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Last Updated at November 7, 2022 10:48 IST
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The Supreme Court of India (SC) is likely to announce its verdict on the constitutional validity of the 103rd Constitutional Amendment, which introduced a 10 per cent reservation to the Economically Weaker Section (EWS) in education and public employment, on Monday. The matter was heard by a five-judge bench headed by the chief justice of India (CJI) UU Lalit.
CJI Lalit will retire on November 8.
What is the 103rd amendment?
On January 12, 2019, the government of India amended the Constitution to provide a 10 per cent reservation to the candidates from the general category that belongs to the "Economically Weaker Section (EWS)" of the society.
To qualify for the reservation, the household income of the candidate must be less than Rs 8 lakh per annum.
The amendment read, "The persons belonging to EWSs who are not covered under the scheme of reservation for SCs, STs and OBCs shall get 10 per cent reservation in direct recruitment in civil posts and services in the Government of India".
People belonging to OBC, SC or ST categories were not eligible for reservations under this amendment. Also, minority-run education institutes were kept out of the ambit of the reservation.
What is the issue?
Since the amendment was passed in 2019, over 40 petitions have been filed in the court, challenging its constitutional validity. Most of them stated that it violated the "basic structure" of the Constitution.
In the Indra Sawhney & Others vs Union of India case, 1992, the Supreme Court stated that no amendment that violates the Constitution's basic structure would be valid.
It further stated that the total number of reserved seats and positions could not exceed 50 per cent of the total. Also, economic backwardness cannot be the sole reason for reservation.
Senior advocate P. Wilson argued that Article 15(4) & 16(4) are enabling provisions to grant reservations which are affirmative action to offset centuries of social discrimination and promote equality. He added that the 103rd Amendment nullifies and destroys the substantive equality sought to be achieved by Article 15(4) & 16(4) & takes SC/ST/OBC's back to pre-Constitution condition in the society.
"In Indra Sawhney, this court has held that reservations based on economic criteria will lead to virtual deletion of Art 15(4) and 16(4)", he said.
Senior counsel argued that the Centre had not provided the nexus between reservation and poverty or explained why other benefits instead of reservations could not be granted to EWS. Another counsel argued against the compartmentalisation of classes and submitted that the 50 per cent ceiling limit was sacrosanct and violating it would be a shocking infringement of the basic structure, and also something inflexible could also be basic structure.
What is the government's stance on the issue?
Then attorney general KK Venugopal said that the EWS reservation does not erode the rights of the SCs, STs and the OBCs.
Against the argument of violating the basic structure, the government said that "to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered."
Solicitor general Tushar Mehta the government has provided Rs 4,315 crore to central higher educational institutions to create additional infrastructure to meet the demand for raising the seats.
The solicitor general said the central government, as a sovereign, had responded to the wishes and aspirations of the poor people.
He said that the constitutional amendment a decision was taken, in order to ensure that the seats available to the reserved category and the open category are not impacted in absolute numbers.
"The Department of Higher Education issued orders on January 17.01.2019 to all the Central Educational Institutions to increase the intake in all branches of study to provide for 10 per cent reservations for Economically Weaker Sections, while protecting the proportionate reservations for Scheduled Castes/ Scheduled Tribes and Other Backward Classes and also not reducing the seat availability in the General category (in absolute numbers) in the year 2018-19," he said.
The law officer said as per the calculations, in order to provide the EWS quota, without adversely impacting the proportionate existing reservations and not reducing the seat availability for the general category in absolute numbers as compared to the admissions made in 2018-19, the total increase in intake has to be raised by approximately 25 per cent.
A total of 214,766 additional seats were approved to be created in the central educational institutions; and an expenditure of Rs 4,315.15 crore was approved to be incurred to improve the infrastructure in the higher educational institutions, he said.
(With agency inputs)
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First Published: Mon, November 07 2022. 10:39 IST 