- Learned senior counsel, Mr. Sanjay Parikh, has relied extensively on the Constituent Assembly Debates to contend that the Assembly was of the clear opinion that the word ‘backward’ should precede ‘class of people’. Therefore, despite being aware of the rampant poverty in the country, the focus of reservations was predominantly on the social stigma attached to the group. Reservation in public employment was given because the framers wanted the backward classes to share State power and for that matter, they had to be provided equal opportunity. The Assembly intended to extend the benefits of affirmative action to only those socially and educationally backward groups who had been excluded from mainstream national life due to historic injustice, stigma and discrimination and thus, bringing in any other criteria, excluding the communities who have suffered such stigmatisation, would be a blatant violation of not only the Equality Code but also the very principles of democracy (sharing of power being necessary to sustain democracy), both of which form part of the basic structure of the Constitution.
- The learned counsel would submit that the criteria for ‘backwardness’ was always ‘social’ in nature and ‘economic’ backwardness was never accepted as the sole criteria. Placing reliance on the decision of this Court in Indra Sawhney, he has contended that by the majority of 8:1, it was held that economic criteria cannot be the sole basis to grant reservation under Article 16. Drawing attention to the theory of ‘Substantive Equality’ propounded by Prof. Sandra Fredman, the learned counsel has submitted that reservation solely on economic criteria would violate the principles of substantive equality ingrained in the Constitution, which was directed against identity-based historic
marginalisation.
- Learned counsel has further placed reliance on Indra Sawhney to draw distinction between backward class and weaker sections discussed under Articles 16(4) and 46, respectively. It has been argued that the latter has no limitations and thus, Article 46 cannot be the basis for providing reservation. He has also urged that exceeding fifty per cent. limit would violate the twin tests of width and identity, as propounded by this Court in Nagaraj and Ors. v. Union of India and Ors.: (2006) 8 SCC 212[9] and result in disturbance of equality; and that fifty per cent. limit cannot be breached under any circumstance except if a law is protected under the Ninth Schedule to the Constitution, which the amendment in question is not. He supported his argument citing Indra
Sawhney and Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors.: (2021) 8 SCC 1[10], wherein it was held that reservation under Article 16(4) should not exceed fifty per cent.
- Traversing through the history of reservation policy since the year
1872 and the decision of this Court in State of Madras v. Champakam Dorairajan: AIR 1951 SC 22612, Prof. Ravivarma Kumar, learned senior counsel, has submitted that the ratio of decision of this Court in
Champakam, that classification on the basis of religion, race, caste, language or any of them was against the ethos of Constitution, has been followed unanimously and consistently by this Court in M.R. Balaji and
Ashoka Kumar Thakur v. Union of India and Ors.: (2008) 6 SCC 1[11]. However, the 103rd Amendment reinstates the communal Government Order set aside in Champakam.
10.1. Elucidating further on formal and substantive equality, the learned counsel has submitted that despite ensuring equal opportunity to all, it was still felt necessary to prohibit discrimination specifically on the grounds of religion, race, caste, sex, place of birth so as to halt all inequality and create a more egalitarian society, protecting the interests of every individual through Articles 15, 16, 17, 23, 24 and 35. In order to highlight the intensity of caste-based discrimination in India, he exemplified the prejudices and discriminations faced by Dr. B.R. Ambedkar and M.K. Gandhi and submitted that unless caste is destroyed in the country, equality cannot be attained in true sense of the term.
10.2. The learned counsel has further contended that the term “socially and educationally” backward has been employed in Article 15(4) and the expressions employed are not “socially or educationally” or “socially or economically”. The intention behind this was to protect those classes of population who have been historically disadvantaged by birth and not by loss of wealth or by accident. Further, the substantive equality enshrined through Articles 15 and 16 not only makes the provisions to bridge the
gap but it also provides the means by which this gap can be bridged. Likewise, under Article 340, the first Backward Classes Commission laid down 22 parameters for the identification of a backward class. The amendment in question does not have any such machinery employed
within its ambit for the identification of population who would fall under the EWS category. Relying upon the census report, he has submitted that the population who would fall under the EWS would be around five per cent., and providing ten per cent. of reservation for such a small population, more so to the forward class, is manifestly arbitrary and fraud on the Constitution. Further, this positive discrimination is taking away the rights from rest of the population.
