The three issues include whether the amendment breaches the Basic Structure by permitting the State to make special provisions, including reservation, based on economic criteria.
The three issues include whether the amendment breaches the Basic Structure by permitting the State to make special provisions, including reservation, based on economic criteria.
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A Constitution Bench led by Chief Justice of India U.U. Lalit on Thursday, September 8, 2022 finalised three cardinal issues for examining whether the 103rd Constitutional Amendment, which provides 10% quota to economically weaker sections (EWS) of the society in government jobs and educational institutions, violates the Basic Structure of the Constitution.
The three issues include whether the amendment breaches the Basic Structure by permitting the State to make special provisions, including reservation, based on economic criteria.
Whether the amendment violates the Basic Structure by allowing the State to make special provisions in relation to admissions to private unaided institutions.
The Bench will examine if the Basic Structure is trampled upon by the constitutional amendment by excluding SEBCs/OBCs/SCs/STs from the scope of the EWS quota.
Hearing on Sept. 13
The five-judge Bench, also comprising Justices S. Ravindra Bhat, Dinesh Maheshwari, S.B. Pardiwala and Bela Trivedi, said it would start hearing the arguments from September 13.
The three issues for the court’s examination were forwarded by Attorney General of India K.K. Venugopal.
Chief Justice Lalit said the three questions of law would form the foundation of the court’s examination and lawyers could expand on them while arguing.
Legal scholar and advocate, Dr. G. Mohan Gopal, compared the case to a watershed moment similar to the ADM Jabalpur (habeas corpus) case.
“We are crossing a Rubicon and it is the ADM Jabalpur of social justice as it reverses the theory that one is privileged by being born in upper class and that being born in the lower classes is a disability,” Dr. Gopal submitted.
Senior advocate P. Wilson pointed out that the court ought to examine whether the EWS quota was in violation of the rule of equality and non-discrimination and if the move to grant reservation to forward castes (EWS or otherwise) was simply impermissible.
Senior advocate Gopal Sankaranarayanan, who had prepared the draft issues for the court which were circulated among the lawyers in the previous hearing, said nearly 55 issues were suggested by various parties, but an effort was made to trim the questions of law for consideration.
Attorney General Venugopal said the question of creamy layer does not come in the EWS quota as it was meant to give quota benefits to the poorest of the poor.
The CJI, in the court’s order, said the issues suggested by the Attorney General encapsulated the matter under consideration.
“We shall go ahead with the hearing apropos the first three issues suggested by the Attorney General,” the Bench said.
The challenge to the 103rd Constitutional Amendment was referred to a five-judge Bench in August 2020. The three-judge Bench, which had referred the case to the larger Bench, had refused to stay the implementation of the amendment.
Economic reservation was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness.
“It is the case of the petitioners that the very amendment runs contrary to the Constitutional scheme and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five judges,” the three-judge Bench had concluded.
The Centre had argued that it was every State’s prerogative to provide 10% economic reservation in State government jobs and admissions in State-run educational institutions.
“Whether or not to provide reservation to the economically weaker section (EWS) of the society for appointment in State government jobs and for admission to State government educational institutions, as per provisions of the newly inserted Articles 15(6) and 16(6) of the Constitution is to be decided by the State government concerned,” a seven-page affidavit of the Union had said.
