Live Law

Live Law

14-09-2022

05:03

#SupremeCourt's Constitution Bench continues hearing cases challenging Constitution (103rd) Amendment Act which introduced reservation for Economically Weaker Sections. Bench comprises CJI UU Lalit, Justices Dinesh Maheshwari,Ravindra Bhat, Bela M Trivedi & JB Pardiwala. #EWS

Prof. Ravi Verma Kumar (for petitioners): Yesterday I made a reference to Champakam Dorairajan. #EWS #SupremeCourtOfIndia

CJI: You can just give us an outline of Champakam. Kumar: It's a seven judge bench. This was the policy of reservation, if I may give a brief background. Mr. Gopal has sufficiently outlined history of policy of reservation. #EWS #SupremeCourtOfIndia

Kumar: Soon after the census, administration took notice of imbalance of caste because noone knew the population of each caste. Incident happened in Mysore, after census were published, there was a monopoly in state administration. So first reservation policy was conceived in..

Kumar: ...Mysore in 1872. This was introduced in only police, only in inspectors, SI and head constable. Out of 10 posts, 2 posts were earmarked for Brahmins, rest were to be filled by non brahmins including Muslims, Anglo Indians etc. #EWS #SupremeCourtOfIndia

Kumar: Mysore Brahmins raised an issue and was concedeed by Maharaja. After the Mysore Brahmins got this, non brahmins also started. Because those days revenue was collected exclusively by landlords. That is when the then Maharaja, introduced a benign policy... #EWS

Kumar: He distributed all sites for education and then he said policy of reservation should be streamlined. The then CJ, Sir Miller was appointed as chairman by committee to go into this question. #EWS #SupremeCourtOfIndia

Kumar: Since then reservation has continued in Mysore except when Balaji struck it down and economic reservation was introduced. In the meanwhile, Maharaja Sahu introduced reservation in 1902 and all states followed suit. #EWS #SupremeCourtOfIndia

Kumar: This was given statutory recognition under GOI Act 1935 where the beneficiaries of reservations came to be divided in depressed classes, SCs and STs and that was accepted by makers of constitution. #EWS #SupremeCourtOfIndia

Kumar: In Champakam, reservation policy of Mysore was challenged. It was struck down by Madras HC. [Refers to the HC judgement] #EWS #SupremeCourtOfIndia

Prof Kumar explains the reservation policy which was challenged and struck down in the Champakam Dorairajan judgement. #EWS #SupremeCourtOfIndia

[Kumar quotes from the judgement]: "...The other categories including Muslims, Anglo-Indians, shall be treated other than backward Hindus..." #EWS #SupremeCourtOfIndia

Kumar: [continues quoting] "Petitioner may be far more qualified and if there were no reserved posts, he would be appointed but he cannot expect those posts reserved for others only because he is Brahmin even if he has better qualifications...communal G.O. is void" #EWS

Kumar: This ratio has stood the test of time and has been followed in Balaji, Indira Sawhney, Ashok Kumar... #EWS #SupremeCourtOfIndia

Kumar: Every list published by every govt is a list of caste, tribe, communities who are certified as not included in list of backward classes. Mandal commission didn't recognise, states didn't. Those who are adequately represented aren't included in list. #EWS #SupremeCourt

Kumar: all those who are rejected they have been now given the benefit of 10% reservation. CJI: Champakam was in era when there was no 16(6). So can that be sanctioned? Kumar: I agree. This is a prelude to show that unconstitutional exercise has been given a colour of authority.

Kumar: Article 14 has two limbs. First part is doctrine of equal opportunity. Second part is equal protection of laws. [Reads Article 14]. #EWS #SupremeCourtOfIndia

Kumar: This is substantive equality. First one is to ensure equal opportunity and second is to ensure that country emerges as a casteless and classless, egalitarian society. #EWS #SupremeCourtOfIndia

Kumar: Pavitra too has gotten into this in detail. These doctrines operate in different areas. First, principle of equal opportunity which should be made available to everyone, that is reinforced by many provisions in Constitution- Article 15(1)... #EWS #SupremeCourtOfIndia

Kumar: It prohibits discrimination on enumerated grounds- religion, caste, sex. Why did the constitution prohibit discrimination? Constitution framers found that our society is uneven. It's divided on basis of religion, race, sex, caste #EWS #SupremeCourtOfIndia

Kumar: India has a very rich heritage. All organised religions of the world have their representatives living here. After tragedy of partition, it was felt necessary to prevent any further discrimination. #EWS #SupremeCourtOfIndia

Kumar: A male dominated society was found to have oppressed women so sex was introduced as ground for discrimination. More importantly, India was divided on basis of caste- 5000 castes, which did not have any social intercourse with one another. #EWS #SupremeCourtOfIndia

Kumar: This division of country in so many castes had to be addressed so caste was introduced as a ground to prohibit discrimination in all state activities. #EWS #SupremeCourtOfIndia

Kumar: Clause 2 says- this was a contribution by Babasaheb due to his experience as being an untouchable, where he was denied access to public places- in that backdrop he introduced it [Reads Article 15(2)] #EWS #SupremeCourtOfIndia

Kumar: Court may take note of Gandhiji's satyagraha in Kerala. As a student I was under impression that it was temple entry, later when I went in seminar, I noticed that it wasn't to enter temple but to enter a road around the temple. #EWS #SupremeCourtOfIndia

