Economic backwardness unlike caste backwardness can be temporary: SCtext_fields
New Delhi: A Constitution Bench of the Supreme Court on Thursday questioned whether issues facing the Economically Weaker Sections (EWS) can be handled by affirmative actions rather than reservation, noting that economic backwardness, unlike caste-based backwardness, "can be temporary."
"When it is about other reservations, it is attached to lineage. That backwardness is not something which is not temporary but goes down centuries and generations. But economic backwardness can be temporary," Chief Justice of India U U Lalit, presiding over a five-judge Constitution Bench remarked while hearing petitions contesting the Constitution's 103rd amendment, which granted EWS categories a 10% quota in government jobs and admissions.
The CJI was replying to arguments made by counsel Vibha Makhija, who was speaking on behalf of certain students who fell under the EWS category and claimed that it was constitutionally acceptable to use economic status as a qualification for receiving the reservation.
Makhija emphasised the Constitution's revolutionary nature, saying its creators would never have imagined a situation where caste continues to be the only factor in allocating quota.
Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi, and J. B. Pardiwala were also members of the bench, which asked questions regarding the "indeterminability" of the EWS category due to the lack of clear rules, Indian Express reported.
"There is indeterminability… You call it flexibility but it's indeterminability," Justice Bhat told Solicitor General Tushar Mehta who defended the amendment.
Mehta claimed that the Constitution does not define social backwardness either.
Justice Bhat stated that one can look elsewhere, such as the Preamble, speeches by the Constitution's framers, etc., for that. 'You are in an uncharted sea' in the case of EWS, he continued.
There is "no methodology at all, no guidelines," according to Justice Maheswari, on who would constitute EWS.
Mehta said the problem can be resolved by setting up a commission. "It is curable. The government can come out with a commission. If some state implements EWS without that exercise… that executive action can be challenged," he said, adding that "absence of guidelines is not a ground for challenging amendment".
Mehta said a Constitution amendment cannot be struck down unless it violates the basic structure and that "the amendment does not destroy the basic structure but strengthens the Preamble by giving justice – economic justice which is a fundamental part of the Preamble".
He said "the constitutional vision of equality and equal opportunity is dynamic and evolving – not in substance but surely in form. The present amendment is in tune with this dynamic and evolutionary nature taking the next logical step – and providing "balance" and "reasonability" to the operative realities of reservations as a whole. The present amendment provides for an additional form of affirmative action, without changing the substance of the equality code and while balancing the other anomalies that may arise from the pre-existing forms of affirmative action".
Mehta stated that "while the Constitution provides for reservation for Scheduled Castes, Scheduled Tribes and socially and educationally backward classes on the touchstone of the adequacy of such representation, the same can in no way create an exclusionary principle which stops the constituent power of the Parliament to provide for special measure for different reasons. Therefore, while pre-existing reservations exist within the inadequacy – social backwardness paradigm, the same cannot restrict the future generations from adopting other similar measures for other reasons and classes".
According to him, the submissions of the petitioners "restrict the affirmative action provisions in the Constitution within the caste paradigm which was certainly not the intention nor can it be said to be the basic structure of the Constitution".
"Poverty and/or economic weakness is not merely a financial reality. Economic weakness is also a social reality and it has a close connection with the societal and educational parameters… caste is not the only indicator of social backwardness… social backwardness could be caused by other factors also and any classification or societal identification outside the caste axis, on other socio-economic indicators cannot be said to be constitutionally perverse…. while caste is notably reality, it is not the only society indicator of standing," Mehta said.
He said that "over the course of the nation's progress in the 21st century, economic weakness has also become an indicator of social standing by itself. The aim of the republic is that of betterment in all walks of life, social, economic and political of all castes and classes".