Thread by @barandbench

Constitution Bench of #SupremeCourt led by CJI UU Lalit to continue hearing pleas challenging the validity of the 103rd Constitutional Amendment, which provides for 10% reservation for EWS, on the ground that economic classification cannot be the sole basis for reservation.

#ews

Matter likely to reserved for judgment today after hearing rejoinders to the Central govt's arguments.

#SupremeCourt #EWS #CJIUULalit

Read about the questions of law in the case, here:

barandbench.com/news/ews-reser…

Hearing starts.

Adv Rahul Chitnis for Maharashtra says he has filed written submissions.

Counsel: I will add to AG Venugopal's submissions. Dr Ambedkar said that poverty should be the foundation for reservation. Now what's happening is instead of caste-less we're going...

Counsel: for caste-based society by deliberating, discussing it. In Kerala people bargained that they don't want reservation. According to me the very foundation for the Bill was the ground reality.

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Note: Counsel above is advocate VK Biju

Biju: First one is short note on who is respondent no 1, then caveat for youth for equality l, I'm appearing for them also. A section was misguided by saying their % was touched on, that is wrong. This is a separate compartment.

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Biju: how this Bill became an Act? Whether rules of LS were followed or not? It was democratically passed.

CJI: Nobody has even seriously questioned this.

Biju: Diff States are protecting their people.

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Biju: Indra Sahwney it is said those who are rickshaw pullers etc can be considered a class or caste deserving reservation. Somebody said Biju you're only against OBC, no. Once you're going for EWS, you leave the other chairs, not two at same time.

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Biju: No other quotas touched.

Bench discusses.

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Biju: It is said that data is needed. This section is not a vote bank, I'm for poor rickshaw pullers and not against any one else's compartment. Nothing happened to that. See first writ, if it follows the guidelines. We must be cautious of section of protected people being ...

Biju: misguided that their rights are being taken away. What to say? It has to be done by strong hands of law, only by my lords. Did something happen to their rights? Rickshaw puller kshatriya, Brahmin, hotel worker, just touched their tiers.

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Biju: According to Kesavananda Bharti and subsequent judgments, the foundation of our democracy is economic [justice], and this if totally followed in this Act that is not inconsistent with any Articles of our Constitution. My respectful submission is you're coming after ...

Biju: a democratically passed Act. So you're playing a fraud with ...

CJI: We told you 15 mins. You have 5 more.

Biju reads from pleadings,: Kindly have the Constitution for a second. 31(c) is my fundamental right.

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Biju: I'm answering CJI's question, I'm substantiating that none has taken away your rights. Govt appointed a commission that submitted its report in 2010 that said EWS must also have consideration. CJI asked how one can be perpetually poor unlike those who are SC/ST?

Biju: My submission is perpetual poverty is there. Kerala constituted a commission for EWS among forward communities. It is not first time, Qs is ...

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Biju: I want to send my children also to the school, get their rights.

CJI: Mr Biju please stick to the point.

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Bench discusses.

Biju: Page 11 is Kerala State Welfare Board for Forward Communities.

CJI: Your time is getting over. 3 minutes...

Biju: Before 103rd amendment and increase of seats, my submission is you're also benefitting. What you're getting before ...

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Biju: the amendment. SC Plus open category is 65%, for ST 58%, OBC 77.5 %. After the amendment, ST total 55.5 % ...

CJI: yes Mr Biju, it is true that this table is the scenario. No one is disputing that.

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CJI: So therefore when you increase the seats, the effect gets cushioned. So your submission is it'll lead to equality after the quota is being implemented? Your 15 minutes are over.

Biju: I may submit that it is not a case of fundamental rights being affected. I read ...

Biju: so many cases. I got so many calls on fron Registry saying this 55 Petitions have something or the other missing, don't know how they were filed.

CJI: Mr Biju, argue on merits please.

Biju: Thank you for patient hearing.

