SC's CB to adjudicate three broad issues to decide challenge to 10% EWS reservation

New Delhi: The Supreme Court's Constitution bench on Thursday identified three broad issues to be adjudicated in a batch of petitions challenging the constitutional validity of the 10 per cent reservation given to the economically weaker sections in the general category.

The three questions are: whether or not it changed the basic structure of the Constitution first by making economic criteria as the basis for reservations and second by excluding SCs, STs, OBCs and SEBs from EWS reservations and whether it could be extended to private unaided institutions.

A five-judge constitution bench comprising Chief Justice Uday Umesh Lalit, Justice Dinesh Maheshwari, Justice S. Ravindra Bhat, Justice Bela M. Trivedi and Justice J.B. Pardiwala agreed on the three issues suggested by Attorney General K.K. Venugopal for the adjudication, noting that they “broadly” covered all the aspects relating to the petitions challenging the constitutional validity of the 103th  Constitution Amendment Act enacted in 2019.

The Constitution bench took note of other issues suggested by several lawyers and decided to take questions framed by Attorney General Venugopal as the core issues to be decided. The bench said that the other issues were covered in the propositions by the Attorney General.

One of the questions that the Constitution bench will examine is whether the law had breached the doctrine of basic structure of the Constitution by allowing the state to make such special provisions, including reservation, based on economic criteria.

The other issue to be adjudicated by the Constitution bench was whether it breached the basic structure of the Constitution by excluding SCs, STs, OBCs and socially economically backward classes (SEBC) from the scope of the EWS reservation.
The third issue was whether the 2019 amendment empowered the state to follow it in admissions to the private unaided institutions.

The doctrine of basic structure was propounded by the top court in 1973 in the Keshavananda Bharati case, holding that Parliament can’t amend every bit of the Constitution and aspects such as rule of law, separation of powers and judicial independence which formed part of the “basic structure” of the Constitution.

CJI Lalit, speaking for the bench, asked the intervenors, including states like Madhya Pradesh, Assam and Maharashtra, to file their written submissions, assuring them that they would also be allowed to argue provided there is no repetition of arguments.
The Constitution Bench had on September 6 made clear that it would commence hearing from September 13 on the batch of 40 petitions after deciding the issues for its adjudication and passing the directions to ensure a smooth hearing, after it was told that the lawyers together would take 18 hours at the most to argue.

The court has spread the 18 hours over five days.