The People’s Union for Civil Liberties (PUCL), India’s leading human rights organisation, has said that the Supreme Court, by upholding reservation for the Economically Weaker Sections (EWS), strikes at the “basic structure of the Constitution”. In asserting that the Scheduled Castes as a group face discrimination just like the SC/ST category and the OBCs, the Appellate Court has resorted to a constitutionally inappropriate response, as it does not accept that reservations cannot be seen as a scheme for poverty alleviation. .
Signed by Dr V Suresh, general secretary of PUCL, the statement said, the Court of Appeal through this judgment “has softened the notion of ‘social justice’ as a rights-based protection offered to address discrimination and entrenched animosities of caste”.
PUCL also regrets, “By excluding SC/ST and OBC from EWS category, the share of SC/ST and OBC is reduced from 50% of general category seats/posts to 40%. This is a scandalous form of discrimination practiced by the state against the most deprived sections, unfortunately now legitimized by the court”.
The text:
PUCL is concerned that the judgment of the Supreme Court in “Janhit Abhiyan v. Union of India” upholding the constitutionality of reservations for “Economically Weaker Sections” (SEEs) does grave injustice to the vision of the framers of the Constitution who incorporated Art. 14, 15, 16 and 17 in the Constitution as a legal defense to combat historically rooted and institutionalized social and cultural discrimination. These articles, also referred to as the ‘Equality Code’, were unique as the framers of the Constitution provided for the fundamental rights of socially and educationally backward classes, including SCs and STs, through ‘reservations’ or ‘actions affirmative’ as a means to achieve. ‘Social justice’, a task which remains unfinished even today, 75 years after independence.
Upholding the Constitutionality of the 103rd Constitutional Amendment, the majority judgment of Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala has dealt a blow to the “basic structure of the constitution”, upsetting a delicate constitutional balance evolved by the SC over many years. last. decades stating that ‘social justice’ and ‘social criteria’ are key to the fundamental right of equality. In fact, the majority’s decision that “economic justice has gained equal focus alongside the principle of social justice” has softened the notion of “social justice” as a rights-based defense offered to address discrimination and entrenched animosities. caste. Most have also signaled in some way that EWS could be the ‘first step in the process of removing caste-based reservation’.
Based on its core, the majority is asserting that the ‘Economically Weaker Sections’ (EWS) are a group that faces discrimination, just like the SC/ST and OBC category. It is a fact that even among the Scheduled Castes and other non-reserved communities there are poor people and legislative and policy measures should be taken in line with the Directive principles to alleviate their poverty. However, reservation is an inappropriate constitutional response and reservations cannot be seen as a poverty alleviation scheme.
In this regard, it is disappointing that all five judges, including the minority judgment authored by Justice Ravindra Bhat and CJI UU Lalit, consider reservation on constitutional economic grounds. The court in its decision gave rise to the precedent in “Indira Sawhney” (1992) in which it rightly stated that the economic criterion alone cannot be the basis for determining backwardness. The court also waived the rule that the maximum reservation should be 50% which was laid down in the Indira Sawhney case stating that the EWS quota will not affect this calculation.
What is most damaging to the basic structure of the constitutional protections so carefully cobbled together by Dr. BR Ambedkar and other social reformers, is the exclusion of SC/STs and OBCs from EWS reservation. The exclusion of SC/ST and OBC from benefiting from EWS quota is particularly vile as SC/ST and OBC form a disproportionately high percentage of EWS in Indian society. The minority opinion of Justices Ravindra Bhat and UU Lalit in fact notes that among ‘the entire population of STs, 48% are the poorest; among the entire population of Scheduled Castes 38% are the poorest and among the OBC no less than 33% are the poorest.
In fact, this exclusion of weaker SC/STs and OBCs from benefiting from the EWS quota implicitly establishes EWS as a reservation category meant only for future castes. The minority is scathing in its observation that, “there is nothing to suggest how, to keep out those who qualify for the benefit of this reservation on economic criteria, but who belong to this large segment which constitutes 82% of the population of the country (SC, ST and OBC together), will advance the cause of the economically weaker sections of the society.’
The minority judgment in its analysis of non-discrimination echoes the anxiety felt by Dalit, Adivasi and human rights groups.
It is worth noting that by excluding SC/ST and OBC from EWS category, the share of SC/ST and OBC is reduced from 50% of general category seats/posts to 40%. This is a scandalous form of discrimination practiced by the state against the most deprived groups, unfortunately now legitimized by the court.
The benefits of the 103rd Constitutional amendment are restricted to non-reserved castes, meaning forward castes whose income falls within Rs. 8 lakhs limit (limit fixed by government notification), an arbitrary and unrealistic high ceiling, which will further discriminate and exclude the most deserving candidates who are actually very poor.
The minority judgment in its non-discrimination analysis gives voice to the anxiety felt and experienced by many Dalit, Adivasi and human rights groups about the majority’s reasoning. The minority rejects the amendment in toto on the basis that “Our Constitution does not speak the language of exclusion” while emphasizing that “for the first time the constituent power has been called to practice the exclusion of victims of social injustice. , who are also among the poorest in this country”.
For the minority, the exclusion of SC/ST and OBC from the EWS category is against the ‘Equality Code’ in the Indian Constitution. The “Equality Code” (Articles 14, 15, 16 and 17), is not “a soft declaration of equality before the law and equal protection of the law”, but also contains “specific orders against the state not to discriminate on the basis of prohibited” such as caste. He specifically refers to Article 17 as “a clear injunction against untouchability of any form”, which “commands the State to prohibit caste discrimination, whether overt or by classification, and looms large as part of the code of equality and indeed the entire framework of the Constitution.”
The exemption violates the basic structure of the Indian Constitution. For the minority, “exclusion, with all its negative connotations – is not a constitutional principle and has no place in our constitutional ethos” and to allow “exclusion of people based on their backwardness” is to destroy “the constitutional ethos of brotherhood”. , non-discrimination and non-exclusion.’
This aspect of minority judgment is rooted in a fair understanding of constitutional principles and is therefore welcome. As Justice Khanna put it in his dissent in ADM Jabalpur, “A dissent in a court of last resort…is an appeal to the spirit of the law, to the intelligence of a future day, when a later decision may correct the error in which the dissenting judge believes that the court has been betrayed”.
