Thread by @barandbench

[EWS Quota: DAY 6]

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).

Solicitor General of India Tushar Mehta to argue

#SupremeCourt #EWS

SG Mehta: Economic criteria should be considered by parliament has been said by this court time and again. 50 percent being not a fixed ceiling and that it cannot be taken to the level of basic structure is shown through the judgment. The 50% ceiling is not sacrosanct

#EWS

SG Mehta: A constitution amendment can be tested only on the ground that it destroys the “basic structure” of the Constitution itself. In other words, if such an amendment permitted to stand, the very foundational edifice of the constitution would fall.

#EWS

SG: Constitution is a leading document and it is not a static formula. Who decides the aspiration of the nation, it is the parliament. When the parliament inserts some provision of the constitution itself, the validity cannot be questioned #EWS

SG: We are one of the youngest nations and there is some affirmative action needed for this class. Such an action will not foul of the constitutional requirements. #ews

SG: The 103rd amendment enhances the basic structure if Preamble is the base. Late Nani Palkhivala had argued a similar point in Kesavananda Bharati where it was said how the rule that only graduates can vote was unjust #ews

SG: Equality code can be touched upon if the basic structure is not violated. It is an elastic concept. Justice Iyer in Krishna Thomas held that constitutional court must interpret in the light of sociological and other factors. #ews

SG: There was a lawyer in Gujarat who used to engage in longish arguments. When judges used to ask how long will you argue, he used to say till the court agrees with him. I am not going to do that. I am here to assist you. #EWS

SG: What parliament does while enacting a statute is the same what happens when bringing a constitutional amendment with some additional steps. #ews

Justice Bhat: In one of the cases cited (Delhi govt vs LG, Services case) an amendment was not under challenge but interpretation was there..

SG: In SR Bommai case too amendment was not under challenge. Here the basic structure was touched upon. #ews

SG: This amendment strengthens the basic structure by giving justice on the basis of economic principles. #ews

SG: A constitutional amendment may touch upon the basic structure but it cannot be struck down unless it alters the basic structure. This is what Justice Sikri held. #EWS

Justice Bhat: Sr Adv Palkiwala in Minerva Mills gave an example that instead of 2/3rd majority in both houses, it should be 98%. You can't see federalism in preamble but it is in basic structure. certain amendments can strengthen constitution but does it destroy the constitution?

SG: The amendment targets in creating a welfare state. #ews

CJI: One of the grounds is that separation of power is also basic structure and separation of power with judicial review given final say is adhering to basic structure doctrine
#ews

Justice Bhat: If there is some tinkering with Article 14, deletion of some prescribed grounds- like gender ...

SG: equality remains but fundamental structure goes

Justice Bhat: else the theory of classification will permit this.

SG: If some parliament some day deletes Article 16 (4) and (5) would it not be said basic structure has been violated ?

Bhat J.,: Article 265 says no one can be taxed without authority, it's not Fundamental right but important. if deleted would it not violate Basic structure

Justice Bhat: basic structure theory is ever revolving..

SG: It cannot be static else it could not have served the aspirations of people which is ever changing #ews

SG: The 50% ceiling has always been held to be a flexible rule and the one which is a flexible rule, then this amendment cannot violate the basic structure of the Constitution #EWS

SG: adequate representation is not always a ground to grant reservation. An economic basis can be a ground. For example even disabled are even reservations and look at the Jat reservation as well. #ews

Justice Bhat: all this eats into the non reserved category and they keep stacking up and thus a tendency to keep out general category. The chunk for one who is not disabled etc is reducing or eaten into. No intersection for unreserved category

SG: This may not be a ground to do away with an enabling provision. In civil services more than 50% are below yearly income of 2.5 lakhs so it means per family 20,000. This is how substantive equality comes when you equalise them with their own class #EWS

SG: It has been never said that you dont cross 50 percent and no more. some states have breached 70% as well. Yes general students are impacted but the 10 percent is for the open category who are poor