Kumar: Such was the prevailing situation- caste prejudice, disadvantage imposed on caste, therefore, this provision was introduced. #EWS #SupremeCourtOfIndia

Kumar: Unless caste is destroyed in this country, there cannot be equality. This was the reason of this provision. This would include all state activities. This is the foundation laid by Constitution to build a casteless society. #EWS #SupremeCourtOfIndia

J Bhat: In fact this was the context of Champakam. This is what petitioners argued, the argument made was 16, 14 etc- which was rejected by court. Kumar: I agree. [Refers to Article 29] #EWS #SupremeCourtOfIndia

Kumar: [Reads Article 29] J Bhat: The reason is that they didn't have expansive understanding of 15(1) so if there was an aided institution of community, they couldn't deny... Kumar: What is missing is discrimination on basis of sex. #EWS #SupremeCourtOfIndia

CJI: Sex or place or birth Kumar: Because education for girls was provided mainly in girls schools or colleges and society wasn't ready for co ed education. Madam curie had to disguise herself as a man...if that was in France we can imagine how it was in India. #EWS #SupremeCourt

Kumar: [Refers to Article 16] These were the days when private enterprise weren't well known phenomenon. Thus, employment was considered empowerment. And employment under State was considered as only route or map for advancement. So it had to be specially addressed. #EWS

Kumar: [Reads Article 16(1)] Having guaranteed this, it carries the discrimination prohibited under 15 further. So both advance doctrine of equal opportunity. #EWS #SupremeCourtOfIndia

Kumar: [Reads Article 16(2)] In matter of public employment, there was total prohibition on denying employment in these grounds. This is the doctrine of equal opportunity. #EWS #SupremeCourtOfIndia

Kumar: Why was this included? [Reads Article 17] This was a special provision...I also have had personal experience as Chairman of Backward Classes Commission. Karnataka has many villages but not a single village has any resident from SCs. All SCs are kept out. #EWS #SupremeCourt

Kumar: This is for all villages.We never fought apartheid in India. This is nothing but Apartheid. I have had occasion to study it, it only means, 'living apart'. We have kept out all Dalits and SCs. Therefore, Article 17 states this...[Reads 17] #EWS #SupremeCourtOfIndia

Kumar: As a FR, untouchability is abolished but we still find it being practiced. [Refers to Article 35] #EWS #SupremeCourtOfIndia

Kumar: Fortunately it is not left to States because State may change it's mind. [Reads Article 35] #EWS #SupremeCourtOfIndia

Kumar: It's a mandate which itself is a fundamental right. Commanding state to enforce laws to prohibit untouchability. [Continues reading Art 35] #EWS #SupremeCourtOfIndia

Kumar: Thus, State enacted laws for SCs to access temples which were largely built by Dalits. Those laws were protected under Art 372. This is Article 17. [Refers to Articles 23,24- freedom from exploitation] #EWS #SupremeCourtOfIndia

Kumar: [Reads Article 23, Article 25] Who are the persons who are exploited? Are they people accomodated in EWS? Respectfully not. These are people who are classified as SCs, STs or backward classes. #EWS #SupremeCourtOfIndia

Kumar: If not, why are there bonded labourers, why did they send children to work in industries? Court may take judicial note that they're all people coming from lowest strata because in India, caste decides everything - status, occupation, education level. #EWS #SupremeCourt

Kumar: Everyday we're taught Ramayana and told what happened to Shambuka, Eklavya, Karna- what did they do, except being born in low caste? They were denied education. Therefore, 23 and 24 liberated them from clutches of landlords, upper castes. #EWS #SupremeCourtOfIndia

Kumar: It is to liberate entire mass of Shudras, Dalits and Adivasis that article 23 and 24 were incorporated, otherwise Right to Education under 15 or freedom of occupation under Art 19, or freedom of movement, cannot be realised. #EWS #SupremeCourtOfIndia

Kumar: Having said that all people have equal opportunities, why was it felt necessary to prohibit discrimination by enumerating grounds specially- caste, sex, religion? That is the beautiful concept of equality under the Constitution. #EWS #SupremeCourtOfIndia

Kumar: It wanted to halt all inequality. In his dissenting opinion, Justice Subbarao says unless you prohibit, this race is a farce, doctrine of equal opportunity will be a farce if you don't prevent this widening of this gap. #EWS #SupremeCourtOfIndia

Kumar: They prevented the escalation of inequalities between the haves and the have nots. It had to prevent this aggregation, increase of instances of inequality. Therefore, this prohibition exists. They said we will not allow this. #EWS #SupremeCourtOfIndia

Kumar: Having done this, there is a deep, wide gap between these sections- sections vertically divided in the name of caste, sex. What do you do for that? Here, I borrow the concept in Indira Sawhney given in dissenting opinion- we have to breach the gap between these sections.

