Day 7 of EWS bookings: SG Tushar Mehta argues amendment does not violate equality

On September 22, 2022, the Constitutional Court headed by Chief Justice UU Lalit heard the arguments of the Union and Andhra Pradesh governments defending the reservations for the Economically Weakest Sections (EWS). In the morning, Solicitor General Tushar Mehta argued that the Constitution (Hundred and Third) Amendment, 2019 was not a “shocking” violation of the Right to equality, nor fundamentally changed the basic structure of the Constitution. This is the only ground for nullifying a constitutional amendment.

In the afternoon, lead attorneys Niranjan Reddy and Vibha Makhija defended the amendment. Mr Reddy argued that reservations were not part of the basic structure of the Constitution. Ms. Makhija presented the example of teacher recruitment in Uttar Pradesh where a large number of people who could benefit from the existing pools got jobs in the general category.

SG Tushar Mehta: Need to reach high threshold to overturn constitutional amendments

On several occasions, when interrogations from the bench pushed him to his limits, Mr. Mehta fell back on a single argument. The threshold for striking down a constitutional amendment is extremely high and can only be done if there is a “shocking and impermissible” violation of the right to equality. This standard was set in Bhim Singhji vs Indian Union (1985).

He then argued that the EWS reservations reinforced the basic structure of the Constitution. He pursued the obligation to provide economic justice to the citizens of the preamble of the Constitution.

Mr. Mehta referred to the limit of 50% of the reserves established in Indra Sawhney vs. Union of India (1992) and stated that the Court held that this was not an absolute prohibition. The limit could be exceeded in extraordinary circumstances. According to him, this meant that the 50% limit was flexible, which immediately put an end to any notion that it could be part of the basic structure of the constitution. This argument for rigidity was curious because it followed his proposition that the right to equality should evolve with society, when this right is also part of the basic structure.

CJI Lalit and Justice Bhat questioned the lack of clarity in the EWS reservations. Justice Bhat said sections 15(4) and 16(4) make it clear that they are intended to alleviate social and educational backwardness. CJI Lalit added to this, stating that Section 340 requires the creation of a commission to determine the criteria for identifying backward classes for reservation purposes. Mr Mehta said these gaps could be addressed in the future, but for now the lack of guidelines is not sufficient reason to overturn the amendment.

CJI Lalit then questioned Mr. Mehta about the exclusion of Scheduled Castes and Scheduled Tribes from the scope of EWS reservations. He said the amendment created a distinction between the economically weaker sections in the general category and in the SC/ST classes. Justice Bhat went on to say that 48% of STs fell under the label of “poorest of the poor” but were still excluded. Mr. Mehta said the amendment cannot be overturned based on these statistics.

Mr. Mehta handed over the reins to his junior, lawyer Kanu Agarwal, to make his final arguments. Mr Agarwal said the amendment included “safeguards” or safeguards by providing a 10% cap on SAP bookings in a state. He said this automatically reduces any possibility of excessive reserves in a state.

Sr Adv. Niranjan Reddy: EWS bookings are for individuals, while existing bookings are based on class

Representing the state of Andhra Pradesh, Mr Reddy argued that the reservations were initially intended as temporary measures. Due to this limitation, they cannot be considered part of the basic structure of the Constitution as they are meant to lapse once the objective of reducing social and economic backwardness has been achieved.

Furthermore, he argued that EWS reservations take a different approach than existing reservations. They directly addressed economic inequalities at the individual level within the general category which is “disparate” and not homogeneous – the general category is not divided into distinct classes of people. He drew the comparison with the existing reservations which are specifically intended for specific groups such as SCs and STs.

Sr Adv. Vibha Makhija refers to bookings in teaching posts at UP

The bench allowed Sr. Adv. Vibha Makhija to plead for more than 40 minutes despite the limitation of previous speakers for petitioners to 15 minutes each. She was a potential beneficiary for EWS bookings from Uttar Pradesh.

Much of his argument was based on UP teacher recruitment data. Of the approximately 34,000 vacancies available to General Category candidates, 20,000 were filled by General Category eligible candidates. The other 14,000 vacancies were filled by applicants who were also eligible through existing reservation programs. She intends to use this as an example to show that potential beneficiaries of existing reserves have multiple opportunities for representation in employment and education.

However, CJI Lalit said that these 14,000 applicants were more meritorious and therefore received the positions.

The bench concluded the hearing. The plaintiffs will present their reply in response to the arguments advanced by all the defendants on Tuesday 27 September.

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