On Wednesday, the Supreme Court referred a batch of petitions challenging the 10% quota for Economically Weaker Sections (EWS) which was introduced by the 103rd Constitution Amendment passed by the Parliament last year to a 5 judge bench.
A bench comprised of Chief Justice SA Bobde, Justice Subhash Reddy and Justice BR Gavai expressed that “substantial questions of law” should be considered by Bench of five Judges in the said matter.
- Highlights of the Court in the Economically Weaker Sections Petition
- Petitioner’s say in the Economically Weaker Sections Petition
- Contentions in the Economically Weaker Sections Case
- Observations by the Court in Economically Weaker Sections Case
- The Law behind Economically Weaker Sections Reservation
- The Width and Identity Test
Highlights of the Court in the Economically Weaker Sections Petition
The bench observed that, “It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges.”
According to Article 145(3) of the Constitution, the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.
Order XXXVIII Rule 1(1) of the SC Rules similarly provides:
Every petition under article 32 of the Constitution shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges.
The Court in light of the above provisions noted that as interpretation has to be on the touchstone of equality and further on whether the Government can bypass the 50% ceiling cap in the matters of reservation in special circumstances, the Constitutional challenge needs to be examined by a larger bench.
It held, “As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges.”
Petitioner’s say in the Economically Weaker Sections Petition
The Petitioners had pleaded and submitted that a backward class cannot be determined only and exclusively with reference to economic criterion, as it is the Social backwardness which is the cause and not the consequence of either of their economic or educational backwardness.
Further, they stated that the impugned Amendment violates the rule of 50% quota for affirmative action and reservation as illustrated in Indra Sawnhey & Ors. v. Union of India & Ors., 1992 Supp (3) SCC 217 by the Apex Court.
Contentions in the Economically Weaker Sections Case
It was contended that the basic structure of Constitution is diluted by the Amendment Act and it ought to be tested by applying the tests of ‘width’ and ‘identity‘ of equality provisions, and therefore the matter should be heard by a Constitution Bench.
M. Nagaraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212 was also mentioned.
Observations by the Court in Economically Weaker Sections Case
The bench on these submissions proceeded to examine whether the question raised in the writ petitions will involve a substantial question of law or not.
“It is the case of the petitioners that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges”
“Whether the impugned Amendment Act violates the etc. basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes a substantial question of law…”Court’s Observation
Further, the Court on the plea of ceiling of 50% for affirmative action said,
“It is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges…”
Therefore the matter has been placed before the CJI for constitution of a five-Judge bench.
The Court inter alia, has also allowed the transfer applications filed by the Union of India, seeking transfer of all similar challenge to the impugned Amendment Act pending before various high courts, to the Supreme Court to avoid conflicting findings by different high courts and prevent multiplicity of proceedings.
The Law behind Economically Weaker Sections Reservation
A Constitution Bench of five Judges had held that as in the case of M. Nagraj (supra) twin tests have to be satisfied, namely, the ‘width test’ and the test of ‘identity’ in the matter of the application of the principle of the basic structure.
The Width and Identity Test
The ‘width test’ examines the boundaries of the amending power and checks whether the amendments obliterate any constitutional requirement, such as the 50% ceiling for reservations, the concept of creamy layer, the backwardness and inadequacy of representation, and the overall administrative efficiency. On the other hand, the ‘identity test’ examines whether the amendment altered the identity of Constitution beyond recognition.