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SG Tushar Mehta: wish to place something on record. Will send in e copy as well. Govt as a sovereign is responding to the needs of ...

Biju: My lords i have to leave this Court.

CJI: Yes
SG reads from pleadings to state that seats for other categories not reduced in ...

absolute numbers compared to previous year intake. 2,14,000+ seats approved to be created, SG adds.

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Justice Bhat: Correspondingly, would like you to give the data on number of scholarships available to all people in professional courses in central universities. Quantum of per capital scholarship. Ultimately when they get in, what is the aid that they get and fees they pay?

SG: would emphatically submit that those figures would be for Parliament to act on, and would not affect the Constitutionality of this Act.

Justice Bhat: Yes. We just need the figures, ultimately EWS are poorest of poor getting scholarships.

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SG: But since they are getting scholarship so they should not get reservation is a policy issue not a constitutional issue.

Justice Bhat: Mr Mehta we know what we are looking at.

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SG: Scholarships can be merit based and need based. AG's note will be submitted.

An intervenor appearing in-person: With regard to the 50% cap, i would submit that an judgment cannot override a fundamental right. General category EWS has nowhere else to go.

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CJI: Who will argue now for the petitioners?

Sr Adv Prof Ravivarma Kumar starts: Gopal (Sankaranarayanan) will argue separately.

CJI: You've done internal allocation.

Kumar recalls the 2005 tsunami and search operations post the tragedy where it was declared that no one was found in Andaman Nicobar initially.

Kumar: Later they found that not single Nicobari was touched. After research, it was seen that they are in such close touch with...

Kumar: nature. They saw monkeys climbing up the hills, and knew. Why I'm saying this is because they're the most primitive tribes, away from civilisation and not being Caucasian race like mainland Indians.

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Kumar: All these other races are eliminated because they are the Scheduled Tribes. Entire SC ST list are castes or tribes.

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Kumar on Justice Bhat's question that removing gender and caste from Articles 15 and 16 would be striking basic structure.

Kumar: Yes. all these tribes are casteless. Some live in hills.

Kumar explains race background of tribes.

Kumar: Northeast tribes are Mongolian.

Kumar: Central tribes belong to Austrian race. South Indian tribals they are from Dravidian or Negroid or Austric racial features.

Kumar reads Article 15(1)

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Kumar: all of these tribes have been eliminated from 15(6) and 16(6) because of their caste. I fall back on the impact test. Put in the glasses to see who all are eliminated from the ... Justice Bhat's question of the crux of the issue, and my submission is these two Acts...

Kumar: have destroyed the equality code by doing away with race.

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Kumar: Supposing a similar move was made for IAS or Navy favouring men? Would it not be discriminatory? Even a Constitutional Provision eliminating races, castes and tribes also hits at the basic structure.

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Kumar: Equality test is turned upside down on the basis of caste, race and tribes. Article 41 may not be a fundamental right but still ...

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Kumar: Only in 15(6) and 16(6) will they be not allowed to take benefit.

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Kumar: The entire list of those eliminated are races, castes and tribes and they could not have been as it is the bedrock of the equality code.

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Kumar goes through Communal G.O. that was struck down.

Kumar: What are these 60 % posts now going to be distributed, it'll be like as per the communal G.O. the remaining 50% is divided into 10 and 40, of which former is only available to forward communities.

Kumar: This is hit by precedent in Champakam Dorairajan and is ultra vires. Next is reservation, i want to touch on the phenomena of reverse discrimination, that is extending its benefit to everyone even for IITs, IAS etc.

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Kumar: This Amendment thus needs to be struck down. There are categories, these are not homogenous groups. In Karnataka we have 5 sub categories among backward classes.

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Kumar reads from Devendra Singh: It says creamy layer may be removed from SCs. One last submission before i conclude, my ld friends are waiting.

Kumar cites RTE Act: incongruous provision [about State making any law under it] that says it won't...

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Kumar: violate fundamental rights.

Justice Bhat: That proviso, just to be clear, defines inclusive. This was noted in Pramati.

