10% EWS quota: Supreme Court to decide on March 28 if it needs to be sent to Constitution bench

Appearing for a petitioner, senior advocate Rajeev Dhavan said the matter will “ultimately have to go to a Constitution Bench”. He submitted that the decision of the Supreme Court in M Nagaraj & Others vs Union Of India & Others case made it clear that 50 per cent limit (on reservation) “goes to the basic structure” (of the Constitution).

The petitioners have contended that the 10 per cent quota goes against the Supreme Court ruling that total reservation should not exceed 50 per cent.

One of the petitions, by NGO Youth for Equality, referred to the 1992 decision of a Constitution Bench in Indra Sawhney Etc. Etc vs Union Of India And Others, popularly known as the Mandal Commission case. It submitted that the court in that case “specifically stated that the economic criteria cannot be the sole basis for reservation under the Constitution”.

The amendments introducing economic reservation “completely violates the Constitutional norm that economic criterion cannot be the only basis of reservation as has been laid down by the nine judges in Indra Sawhney…,” it said, adding “such an amendment is hence, vulnerable and ought to be struck down as it merely negates a binding judgment”.

The NGO contended that the policy was also violative of the equality principle enshrined in Article 14 of the Constitution. “By way of the present amendments, the exclusion of the OBCs and the SCs/STs from the scope of economic reservation essentially implies that only those who are poor from the general categories would avail the benefits of the quotas. Taken together with the fact that the high creamy layer limit of Rs 8 lakh per annum ensures that the elite in the OBCs and SCs/STs capture the reservation benefits repeatedly, the poor sections of these categories remain completely deprived,” the petition stated. It said “this is an overwhelming violation of the basic feature of equality enshrined in Article 14 of the Constitution and elsewhere”.

The petition pointed out that the court in its 2006 judgment in M Nagaraj & Others vs Union Of India & Others had said that reservation should not breach the 50 per cent ceiling limit. The “50% ceiling limit of reservation has been engrafted as a part of the basic structure of the Constitution’s equality code”, it stated, adding that the new quota policy breached the 50 per cent limit.

The Nagaraj judgment also required that in order for reservation to be imposed, there must be some sort of quantitative exercise undertaken in advance. “There has been absolutely no such attempt made to arrive at the ad hoc 10 per cent figure…,” the NGO contended.

The petition argued that the changes as “manifestly arbitrary” as it “imposes” reservation on unaided institutions which do not receive any aid from the state. It alleged that the quota push was done with an eye on vote bank.