SC majority verdict upholds Centre's 10 per cent reservation to EWS

NEW DELHI: In a landmark verdict, the Supreme Court by a majority view of 3:2 on Monday upheld the validity of the 103rd Constitution amendment providing 10 per cent reservation to people belonging to the economically weaker sections (EWS) in admissions and government jobs.

The court said the quota does not violate the basic structure of the Constitution. A five-judge constitution bench headed by Chief Justice U U Lalit pronounced four separate verdicts on 40 petitions challenging the validity of the 103rd Constitution amendment promulgated by the Centre in 2019.

While Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala upheld the law, Justice S Ravindra Bhat along with the CJI shot down the same in their minority view. The judges read four separate judgements for over 35 minutes in the courtroom.

Justice Maheshwari, who read the judgement for himself, said the 103rd constitutional amendment cannot said to breach the basic structure of the Constitution. He said reservation is an instrument of affirmative action so as to ensure an all inclusive march towards goals of egalitarian society and it is a means of inclusion of any class or section so disadvantaged.

Justice Trivedi said the 103rd constitutional amendment cannot be struck down on grounds of being discriminatory. She said the 103rd Constitution amendment has to be treated as an affirmative action by Parliament for the benefit of EWS class.

Justice J B Pardiwala concurred with their views and upheld the validity of the amendment. Justice Pardiwala, however, said reservation is meant to secure social justice but it should not continue for indefinite time so that it becomes vested interest.

Justice S Ravindra Bhat, in a minority view, dissented and struck down the constitution amendment on EWS quota. He declared the 103rd Amendment Act as unconstitutional and void on grounds that it is violative of basic structure of the Constitution.

CJI Lalit concurred with the view of Justice Bhat. The apex court had on September 27 reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the Constitution after hearing a battery of senior lawyers, including the then Attorney General K K Venugopal and Solicitor General Tushar Mehta, in a marathon hearing that had lasted for six-and-half-days.

Academician Mohan Gopal had opened the arguments in the case before the bench, on September 13 and opposed the EWS quota amendment by terming it as "deceitful and a backdoor attempt" to destroy the concept of reservation.

Tamil Nadu, represented by senior advocate Shekhar Naphade, had also opposed the EWS quota, saying the economic criteria cannot be the basis for classification and the top court will have to revisit the Indira Sawhney (Mandal) judgement if it decides to uphold this reservation.

The then attorney general and the solicitor general had vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50 per cent quota meant for the socially and economically backward classes (SEBC). Hence, the amended provision does not violate the basic structure of the Constitution, they had said.

The top court heard as many as 40 petitions and most of the pleas, including the lead one filed by 'Janhit Abhiyan' in 2019, challenged the validity of the Constitution Amendment (103rd) Act 2019.

The Centre had filed some petitions seeking the transfer of pending cases, challenging the EWS quota law, from various high courts to the apex court for an authoritative pronouncement.

The bench, on September 8, had framed three broad issues for adjudication arising from the pleas challenging the Centre's decision to grant 10 per cent reservation to EWS in admissions and jobs.

It had said the three issues suggested by the then attorney general for the decision "broadly" covered all the aspects relating to the petitions on the constitutional validity of the decision to grant the reservation.

"Whether the 103rd Constitution amendment Act can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria," read the first issue framed.

The second legal question was whether the constitutional amendment could be said to breach the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions.

"Whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation," the third issue, to be adjudicated upon by the bench, read.

The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that Parliament could not amend every bit of the Constitution, and aspects such as rule of law, separation of powers, and judicial freedom formed part of the "basic structure" of the Constitution and hence, could not be amended.

The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for EWS reservation in admissions and public services.

Earlier, the Centre, in 2019, had also told the apex court that its law, granting a 10 per cent quota for EWS, was brought in to promote "social equality" by providing "equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status".

The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9 in 2019 respectively and it was then signed by then President Ram Nath Kovind. The EWS quota is over and above the existing 50 per cent reservation to SCs, STs, and Other Backward Classes (OBCs).