We need to revisit reservation system in the larger interest of society: Justice Bela M Trivedi in EWS judgment

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Supreme Court judge Justice Bela M Trivedi in her concurring judgment in the Economic Reservation case said that it is time to revisit the reservation/ affirmative action system followed in India.

Justice Trivedi, in her judgment upheld the Constitutional validity of 103rd Constitutional Amendment which grants 10 percent reservation to Economically Weaker Section (EWS) among the forward castes.

She, however, lamented that what was sought to be achieved by reservation within fifty years of the advent of the Constitution has still not been achieved to this day.

“However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism,” she said.

She highlighted Article 334 of the Constitution, as per which, reservation of seats for Scheduled Castes and Scheduled Tribes in the parliament and State legislative assemblies would cease to have effect on the expiration of eighty years from the commencement of the Constitution.

Similarly, the representation of Anglo-Indian community in the parliament and in legislative assemblies by nomination already ceased in 2020.

“Therefore, similar time limit if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society,” Justice Trivedi’s judgment said.

With regard to the constitutional challenge to reservation, the judge concurred with Justices Dinesh Maheshwari and JB Pardiwala stating that it must be presumed that the legislature understands and appreciates the needs of its own people.

“Its laws are directed to the problems made manifest by experience, and its discriminations are based on adequate norms. Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it.”

She further reasoned that the amendment enabling the State to make special provisions for economically weaker sections of citizens must be treated as affirmative action on the parliament’s part for the advancement of the economically weaker sections of citizens.

“Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14,” Justice Trivedi opined.

It was also underscored that treating ‘unequals’ as equals would offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.

“As laid down by this Court, just as equals cannot be treated unequally, unequals also cannot be treated equally,” she emphasised.

On the exclusion of Scheduled Castes, Scheduled Tribes and backward class from the ambit of economic reservation, she stated that special provisions have already been provided in the Constitution and they form a separate category, distinguished from the general or unreserved category.

“They cannot be treated at par with the citizens belonging to the general or unreserved category,” Justice Trivedi held.

The judge, therefore, concluded her opinion stating that what is visualised in the preamble and is permissible both under the Constitution could not be said to be violative of the basic structure of the Constitution.

“In absence of any obliteration of any of the constitutional provisions and in 19 absence of any alteration or destruction in the existing structure of equality code or in the basic structure of the Constitution, neither the width test nor the identity test as propounded in Kesavananda could be said to have been violated in the impugned Amendment.”

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