Kumar: That is the second leg of my arguments. This is the equality code. First is the doctrine of equal opportunity. You eliminate inequality. How? [Refers to Article 15(3)] #EWS #SupremeCourtOfIndia

Kumar: [Reads Article 15(3)] it does not say reservations or quota. It says "any special provision"- open schools, colleges, industries, train women, it's so wide, because the gap in men and women is so wide that nothing shall stop state from bringing women at level playing field

Kumar: Champakam case is almost in para materia. Except women didn't enjoy the non obstante clause. [Reads Article 15(4)]. please mark, it is socially and educationally, not socially and economically or economically and educationally. #EWS #SupremeCourtOfIndia

Kumar: No limit was imposed, not even a suggestion to provide reservation- any special provision - such a wide canvas! For the upliftment of these sections- SCs and STs and backward classes. Because it's not inequality created by loss of wealth or by accident but by birth. #EWS

Kumar: It is disadvantages historically. That is why such a wide ambit was given. Those belonging to other categories were found to be socially, economically and educationally advanced. #EWS #SupremeCourtOfIndia

Kumar: In a case, a Backward Classes committee report classified on education average. The state average was 6.9. Those below were classified as backward. The government made an interesting exercise - what is this 6.9, we will round it up to 7.

Kumar: The ruling class belonged to a class which had state average of 7.1. they made it 7, rounded it up, and made them backward. This was the challenge in Balaji- a fraud on constitution. The exercise of making a round up integer and making a forward community backward. #EWS

Kumar: The debates have been read over. I will not trouble the court. [Refers to 16(4)] Before that let me read Article 340. Not only classes are defined, a machinery is provided to identify classes, study their problems. This is an important requirement #EWS #SupremeCourtOfIndia

Kumar: Constitution not only provides a road to bridge the gap but also means to bridge the gap by Article 340. [Reads Article 340] #EWS #SupremeCourtOfIndia

Kumar: This was the machinery created to identify backward classes. First commission was appointed in 1953 when the president appointed a commission under Chairman Acharya Kaka Kalelkar. He sent report in 1955. The GOI communicated the copy of report and deliberating on it. #EWS

Kumar: On this Balaji case was decided where it was held that caste cannot be the sole criteria for identification of socially and educationally backward classes. All castes now found in backward classes list, are on basis of caste. #EWS #SupremeCourtOfIndia

Kumar: It is class, not caste. Though what are enumerated are caste because they answer the points enumerated in Balaji. Two things are important: criteria of classification as backward classes. #EWS #SupremeCourtOfIndia

Kumar: Caste has a social and a hierarchical meaning. When we say that so and so belongs to this caste, it can mean, esp in rural area what is his social status or occupation. There is used not to give the social status but to give identify of a man as a member of a class. #EWS

Kumar: Second meaning is in the hierarchical sense. Hindi society is vertically divided in 5000 sects- if you're born in 7th floor you die there, you can't climb to 12th floor. #EWS #SupremeCourtOfIndia

Kumar: In this very court, Mandal case was argued, Justice Sawant said, if you say caste should be eschewed from classification, then you tell me if Ambedkar came would you have admitted to your law college? These are the realities of caste. #EWS #SupremeCourtOfIndia

Kumar: But Ambedkar was never promoted as a kshatriya or Brahmin He was born as an untouchable and lived as an untouchable. Therefore, when Balaji says don't go by caste, it says don't go by hierarchy. #EWS #SupremeCourtOfIndia

Kumar: 22 parameters were prescribed. It's only those groups which passed this test, they earned the label of SEBCs, not all. That's the importance of Article 340. Now look at EWS, who decides this criteria for identification? #EWS #SupremeCourtOfIndia

Kumar: Greatest debate in this court is on this identification. [Refers to Articles 341, 342,366] #EWS #SupremeCourtOfIndia

Kumar: How do you reach that identification? You get data, what kind of data? How do you collect? Who collects? These are important factors. Everytime reservation is challenged, the first argument is that it is based on obsolete data. #EWS #SupremeCourtOfIndia

Kumar: Why? Because first census was conducted in 1872, and it was a comprehensive census operation. Every aspect- membership, family, occupation, property holding and more importantly, membership of religion, caste, race, language were all collected. '72 it was done, '81...

Kumar: ...it was done and by 1911, they had perfected it. Even today researchers, they fall back on it. #EWS #SupremeCourtOfIndia

Kumar: 1951, the first decision they took is to delete caste from census. So we don't know how many Brahmins or bhangis are there. With great reluctance in 2011, GOI enumerated caste. But by the time the census was done. #EWS #SupremeCourtOfIndia

Kumar: Now all backward classes commission are operating in documents. How can you determine backwardness unless you know their population- how many doctors, engineers, politicians are there? Nothing! It's all suppressed. #EWS #SupremeCourtOfIndia

Kumar: It was recommended that caste should be included and census without it will only result in a headcount like a shepherd counting sheep. This problem was faced by the Economic Committee constituted by GOI- they said we can't conduct.

Kumar: So the last census we have is of 1931 where caste details were collected. 1941 cannot be relied upon and 1951, it was deleted. Mandal made an interesting exercise - commission fell back on 1931 and gave a report in 1980. #EWS #SupremeCourtOfIndia

Kumar: They calculated growth of each caste to 1987. They classified 52% of Indian population as SEBCs. #EWS #SupremeCourtOfIndia

Bench takes a ten minute break. #EWS #SupremeCourtOfIndia

Kumar: Mandal commission classifies 52% as SEBCs. A nine judge bench directed Commission in each state saying that identification of backward classes is not a one time measure and there should be a review every ten years. #EWS #SupremeCourtOfIndia

Kumar: National commission was also constituted. Now the commission has been given a constitutional status and backward classes commission is put on par with National Commission for SCs under 338 and National Commission for STs under 338(a) #EWS #SupremeCourtOfIndia

