In EWS verdict, a discrimination antithetical to equality

In its more than 70-year-old history, the Supreme Court of India has delivered a plethora of judgments touching on the fundamental tenets governing the Constitution of India’s guarantee of equal treatment. For the Court, in Justice Bhat’s words, has “for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle,” by upholding the 103rd Amendment to the Constitution. Since 1973, when a 13-judge Bench of the Supreme Court, delivered its ruling in Kesavananda Bharati vs State of Kerala, it has been clear that Parliament’s power to amend the Constitution is not plenary. “If the economic criteria based on the economic indicator which distinguishes between one individual and another is relevant for the purpose of classification and grant of benefit of reservation under clause of Article 15,” writes Justice Pardiwala, “…then merely because the SCs/STs/OBCs are excluded from the same, by itself, will not make the classification arbitrary and the amendment violative of the basic structure of the Constitution.” What the ruling ignores But the ruling fails to see that reservations permitted for SC, ST and OBCs, far from being a favour bestowed on them, are intrinsic to the guarantee of equality. What is more, as Justice Bhat points out, there was also no material placed on record before the Court to show that “those who qualify for the benefit of this economic-criteria reservation but belong to this large segment constituting 82% of the country’s population, will advance the object of economically weaker sections of society”.