EWS Reservations Day #6: AG Venugopal Argues EWS Reservations are Independant

On September 21st, 2022, the Constitution Bench led by Chief Justice U.U. Lalit heard arguments from the Union and Madhya Pradesh governments defending reservations for economically weaker sections (EWS). In the morning, Attorney General K.K. Venugopal argued that EWS reservations were independent of the 50% cap on reservations for backward classes. 

In the afternoon, Senior Advocate Mahesh Jethmalani and Solicitor General Tushar Mehta argued that the Constitution (One-Hundred and Third) Amendment Act, 2019, which introduced the reservations did not violate the basic structure of the Constitution. They argued basic structure violation was the only ground on which a Constitutional Amendment could be struck down. 

AG Venugopal: EWS Reservations are Independent and Address Extraordinary Circumstances

Repeating his main submission from yesterday’s hearing, AG Venugopal argued that EWS reservations were meant for people in the general category ‘compartment’ and were independent of the 50% reservations for backward classes. He emphasised that existing reservations would remain untouched. 

CJI Lalit asked if this meant EWS Reservations would eat into the seats for the general category. Would it reduce the seats available through merit for the people in this category? He highlighted the plight of people from backward classes who were excluded from existing reservations through the application of the ‘creamy layer principle’. These same people would be excluded from EWS reservations as well, as they belong to a class that is already covered by existing reservations. (Read more about the creamy layer principle here.)

AG Venugopal said that those in the creamy layer would be considered the same as everyone else in the general category for reservations.

The Union government, in the Statement of Objects and Reasons for the Amendment, stated that EWS reservations were enacted to fulfil their obligations under Article 46 of the Constitution of India, 1950 to protect weaker sections. Article 46 states the interests of Scheduled Castes and Scheduled Tribes must be protected ‘in particular’. In past hearings some petitioners argued that despite this, SCs and STs were explicitly excluded from EWS reservations and the Amendment, so the Amendment should be struck down. 

AG Venugopal argued that the inclusion of the phrase ‘in particular’ did not mean that the interests of SCs and STs must be protected at the cost of other classes, such as economically weaker sections. 

He then argued that even if the Bench did not consider the general category a separate compartment, the circumstances justified breaching the 50% limit on backward class reservations. He referred to the Court’s Judgment in State of Kerala v N.M. Thomas (1975) and Indra Sawhney v Union of India (1992) which held that the 50% limit could be breached in extraordinary circumstances. 

Mr. Venugopal asked the Bench to refer to the Sinho Commission Report (2010) to show that India still faced overwhelming poverty. According to him, this proved that the State had to take measures to alleviate the situation. 

CJI Lalit pointed out that, according to the report, only a relatively ‘miniscule’ portion of the population who were below the poverty line were also part of the general category. He suggested that 10% EWS reservations were disproportionate for such a small portion of the population. AG Venugopal clarified that the Amendment says ‘a maximum of ten per cent’ which makes the reservation flexible depending on the circumstances in each state. If conditions improve, then the reservations in the State can also decrease. 

SG Tushar Mehta & Sr. Adv. Mahesh Jethmalani: Amendment Does Not Violate Basic Structure

Sr. Adv. Mahesh Jethmalani, representing the State of Madhya Pradesh, questioned the Court’s Judgment in Indra Sawhney. He asked how they could reject economic criteria as a basis for reservation on one hand, while on the other recognising the creamy layer principle which excluded people from reservations based on economic criteria. Justice Ravindra Bhat responded that the Court in Indra Sawhney only recognised the creamy layer principle, it did not lay down a criteria. 

Justice Bhat further clarified that being economically weaker could be temporary whereas caste status was permanent. This is why the creamy layer was introduced, to ensure that benefits were received by those who needed it the most. 

CJI Lalit then posed the question of whether EWS reservations reduced the opportunities for those in the general category. Justice Bhat added to this line of questioning, stating that it was the right of those in the general category to be judged based on their merit, but now people were being excluded for other reasons. 

Mr. Jethmalani said the effect of historic injustices have decreased to a large degree and the 50% reservations for backward classes remained untouched. EWS reservations were merely meant for people in the general category who were not covered by other reservations. 

Referring to the Court’s Judgment in Bhim Singh v State of Jammu & Kashmir (1985), he argued that a Constitutional Amendment had to have a ‘‘shocking and unconscionable’ violation of the Constitution in order to be struck down. According to him, EWS reservations were meant to provide a balance between the Right to Equality and the State’s obligations under Article 46. While it may not be an ‘optimum solution’, it fell short of being a ‘shocking and unconscionable’ violation. 

Solicitor General Tushar Mehta argued next. According to him, the petitioners have been arguing against the Constitutional Amendment like it was a mere legislation and have not proven that it harms the basic structure of the Constitution.

Further, he said the Amendment prescribes a ‘maximum’ of 10% reservations. The specific amount will change on a State-by-State basis and any concerns about whether reliable data was used to justify EWS reservations will only arise based on what each State presents as their limit. 

Mr. Mehta will continue his arguments before the Constitution Bench tomorrow (September 22nd).