Kumar: Why I'm saying this is because after the direction of this court, the national and all state commission have gotten complaints of under inclusion in list of SEBCs as a result of which series of changes in the list of backward classes. #EWS #SupremeCourtOfIndia

Kumar: New castes and tribes have found entry. Area restrictions have been included. In the process from '93 till now, 30 years, so many changes have taken place. #EWS #SupremeCourtOfIndia

Kumar: Some castes have been struck out. So approx 60% of population of the country is identified as a backward class for purposes of 15(4) and 16. #EWS #SupremeCourtOfIndia

J Bhat: Give one example of one place where area restriction is placed. It would give us an idea... CJI: You recollect that Committee in Justice Barucha...Palghat or something, coming from Malabar were alone considered to be backward. J Bhat: Even in OBC list you have that #EWS

Kumar gives an example of communities in Karnataka which are considered backward in State but not in Center. #EWS #SupremeCourtOfIndia

Kumar: A new bill was introduced. Instead of deleting any caste or community, it removed all area restrictions. It was necessitated because there had been no change of list after reorganization of states. #EWS #SupremeCourtOfIndia

Kumar: In order to remove this anomaly, a bill was introduced in 1976 which came into force in 1977. It's called the SC-ST Area Removal Act,1976. #EWS #SupremeCourtOfIndia

Kumar: Though SCs and STs enjoy same condition across the country, their position changes. For eg. Banjaras in Karnataka are SCs but in Maharashtra they're not. [Gives more such examples] So there is a wide difference in status. #EWS #SupremeCourtOfIndia

Kumar: The list also includes touchables. Because in 1873, an act was passed called Criminal Tribes act, listing tribes as criminals, who Britishers could not manage so they couldn't move from their settlements.

CJI: It went to such an extent that when a child born in a family an FIR would be filed so record was maintained. Where do we lead now? We're waiting for that. You've laid the background very well, we're waiting for your submissions. #EWS #SupremeCourtOfIndia

Kumar: [provides details on latest census] The backward classes under 16(4) will be about 85%. Without any survey, constitution says all those who aren't backward are EWS. CJI: It doesn't say that. Kumar: No no, it says if you're under 16(4), you're out, if not, you're here.

Kumar: Only 15% of population will be beneficiaries under EWS. About 30% of this who are not covered will be economically weak. 5% of the population of the country.. CJI: Will be the target population. Kumar: Yes, we don't have data on whether they're backward, represented.

Kumar: Women were not given 50% but 5% are given 10% reservation CJI: It was always commensurate with the population #EWS #SupremeCourtOfIndia

Kumar: It'll go on increasing year after year. Possibly there will be more number of posts than applicants. Noone was given a quota like this on a platter. My first ground of attack is giving a quota of 10% of a small population of a privileged class- what's the foundation?

Kumar: It's manifestly arbitrary and fraud on constitution to give such a privilege. Second ground of attack is- you not only give 10% but take away 10% from rest of the population. You disqualify everyone under 16(4) #EWS #SupremeCourtOfIndia

Kumar: We have a FR which was available to us to apply for 50% posts, professional colleges is now shrunk. We're disqualified. It's an affront to the constitution to say that- that somebody is disqualified. #EWS #SupremeCourtOfIndia

Kumar: It is understandable if it's said that you got a seat in medical College under 15(3) but no, it's because your caste is enumerated as SC, therefore you're removed. Is it not discriminatory on ground of caste? This violates the equality code.

J Bhat: PGI Chandigarh, single post cannot be reserved. Even on one post there cannot be... Kumar: No that is from 1987, it has been there. #EWS #SupremeCourtOfIndia

Kumar: Don't I have freedom of religion? Am i to be condemned for belonging to that religion? I want to be free from my religion. Likewise I wanna be free of my caste. But my caste is SC, my caste is backward so I'm not eligible for this. #EWS #SupremeCourtOfIndia

Kumar: My fundamental freedom under 25, under 19, I don't want to be a member...A number of people are saying. Yesterday madam Arora mentioned inter caste marriage. You can't impose religion of husband on wife. They haven't imposed but you're imposing. #EWS #SupremeCourtOfIndia

Kumar: Justice Ramaswamy's judgement. J Bhat: In this matrix, you're applying Shastric law, even when it has nothing to do with it. Kumar: Caste is thrust upon her. #EWS #SupremeCourtOfIndia

Kumar: If casteless society is the law that constitution has envisioned, it should be recognised. I'm condemned to this caste. I didn't take reserved seat in college,. i didn't apply for job under quota. People have stopped recognising themselves as that. #EWS #SupremeCourt

Kumar: They may be born as Christians, they don't go to mass. What about some people? Are they being denied their FR of equal opportunity? But this divides the society- EWS and backward. Babasaheb didn't die as a Hindu even when he was born as Hindu. He declared. #EWS

Kumar: This is the third round challenging this amendment as violating freedoms under 19 and 21. #EWS #SupremeCourtOfIndia

Kumar refers to the Statement of Objects and Reasons of the 103rd Amendment. #EWS #SupremeCourtOfIndia

Kumar: "At present, the EWS have remained excluding from attending higher education and public employment on account of their financial capacity to compete with persons who are economically privileged." This is a legislative judgement saying this. #EWS #SupremeCourtOfIndia