CJI: So 50% - 10%

SG: no, this is a zonal classification #ews

Justice Bhat: you will call it flexible but there is a powerful case of exclusion. This goes strongly to the core of control. When you talk of social and economic backwardness you speak of specific control as under Constitution. #ews

SG: An exercise was undertaken by a commission to justify the 8 lakhs limit. It is under challenge before this court but exercise was indeed undertaken. 15 years ago person having telephone was not poor, but now a person with phone can be poor. #ews

Justice Dinesh Maheshwari: it has been argued that there was no identification method for EWS. No methodology or no guidelines

SG: I ask myself can absence of guidelines be enough to strike down a constitutional amendment. I pose this question to myself #ews

CJI: Yes these are all curable things

SG: It is curable, the government can come out with a commission. If without that exercise, some state implements EWS, then it may be open to challenge. 50% limit being a thumb rule is not sacrosanct cannot be taken upto to basic structure

SG: SC ST being more backward, there is a separate compartment for them. If SC/STs are asked to share seats with SEBCs, this is not how reservation works. That is why economic criteria is needed

#ews

Justice Bhat: but is it correct for an egalitarian society to say the poorest of poor that sorry we cannot give you the reservation since we have given your share to someone else.#ews

Justice Bhat: I am not looking at totality. Constitution has to reach the individual. you cannot say entire collective. This collective breaks down at individual point #ews

Justice Bhat: we are not questioning on your choice but the impact on equality

SG: I do not think a constitutional amendment can be tested on the basis of some statistics. #ews

CJI: Why is EWS among general category? answer is perhaps that they are economically weak and thus opportunities are less. Now when you go to SC ST, there may be haves and have nots, there are some who have advantages and there are some at the lowest level.

CJI: So you are giving ews benefit to the open category but you give no such benefit to the lowest strata of sc st.. this is the issue. You say they are covered under 27% #ews

SG: those who are historically or socially and educationally backward, economic criteria is a factor... there may be a change to the contours how we look at it. in a family of open category if weakest gets benefit then 40% will not complain about it

#ews

SG: Forgetting constitutional arguments, we have to do something for the economically weaker. #ews

SG: On lighter side, statistics is used how drunken man uses pole for support, not for illumination, but just for support

Justice Bhat: my father was a statistician

SG: Apologies apologies

Justice Bhat: that is okay

#ews

Adv Kanu Agarwal: regarding applicability of this to private unaided institutions. 50% is a judicial invention as Nagraj says judicial inventions cannot be said to be part of 50%. M Nagraj says part of basic structure we need to locate is there should be no excessive #ews

Agarwal: Suppose we remove 15(5) and (6) even if a single seat is removed for SC ST, there is a seat loss to the general category. This is an opportunity cost.

CJI: But when you take seats it cannot breach 50%>> reservations is a departure from merit
#EWS

Justice Bhat: on affirmative action, when you give something to everyone it is fine, but when you give something to someone, it is an exception. Oppressed classes need helping hand to stand up and other is creating this exception. Q is how many more will be added like this

Justice Bhat: If govt says this is a special class then there is no bar on saying that there is another class and let them keep stacking from the open category #EWS

CJI: one argument is from someone who is from non reserved category, and there is an argument from creamy layer OBC. Now there is a community whom you say that you don't need this affirmative action... #EWS

Justice Bhat: there is no empirical study on how a person progresses when they enter the creamy layer #ews

Agarwal: ST identification is not based on caste and SC is only on caste. Now it is only solely incidental...

Justice Bhat: you use incidental word to wish away the discrimination they face!

Agarwal: EWS reservation is caste agnostic and completely secular

#ews

CJI: if it is purely secular then why not open EWS to entire open category. You keep the guardrail of not including the ones falling under clauses 4 and 5 #ews

Justice Bhat: You cannot say incidental. You cannot make such arguments. What is incidental... You will say I will discriminate against you for being SC etc. Its a complete violation. It is incidental for you...#ews

CJI: What exactly is being projected is .. look at the history of this country. Discrimination in favour of open category is the first thing that is happening and presented before us.

