The Centre on Thursday vehemently defended in the Supreme Court the 103rd constitutional amendment, which provides a 10-per cent quota in jobs and education to those in the economically weaker section (EWS) category, saying this was ”necessitated” to benefit the general category poor, a ”large segment” of population not covered under any existing reservation scheme.
A five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit took note of the submissions made by Solicitor General Tushar Mehta, who said the 10-per cent quota for the EWS category has been provided without disturbing the 50-per cent reservation available to the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs).
The parliamentary wisdom, leading to a constitutional amendment, cannot be set aside without establishing that it violates the basic structure of the Constitution, Mehta told the bench that also comprised justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala.
The top court, which was hearing submissions for the sixth day on a clutch of pleas challenging the validity of the scheme, was told by the law officer that the amendment is ”based on the recommendation contained in the report submitted by the Sinho Commission”.
”The constitutional vision of equality and equal opportunity is dynamic and evolving — not in substance, but surely in form. The present amendment is in tune with this dynamic and evolutionary nature, taking the next logical step and providing balance and reasonability to the operative realities of reservations as a whole.
”The present amendment provides for an additional form of affirmative action, without changing the substance of the equality code, while balancing the other anomalies that may arise from the pre-existing forms of affirmative action,” Mehta said.
”The impugned amendment Act was necessitated to benefit the economically weaker sections of the society, who are not covered within the existing schemes of reservation and who, as per statistics, constitute a considerably large segment of the Indian population,” he added.
The solicitor general argued in detail on the State’s power to take affirmative action to elevate the poor among the general category and said the amendment furthers and strengthens the basic feature of the Constitution and its validity cannot be tested on the grounds of some statistics.
”While analysing the basic structure, the principle guide is the Preamble. Considering the Preamble to the Constitution, the amendment does not destroy the basic structure, rather it strengthens it by giving justice — economic justice — to those who have not been the beneficiaries of affirmative action like reservation,” the law officer said.
The parameters of judicial review while deciding the validity of a constitutional amendment are very well settled and in case of every constitutional amendment, a change happens in the text of the document itself, he added.
”It is for this precise reason that the doctrine of basic structure has developed. As per this doctrine, when the Constitution is amended, the validity of the amendment is tested only on the question as to whether it fundamentally changes the basic structure of the Constitution,” Mehta said.
Since a constitutional amendment brings in a new provision altogether, it is never permissible to argue that the amended provision is unconstitutional since it is either different from or not completely in tune with other constitutional provisions, he said.
The solicitor general told the bench that a breach of the basic structure of the Constitution should not be a ”mere violation” but should be ”a shocking, unconscionable or unscrupulous travesty of the quintessence of the Constitution”.
”The purported limit of 50 per cent on reservations has always been a rule of thumb, which could be exceeded if circumstances so allowed. Any purported rule, which by itself is not strict in nature and allows its own breach, can never be a part of the basic structure,” he said.
The impugned amendment provides reservations to the economically weaker sections, furthers the constitutional guarantees and balances the inequities and imperfections that arise in the present setup, Mehta said.
The EWS scheme is in accordance with the Constitution, which envisions a ”zone of affirmative action”, and merely because the SCs, the STs or the SEBCs may also be economically weak, the same would not enable migration of one reserved class to another, he said.
”The Constitution deserves an interpretation that transcends the limitation of time. The interpretation of its provisions should not be limited to the mere literal meaning of its words. Instead they ought to be given a meaningful construction which is reflective of their intent and purpose, in consonance with the changing times,” the law officer said. He sought dismissal of the pleas challenging the amendment, saying it furthers the cause and strengthens the basic structure of the Constitution.
The top court would resume hearing in the matter on September 27. The Centre, through the Constitution (103rd Amendment) Act, 2019, introduced the provision for EWS reservation in education and public services.
The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9, 2019 respectively and it was then signed by former president Ram Nath Kovind. The EWS quota is over and above the existing 50 per cent reservation given to the SCs, STs and OBCs.
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