EWS quota goes against the basic structure of Constitution, SC told

Hearing the pleas challenging the constitutional validity of the 10% quota for the economically weaker sections (EWS) on Tuesday, Dr. G Mohan Gopal, appearing on behalf of petitioners, said the quota was a fraud on the Constitution.

A Constitution bench of Chief Justice of India UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and JB Pardiwala began hearing the matter. 

Dr. G Mohan Gopal said the EWS reservation was an attack on the constitutional vision of social justice. “I will argue then how this 103rd amendment is a fraud on the constitution and how this violates the basic structure. The foundation of social justice lies in the 85-word preamble,” he said. 

He said the reservation in the Constitution was for backward groups but EWS confines the benefits of the reservation to only forward classes. “It infringes on the principles of social justice and equality and goes against the basic structure of the Constitution,” he said. 

He stressed that if EWS was indeed given for social backwardness, it would be extended to all castes. 

He raised two points:

1. The benefits of EWS are not extended to all social classes but only forward classes which violate the basic structure of the Constitution

2. Reservation is a tool of representation in the Constitution

Talking about how the Constitution is a document of the social revolution which casts an obligation on all institutions including the judiciary to transform the status quo and translate into a new social order, he said there is a need for fraternal concord now compared to more than ever. 

Earlier, the constitution bench of the Supreme Court said it will discuss the three issues suggested by Attorney General for India (AG) KK Venugopal in the pleas challenging the constitutional validity of the 10% quota for EWS. 

The reservation was made by the 103rd Constitutional Amendment Act 2019. 

The three issues are as follows:

- Whether the 103rd Constitution Amendment 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?

- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions about admission 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?

In January 2019, the Parliament inserted a clause in Articles 15 and 16 of the Constitution which allowed people from the EWS to avail themselves of reservation in jobs and educational institutions. The clause empowered States to give reservation in both aided/non-aided private and government educational institutions. However, minority educational institutions were exempted from such a reservation. The ceiling of the reservation was 10 percent which would add to the existing other reservations. 

After the reservation was implemented, a batch of petitions was filed by NGOs Janhit Abhiyan and Youth for Equality, and others, in the apex court to decide whether the 10 percent reservation violated the 50 percent ceiling cap on quota and if ‘economic backwardness’ alone could be the sole criterion for granting quota in government jobs and educational institutions for those who were under general quota.