A Constitution Bench led by Chief Justice of India U.U. Lalit on September 8, 2022 finalised three cardinal issues for examining whether the 103rd Constitutional Amendment, which provides 10% quota to economically weaker sections (EWS) of the society in government jobs and educational institutions, violates the Basic Structure of the Constitution.
The five-judge Bench, also comprising Justices S. Ravindra Bhat, Dinesh Maheshwari, S.B. Pardiwala and Bela Trivedi, will start hearing the arguments from September 13.
The court will examine whether the amendment breaches the Basic Structure by permitting the state to make special provisions, including reservation, based on economic criteria; whether it violates the Basic Structure by allowing the state to make special provisions in relation to admissions to private unaided institutions, and lastly, whether the Basic Structure is trampled upon by the constitutional amendment by excluding SEBC/OBC/SC/ST communities from the scope of the EWS quota.
The three issues for the court’s examination were forwarded by Attorney-General of India K.K. Venugopal.
Chief Justice Lalit said the three questions of law would form the foundation of the court’s examination and lawyers could expand on them while arguing.
Legal scholar and advocate G. Mohan Gopal compared the case to a watershed moment similar to the ADM Jabalpur (habeas corpus) case.
“We are crossing a Rubicon and it is the ADM Jabalpur of social justice as it restores the theory that one is privileged by being born in upper class and that being born in the lower classes is a disability,” he submitted.
Senior advocate P. Wilson pointed out that the court ought to examine whether the EWS quota was in violation of the rule of equality and non-discrimination, and if the move to grant reservation to forward castes (EWS or otherwise) was simply impermissible.
Senior advocate Gopal Sankaranarayanan, who had prepared the draft issues for the court which were circulated among the lawyers in the previous hearing, said nearly 55 issues were suggested by various parties, but an effort was made to trim the questions of law for consideration.
Mr. Venugopal said the question of creamy layer does not come in the economically weaker sections (EWS) quota as it was meant to give quota benefits to the poorest of the poor.
The Chief Justice of India, in the court’s order, said issues suggested by the Attorney-General encapsulated the matter under consideration. “We shall go ahead with the hearing apropos the first three issues suggested by the Attorney-General,” the Bench said.
The challenge to the 103rd Constitutional Amendment was referred to a five-judge Bench in August 2020.
The three-judge Bench, which had referred the case to the larger Bench, had refused to stay the implementation of the amendment.
Economic reservation was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the State governments in the country to provide reservation on the basis of economic backwardness.
“It is the case of the petitioners that the very amendment runs contrary to the Constitutional scheme and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five judges,” the three-judge Bench had concluded.
State’s prerogative
The Central government had argued that it was every State government’s, in the country, prerogative to provide 10% economic reservation in State government jobs and admissions in State-run educational institutions.
“Whether or not to provide reservation to the economically weaker section (EWS) of the society for appointment in State government jobs and for admission to State government educational institutions, as per provisions of the newly inserted Articles 15(6) and 16(6) of the Constitution is to be decided by the State government concerned,” a seven-page affidavit of the Central government had said.
