NEW DELHI: The Centre told a Constitution bench of the Supreme Court on Tuesday that 10% reservation for economically weaker sections (EWS) in the general category of the population is "affirmative action" but distinct from reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes.
The government said the EWS quota, brought in through the 103rd Constitution Amendment, does not impinge upon the reservation granted to SCs, STs and OBCs and so should not be treated as exceeding the maximum 50% reservation fixed for them.
Attorney General KK Venugopal told the bench headed by Chief Justice Uday Umesh Lalit and comprising Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala that the amendment was aimed at benefiting nearly 18 crore people from the EWS in the general category.
While the Sinha Commission had pegged the EWS number at about 18 crore, the Niti Aayog’s multidimensional poverty index puts it at 25.1 crore, he said. Venugopal will continue his submissions on Wednesday.
Countering the argument of petitioners opposing the EWS quota that it is beyond the 50% cap on reservation imposed by a nine-judge bench of the Supreme Court in 1992 in the Indra Sawhney case, Attorney General Venugopal said that cap was for SC, ST and OBC reservations and the EWS among the general category constitute a distinct compartment.
He emphasised that 10% EWS reservation is within the 50% space left for the general category and should not be clubbed with the existing 50% quota for SCs, STs and OBCs.
Referring to the argument that EWS reservation is discriminatory as it does not extend to similarly placed people among the SCs, STs and OBCs, he said theirs is a self-contained reservation that includes the EWS among them and they derive “additional advantages” besides reservation in educational institutions and public jobs.
The fourth day of hearing also saw petitioner Youth For Equality supporting EWS reservation but opposing it being carved out of the seats left for the general category. It argued that this violates the basic structure of the Constitution.
Senior advocate Shekhar Naphade, appearing for the Tamil Nadu government, which opposes the EWS quota, argued that economic criteria in themselves cannot be a classification for grant of reservation. If economic weakness were to be accepted as the basis for reservation, it would require a revisit of the ruling in the Indra Sawhney case, he said.
Telling the court that the crux of the matter is whether we can think of reservation for the upper castes, Naphade said this would lead to a new understanding of equality under Article 14 of the Constitution, which is part of the basic structure of the statute. In this situation, the court would have to revisit its 1973 judgment in the Kesavananda Bharti case.
In the course of the hearing, Chief Justice Lalit said the court was not adjudicating on the parameters for grant of EWS reservation but on the concept and its legal and constitutional basis. The CJI said this when a lawyer asked whether a person having an income of Rs50,000 a month or holding four acres of agricultural land or 1,000 square yards of an urban plot could be said to be from the EWS.