Kumar continues reading the Statement of Object: "The benefits of 15(3) and 16(4) are general..." This statement is a sweeping statement. #EWS #SupremeCourtOfIndia

Kumar: DPSPs contend in art 46 that state shall come out with special care for weaker sections and in particular SCs and STs and shall protect them... This is the statement where they invoke article 46. All DPSPs are bridges to eliminate inequalities caused by discrimination #EWS

Kumar: "However EWS were not elevated..." So it is their case that it is to fulfil the State's obligations under Art 46 that they're amending. With great respect, Art 46 does not give license to destroy the constitution. #EWS #SupremeCourtOfIndia

Kumar: It is an authority to follow the principles enumerated in constitution, honor the principle of equal opportunity, construct bridges under the constitution. This says we need to amend the constitution, that's what Art 46 mandates. This is unwarranted and unconstitutional.

Kumar: Let me refer to grounds of prohibition against discrimination. [Reads Article 15(1)] Grounds prohibited are religion, caste, sex, place of birth...In respect of every ground constitution has provided a bridge. #EWS #SupremeCourtOfIndia

Kumar: Where is the mention of economic depravity? It is not a ground of discrimination. It's an impermissible exercise to put economic criteria in 15(1) and then introduce a bridge by way of 15(6). #EWS #SupremeCourtOfIndia

J Bhat: What you're saying is that govt frames policies which are rested on economic basis. Who can be the recipient? Only those with certain income level. That classification is recognised by court. Come to commercial field, you cannot have more than certain turnover.

J Bhat: Economic criteria is basis for classification. It's non enumeration in 15 means perhaps that it is permissible. Kumar: Whatever is permissible was provided for. If EWS were to be given, what can a poor man be given? Can he be given a birth in cabinet? That's not a remedy.

Kumar: This is a misplaced provision. You don't take a person suffering from TB to a maternity ward. If a poor man has a problem, give him money or scholarship. Open hostels for them...this legislation saying they've been kept out? #EWS #SupremeCourtOfIndia

Kumar: If 15(3) provision is made for women if can be challenged. This is reservation, it cannot be challenged. This is not on any foundation.

Kumar: Those who are kept out of educational institutions historically because of their caste, give them education. But these are not the people who have suffered on such factors. #EWS #SupremeCourtOfIndia

Kumar: Construction of a bridge can only be to gill the gap to bring them on a level playing field, to eliminate inequalities which have created this gap, remove disadvantages which have created these premises. #EWS #SupremeCourtOfIndia

Kumar: Economically weaker is not a factor. The statement therein is totally wrong, not supported by any empirical data and we cannot question it in court because it's in the constitution. So it denies any judicial remedy too. Judicial remedy is a fundamental right. #EWS

Kumar: We can come and question why did you include them in backward class? They're not backward. But here we cannot; without prescribing any criteria, anyone can be declared economically weak and they can be given 10 seats in medical college. #EWS #SupremeCourtOfIndia

CJI: How long will you take thereafter? Kumar: Another hour or so. CJI: Try to wrap, there are people waiting. Kumar: I'll try CJI: We'll come back at 2 pm. #EWS #SupremeCourtOfIndia

The bench will continue the hearings at 2 pm. #EWS #SupremeCourtOfIndia

Bench resumes hearing. Prof Kumar: I was reading the Statement of Object and Reasons which states that art 46 requires as a constitutional mandate a constitutional amendment. [Reads from the Statement of Objects] #EWS #SupremeCourtOfIndia

Kumar: My submission is that this is to say the least, a gross misreading of Article 46. To say that you have the power to amend the constitution as if Article 46 mandates it... Let's look at Article 46 [reads Article 46] #EWS #SupremeCourtOfIndia

Kumar: So they have to be read together - SC, STs and weaker sections. Weaker sections are those which can find company with SCs and STs, cannot be something wholly differently, more importantly it cannot disqualify SCs and STs. #EWS #SupremeCourtOfIndia

CJI: If there is a vertical reservation for OBCs, in that vertical column, those from SCs and STs would be disqualified Kumar: I bow down to this submission, they're vertical but they're classification. Reservation is a protection given to these designated sections.

J Bhat: So there is an element of exclusion. The SC category cannot get into the seats marked for backward classes. So the answer could be that backward classes are synonymous due to judgements like Indira Sawhney. #EWS #SupremeCourtOfIndia

J Bhat: The reason why exclusion is permissible is because that is another constitutionally mandated class. Affirmative action carries an element of exclusion but it ensures that Target groups get what they're supposed to. CJI: Communities other than SEBCs can they come in...

CJI: ...Wider definition of weaker sections? Kumar: Yes, article 46 itself says weaker classes esp SCs and STs.

