Constitution (One Hundred and Third Amendment) Act, 2019 – Challenge to – Vide said amendment, Arts. 15 and 16 of the Constitution were amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby, the State was empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes” – The amendment did not mandate but enabled reservation for EWS and prescribed a ceiling limit of ten per cent – Challenge to said amendment essentially on three-fold grounds: first, that making of special provisions including reservation in education and employment on the basis of economic criteria is entirely impermissible and offends the basic structure of the Constitution; second, that in any case, exclusion of socially and educationally backward classes i.e., SCs, STs and non-creamy layer OBCs from the benefit of the special provisions for EWS is inexplicably discriminatory and destroys the basic structure of the Constitution; and third, that providing for ten per cent additional reservation directly breaches the fifty per cent ceiling of reservations already settled by decisions of Supreme Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution – Constitution (One Hundred and Third Amendment) Act, 2019 – Validity of – Held (per 3:2 majority) (Majority opinion contained in separate judgments rendered by Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala, JJ.) : Valid – Held (per Dinesh Maheshwari, J.): Reservation is an instrument of affirmative action by the State so as to ensure all-inclusive march towards the goals of an egalitarian society while counteracting inequalities; it is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society but, also for inclusion of any class or section so disadvantaged as to be answering the description of a weaker section – In this background, reservation structured singularly on economic criteria does not violate any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution – Exclusion of the classes covered by Arts.15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution – Reservation for economically weaker sections of citizens up to ten per cent in addition to the existing reservations does not result in violation of any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution on account of breach of the ceiling limit of fifty per cent because, that ceiling limit itself is not inflexible and in any case, applies only to reservations envisaged by Arts.15(4), 15(5) and 16(4) of the Constitution – The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria or by permitting the State to make special provisions in relation to admission to private unaided institutions or in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation – Held (per Bela M. Trivedi, J.) (Concurring with Dinesh Maheshwari, J.): The impugned amendment enabling the State to make special provisions for the “economically weaker sections” of the citizens other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for advancement of the economically weaker sections of the citizens – Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and cannot be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Art.14 – Just as equals cannot be treated unequally, unequals also cannot be treated equally – Treating unequals as equals would as well offend the doctrine of equality enshrined in Arts.14 and 16 of the Constitution – The impugned amendment creates a separate class of “economically weaker sections of the citizens” from the general/unreserved class, without affecting the special rights of reservations provided to the Scheduled Caste/Scheduled Tribe and backward class of citizens covered under Art.15(4), 15(5) and 16(4) – Therefore, their exclusion from the newly created class for the benefit of the “economically weaker sections of the citizens” in the impugned amendment cannot be said to be discriminatory or violative of the equality code – Such amendment could certainly be not termed as shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice – The limitations- substantive or procedural - imposed on the exercise of constituent power of the State under Art.368 could not be said by any stretch of imagination, to have been disregarded by the Parliament – Neither the procedural limitation i.e. the mode of exercise of the amending power nor the substantive limitation i.e. the restricted field has been disregarded, which otherwise would invalidate the impugned amendment – What is visualised in the Preamble and what is permissible both in Part-III and Part-IV of the Constitution cannot be said to be violative of the basic structure or basic feature of the Constitution – In absence of any obliteration of any of the constitutional provisions or any alteration or destruction in the existing structure of equality code or in the basic structure of the Constitution, neither the width test nor the identity test as propounded in Kesavananda case can be said to have been violated in the impugned Amendment – Accordingly, the challenge to the constitutional validity of the 103rd Amendment fails, and the validity thereof is upheld – However, there is a need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism – If a time limit is prescribed, for the special provisions in respect of the reservations and representations provided in Arts. 15 and 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society – Held (per J.B. Pardiwala, J.) (Concurring with Dinesh Maheshwari, J.): Reservation is not an end but a means – a means to secure social and economic justice – The longstanding development and the spread of education have resulted in tapering the gap between the classes to a considerable extent – As larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories so that the attention can be paid toward those classes which genuinely need help – In such circumstances, it is very much necessary to take into review the method of identification and the ways of determination of backward classes, and also, ascertain whether the criteria adopted or applied for the classification of backward is relevant for today’s conditions – Reservation should not continue for an indefinite period of time so as to become a vested interest – The impugned amendment is valid and in no manner alters the basic structure of the Constitution – Held (per S. Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself) (Minority opinion): The States’ compelling interest to fulfil the objectives set out in the Directive Principles, through special provisions on the basis of economic criteria, is legitimate – That reservation or special provisions have so far been provided in favour of historically disadvantaged communities, cannot be the basis for contending that other disadvantaged groups who have not been able to progress due to the ill effects of abject poverty, should remain so and the special provisions should not be made by way of affirmative action or even reservation on their behalf – Therefore, special provisions based on objective economic criteria (for the purpose of Art.15), is per se not violative of the basic structure – However, the framework in which it has been introduced by the impugned amendment – by excluding backward classes -– is violative of the basic structure – The impugned amendment and the classification it creates, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination – Insertion of Art.15(6) and 16(6) is struck down, and is held to be violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution – ss.2 and 3 of the Constitution (One Hundred and Third Amendment) Act, 2019 which inserted clause (6) in Art.15 and clause (6) in Art.16, respectively, are unconstitutional and void on the ground that they are violative of the basic structure of the Constitution – Constitution of India – Arts. 15 and 16. Doctrines/Principles – Doctrine of basic structure – Vide Constitution (One Hundred and Third Amendment) Act, 2019, Arts.
15 and 16 of the Constitution was amended by adding two new clauses viz., clause (6) to Art.15 with Explanation and clause (6) to Art.16; and thereby, the State was empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes” – The amendment did not mandate but enabled reservation for EWS and prescribed a ceiling limit of ten per cent – Whether the doctrine of basic structure could be invoked for laying a challenge to the 103rd Amendment – Held (per Dinesh Maheshwari, J.): No – Using the doctrine of basic structure as a sword against the amendment in question and thereby to stultify State’s effort to do economic justice as ordained by the Preamble and DPSP and, inter alia, enshrined in Articles 38, 39 and 46 of the Constitution cannot be countenanced – Provisions contained in Arts. 15 and 16 of the Constitution, providing for reservation by way of affirmative action, being of exception to the general rule of equality, cannot be treated as a basic feature – Moreover, even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution – Constitution (One Hundred and Third Amendment) Act, 2019.
Constitution of India – Art.368 – Power to amend the Constitution availing under Art.368 – Held (Per Dinesh Maheshwari, J.): Is recognized as a constituent power and is subject to various safeguards intrinsic to Art.368, including the procedural safeguards.
Constitution of India – Art.368 – Doctrine of Basic Structure and Constitutional Amendments – Discussed – Held (Per Dinesh Maheshwari, J.): The power to amend the Constitution essentially vests with the Parliament and when a high threshold and other procedural safeguards are provided in Art.368, it would not be correct to assume that every amendment to the Constitution could be challenged by theoretical reference to the basic structure doctrine – As exposited in Kesavananda case, the amending power can even be used by the Parliament to reshape the Constitution in order to fulfil the obligation imposed on the State, subject, of course, to the defined limits of not damaging the basic structure of the Constitution – Again, as put in Kesavananda case, judicial review of constitutional amendment is a matter of great circumspection for the judiciary where the Courts cannot be oblivious of the practical needs of the Government and door has to be left open even for ‘trial and error’, subject, again, to the limitations of not damaging the identity of the Constitution – The expressions “basic features” and “basic structure” convey different meaning, even though many times they have been used interchangeably – Basic structure of the Constitution is the sum total of its essential features – As to when abrogation of any particular essential feature would lead to damaging the basic structure of Constitution would depend upon the nature of that feature as also the nature of amendment – As regards Part-III of the Constitution, every case of amendment of Fundamental Rights may not necessarily result in damaging or destroying the basic structure – The issue would always be as to whether what is sought to be withdrawn or altered is an inviolable part of the basic structure – Mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice – If any constitutional amendment moderately abridges or alters the equality principles, it cannot be said to be a violation of the basic structure.
Doctrines / Principles – Doctrine of equality – Reasonable classification – Discussed – Held (Per Dinesh Maheshwari, J.): Equals must be treated equally while unequals need to be treated differently – A classification to be valid must necessarily satisfy two tests: first, the distinguishing rationale should be based on a just objective and secondly, the choice of differentiating one set of persons from another should have a reasonable nexus to the object sought to be achieved – However, a valid classification does not require mathematical niceties and perfect equality; nor does it require identity of treatment – If there is similarity or uniformity within a group, the law will not be condemned as discriminatory, even though due to some fortuitous circumstances arising out of a particular situation, some included in the class get an advantage over others left out, so long as they are not singled out for special treatment – In spite of certain indefiniteness in the expression ‘equality’, when the same is sought to be applied to a particular case or class of cases in the complex conditions of a modern society, there is no denying the fact that the general principle of ‘equality’ forms the basis of a Democratic Government – Democracy – Constitution of India – Arts. 14 to 18.
