Ninad Senad

December 29, 2024

ABSTRACT

The subject of reservation has always been one of the hotly debated topics in the jurisprudential realm of the Holy Constitution of India. The arguments, both, in favour or contrary, can be seen to have been carved out of numerous factors which are in some way or the other ingrained in the consciousness of Indian society having its reference to the historical background. It is much known, that the policy of reservations was inserted in the Constitution very diligently to ensure equality and more specifically the upliftment of the class of people who were and are multidimensionally backward and were subjected to historical discrimination, particularly on the poisonous basis of caste. Hence, the Constituent Assembly, after vociferous debates, discussions, and contentions having been received from its members, inserted the clauses that ensured equality, and special provisions with respect to SC/ST/OBCs and the same were incorporated under Articles 15 and 16of Constitution.

Keywords: Reservation, Discrimination, Constitution of India, Equality

INTRODUCTION

Indian Constitution has gone through a number of amendments pertaining to the subject of reservations and from time to time, it has ensured that the very intent behind the idea of reservation is preserved. From the Champakam Dorairajan[1], where the Court for the very first time had to deal with the subject of reservation based on caste as an issue, to the landmark judgment of the Hon’ble Apex Court in the case of Indra Sawhney vs UOI[2], this country has witnessed the cases on reservation in abundance and eventually, these precedents constructing a bridge or a broader pathway to interpret the subject more extensively.

The 103^rd Constitutional Amendment proved to be the pinpoint that once again broached the discussions and most evidently, the debates over the subject of “Reservations”. Reference to all these points is made right at the inception because of the recent judgment of the Honourable Supreme Court upholding the validity of 10% of reservations to the EWS (Economically Weaker Sections). By a majority of 3:2, the Hon’ble Apex Court upheld the 103^rd Constitutional Amendment that was made by the Parliament in the year 2019 which enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). It has to be noted that the separate class of SEBCs (Socially and Educationally Backward Class) was not included in the said EWS quota.

The Supreme Court was flooded with 20 petitions challenging the said amendment to be violative of basic structure and being against the rule set by the Apex Court in the case of Indra Sawhney, which said that the reservations cannot exceed 50% of the ceiling limit. Many other factors in the amendment were challenged on various other grounds. However, the Apex Court upheld the amendment and dismissed these petitions.

The matter was put before a 5-judge bench comprising Former Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala.

KEY ISSUES

The Supreme Court deliberated upon certain fundamental  issues, wherein arguments from petitioners and respondents were heard in consonance with these following key issues.

1. Can reservations be granted solely on the basis of economic criteria?
2. Can Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes be excluded from the scope of EWS Reservations?
3. Can EWS Reservations breach the 50% ceiling for reservations established by the Supreme Court in Indra Sawhney (1992)?
4. Can States provide reservations in private educational institutions which do not receive government aid?[3]

SUMMARY OF ARGUMENTS – PETITIONER:

1. Essence of reservation from social and political history :

Renowned academician Dr. Mohan Gopal, who was appearing on behalf of the petitioners in the case, commenced with the arguments which lasted for 7 long days. He argued that the EWS quota distorts the idea of reservation—which was initially and in its original sense, intended to be a tool for the representation of underrepresented groups—into a roadmap towards economic upliftment. Similar to this, Senior Advocate Meenakshi Arora argued that the purpose of the provisions incorporated in the Constitution which grant reservations under Articles 15 and 16 was not to benefit groups economically, but rather to address the backwardness that these groups experienced as a result of their ‘non-representation’. Thus, the idea of affirmative action through reservation finds place in the constitutional law by stemming from the historical discrimination, social deprivation and political non-representation and not as a mere tool for financial upliftment.

1. Violation of Basic Structure.

It was vociferously argued from the side of the petitioners that the exclusion of the class of SEBCs is in utter violation of the idea of basic structure and such exclusion has restricted the intended benefits of reservation to the “forward class”. Dr. Gopal argued that SEBC as a quota represented all the possible backwardness, whether it may be social, educational, or economic.

The text of Article 46, specifies that the State shall advance the economic and educational interests of the poorer segments of the population. Therefore, it was not proper to channel them as separate courses or classes from the ambit of the legitimate weaker divisions. In a similar manner, Senior Advocate P. Wilson argued that weaker section provisions under Article 46 were distinguished from Articles 15(6) and 16(6)’s weaker section provisions and that though SC and ST had specific mention under Article 46 , they were separated.

