The majority view, as enunciated by one of the five judges of the Constitution Bench, described reservation as “an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society, but also for the inclusion of any class or section so disadvantaged”.
In a landmark ruling Monday, the Supreme Court upheld by a 3-2 majority the Constitution (One Hundred and Third Amendment) Act, 2019 introducing 10 percent reservation for the economically weaker sections (EWS) among the unreserved categories in admissions and government jobs.
The majority view, as enunciated by one of the five judges of the Constitution Bench, described reservation as “an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society, but also for the inclusion of any class or section so disadvantaged”.
While Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala agreed that the amendment does not violate the basic structure of the Constitution, Chief Justice of India U U Lalit, who retires Tuesday, and Justice S Ravindra Bhat dissented, saying the EWS quota is “contradictory to the essence of equal opportunity” and “strikes at the heart of the equality code”.
The dissenting judges were of the view that “while the ‘economic criteria’ per se is permissible in relation to access of public goods (under Article 15), the same is not true for Article 16, the goal of which is empowerment, through representation of the community”.
The five judges agreed that the provision gives the State the power to make special provisions in relation to admissions to private unaided institutions.
Justices Trivedi and Pardiwala also touched upon the concept of reservation as originally envisaged for a limited period and underlined the need to revisit and fine-tune it with the realities of the day. “Reservation,” said Justice Pardiwala, “should not be allowed to become a vested interest”.
Justice Maheshwari said, “Reservation is an instrument of affirmative action by the State to ensure an all-inclusive march towards the goals of an egalitarian society while counteracting inequalities; it is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society, but also for the inclusion of any class or section so disadvantaged as to be answering the description of a weaker section. In this background, reservation structured singularly on economic background does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India.”
He said “exclusion of the classes covered by Articles 15(4), 15(5) and 16(4)” – the Socially and Educationally Backward Classes (SEBC), Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) – “from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate the equality code and does not in any manner cause damage to the basic structure of the Constitution of India”.
Justice Maheshwari rejected the argument that providing the EWS quota over and above the 50 percent ceiling fixed by the Mandal Commission case will violate the basic structure, saying “that ceiling limit is not inflexible and in any case only applies to the reservations envisaged” for the already reserved categories “by Articles 15(4), 15(5) and 16(4) of the Constitution”.
He said the 103rd amendment “cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria”.
