After 70 years, time to change the contours of reservation: Govt to SC
The submission by the Centre was made by solicitor general Tushar Mehta in defence of the 10% quota in admissions and jobs for the EWS among the general category, which is under challenge in a clutch of petitions.
The constitutional vision of equality is dynamic as well as evolving and after 70 years, time has come to change the contours of reservation by providing a 10% quota to the economically weaker section (EWS) among the poor, unreserved class of citizens, the Centre told the Supreme Court on Thursday.
The submission by the Centre was made by solicitor general Tushar Mehta in defence of the 10% quota in admissions and jobs for the EWS among the general category, which is under challenge in a clutch of petitions. The five-judge Constitution bench examining the validity of poverty-based reservation, however, raised concerns over the exclusion of the poor among the backward castes and classes and the lack of any guiding principles to assess economic backwardness.
Mehta said, “There are aspirations of the youth in our country. We happen to have the highest young population in the world. Parliament has to respond to these aspirations of the general category so that they come forward.”
Mehta said that since 1950, caste was treated to be the sole defining criterion of backwardness but with the 103rd Constitution Amendment Act providing for EWS quota, the government has recognised economic weakness as a social reality.
“Over the course of the nation’s progress in the 21st century, economic weakness has also become an indicator of social standing by itself. The aim of the Republic is that of betterment of all castes and classes. This noble aim would provide upward mobility to all such groups, castes and classes so that no one person is left behind,” Mehta said.
The 103rd amendment furthers this larger idea without touching the pre-existing reservation and providing for affirmative action to the segment of society who have remained outside the fold of affirmative action since 1950, he added.
Being the first economic-based reservation in the country, the Centre said this was a “secular” affirmative action to which the five-judge bench headed by Chief Justice of India (CJI) Uday Umesh Lalit said, “If it is secular, why not make it totally open to EWS across all categories.” The EWS quota excludes persons from SC, ST and other backward classes (OBC) as they are already covered under the reservation policy.
The bench, also comprising justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, said, “There is an assumption that someone who comes from forward class will be socially and educationally forward. Their economic backwardness could be a temporary condition. Background of such a person may be good but for some reason he may be poor. On the other hand, SCs/STs are historically backward. There is a permanency attached to a particular creed, caste, community because they are scheduled caste or backward class. This remains from generation to generation.”
Mehta submitted, “After over 70 years, we may have to change the contours of how we look at the poor among the unreserved category. From this common family of general category, the weakest is given benefit and there is none from this category who are complaining that their 50% share stands reduced to 40%. The Preamble mandates states to provide for economic justice to all its citizens. As a nation you need to deal with this constitutional aspiration.”
The court also wished to know from the Centre how economic reservation can be justified in the absence of any constitutional controls that determine EWS beneficiaries. As regards SC, ST and OBC categories, the judges observed that in granting 27% OBC reservation, the creamy layer is kept out and for SCs/STs, there is a methodology to determine under the Constitution. “For economic criteria, there is no such determination. The Centre can say families earning below ₹8 lakh but Constitution does not provide any guidelines. To that extent, EWS is indeterminate and is not capable of control by the Constitution.”
Mehta said the Constitution envisages “zones” of affirmative action for specific purposes and the same is grounded in sound constitutional policy. “While pre-existing reservations exist within the inadequacy-social backwardness paradigm, the same cannot restrict the future generations from adopting other similar measures for other reasons and classes so long as it respects and protects the basic structure of the Constitution,” he said.
Blunting the challenge by petitioners to the EWS quota on grounds that it violates equality, which is part of the basic structure, Mehta said, “Rather than altering the basic structure, this amendment furthers the vigour of the basic structure of the Constitution by providing for ‘economic justice’ as stated in the Preamble.”
This was the sixth day of arguments. Attorney general KK Venugopal had concluded his submissions on the issue on Wednesday. The states of Madhya Pradesh, Andhra Pradesh, and Assam along with a group of EWS beneficiaries supporting the law made their submissions.
The bench said the petitions challenging EWS reservation acknowledge the existence of the poor in the general category but argue that they could be catered to by providing scholarships or fee concessions at the school level rather than reservation. “There is no anthropological study that there are generations of poor who have suffered over the years. Even if these benefits are provided, can we envision that poorest of poor can stand up? There will still be barriers on who will coach them. We need to see how far this accords with the vision of the Constitution.”
The hearing will continue on Tuesday.