Kumar: yes. They can't be excluded. But Pramati cannot be relied on to say EWS is right. May i just pass on the compilations. Question was ...

Kumar: are there Muslims in backward classes? I've shown in this chart.

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CJI (for govt schemes): You're saying they can be general or community based? Okay.

Kumar: Thanks for the patient hearing. For the first time, this Court has been called for addressing an issue affecting 100% of the population. Thank you for the expedited hearing, call ...

Kumar: upon my lords to strike down the amendment.

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Sr Adv Gopal Sankaranarayanan now argues.

Gopal S: I want to address what the AG and SG said. I think I was misunderstood about Muslims and Christians not being among backward classes.

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Gopal S: They are not there among SCs and STs it was said.

Sr Adv Gopal S goes through the Ranganath Mishra and Saxhar committe reports: Must say both have not been accepted.

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Justice Bhat: So (as per the report) 47% of the Muslim population are OBC?

Gopal S: "However, their condition worse off than Hindu OBCs". The contention that the EWS is only for forward communities is wrong.

Justice Bhat: One has reservations about this. There are diff...

Justice Bhat: matrices applied. I don't think we're qualified or equipped to do that here. It needs anthropological study. So your submission ...

Gopal S: Yes.

CJI: But your saying EWS is not only forward communities is a submission.

Justice Maheshwari: What Prof...

Justice Maheshwari: Verma Saab also argued today is the exclusion ...

Gopal S: No dispute, but if further compartmentalisation is done we'll go back to Champakam situation. Dont think we can use that word for an enabling provision.

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Gopal S: That fourth compartment is a compartment in itself is i don't think valid.

Justice Bhat: Keep aside the 50%. You're presenting the horizontal position.

Gopal S: Let me explain. The chart shows vertical position as well.

Bench rises for a while.

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Hearing resumes.

Gopal S: in the remaining 40% there are Hindus Muslims who are non OBCs and STs, and those reserved who have merit as per Sabharwal judgment. Agree with SG that it doesn't violate basic structure. AG's written submission where he says ...

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Justice Dinesh Maheshwari: They have said 50% is basic structure.

Gopal S: Like SG said, basic structure can't be something that is flexible.

Gopal S cites striking down of NJAC : basic features can be flexible or inflexible. 50% is with exceptional circumstances.

Gopal: Those words need to be culled and severed from the Constitution. The idea of 50% being rooted for so many years means that only the balance has to be maintained. I won't go on, I'm told I'm going against my own side in a way.

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#CourtroomExchange

CJI: every counsel is giving us new compilations.

SG: Making our jobs difficult. See the don't size. (Smiles)

Sr Adv and DMK MP P Wilson: These are only to add to whatever I've already said.

Justice Bhat: Gorakhnath was argued in 3 weeks ...

Justice Bhat: The art of arguing does not mean you have to write down everything you say.

Sr Adv Arora: My compilation just has footnotes of the cases cited.

Justice Bhat: We have already noted that Ms Arora. With all due respect, Pramati devotes 283 pages to such submissions

Wilson: Reservation is not a poverty alleviation programme, as has been held. SG relied on Sinho commission, but it did not recommend any reservation. It only said if you do want to give economic based reservation abolish all other reservations.

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Wilson: Sinho Commission has not supported their arguments at all. They've gone ahead to say there is no data in categorical terms.

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Wilson: AG relies on NSSO survey to say 30+% of forward castes are poor. Must submit that data is wrong. I have gone through it, it is household data, no survey was conducted on social status. Nowhere NSSO speaks about economically backward or weaker sections. They have ...

Wilson: said that for sampling they do random sampling. So far as as reliance on Sinho commission and NSSO is concerned, it does not help them in the absence of empirical data. Your counters, affidavits relies on Sinho which in turn relies on NSSO.

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Wilson: Next is argument on compartments. Backward classes can be in open category.

