Writ Petition & Counter Affidavit Summary

EWS Reservation

| 20th Jun 2019

Plain English Petition and Counter Affidavit

The Constitution (103rd Amendment) Act introduces reservations for economically weaker sections. The constitutionality of the Act is under challenge before the Supreme Court. Youth for Equality (the petitioner), filed a writ petition on 10th January and the government replied in its counter-affidavit on 12th March.

 

The Constitution (103rd Amendment) Act

The Constitution (103rd Amendment) Act inserts Articles 15(6) and 16(6) in the Constitution. These provide upto 10% reservation to economically weaker sections other than backward classes, schedules castes and scheduled tribes in higher educational institutions and initial recruitment in government posts. The reservations also apply to private unaided institutions except minority educational institutions.

 

The Petition’s Challenge 

The petition challenges the constitutional validity of the Constitution (103rd Amendment) Act on the grounds that it is manifestly arbitrary, violates equality and alters the basic structure of the Constitution.

 

The Petition contends that:

  1. Economic criteria cannot be the sole basis for reservation. This is the law laid down by the Constitution Bench in Indra Sawhney v Union of India.
  2. Equality is guaranteed to all under the Constitution. However, this Act unjustly excludes OBCs, SCs and STs. The benefits of caste-based reservation are availed only by the rich OBCs, SCs and STs while the deprivation of the poor among these communities continues. Thus, economic reservation cannot be limited to general categories
  3. The Supreme Court has consistently held that reservations must not exceed 50%. In M Nagaraj v Union of India, the Supreme Court Constitution Bench held that the 50% ceiling limit on reservation is a crucial requirement of equality and the basic structure of the Constitution. This Act leads to the crossing of the 50% limit.
  4. Imposing reservations on unaided institutions is manifestly arbitrary. Unaided institutions are not financed by the State and they cannot be compelled to do the State’s bidding. Article 14 is a protection against manifestly arbitrary State action.

 

Furthermore, the petition contends that:

  1. ‘Economically weaker sections’ is undefined. This gives the State unregulated powers in deciding who would benefit from the reservations introduced. It also threatens the protections under Articles 15(1) and 16(2) of the Constitution.
  2. The criteria of economic backwardness should have been applied horizontally across all castes. This would have ensured that reservation does not exceed the 50% ceiling limit.
  3. It is established law that some quantitative exercise must be undertaken before imposing reservations. No such exercise was undertaken before setting the 10% provision. This is manifestly arbitrary.

The Government’s Representations in its Counter Affidavit

The Government contends that the Act is a valid legislation which does not violate the Constitution’s basic structure or the law in Indra Sawhney.

 

It contends that:

  1. The State has a duty to promote social equality and pursue the welfare of weaker sections of Indian society under Article 46 of the Constitution. The Constitutional Amendment is necessary; it provides fair and equal opportunity for a large number of impoverished Indians who are excluded from higher educational institutions and are not covered under existing reservation schemes. The Government appointed Commission for Economically Backward Classes recommended reservations in education and government employment for all Below Poverty Line general category families (i.e. the economically backward classes).
  2. The law has held economic criteria as a relevant factor in identifying social and educational backwardness. Therefore, it is a relevant factor for affirmative action mandates under the Constitution.
  3. Articles 15(6) and 16(6) are in conformity with the equality doctrine and therefore do not violate the Constitution’s basic structure doctrine. It must be shown that an amendment embodying a basic feature alters the very identity of the Constitution in order to be struck down.
  4. The 50% ceiling limit does not apply to Article 15(6). The law decided in Indra Sawhney v Union of India does not apply to the present case, as it related to social and educational backwardness under Articles 16(1) and 16(4). However, Articles 15(6) and 16(6) relate to economic backwardness and should be tested independently.
  5. Private unaided institutions play a crucial role in providing education to India’s large population. Therefore, the Government can direct reservation in private unaided institutions to promote educational interests among economically weaker sections. Furthermore, the petitioner is not a private unaided institution and does not have the locus to challenge Article 15(6).