Reservation – Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality – Affirmative action by way of compensatory discrimination – Held (Per Dinesh Maheshwari, J.): In a multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities, wherever existing and in whatever form existing – Hence, the State is tasked with affirmative action – And, one duly recognised form of affirmative action is by way of compensatory discrimination, which has the preliminary goal of curbing discrimination and the ultimate goal of its eradication so as to reach the destination of real and substantive equality – This has led to what is known as reservation and quota system in State activities – The ‘doctrine of equality’, as collectively enshrined in Arts.14 to 18, happens to be the principal basis for the creation of a reasonable classification whereunder ‘affirmative action’, be it legislative or executive, is authorised to be undertaken – The constitutional Courts too, precedent by precedent, have constructively contributed to evolution of what may be termed as ‘reservation jurisprudence’ – Reservation jurisprudence – Constitution of India – Arts. 14 to 18. Reservation – For economically weaker sections – Economic Disabilities and Affirmative Action – Held (Per Dinesh Maheshwari, J.): The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities – Poverty is not merely a state of stagnation but is a point of regression – Providing for affirmative action in relation to one particular segment or class may operate constructively in the direction of meeting with and removing the inequalities faced by that segment or class but, if another segment of society suffers from inequalities because of one particular dominating factor like that of poverty, the said segment could not be denied of the State support by way of affirmative action of reservation only because of the fact that that segment is otherwise not suffering from other disadvantages – In the State’s efforts of ensuring all-inclusive socio-economic justice, there cannot be competition of claims for affirmative action based on disadvantages in the manner that one disadvantaged section would seek denial of affirmative action for another disadvantaged section – Justice – Socio-economic justice.
Doctrines /Principles – Principle of “Distributive Justice” – Discussed – Mandate of the Constitution – Held (Per Dinesh Maheshwari, J.): Principle of “Distributive Justice” is a bedrock of the provisions like Art.46 as also Arts. 38 and 39 of the Constitution – The mandate of the Constitution to the State is to administer distributive justice; and in the law-making process, the concept of distributive justice connotes, inter alia, the removal of economic inequalities – There could be different methods of distributive justice – The philosophy of distributive justice is of wide amplitude which, inter alia, reaches to the requirements of removing economic inequalities; and then, it is not confined to one class or a few classes of the disadvantaged citizens – The wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income as also providing adequate means of livelihood to the citizens – In this commitment, leaving one class of citizens to struggle because of inequalities in income and want of adequate means of livelihood may not serve the ultimate goal of securing all-inclusive socioeconomic justice – Constitution of India – Art.46, 38 and 39 – Words and Phrases – “Distributive Justice”.
Constitution of India – Doctrine of Basic Structure and Constitutional Amendments – Held (Per Dinesh Maheshwari, J.): There is no, and there cannot be any, cut-and-dried formula or a theorem which could supply a ready-made answer to the question as to whether a particular amendment to the Constitution violates or affects the basic structure – The nature of amendment and the feature/s of the Constitution sought to be touched, altered, modulated, or changed by the amendment would be the material factors for an appropriate determination of the question – Doctrine of basic structure cannot be readily applied to every constitutional amendment – Supreme Court has applied the same only against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution, like direct abrogation of the features of judicial review (Kesavananda, Minerva Mills and P. Sambhamurthy cases); free and fair elections (Indira Nehru Gandhi case); plenary jurisdiction of constitutional Courts (L. Chandra Kumar case); and independence of judiciary (NJAC Judgment case) – Most of the other attempts to question the constitutional amendments have met with disapproval of the Court even when there had been departure from the existing constitutional provisions and scheme.
Constitution of India – Interplay of amending powers of the Parliament and judicial review by the Constitutional Court over such exercise of amending powers – Reason for minimal interference by Supreme Court in the constitutional amendments – Held (Per Dinesh Maheshwari, J.): In our constitutional set-up of parliamentary democracy, even when the power of judicial review is an essential feature and thereby an immutable part of the basic structure of the Constitution, the power to amend the Constitution, vested in the Parliament in terms of Art.368, is equally an inherent part of the basic structure of the Constitution – Both these powers, of amending the Constitution (by Parliament) and of judicial review (by Constitutional Court) are subject to their own limitations.
Reservation – Compensatory discrimination – Exclusion of Socially and Educationally Backward Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled Castes (SCs)/ Scheduled Tribes (STs) from Economically Weaker Sections (EWS) reservation – Held (Per Dinesh Maheshwari, J.): Compensatory discrimination, wherever applied, is exclusionary in character and could acquire its worth and substance only by way of exclusion of others – Such differentiation cannot be said to be legally impermissible; rather it is inevitable – Exclusion of Socially and Educationally Backward Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled Castes (SCs)/ Scheduled Tribes (STs) from Economically Weaker Sections (EWS) reservation is compensatory discrimination of the same species as is exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.
Reservation – Reservation by affirmative action – Held (Per Dinesh Maheshwari, J.): Economic backwardness of citizens can also be the sole ground for providing reservation by affirmative action.
Equality – Indian constitutional jurisprudence – Equality clause in the Constitution – Held (Per Dinesh Maheshwari, J.): Guarantee of equality is substantive and not a mere formalistic requirement – Equality is at the nucleus of the unified goals of social and economic justice.
Reservation – Exception to the general rule of equality – Held (Per Dinesh Maheshwari, J.): For the socio-economic structure which the law in our democracy seeks to build up, the requirements of real and substantive equality call for affirmative action – Reservation is recognised as one such affirmative action, which is permissible under the Constitution; and its operation is defined by a large number of decisions of this Court, running up to the detailed expositions in Dr. Jaishri Patil case – However, reservation is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated.
Constitution of India – Art.46 – Phraseology of Art. 46 – Expression “other weaker sections” in Art.46 – Meaning of – Held (Per Dinesh Maheshwari, J.): The broader expression “other weaker sections” in Art.46 is disjointed from the particular weaker sections (Scheduled Castes and Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs – It cannot be said that the expression “other weaker sections” is not to be given widest possible meaning or that this expression refers only to those weaker sections who are similarly circumstanced to SCs and STs – Reservation.
Constitution of India – Amendment to – Scope for judicial review –Held (per Bela Trivedi, J.): Any amendment made by the Parliament is open to judicial review and is liable to be interfered with by the Court on the ground that it affects one or the other basic feature of the Constitution.
Constitution of India – Amendment to – Challenge to, on ground of being discriminatory – Held (per Bela Trivedi, J.): A Constitutional amendment cannot be struck down as discriminatory if the state of facts are reasonably conceived to justify it. Constitution of India – Interpretation of – Distinction from interpretation of statutes – Held (per J.B. Pardiwala, J.): If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction – The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State, dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes.
Constitution of India – Amendment of – Scope and limitations – Held (per J.B. Pardiwala, J.): Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of Basic Structure and lack of legislative competence – If an amendment is to be struck down under the ‘basic structure’ formulation, the central principle of these inter-related provisions should be at threat – A mere violation of one of the enabling provisions would not be of much consequence under the doctrine of Basic Structure as long as such violation does not infringe upon the central thesis of equality – Redress for marginal encroachment cannot be found under the ‘Basic Structure Doctrine’ – Doctrines/Principles – Doctrine of ‘Basic Structure’.
Constitution (One Hundred and Third Amendment) Act, 2019 – Challenge to – Vide said amendment, Arts. 15 and 16 of the Constitution was amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby, the State was empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes” – Held (per J.B. Pardiwala, J.): The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation – It may be perceived as a first step in the process of doing away with castebased reservation. Doctrines/ Principles – Doctrine of basic structure – Enabling provision – Effect of – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): It is inaccurate to say that provisions that enable, exercise of power, would not violate the basic structure of the Constitution – The court’s inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted – Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. Constitution of India – Judicial review of constitutional amendments – Scope – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): Appropriate test or standard of judicial review of constitutional amendments is not the same as in the case of ordinary laws – In constitutional amendment judicial review, the court would consider the history of the provision amended, or the way the new provision impacts the identity, or character, or nature of the Constitution.
Constitution of India – Fraternity – Relevance of – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): People cannot be assured of Justice, Liberty or Equality, unless Fraternity in one form or another, to some degree, is felt by individuals at each level of our social order, and economic system – Weakening fraternity therefore undermines justice, liberty, and equality – The value of fraternity is as much a part of the equality code, and its facets – equality of opportunity, the principle of non-discrimination and the non-exclusionary principle, as it inextricably binds them with the concepts of liberty and freedom.
Words and Phrases – “basic features” and “basic structure” – Meaning of – Held (per Dinesh Maheshwari, J.): Basic structure of the Constitution is the sum total of its essential features.
Words and Phrases – Words “other than” in Arts. 15(6) and 16(6) of the Constitution – If to be read as “in addition to”, so as to include SCs/STs/OBCs within Economically Weaker Sections (EWS) – Held (per Dinesh Maheshwari, J.): The suggested construction is plainly against the direct meaning of the exclusionary expression “other than” as employed in, and for the purpose of, the said Arts. 15(6) and 16(6) – Constitution of India – Arts. 15(6) and 16(6).
Words and Phrases – “compensatory discrimination” and “reservation jurisprudence” – Discussed (per Dinesh Maheshwari, J.).
Words and Phrases – “economically weaker sections of citizens” – Meaning of – Discussed (per Dinesh Maheshwari, J.). Equality – Real and substantive equality – Economic justice vis-à-vis social justice – Discussed (per Dinesh Maheshwari, J.).
In the instant writ petitions and other proceedings the following three questions came up for consideration:Question 1: Whether the 103 rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?
Question 2: Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?
Question 3: Whether the 103 rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
Disposing of the Writ petitions and other proceedings, the Court
HELD:
Per COURT (3:2 majority)
In view of the decision rendered by the majority consisting of Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M. Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, the challenge raised to 103 rd Amendment to the Constitution fails and the decision rendered by Hon’ble Mr. Justice S. Ravindra Bhat remains in minority. [Para 2]
Per DINESH MAHESHWARI, J.
