The Centre vehemently defended the 103rd constitutional amendment on Thursday before the Supreme Court, claiming that it was “necessary” to help the general category poor, a “large segment” of the population not covered by any existing reservation scheme, by allocating a 10% quota in jobs and education to those who fall under the economically weaker section (EWS) category.
The arguments made by Solicitor General Tushar Mehta, who claimed that the 10% quota for the EWS category has been provided without affecting the 50% reservation available to the Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs), were noted by a five-judge Constitution bench led by Chief Justice Uday Umesh Lalit (OBCs). Mehta told the court, which also included justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala, that the parliamentary wisdom that resulted in the constitutional amendment could not be overturned without proving that it violated the fundamental principles of the Constitution.
The law officer informed the highest court that the revision was “based on the proposal included in the report provided by the Sinho Commission” as it was hearing arguments on a number of arguments contesting the legality of the programme for the sixth day. Although not in substance, the constitutional notion of equality and equal opportunity is dynamic and changing. The current amendment takes the next logical step and provides balance and reasonability to the operational reality of reservations as a whole. It is in line with this dynamic and evolving nature.
The current change “provides for an additional type of affirmative action, while balancing the various anomalies that may come from the pre-existing forms of affirmative action, without modifying the essence of the equality code,” according to Mehta. He said, “The challenged amendment Act was necessary to help the economically underprivileged elements of society, who are not protected by the current quota programmes and who, according to statistics, form a sizable portion of the Indian population.
The solicitor general elaborated on the State’s authority to take affirmative action to elevate the poor among the general category, arguing that the amendment strengthens and furthers a fundamental aspect of the Constitution and that its legitimacy cannot be tested on the basis of a few statistical data points. “The Preamble serves as the primary compass when analysing the fundamental structure. When viewed in light of the Preamble to the Constitution, the amendment improves it by providing justice — economic justice — to people who have not benefited from affirmative action measures like reservations, “the policeman stated.
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.
“The theory of basic structure has evolved for just this reason. According to this approach, when the Constitution is revised, the validity of the amendment is only evaluated in terms of whether it substantially alters the Constitution’s core structure “explained Mehta. It is never acceptable to claim that a provision changed by a constitutional amendment is invalid because it differs from or isn’t entirely consistent with other constitutional provisions, he added.
A violation of the Constitution’s fundamental principles shouldn’t just be a “violation,” according to the solicitor general, but rather “a stunning, outrageous, or unscrupulous distortion of the Constitution’s quintessence.” “The alleged cap of 50% on reservations has always been a guideline that might be surpassed if the situation permitted. Any alleged regulation that is not inherently rigorous and permits self-violation cannot be a part of the fundamental framework “explained he.
According to Mehta, the contested amendment balances the disparities and flaws that develop in the current system while granting reservations to the economically disadvantaged parts and advancing constitutional protections. The SCs, STs, or SEBCs may also be economically underprivileged, but that would not permit migration from one reserved class to another, he said. The EWS system is in compliance with the Constitution, which envisions a “zone of affirmative action.”
“The Constitution merits a reading that goes beyond the constraints of time. Its instructions should not just be read literally; other interpretations should also be considered. Instead, they should be given a meaningful construction that reflects their intentions and goals and is in line with the times “the policeman remarked. In his request for dismissal, he argued that the amendment advances the cause and reinforces the fundamental principles of the Constitution. On September 27, the Supreme Court would pick up hearing the case again.
The Constitution (103rd Amendment) Act of 2019 from the Center introduced the EWS reservation policy in public services and education. The bill was approved by both the Lok Sabha and the Rajya Sabha on January 8 and 9, 2019, respectively, and former president Ram Nath Kovind then signed it. The EWS quota is in addition to the current 50% allocation for SCs, STs, and OBCs.