[Kumar refers to Justice Sawant's opinion on Article 46] Kumar (citing A. Peeriakaruppan v. State of Tamil Nadu from Indira Sawhney judgement]: "Caste has always been recognised as class..." #EWS #SupremeCourtOfIndia

Kumar: The decision also quotes Kalelkar report and says that upper caste man cannot change his status and become backward just because he starts cleaning shoes. A class as understood should be homogeneous, should have numerical strength and have origin in religion #EWS

Kumar: Just because they're economically weak, they do not become a class for any state action. CJI: Yes Kumar: Article 46 I'm reading for only this purpose [Reads Article 46] Weaker sections should be understood ejusdem generis SCs and STs. #EWS #SupremeCourtOfIndia

Kumar: (reading art 46) "and shall protect them from social injustice" what is this social injustice that a kshatriya, brahmin or vaishya suffer? None of these groups suffered any social injustice. They cannot come under 46 #EWS #SupremeCourtOfIndia

Kumar: (reading art 46) "protect them from exploitation" Who has exploited these people? Where were they exploited? When were they exploited? They can never be classified under 46, much less can they be conferred a whopping 10% reservation. #EWS #SupremeCourtOfIndia

Kumar: My predecessor has already read Justice Sawant's declaration. (in Indira Sawhney) [Reads majority opinion] #EWS #SupremeCourtOfIndia

Kumar: (from Indira Sawhney) "Backward class cannot be only on basis of solely economic criteria." This is the view uniformly taken by this court. That is why this is a legislative Judgement to overrule Indira Sawhney. [Refers to Justice Sahai's opinion] #EWS #SupremeCourtOfIndia

Kumar: [Reading Justice Sahai's opinion in Indira Sawhney judgement] "De facto difficulties in determining such backwardness stand..." #EWS #SupremeCourtOfIndia

Kumar: [continues from Justice Sahai's opinion] "Any reservation curtailing right of equal opportunity has to withstand the test of equal protection or benign discrimination...It should be a continuous suffering." #EWS #SupremeCourtOfIndia

Kumar: [continues from Justice Sahai's opinion]: "Since Article 16(4) has a constitutional purpose and is to go on only till such goal is achieved, economic backwardness is not eligible..." #EWS #SupremeCourtOfIndia

Kumar: How will you determine if these people are inadequately represented? What is the group? You cannot take a family and say that they're inadequately represented. 16(4) also lays down who are economically weaker sections. #EWS #SupremeCourtOfIndia

Kumar [continues reading from Indira Sawhney judgement]: If there is a disparity between rich and poor, it has to be minimised. Public servants- maximum paid should be 10, and lowest should be 1- 1/10 is the ratio. This is remedy for poor man, that is, minimum inequality. #EWS

Kumar [continues from Indira Sawhney judgement]: "Any reservation or affirmative action on economic criteria cannot be upheld under the doctrine of reasonable classification." So economic criteria is incapable of rational classification. #EWS #SupremeCourtOfIndia

J Bhat: Where is that- when the govt set to defend it saying that when it's not 16(4), it's 16(1)- which the court has struck down. So under the old regime could not be done. #EWS #SupremeCourtOfIndia

Kumar: Let us test it on first principle? What is the ration? Poverty. What is the nexus with the object of classification? Object is to provide jobs. How are these poor people different than other poor people? #EWS #SupremeCourtOfIndia

Kumar [continues reading Justice Sahai's opinion]: "All grounds of discrimination were to arrest the increase of inequality. All measures were to bridge the gap thus created...same cannot be said for rich and poor." This statement cuts the roots of amendment's validity. #EWS

Kumar [continues from Indira Sawhney judgement] : "Former is in realm of justice and latter is equal protection to which everyone is entitled..." #EWS #SupremeCourtOfIndia

Kumar: What nexus can be there between poverty and providing jobs? So it fails the twin test of rationality and nexus. #EWS #SupremeCourtOfIndia

Kumar: This is 16(1)- you can't classify. What was said in Thomas that a special provision for SC under 16(1) cannot apply! This cannot be basis for classification. #EWS #SupremeCourtOfIndia

Kumar: When will you exclude a poor man from the list of EWS. Soon after land reforms were introduced in Karnataka, all landlords lost their lands and became poor. Will you admit them as poor? #EWS #SupremeCourtOfIndia

Kumar: Abolishment of princely states- all princes became paupers. Will you admit them? They had no income and more taxes to pay. CJI: Very well, anything else? #EWS #SupremeCourtOfIndia

Kumar refers to another paragraph from Indira Sawhney judgement on statistics on average of classes in different areas. #EWS #SupremeCourtOfIndia

Kumar: Such is the rigorous and scientific criteria. Come to the explanation of Article 15(6). [Reads explanation] "EWS shall be such as notified by state on basis of family income and other indicators of economic disadvantage." #EWS #SupremeCourtOfIndia

Kumar: Backward classes have to answer so many tests. If they're living in good houses, not kacha houses, they're not excluded. But if their caste are included, they're excluded. Such is the arbitrariness #EWS #SupremeCourtOfIndia

Kumar: This is a militant violation of basic structure of the Constitution. #EWS #SupremeCourtOfIndia

Sr. Adv. Salman Khurshid (for petitioners): If I might underscore, this is an area of justice and affirmative action. In India there is special area of affirmative action, that is Reservations, that is what courts have referred to. #EWS #SupremeCourtOfIndia

Khurshid: There is a larger circle of affirmative action and within that is reservation. Many countries have affirmative action- such as Israel, Germany. Affirmative action may be one answer. Whether these reservations can be moved beyond 50%? Court said it's upper limit. #EWS

Khurshid: If I might preface this also with one question about the idea of equality. I would urge you to consider that this entire thing should be examined against an idea of equality and equality code. #EWS #SupremeCourtOfIndia

Khurshid: From there I will take you to the idea of classification. Under A. 14, reasonable classification is what you have upheld. Nexus should be achieved and object must be reasonable. #EWS #SupremeCourtOfIndia