HELD: 1. The power to amend the Constitution availing under Article 368 has been a significant area of the development of Constitutional Law in our country. This power, recognised as a constituent power, is subject to various safeguards which are intrinsic to Article 368, including the procedural safeguards. [Para 34][96-D-E]
2. The expressions “basic features” and “basic structure” convey different meaning, even though many times they have been used interchangeably. It could reasonably be said that basic structure of the Constitution is the sum total of its essential features. As to when abrogation of any particular essential feature would lead to damaging the basic structure of Constitution would depend upon the nature of that feature as also the nature of amendment. [Paras 39.4, 39.5][124-D-E]
3. In a nutshell, the principle of equality can be stated thus: equals must be treated equally while unequals need to be treated differently, inasmuch as for the application of this principle in real life, one has to differentiate between those who being equal, are grouped together, and those who being different, are left out from the group. This is expressed as reasonable classification. Now, a classification to be valid must necessarily satisfy two tests: first, the distinguishing rationale should be based on a just objective and secondly, the choice of differentiating one set of persons from another should have a reasonable nexus to the object sought to be achieved. However, a valid classification does not require mathematical niceties and perfect equality; nor does it require identity of treatment. If there is similarity or uniformity within a group, the law will not be condemned as discriminatory, even though due to some fortuitous circumstances arising out of a particular situation, some included in the class get an advantage over others left out, so long as they are not singled out for special treatment. In spite of certain indefiniteness in the expression ‘equality’, when the same is sought to be applied to a particular case or class of cases in the complex conditions of a modern society, there is no denying the fact that the general principle of ‘equality’ forms the basis of a Democratic Government. [Para 44][127-A-D]
4. In the multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities, wherever existing and in whatever form existing. Hence, the State is tasked with affirmative action. And, one duly recognised form of affirmative action is by way of compensatory discrimination, which has the preliminary goal of curbing discrimination and the ultimate goal of its eradication so as to reach the destination of real and substantive equality. This has led to what is known as reservation and quota system in State activities. [Para 48][129-A-C]
5. The ‘doctrine of equality’, as collectively enshrined in Articles 14 to 18, happens to be the principal basis for the creation of a reasonable classification whereunder ‘affirmative action’, be it legislative or executive, is authorised to be undertaken. The constitutional Courts too, precedent by precedent, have constructively contributed to the evolution of what one may term as ‘reservation jurisprudence’. However, reservation, one of the permissible affirmative actions enabled by the Constitution of India, is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated; or whose modulation for a valid reason, including benefit of any section other than the sections who are already availing its benefit, may damage the basic structure. [Paras 50, 56][129-F-G; 130-A; 133-D]
6. In almost all references to real and substantive equality, the concept of economic justice has acquired equal focus alongside the principles of social justice. In giving effect to the rule of equality enshrined in Article 14, the Courts have also been guided by the jurisprudence evolved by the U.S. Supreme Court in the light of the amendments made to their Constitution, which were founded on economic considerations. This is to highlight that the economic backwardness of citizens can also be the sole ground for providing reservation by affirmative action. Any civilized jurisdiction differentiates between haves and have-nots, in several walks of life and more particularly, for the purpose of differential treatment by way of affirmative action. If an egalitarian socio-economic order is the goal so as to make the social and economic rights a meaningful reality, which indeed is the goal of our Constitution, the deprivations arising from economic disadvantages, including those of discrimination and exclusion, need to be addressed to by the State; and for that matter, every affirmative action has the sanction of our Constitution, as noticeable from the frame of Preamble as also the text and texture of the provisions contained in Part III and Part IV. [Paras 64, 65, 67][138-F, G; 139-A, E-F]
7. The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities. Poverty is not merely a state of stagnation but is a point of regression. Of course, mass poverty cannot be eliminated within a short period and it is a question of progress along a time path. In Kesavananda case, building a Welfare State is held to be one of the main objectives of the Constitution. In the Welfare State, public power becomes an instrumentality for the achievement of purposes beyond the minimum objectives of domestic order and national defence. It is not enough that the society be secured against internal disorder and/or external aggression; a society can be thus secured and well-ordered but, could be lacking in real and substantive justice for all. Equally, providing for affirmative action in relation to one particular segment or class may operate constructively in the direction of meeting with and removing the inequalities faced by that segment or class but, if another segment of society suffers from inequalities because of one particular dominating factor like that of poverty, the question arises as to whether the said segment could be denied of the State support by way of affirmative action of reservation only because of the fact that that segment is otherwise not suffering from other disadvantages. The answer could only be in the negative for, in the State’s efforts of ensuring all-inclusive socioeconomic justice, there cannot be competition of claims for affirmative action based on disadvantages in the manner that one disadvantaged section would seek denial of affirmative action for another disadvantaged section. [Paras 69, 70][140-B, F-H; 141A-B]
8. On a contextual reading, it could reasonably be culled out that the observations, wherever occurring in the decisions of this Court, to the effect that reservation cannot be availed only on economic criteria, were to convey the principle that to avail the benefit of this affirmative action under Articles 15(4) and/or 15(5) and/or 16(4), as the case may be, the class concerned ought to be carrying some other disadvantage too and not the economic disadvantage alone. The said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section. In view of the principles discernible from the decisions as also the background aspects, including the avowed objective of socio-economic justice in the Constitution, the observations of this Court in the past decisions that reservations cannot be claimed only on the economic criteria, apply only to class or classes covered by or seeking coverage under Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court has not put a blanket ban on providing reservation for other sections who are disadvantaged due to economic conditions. [Paras 72, 73][156-D-G]
9. The mandate of the Constitution to the State is to administer distributive justice; and in the law-making process, the concept of distributive justice connotes, inter alia, the removal of economic inequalities. There could be different methods of distributive justice; and it comprehends more than merely achieving the lessening of inequalities by tax or debt relief measures or by regulation of contractual transactions or redistribution of wealth, etc. It is more than evident that the philosophy of distributive justice is of wide amplitude which, inter alia, reaches to the requirements of removing economic inequalities; and then, it is not confined to one class or a few classes of the disadvantaged citizens. In other words, the wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income as also providing adequate means of livelihood to the citizens. In this commitment, leaving one class of citizens to struggle because of inequalities in income and want of adequate means of livelihood may not serve the ultimate goal of securing all-inclusive socio-economic justice. In fact, the argument that the State may adopt any poverty alleviation measure but cannot provide reservation for EWS by way of affirmative action proceeds on the assumption that the affirmative action of reservation in our constitutional scheme is itself reserved only for SEBCs/OBCs/SCs/STs in view of the existing text of Articles 15(4), 15(5) and 16(4) of the Constitution. Such an assumption is neither valid nor compatible with our constitutional scheme. This line of argument is wanting on the fundamental constitutional objectives, with the promise of securing ‘JUSTICE, social, economic and political’ for ‘all’ the citizens; and to promote FRATERNITY among them ‘all’. Thus viewed, the challenge to the amendment in question fails on the principle of distributive justice. [Paras 74.1.1, 74.1.2]P158-B-H]
10. Though, the text and the order of expressions used in the body of Article 46 have been repeatedly recounted on behalf of the petitioners to emphasise on the arguments based on ejusdem generis principle of interpretation but, as aforesaid, that principle does not fit in the interpretation of an organic thing like the Constitution. This apart, when traversing through the principles of interpretation, it could also be noticed that in case of any doubt, the heading or sub-heading of a provision could also be referred to as an internal aid in construing the provision, while not cutting down the wide application of clear words used in the provision. What is interesting to notice is that in the heading of Article 46, the chronology of the description of target groups for promotion of educational and economic interests is stated in reverse order than the contents of the provision. The heading signifies ‘Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections’ whereas the contents of the main provision are framed with the sentence ‘interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes’. A simple reading of the heading together with the contents would make it clear that the broader expression “other weaker sections” in Article 46 is disjointed from the particular weaker sections (Schedule Castes and Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs. [Para 74.2.3][159-G-H; 160-A-D]
11. The amendment in question could be correlated with any other provision of the Constitution, including the Preamble as well as Articles 38 and 39. Moreover, it is not the requirement of our constitutional scheme that an amendment to the Constitution has to be based on some existing provision in DPSP. In fact, an amendment to the Constitution (of course, within the bounds of basic structure) could be made even without any corresponding provision in DPSP. In the aforesaid view of matter, there appears no reason to analyse another unacceptable line of arguments adopted by the petitioners that the amendment in question provides for compensatory discrimination in favour of the so-called forward class/caste. Suffice it to observe that the amendment in question is essentially related to the requirements of those economically weaker sections who have hitherto not been given the benefit of such an affirmative action (particularly of reservation), which was accorded to the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWS reservation from the standpoint of backward class versus forward class is not in accord with the very permissibility of compensatory discrimination towards the goal of real and substantive justice for all. The challenge to the amendment in question on the ground that though the State could take all the relevant measures to deal with poverty and the disadvantages arising therefrom but, the affirmative action of reservation is envisaged by the Constitution only for socially and educationally backward class of citizens; and economic disadvantage alone had never been in contemplation for this action of reservation, is required to be rejected. In any case, any legitimate effort of the State towards all-inclusive socio-economic justice, by way of affirmative action of reservation in support of economically weaker sections of citizens, who had otherwise not been given the benefit of this affirmative action, cannot be lightly interfered with by the Court. [Paras 74.3, 75, 76][160-F-H; 161A-B, D-E]
12. EWS reservation itself is another form of compensatory discrimination, which is meant for serving the cause of such weaker sections who have hitherto not been given any State support by way of reservation. SEBCs/OBCs/SCs/STs are having the existing compensatory discrimination in their favour wherein the presently supported EWS are also excluded alongwith all other excluded classes/persons. As a necessary corollary, when EWS is to be given support by way of compensatory discrimination, that could only be given by exclusion of others, and more particularly by exclusion of those who are availing the benefit of the existing compensatory discrimination in exclusion of all others. Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory discrimination of the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation. As said above, compensatory discrimination, wherever applied, is exclusionary in character and could acquire its worth and substance only by way of exclusion of others. Such differentiation cannot be said to be legally impermissible; rather it is inevitable. [Para 82.1][165-E-F]
13. The fact that exclusion is innate in compensatory discrimination could further be exemplified by the fact that in Indra Sawhney, this Court excluded the creamy layer of OBCs from the benefit of reservation. In the complex set-up of formal equality on one hand (which debars discrimination altogether) and real and substantive equality on the other (which permits compensatory discrimination so as to upset the disadvantages), exclusion is as indispensable as the compensatory discrimination itself is. In fact, ‘creamy layer’ principle itself was applied to make a true compact of socially and educationally backward class. Two features strikingly come to fore with creamy layer principle. One is that to make a real compact of socially and educationally backward class, economic factors play an equally important role; and then, the exclusionary principle applies therein too. These two features, when applied to the present case, make it clear that the use of economic criteria is not contra- indicated for the exercise of reservation, rather it is imperative; and second, to make the exercise of compensatory discrimination meaningful so as to achieve its desired result, exclusion of every other class/person from the target group is inevitable. Thus viewed, the amendment in question remains unexceptionable in the accepted principles of constitutional law presently in operation. [Paras 83, 83.1][166B-E]
14. Having examined the permissible limits of affirmative action in light of the possible harm of preferential treatment qua other innocent class of competitors, i.e., general merit candidates, this Court has expressed the desirability of fifty per cent as the ceiling limit for reservation in education and public employment but, all such observations are required to be read essentially in the context of the reservation obtaining under Articles 15(4), 15(5) and 16(4) or other areas of affirmative action like that in relation to local self- government and cannot be overstretched to the reservation provided for entirely different class, consisting of the economically weaker sections. [Para 93][178-B-D]
15. In the ultimate analysis, it is beyond doubt that using the doctrine of basic structure as a sword against the amendment in question and thereby to stultify State’s effort to do economic justice as ordained by the Preamble and Directive Principles of State Policy (DPSP) and, inter alia, enshrined in Articles 38, 39 and 46, cannot be countenanced. This is essentially for the reason that the provisions contained in Articles 15 and 16 of the Constitution of India, providing for reservation by way of affirmative action, being of exception to the general rule of equality, cannot be treated as a basic feature. Moreover, even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution. Therefore, the doctrine of basic structure cannot be invoked for laying a challenge to the 103rd Amendment. [Para 101][182-E-G]
16. Reservation is an instrument of affirmative action by the State so as to ensure all-inclusive march towards the goals of an egalitarian society while counteracting inequalities; it is an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society but, also for inclusion of any class or section so disadvantaged as to be answering the description of a weaker section. In this background, reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India. [Para 102][183-B-C]
17. Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India. [Para 102][183D]
18. Reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations does not result in violation of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of fifty per cent because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India. [Para 102][183-E-F]
19. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria. [Para 104][184-A]
20. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions. [Para 104][184-B]
21. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation. [Para 104][184-B]
Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; Bhim Singhji v. Union of India and Ors. (1981) 1 SCC 166 and Minerva Mills Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625: [1981] 1 SCR 206 – relied on.
