SC upholds EWS reservation by 3-2 majority

New Delhi : A five-member Constitution Bench of the Supreme Court has upheld the EWS reservation by a majority of 3-2. Justice Dinesh Maheshwari, Justice Bela M Trivedi and Justice JB Pardiwala upheld EWS reservation while Chief Justice UU Lalit and Justice S Ravindra Bhatt disagreed with EWS reservation.

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The three judges said that EWS reservation does not violate the basic spirit of the Constitution. The three judges have upheld the 103rd Amendment to the Constitution.

Justice Pardiwala said that the reservation cannot be maintained indefinitely. Justice Bela Trivedi said that there is a need to re-examine the policy of reservation. Justice S Ravindra Bhatt disagreed with the majority decision and said that exclusion of SCs, STs and OBCs from the EWS quota is not right.

Earlier on September 27, the Supreme Court had reserved the decision after hearing the arguments of all the parties. During the hearing, the then Attorney General KK Venugopal, on behalf of the Central Government, had said that the 50 per cent reservation limit came after Balaji’s decision, in which the court had said that the rights of the general category should not be abolished. He had said that according to the Directive Principles of State Policy, it is the responsibility of the government to maintain equality and that is why EWS was brought in. The Attorney General had said that there is no tampering with 50 per cent reservation. Nothing has changed for SC, ST and OBC and they will remain in advantageous position. The 10% reservation for EWS is independent of the reservation for OBC, SC and ST.

Solicitor General Tushar Mehta had said that the Supreme Court has repeatedly said that Parliament should consider reservation on economic grounds. The limit of 50 per cent reservation should not be taken as a limitation of the basic structure. Constitutional amendment should be investigated only if it is found that it has violated the basic spirit of the Constitution, Mehta had said that Parliament represents the spirit of the nation, if Parliament adds any provision to the Constitution, then its validity cannot be questioned.

Senior advocate Vibha Dutt Makhija, appearing for the EWS candidates, had submitted that now the EWS candidates have become eligible.

She had said that it does not violate the basic structure, society has progressed according to the times, such as Section 377 and rights of transgenders etc. She had said that the right of EWS comes from Article 21 of the Constitution and poverty is one of the main factors. The Chief Justice then said that there is no study that the families which have not got reservation have been poor from generation to generation, what is temporary cannot be said to be permanent, being born in an SC family is a matter of stigma that lasts for generations. Then Makhija had said that the basis of caste based reservation is that poverty is due to social and economic backwardness. Then Justice Bhatt said that no, it is not given intentionally. Makhija then asked whether the Constitution gives reservation only on the basis of caste, and that she does not think that the framers of the Constitution would have thought so.

During the hearing, the petitioners had said that it violates the constitutional value of equality and reservation on economic grounds has never been discussed in the Constitution. At the same time, according to those who argued in support of EWS, this reservation was expected for a long time and it should be welcomed.

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