New Delhi: The Central government on Tuesday told the Supreme Court that 10 per cent reservation for the economically weaker sections amongst general category of population was an “affirmative action” and distinct from the 50 per cent reservations provided for the SC, ST and OBC community, and does not impinge on it. The SC has previously capped reservations at 50 per cent.
Describing the EWS reservation introduced in 2019 by way of the 103st Amendment to the Constitution as an “affirmative action”, Attorney General K.K. Venugopal told a Constitution bench comprising Chief Justice Uday Umesh Lalit, Justice Dinesh Maheshwari, Justice S. Ravindra Bhat, Justice Bela M. Trivedi and Justice J.B. Pardiwala that it was aimed to benefit members of the nearly 18 crore economically weaker segment of population falling under the general category.
While the Sinha Commission had put the EWS number at about 18 crores, the Niti Aayog’s multidimensional poverty index puts it at 25.1 crore.
Addressing the argument of the petitioners opposing the EWS reservation that it was beyond the 50 per cent cap on the reservation imposed by the top court by its 1992 judgment in the Indra Sawhney case, Attorney General told the Constitution bench that the cap was for the SC, ST and OBC communities who formed a homogeneous group. He said that the SC/ST and OBC and EWS amongst general category are two distinct compartments.
The Attorney General emphasised that 10 per cent EWS reservation was within the 50 per cent space left out for the general category and should not be clubbed with reservation for SC/ST and the OBCs.
Adverting to the argument that the EWS reservation was discriminatory as it does not extend to similarly placed economically weaker categories in SC/ST and the OBCs, Attorney General Venugopal said that theirs (SC/ST & OBC) is a self-contained reservation that also included economically weaker segments. He said they drive “far additional advantages” besides the reservation in educational institutions and public jobs.
Drawing a distinction between the reservation for SC/ST and the OBC on one hand and the EWS on the other, the Attorney General said that EWS reservation is not an extension of the SC/ST reservation but a distinct category that has evolved over a period of time.
Beside Attorney General Venugopal, the daylong hearing on the fourth day saw the petitioner, ‘Youth for Equality’, supporting EWS reservation but opposing it being carved out of the remaining 50 per cent for the general category seats. It said that it violated the basic structure of the Constitution.
Senior advocate Shekhar Naphade, appearing for Tamil Nadu which is opposing the EWS reservation argued that the economic criteria in itself cannot be a classification for grant of reservation and if economic weakness was to be accepted as a basis of reservation then it would require revisiting the 1992 nine-judge bench in the Indra Sawhney case.
Telling the constitution bench that the crux of the matter for the consideration of the court is whether we can think of reservation for the upper castes, he said this would lead to a new understanding of equality under Article 14 of the constitution which is part of the basic structure of the Constitution and in such a situation it would require revisiting the top court’s 1973 judgment in Kesavananda Bharti case.
In the course of the hearing, Chief Justice Lalit said the court was not adjudicating on the parameters for the grant of the EWS reservation but on the concept of the legal, and constitutional footings of reservation based on economic basis.
Justice Lalit said this as a lawyer urged the court whether a person having an income of Rs. 50,000/- a month, or four acres of agricultural land or 1,000 square yard of plot in urban areas could be treated hailing from an economically weaker background. The Attorney General Venugopal will continue his arguments today.
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