State of Madras v. Champakam Dorairajan AIR 1951 SC 226: [1951] SCR 525; K.C. Vasanth Kumar and Anr. v. State of Karnataka 1985 Supp SCC 714:
[1985] Suppl. SCR 352; Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) 10 SCC 1: [2017] 10 SCR 569; People’s Union for
Democratic Rights and Ors. v. Union of India and Ors. (1982) 3 SCC 235: [1983] 1 SCR 456; Jolly George Varghese and Anr. v. The Bank of Cochin (1980) 2 SCC 360: [1980] 2 SCR 913; Ahmedabad Municipal
Corporation v. Nawab Khan Gulab Khan and Ors.
(1997) 11 SCC 121:[1996] 7 Suppl. SCR 548; State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC 310; P. Sambhamurthy and Ors. v. State of Andhra Pradesh and Anr. (1987) 1 SCC 362: [1987]
1 SCR 879; Lingappa Pochanna Appelwar v. State of Maharashtra and Anr. (1985) 1 SCC 479: [1985]
2 SCR 224; T. Devadasan v. Union of India and Anr. [1964] 4 SCR 680; Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) SCC 217; M. Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC 212:[2006] 7 Suppl. SCR 336; Ashoka Kumar Thakur v. Union of India and Ors. (2008) 6 SCC 1:[2008]
4 SCR 1; M.R. Balaji and Ors. v. State of Mysore and Ors. [1963] Supp 1 SCR 439; Indra Sawhney v. Union of India (2000) 1 SCC 168:[1999] 5 Suppl. SCR 229; R. Chitralekha and Anr. v. State of Mysore and Ors. [1964] 6 SCR 368; Janki Prasad Parimoo and Ors. v. State of J&K and Ors. (1973) 1 SCC 420: [1973] 3 SCR 236; Sri Sankari Prasad Singh Deo v. Union of India and Anr. [1952] SCR 89; Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933; I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967] 2 SCR 762; E.P. Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC 3: [1974] 2 SCR 348; Prathvi Raj Chauhan v. Union of India and Ors. (2020) 4 SCC 727: [2020] 2
SCR 727; B.K. Pavitra and Ors. v. Union of India and Ors. (2019) 16 SCC 129:[2019] 7 SCR 1086; Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors. (2021) 8 SCC 1; Dayaram Khemkaran Verma v. State of Gujarat 2016 SCC Online Guj 1821; Madhav Rao Scindia
Bahadur etc. v. Union of India (1971) 1 SCC 85:[ 1971]
3 SCR 9; State (NCT of Delhi) v. Union of India and Anr. (2018) 8 SCC 501: [2018] 7 SCR 1; T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 SCC 481; V.V. Giri v. D.S. Dora [1960] 1 SCR 246; Saurav Yadav and Ors. v. State of Uttar Pradesh and Ors. (2021) 4 SCC 542; Waman Rao and Ors. v. Union of India and Ors. (1981) 2 SCC 362: [1981]
2 SCR 1; Ashoka Kumar Thakur v. State of Bihar and Ors. (1995) 5 SCC 403: [1995] 3 Suppl. SCR
269; Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors. (2009) 15 SCC 458:[2009] 12 SCR 978; Raghunathrao Ganpatrao v. Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR 480; Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. (2012) 6 SCC 1; Pramati Educational and Cultural Trust (Registered) and Ors. v. Union of India and Ors. (2014) 8 SCC 1; Indira Nehru Gandhi v. Raj Narain and Anr. 1975 Supp SCC 1; State of Karnataka v. Union of India and Anr. (1977) 4 SCC 608: [1978] 2 SCR 1; Kihoto Hollohan v. Zachillhu and Ors. 1992 Supp (2) SCC 651: [1992] 1 SCR 686; L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261: [1997] 2 SCR 1186; K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr. (2010) 7 SCC 202: [2010] 6 SCR 972; Supreme Court Advocates-onRecord Association and Anr. v. Union of India (2016) 5 SCC 1: [2015] 13 SCR 1; Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Ors. (1974) 2 SCC 402: [1975] 1 SCR 1; Chairman and Managing Director, Central Bank of India and Ors. v. Central Bank of India SC/ST Employees Welfare Association and Ors. (2015) 12 SCC 308: [2015]
1 SCR 55; State of Uttar Pradesh v. Dr. Dina Nath Shukla and Anr. (1997) 9 SCC 662: [1997] 1 SCR 750; M/s Shantistar Builders v. Narayan K. Totame and Ors. (1990) 1 SCC 520; Association of Unified Tele Services Providers and Ors. v. Union of India and Ors. (2014) 6 SCC 110: [2014] 9 SCR 780; People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399: [2003] 2 SCR 1136; M/s Frick India Ltd. v. Union of India and Ors. (1990) 1 SCC 400: [1989] 2 Suppl. SCR 570; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. (1981) 1 SCC 246: [1981] 2 SCR 185 and R. D.
Upadhyay v. State of Andhra Pradesh and Ors. (2007)
15 SCC 337: [2006] 3 SCR 1132 – referred to.
Corocraft v. Pan American Airways 1969 (1) All ER 82 – referred to.
Per BELA M. TRIVEDI, J. (Concurring with DINESH MAHESHWARI, J.)
