A tangled tale

A constitutional bench of the Supreme Court, comprising Chief Justice UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, is perhaps hearing one of the most contentious issues in the Indian socio-political discourse — EWS quota reservations. Though the matter is sub-judice, the arguments by senior advocates offer useful insight into the issue. It will be interesting to note how the court interprets the aspects of affirmative action, economic grounds for reservation, and violation of the basic structure of the Indian Constitution. On Tuesday, Wednesday and Thursday, senior advocates Salman Khurshid, Ravi Verma, P Wilson, Gopal Sankarnarayan, among several others, argued against the 103rd Constitutional Amendment — through which EWS quota was introduced. P Wilson initiated his argument by borrowing William Blake's words, "One law for lion and ox is oppression." Calling the 103rd Constitutional Amendment a "mockery of affirmative action", he discarded the validity of EWS quota. Wilson also cited the violation of guided theory established in Nagaraj vs Union of India, as the amendment entirely leaves it to the "discretion of the state" to notify who will be EWS. Furthermore, given the fact that there is a lack of homogeneity in the EWS category, and that economic conditions of people may change from time to time, the ambit of EWS is loosely defined and is subject to fluctuations. There is a still broader question in this regard. One of the petitioners on Thursday argued that "the most fundamental requirement for any protective reservation is discrimination." Advocate Shardan Farasat echoed the same view saying that reservation, as an original idea, was based on "anti-discrimination" and cannot be granted solely for "anti-deprivation." This broadly sums up the inadequacy of economic parameters for reservation. On the constitutional side as well, P Wilson marked a distinction between reservation for backward classes and EWS quota. He argued that "as far as SC/ST/SEBCs are concerned, the constitution is overseeing their reservation by virtue of 366(24), 366(25), 338, 340 and 341. For EWS there is no one who would verify. It's left to the whims and fancies of the executive and the State. It will destroy the constitution." The most contentious aspect, however, has been the violation of the 50 per cent reservation ceiling, as established by the Indira Sawhney verdict. Referring to clause 6 — inserted after 103rd amendment — of Article 15, senior advocate Gopal Sankarnarayan remarked that the six words — "in addition to the existing reservation" — violate the basic structure of the constitution. Furthermore, petitioners also pointed out that the provisions of reservation were originally targeted towards upliftment of secluded groups. What the EWS quota seeks to achieve is micro-targeting at individual level. EWS is not a homogenous group. Through EWS quota, the focus is laid on upliftment of individuals — directly or indirectly. It is pertinent here to point out that economic growth of citizens is subject matter to economic policies and performances of the government. A failure on this part should not be passed over to the legal and constitutional domain. The missing idea of "historical injustice" puts EWS in an altogether different bracket when compared to backward classes. It is the failure of the Indian state that it couldn't, even after 75 years of independence, bring socially discriminated sections at par with "oppressors" and "bourgeois." This perhaps is the reason that reservation remains one of the most tangled tales of Indian democracy. What the Central government, through the 103rd Constitutional amendment, did was to further compound the problem. Since the hasty passing and implementation of the amendment is a legislative matter, the Judiciary will avoid zeroing on this aspect. Also, the ground realities — wherein backward classes are finding themselves at the receiving end of disproportionate advantages appropriated by affluent classes by the virtue of easy-to-make EWS certificates — are likely to be overlooked. However, at the end of the day, it is left to the wisdom and interpretation of the Supreme Court to come out with appropriate solutions.