Wilson cites Maratha reservation case to say reservation only for those cut off from mainstream: Here they are already in mainstream.

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Wilson: Let me go into why Sinho Commission was constituted.

CJI: You have limited time, why go into.

Wilson: okay, it is there is my compilation. On double reservations argument, it is not so as open category cannot be counted as double reservation.

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Wilson: We're demonstrating that the edifice of the constitution stands on several pillars, remove any one and it will fall. One is equality, can that be removed?
Lot of backward communities not in Union List. On 8L criteria, 14 States...

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Justice Bhat: These are all facts.

CJI: You're eating into others' time.

Wilson: I would say it is unconstitutional and violates basic structure. Would like to thank this bench for a detailed hearing, it was pleasant bench and nice to see that there was water to drink also.

Sr Adv Meenakshi Arora begins her submissions.

Arora: Subdivision is proscribed.

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Arora: AG said that SC ST cannot be further subdivided. If we accept this, we can't do horizontal reservations also that we have for women, disabled etc.

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Arora: It was debates across and also urged by the ld AG that alternate facts and figures cannot invalidate a Constitutional Amendment. My response to this is - the test of a vires is testing of it has vices not merely its objects and reasons. Impact of this actually ...

Arora: affects basic structure and equality.

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Arora: It is suggested that not all incursions into the basic structure breach it, unless it a travesty etc. If this is accepted then you can go ahead and hit the basic structure chip by chip by saying it's not shocking.

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Arora: Primary argument by SG is that Constitution does not allow migration for SC STs to shift to OBCs vertical category. In any case in RK Sabarwal it has been said that migration from reserved category to general is permissible.

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Arora: SG has said seats have increased. My response is reservation will still apply, and they cannot say EWS can be put through as seats have increased.

CJI: Thank you Ms Arora.

Arora: One last thing. My lords mentioned the guard rails ...

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Arora: they are only for economically weaker. Thank my lords, sorry if we're over shooting (our time slots).

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Sr Adv Sanjay Parikh: Social backwardness leads to economic and other backwardndess and but in reverse they cannot be given benefits of the social component. That cannot be done and is against Constitution. What is permissible is horizontal not vertical one as principle of ...

Parikh: reservation is nullified. AG said 50% is other which we are not touching. I don't think we can make it versus like that. My next point is, I'm rushing, my lords, creamy layer means you cannot distinguish. That is to say, if you give the benefit ...

Parikh: it is something not applicable for SC STs.

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Sr Adv Dr KS Chauhan: This is a constitutional principle so interpretation has been removed. Have to see the constitutional philosophy of Article 141 read with Article 145.

[Gives example of President India and his wife facing discrimination at Puri Jagannath temple]

Chauhan: so reservation has to be caste based to end this.

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Sr Adv Kaleeswaram Raj: The already-provided for argument. Fundamental rights are always individualistic not group-based.
"Individual is the focal point of the Constitution, but because in individual the collective wellbeing of the society is ..."
Therefore, violation of ...

Raj: individual fundamental right is also a violation of basic structure. In the context of exclusion, question is whether there is discrimination or not. Would like to thank my lords for the fantastic, disciplined hearing.

Raj quotes Gabriel García Márquez to say...

Raj: to say there wasn't any unfinished sentence or though. Obliged, grateful.

CJI: prof Mohan Gopal you'll have half an hour after lunch. We'll accommodate.

Prof has indicated that Sr Adv Gopal S' arguments ate into his time.

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Hearing resumes.

Prof Gopal: I will make 3 points and focus on methodology of determining whether there has been a violation of basic structure, which I derive from Justice Kapadia's opinion in Nagaraj. they said that reservation of SEBCs is casteist reservation.

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Prof Gopal: Any caste, any community that fulfils criteria can be SEBCs. Which is why this court stated that transgenders can be included in OBC. This category unites all as backward classes fighting for greater share. Every Varna represented, as is every religion, every muslim

Prof Gopal: This reservation is repeatedly being vilified as casteist reservation. What is the basis of this? We must see the value of a uniting category. Is that being abused? Yes. That's why Jats were not named; mechanism is working.