HELD: 1. It is very well-established proposition of law that it is the Constitution and not the constituent power which is supreme. It is axiomatic that the Parliament has been conferred upon the constituent power to amend by way of addition, variation or repeal any provision of the Constitution under Article 368 of the Constitution, and the same is required to be exercised in accordance with the procedure laid down in the said Article. The Constitution is said to be a living document or a work in progress only because of the plenary power to amend is conferred upon the Parliament under the said provision. Of course, as laid down in plethora of judgments, the said power is subject to the constraints of the basic structure theory. Deriving inspiration from the Preamble and the whole scheme of the Constitution, the majority in Kesavananda Bharati case held that every provision of the Constitution can be amended so long as the basic foundation and structure of the Constitution remains the same. Some of the basic features of the constitutional structure carved out by the Court in the said judgment were, the supremacy of the Constitution, Republican and democratic form of government, separation of powers, judicial review, sovereignty and the integrity of the nation, Federal Character of Government etc. A multitude of features have been acknowledged as the basic features in various subsequent judicial pronouncements. Accordingly, any amendment made by the Parliament is open to the judicial review A and is liable to be interfered with by the Court on the ground that it affects one or the other basic feature of the Constitution. [Paras 5, 6][188-B-C; 189-A-B]
2. As transpiring from the Statements of Objects and Reasons for introducing the Bill to the impugned amendment, B the Parliament has taken note that the economically weaker sections of the citizens have largely remained excluded from attaining the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under Clauses (4) and (5) of C Article 15 and Clause (4) of Article 16 are generally unavailable to them unless they meet with the specific criteria of social and educational backwardness. It has been further stated that vide the Constitution (Ninety-third Amendment) Act, 2005, Clause (5) was inserted in Article 15 of the Constitution which enables the D State to make special provision for the advancement of any social and educational backwardness of citizens, or for the Scheduled Castes or the Scheduled Tribes, in relation to their admission in higher educational institutions. Similarly, Clause(4) of Article 16 of the Constitution enables the State to make special provision for the reservation of appointments or posts in favour of any E backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State. However, economically weaker sections of citizens were not eligible for the benefit of reservation. Therefore, with a view to fulfil the ideals lying behind Article 46, and to ensure that economically weaker F sections of citizens to get a fair chance of receiving higher education and participation in employment in the services of the State, it was decided to amend the Constitution of India. [Para 19][194-A-E]
3. As well settled, it must be presumed that the legislature understands
and appreciates the needs of its own people. Its laws are directed to the problems made manifest by experience, and its discriminations are based on adequate norms. Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it. In the instant case, the Legislature being aware of the exclusion of economically weaker sections of citizens from having the benefits of reservations provided to the SCs/STs and SEBCs citizens in Clauses(4) and (5) of Article 15 and Clause(4) of Article 16, has come out with the impugned amendment empowering the State to make special provision for the advancement of the “economically weaker sections” of citizens other than the classes mentioned in Clauses(4) and (5) of Article 15 and further to make special provision for the reservation of appointments or posts in favour of the economically weaker sections of the citizens other than the classes mentioned in Clause(4) of Article 16. The impugned amendment enabling the State to make special provisions for the “economically weaker sections” of the citizens other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for the advancement of the economically weaker sections of the citizens. Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14. Just as equals cannot be treated unequally, unequals also cannot be treated equally. Treating unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. [Para 20][194-F-H; 195-A-C]
4. The Scheduled Castes/Scheduled Tribes and the backward class for whom the special provisions have already been provided in Article 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category. They cannot be treated at par with the citizens belonging to the general or unreserved category. The impugned amendment creates a separate class of “economically weaker sectionsof the citizens” from the general/unreserved class, without affecting the special rights of reservations provided to the Scheduled Caste/Scheduled Tribe and backward class of citizens covered under Article 15(4), 15(5) and 16(4). Therefore, their exclusion from the newly created class for the benefit of the “economically weaker sections of the citizens” in the impugned amendment cannot be said to be discriminatory or violative of the equality code. Such amendment could certainly be not termed as shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice as sought to be submitted by the petitioners. [Para 21][195-D-F]
5. The sum and substance is that the limitations – substantive or procedural – imposed on the exercise of constituent power of the State under Article 368 could not be said by any stretch of imagination, to have been disregarded by the Parliament. Neither the procedural limitation i.e. the mode of exercise of the amending power has been disregarded nor the substantive limitation i.e. the restricted field has been disregarded, which otherwise would invalidate the impugned amendment. What is visualised in the Preamble and what is permissible both in PartIII and Part-IV of the Constitution could not be said to be violative of the basic structure or basic feature of the Constitution. In absence of any obliteration of any of the constitutional provisions and in absence of any alteration or destruction in the existing structure of equality code or in the basic structure of the Constitution, neither the width test nor the identity test as propounded in Kesavananda could be said to have been violated in the impugned Amendment. Accordingly, the challenge to the constitutional validity of the 103rd Amendment fails, and the validity thereof is upheld. [Para 22][195-G-H; 196-A-B]
6. What was envisioned by the framers of the Constitution, what was proposed by the Constitution Bench in 1985 and what was sought to be achieved on the completion of fifty years of the advent of the Constitution, i.e. that the policy of reservation must have a time span, has still not been achieved even till this day, i.e. till the completion of seventy-five years of our Independence. It cannot be gainsaid that the age-old caste system in India was responsible for the origination of the reservation system in the country. It was introduced to correct the historical injustice faced by the persons belonging to the scheduled castes and scheduled tribes and other backward classes, and to provide them a level playing field to compete with the persons belonging to the forward classes. However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism. [Para 28][199-D-F]
7. As per Article 334 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the SCs and the STs in the House of the People and in the Legislative Assemblies of the States would cease to have effect on the expiration of a period of eighty years from the commencement of the Constitution. The representation of Anglo-Indian community in the House of the Parliament and in the Legislative Assemblies of the States by nomination, has already ceased by virtue of the 104thAmendment w.e.f. 25.01.2020. Therefore, similar time limit if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society. [Para 29][199-FH; 200-A]
Kesavananda Bharati v. State of Kerala & Anr. (1973)
4 SCC 225; K.C. Vasanth Kumar and Anr. v. State of Karnataka, (1985) Suppl. SCC 714 : 1985 (1) Suppl. SCR 352 and Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 2008 (4) SCR 1 – relied on.
Kihoto Hollohan v. Zachillhu & Ors. (1992) Suppl. 2 SCC 651: [1992] 1 SCR 686; Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. (1981) 1 SCC 166; Indira Nehru Gandhi v. Raj Narain (1975) Suppl. SCC 1: [1976] 2 SCR 347; State of Kerala & Anr. v. N.M. Thomas & Ors. (1976) 2 SCC 310: [1976] 1 SCR 906 and Waman Rao & Ors. v. Union of India & Ors. (1981)
2 SCC 362:[1981] 2 SCR 1; M. Nagraj & others v. Union of India (2006) 8 SCC 212: [2006] 7 Suppl. SCR 336 and State of Gujarat and Another v. & The Ashok Mills Co. Ltd. Ahmedabad and Another (1974) 4 SCC 656: [1974] 3 SCR 760 – referred to.
Per J.B. PARDIWALA, J. (Concurring with DINESH MAHESWHARI, J.)
HELD:1. Article 21 encompasses the right to live with dignity. Article 21 has been given wide connotation and expression by the courts, particularly, by this Court to give effect to the constitutional policy of welfare state. The decision of this Court in Unni Krishnan is an authority on this aspect where the Court confirmed that right to education is implicit under Article 21 and proceeded to identify the content and parameters of this right to be achieved by Articles 41, 45, and 46 in relation to education. Understood in this context, Article 46 gives not only solemn protection to the weaker sections of the people at par with the Scheduled Castes and the Scheduled Tribes but speaks of special care to be taken by the State of this section of people. Further, the expression “educational and economic interests” in Article
46 concludes the whole legal position in relation to Article 46 to mean that the State must endeavour to do welfare especially of this section of people. The endeavour of the State to give the weaker section of the people a life of dignity is the link between Articles 46 and 21. The conjoint reading of both the provisions puts constitutional obligation on the State to achieve the goal of welfare of the weaker sections of the people by all means. Article
46 is not based on social test but on the means test. It speaks of “educational and economic interests” of “weaker sections”. The expression “weaker sections” and their “economic interests” are correlative and denote the means status of the people who are to be taken care of. Although, the phrase “economic interests” is not to be read alone but in consonance with the expression “educational” used in Article 46; yet to confuse Article 46 with the “social status” would be to put a strain and nullify otherwise the pure object of Article 46. The distinction can be explained with the aid of Article 15(4). Article 15(4) gives impetus to the social and educational “advancement” of Backward Classes or the Scheduled Castes and Scheduled Tribes. It is an enabling provision for the State to make special provisions for the socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes. The emphasis here is on the upliftment of three constitutionally earmarked classes i.e., Scheduled Castes, Scheduled Tribes and Backward classes. However, Article 46 is wide in expression. The object of welfare under Article 46 is towards those educationally and economically weak. Thus, it is evident from the aforesaid that there can be reservation for certain weaker sections other than the SCs/STs and socially and educationally backward classes. The impugned amendment is meant for weaker sections of the society who are economically weak and cannot afford to impart education to their children or are unable to secure employment in the services of the State. [Para 81, 82][263-G-H; 264-A-H; 265-A-C]