Khurshid: The first point I wish to make is that the entire list of reserved category of citizens in our country is based on caste. Although we don't look at caste for any other purpose except for purpose of constitutional support. #EWS #SupremeCourtOfIndia

Khurshid: In the list of Mandal commission, every protected class is based on caste. And it's true for other religions too- such as Islam/ Sikhism. What are the parameters to see which caste has been converted to class is what I'll look into. [Refers to Indira Sawhney judgement]

Khurshid: The reference is to communities, not to class. Class is the second stage which one will reach after examining communities. #EWS #SupremeCourtOfIndia

Khurshid (continues quoting from Indira Sawhney judgement): There are several attributes that get repeated into deciding what is a class through a caste. #EWS #SupremeCourtOfIndia

Khurshid, while quoting from the judgement refers to the definitions of caste and class. #EWS #SupremeCourtOfIndia

Khurshid: "They did not have the intention of equating classes with caste." Be that as it may, at the end they get equated. There is an overlap between class and caste [Reads Indira Sawhney judgement] #EWS #SupremeCourtOfIndia

Khurshid: That issue of merit applies to everyone. You will find the caste issues of Muslims and Christians. Please come to Justice Jeevan Reddy's opinion. [Reads the opinion] #EWS #SupremeCourtOfIndia

Khurshid: It is just to indicate the process by which court lifted attributes from the caste and converted it to class. I cannot find a similar stepping stone for 10% of EWS. #EWS #SupremeCourtOfIndia

Khurshid: This is CJ Balakrishnan opinion... [Refers to the opinion] #EWS #SupremeCourtOfIndia

Khurshid: I am conscious of the fact that your Lordships have said that American decisions may not be exactly but periodically you do refer to them. If you see in this note on affirmative action... #EWS #SupremeCourtOfIndia

Khurshid: ...In some regions when quotas are not used, minorities are given special provisions (in US)...They said you cannot exclude someone on basis of reservations but can take into account race and give special preference. #EWS #SupremeCourtOfIndia

J Bhat: This may not be good law there as racial tie breaker is frowned upon as they said that the constitution is colour blind. #EWS #SupremeCourtOfIndia

Khurshid: The tie breaker and alternative approach in US and Europe is common. #EWS #SupremeCourtOfIndia

Khurshid: There are cases where some reservations are made where gender Justice is ensured by giving women...look at the example of Israel. First is Africa, then Asia, then Israel. I'll read their class based affirmative action policy. #EWS #SupremeCourtOfIndia

Khurshid: [Reading Israel's policy] "The emphasis is on structural disadvantages...This policy made institutions more diverse than they otherwise would have been." Diversity can be one reason why affirmative action is taken but that's different than general arguments applied #EWS

Khurshid: [refers to Ashok Kumar Thakur on the issue of applying American Law] #EWS #SupremeCourtOfIndia

CJI: The note that you've given, soon after Israel is India, just read that. Khurshid: "Reservation is a part of affirmative action in India..." [Reads on Indian policy on reservation] #EWS #SupremeCourtOfIndia

Khurshid: Your lordships have taken several passages on scholarship network by GOI. My arguments are that there are many ways of addressing the issue of economic disadvantage. CJI: Earlier counsel said that it would be 5% acc to this but it's at best 2% #EWS #SupremeCourtOfIndia

Justice Bhat: Most scholarships went to SCs and STs and 2% to others. CJI: We have to supplement that submission, that's why. #EWS #SupremeCourtOfIndia

Khurshid: 4 economies are indicated in the note and acc to this, economy C where least advantaged group is getting most, and most advantaged group gets least. That's how sense of fairness is judged. #EWS #SupremeCourtOfIndia

Khurshid: 2-3 points from TMA Pai judgement on whether seats can be taken... I've put it in original note but couldn't be put here due to paucity of time. That's all I have to say. CJI: Thank you #EWS #SupremeCourtOfIndia

Sr. Adv. P Wilson (for petitioners): I wanted to start by quoting William A. "One law for lion and ox is oppression." That's what I want to say about reservations for SC/ST/OBCs and EWS on other hand. #EWS #SupremeCourtOfIndia

Wilson: 103 amendment grants reservation to upper caste is violation of basic structure. Second, mockery on idea of affirmative action and violative of A. 14. Third, classification of EWS is not reasonable or valid. #EWS #SupremeCourtOfIndia

Fourth, impugned amendments fails the width test under Nagaraj. It permits violation, one need not wait for potential violation to happen. #EWS #SupremeCourtOfIndia

Wilson refers to Dalmia Cement judgement: It differentiates between social and economic justice. #EWS #SupremeCourtOfIndia

Wilson: So far as the Office Memorandum under challenge under Indira Sawhney judgement, is an EWS reservation which was struck down- similar to what we find in the 103rd amendment. #EWS #SupremeCourtOfIndia

Wilson refers to the said OM challenged in the Indira Sawhney judgement. Wilson: There was much hue and cry when first reservation of 27% was given and therefore they bought an amendment. #EWS #SupremeCourtOfIndia

Wilson refers to clauses of the OM and the issues framed in the Indira Sawhney Judgement. #EWS #SupremeCourtOfIndia

Wilson: Originally 8 issues were framed. One of the issues was examining of 16(1) itself - if economic criteria by itself could not constitute a class... #EWS #SupremeCourtOfIndia

