New Delhi,  The Supreme Court, in its minority verdict, striking down the 103rd Constitution amendment, on Monday said reservation for economically weaker sections in admissions and government jobs is permissible but excluding SCs, STs and OBCs as they enjoy pre-existing benefits is to heap fresh injustice.

While Justices Dinesh Maheshwari, Bela M. Trivedi, and J.B. Pardiwala upheld the EWS quota, Justice S. Ravindra Bhat, along with Chief Justice U.U. Lalit, dissented in their minority view. The judges, part of a five-judge constitution bench, read four separate judgments.

Justice Bhat, who authored the judgment for himself and on behalf of Chief Justice Lalit, said: "I regret my inability to concur with the views expressed by the majority opinion on the validity of the 103rd Amendment... since I feel - for reasons set out elaborately in the following opinion - that 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 101-page judgment, Justice Bhat said a universally acknowledged truth is that reservations have been conceived and quotas created, through provision in the Constitution, only to offset fundamental, deep-rooted generations of wrongs perpetrated on entire communities and castes. He added that reservation is designed as a powerful tool to enable equal access and equal opportunity and introducing the economic basis for reservation - as a new criterion, is permissible.

Justice Bhat said: "Yet, the 'othering' of socially and educationally disadvantaged classes - including SCs/ STs/OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability. The exclusionary clause operates in an utterly arbitrary manner."

He added firstly, it "others" those subjected to socially questionable, and outlawed practices - though they are amongst the poorest sections of society. Justice Bhat further added secondly, for the purpose of the new reservations, the exclusion operates against the socially disadvantaged classes and castes, absolutely, by confining them within their allocated reservation quotas (15 per cent for SCs, 7.5 per cent for STs, etc.). He said thirdly, it denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation.

Justice Bhat said: "The net effect of the entire exclusionary principle is Orwellian, (so to say) which is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible."

He further added that in his considered opinion, the amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the basic structure.

"The Union and other respondents had submitted that the newly-introduced provisions, through the impugned amendment, are merely enabling, and confer power upon the state, to make special provisions and reservations, based on the economic criterion - thus, cannot violate the basic structure. This view has also been accepted in the opinion authored by Justice J.B. Pardiwala. I am of the considered opinion that the argument that the provisions are enabling and therefore, do not violate the basic structure (of the Constitution) is not substantial," he said.

Justice Bhat said it is therefore inaccurate to say that provisions that enable, exercise of power, would not violate the basic structure of the Constitution. He further added that an individual who is a target of the new 10 per cent reservation may be a member of any community or class.

"The state does not - and perhaps justly so - will not look into her background. Yet in the same breath, the state is saying that members of certain communities who may be equally or desperately poor (for the purposes of classification identification) but will otherwise be beneficiaries of reservation of a different kind, would not be able to access this new benefit, since they belong to those communities. This dichotomy of on the one hand, using a neutral identifier entirely based on economic status and at the same time, for the purpose of exclusion, using social status, i.e., the castes or socially deprived members, on the ground that they are beneficiaries of reservations (under Article 15(4) and 16(4)) is entirely offensive to the Equality Code," he said.

He added that the allusion to over-classification and under classification, as the bases for exclusion in the context of the doctrine of classification governing Article 14, cannot be denied as a matter of law. "However, to say that the non-inclusion of SC/ST and OBC communities - though the largest segments of the poor are from amongst them, is mere reasonable under-inclusion, cannot be accepted - especially in the context of a constitutional amendment."