2. The interpretation of a Constitution involves more than a passing interest concerning the actual litigants and being a pronouncement of the Courts on the government and administration, has a more general and far-reaching consequence. If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction. The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State, dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes. [Para 86, 87, 90][266-A-B, F; 267-F]
3. Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of Basic Structure and lack of legislative competence. The doctrine of Basic Structure is brought in as a window to keep the power of judicial review intact as abrogation of such a power would result in violation of basic structure. When one speaks of discrimination or arbitrary classification, the same constitutes violation of Article 14 of the Constitution. There is a distinction between constitutional law and ordinary law in a rigid Constitution like ours. The said distinction proceeds on the assumption that ordinary law can be challenged on the touchstone of the Constitution. Therefore, when an ordinary law seeks to make a classification without any rational basis and without any nexus with the object sought to be achieved, such ordinary law could be challenged on the touchstone of Article
14 of the Constitution. However, when it comes to the validity of a constitutional amendment, one has to examine the validity of such amendment by asking the question as to whether such an amendment violates any overarching principle in the Constitution. What is overarching principle? Concepts like secularism, democracy, separation of powers, power of judicial review fall outside the scope of amendatory powers of the Parliament under Article 368. If any of these were to be deleted, it would require changes to be made not only in Part III of the Constitution but also in Article 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution. When an impugned Act creates a classification without any rational basis and having no nexus with the objects sought to be achieved, the principle of equality before law is violated undoubtedly. Such an Act can be declared to be violative of Article 14. Such a violation does not require re-writing of the Constitution. This would be a case of violation of ordinary principle of equality before law. Similarly, “egalitarian equality” is a much wider concept. It is an overarching principle. The term “egalitarianism” has distinct definition that all people should be treated as equal and have the same political, economic, social and civil rights or have a social philosophy advocating the removal of economic inequalities among the people, economic egalitarianism or the decentralisation of power. [Para 154][287C-H; 288-A-B]
4. Article 14 has two clear facets which are invalid. One is over- classification and the other is under-classification, which is otherwise, over- inclusiveness or under-inclusiveness. The judicial review of over-classification should be undertaken very strictly. In the cases of under-classification when the complaint is either by those who are left out or those who are in i.e. that the statute has roped him in, but a similarly situated person has been left out, it would be under-inclusiveness. It is to say that you ought to have brought him in to make the classification reasonable. It is in such cases that the courts have said that ‘who should be brought in’ should be left to the wisdom of the legislature because it is essentially a stage where there should be an element of practicability. Therefore, the cases of under-inclusion can be reviewed in a little liberal manner. The under-inclusion argument should not be very readily accepted by the courts because the stage could be experimental. For instance, in the case on hand, the argument in the context of 103rd Constitution Amendment is that SCs, STs and OBCs have been left out, the Court would say that it is under-inclusiveness. The Legislature does not have to bring any and everybody to make it reasonable. The case on hand is not one of active exclusion. The SCs, STs and OBCs who have been left out at the first instance are telling the Court that they ought to have been included. In such circumstances, the test would be very strict, not that it would be impervious to review. Had they been included in clause (6) of Article 15 & clause (6) of Article
16 resply at any point of time and thereafter, excluded, it would be legitimate for them to argue that having treated them as one, they cannot be excluded in an arbitrary manner. [Para 164][293H; 294-A-E]
5. Each one of the Constitutional provisions that are categorised as rights under Part III has intrinsic value content. Many of these rights are a part of the mechanism geared towards realising a common constitutional principle. For example, Articles 14, 15 and 16 of the Constitution are committed to the common principle of equality. Reasonably then, if an amendment is to be struck down under the ‘basic structure’ formulation, the central principle of these inter-related provisions should be at threat. A mere violation of one of these enabling provisions would not be of much consequence under the doctrine of Basic Structure as long as such violation does not infringe upon the central thesis of equality. Redress for marginal encroachment cannot be found under the ‘Basic Structure Doctrine’. In considering the effect of an amendment on the constitutional core, it is important to keep in mind the widest ramifications of the amendment. It is imperative to contemplate and consider every way in which the ‘basic structure’ of the Constitution might be threatened through the impugned amendment. The amendment would stand as constitutional only after a satisfactory understanding as to its effect on the constitutional core is reached by the courts. To sustain itself, the amendment should not violate such core in the widest interpretation given to it. [Para 186][310-D-G]
6. The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation. It may be perceived as a first step in the process of doing away with caste-based reservation. [Para 187][310-H]
7. Reservation is not an end but a means – a means to secure social and economic justice. Reservation should not be allowed to become a vested interest. Real solution, however, lies in eliminating the causes that have led to the social, educational and economic backwardness of the weaker sections of the community. This exercise of eliminating the causes started immediately after the Independence i.e., almost seven decades back and it still continues. The longstanding development and the spread of education have resulted in tapering the gap between the classes to a considerable extent. As larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories so that the attention can be paid toward those classes which genuinely need help. In such circumstances, it is very much necessary to take into review the method of identification and the ways of determination of backward classes, and also, ascertain whether the criteria adopted or applied for the classification of backward is relevant for today’s conditions. The idea of Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years. However, it has continued past seven decades. Reservation should not continue for an indefinite period of time so as to become a vested interest. [Para 190][311-H; 312-A-D]
8. In the result, the impugned amendment is valid and in no manner alters the basic structure of the Constitution. [Para 191][312-D-E]
Minor A. Peeriakaruppan v. State of Tamil Nadu and Others (1971) 1 SCC 38: [1971] 2 SCR 430 – relied on.
Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; The State of Madras v. Champakam Dorairajan & Another AIR 1951 SC 226: [1951] SCR 525; Kathi Raning
Rawat v. State of Saurashtra AIR 1952 SC 123: [1952] SCR 435; State of Kerala and Another v. N.M. Thomas and Others (1976) 2 SCC 310 : [1976] 1 SCR 906; E.P. Royappa v. State of Tamil Nadu and Another AIR 1974 SC 555: [1974] 2 SCR 348; Govt. of Andhra Pradesh v. P.B. Vijaykumar and another AIR 1995 SC 1648; T.M.A. Pai Foundation and Others v. State of Karnataka and Others (2002) 8 SCC 481: [2002] 3 Suppl. SCR 587; Supreme Court Advocates-on-Record Association and another v. Union of India AIR 2016 SC 117: [2015] SCR 975; Smt. Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299: [1975]
Suppl. SCC 1; S.R. Bommai and others etc. etc. v. Union of India and others etc. etc. AIR 1994 SC 1918: [1994]
2 SCR 644; I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu AIR 2007 SC 861: [2007] 1 SCR 706; The State of West Bengal v. Anwar Ali Sarkar [1952] 0 SCR 284; State of Gujarat and Another v. Shri Ambika Mills Ltd. Ahmedabad and Another (1974) 4 SCC 656: [1974] 3 SCR 760; Mohammad Shujat Ali and others v. Union of India and others Ashutosh Gupta v. State of Rajasthan AIR 2002 SC 1533; Mohini Jain (Miss) v. State of Karnataka and Others (1992) 3 SCC 666: [1992] 3 SCR 658; Society for Unaided Private Schools of Rajasthan v. Union of India and Another (2012) 6 SCC1: [2012] 2 SCR 715; Pramati Educational and Cultural Trust (Registered) and Others v. Union of India and Others (2014) 8 SCC 1: [2014] 11 SCR 712; M. Nagaraj and Others v. Union of India and Others (2006)
8 SCC 212: [2006] 7 Suppl. SCR 336; M.R. Balaji and Others v. State of Mysore [1963] Supp 1 SCR 439 and Dalmia Cement (Bharat) Ltd. and Another v. Union of India and Others (1996) 10 SCC 104: [1996] 1 Suppl. SCR 825; State of Jammu & Kashmir v. Triloki Nath Khosa and others AIR 1974 SC 1: [1974] 1 SCR 771; Ram Singh and Others v. Union of India (2015) 4 SCC 697: [2015] 5 SCR 670; M/s Shantistar Builders v. Narayan Khimalal Totame and Others (1990) 1 SCC 520; Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1: [2008] 4 SCR 1; M.P.V. Sundararamier & Co. v. State of A.P. and Others [1958] SCR 1422; State of West Bengal v. Shaik Serajuddin Batley [1954]
SCR 378; Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Others [1959] SCR 279; R.C. Poudyal v. Union of India and Others 1994 Supp (1) SCC 324 : [1993] 1 SCR 891; Kihoto Hollohan v. Zachillhu and Others 1992 Supp (2) SCC 651: [1992] 1 SCR 686; Kuldip Nayar v. Union of India & Ors. AIR 2006 SC 3127: [2006] 5 Suppl. SCR 1; Glanrock Estate Private Limited v. State of Tamil Nadu (2010) 10 SCC 96: [2010]
12 SCR 597; Sanjeev Coke Manufacturing Co. v.
Bharat Coking Coal Ltd. (1983) 1 SCC 147: [1983] 1 SCR 1000; S. Seshachalam and Others v. Chairman, Bar Council of Tamil Nadu and Others (2014) 16 SCC
72 : [2014] 12 SCR 465; State of Madhya Pradesh v. Narmada Bachao Andolan and Another (2011) 7 SCC 639: [2011] 6 SCR 443; Ajit Singh and Others v. State of Punjab and Others (1999) 7 SCC 209: [1999] 2 Suppl. SCR 521; C.A. Rajendran v. Union of India & Others [1968] 1 SCR 721; Indra Sawhney and Others v. Union of India and Others 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454; Unni Krishnan, J.P. and Others v. State of Andhra Pradesh and Others (1993) 1 SCC 645: [1993] 1 SCR 594; Sajjan Singh v. State of Rajasthan AIR 1965 SC 845: [1965] 1 SCR 933 and Golak Nath and Others v. State of Punjab and Another 1967 AIR SC 1643: [1967] 2 SCR 762 – referred to. Srimathi Champakam Dorairajan and Another v. The State of Madras AIR 1951 Madras 120; Padmraj
Samarendra v. the State of Bihar, Patna High Court, Special Bench, 1978 SCC OnLine Pat 64 : 1979 PLJR
258 : AIR 1979 Pat 266; State of Kerala v. R. Jacob Mathew and others, AIR 1964 Kerala 316 – referred to.
James v. Commonwealth of Australia (1936) A.C. 578, 614; Central Provinces Case (1939) F. C. R. 18; United States v. Patrick B. Classic [1941 SCC OnLine US SC 112: 313 US 299 (1941)] ; Missouri, K & T Rly v. May,