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Prof Gopal: It should be monitored but we should not throw the baby out with the ... The relationship between - not totally opposed to each other. The word weakness comes from the German word waiku that means soft.

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Prof Gopal: They're not homogeneous. They (went through) massive human suffering and to call them homogeneous doesn't do them justice. Weakness is a quality, but backwardness is a rank. Weakness may produce that rank but they cannot be opposed to the other.
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Prof Gopal: Please don't divide the joint family of social, political and economic [justice], because they go together. The rest of the world has only begun to realise that they're all sides of the same condition. Poverty defined a multidimensional problem goinh beyond economics.

Prof Gopal: If you tell me that reservation should be only on social, or political criteria- I'd be the first to oppose. Economic should also be taken, but not by the current criteria and by excluding non forward communities.

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Prof Gopal: As to basic structure, I will focus on inclusions. My problem with inclusion is that for the first time, being a member of the forward class has been made a prerequisite for getting government assistance. You have to be socially and educationally forward.

Prof Gopal gives example of a poor prudent family that was so because the father chose to be a priest, but reiterates that no door ever closed for such families.

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*correction: poor princely family

Prof Gopal: Our problem is doors being closed. First is this pre requisite that says you must belong to a forward class. Then is the way the Act treats reservation. Reservation is a very dangerous instrument. Because it involves displacement...

Prof Gopal: and discrimination. Since it is a dangerous instrument, Ambedkar himself had said do not apply it to more than 50 per cent, not because more may not deserve it but because of the issue.

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Prof Gopal: Therefore they anchored it and put chains. The chains were that it should only be used for representation for those who are being discriminated against. What 103 does is that it destroys those harnesses on reservations.

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Prof Gopal: What the amendment does is that it destroys those harnesses on reservations. To uplift someone you can use reservation unbound it provides, which if approved there will be 1000s of programs in country to give assistance to various groups. Compartmentalization exists..

Prof Gopal: Let's not make it worse.
AG has placed before my lords that they want separate and equal. In reality it is separate and unequal. Unless a principle first becomes part of the law, it cannot even be non essential feature.

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Prof Gopal: Underlying provision of the amendment that poor and socially and educationally forward communities should get reservations is not an established principle in constitutional law; violent violation of equality.

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Prof Gopal: Violent opposition of the basic structure in compartmentalisation, quality of forwardness as pre requisite and the letting loose reservation in the society as some benign welfare activity. There are two ways forward- three actually.

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Prof Gopal: One is to strike it down, one is to keep it, third way is to read it down.

[Gives example of yellow star given by Nazis to Jews]: You stick it on you, wherever you go you are identified. The status of SC/ST are only relevant when claiming benefits.

Prof Gopal: Socially and educationally forward reservations mean class is being converted into caste. So we take constitutionalist approach. For 16(4) you have to be backward, so you cannot use that criteria in 15(4), but you can use poverty. Constitution always at criteria level

Prof Gopal: Gopal: The criteria should be "other than".

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Justice Bhat: Other than can mean two things. 1 is exclusion, other way is descriptive. What is described, in addition to this. In that event, there is no exclusion.

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Prof Gopal: That is not a manner referring to humans. For example, criteria for sportsperson is different than disabled. Eligibility criteria should be distinct with intelligible differentia. The political intention for providing a separate compartment may not be achieved.

Prof Gopal: But that's not the intent of the Court. This interpretation where we say that other than means that the criteria shall be distinct will allow you to keep this going without letting reservation run loose and disconnecting it from backwardness.

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CJI: Thank you professor Gopal. Mr. Sadan, we want your assistance again on the point because by the time we have come to close of the matter, we are 20 units whole we started with 1. We want you to again put that in concise form. You and Mr. Kanu Agarwal, plz do it in 2-3 days.