Wilson: They then reframed questions. [Refers to the reframed questions] #EWS #SupremeCourtOfIndia

Wilson continues reading from the Indira Sawhney judgement. #EWS #SupremeCourtOfIndia

Wilson: What happened is as a test, this was introduced in Gujarat. Ordinance 1 of 2016, a replica of amendment was introduced. This was challenged in Gujarat HC. The HC quashed this ordinance. #EWS #SupremeCourtOfIndia

Wilson: Cause title was Dayaram Verma v. State of Gujarat. The issues pointed by the division bench are in para 29 [refers to the judgement] #EWS #SupremeCourtOfIndia

Wilson [while referring to the Gujarat HC Judgement]: "Thus, it is clear that economic criteria cannot be the sole criteria for purpose of reservation... reservations cannot exceed 50%..." #EWS #SupremeCourtOfIndia

Wilson [reads from judgement]: "In view of the fact that the group is identified on economic criteria which is disapproved by SC in Indira Sawhney, the ratio holds good equally for identifying for the 10%..." #EWS #SupremeCourtOfIndia

Wilson: How I say reservation to forward class is a violation of basic structure of Constitution, I will take you to Ashoka Kumar Thakur case - 2008 6 SCC. [Reads from the Ashoka Kumar Judgement] #EWS #SupremeCourtOfIndia

Wilson: "Non exclusion of creamy layer and inclusion of forward classes violates equality..." This is Constitution Bench Judgement in Ashoka Kumar Judgement. #EWS #SupremeCourtOfIndia

J Bhat: What is the context of the observations? There are different judgements. Wislon: Context is that exclusion of creamy layer, while dealing with that, they've gone into 15(1) and 16(1). #EWS #SupremeCourtOfIndia

Wilson: I am referring to Indira Sawhney judgement again. [Refers to the final conclusion of the judgement] #EWS #SupremeCourtOfIndia

Bhat J: What is the conclusion of each will have to be seen. It would be better if you could give a note and refer to that. Mr. Parikh did that yesterday. Wilson: I will refer to note. #EWS #SupremeCourtOfIndia

Wilson continues reading from the Indira Sawhney judgement. #EWS #SupremeCourtOfIndia

Wilson: "Economic criterion cannot be the sole basis to determine...even under 16(1) reservations cannot be made on basis of economic criteria alone" [Reads from the Indira Sawhney judgement] #EWS #SupremeCourtOfIndia

Wilson: I will now take you to Articles 15(6) and 16(6). Your Lordships have the benefit of statement of objects and reasons. One has to read the article itself. If we read article 15(6), the definition of EWS is not found in 15(6) or definition. [Reads Article 15(6)] #EWS

Wilson: My lord, my submission is that this article leaves entirely to the discretion of the state to notify who all will be EWS that too from time to time. This affronts the guided theory in Nagaraj. #EWS #SupremeCourtOfIndia

Wilson: Tomorrow they'll say what is Economically weaker; they'll say it's people without a car. J Bhat: Would it not be useful to go to constitution itself- 366, definition, 24,25... #EWS #SupremeCourtOfIndia

J Bhat: For each of these categories- SC/ST/SEBCs, there is a definition, mechanism. Earlier counsel said definition. There is no definition also. Wilson: Yes #EWS #SupremeCourtOfIndia

Wilson: So far as SC/ST/SEBCs- constitution is overseeing reservation by virtue of 366(24), 366(25), 338, 340,341...For EWS there is noone who would verify. It's left to the whims and fancies of executive and the State. It will destroy the constitution. #EWS #SupremeCourtOfIndia

Wilson: There is a potential threat to equality. We shouldn't wait for it to come to court. #EWS #SupremeCourtOfIndia

Wilson: Today it is caste, earlier it was Jaati and Varna. I don't want to quote eklavya in Ramayana. Don't want to mention how a president was turned out from temple, even first lady couldn't enter. Untouchability still is lingering in our society though Art 17 abolishes it #EWS

Wilson: What is the reason for reservation? Injustice for years. That's why reservation was given. Substantive equality, not formal equality was given. We have to see structural barriers, handicaps, they were kept from main streets... #EWS #SupremeCourtOfIndia

Wilson: That's why even Tamil Nadu is front runner in social upliftment. Today we have very good reservation schemes and it's why our apprehension is that it's affecting equality. #EWS

Wilson: Equality will be robbed away if 15(6) is implemented. Coming to Article 46, who is weaker section? Caste is not mentioned, social backwardness is not mentioned. Reservation is not a poverty alleviation scheme under 46. #EWS #SupremeCourtOfIndia

Wilson quotes Justice Sahai's opinion in Indira Sawhney judgement. Sr. Adv. Wilson will finish his arguments in tomorrow's hearings. #EWS #SupremeCourtOfIndia

CJI: Mr. Wilson we want your views, not just paragraphs. J Bhat: What is the test, what is that value of equality- couple of counsels have submitted on that, if you want to add it would be most useful. #EWS #SupremeCourtOfIndia

CJI (to Sr. Adv. Wilson): Modulate your submissions, let's not get into by lines whether OM was set aside. It's in different context. J Bhat: Classification doesn't answer basic structure. #EWS #SupremeCourtOfIndia

The bench concludes for the day. It will continue hearings tomorrow. #EWS #SupremeCourtOfIndia



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