194 US 267 (1904), 269 – referred to.
Per S. RAVINDRA BHAT, J. (for UDAY UMESH LALIT, CJI and himself) (Minority opinion)
1. Our Constitution does not speak the language of exclusion. The 103rd Constitution Amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the basic structure. [Para 1][314-E]
2. 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 of the Constitution, does not per se stray from the Constitutional principles, so as to alter, violate, or destroy its basic structure. 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. What, however, needs further scrutiny, is whether the manner of implementing – i.e., the implicit exclusion of those covered under Art. 15(4) and 16(4) [Scheduled Castes (“SC”), Scheduled Tribes (“ST”), and socially and educationally backward classes (“SEBC”)], cumulatively referred to as ‘backward classes’] violates, or damages the basic structure or essential features of the Constitution. [Para 2][314-F-H; 315-A]
3. The appropriate test or standard of judicial review of constitutional amendments is not the same as in the case of ordinary laws; the test is whether the amendment challenged destroys, abrogates, or damages the “identity”, or “nature” or “character” or “personality” of the Constitution, by directly impacting one or some of the “overarching principles” which inform its express provisions. Further in constitutional amendment judicial review, the court would consider the history of the provision amended, or the way the new provision impacts the identity, or character, or nature of the Constitution. The standard of judicial review of constitutional amendments, draws upon distinct terminologies – identity, personality, nature and character to see if the constitutional identity undergoes a fundamental change, as to alter the Constitution into something it can never be. Or, differently put, the test is whether the impact of the amendment is to change the Constitution, into something it could never be considered to be. Each of the terms, i.e. identity, nature, personality, character, and so on, are methods of expressing the idea that some part of the Constitution, either through its express provisions, or its general scheme, and yet transcending those provisions, are embedded as overarching principles, which cannot be destroyed or damaged. [Paras 29, 30][332-C-G]
4. The application of the doctrine classification differentiating the poorest segments of the society, as one segment (i.e., the forward classes) not being beneficiaries of reservation, and the other, the poorest, who are subjected to additional disabilities due to caste stigmatization or social barrier based discrimination – the latter being justifiably kept out of the new reservation benefit, is an exercise in deluding ourselves that those getting social and educational backwardness based reservations are somehow more fortunate. This classification is plainly contrary to the essence of equal opportunity. If this Constitution means anything, it is that the Code of Articles 15(1), 15(2), 15(4), 16(1), 16(2), and 16(4) are one indivisible whole. Articles 16(1) and 16(4) are facets of the same equality principle. That one needs Article 15(4) and 16(4) to achieve equality of opportunity guaranteed to all in Articles 15(1) and 16(1) cannot now be undermined, through this reasoning, to hold that the theory of classification permits exclusion on this very basis. [Para 80][356-D-F]
5. The basis of classification in the impugned amendment, enacted in furtherance of Article 46 – is economic deprivation. Applying that criterion, it is either income, or landholding, or value of assets or the extent of resources controlled, which are classifiers. The social origins, or identities of the target group are thus irrelevant. That there is some basis for classification, whether relevant or irrelevant, which is sufficient to differentiate between members of an otherwise homogenous group, is no justification. The economic criteria, based on economic indicators, which distinguish between one individual and another, would be relevant for the purpose of classification, and grant of reservation benefit. The Union’s concern that SC/ST/OBCs are beneficiaries of other reservations, which set apart the poorest among them, from the poorest amongst other communities which do not fall within Articles 15(4) and 16(4), cannot be a distinguishing factor, as to either constitute an intelligible differentia between the two, nor is there any rational nexus between that distinction and the object of the amendment, which is to eliminate poverty and further the goal of equity and economic justice. [Para 84, 87][358-F; 360C-E]
6. None of the materials placed on the record contain any suggestion that the SC/ST/OBC categories should be excluded from the poverty or economic criteria-based reservation, on the justification that existing reservation policies have yielded such significant results, that a majority of them have risen above the circumstances which resulted in, or exacerbate, their marginalization and poverty. There is nothing to suggest, how, keeping out those who qualify for the benefit of this economiccriteria reservation, but belong to this large segment constituting 82% of the country’s population (SC, ST and OBC together), will advance the object of economically weaker sections of society. [Para 91][362-B-C]
7. The characterisation of including the poor (i.e., those who qualify for the economic eligibility) among those covered under Articles 15(4) and 16(4), in the new reservations under Articles 15(6) and 16(6), as bestowing “double benefit” is incorrect. What is described as ‘benefits’ for those covered under Articles 15(4) and 16(4) by the Union, cannot be understood to be a free pass, but as a reparative and compensatory mechanism meant to level the field – where they are unequal due to their social stigmatisation. This exclusion violates the non-discrimination and the non-exclusionary facet of the equality code, which thereby violates the basic structure of the Constitution. [Para 100][365F-G]
8. The impugned amendment creates paths, gateways, and opportunities to the poorest segments of our society, enabling them multiple access points to spaces they were unable to go to, places and positions they were unable to fill, and opportunities they could not hope, ever to ordinarily use, due to their destitution, economic deprivation, and penury. These: destitution, economic deprivation, poverty, are markers, or intelligible differentia, forming the basis of the classification on which the impugned amendment is entirely premised. To that extent, the amendment is constitutionally indefeasible. However, by excluding a large section of equally poor and destitute individuals – based on their social backwardness and legally acknowledged caste stigmatization – from the benefit of the new opportunities created for the poor, the amendment practices constitutionally prohibited forms of discrimination. The overarching principles underlying Articles 15(1), 15(2), and Articles 16(1), 16(2) is that caste based or community-based exclusion (i.e., the practice of discrimination), is impermissible. Whichever way one would look at it, the Constitution is intolerant towards untouchability in all its forms and manifestations which are articulated in Articles 15(1), (2), Articles 16, 17, 23 and 24. It equally prohibits exclusion based on past discriminatory practices. The exclusion made through the “other than” exclusionary clause, negates those principles and strikes at the heart of the equality code (specifically the nondiscriminatory principle) which is a part of the core of the Constitution. [Para 101][365-H; 366-A-D]
9. Equality of opportunity in public employment – a specific facet of the equality code – is a guarantee to each citizen. The equally forthright prohibition in Article 16(2), enjoining discrimination on various grounds, including caste, is to reinforce the absoluteness of equality of opportunity, that it cannot be denied. The only departure through Article 16(4) is to give voice to hitherto unrepresented classes, discriminated against on the proscribed grounds. This link- between providing equal opportunity, and representation through reservations, was the only exception, permitted by the Constitution, to further equality in public employment. The impugned amendment snaps the link between the idea of providing reservation for backward classes to ensure their empowerment and representation (who were, before the enactment of Article 16(4), absent from public employment). The entire philosophy of Article 16 is to ensure barrier-free equal opportunity in regard to public employment. Article 16(4) – enables citizens belonging to backward classes access to public employment with the superadded condition that this is to ensure their “adequate representation”. Important decisions of this court: Indra Sawhney, M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta and BK Pavitra (II) v. Union of India have time and again emphasized that reservations under Article 16 are conditioned upon periodic adequate representation review. [Paras 129, 130][378-E-H; 379-A]
10. The introduction of reservations for economically weaker sections of the society is not premised on their lack of representation (unlike backward classes); the absence of this condition implies that persons who benefit from the EWS reservations can, and in all probability do belong to classes or castes, which are “forward” and are represented in public service, adequately. This additional reservation, by which a section of the population who are not socially backward, and whose communities are represented in public employment – violates the equality of opportunity which the Preamble assures, and Article 16(1) guarantees. [Para 131][379-B-C]
11. The impugned amendment results in treating those covered by reservations under Article 16(4) with a standard that is more exacting and stringent than those covered by Article 16(6). For instance, if the poorest citizens among a certain community or that entire community, is unrepresented, and the quota set apart for the concerned group (SC) as a whole is filled, the requirement of “representation” is deemed fulfilled, i.e., notwithstanding that the specific community has not been represented in public employment, no citizen belonging to it, would be entitled to claim reservation. However, in the case of non-SC/ST/OBCs, whether the individual belongs to a community which is represented or not, is entirely irrelevant. This vital dimension of need to be represented, to be heard in the decision-making process, has been entirely discarded by the impugned amendment in clause
(6) of Article 16. Within the amended Article 16, therefore, lie two standards: representation as a relevant factor (for SC, ST and OBC under Article 16(4)), and representation as an irrelevant factor (for Article 16(6)). [Para 132][379-D-F]
12. The introduction of this reservation in public employment violates the right to equal opportunity, in addition to the non-discriminatory facet of equality, both of which are part of the equality code and the basic structure. [Para 133][379-G]
13. The characterisation of reservations for economically weaker sections of the population (EWS) as compensatory and on par with the existing reservations under Articles 15(4) and 16(4), is without basis. The endeavour of the Constitution makers was to ensure that past discriminatory practices which had, so to say, eaten the vitals of the Indian society and distorted it to such an extent that when the republic was created, an equal society was merely an illusion, which compelled them to enact special provisions such as Article 16(4) – and later Article 15(4), to ensure equality. It was not compensatory but also reparatory. They continue to compensate, definitionally and in reality, because even as on date, the acknowledged position is that reservations are necessary for SCs/STs and OBCs who are not part of the creamy layer. On the other hand, the EWS category, was consciously not made beneficiaries of reservations at the time of the framing of the Constitution, because perhaps the framers felt that the enacted provisions (including the soon to be added Articles 31A and 31B) and the slew of economic reforms which were enacted were sufficient to remove economic disparities. That hope however, did not materialise. Economic disparities (unconnected with social and educational backwardness) continued – and perhaps were even exacerbated to such an extent that as of now almost 25% of the population continue to live in abject poverty. Indra Sawhney acknowledged that measures taken for their purpose would only result in “poverty alleviation”. [Para 168][398-B-F]
14. The principles of non-discrimination, non-exclusion and equality of opportunity to all is manifested in the Constitution through the equality code, which is part of its basic structure. Their link with fraternity, which the Preamble assures is intrinsic to “dignity of the individual and unity and integrity of the nation”, is inseparable. The framers of our constitution recognised that there can be no justice without equality of status, and that bereft of fraternity, even equality would be an illusion as existing divisions and “narrow domestic walls” would fragment society. [Para 180][402-F-G]
15. The fraternal principle is deeply embedded to this nation’s ethos and culture. The specific provisions which form part of the Equality Code, are inextricably intertwined with fraternity as well.
