Solicitor general Tushar Mehta told a bench of Chief Justice U U Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala that economic weakness is also an impediment in social mobility and people who are left behind due to poverty should be given preferential treatment. He said the 50% limit is a thumb rule but not sacrosanct and it cannot be elevated to the level of basic structure as contended by those opposing the EWS quota.
“It is submitted that the basic structure can be said to be breached only when the change that is brought about by the constitutional amendment is of such magnitude and vast proportion that it results in fundamentally altering the identity of the Constitution or its basic feature. It is submitted that not every change pertaining to basic features which does not fundamentally alter the basic feature and merely makes a minor deviation or addition, would not attract the limitation of amendability of basic structure of the Constitution,” the SG said.
He submitted that economic justice is part of the preamble of the Constitution and the apex court also in its various pronouncements emphasised the relevance of economic criteria.
“It can in no way be said that the impugned constitutional amendment amounts to breach of basic structure. To the contrary, the impugned constitutional amendment furthers the judicial checks imposed in various judgments through a qualitative exclusion of creamy layer from various classes envisaged under Article 16(4). This judicial interpretation of qualitative exclusions on the basis of economic criteria is itself a manifestation of the acceptance of the relevance of economic criteria surrounding affirmative action. That being the case, the anchoring of reservation solely on the ground of economic criteria can in no way be said to alter the basic structure of the Constitution,” he said.
“This court has in various judgments expressed the quantitative limitation of 50% as an upper limit on the extent of reservation prior to the constitutional amendment. It may, however, be noted that a survey of the judgment and a close scrutiny of the language used in the judgments makes it explicitly clear that the rule of 50%, if any, is merely a thumb rule and not a golden inviolable rule,” he said.