EWS Reservations Day #5: Sr. Adv. Shankaranarayanan Argues Amendment Makes Reservations Permanent

On September 20th, 2022, the Constitution Bench led by Chief Justice U.U. Lalit heard arguments on the EWS reservations in two sessions. In the morning session, Senior Advocate Gopal Shankaranaryanan argued in support of and against reservations for economically weaker sections (EWS). In the noon, Attorney General K.K. Venugopal defended the EWS reservations on behalf of the Union government.

Mr. Shankaranarayanan argued that the Constitution (One-Hundred and Third) Amendment Act, 2019 is constitutional and is not discriminatory. However, the provisions introduced permanently sanctioned reservations, which were meant to be a temporary measure. Mr. Venugopal argued that the reservations did not exceed the 50% limit that was laid down in Indra Sawhney (1992) as they were independent of reservations provided to backward classes. 

Mr. Shankaranarayanan: EWS Classification is Constitutionally Valid

According to Mr. Shankaranarayanan, EWS reservations cannot be labeled casteist as they do not consider caste at all. It creates a separate class that includes people from all religions who are not covered by existing reservation schemes. He further claimed that the reservations did not discriminate against Scheduled Castes and Schedule Tribes based on Waman Rao v Union of India (1980). Former CJI Y.V. Chandrachud had held that economic benefits to validly address inequalities can be provided to classes of people even if they have ‘incidental’ effects on the Right to Equality of other classes. 

The Supreme Court has upheld Amendments and Acts in the past to overcome parts or the ‘basis’ of SC Judgments. With this in mind, Mr. Shankaranarayanan proceeded to respond to arguments that EWS reservations breach the 50% limit laid down in Indra Sawhney (1992).  He stated that no one had argued that the Amendment improperly contradicted the basis of the Indra Sawhney Judgment. Therefore, the basis was properly removed and the Amendment was valid.

Mr. Shankaranarayanan’s main argument against the Amendement was that it allowed States to provide EWS reservations ‘in addition to existing reservations’. He said this implied that EWS reservations could only be granted along with other reservations. If other reservations were withdrawn, EWS reservations could not be provided on their own. Justice Ravindra Bhat disagreed, stating that even if there were 0 reservations provided to other classes, 10% EWS reservations could be provided in addition to that. 

Finally, Mr. Shankaranarayanan gave his response to the argument that there were no ‘guardrails’ in the Amendment to check the power of States to provide EWS reservations. According to him, restrictions of States’ powers are specific to each class and the specific measures provided for them. 

AG Venugopal: EWS Reservations are Independent of Other Schemes

Attorney General K.K. Venugopal argued that the 50% limit on reservations created two ‘compartments’. One which included SCs/STs/OBCs for whom reservations were provided within the 50% limit, and the other which included people from forward castes, non-Backward Classes, and general category. According to him, EWS reservations are distinct from the 50% reservations provided to the first compartment. There are no grounds for SCs/STs/OBCs to claim EWS reservations are discriminatory unless they can prove that they are directly affected. If there is a challenge to be made, it must come from the second compartment.

The Bench rose early at 3:30 P.M. stating that they had an urgent matter to attend to. The Constitution Bench will continue hearing AG Venugopal’s arguments tomorrow (September 21st).