SC upholds 10% reservation for economically weaker sections in 3-2 majority

CJI Uday Umesh Lalit and Justice Bhat declared the amendment unconstitutional

In a significant decision, the Supreme Court on Monday by a majority view upheld validity of the 103rd Constituional Amendment providing a 10 per cent quota for economically weaker sections in jobs and education.

The top court held that the Narendra Modi government's decision allowing special provisions, including reservation based on economic criteria, applicable also to private unaided institutions, even to the exclusion of socially and educationally backward classes, SC/STs and OBCs from its scope and purview, does not breach the basic structure of the Constitution.

A five-judge Constitution bench headed by Chief Justice of India U U Lalit passed the judgement by 3:2 on a batch of petitions filed by NGO 'Janhit Abhiyan' and others.

Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala pronounced their own separate but concurring judgements upholding the validity of the law.

CJI Lalit and Justice Ravindra Bhat, however, declared the amendment as unconstitutional for excluding backward classes from its ambit, even though they held that special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structure.

Both the judges declared that the classification was arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and were subjected to caste discrimination.

The majority view also declared that the 50 per cent ceiling for reservation fixed by the Indra Sawhney judgement (Mandal case by nine-judge bench in 1992) was not inflexible.

Justice Maheshwari, in his judgement, said the EWS quota law does not violate the basic structure or equality code for taking into account the economic criterion.

"Reservation is an instrument of affirmative action so as to ensure all-inclusive march towards the goals of an egalitarian society while counteracting inequalities; it is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society but, also for inclusion of any class or section so disadvantaged as to be answering the description of a weaker section," he said.

Agreeing to the view, Justice Trivedi said treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of the basic feature or violative of Article 14.

"Just as equals cannot be treated unequally, unequals also cannot be treated equally. Treating unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution," she said.

In his own judgement, Justice Pardiwala said the decision is an affirmative action to hitherto untouched groups, who suffered from similar disadvantages as the OBCs competing for opportunities.

"If economic advance can be accepted to negate certain social disadvantages for the OBCs (Creamy Layer concept), the converse would be equally relevant. At least for considering the competing disadvantages of Economically Weaker Sections.
Economic capacity has been upheld as a valid basis for classification by this court in various other contexts," he wrote.

Both Justices Trivedi and Pardiwala favoured a relook at reservation.

Justice Bhat, who authored for himself and the CJI, said, "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."

The exclusionary clause operates in an utterly arbitrary manner. Firstly, it "others" those subjected to socially questionable, and outlawed practices – though they are amongst the poorest sections of society. Secondly, for the purpose of the new reservations, the exclusion operates against the socially disadvantaged classes and castes, absolutely, by confining them within their allocated reservation quotas (15% for SCs, 7.5% for STs, etc.). Thirdly, it denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation, he said.