1. Economic Aspect – Not a criterion

This issue can be said to be the quintessentially fundamental issue that was before the court. Rather, this point of law was the point around which the entire impugned amendment of the EWS quota revolved around. It was argued that there were other affirmative actions that could be taken to address the problems faced by economically disadvantaged groups, which did not require providing them with reservations. Since economic wellbeing is an obligation of state towards all citizens, affirmative action aimed at representation and upliftment of the marginalised class cannot be used as a mass level policy tool for financial upliftment, which is also an evasion of duties by the state.

Prof. Kumar argued that a “class” should be identified as a “homogenous one”. It should consist of numerical strength and have its origin in religion. He was of the opinion that a person’s ‘economic background’ could not determine his class.

1. Ceiling Limit of 50% abridged by this amendment:

This point was raised by Sr. Adv Gopal Sankaranarayan which focused on the ceiling limit set by the Hon’ble Apex Court, in the case of Indra Sawhney. He argued that this limit was breached due to the inclusion of this quota and is obliterating the earlier decisions of this court. Many of the petitions that were filed in the Apex Court demanded the amendment to be struck down because of the violation of the ceiling limit only.

According to them, after the law that was established by the Hon’ble Apex Court, many such instances were dealt by this court, only after considering this law of ceiling limit. Petitions claim that this particular amendment stands in violation of this law restricting ceiling limit and since the matter and the ceiling pertains to the matter of representation assuring equality, falls in the ambit of the basic structure, and such violation will be construed as the violation to the basic structure.

SUMMARY OF ARGUMENTS – RESPONDENTS:

1. An Affirmative Action:

The arguments commenced with Attorney General KK Venugopal concentrating on the point that the impugned amendment is ‘affirmative action’ by the state. He stated that SC and ST community had been “loaded with benefits” by way of already elaborately laid affirmative actions and thus were not in need of other additional benefits. He added that the classes identified as backwards including the SCs, STs, and OBCs, each of them contained sections already economically weaker, within themselves. Therefore, he argued that the state took affirmative action for other economically underprivileged segments by the amendment, which did not derive benefit from the previous reservations. Additionally, he contended that backward classes held different reservation rights than advancing classes and that equals could not be treated similarly.

1. 10% Reservation not to be added in the existing 50%:

According to the AG, the three backward groups were in harmony with 50% of the reservation, and the non-reserved category formed a separate category in which 10% was now separately carved out for the economically poorer sectors.

 The backward classes wouldn’t be affected by the implementation of the EWS quota, according to Sr. Adv. Mahesh Jethamalani, because the new percentage of reservations wasn’t being taken away from the 50% that was given to them.

1. 50% Ceiling Limit can be crossed in exceptional circumstances:

Even after the submission that the 10% of the reservation would not get added into the existing 50%, respondents were inclined to argue that the ceiling limit of 50% can still be breached or altered in exceptional circumstances.

Further, they make the submission that the ceiling limit of 50% cannot directly be equated with the level of basic structure.

JUDGMENT AND ANALYSIS THEREOF:

Justice Dinesh Maheshwari outlined the three major issues in the matter,

1. Whether the impugned amendment is in violation of the basic structure being provided on the economic criteria solely?
2. Whether it is in violation of the basic structure for excluding the poor among the SC/ST/OBCs from EWS Quota?
3. Whether the amendment is violative of the basic structure for breaching the limit of 50%?

With regard to the first issue, the question Justice Maheshwari poses, “if another segment of society faces inequalities, because of one specific factor, which exerts dominance, then whether the said segment could be denied the State’s support by way of reservation (an affirmative action) only because of the fact that that segment is otherwise not suffering from other disadvantages?”. Simply put, can economically weaker sections be deprived of affirmative actions only because they are not socially disadvantaged. To which, he answers that in the state’s endeavours of ensuring all-inclusive socio-economic justice, there cannot be a competition of claims for the state’s affirmative actions relying on disadvantages, in the manner that one disadvantaged section would seek denial and express non-acceptance of affirmative action for another section which also faces disadvantage. Thus, on the issue of basic structure , giving references to several past cases Maheshwari J., rejected the contention of violation of basic structure on this ground.

