When the petitioners, who have been arguing for the last three days, contended that the Constitution makers did not make any provision of reservation in it for poverty-alleviation and instead framed it for the uplift of those deprived classes who were oppressed for centuries, a bench of Chief Justice U U Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala asked them why the poor could not be brought within the ambit of reservation, which could lead to their economic uplift and why the poor could not be treated as a class.
Responding to the arguments that the 103rd constitution amendment is ‘bad law’ as it provides reservation to only those poor who belong to forward classes and barred poor people belonging to SCs/STs/OBCs/ SEBCs from availing this benefit, Justice Bhat said, “Keeping aside the argument of exclusion, even after 75 years we see generations of poverty. There is a large mass of people living below the poverty line. It is more than 20% — which is huge. Why can’t there be economic staus-based affirmative action? They are non-discriminated people but are unable to access many things because of economic conditions and they are as disadvantaged as others who are granted reservation. What is wrong in singling out that group?”
Advocate Shadan Farasat, appearing for one of the petitioners, contended that there are only 5.8 crore forward class people who are below the poverty line out of total 31.7 crore BPL population in the country which is less than 20% and only this small portion of the population would be benefitted by such reservation policy.
Thus, the net effect of exclusion of backward classes from EWS is that persons who were hitherto able to access this 10% as part of the general category will now be denied open competition for the same, even though large number of such excluded persons on each and every constitutionally relevant aspects of equality are worse off than those who will now monopolise access to this 10%. No conception of equality, certainly not the one envisaged by the Constitution, can permit such complete inversion of equality. Merely the presence of reservation for backward classes on account of their social and educational backwardness does not permit their exclusion from reservations on account of economic backwardness,” he said.
Senior advocate Gopal Sankarnarayanan, appearing for organisation ‘Youth for Equality’, contended that the quota for EWS was long overdue but the 50% cap on reservation cannot be breached, as has been done. The hearing remained inconclusive and would resume on September 20.