EWS Reservations Day #1: Bench Accepts Issues Framed for Hearing by AG Venugopal

Today, September 8th, 2022, a 5-Judge Constitution Bench (CB) led by Chief Justice U.U. Lalit and comprising Justices Dinesh Maheshwari, Ravindra Bhat, Bela M. Trivedi, and J.B. Pardiwala briefly heard the challenge to the Constitution (One-Hundred and Third) Amendment Act, 2019 (the Amendment). The Amendment allows States to provide reservations for Economically Weaker Sections (EWS) of citizens—reservations solely on the basis of economic criteria. The Bench framed the three issues that the Court would decide in this case, based on the submissions of Attorney General K.K. Venugopal. 

The Amendment was challenged in January 2019, days after it was enacted by Parliament. On August 6th, 2020 a 3-Judge Bench comprising then CJI S.A. Bobde and Justices Subhash Reddy and B.R. Gavai referred the case to a CB. On September 6th, 2022 the CB led by CJI Lalit directed Senior Advocate Gopal Shankaranayanan to collect suggestions from all the petitioners on what issues the Court should consider when deciding this case.

Sr. Advs. G. Shankaranarayanan and P. Wilson Present Issues for Bench to Consider

Sr. Adv. Shankaranarayanan, representing the organisation Youth for Equality, stated that nearly 55 issues were suggested to him, which he narrowed down and submitted to the Bench. 

He boiled the suggestions down to four issues. First, whether EWS Reservations were contrary to Articles 15 and 16 of the Constitution of India, 1950 which gives States the power to provide reservations. Second, whether EWS Reservations violated the Right to Equality for breaching the 50% cap on reservations put in place by the Court in Indra Sawhney v Union of India (1992). Third, whether EWS Reservations violated the Right to Equality for not including Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes within its scope. Last, whether the ‘creamy layer principle’ of excluding the affluent among a recognised group from receiving reservation benefits, should be applied to EWS Reservations.

The last suggestion was met with resistance from both AG Venugopal and Solicitor General Tushar Mehta, representing the Union government. Mr. Venugopal argued that EWS Reservations were already meant for the poorest citizens—creamy layer would not apply here. Mr. Mehta agreed, stating that the ‘creamy layer’ principle and EWS Reservations stood diametrically opposite to each other. Mr. Shankaranaryanan conceded that if the Court dealt with the question of whether EWS Reservations violated the Right to Equality, it would be sufficient. 

Sr. Adv. Puspanathan Wilson, representing a separate petitioner, made his own suggestions of issues for the Bench to consider, many of which overlapped significantly with Mr. Shankaranaryanan’s. The first of his unique submissions was, whether granting reservations to ‘forward’ castes was permissible regardless of their economic status. Second, whether ‘EWS’ forms a reasonable classification under the Right to Equality. Last, whether EWS Reservations satisfies the test laid down by the SC in M. Nagaraj v Union of India (2006). 

Bench Chooses to Proceed With Issues Laid Down by AG Venugopal

CJI Lalit stated that the Court would consider the first three issues proposed by Mr. Venugopal in his written submissions. These are:  

1. Whether reservations can be granted solely on the basis of economic criteria?
2. Whether States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment?
3. Whether EWS reservations are invalid for excluding Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes from its scope?

These issues, CJI Lalit stated, captured the submissions of all the parties. Whatever the counsels would like to argue to supplement these issues, he said, was up to their ‘discretion’ and ‘creativity’. He further stated that Intervenors in the case would be heard if their submissions did not overlap with those of the petitioners. 

The Bench will begin to hear final arguments in the case from September 13th, 2022.