Observing that poverty is not a "permanent thing", the Supreme Court said on Thursday the Economically Weaker Sections (EWS) among upper castes could be promoted through various affirmative actions at the "threshold level" like giving them scholarships instead of 10 per cent quotas in government jobs and educational institutions.
It said the term reservation has different connotations such as social and financial empowerment and is meant for the classes that have been oppressed for centuries.
A five judge constitution bench headed by Chief Justice Uday Umesh Lalit said reservation has been given to those stigmatised for centuries due to their caste and vocations and the EWS among forward classes could have been given facilities like scholarship and free education without the government getting into the "reservation issue".
When it is about other reservations, it is attached to lineage. That backwardness is not something which is temporary. Rather, it goes down to centuries and generations. But economic backwardness can be temporary, said the bench.
Solicitor General Tushar Mehta, appearing for the Centre, defended the 103rd constitutional amendment, saying the 10 per cent quota for the EWS of general category has been provided without disturbing the 50 per cent reservation available to SCs, STs and OBCs, and the parliamentary wisdom, leading to a constitutional amendment cannot be set aside without establishing that it violated the basic structure of the Constitution.
The other side is not denying the fact that people, who are struggling or who are poverty stricken in that unreserved class, needed some support. There is no doubt about that.
"What is being submitted is that you can try to elevate that class by giving them sufficient opportunities at the threshold level, say at the 10+2 level... Give them a scholarship. Give them the freeship so that they get the opportunity to learn, to educate themselves or to elevate themselves, said the bench which also comprised Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala.
The court said reservation as a traditional concept has different meanings and connotations and it is not just about financial empowerment but social and political empowerment.
"It enables the disadvantaged class to be part of the apparatus of the government. So, the reservation has various other facets to it not just trying to improvise the economic situation...But, here is only one facet that is to improve the economic status of a man or a woman of general class. You could have done anything else. Why do you have to indulge in this reservation issue, it said.
The solicitor general argued in detail on the state's power to take affirmative action to elevate the poor among the general category and said the constitutional amendment furthers and strengthens the basic feature of the Constitution and its validity cannot be tested on grounds of some statistics.
While analysing the basic structure, the principle guide is the preamble. Considering the preamble of the Constitution, the amendment does not destroy the basic structure, rather it strengthens it by giving justice - economic justice to those who have not been the beneficiaries of affirmative action like reservation, the law officer said.
When a statutory provision is challenged, then it is often said that it violates a particular article of the Constitution, but, here Parliament has inserted a provision of the Constitution itself and hence its validity cannot be questioned, he added.
The Constitution is not a static formula and Parliament can always take a decision to cater to the aspirations of the nation and, if some action has been taken without disturbing the quota for SCs STs and OBCs, then it cannot be set aside, he said.
At the outset, Mehta said the constitutional amendment made by Parliament by exercising its powers make the job difficult for those who are challenging it like any other statute.
He said the income figure of Rs 8 lakh per annum to grant the EWS quota has been arrived at after a detailed study.
The bench reiterated its stand on socially and economically backward classes (SEBC) above the creamy layer being denied the opportunity of availing reservation that is due to the EWS from the upper classes.
So now that person (above the creamy layer) is from SEBC but still not getting any benefits (of reservation). For them you are reducing the pool from 50 to 40 per cent, the bench said.
It said, moreover, there has been no anthropological study to show that there are families who have suffered for generations from poverty, if they are not from a socially backward class.
Poverty is not permanent which will go down from generation to generation, the bench said.
One idea which is getting projected is that you are creating the EWS reservation for the general category candidates on the premise that they are from the weaker section...when it comes to SCs, STs, you are not giving equal treatment to them, it said.
Senior lawyer V D Makhija supported the EWS quota on behalf of some general category poor students from Uttar Pradesh, saying the classification on the sole economic criteria for grant of reservation is valid because this is an enabling provision.
The bench would resume hearing on September 27.
On Wednesday, it had posed a slew of queries to the Centre on grant of 10 per cent quota in admissions and government jobs to the EWS category, saying the slice of cake of 50 per cent open general seats available to OBCs above creamy layer now stands reduced to 40 per cent.