The official announcement stated, “The persons belonging to EWS who are not covered under the policy of reservation for SCs, STs, and OBCs shall obtain 10% reservation in direct recruitment in civil posts and services in the Government of India.
Since the Act’s passage, any family with a gross yearly income of less than Rs 8 lakh can be covered as EWS, excluding those in SC, ST, and OBC.
Three of the four arguments raised by Attorney General K K Venugopal on the matter will be looked at by a five-judge panel led by Chief Justice of India U U Lalit.
The Constitution (One Hundred and Third Amendment) Act, 2019, was passed by the Indian Parliament on January 9th, giving the State the ability to make reservations in higher education and public employment on the sole basis of economic factors. The Act added 15(6) and 16 into Articles 15 and 16 of the Constitution (6). On January 12th, 2019, it obtained presidential assent and was simultaneously published in the Gazette.
The Amendment under Article 15(6) allows the State to implement extraordinary measures, such as reservations in educational institutions, for the advancement of any economically underprivileged group of citizens. Any educational institution, including both aided and unassisted private colleges, is allowed to make these accommodations, with the exception of minority educational institutions regulated by Article 30. (1). The document further specifies that reservations for EWS citizens may be made for up to 10% of seats, with no lower or upper restriction. The 10% cap is apart from any caps on current bookings.
The State may include measures for reservations in appointments under Article 16.6. Again, in addition to the current reservations, these provisions will be capped at 10%.
The constitutionality of the 103rd Amendment has been contested in more than 20 petitions. They contend that the Amendment contradicts both the fundamental equality guaranteed by Article 14 and the essential elements of the Constitution. They make the following arguments in particular:
- Given the ruling in Indra Sawhney v. Union of India by the Supreme Court, reservations cannot be made exclusively on the basis of economic factors (1992).
- Economic reserves cannot exclude SCs/STs and OBCs since doing so would go against their fundamental right to equality.
- The Amendment adds reservations that go above the Indra Sawhney-instituted 50% cap on reservations.
- The fundamental right to equality is violated when restrictions are placed on educational institutions that do not receive State funding.
Currently, there are quotas for Scheduled Castes, Scheduled Tribes, and Other Backward Classes of 15%, 7.5%, and 27% of seats in education and public appointments, respectively.
- Given that it goes over the 50% cap set down in Indra Sawhney v. Union of India, is the addition of a 10% reservation for Economically Weaker Sections unconstitutional?
- Under the constitutional system, can the reservation be mandated only on the basis of economic factors rather than social and educational backwardness?
What took place in court?
The CJI-led bench made it plain at the commencement of hearings that the court would hear any State that wanted to forward remarks in the case and asked how much time each party would need to make their submissions.
The CJI verbally stated the following after considering the amount of time needed with the counsels:
“What we suggest is that we may allow either side further time—in this case, five working days—to respond to any questions that are raised. First week: 3 working days; second week: 2 working days. Next Tuesday, we start working on this. One request: don’t submit the same thing twice.”
Tushar Mehta, the Solicitor General of India, responded that two days might be too little time for each side.
The CJI stated verbally that the exercise would be carried out while taking into account standard accounting principles, and the court will proceed to hear the matter accordingly. CJI Lalit narrated the order as follows after additional discussion of the time needed and the factors that had to be taken into account:
“Mr. Gopal Sankaranarayanan’s suggested issues have been presented for consideration. All lawyers involved in the case may receive a copy of those draught issues. Following consultation with all counsel, the issues will then be finalized and presented to the court on Thursday.
The nodal counsels in the case, Mr. Shadan Farasat, and Mr. Kanu Agarawal have provided us with the necessary time. They claim that the case will take 18 hours to resolve. State of Assam and State of MP representatives Mr. Maninder Singh and Mr. Jethmalani argue that since intervention applications have been referred, states will be eager to advance their arguments. The nodal counsels might think about accepting States. There will be ample chance for all states to be heard. Before we begin the hearing in the main matter, we will list this matter again for directions so that hearing is conducted smoothly.”
It was on August 5, 2020 that a 3-judge bench comprising the then CJI SA Bobde, Justice R Subhash Reddy and Justice BR Gaval referred the matters to the Constitution Bench. Some of the referred issues include whether the ceiling limit of 50% for reservation can be breached in special circumstances and whether affirmative action can be provided on the sole criteria of economic status.