CJI Lalit, Justice Bhat disagree; declare it 'discriminatory'

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New Delhi, November 7

Chief Justice of India UU Lalit and Justice S Ravindra Bhat, who delivered a dissenting verdict on the economically weaker section (EWS) quota law, on Monday faulted the 103rd Amendment and termed it unconstitutional for excluding the SCs, STs and other backward classes (OBCs) from its ambit.

“Reservation on economic criteria is per se not violative… However, by excluding the poor among SCs, STs and OBCs from economically backward classes (on the ground that they have enjoyed benefits), the 103rd Amendment practises constitutionally prohibited form of discrimination,” said Justice Bhat, writing the dissenting verdict. CJI Lalit agreed with him while three other judges upheld the validity of the amendment.

“The total and absolute exclusion of constitutionally recognised backward classes of citizens, and more acutely SCs and STs, is nothing but discrimination which reaches to the level of undermining and destroying the equality code, and particularly the principle of non-discrimination,” Justice Bhat said.

“Introducing the economic basis for reservation — as a new criterion — is permissible. Yet, the “othering” of socially and educationally disadvantaged classes, including SCs, STs and OBCs, by excluding them from it on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability,” Justice Bhat wrote.

Terming the amendment and the classification it created as arbitrary, he said it denied “the poorest sections of society” the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation.

“The net effect of the entire exclusionary principle is Orwellian (so to say), which is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible,” Justice Bhat wrote. He struck down the insertion of Article 15(6) and 16(6) by the amendment, holding it to be “violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution.”

Heaping fresh injustice

Introducing the economic basis for reservation — as a new criterion — is permissible. Yet, the ‘othering’ of socially and educationally disadvantaged classes… is to heap fresh injustice based on past disability. — Justice S Ravindra Bhat