But Chief Justice Lalit and Justice Bhat held it was exclusionary, arbitrary and violative of the basic structure of the Constitution.
In a split 3:2 verdict, the Supreme Court on Monday, 7 November, upheld the 103rd amendment providing 10 percent reservation to economically weaker sections (EWS) among “forward classes”, describing it as affirmative action that was not violative of the basic structure of the Constitution.
It held that the amendment did not offend the equality code by excluding SC/STs and OBCs from its ambit.
The majority view of the five-judge Constitution Bench was pronounced by Justice Dinesh Maheshwari, Justice Bela M Trivedi and Justice JB Pardiwala in three separate but concurring judgments.
However, Chief Justice Uday Umesh Lalit and Justice S Ravindra Bhat, in a dissenting judgment, ruled against the 103rd amendment of the Constitution reading down Article 15(6) and 16(6) that paved the way for 10 percent EWS reservation among forward classes.
They held it was exclusionary, arbitrary and violative of the basic structure of the Constitution.
Holding that there was no exclusionary concept in the Constitution, Justice Bhat, who authored the dissenting judgment, however, said that the state was entitled to affirmative steps and found no flaw in mandating private unaided educational institutions to adhere to 10 percent EWS reservation.
Justice Bhat did not express any view on the question whether 10 percent EWS reservation was in breach of the 50 percent cap on reservations placed by a nine-judge Constitution Bench in 1992 in the Indra Sawhney case.
He said that as the matters relating to reservation beyond 50 percent cap in Tamil Nadu and other states were pending before the apex court, it would not be proper to express any opinion on this aspect.
Holding that reservation on economic grounds alone was permissible, Justice Bhat said that the exclusion of SC/STs and the OBCs from EWS category was not permissible and was arbitrary and discriminatory.
Referring to the Sinha Commission report that was the basis of EWS reservation, Justice Bhat said that it was written based on the 2001 census and a subsequent 2004 survey.
He noted that of the 18 crore-plus people living below the poverty line, 7.7 crore belonged to the Schedule Castes, which constituted over 48 percent of the SC population. Scheduled Tribes constituted 4.2 crore of those below the poverty line, that is, 48.4 percent of ST population, and the rest belonged to the general categories.
He drove home the point that the bulk of the people below the the poverty line were SC/STs and OBCs. Excluding them from EWS reservation was thus discriminatory and arbitrary, he said.
The questions that were adjudicated by the Constitution Bench included: Whether 10 percent EWS reservation over and above the ceiling on 50 percent reservation was violative of the basic structure of the Constitution; whether the exclusion SC/STs and OBCs from 10 percent EWS reservation offended the equality code; could there be reservation on the grounds of economic backwardness alone.
Pronouncing the majority view, Justice Dinesh Maheshwari said that reservation was an instrument of affirmative action so as to ensure “all-inclusive march towards goals of egalitarian society”, and “it is a means of inclusion of any class or section so disadvantaged. Reservation on economic basis does not violate the basic structure of the Constitution”.
Holding that the exclusion of SC/ST and the OBCs from 10 percent EWS quota was not violative of the equality code, Justice Maheshwari said that cap on 50 percent reservation in 1992 judgment was not an “inflexible”.
Concurring with Justice Maheshwari, Justice Trivedi suggested revisiting reservations saying, “It cannot be gainsaid that age-old caste system in India led to introduction of reservations, so that SC/STs get level playing field. At end of 75 years, we need to take a re-look at reservations in general in the spirit of transformative constitutionalism.”
Upholding the EWS reservation, Justice Pardiwala said that those who have attained certain educational levels should be excluded from perpetuating it, so that others in need could have the benefits of reservation.
“The ones who have moved ahead should be removed from backward classes so that ones in need can be helped. The ways to determine backward classes needs a re-look so that they are relevant in today’s time. Reservation should not continue for an indefinite time so that it becomes a vested interest,” Justice Pardiwala said.