With regard to the Issue (b), he opines that, “the affirmative action of reservation for a particular target group, to achieve its desired results, has to be carved out by exclusion of others.” Justice Maheshwari points out that the same principle of exclusion, as remarked above, has been applied to major affirmative actions through the groups of SCs, STs, and SEBCs. According to him, each of these classes consumes reservation or gets advantaged out of it in a vertical column in exclusion of other classes only. Therefore, he rejects the claim of any particular class being based on the exclusion from affirmative action in reference to the EWS quota

Interestingly, with regard to issue (c), on this behalf, Justice Maheshwari has made references to the opinions and the views expressed by some of the presiding judges of the Supreme Court in the matter of Indra Sawhney itself. He points out that Justice Reddy in his judgment had stated about the mandatory ceiling of 50% yet left one small space/window open where some relaxation to the strict rule may become crucial in view of the situations bearing extraordinary circumstances. (Para 92.6 of the judgement) Justice Maheshwari refers to the statements of Justice P.B Sawant in the Indra Sawhney (supra)and marks that even Justice Sawant also reiterated that 50% ordinary ceiling can be breached but will always subject to the facts and circumstances of every case, thereby dismissing the issue of ceiling limit of 50%.

Justice Bela Trivedi, concurring with the view adopted by Justice Maheshwari, emphasized the action of the government, citing or terming it to be affirmative action, and opined that it is necessary to view it from the positive angle since it aspires to advance and achieve the welfare of country’s economically weaker section. Justice Trivedi further opines that the treatment of economically disadvantaged persons should be that of a different class; this classification would not be considered to be an unjustified action. Placing reliance on what Justice Krishna Iyer, one of the finest legal brains this country ever produced, had stated in his judgment in the case of Maharao Sahib Shri Bhim Singhji vs. Union of India & Ors.^[4]. Justice Iyer had noted that:

“Peripheral inequality is inevitable when large-scale equalization processes are put into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities.”

Citing this in her judgment, and agreeing to the notion mentioned by Justice Iyer, Justice Trivedi upholds the idea behind the insertion of this amendment and states that just as equals cannot be treated unequally, unequal cannot be treated equally. Also, Justice Trivedi staunchly supports the idea that the Economically Weaker Section shall be treated as a separate class and believes that the exclusion of SEBCs cannot be termed as discriminatory or violative of the Constitution.

Justice Pardiwala pens his judgment in a different yet in an interesting manner. The foremost question that Justice Pardiwala poses is “What is so fundamentally wrong in singling out an economic criterion for reservation?” Validating the action of the government reserving a specific section economically, he refers to the judgment of Indra Sawhney and tries to establish an analogy by stating that even the persons being covered under the class of “creamy layer” were not considered as ‘backwards’ in respect to Article 16(4). Justice Pardiwala’s interpretation behind the insertion of the 103^rd Amendment has to be noted. According to him, the 103^rd Amendment is in great consonance with “casteless society”, an eventual goal of Constitution itself. According to him, this uncovered class was deprived of the benefits that the reserved class is receiving now, and hence the Parliament by insertion of such quota has extended the benefits to a certain section of society. Justice Pardiwala quashes the arguments of the Petitioners that countered the 103^rd amendment which relied on the ground that the weaker sections under Articles 15(6) and Article 16(6) [provision for EWS], were not the same as mentioned under Article 46 and SCs and STs had found their special mention therein. Justice Pardiwala says that the phrase “weaker sections” in Article 46 cannot be restricted or cannot be limited solely to the Scheduled Castes or Scheduled Tribes or to be interpreted in accordance with the principle of ejusdem generis. Lordship further remarks that if we confine the meaning of the expression “weaker sections” only to the Scheduled Castes or the Scheduled Tribes or the similar classes already included, namely backward class, then it eventually will expose the genuine weaker sections of citizens, though economically backward, other than that of SCs and the STs, to exploitation without any protection from it.

DISSENTING/MINORITY VIEW:

Though there is an unanimity amongst all judges regarding the issue of economic criterion for reservation, Justice S Ravindra Bhat and Former Chief Justice of India U.U Lalit dissented with the majority view on key issues especially on exclusion of SC/STs from the reservation for EWS, and has observed contrary to the majority. Justice Bhat penned the judgment to which Justice Lalit concurred.

