NEW DELHI: The Supreme Court on Monday by a majority of 3-2 upheld the Constitution’s 103rd Amendment providing for a 10 per cent reservation for Economically Weaker Sections of the forward classes describing it (EWS reservation) as an affirmative action, not violative of the basic structure of the Constitution, and saying it did not offend the equality code by excluding SC/STs and OBCs from its ambit.
The order passed by the five-judge Constitution Bench said: “In view of the decision rendered by the majority consisting of Justice Dinesh Maheshwari, Justice Bela M. Trivedi and Justice J.B. Pardiwala, the challenge raised to the 103rd Amendment to the Constitution fails and the decision rendered by Justice S. Ravindra Bhat remains in a minority. Consequently, the writ petitions and other proceedings stand disposed of.”
The majority view of the five-judge Constitution Bench was pronounced by Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala by their three separate concurring judgments.
However, Chief Justice Uday Umesh Lalit and Justice S. Ravindra Bhat, in a dissenting judgment, ruled against the 103rd Amendment declaring it unconstitutional, and void Clauses 2 and 3 of the 103rd amendment by which Clause 6 was added to Article 15 and 16 respectively that paved the way for the 10 per cent EWS reservation amongst forward classes, holding it 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 the private unaided educational institutions to adhere to 10 per cent EWS reservations.
Justice Bhat did not express any view on the question of whether the 10 per cent EWS reservation was in breach of the 50 per cent cap on reservations put by a nine-judge Constitution Bench in 1992 in the Indra Sawhney case. He said that since matters relating to reservations beyond the 50 per cent cap in Tamil Nadu and other states are pending before the court, it would not be proper to express any opinion on this aspect.
Pronouncing judgment on the four questions adjudicated by the Constitution Bench, Justice Dinesh Maheshwari said the 10 per cent EWS reservation was an affirmative step. Reservation, Justice Maheshwari said, is an instrument of affirmative action so as to ensure “all-inclusive march towards the goals of an egalitarian society”. He said “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/STs and OBCs from the 10 per cent EWS quota were not violative of the equality code, Justice Maheshwari said the cap on 50 per cent reservations in the 1992 judgment was not “inflexible”.
Four questions that were adjudicated by the Constitution Bench included whether 10 per cent EWS reservation over and above the ceiling on 50 per cent reservation was violative of the basic structure of the Constitution, whether the exclusion SC/STs and OBCs offended the equality code, could there be reservations on the grounds of economic backwardness alone and whether mandating private unaided educational institutions to reserve 10 per cent seats for EWS students a violative of the basic structure of the Constitution.
Both Justices Trivedi and Pardiwal appeared to suggest that reservations having roots in centuries-old social discrimination had lasted for long and it was time it should be revisited and wither away.
Referring to what was envisioned by framers of the Constitution and a Constitution Bench in 1985, and what was sought to be achieved on the completion of 50 years of the advent of the Constitution, Justice Bela M. Trivedi said that reservation was due to the “age-old caste system” and was introduced to correct “historical injustice” faced by SC/STs and OBCs, and to provide them a “level playing field” to compete with the persons belonging to the forward classes.
However, at the end of 75 years of our Independence, Justice Trivedi said: “We need to revisit the system of reservations in the larger interest of society as a whole, as a step forward towards transformative constitutionalism.”
Referring to the Constitution’s 104th Amendment which had abolished the representation of Anglo-Indians in Parliament and the state legislatures, Justice Trivedi said: “Therefore, a similar time limit, if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society.”
Holding the reservations were ot an end but a means to secure social and economic justice, Justice Pardiwala said: “Reservations should not be allowed to become a vested interest. A real solution, however, lies in eliminating the causes that have led to the social, educational and economic backwardness of the weaker sections of the community.”
