Centre in SC justifies law for 10 percent quota to economically weaker sections

The Centre on Tuesday justified in Supreme Court its recent law granting 10-per cent quota for Economically Weaker Sections (EWSs), saying it was brought in to promote "social equality" by providing "equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status".

The government said the new law will not be covered by the Indra Sawhney versus Union of India (popularly called Mandal Commission verdict) of 1992 as provision for reservation was made after amending the Constitution.

"That the Constitution Amendment (103rd) Act 2019 was necessitated to benefit the economically weaker sections of the society who were not covered within the existing schemes of reservation, which as per statistics, constituted a considerably large segment of the Indian population," an affidavit filed by the Centre said.

It said in order to do justice across all weaker sections of the society, "it was therefore considered imperative that the Constitution be appropriately amended to enable the State to extend various benefits, including reservations in educational institutions and public employment to the EWSs of the society who are not covered by any of the existing schemes of reservation...".

The Centre's affidavit was filed in connection with a matter where a batch of petitions have challenged the validity of the Constitution (103rd Amendment) Act, 2019 on the ground that it is contrary to the decision of this court in Indra Sawhney versus Union of India and violates the basic structure of the Constitution.

"It is submitted that the conclusions drawn in Indra Sawhney are inapplicable to the present case as the said judgment was delivered while determining the constitutional validity of certain Office Memorandums issued by the Government of India in the year 1990, which provided for reservations for the backward classes of citizens in services under the State," it said.

The affidavit said the present challenge, however, is in relation to the validity of a constitutional amendment made wherein Article 15(6) and Article 16(6) have been inserted, which did not exist on the book when Indra Sawhney verdict was delivered.

"Indra Sawhney verdict and the findings therein can therefore have no application thereafter," the affidavit said.

The Centre contended that merely affecting or impinging upon an Article embodying a feature that is part of the basic structure of the Constitution is not sufficient to declare an amendment unconstitutional.

"To sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered," it said.

The government said the impugned amendment is in conformity with the constitutional principles and therefore does not violates the basic structure doctrine.

"That in order to provide reservation to EWS without disturbing the existing reservations for SCs, STs and OBCs, the constitutional amendment has provided for a maximum of 10-per cent reservation for EWSs in addition to the existing reservations. The limit of 50 per cent is only applicable to reservation made under Article 15(4), 15(5) and 16(4) and does not apply to Article 15(6)," the affidavit said.

It said several committees were set up wherein quantifiable data was collected highlighting the need for having reservation for the economically weaker sections of the society.

"Accordingly, the constitutional amendments were necessitated for providing opportunities in higher education and employment to those who have been excluded by virtue of their economic status," it said and added that it was essential that the EWS gets access to these facilities as mandated in the Constitution.

On Monday, the apex court had said it is not in favour of passing an order at this stage to refer the issue of 10-per cent quota for EWS to a constitution bench.

It had listed a batch of petitions including one filed by NGO Janhit Abhiyan for further hearing on March 28 and will consider whether the matter is required to be referred to a Constitution bench.

The apex court had earlier refused to stay the Centre's decision to grant 10 per cent quota in jobs and admissions to poor candidates in the general category.

However, the court had agreed to examine the validity of the law and issued a notice to the Centre on a similar plea filed by businessman and Congress supporter Tehseen Poonawalla.

Petitions have been filed by parties, including 'Janhit Abhiyan' and NGO 'Youth For Equality', challenging the Centre's decision.

In poll year, the Modi government has come out with the constitutional amendment bill giving quota benefits to the poor among general category candidates.

The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9 respectively, and has been signed by President Ram Nath Kovind.

The quota will be over and above the existing 50-per cent reservation to SCs, STs and Other Backward Classes (OBCs).