Justice Bhat, at the commencement of his judgment, boldly expresses his sorrow since he believes that for the first time this court, in the glorious seven decades of the republic, has sanctioned an avowedly exclusionary and discriminatory principle. This particular concern of Justice Bhat can be traced to his judgment where he firmly expresses that the Indian Constitution is against the language of exclusion. Justice Bhat, throughout the entire judgment, seems to be worried and unconvinced regarding the exclusion of other classes in the impugned quota of EWS. Justice Bhat refers to number of earlier precedents and states that the equality code in the constitution thereby forms the basic structure. He further mentions that this court has always been diligent in ensuring and upholding the idea of equality and justice to all and highlights the all-inclusive nature of the Indian Constitution. Thereafter, Justice Bhat remarks that the impugned amendment is in juxtaposition to all the earlier cases adjudicated by this Hon’ble Court. Justice Bhat tries to substantiate this finding on the matter of fact i.e. exclusion of the class of the society. According to his findings and opinions, the excluded class was the original class which was actually subjected to discrimination and social injustice. Justice Bhat also remarks that 103^rd amendment transgresses in grave contradiction of the principles of egalitarianism and social justice for all and hence holds that this amendment is violative of basic structure. Justice Bhat also declines to accept the argument presented before the court that exclusion of SC/ST/OBCs from the poverty or economic criteria-based reservation is justified because the existing reservation policies have provided larger benefits to these classes. Justice Bhat on the other hand said that the reservation solely on the basis of the economic criteria is valid and not violative per se. Justice Bhat does not see the reservation, on the basis of the economic criteria, as an action in violation of basic structure and mentions his assent to the ‘thought’ that the reservation or the special provisions can be made to have the poorer classes uplifted and elevated for their betterment. But again, his ‘only concurring element’ throughout his judgment comes with a condition, again giving rise to another dissent. Justice Bhat remarks that, for educational purposes, reservation can be used to provide on economic criteria under Article 15 but the same stands infructuous regarding Article 16. He mentions that the goal of Article 16 is nothing but empowerment through representation and hence the categorized reservation on the basis of economic criteria cannot be inserted to Article 16. Justice Bhat refrains from opining or holding anything on the cap of 50% in reference to this amendment but parallelly maintains few concerns in this respect. Justice Bhat states that the breach of the ceiling limit of 50% may soon become a gateway to certain “infractions” in the near future and acquiescence to such breach of ceiling would result in “compartmentalization”. Hence, for him it is the Indra Sawhney that stands tall in principle. It is noteworthy, that the 50% ceiling principle in Indra Sawhney hasn’t been overturned, for it requires a larger bench.

CONCLUSION:

The Supreme Court has been the guardian of the principles of equality. Indian Supreme Court has the largest footprint across the world in upholding the values and principles of justice and equity. Reservations, undoubtedly represent the idea of equality and ensures the upliftment of certain sections or class of society in furtherance of their advancement. The history of reservations has been remarkable and the 103^rd Constitutional Amendment, which brought the quota for the Economically Weaker Section, can be said to have joined the list.

It may be worth mentioning that no other reservation case in recent history than the EWS’ judgement has faced opprobrium, making it undoubtedly a landmark precedent in the subject of affirmative action as well as equality code. It can be said that the Hon’ble Supreme Court had an instance to somewhere go across the established horizons and notions of the reservation and analyse or interpret the same in a different yet inclusive manner. Though this ‘inclusiveness’ might not have found the welcoming acceptance from the all streams of thought, still it is undeniable that this case law in Indian Constitutional history will operate as an indispensable precedent, especially, when the matters of future will pertain to equality and more pressingly, equality in relation to inclusiveness of classes/sections in the society.

At last, I’d be inclined to mention what Hubert H. Humphrey remarks. He says “Equity is the soul and essence of a democratic society”

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[1] AIR 1951 SC 226

[2] AIR 1993 SC 477

[3] https://www.scobserver.in/cases/janhit-abhiyan-union-of-india-ews-reservation-case-background/

^[4] (1981) 1 SCC 166