Advocate VK Biju, supporting the EWS reservation, stated that the some of the petitioners are misguided that their rights are being taken away.
“This section is not a vote bank, I’m for poor rickshaw pullers and not against anyone else’s compartment. Nothing happened to that…We must be cautious of section of protected people being misguided that their rights are being taken away.“
Senior Advocate and former Karnataka Advocate General Professor Ravivarma Kumar, opposing the Amendment Act, began by narrating the plight of Nicobari tribals after the 2005 tsunami.
“…they found that not single Nicobari was touched. After research, it was seen that they are in such close touch with nature. They saw monkeys climbing up the hills, and knew. Why I’m saying this is because they’re the most primitive tribes, away from civilisation and not being Caucasian race like mainland Indians. All these other races are eliminated [from availing EWS quota] because they are the Scheduled Tribes. Entire SC-ST list are castes or tribes.“
Kumar compared the EWS quota in its present form to the Communal Government Order of 1927 that was struck down by the Madras High Court, and upheld by the apex court. He added,
“Even a constitutional provision eliminating races, castes and tribes also hits at the basic structure. Equality test is turned upside down on the basis of caste, race and tribes. Article 41 [right to work, to education and to public assistance in certain cases] may not be a fundamental right but still“.
Senior Advocate Meenakshi Arora countered the Attorney General’s submissions that alternate facts and figures towards representation of EWS could not invalidate a constitutional amendment.
“My response to this is – the test of a vires is testing if it [Act] has vices, not merely [testing] its objects and reasons. Impact of this actually affects basic structure and equality.“
She added that the contention that not all incursions into the basic structure are breaching it unless it is a travesty of justice, cannot be accepted.
“If this is accepted, then you can go ahead and hit the basic structure chip by chip by saying it is not shocking.“
Professor G Mohan Gopal pointed out how that Act made being being a forward community member a prerequisite to get government assistance.
Coupled with the Act effectively ‘letting loose reservation in the society as some benign welfare activity‘, this means that the same is in ‘violent opposition’ to the basic structure of the Constitution, he stressed.
The Bench asked Advocates Shadan Farasat and Kanu Agarwal to prepare a concise compilation of all the submissions made in the case.
Source: Barandbench