Agarwal: I want to rebut that argument that EWS quota is for the forward class

CJI: Let us say it is for them who are not covered under any reservation

Agarwal: govt brought in EWS reservation as a socio economic experiment to see that reservation can be beyond social and economic backwardness in castes. #ews

Agarwal: Till now court has intervened in only 6 constitutional amendments among all the challenges so far

CJI: Thank you.

Senior Adv S Niranjan Reddy for Andhra Pradesh: Reservation is temporal. On economic criteria... Indra Sawhney judgement dealt with 16(4) and subsequent judgements said that same principles would apply to 15(4) and 16(4) was rooted in historical injustice..This was needed

Reddy: Article 340 uses word educational & social backwardness...social backwardness included economic backwardness and that is why economic backwardness did not need separate introduction #ews

Reddy: EWS do not constitute homogeneous group....there is gross inequalities because of economic disadvantage suffered by them. In general category, there are disadvantages other than social stigmatization- like children studying where there is a drunken father #ews

Reddy: there is a balance which is to be made between competing claims and exclusion of backward classes is not unconstitutional. Every backward class member has individual opportunity so opportunity quotient increases 50% and there cannot be arithmetically rigid 50%

Justice Bhat: opportunity cost has not to be seen at collective level but at individual level.easy to say that this is an opportunity cost. for ground level.. in college admissions, seniority etc.. there are all of this involved you see #ews

Justice Bhat: opportunity cost has to be seen at the level of individual vacancy. #ews

Reddy: Every SC ST being most deprived, they were able to compete in open category. But the moment OBC reservation came - 27%, they were not able to compete

Justice Bhat: case laws allowing them to compete came later on

CJI: Suppose it is said that 15(4) 15(5) have been given reservations and you say that open category is only whom who are not covered by any clause

Reddy: Champakam Dorairajan struck this down

CJI: So when you mean no reservation all can compete #ews

Reddy: if 10% is to be done for EWS why it cannot include SC ST OBC is because reservation has been provided for in other verticals

CJI: We got that. #ews

Reddy: exclusion is to avoid double benefit. One family gets a cylinder.. it is there for the family to not get another cylinder. #ews

Senior Advocate Vibha Dutta Makhija: I am appearing for EWS category candidates.

CJI: Did you get benefit in any exam?

Makhija: I have become eligible now. i will show how it is working at the ground level and how this affirmative action does not violate the basic structure

Makhija: we have to look at the transformation of constitution. The values are all in context and there are numerous examples where this court has read it in context of time and manner in which society has progressed..like Sec 377, transgender rights #ews

Makhija: my right arises from the penumbra of Article 21 and poverty is a very important factor here and the sustainable goals recognise this. #ews

CJI: There is no study to show that poverty has been there in families of non reserved category from generation to generation. something which is temporary in nature cannot be called to be permanent. being born in a SC family is a matter of stigma which travels generations

Makhija: caste based reservation is based on the fact that poverty is due to social and economic backwardness and they don't have it.

Justice Bhat: not have it, being deliberately denied

Makhija: I bow down #ews

Makhija: does the Constitution want to restrict reservation only to castes. I dont think the founding fathers would want to argue and they would want to expand it. #ews

Makhija shows papers related to UP Constables and Shikshamitra

Makhija: If the benefits of EWS were granted i could not have it

CJI: Show us the last one who got it. against 34,000, only unreserved categories could walk away with 20,000.

CJI: difference is 14,000 and out of these 12,000 have been taken by OBC because they are more worthy or meritorious..thus for forward communities are considered, they are seen as lacking merit
#ews

Makhija:they were extremely poor, if they did not get reservation then they could not access this. they could not study enough. this classification is based on poverty

Justice Bhat: they are competing since they are already at the level

CJI: The argument is give them scholarships and fee concessions so that they studies. Reservation as a traditional concept is not for financial empowerment, it is for social empowerment. It is not just to improvise the economic lot or status. #EWS

Hearing to resume next Tuesday before the Constitution bench
#Ews #SupremeCourt