“I have instructions to say that the government has decided to revisit the (EWS) criteria and we will formulate a committee and we would decide within four weeks. Till then, whatever assurance we have given to your lordships continues. Counselling would wait for four more weeks”, SG Tushar Mehta told the Supreme Court on Thursday.
Justice Chandrachud observed, “That is a very good thing. Let it be done scientifically. You can revisit the criteria. We are not coming in the way at all. But our only concern is that the more we push the admissions back, the more the delay in the term. That is something you have to take a policy decision on.”
“Not the present criteria because then we have to hear this matter. If you can, for the EWS, since this process is going on (unclear)…in this willy-nilly, the term gets pushed back (unclear)”, said Justice Chandrachud.
“I will take instructions”, said the SG.
The SG then said, “Then the other option would be that for the present Academic year, we go with this criteria which is not per se arbitrary, although it may not have been planned…”
“Deferring the constitutional amendment should be the last thing…”, advanced the SG.
“That is only an enabling provision”, said Justice Chandrachud.
“But that is brought into the operation. The government intends to enforce it”, submitted the SG.
Senior Advocate Arvind Datar, for the petitioner, advanced, “The people getting more than 70,000 Rs. per month, can they be called EWS? Eight lakh limit is the question.”
Justice Surya Kant said, “For that, they can work out.”
“That is what we are doing”, assured the SG.
“You were supposed to do it before Diwali”, submitted Mr. Datar
“We are closing on 17. 16 is the last working day. They can atleast report to the court by the 12 so that in the miscellaneous week we can have some idea whether to go on with the counselling or not go on with counselling”, told Mr. Datar.
“Your Lordships may consider keeping in mind that while other appointments may come, but where it has started, it may not come to a standstill…”, submitted the SG.
“We will record your statement and we will say that they want four weeks and we will place it on the reopening”, said Justice Chandrachud.
“That would be a forward-looking way. I will put it to the government”, responded the SG.
The Centre had on October 25 assured the Supreme Court that the counselling for NEET-PG 2021 shall not commence until the Court decides the validity of the Centre’s decision to introduce OBC and EWS reservation in All India Quota.
The assurance came when senior advocate Arvind Datar, who appears for NEET aspirants in the batch of petitions challenging the decision of the Central Government to introduce 27% OBC and 10% EWS reservation in the NEET-AIQ, mentioned before the bench headed by Justice D. Y. Chandrachud that in terms of an official communication from the Director General of Health Services that in respect of students participating in NEET-PG, the counselling is to commence from October 25, 2021.
Clarifying this, ASG K. M. Nataraj assured, “Mr. Datar has got the communication which was sent only to the colleges for the purpose of verification of seats. There is one more clarificatory notification which has been issued today. Otherwise, counselling will not begin unless the issue has been dealt with by the court somehow.”
“We will take your word for it then, so long as the students are not counselled. We will take your word that counselling is not starting till we decide one way or the other. Students will be in a serious problem otherwise…”, observed Justice Chandrachud.
“Certainly, Your Lordships. And if there is any problem at all in the future, Mr. Datar can contact me directly”, asserted the ASG.
Justice Chandrachud also told Mr. Datar that he may feel free to approach the ASG in case of any issue in this regard.
The Central Government had to face tough questions from the Supreme Court on October 21 over its decision to adopt the criteria of annual income of Rupees 8 lakhs for determining the eligibility for Economic Weaker Sections(EWS) reservation in the NEET-All India Quota.
The bench of Justices D. Y. Chandrachud, Justice Vikram Nath and Justice BV Nagarathna expressed unhappiness at the Centre not filing an affidavit on the issue, although the Court had raised several doubts about the EWS criteria on the previous hearing date (October 7).
The bench sought to know what was the exercise undertaken by the Centre for adopting this criteria. Pointing out that Rs 8 lakh was the criteria for creamy layer for OBC reservation, the bench asked how the same criteria can be adopted for OBC and EWS categories, when the latter has no social and educational backwardness.
“You must have some demographic or sociological or socio-economic data. You just cannot pull out 8 lakh from thin air…you are making unequals equals by applying the Rs 8 lakh limit”, Justice Chandrachud told Additional Solicitor General KM Nataraj.
“In OBC, people who are below 8 lakh, they suffer from social & educational backwardness. Under the constitutional scheme, EWS are not socially & educationally backward”, Justice Chandrachud pointed out.
While the bench agreed that the EWS criteria was ultimately a policy matter, it added that the Court is entitled to know the reasons adopted for arriving at a policy decision to determine its constitutionality.
The bench at one point even warned that it will stay the EWS notification.
“Please show us something. You had 2 weeks to file an affidavit. We can stay the notification & in the meanwhile you do something”, Justice Chandrachud said.
However, the ASG pleaded to not stay the notification and undertook to file the affidavit at the earliest. The ASG submitted that he needed to get instructions from the Ministry of Social Welfare and the Department of Personnel and Training, which were added as respondents later. The petitions were filed only with the Ministry of Health and Family Welfare as the respondent. The ASG submitted that the draft of the affidavit was ready and will be filed within 2-3 days.
The bench passed an order formulating certain issues on which it sought specific responses from the Centre. The issues are :
1. Whether the Centre undertook any exercise before arriving at the criteria to determine EWS.
2. If the answer is affirmative, is the criteria based on Sinho commission report. If so, place the report on record.
3. The income limit for determining creamy layer in OBC and EWS is the same, that is Rs 8 lakhs annual income. In the OBC category, the economically advanced category is excluded as social backwardness diminishes. In such a scenario, whether it would be arbitrary to provide similar income limit for EWS and OBC, as EWS has no concept of social and economic backwardness.
4. Whether difference in rural and urban purchasing power has been accounted for while deriving this limit.
5. On what basis asset exception has been arrived at and has any exercise been undertaken for the same.
6. Reason why residential flat criteria doesn’t differentiate b/w metropolitan and non-metropolitan area.
The bench observed in the order that the Court must be apprised of on what basis has the EWS income criterion been arrived at.
“We make it clear that we are not entering area of policy but need the disclosure for adhering to constitutional principles”, the bench clarified in its order.
The bench also pointed out in its order that as per the explanations to Articles 15(6) and 16(6), the State Governments notify the criteria for EWS.
The explanation included in 103rd Constitution amendment, under Articles 15 & 16 says that the economically weaker sections “shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage”. In this backdrop, the bench asked the basis for the Centre notifying the EWS criteria on a uniform basis across the country.