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EWS quota law: what a five-judge Constitution Bench will look into

  Aug 19, 2020

EWS quota law: what a five-judge Constitution Bench will look into

The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section (EWS).

Q. What is the amendment?

A. It provides for 10% reservation in government jobs and educational institutions for EWS, by amending Articles 15 and 16 that deal with the fundamental right to equality.

While Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, Article 16 guarantees equal opportunity in matters of public employment. An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS like it does for Scheduled Castes, Scheduled Tribes and Other Backward Castes. The states are to notify who constitute EWS to be eligible for reservation.

Q. What does the reference mean?

A.A reference to a larger Bench means that the legal challenge is an important one. As per 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” shall be five.

The Supreme Court rules of 2013 also say that writ petitions that allege a violation of fundamental rights will generally be heard by a bench of two judges unless it raises substantial questions of law. In that case, a five-judge bench would hear the case.

Laws made by Parliament are presumed to be constitutional until proven otherwise in court. The SC had refused to stay the 103rd Amendment. A reference will make no difference to the operation of the EWS quota.

Q. What are the grounds of challenge?

Q. What are the government’s arguments?

Q. What are the terms of reference framed by the court?

A. The SC agreed that the case involved at least three substantial questions of law, whether: economic criteria alone cannot be the basis to determine backwardness; the EWS quota exceeds the ceiling cap of 50% set by the court; the rights of unaided private educational institutions.

Although Chief Justice of India heads the Bench that made the reference, the case could wait to be heard by a larger Bench. The timing depends on the court’s resources as it would have to spare five judges and allocate time to the larger Bench hearing. As of July 1, there are at least pending 46 cases that require hearing by a minimum of five judges.