SC refers anti-EWS quota pleas to five-judge bench

“Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges as per Article 145(3) of the Constitution read with Order XXXVIII Rule 1(1) of the Supreme Court of Rules, 2013,” the bench added.

The bench also ordered that petitions on the issue pending before different High Courts be transferred to the five-judge bench.

The petitions challenged the constitutional validity of The Constitution (One Hundred and Third Amendment) Act, 2019, by which a clause (6) was introduced in Articles 15 and 16.

Article 15(6) empowers states to make special provision for advancement of any EWS other than those mentioned in clauses (4) and (5) and to make a special provision on their admission to educational institutions —-including aided or unaided private ones — other than minority educational institutions referred to in clause (1) of Article 30. This will be in addition to existing reservations and subject to a maximum of 10 per cent of total seats in each category.

Article 16(6) empowers the state to make any provision for reservation of appointments or posts in favour of any EWS other than classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of 10 per cent of posts in each category.

The petitioners contended that the amendments are ultra vires as they alter the basic structure of the Constitution. They argued that the amendments run contrary to the dictum in the majority judgment in the 1992 case Indra Sawhney & Ors. V. Union of India, that a backward class cannot be determined only and exclusively with reference to economic criterion. They also argued that reservation in unaided institutions violates the fundamental right under Article 19(1)(g) of the Constitution.

Countering this, the Centre said the amendment was necessitated to benefit EWS who are not covered under existing schemes of reservation, which as per statistics, constitute a considerably large segment of the country’s population.

The Centre also contended that the ratio in the Indira Sawhney ruling that economic backwardness cannot be the sole criterion for identifying backward classes cannot be applied in the present petitions as the Sawhney case dealt with memoranda issued by the government while what is under challenge now is a constitutional amendment.