Reservation is only meant to remedy the historical injustices and is not a poverty alleviation programme, said Senior Advocate P Wilson, appearing for petitioners challenging the Centre’s decision to grant a 10% quota to economically weaker sections category in admissions and jobs, reported Bar and Bench.
“The structural barriers have to be seen, they [vulnerable section of society] were kept away from mainstream for generations after generations,” Wilson told the Supreme Court.
A five-judge Constitution bench is hearing petitions that 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.
At an earlier hearing on Tuesday, Advocate Mohan Gopal, representing a group of petitioners, had told the Supreme Court that the 103rd amendment is a “fraud on the Constitution”.
“This amendment is being seen as an instrument to protect the privileged rather than safeguarding the marginalised,” he had told the court.
At Thursday’s hearing, Wilson argued that reservation just for economic consideration violates the basic structure of the Constitution.
“It destroys the identity of the Constitution and the Parliament has travelled in a forbidden area by invoking Article 368 [power of Parliament to amend the Constitution] by brute majority and trampled the rights.”
Claiming that former President of India Ram Nath Kovind and his wife, who are Dalits, were turned away from a temple, he said such discrimination still continues.
Kovind and his family had offered prayers outside the Brahma temple in Pushkar on May 15, 2018. Local officials, however, claimed that Kovind did not enter the temple as his wife could not climb the stairs because of a knee injury.
Meanwhile, Senior Advocate Ravi Verma Kumar told the court that the grounds of prohibition in discrimination was caste, creed, sex and religion but not economic weakness.
“Where is the mention of economic depravity?” he said. “It is not a ground of discrimination. It cannot be permitted that you put economic criteria in 15(1) [no discrimination of the basis of caste, creed, sex, religion and place of birth] and then introduce a bridge by way of Article 15(6) [that provides the basis for reservations for the economically weaker section category].”
Justice S Ravindra Bhat, however, questioned the reasoning behind the argument and said: “The economic basis is a recognised basis for classification. It’s non-enumeration under Articles 15 and 16 will perhaps mean it is permissible.”
To this, Kumar replied that what is permissible has already been written in the Constitution.
Lawyer KS Chauhan, appearing for one of the petitioners, referred to the speeches of former Chief Justice NV Ramana to point that legislations are being passed in Parliament without much debate, reported PTI.
“We are a democracy and democracy is based on deliberations,” Chauhan said. “This constitutional amendment bill was passed in Lok Sabha on January 8 and in Rajya Sabha on January 9. I could not find any debate on this.”
However, the Supreme Court refused to entertain the submission about the 103rd amendment being passed without much debate.
“We are barred from entering into that arena as to what is spoken in Parliament,” it said. “We cannot intervene into the legislature and this cannot be a ground. We cannot intervene. Why discuss and debate this?”
The Union government introduced the economically weaker sections quota for those who cannot avail themselves 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 had 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.