With the Centre asserting that the 10% quota for Economically Weaker Sections (EWS) will not in any way reduce the 50% quota for Scheduled Castes, Scheduled Tribes and Other Backward Classes, the Supreme Court on Wednesday sought to know whether this would eat into 50% set apart for the general category.
Presiding over a five-judge Constitution Bench which is hearing petitions challenging the Constitution 103rd amendment by which the EWS quota was introduced, Chief Justice of India U U Lalit told Attorney General K K Venugopal that one of the arguments of the petitioners was that the creamy layer among the OBCs, who are not entitled to the 50% reservation and thereby competes in the 50% general quota, will now have their share reduced to 40%.
The bench, also comprising Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala, said that while the general category has not advanced any submissions against EWS reservation, “the effect of the 10% getting reduced from the quota available to the general category has been projected and advanced by one of the counsels for OBCs. So please keep that in mind.”
“There was a submission advanced by one of the counsel that so far as the creamy layer component of the OBCs is concerned, they are not entitled for any reservation as a matter of right…. The OBCs, who are above the creamy layer, for them the piece of the cake or the cake get reduced from 50% to 40%,” the court pointed out.
Venugopal responded that reservation for general category and backward classes are “two separate compartments”. He said the 50% quota for backward classes will not get affected and that “classification among the non-reserved category to decide the EWS is permissible”.
The bench also referred to arguments that the EWS quota violates the Constitution by excluding the poor among SCs, STs and OBCs, thereby discriminating on grounds of caste. “There is a right to be treated as an open category…. Depending upon the performance, you get into merit. Anybody can make it in the general category…. But once you put a 10% embargo, you are excluding some classes on the basis of caste”, as “this is reserved to those who have no reservations,” the bench said.
The A-G explained that “so far as SCs, STs and OBCs are concerned, they have been taken care of in the 50% reserved category. So far, the creamy layer will have to compete in general category seats”.
Venugopal also argued that economic criteria can be the sole determining factor for backwardness. He said EWS was introduced under exceptional circumstances.
He pointed out that as per the Report of the Sinho Commission, there were 5.8 crore people suffering in poverty within the general category, and that they were as poor as the poor in OBC category.