Supreme Court Monday upheld by a 3:2 majority, the 103rd amendment to the Constitution introducing a 10 per cent reservation for the Economically Weaker Sections (EWS) in admissions to educational institutions and government jobs.
While Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala agreed that the amendment does not violate the basic structure of the Constitution, Chief Justice of India U U Lalit and Justice S Ravindra Bhat dissented.
Justice Maheshwari, in his judgment, said that the reservation is an instrument of affirmative action by the state to ensure an all-inclusive march towards the goal of an egalitarian society while countering inequalities. “It is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society, but also for the inclusion of any class or section so disadvantaged as to be answering the definition of a weaker section. In this background, reservation singularly on economic background does not violate any essential feature of the Constitution and does not cause any damage to the basic structure of the constitution,” he said.
Exclusion of the reserved categories from the EWS quota does not violate the equality code and does not in any manner cause damage to the basic structure of the constitution, he added.
Justice Maheshwari also opined that the reservation for EWS over and above the 50 per cent cap does not violate the basic structure, saying that the ceiling, by itself, is not inflexible and in any case only applies to reservation envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution.
Concurring with Justice Maheshwari’s statement, Justice Bela M Trivedi said that the amendment enabling state to make special provisions for EWS other than Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes is required to be treated as an affirmative action on the part of the Parliament for the benefit and betterment of the EWS category. Treating the EWS class of citizens as a separate class would be a reasonable classification, she said, adding that it cannot be called unreasonable, or unjustifiable classification, much less a betrayal of basic feature or as violative of Article 14.
She further stated: “The impugned amendment creates a separate class of EWS from the general or unreserved category without affecting the special rights of reservations provided to the SC’s, ST’s and SEBC’s. Therefore, exclusion of SC’s, ST’s and SEBC from such reservation is not unreasonable.”
Justice Trivedi also said that though it was envisaged that reservation must have a time span, it has still not been accomplished even after 75 years of Independence. She added that the policy needs to be revisited in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.
