The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section (EWS).
The law provides for 10% reservation in government jobs and educational institutions for EWS, by amending Articles 15 and 16 that deal with the fundamental right to equality.
While Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, Article 16 guarantees equal opportunity in matters of public employment.
An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS like it does for Scheduled Castes, Scheduled Tribes, and Other Backward Castes. The states are to notify who constitute EWS to be eligible for reservation.
Laws made by Parliament are presumed to be constitutional until proven otherwise in court. The SC had refused to stay the 103rd Amendment. A reference will make no difference to the operation of the EWS quota.
The law was challenged primarily on two grounds. First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
The petitioners have also challenged the amendment on the grounds that it violates the SC’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
Another challenge has been made on behalf of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.
The SC agreed that the case involved at least three substantial questions of law, whether economic criteria alone cannot be the basis to determine backwardness; the EWS quota exceeds the ceiling cap of 50% set by the court; the rights of unaided private educational institutions.