New Delhi: Two of the three judges, who formed the majority view in the Supreme Court that upheld the 10 per cent reservation for the economically weaker sections (EWS), have strongly urged for a fixed timeline to end reservations in the country.
Justices Bela M. Trivedi and J.B. Pardiwala emphasised that reservation cannot continue for an indefinite period so as “to become a vested interest”, and to achieve an “egalitarian, casteless and classless” society.
The judges penned their individual views on the subject while concurring with the majority opinion rendered by Justice Dinesh Maheshwari. The fourth judge, Justice Ravindra Bhatt, wrote the minority opinion and was supported by Chief Justice of India U.U. Lalit, who headed the five-judge bench that delivered the verdict Monday.
In her judgment, Trivedi held that the 103rd Constitutional amendment, which introduced the EWS reservation in admissions and employment, was an exercise undertaken by the legislature to make special provisions for the economically weaker sections of the society. It is an amendment enabling the State to make reservations and is required “to be treated as an affirmative action for the benefit and advancement of the EWS.”
“To treat EWS as a separate class would be a reasonable classification and could not be termed as unjustifiable classification, much less a betrayal of basic feature or violative of Article 14,” held Trivedi, dismissing the petitioners’ claim that creation of a new category for reservation offended the basic structure doctrine as well as the equality code because it exempted scheduled castes (SC), scheduled tribes (ST) and members of socially and economic backward classes (SEBC).
However, while acknowledging that it was the caste system in India that was responsible for the introduction of the reservation system, she spoke of the time span prescribed in the reservation policy originally.
“We need to revisit the system of reservation, in the larger interest of the society, as a step forward towards transformative constitutionalism,” she said.
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‘Treating unequals as equals offends Articles 14, 16 of Constitution’
However, Trivedi opined that just as “equals cannot be treated as unequals, unequals also cannot be treated as equals.”
“Treating unequals as equals will offend the doctrine of equality and Articles 14 (equality) and 16 (prohibition of discrimination on the grounds of religion, sex, caste and place of birth)” she added.
Referring to the reservation for SCs/STs and OBCs, she said special provisions have already been made for them and they have been distinguished as a separate category and, therefore, cannot be treated “at par to citizens of general unreserved category”.
Whereas, the impugned amendment, she said, creates a special class of EWS category from the general and unreserved class, without affecting the special rights of reservation provided to SC/ST and SEBC.
Trivedi declared that the 103rd amendment would neither be termed as “shocking” or “unscrupulous travesty of the quintessence of equal justice”, as was argued by the petitioners, nor is it found to have disregarded the substantive or procedural limitations that are imposed on the constituent arm of the state.
This, Trivedi observed, validated the amendment also because the procedure followed to introduce it was legally correct.
Before parting, the judge expressed views on the time span prescribed for reservation.
The age-old caste system in India, she said “was responsible for the introduction of the reservation system in the country,” adding, “It (reservation) was introduced to correct the historical injustice faced by the persons and to provide them a level playing field to compete with persons belonging to forward classes.”
“What was envisioned by the framers of the Constitution and what was proposed by the constitution bench (of the Supreme Court) in 1985 and what was sought to be achieved on the completion of 50 years of the advent of the Constitution is that the policy of reservation must have a time span. It has still not been achieved even till this day, that is till the completion of 75 years of independence,” Trivedi said.
The judge quoted Article 334 of the Constitution which underlines a time limit for reservation of SC/ST in the Parliament and State Legislatures. This is being extended from time to time and the present time line for this quota in legislatures is 2030.
Just like the 104th amendment has finally ceased representation of the Anglo-Indian community in the parliament by nomination, a similar timeline should be laid down for reservations provided to SC/ST and SEBC categories under Articles 15 and 16 of the Constitution, she said, observing that “It would be a way forward leading to an egalitarian, casteless and classless society”.
Justice Pardiwala had similar views. Concurring with justices Maheshwari and Trivedi, he noted: “Thus reservation is not an end but the means, means to secure social and economic justice. It should not be allowed to become a vested interest. Solution lies in eliminating the causes that have led to social and educational economic backwardness of the weaker sections.”
Even though the exercise to eliminate this backwardness in society started immediately after independence, it still continues, the judge observed.
“A long-standing development and the spread of education have resulted in tapering the gap between the classes to a considerable extent, as larger percentages of backward class members attain acceptable standards of education and employment,” Pardiwala added.
In his view, such beneficiaries should be removed from the backward categories so that attention can be paid towards those classes which genuinely need help.
“Therefore, it is very much necessary to take into review the method of identification and ways of determination of backward classes and also ascertain whether the criteria adopted or applied for the classification of backward classes is relevant for today’s conditions,” Pardiwala said.
According to him, Constitution framer B.R. Ambedkar’s idea to introduce reservation for 10 years was to bring social harmony. “However, it has continued for the past seven decades,” the judge said.
(Edited by V.S. Chandrasekar)
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