Chief Justice of India U.U. Lalit and Justice Ravindra Bhat in their dissenting judgment on Monday said the Supreme Court had for the first time in independent India sanctioned “an avowedly exclusionary and discriminatory principle” of reservation that “undermines” the country’s social fabric.

“This court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion.

In my considered opinion, the amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the basic structure,” Justice Ravindra Bhat, who authored the judgment on behalf of the two dissenting judges, said.

The minority judgment said that it was not opposed to the concept of EWS reservation but the benefit could not exclude the socially backward segments such as the SCs, STs and the OBCs who had faced centuries of discrimination and harassment in various forms.

“At the outset, I must state that I am in agreement that the addition, or insertion of the ‘economic criteria’ for affirmative action in aid of the section of population who face deprivation due to poverty, in furtherance of Article 46, does not per se stray from the constitutional principles, so as to alter, violate, or destroy its basic structure,” the minority judgment said.

“As long as the State addresses deprivation resulting from discriminatory social practices which have kept the largest number of our populace in the margins, and continues its ameliorative policies and laws, the introduction of such deprivation-based affirmative action is consistent with constitutional goals.”

The dissenting judges said that keeping the socially and educationally backward classes, particularly the SC/STs, out of the new quota discriminates against them, because an overwhelming majority among the poorest are from these sections.

“In the case of members of communities which faced continual discrimination — of the most venial form — poverty afflicts in the most aggravated form. The exclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code,” Justice Bhat said.

He said that while he agreed with the other members of the bench that “economic criteria” for the purpose of Article 15 (educational institutions) is permissible, “however, I diverge with regards to Article 16 for the purpose of reservations in appointment to public employment....” However, Justice Bhat agreed that the existing criteria for reservations cannot be the only way in which the State is permitted to achieve social and economic justice.

“Those criteria must be followed, but cannot preclude the introduction of new criteria, or new methods, through amendment (of) the Constitution.”

The dissenting judgment stressed that:

• Article 46 (which the government cited while introducing the EWS quota) covers all economically weaker sections of people, including SCs, STs and OBCs. (Article 46 asks the State to promote the educational and economic interests of the weaker sections, in particular the SCs and STs, and protect them from social injustice and exploitation.)
• The mention of SCs/ STs in Article 46 is a reminder to the State never to ignore them from the reckoning whenever a measure towards economic emancipation under Article 46 is introduced by the State.
• Article 46 existed from the beginning, and has been invoked to provide all manner of measures to assist the poorest — irrespective of whether they are SCs, STs or OBCs — such as scholarships, freeships, amenities and concessions.

The minority judgment cited the National Crime Records Bureau Report, “Crime in India 2021”, to stress how the disadvantaged castes continue to be victims of crime.

“Those marginalised and stigmatised by caste, continue till this date. These legal developments and statistics belie the perception that such classes which can benefit from compensatory discrimination can be rightfully excluded from the benefit of reservations for the poor. That view, in my opinion, is indefensible, and ignores stark realities,” Justice Bhat said.