The law that provides the basis for reservation for economically weaker sections is a “fraud on the Constitution”, a lawyer representing a group of petitioners told the Supreme Court on Tuesday, Bar and Bench reported.

The petitioners before the Supreme Court have challenged the 103rd amendment to the Constitution, which introduced changes to Articles 15 and 16 that deal with the right to equality and provide the basis for reservations.

Advocate Mohan Gopal, appearing for the petitioners, said that the constitutional amendment was dividing the country on the lines of caste. “This amendment is being seen as an instrument to protect the privileged rather than safeguarding the marginalised,” he told the court.

Gopal argued that the purpose of reservation is meant for under-represented groups. However, it is now available to people, whose annual income of less than Rs 8 lakh, he added.

In this context, the lawyer said that 96% of Indians earn less than Rs 25,000 for a family of four. “We need to yield to this 96% and be gracious,” he said, according to Live Law.

Gopal argued that backward classes had sought representation, and not economic upliftment, through reservations. “We are not interested in the reservation, we are interested in representation,” he told the court. “If someone brings a better way of representation than reservation, we will throw away the reservation in the Arabian Sea.”

The Union government introduced the economically weaker sections quota for those who cannot avail of reservations granted to Scheduled Castes, Scheduled Tribes and Other Backward Classes, but have an annual family income of less than Rs 8 lakh. However, if the family owns more than 5 acres of agricultural land or 1,000 square feet of residential land, the person will not be eligible.

Last year, the Supreme Court made a prima facie observation that these criteria seemed arbitrary. Since the income criteria of Rs 8 lakh per annum were used to exclude the “creamy layer” from the Other Backward Classes quota, the court questioned if the Centre had mechanically included the distinction for economically weaker sections as well.

A Constitution bench, led by Chief Justice UU Lalit, said it wants to examine whether the 10% quota for upper caste economically weak aspirants in government jobs and college admissions, violated the basic structure of the Constitution. It will also check if the reservation framework was hampered by excluding Socially and Educationally Backward Classes, Other Backward Classes, Scheduled Castes and Scheduled Tribes from the scope of the quota.