Read Time: 06 minutes
The “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability, opined Justice Bhat.
Upholding the validity of the 103rd Constitutional Amendment that introduced 10% reservation for Economically Weaker Sections (EWS), the Supreme Court, today, pronounced its judgment by a majority with a 3:2 ratio.
Justice Ravindra Bhat in his dissenting opinion said, "At the outset, it is acknowledged that the doctrine of reasonable classification is not per se a part of the basic structure; it is however, a method evolved by this court to breathe life into and provide content to the right to equality under Article 14 – the latter being a part of the basic structure. The contention made by those supporting the amendment – that treating the SC, ST and OBC as a distinct class from those who are not covered under Article 15(4) and 16(4) is a reasonable classification, necessitates further scrutiny".
Justice Bhat authoring the judgment, also on behalf of CJI UU Lalit, held Sections 2 and 3 of the Constitution (One Hundred and Third Amendment) Act, 2019 that had inserted clause (6) in Article 15 and clause (6) in Article 16, respectively, as unconstitutional and void on the ground that they are violative of the basic structure of the Constitution.
Introducing the economic basis for reservation – as a new criterion, is permissible. Yet, the “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability, he further opined.
However, on the same point and contention, Justice Maheshwari, Justice Bela M Trivedi, Justice JB Pardiwala opined, that the reservation to EWS, falls well within the realms of the basic structure of the Constitution.
The three grounds of challenge to the Amendment were:
1. that reservation based on economic criteria violates the basic structure of the Constitution;
2. exclusion of poor SC/ST/OBCs is 'inexplicably discriminatory';
3. exceeding 50% reservation cap is an 'unacceptable abrogation of the Equality Code'.
On the Amendment and the enabling provision, he further said that the 'exclusionary clause operates in an utterly arbitrary manner, in three ways:
-that it “others” those subjected to socially questionable, and outlawed practices who are actually the poorest;
-the exclusion operates against the socially disadvantaged classes and castes, absolutely, by confining them within their allocated reservation quotas;
-it denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation.
What becomes important to note is that the reservation for EWS is not a mandate but an enabling reservation, which has a cap of maximum 10%. Therefore, 10% reservation is not compulsory to be affixed and pushed in the system.
The Constitution (One Hundred and Third Amendment) Act, came into effect on 14-01-2019 where two new clauses were added to Articles 15 and 16 of the Constitution of India viz., clause (6) to Article 15 with Explanation and clause (6) to Article 16; and thereby, the State has been empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” of citizens other than “the Scheduled Castes” , “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes”.
Case Title: Janhit Abhiyan vs Union of India
Please Login or Register
