Five-judge SC constitution bench to decide challenge to EWS quota

New Delhi

The Supreme Court on Wednesday decided to refer, to the Constitution Bench, the petitions challenging the provision for reservations in jobs and education to the economically weaker sections (EWS).

A bench comprising Chief Justice S.A. Bobde and Justices R. Subhas Reddy and B.R. Gavai said the main plank of the argument from the side of the petitioners is that the economic criteria alone cannot be the basis to determine backwardness and they relied on the nine-judge bench judgement of the apex court in the case of Indra Sawhney, relating to the Mandal Commission recommendations.

"We allow the transfer petitions and refer this batch of cases, including the cases covered by transfer applications, to a bench of five judges," the court said.

The petitioners, challenging the reservation for EWS in jobs and education, cited that this quota exceeds the ceiling cap of 50 per cent, which is a violation of the apex court judgement.

Attorney General K.K. Venugopal, representing the Centre, strongly relied on the judgment of the top court in the case of Society for Unaided Private Schools of Rajasthan where the provisions of Right of Children to Free and Compulsory Education Act, 2009 were upheld.

The bench observed that it is clear that for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution, the matter is to be heard by a bench of five judges.

The bench had last year reserved its order on a batch of petitions filed by NGOs Janhit Abhiyan and Youth for Equality and others challenging the validity of Constitution (103rd Amendment) Act, 2019, on grounds that economic classification cannot become the sole basis for reservation.

The court noted that on the plea of a ceiling of 50 per cent for affirmative action, it is the case of the respondent (Union of India) that though ordinarily 50 per cent is the rule, but this will not prevent it from amending the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections.

"Whether the impugned Amendment Act violates the basic structure of the Constitution, by applying the tests of 'width' and 'identity' with reference to equality provisions of the Constitution, is a matter which constitutes a substantial question of law within the meaning of the provisions," the top court observed.

The Constitution Amendment Bill was passed by the Lok Sabha and the Rajya Sabha in January 2019. The top court had reserved its order on the matter in July 2019.