10.3. The learned counsel has further argued that as per the grounds of discrimination in Article 15, the Constitution has provided a bridge for all the grounds but there, economic deprivation is not mentioned, which clarifies that it was not considered as a basis for discrimination. Applying the principle of ejusdem generis to Article 46, he contended that the measures contemplated in the Statement of Objects and Reasons of the amendment in question are in favour of SCs and STs and those weaker sections who are similarly circumstanced to SCs and STs; and definitely is not meant for those castes and sections which are at the other end of the pendulum in the society.
10.4. Relying on the decision of this Court in Indra Sawhney, the learned counsel has posited that economic criteria cannot be the sole basis to provide reservation. He would further submit that a class should be homogenous, have a common origin, and have the numerical strength. The EWS created by the amendment in question does not fulfill any of the criteria and hence, cannot be called a class for any State action, particularly the affirmative action. He further emphasised on this argument by intensively reading the opinion of Justice Sahai in Indra Sawhney.
10.5. The learned counsel has further submitted that the amendment in question fails on all the anvils of Equality Code because, if poverty is the rationale behind it and it aims at providing jobs for the poor by way of reservation then, the amendment fails to address as to how the poverty of the forward class is different from that of the SCs, STs and OBCs. Hence, the amendment in question fails the twin test of rationality and nexus, and violates the basic structure of Constitution.
- Learned senior counsel, Mr. Salman Khurshid, has submitted that in India, reservation formed a special part of affirmative action. It is within the larger affirmative action circle that reservation finds its place. Drawing analogy with countries like U.S.A., Israel and Germany, the learned counsel has submitted that indeed affirmative action can be an answer, but it is not the only answer. There are, therefore, many ways of addressing the issue of economic disadvantage other than reservation, as has been done by these countries. He would further submit that the limit for such reservation cannot exceed fifty per cent. except in cases where compelling reasons arise. Arguing on the Equality Code, learned counsel has relied on the classification laid down by this Court in P. Royappa v. State of Tamil Nadu and Anr.: (1974) 4 SCC 3, to submit that the present amendment neither has any reasonable classification nor such classification has any nexus with the object to be achieved, hence is violative of Article 14. Entire list of reserved categories of citizens is caste-based and the amendment did not include any metric or indicator, ignoring the marginalisation criteria entirely while granting reservation. He has also quoted the works of John Rawls to submit that each person has the same indefeasible right over every claim.
- “One law for lion and ox is oppression”, Mr. P. Wilson, learned senior counsel, quoting William Blake, has contested the amendment in question on four grounds. First, granting reservation to upper caste is violation of the basic structure of Constitution as the basis of reservation must be rooted in identified past discrimination which impeded access to public administration and education opportunities. Relying on the decision of this Court in Indra Sawhney and judgment of the Gujarat High Court in
Dayaram Khemkaran Verma v. State of Gujarat: 2016 SCC Online Guj 1821 wherein similar reservations on the basis of economic criteria were quashed by this Court and the High Court respectively, he has submitted that economic criteria cannot be the sole basis for providing reservation, and the reservation cannot exceed fifty per cent. limit. Second, he submitted that reservation in the favour of forward class violates the basic structure of the Constitution and is, therefore, unconstitutional. Third, classification of EWS is neither reasonable nor valid. The reason for providing reservation to SC, ST and OBC communities was historical and perpetual discrimination and stigmatisation. It was the structural barrier that kept them from the mainstream. Reservation cannot be used as a poverty alleviation scheme. Hence, such classification violates the Equality Code under Article 14. Fourth, the amendment in question fails the width test laid down by this Court in M. Nagaraj as there are no limitations or indicators that have been devised to identify the people falling under the EWS. Whereas, for each category, be it SC, ST or OBC, the Constitution is overseeing the reservation by virtue of Articles 366(24), 366(25), 338, 340, 341 etc. Hence, the amendment in question fails the guided power test.
- Learned senior counsel, Mr. K.S. Chauhan, while placing reliance on Constituent Assembly Debates and decision of this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.: (1973) 4 SCC 225[12], has argued that the 103rd Amendment violates the basic structure of the Constitution as it changes the identity of the Constitution. He would again submit that providing reservation solely on economic criteria is against the decision of this Court in Indra Sawhney and also against the facet of democracy, as democracy ought to be representative. The learned counsel would argue that economic criteria is transient in nature whereas the inclusion of backward classes under
Article 16(4) was on the ground of historical exclusion. In our society, discrimination finds its root in caste, religion, race, etc. and not in economic condition of a person. The classification under Article 14 has to have reasonable nexus and intelligible differentia which the amendment in question, because of all the aforesaid reasons, fails to achieve. He has also submitted that indeed forward class must have faced some
discrimination, but the intensity of discrimination is not enough to justify reservation. To support his submission, he has relied on the judgment of this Court in Madhav Rao Scindia Bahadur etc. v. Union of India: (1971) 1 SCC 85 wherein it was held that constitutional philosophy is the obligation of the executive; if a particular class is eligible for identification in a category and it is not identified as such, the constitutional scheme will be destroyed; and if under the constitutional scheme, an obligation is given to a wing and if that wing is not discharging the function, it is a fraud on the Constitution.
