The Supreme Court on Friday issued notice in a petition filed by the Central Government seeking to transfer to the SC a petition filed in the Kerala High Court challenging the grant of 10 per cent reservation in jobs and admissions to candidates of the economically weaker sections (EWS).
While issuing notice, a bench led by the Chief Justice of India NV Ramana also stayed the proceedings in the writ petition before the High Court, titled “Nujaim PK v Union of India and others”.
Solicitor General Tushar Mehta, appearing for the Centre, sought a stay on the proceedings before the High Court, pointing out that the Supreme Court is already seized of the matter.
A batch of petitions are pending in the Supreme Court challenging the validity of the 103rd Constitutional Amendment which provided for horizontal reservation for EWS in jobs and education. The newly inserted Articles 15(6) and 16(6) by the 103rd Constitutional Amendment stated that the EWS quota, which can extend up to 10 percent, will be in addition to the existing SC/ST/OBC reservations.
In August 2020, a 3-judge bench led by the then Chief Justice of India SA Bobde had referred the issue to a 5-judge bench in the case Janhit Abhiyan v. Union of India and connected case. Whether posts can be reserved solely on economic criteria, whether EWS quota in excess of 50% ceiling limit is justifiable – these are some of the issues which the 3-judge bench noted as arising in the matter.
“It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges”, the 3-judge bench had noted.
The bench added,
“Whether the impugned Amendment Act violates etc. basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law…”
Further, on the plea of ceiling of 50% for affirmative action the Court said,
“It is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges…”
The writ petition before the Kerala High Court was filed in the wake of a notification issued by the State Government to provide economic reservation in furtherance of the 103rd Constitution Amendment.
The petitioner contended that the Constitution(103rd) Amendment which inserted Articles 15(6) and 16(6) to provide for EWS reservation was invalid as “reservation cannot be granted on the ground of economic growth”.
“Even though the Constitution promotes reservation on the ground of economic backwardness, it does not promote reservation on the ground of economic backwardness. Therefore, the amendment itself is bad and the consequential government orders issued by the 3rd respondent(State of Kerala) are also bad, illegal and liable to be set aside”, stated the petition.
Case Title : Union of India and others versus Nujaim PK | TP(c) No.1123/2021