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EWS Quota Law

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August 07, 2020

Why in news?

The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the Economically Backward Section (EWS) quota law.

What is the law?

  • The 103rd Constitution Amendment of 2019 provides for 10% reservation in government jobs and educational institutions for EWS.
  • This reservation is provided by amending Articles 15 and 16 of the Constitution that deal with the fundamental right to equality.
  • [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.]
  • The amendment adds an additional clause to both the provisions.
  • This clause gives Parliament the power to make special laws for EWS like it does for Scheduled Castes, Scheduled Tribes and OBCs.
  • The states are to notify who constitute EWS to be eligible for reservation.

What does the reference mean?

  • A reference to a larger Bench means that the legal challenge is an important one.
  • Article 145(3) - The minimum number of Judges who are to sit for deciding any case involving a question of law as to the interpretation of this Constitution shall be five.
  • The SC rules of 2013 - A bench of two judges will generally hear writ petitions that allege a violation of fundamental rights, unless it raises substantial questions of law.
  • In that case, a five-judge bench would hear the case.
  • 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.

What are the grounds of challenge?

  • The law was challenged on the ground that it violates the Basic Structure of the Constitution, which says that.
  • The special protections guaranteed to socially disadvantaged groups are part of the Basic Structure.
  • The argument is that the amendment departs from this Basic Structure by promising special protections on the sole basis of economic status.
  • Although there is no exhaustive list of what forms the Basic Structure, any law that violates it is understood to be unconstitutional.
  • The petitioners have also challenged the amendment because it violates the SC’s 1992 ruling in Indra Sawhney case.
  • This ruling 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.

What are the government’s arguments?

  • The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment.
  • When a law is challenged, the burden of proving it unconstitutional lies on the petitioners.
  • The government argued that under Article 46 of the Constitution, it has a duty to protect the interests of EWSs.
  • [Article 46 - It is a part of Directive Principles of State Policy.
  • It states that the State shall promote with special care the educational and economic interests of the weaker sections of the people.
  • It also says that special care should be given, in particular, to the Scheduled Castes and the Scheduled Tribes.]
  • Countering Basic Structure argument - The government argued that to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered.
  • Countering Indra Sawhney argument - For this, the government relied on a 2008 ruling in Ashok Kumar Thakur v Union of India case.
  • In this 2008 ruling, the SC upheld the 27% quota for OBCs.
  • The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors.
  • It made this argument to prove that there need not be a sole criterion for according reservation.
  • For the unaided institutions, it argued that the Constitution allows the Parliament to place reasonable restrictions on the right to carry on trade.

What are the terms of reference framed by the court?

  • The SC agreed that the case involved at least three substantial questions of law, whether:
    1. The economic criteria alone cannot be the basis to determine backwardness;
    2. The EWS quota exceeds the ceiling cap of 50% set by the court;
    3. The rights of unaided private educational institutions.
  • Although Chief Justice of India S A Bobde heads the Bench that made the reference, the case could wait to be heard by a larger Bench.
  • The timing depends on the court’s resources, as it would have to spare five judges and allocate time to the larger Bench hearing.

 

Source: The Indian Express

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