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A five-judge Constitution Bench to look into EWS Quota

A five-judge Constitution Bench to look into EWS Quota
-By Snehi Suryash

On Wednesday, the Apex Court referred to a 5-Judge Constitution Bench pleas challenging the Centre’s decision to grant quota. The 10% quota was set for the Economically Weaker Sections (EWSs) in jobs & admissions in the general category.

The issue of whether there can be quotas for the poor may well be one of them.

Why Constitutional Bench?

A 3-Judge bench headed by CJI SA Bobde said that a larger bench will decide the pleas filed. Stating the reason that the present matter involves ‘substantial questions of law’. There are 35 petitioners challenging Centre’s decision.

According to Article 145 (3) of the Constitution, at least five judges need to hear cases that involve ‘a substantial question of law as to the interpretation’ of the Constitution.  Or

 any reference under Art.143, which deals with the power of the President of India to consult the apex Court.

103rd Constitutional Amendment Act:

  • It introduced an economic reservation (10% quota) in jobs and admissions in education institutes for Economically Weaker Sections (EWS).
  • The Articles 15and 16 were amended and Article 15 (6) and Article 16 (6) were inserted.
  • It was enacted to promote the welfare of the poor not covered by the 50% reservation policy. Which was for SCs, STs and Socially and Educationally Backward Classes (SEBC).
  • This Amendment Act also enables both Centre and the states to provide reservation to the EWS of society.

What are the Petitioners’ Contention:

The pleas are filed by two NGOs ‘Janhit Abhiyan’ & ‘Youth For Equality’ along with 33 others. The petitioners includes anti-reservation activists and also students and jobseekers of other categories

The plea sought directions to quash the Constitution (103 Amendment) Act, 2019. And stating that the economic criterion cannot be the sole basis for reservation. And contended that such a quotas for the poor would eat into their share of quotas.

The Supreme Court in the 9-bench Indira Sawhney case of 1992 had capped all quotas at 50%. The same was to allow the rest to be filled from merit. Thus the new Constitutional Amendment Act of 2019 is in contrary to it. The quota will be over & above the existing 50% reservation to Scheduled Castes, Scheduled Tribes & Other Backward Classes(OBCs).

The pleas said the Act violated the basic feature of the Constitution. Since, the reservation for EWS cannot be limited to the general category. And the overall 50% ceiling limit cannot be breached.

The petitioners also argued that jobs only on the ground of economic standing was an impossibility under existing constitutional scheme. Which permit reservations only for the educationally and socially backward classes of citizens.

Also that Reservation in unaided institutions violates the fundamental right under Article 19(1)(g) of the Constitution. Article 19 (1)(g) allows every citizen to practise any profession, or to carry on any occupation, trade or business.

Central Government’s Stand:

The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment. When a law is challenged, the burden of proving it unconstitutional lies on the petitioners.

The government argued that Article 46 of the Constitution, mandates a duty to protect the interests of economically weaker sections. That reads as follows:

The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

The central government states that amendment was necessitated to benefit EWS society.They were not covered under existing schemes of reservation.Which as per statistics, constitute a considerably large segment of the country’s population.

Also stated that the 50% limit in the Indira Sawhney ruling cannot be applied in the present petitions. As the Sawhney case dealt with memoranda issued by the government while what is challenged now is a constitutional amendment.

On the challenge that the amendment violates the Basic Structure, the government argued that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.