Explained | Supreme Court’s three-question test for validity of 10% EWS quota

The Supreme Court is set to examine whether the Constitution (103rd Amendment) Act, which introduced a 10 per cent quota for the Economically Weaker Sections (EWS), violates the basic structure of the Indian Constitution.

A five-judge Constitution bench, headed by Chief Justice of India (CJI) U U Lalit, is set to hear the matter, which was referred to a five-judge panel in August 2020.

With the hearings on the matter set to commence from September 13, we take a look at the issues to be examined.

What is the 103rd Amendment?

This amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to EWS—distinct from backward classes, Scheduled Castes and Scheduled Tribes (SCs, and STs—in higher education institutes and initials recruitment for government jobs.

Articles 15 and 16 prohibit discrimination on grounds of religion, race, caste, sex, and place of birth, and guarantee equal opportunity in matters of public employment respectively. The insertion of the additional clauses empowered the Parliament to make special laws for the EWS, as it does for SCs, STs, and other backward classes (OBCs).

Why is the 103rd Amendment being challenged?

Petitioners challenging the constitutional validity of the 103rd Amendment, according to the Indian Express, argue that it deviates from the basic structure of the Constitution, which guarantees protections for socially disadvantaged groups, by promising so on the sole basis of economic status.

The petitioners have also pointed out that the EWS quota violates the apex court’s ruling in the Indra Sawhney v Union of India (1992) case, which upheld the recommendations of the Mandal Commission report and capped reservations at 50 per cent.

A third argument, which stems from private educational institutes, holds that their right to practise a profession/trade is violated when the state compels them to implement its reservation policy and admit students on criteria other than merit.

What other issues have been pointed out?

Senior Advocate Shankaranarayanan, representing the Youth for Equality organisation, pointed out four issues with the amendment, as per the Supreme Court Observer.

First, he called for an examination of whether the EWS quota violates Articles 15 and 16 of the Constitution that gives states the power to provide reservations.

Second, Shankaranarayanan called for an examination of whether the EWS quota violates the Right to Equality by exceeding the 50 per cent cap set on reservations by the Supreme Court in the Indra Sawhney v Union of India (1992) case.

Third, the senior advocate urged the apex court to examine whether the EWS reservation violated the Right to Equality by excluding SCs, STs and OBCs from its scope.

Shankaranarayanan also asked the court whether the ‘creamy layer principle’ for excluding affluent people from reservations for a recognised group would be applicable for EWS reservations.

What is the status now?

Of the four issues raised, Attorney General K K Venugopal and Solicitor General Tushar Mehta, representing the Union of India, raised objections to the fourth.

After deliberations between the parties in the case, Chief Justice Lalit agreed to hear the first three issues raised in the matter from September 13 onwards.