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Synopsis

Today, a five-judge Bench (Constitution Bench) of Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala heard a petition (along with a batch of other petitions as connected matters) challenging the 103rd Constitutional Amendment that introduced 10% reservation for Economically Weaker Sections (EWS) in higher education and government jobs.

The Court has reserved his judgment on the matter after hearing, and further directed Advocate Shadan along with Advocate Kanu Aggarwal to prepare a concise written compilation in 2-3 days. The Bench remarked, "we started with say 1 unit, today we are 20, we want you to put that in concise form".

Advocate VK Biju submitted that Poverty should be the foundation and the basis of reservation. And said that it is the right of the individuals, and if the other party comes in between or objects to that right, he would say, “Now you are coming qua democratically passed bill”. He further read Sinho Commission reports, to substantiate the intention of extending reservation to the Economically Weaker Section. And cited Kerala as an example where people have asked for reservations on the basis of economic criteria and not caste.

In rejoinders, Senior Advocate Professor Ravivarma Kumar in his initial line of submissions, referred to a search mission carried by the Indian Navy to find survivors of a calamity, where they found that people from Andamans, the most primitive tribes saved were unhurt because of their harmony with the nature. He used that example to put forth that the communities are away from the mainland, and have stayed away from any caste based categorisation, and are thus referred to as casteless. And cited many tribes from the north east (mongolian tribes), central and southern Indian tribes, and said that these tribes have been eliminated only because of their race, therefore, shouldn’t they be eligible then? And further submitted that the Solicitor General has failed to observe the nexus between reservation and poverty. He had also stated that OBC’s are not a homogenous group. 

Senior Advocate Gopal Sankarnarayanan referred to Sachar Committee and Ranganath Mishra Committee reports, and stated that they have not been accepted by the government formally. He provided data on Hindu and Muslim reservations. To which the Court asked, “So that there are 40% Muslims under the OBC category”. He said, yes, but the condition of General Muslims is lower than Hindu OBC’s. He further said that it is not necessary for anything to be a part of the basic structure to be flexible.

Senior Advocate P Wilson submitted that reliance on NSSO data and Sinho Committee’s for forming a basis of the argument is not valid, as the Committee report does not have empirical data.  He referred to a list of backward classes not being added to the Union list and submitted that they can't compete in Central government jobs (showing that inequality still prevails).

Senior Advocate Meenakshi Arora stated that proportionate reservation is not envisaged in Article 15 and 16 but in 243. And from that many are left out. “We cannot forget the fact that whatever be the number of seats, the principle as envisaged under 15 would apply”. And on the argument that ‘exclusion of EWS is not caste but classes’, it was submitted that “reservations are not given in proportion to the population”. And there is no justification to discriminate against them on economic criteria”.

Senior Advocate Sanjay Parikh said if economic criteria is reversed, even then the component of social backwardness has to come.

Dr. Chauhan asked the Court to look into a facet that when the President of the Country can be denied entry to a temple because of his caste (for which a criminal case is pending), then what is the difference between a President belonging to a scheduled caste category and a citizen belonging to the same.

Advocate Kaleeswaram Raj referred to Puttaswamy’s judgment to state that an individual is the focal point of the Constitution, and violation, if any, would mean violation of the basic structure.

Dr. G Mohan Gopal submitted before the Court, the intentions of including orphans in OBC category, and how Jats have been included. He further submitted that,

"There is massive human suffering in the groups. Weakness is a quality and backwardness is a rank. Weakness produces the rank. You cannot use backwardness to fight weakness and vice versa. Please don’t divide the socio-economic and political family. And further that poverty is a multidimensional problem which goes beyond economics". He further said,

“For the first time in the history of this country, being a member of a forward class (socially and educationally) has been made a prerequisite for getting government assistance”. 

He further made a reference to Dr. BR Ambdekar's remark to reservation as "dangerous instrument", and said it puts a chain for those who have been discriminated against, and it is used to open doors and not close doors for others.

Counsel Shadan's request to present data on the number of STs in Madhya Pradesh etc., the Court denied to accept it, because the matter did not pertain to the question that was before the Court.

 

CASE TITLE: Janhit Abhiyan vs Union of India