- Learned counsel, Ms. Diya Kapoor, while stressing upon the Equality Code and it being part of the basic structure, has argued on two facets. First, as to whether the inclusion of new class of reservation solely on the basis of economic criteria was constitutionally permissible; and
second, as to whether the exclusion of SCs, STs and OBCs from this newly created class, was constitutionally permissible. She mapped the historical background of reservations for backward classes since 1917 until the Constituent Assembly Debates, where Dr. B.R. Ambedkar and Mr. K.M. Munshi supported the use of the term ‘backward’ so as to grant special benefits to the classes qualifying that criterion and to neutralize the oppression faced by them. She would submit that such classification was based on long continuing historical oppression faced by these classes. Thus, to ensure their representation, reservations were provided as a means to foster the equality and fraternity of the country, with various checks and safeguards.
- The learned counsel has further argued that reservation is for participation and representation and cannot be used for poverty alleviation. Reservation in public employment is to reverse discrimination and to equalize representation. Providing government jobs cannot pave a way for economic upliftment whereas, other ways of providing subsidies etc., is a kind of affirmative action to eliminate poverty. Indeed, poverty alleviation is a goal for the State to strive for as per Directive Principles of State Policy[14] but, reservation is not a way to alleviate poverty, as is evident from the statistics that despite decades of reservation in favour of
SCs, STs and OBCs, they are still poor. Relying on the decision of this
Court in Minerva Mills Ltd. and Ors. v. Union of India and Ors.: (1980)
3 SCC 625[15], she would submit that alleviation of poverty has to be done without trampling on Fundamental Rights. Welfare steps can be taken under DPSP but it cannot be done under Article 15 unless there has been discrimination on the grounds mentioned in Article 15(1), as otherwise, the character of Article 15 is changed and results in abrogating the
Fundamental Rights. As iterated by this Court in Indra Sawhney, Article
16(4) has to be in consonance with and in furtherance to Article 16(1). Similarly, Article 16(6) also has to be in furtherance of equality of opportunity under Article 16(1). So, if Article 16(6) is violative of Article 16(1), it cannot sustain itself in the scheme of the Constitution.
16.2. Further relying upon 3-Judge bench decision of this Court in Indra Sawhney v. Union of India: (2000) 1 SCC 168, the learned counsel has submitted that by providing reservation to forward class, the identity of backward class is erased and therefore, such reservation is illegal, hitting at the roots of the Constitution. Moreover, if the forward class becomes backward, it can come under OBC so as to benefit from reservation. She would reason that the 103rd Constitution Amendment is discriminatory to SCs and STs as the people falling in EWS are approximately five per cent. and for these five per cent. of people ten per cent. of reservation is provided. The learned counsel would further submit that the amendment in question is arbitrary too, for there is no mechanism/procedure laid down for it, as under Article 340, for identification of genuine EWS.
- Learned counsel, Dr. M.P. Raju, has based his submission on the ground that the amendment in question is a caste-based reservation that excludes the historically oppressed groups (SC/ST/OBC) from its coverage and is thus, destructive to the aim of ‘casteless society’, which is the Preambular vision forming the basic structure of the Constitution. Learned counsel has submitted that this amendment has created two levels of classification – first, between the classes already covered under Articles 15(4) and 16(4) (socially and educationally backward classes) and those who were not (forward class/non-reserved), which has resulted in caste-based classification; second, within the forward class between those who were economically weaker and those who were not. Such classification, in his opinion, not only defeats the goal of casteless society, as envisaged by the Constituent Assembly, but also attempts to create vertical reservation inside a vertical reservation, which is not permitted under the Constitution.
- The learned counsel has further submitted that, as held by this Court in Indra Sawhney, if castelessness is an ideal of the Constitution, and if this ideal goes into the basic identity of the Constitution, then the constitutional amendment, even if passes the test of equality, violates the basic structure. He has also urged that the condition of ‘adequate representation’ that controlled Article 16(4) is intentionally excluded from Articles 15(6) and 16(6). Reservation, once starts, has to end. It cannot be in perpetuity. He has further argued that the amendment in question is violative of the Constitution inasmuch as grant of reservation to already sufficiently represented classes while excluding those who were inadequately represented (SC/ST/OBC) offends not only the Equality Code but also the principle of Fraternity, as recognised in the Preamble to the Constitution. He has supported his contentions while relying upon decisions of this Court in M.A. Pai Foundation and Ors. v. State of Karnataka and Ors.: (2002) 8 SCC 481 and V.V. Giri v. D.S. Dora: (1960) 1 SCR 246.
- Learned counsel, Mr. Kaleeswaram Raj, has based his
submissions on modern jurisprudence citing academic scholarship[16] to submit that two things are to be considered while dealing with
discrimination law. First, the immutability and second, it should constitute fundamental choice. Relativity of poverty is antithetical to immutability. He has further submitted that the 103rd Amendment in the context of exclusion, made the forward communities as protected group and the backward class as cognate group, which is impermissible. The amendment in question strips off the right of backward class candidates to contest the seats kept in open category, to which they are entitled to. The learned counsel has argued that this amendment fails the preference test by giving preferential treatment to forward class and taking it away from backward class who are inadequately represented. He has further submitted that the ‘living tree’ approach should be applied to interpret the
Constitution as per the changing circumstances of the society.
- Learned counsel has also argued that Fundamental Rights are individualistic in nature; and while relying on the decision of this Court in
Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.: (2017) 10 SCC 1, he would submit that the individual is the focal point because it is only in the realization of individual rights, that the collective well-being of the group can be determined and hence, it remains baseless to say that collective rights have been provided to the SC/ST/OBC as a group.
- Learned counsel, Mr. Pratik Bombarde, has submitted that the amendment in question changes the identity of Fundamental Rights while omitting to take into account the crucial factor that social backwardness was a ‘cause’ of economic backwardness and not its ‘consequence’. While relying on the decision in Saurav Yadav and Ors. v. State of Uttar Pradesh and Ors.: (2021) 4 SCC 542 which held that open category is open to all and horizontal and vertical reservations are methods of ensuring representation in public places, he has argued that the right to equality of the persons belonging to SC, ST and OBC communities is impacted by reducing their seats in open category. He would reiterate that rule of ejusdem generis shall apply while reading Article 46. Lastly, he has submitted that confining each social category to its extent of reservation would result in communal reservation, which, in turn, would result in breach of Equality Code and thereby, damage the basic structure of the Constitution.
- Learned counsel, Mr. Akash Kakade referred to the phraseology of the provisions under consideration and submitted that while Articles
15(4) and 15(5) refer to socially and educationally backward classes, Article 16(4) is directed towards backwardness and inadequate representation. According to him, the impugned provisions of Articles 15(6) and 16(6) have left aside the key elements of “social backwardness” and “inadequate representation” while providing for EWS reservation. These provisions, therefore, are rather antithetical to the spirit of the existing provisions. The learned counsel has again urged that Article 46 should be read under the rule of ejusdem generis and by excluding SC, ST and OBC communities, the said rule is violated. According to the learned counsel, keeping SC, ST and OBC communities outside of its scope and bringing in economically weaker sections within it was never the idea of Article 46. He has also submitted that no constitutionally recognised commission has been set up for determination of the financial incapacity/capacity of a candidate, as in the case of OBCs.