People cannot be assured of Justice, Liberty or Equality, unless Fraternity in one form or another, to some degree, is felt by individuals at each level of our social order, and economic system. Weakening fraternity therefore undermines justice, liberty, and equality. [Paras 181, 182, 183][403-B, F, H]
16. One-ness, inclusiveness, humanism and the idea that not only are all equal, and should have equal opportunities, and the content of each one’s rights be no different from the other, but also that all stand together, and for each other, is a powerful precept. This precept suffuses every provision of Part III of the Constitution, especially Articles 14-18, 38-39 and 46. The value of fraternity is as much a part of the equality code, and its facets – equality of opportunity, the principle of non-discrimination and the non-exclusionary principle, as it inextricably binds them with the concepts of liberty and freedom. [Paras 185, 186][404-H; 405A, B-C]
17. The exclusionary clause (in the impugned amendment) that keeps out from the benefits of economic reservation, backward classes and SC/STs therefore, strikes a death knell to the equality and fraternal principle which permeates the equality code and non-discrimination principle. [Para 187][405-D-E]
18. The concepts which our Constitution fosters, and the principles it engenders – equality, fraternity, egalitarianism, dignity, and justice (at individual and social levels) are all inclusive, all encompassing. The equality code in its majestic formulation (Article 14, 15, 16 and 17) promotes inclusiveness. Even provisions enabling reservations foster social justice and equality, to ensure inclusiveness and participation of all sections of society. These provisions assure representation, diversity, and empowerment. Conversely, exclusion, with all its negative connotation – is not a constitutional principle and finds no place in our constitutional ethos. Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, nondiscrimination, and non-exclusion. [Para 188][405-E-G]
19. On Question 1, it is held that the states’ compelling interest to fulfil the objectives set out in the Directive Principles, through special provisions on the basis of economic criteria, is legitimate. That reservation or special provisions have so far been provided in favour of historically disadvantaged communities, cannot be the basis for contending that other disadvantaged groups who have not been able to progress due to the ill effects of abject poverty, should remain so and the special provisions should not be made by way of affirmative action or even reservation on their behalf. Therefore, special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structure. [Para 189][405-H; 406-A-B]
20. However, the framework in which it has been introduced by the impugned amendment – by excluding backward classes -– is violative of the basic structure. The identifier for the new criteria-is based on deprivation faced by individuals. Therefore, which community the individual belongs to is irrelevant. An individual who is a target of the new 10% 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. [Para 190][406-C-F]
21. 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. Reservation is designed as a powerful tool to enable equal access and equal opportunity. Introducing the economic basis for reservation – as a new criterion, is permissible. 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. Firstly, it “others” those subjected to socially questionable, and outlawed practices – though they are amongst the poorest sections of society. 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% for SCs, 7.5% for STs, etc.). Thirdly, it denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation. 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. Within the narrative of the classification jurisprudence, the differentia (or marker) distinguishing one person from another is deprivation alone. The exclusion, however, is not based on deprivation but social origin or identity. This strikes at the essence of the non-discriminatory rule. Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens - and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of nondiscrimination. [Para 191][406-F-H; 407-A-D]
22. On question 3, it is clear that the impugned amendment and the classification it creates, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination. For these reasons, the insertion of Article 15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution. [Para 192][407-E-F]
23. While this reasoning is sufficient to conclude that Article 16(6) is liable to be struck down, there are additional reasons due to which this court is compelled to clarify that while the ‘economic criteria’ per se is permissible in relation to access of public goods (under Article 15), the same is not true for Article 16, the goal of which is empowerment, through representation of the community. [Para 193][407-F-G]
24. On the point of Question 2, it is true that unaided private educational institutions would be bound under Article 15(6) to provide for EWS reservations, however, given that the analysis under Question 3 on ‘exclusion’ leads to the conclusion that the Amendment is violative of the basic structure, the question herein has been rendered moot. [Para 194][408-A-B]
25. Sections 2 and 3 of the Constitution (One Hundred and Third Amendment) Act, 2019 which inserted clause (6) in Article
15 and clause (6) in Article 16, respectively, are unconstitutional and void on the ground that they are violative of the basic structure of the Constitution. [Para 195][408-B-C]
State of Madras v. Champakam Dorairajan 1951 SCC 351: [1951] SCR 525; M.R. Balaji v. State of Mysore [1963] Supp 1 SCR 439; T. Devadasan v. Union of India (1964) 4 SCR 680; State of Kerala v. N.M. Thomas (1976) 2 SCC 310: [1976] 1 SCR 906; Indra Sawhney v. Union of India 1992 Supp (3) SCC 217: [1992]
2 Suppl. SCR 454; Pramati Educational & Cultural Trust v. Union of India (2014) 8 SCC 1; Chebrolu Leela Prasad Rao v. State of A.P. (2021) 11 SCC 401; Jaishri Laxmanrao Patil v. State of Maharashtra (2021) 8 SCC 1; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225: [1973] Supp SCR 1; Minerva Mills v. Union of India (1980) 3 SCC 625: [1981] 1 SCR 206; Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1: [1976]
2 SCR 347; P. Sambamurthy v. State of A.P (1987) 1 SCC 362: [1987] 1 SCR 879; Kihoto Hollohan v.
Zachillhu 1992 Supp (2) SCC 651: [1992] 1 SCR 686; L. Chandra Kumar v. Union of India (1997) 3 SCC 261: [1997] 2 SCR 1186 ; Raghunathrao Ganpatrao v.
Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR 480; I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1: [2007] 1 SCR 706; Waman Rao v. Union of India (1981) 2 SCC 362: [1981] 2 SCR 1; Indra Sawhney
(2) v. Union of India (2000) 1 SCC 168: [1999] 5 Suppl. SCR 229; Indian Young Lawyers Association and Ors. v. State of Kerala and Ors. (2019) 11 SCC 1: [2018] 9 SCR 561; Supreme Court Advocates on Record
Association (SCAORA) v. Union of India (2016) 5 SCC 1: [2015] 13 SCR 1; Roop Chand Adlakha v. Delhi Development Authority (1989) Supp (1) SCC 116: [1988] 3 Suppl. SCR 253; State of West Bengal v. Anwar Ali Sarkar (1952) 1 SCC 1: [1952] SCR 284;
Mohammad Shujat Ali and Ors. v. Union of India (1975)
3 SCC 76: [1975] 1 SCR 449; Bhim Singhji v. Union of India (1981) 1 SCC 166; M. Nagaraj v. Union of India (2006) 8 SCC 212: [2006] 7 Suppl. SCR 336; Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1: [2008]
4 SCR 1; K. Krishna Murthy v. Union of India (2010) 7 SCC 202: [2010] 6 SCR 972; R.C. Poudyal v. Union of India 1994 Supp (1) SCC 324: [1993] 1 SCR 891; Air India v. Nargesh Mirza (1981) SC 1829 : [1982] 1 SCR 438; Vishaka v. State of Rajasthan (1997) 6 SCC 241: [1997] 3 Suppl. SCR 404; Anuj Garg and Others v. Hotel Association of India and Others, (2008) 3 SCC 1: [2007] 12 SCR 991; National Legal Services
Authority v UOI and Others (2014) 5 SCC 438: [2014]
5 SCR 119; Vineeta Sharma v. Rakesh Sharma & Others (2020) 9 SCC 1: [2020] 10 SCR 135; Secretary,
Ministry of Defence v. Babita Puniya & Others (2020)
7 SCC 469: [2020] 3 SCR 833; Lt. Col. Nitisha & Others v. Union of India & Others, 2021 SCC OnLine SC 261; State of Karnataka v. Appa Balu Ingale (1995) Supp
(4) SCC 469: [1992] 3 Suppl. SCR 284; Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors. (1990) 3 SCC 130: [1990] 2 SCR 843; Valsamma Paul & Ors. v. Cochin University & Ors. (1996) 3 SCC 545: [1996] 1 SCR 128; Abhiram Singh and Ors. v. C.D. Commachen (2017) 2 SCC 629: [2017] 1 SCR 158;
Saurabh Chaudri & Ors. v. Union of India & Ors. (2003) 11 SCC 146; [2003] Supp 5 SCR 152; S.R. Bommai v. Union of India (1994) 3 SCC 1: [1994]
2 SCR 644 ; Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors (2017) 1 SCC 350: [2016] 7 SCR 639; Samatha v. State of A.P. & Ors. (1997) 8 SCC 191: [1997] Supp 2 SCR 305; Indian Medical Association & Ors. v. Union of India & Ors. (2011) 7 SCC 179: [2011]
6 SCR 599; Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1: [2012]
2 SCR 715; State of Jammu and Kashmir v. Triloki Nath Khosa & Ors. (1974) 1 SCC 19: [1974] 1 SCR 771; Pattali Makkal Katchi v. A. Mayilerumperumal and Ors 2022 SCC Online SC 386; Col. A.S. Iyer v. V.
Balasubramanyam (1980) 1 SCC 634: [1980]
1 SCR 1036 ; Lachhman Das v. State of Punjab [1963]
2 SCR 353; National Legal Services Authority v. Union of India & Ors. (2014) 5 SCC 438: [2014] 5 SCR 119; Charu Khurana v. Union of India (2015) 1 SCC 192: [2014] 12 SCR 259; State of West Bengal v. Anwar Ali Sarkar [1952] 1 SCR 284; Nandini Satpathy v. PL Dani [1978] 3 SCR 608; Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396: [2018] 10 SCR 663; BK Pavitra (II) v. Union of India (2019) 16 SCC 129: [2019]
7 SCR 1086; T.M.A. Pai Foundation v. State of
Karnataka
(2002)
SCC
481:
[2002]
3 Suppl. SCR 587; Delhi Transport Corpn. v. D.T.C. Mazdoor Congress 1991 Supp (1) SCC 600: [1990]
1 Suppl. SCR 142; K.C. Vasant Kumar v. State of Karnataka (1985) Supp SCC 714: [1985] Suppl.
SCR 352; State of Gujarat v. Shri Ambika Mills (1974)
4 SCC 656: [1974] 3 SCR 760; S. Seshachalam & Ors. v. Chairman Bar Council of TN (2014) 16 SCC 72: [2014] 12 SCR 465; R.K. Garg v. Union of India (1981)
4 SCC 675: [1982] 1 SCR 947 and Prathvi Raj
Chauhan v. Union of India, (2020) 4 SCC 727: [2020]
2 SCR 727 – referred to.
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S.
150 (1891) and Korematsu v. United States, 323 U.S.
214 (1944) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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