms about the reservation granted to other categories. #ews

CJI: What is argued is when you say general category it does not mean general population minus those under 15(4) and (5). it means open merit. It is said moment 50 percent is reduced to 40 percent, the chances of meritorious candidates to walk in general category reduces #ews

CJI: It is being said SEBC and OBC income criteria becomes the norm and they become creamy layer thus they are not under reserved quota and cannot claim EWS as well.

AG: I use the word unreserved category instead of open category #ews

Justice Bhat: i checked every state has BCs and in Bihar there are some 25 muslim groups, MP has 15 to 20, In Bihar converts from Dalit are also called backward. caste reflects society. EWS cannot be called classless as well. identity of caste and community cant be denied

AG: Mandal commission was based on what I said. Unfortunately, castes are homogeneous groups through which runs the thread of backwardness. So far as rest are concerned, they don't have any reservations. It consists of Hindus, jains, parsis, muslims and so on

AG: Here 25% of population in absolute terms..this means 350 million are poor. Can state be forgiven if they allow them to continue in the same condition? Refers to the Sinho commission report

Justice Bhat: AG, out of 100 general, 18.2 are the poorest. Out of 100 OBC, 38 poorest

AG: if the EWS amendment is seen, it is a progressive state thinking about the citizens who are struggling to afford one square meal . Here ensuring dignity is a constitutional mandate.they are living in slums, jobless, in cottages #ews

AG: EWS is not 10 percent but upto 10 percent and it is upto the states to determine the extent of the economically weaker section. This would lead to participation in this and thus alleviate their social and economic conditions. Thus 10 percent is not the fixed one

AG: EWS is for people who dont go to school, they have to be compelled to go to school. They just cannot get admission where they want. This quota ensures they are also getting opportunities & one day will become when this 10% will reduce and this is just enabling provision

AG: This section faces overwhelming poverty and there is no difference which can be made between EWS and the backward classes. There is not much difference. #ews

AG: This is an extraordinary situation where casteless section of society for the first time have been recognised and been given economic benefits. Thus the 103rd amendment cannot be faulted with. #ews

AG: Can unequals claim they be given the same benefits of a separate group, a group which is clearly deprived and is not equal, that is the question

AG refers to cases to impress on the point
#EWS

AG: The 10 percent falls into a different compartment and compared to the 50 percent granted. this EWS wont be an addition to 50 percent and even if its assumed as an addition, it is an extraordinary situation giving the benefit to EWS

AG Venugopal to resume at 2 pm and SG Tushar Mehta to continue thereafter #EWS

AG Venugopal concludes citing that EWS reservation does not violate the basic structure doctrine #ews

Sr Adv Mahesh Jethmalani for State of Madhya Pradesh: regarding inequality inherent in the 10% reservation as far as Ews reservation is considered, if EWS upheld the creamy layer and existing reservation is also justified

Jethmalani: by these amendments are we destroying the idea of constitution. That is the question #EWS

Jethmalani: Neither the mandal commission report not it's term of reference contained anything relating to the EWS. #EWS

Jethmalani: We are saying Article 15(4) cannot be held to be exhaustive of the concept of reservation #EWS

Jethmalani: ironically while Indra Sawhney lays down economic criteria shall not be criteria for inclusion but the same is happening with creamy layer but being excluded

Justice Bhat:was creamy layer there during Indra Sawhney ? It was only there as a concept and not implemented

CJI: You were trying to give something to have nots at the expense of haves. But now it will be reverse. It will be for the person not from the better lot but from the area of Art 16(4) and Article 16(5) #EWS

CJI: now you are reducing share of pie who could have got seats on own merit in general category?

#EWS

CJI: suppose there are 5 percent seats for Muslims and there could be more meritorious muslims than this 5 percent and the last person in this category could be less meritorious than who left out. Idea is open general category has to be open. Idea is share is getting lesser

Jethmalani: If after 30 years there is no progress then the entire reservation is a failure.

CJI: Question is if the open category is being eaten into and if their share is less then is it violative of the basic structure? #ews

CJI: OBCs who are above creamy layer, for them scope is only 50 percent. has not that got reduced due to this 10 percent. Isnt everyones pool which was open for merit has shrunk now and if shrunk then it is at whose expense

Jethmalani: it has shrunk

CJI: Haa... #ews

Justice Bhat: when you talk of OBC then it is homogenous class. for EWS too there is a class. Here exclusion is hurting and the only way you reach the target group like who earns 50,000 a year etc is only by means of exclusion. #ews

CJI: You have identified such classes who need protection. Now you have considered the target class who needs protection. so now you say that you will get reservation in this criteria but we will not allow you to travel from this arena to that arena. #ews

Justice Bhat: like you end up discriminating on basis of caste at the most basic level of education.

#ews

CJI:This is a slightly unconnected example.. in election law, there could be reservations for certain wards for SCs/ST... they can compete in general ward. But general candidates cannot compete in that ward. Can you tomorrow create a separate ward and exclude SC/ST from competing

Justice Bhat: does the framework of equality tolerate such a kind of reservation which is a new kind of category. this is kind of fragmenting the society. This constitution is a forward looking constitution and thus we cannot fragment it #ews

Jethmalani: a little bit of disproportion is permissible. Historical injustices have been rectified to a large extent #ews

Jethmalani: somebody will always be a little left out. Here at least the situation is a little better. Here at least disparity is being reduced. #ews

CJI: Which state are you appearing for ?

Jethmalani: Madhya Pradesh

CJI: How was the experience?

Jethmalani: i have to get instructions

CJI: please get the data and submit by tomorrow. was the implementation flexible or inflexible

CJI: This has been adopted in all public offices?

Jethmalani: yes and all educational institutions too

CJI: grateful if you can get the statistics by tomorrow

#ews

SG Tushar Mehta begins: what petitioners have forgotten while arguing this is constitutional amendment can be struck only if it violates the basic structure doctrine. This is a constitutional amendment under challenge and not a legislation or executive action #ews

SG: every clause is an enabling clause, if a state implements maximum 10 percent it is fine or decides to grant only 3 percent to EWS. Under constitution it is the wisdom of parliament which prevails. #ews

SG: Suppose parliament tinkers with independence of judiciary, etc then it is violating the basic structure but this does not.

CJI: We have asked for data how EWS quota has worked in public employment and educational institutions to see how the ews fares with the last man of SC ST OBC quota

SG: But data here may not help in striking down a constitutional amendment

CJI: We are not saying that #ews

Hearing ends for the day
#ews