Supreme Court’s Minority View On EWS Quota Arbitrary & Discrimination

The 103rd Constitutional Amendment, which included a 10% reservation for Economically Weaker Sections (EWS) in education and public employment, has been maintained by a 3:2 majority of the Supreme Court Constitution Bench.

Justice S Ravindra Bhat issued a dissenting verdict to overturn the 103rd Constitution Amendment, which was backed by Justices Dinesh Maheshwari, Bela Trivedi, and JB Pardiwala. Uday Umesh Lalit, the Chief Justice of India, agreed with Justice Bhat’s point of view in the minority.

The judgement is in two parts:

Part I: According to all five honorable judges, a new reservation can be created using economic grounds.

Part II: On the issue of excluding the OBC, SC, and ST from the new category of “poor,” the Court was divided 3:2.

The two Honorable Judges (Hon’ble Chief Justice U U Lalit and Hon’ble Justice Bhat) strongly dissented, highlighting the fact that the Indian Constitution’s fundamental principles forbade discrimination.

Every caste and community has its share of destitute people. “Will the poor be treated equitably under the Constitution?” is a moot issue.

Attorney General Venugopal, speaking on behalf of the Centre, had earlier argued that the EWS quota does not go against the fundamental principles of the Constitution because SCs and STs have received benefits through affirmative action, such as reservations for promotion in government jobs, the legislature, panchayats, and municipalities.

He continued by saying that the EWS quota was allocated without affecting the 50% quota set aside for the socially and economically disadvantaged sections (SEBC). The AG continued by stating that economically underprivileged portions made up both the general category as well as the SCs, STs, and OBCs, which were all economically backward groups.

The AG argued that the EWS quota is distinct from the SCs, STs, and OBCs quotas since they are self-contained groups of underprivileged people.

Learned counsel, Mr. Akash Kakade referred to the phraseology of the provisions under consideration and submitted that while Articles 15(4) and 15(5) refer to socially and educationally backward classes, Article 16(4) is directed towards backwardness and inadequate representation.

According to him, the impugned provisions of Articles 15(6) and 16(6) have left aside the key elements of “social backwardness” and “inadequate representation” while providing for EWS reservation. These provisions, therefore, are rather antithetical to the spirit of the existing provisions.

The learned counsel has again urged that Article 46 should be read under the rule of ejusdem generis and by excluding SC, ST and OBC communities, the said rule is violated. According to the learned counsel, keeping SC, ST and OBC communities outside of its scope and bringing in economically weaker sections within it was never the idea of Article 46.

He has also submitted that no constitutionally recognized commission has been set up for determination of the financial incapacity/capacity of a candidate, as in the case of OBCs.