- Learned counsel, Mr. Yadav Narender Singh, while referring to Sinho Commission Report, has submitted that the report, on the basis of which the amendment was enacted, itself stated that economic criteria would not result in homogenous class. Learned counsel has argued that in the absence of quantifiable data, one could not create a class for which protective measures are to be taken. The said Report concluded that if poverty is kept as a base-line for reservation, then it should have in its ambit all, irrespective of their class, more so because the poor of SCs, STs and OBCs are worse-off than those of general category. He has further argued that the condition precedent for a protective clause is existence of discrimination. Hence, protective action for a class that is neither a homogenous class nor is discriminated against, is violative of the basic structure of the Constitution. Learned counsel has relied upon the decision of this Court in Indra Sawhney, to submit that economic criteria cannot be the sole basis for classification. He has further argued, in the alternative, that even if reservation on grounds of economic criteria is to be given, EWS ought to include those who are living below the poverty line (BPL).
- Learned counsel, Mr. Shadan Farasat, while adding on to the submissions already advanced by the preceding counsel for petitioners, posited that the originalist understanding of reservation is that it can solely be granted as an anti-discriminatory measure and not as an antideprivation measure. Hence, the amendment in question cannot sustain itself, as it addresses the deprivation faced by an individual and not discrimination.
- The learned counsel would further argue that even if it is assumed that reservation can be granted as an anti-deprivation measure, still the amendment violates the Equality Code as it excludes the SCs, STs and OBCs, who are poorer than the poor of forward class, without any intelligible differentia and its nexus with the object sought to be achieved.
Opposing the justification that these classes are already protected by way of Articles 15(4) and 16(4), he has submitted that the purpose of Articles
15(4) and 16(4) is to protect a ‘group’ and to counter the historical wrong/oppression done to them. Whereas, the amendment in question deals with situational deprivation, mainly economic criteria, and is intended to protect an individual. Purposes and entities of both the protections being different, inclusion of SCs, STs and OBCs in one cannot mean their exclusion from the other.
- The learned counsel has re-emphasised on the submissions that statistically, the backward class poor are worse off than forward class poor and their poverty is deeper, more intense and likely to be stickier and persistent. He has relied on Sinho Commission Report, NITI Aayog Multi-dimensional Poverty Index, along with other reports; and has argued that the question before the Sinho Commission was whether there could be reservation for general category people not covered in any other category. The Report itself stated that the backward class poor are poorer than the upper-class poor. He would underscore the point that poverty is deeply linked to the caste of an individual and the perception surrounding that status.
- The learned counsel has further submitted that grant of
reservation as a measure of affirmative action is a way for reparation and does not lead to economic upliftment. The object of economic upliftment of deprived sections of society can be achieved through other measures of poverty alleviation but reservation is not the answer. While contending that Articles 15(1) and 16(1) are part of the basic structure of Constitution and that it is only in furtherance of substantive equality that formal equality can be breached, he has submitted that exclusion on the basis of caste straightaway breaches formal equality. Further, exclusion of those who are arguably more impacted by this criterion violates substantive equality too, hitting the Equality Code, and resultantly violating the basic structure of the Constitution.
- In another line of arguments, the learned counsel has put forth the proposition that the words “other than” in Articles 15(6) and 16(6) should be read as “in addition to”, thereby including SCs, STs and OBCs within them and furthering the basic structure. He has placed reliance on the decision of this Court in State (NCT of Delhi) v. Union of India and Anr.: (2018) 8 SCC 501 to submit that if two interpretations are possible – one which destroys the basic structure and the other which enhances it – then purposive approach enhancing the basic structure of the Constitution is to be taken and not the literal approach. He has concluded the submissions while quoting from the judgment of this Court in C. Vasanth Kumar and Anr. v. State of Karnataka: 1985 Supp SCC 714[13] that lower the caste, the poorer are its members.
