Economic backwardness can be temporary… does EWS need affirmative action, not quota: SC

The CJI was responding to submissions by advocate Vibha Makhija, appearing for some EWS category students, who said it was constitutionally permissible to have economic condition as a criterion for providing reservation.

Pointing to the transformative character of the Constitution, Makhija said its makers would never have envisaged a situation where caste remains the sole criterion for providing quota.

The bench, also comprising Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala, posed questions on the “indeterminability” of the EWS category due to absence of any well-defined guidelines.

“There is indeterminability… You call it flexibility but it’s indeterminability,” Justice Bhat told Solicitor General Tushar Mehta who defended the amendment.

Mehta said that social backwardness too is not defined in the Constitution.

Justice Bhat said for that, one can go beyond the Constitution, to the Preamble, speeches of Constitution makers etc. In the case of EWS, he said, “you are in an uncharted sea”.

Justice Maheswari too pointed out that there is “no methodology at all, no guidelines” as to who would constitute EWS.

Mehta said the problem can be resolved by setting up a commission. “It is curable. The government can come out with a commission. If some state implements EWS without that exercise… that executive action can be challenged,” he said, adding that “absence of guidelines is not a ground for challenging amendment”.

Mehta said a Constitution amendment cannot be struck down unless it violates the basic structure and that “the amendment does not destroy the basic structure but strengthens the Preamble by giving justice – economic justice which is a fundamental part of the Preamble”.

He said “the constitutional vision of equality and equal opportunity is dynamic and evolving – not in substance but surely in form. The present amendment is in tune with this dynamic and evolutionary nature taking the next logical step – and providing “balance” and “reasonability” to the operative realities of reservations as a whole. The present amendment provides for an additional form of affirmative action, without changing the substance of the equality code and while balancing the other anomalies that may arise from the pre-existing forms of affirmative action”.

Mehta submitted that “while the Constitution provides for reservation for Scheduled Castes, Scheduled Tribes and socially and educationally backward classes on the touchstone of adequacy of such representation, the same can in no way create an exclusionary principle which stops the constituent power of the Parliament to provide for special measure for different reasons. Therefore, while pre-existing reservations exist within the inadequacy – social backwardness paradigm, the same cannot restrict the future generations from adopting other similar measures for other reasons and classes”.

He said the submissions of the petitioners “restrict the affirmative action provisions in the Constitution within the caste paradigm which was certainly not the intention nor can it be said to be the basic structure of the Constitution”.

“Poverty and/or economic weakness is not merely a financial reality. Economic weakness is also a social reality and it has a close connection with the societal and educational parameters… caste is not the only indicator of social backwardness… social backwardness could be caused by other factors also and any classification or societal identification outside the caste axis, on other socio-economic indicators cannot be said to be constitutionally perverse…. while caste is notably reality, it is not the only society indicator of standing,” Mehta said.

He said that “over the course of the nation’s progress in the 21st century, economic weakness has also become an indicator of social standing by itself. The aim of the republic is that of betterment in all walks of life, social, economic and political of all castes and classes”.