The Supreme Court ruled that the exclusion of SC/ST/OBC from the EWS quota is logical and is required to prevent double benefits.
In the batch of transferred cases, transfer petitions, writ petitions and the petition for special leave to appeal, the challenge is to the Constitution (One Hundred and Third Amendment) Act, 2019, whereby the parliament has amended Articles 15 and 16 of the Constitution of India by adding two new clauses viz., clause (6) to Article 15 with Explanation and clause (6) to Article 16; and thereby, the State has been empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes”. At the outset, it needs to be stated that the amendment in question does not mandate but enables reservation for EWS and prescribes a ceiling limit of ten per cent.
The issues raised before the court is that whether the 103rd 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?;
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?;
Whether the 103rd 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?;
Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be considered to be a part of the basic structure of the Constitution?;
If so, can the 103rd Constitution Amendment be said to breach the basic structure of the Constitution?
Advocate G. Mohan Gopal, appearing for the petitioners, while extensively relying on the Constituent Assembly Debates, Preamble, and Article 38 of the Constitution which enjoins the State to secure and protect “a social order in which justice, social, economic and political shall inform the institutions of the national life”, stressed that it was to ensure this social justice and the ethos of the Constitution that special provisions were envisioned under Article 15(4) and reservations in employment were provided under Article 16(4).
He argued that it was due to certain primordial practices that a section of the population was marginalized and was deprived of material resources and educational opportunities.
He submitted that the basic structure has been violated by the amendment in question which seeks to empower the privileged sections of society, who are neither socially and educationally backward nor inadequately represented.
He also submitted that the amendment in question has introduced those section of people as economically weaker who were never subjected to any discrimination, whether historically or otherwise; and were not backward, socially and educationally.
On the point of exclusion of SCs, STs and OBCs, he argued that the concept of Fraternity, as envisaged in the Constitution, informs Articles 15 and 17, giving shape to equality while prohibiting discrimination and discriminatory practices prevalent in our society. Inclusion of forward class and exclusion of disadvantaged class from the protection and benefit of reservation violate the basic structure of the Constitution.
Senior Advocate Meenakshi Arora, elucidating on the twin objectives of Equality Code enshrined under Articles 14 to 17 of the Constitution as to the formal equality and substantive equality, submitted that these provisions are to ensure that those sections of society who have been kept out of any meaningful opportunity, participation in public life and decision making, on the grounds enumerated under Article 15(1), be uplifted through positive discrimination, giving flesh and blood to the Equality Code, and essentially enabling the substantive equality.
She contended that the absence of these guardrails and safeguards in the newly created class of EWS through the amendment in question strikes at the core of the Equality Code, violating the basic structure of the Constitution.
Attorney General for India, K.K. Venugopal, posited that the 103rd Amendment does not violate the basic structure of the Constitution, rather fosters it.
He submitted that the exclusion of those classes already covered under Articles 15(4) and 16(4) from the proposed reservation did not breach the Equality Code.
He further submitted that the fifty percent limit is not a sacrosanct rule. The benefit to EWS with respect to admission in private aided or unaided educational institutions does not violate Article 14, as has been settled by the Court.
He contended that the exclusion of already covered classes does not violate Equality Code as the EWS among the SC, ST and OBC communities are already enjoying the benefit of affirmative action in their favour by way of reservations in educational institutions and public employment, seats in Legislature, etc., to attain an equal status – socially and educationally.
Justice Dinesh Maheshwari stated that the 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.
He added that the 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.
It was held by him that 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 nondiscrimination 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.
Justice Dinesh Maheshwari held that 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.
Justice Bela M. Trivedi said that no document can be perfect and no ideals can be fully achieved. But does that mean we should have no ideals? No vision? Sardar Patel had said – “But in the long run, it would be in the interest of all to forget that there is anything like majority or minority in this country; that in India there is only one community…”
She stated that our Constitution which is a living and organic document continuously shapes the lives of citizens in particular and societies in general.
“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” she added.
Justice Bela M. Trivedi observed that be it noted that 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.
She further observed that the representation of the 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 104th Amendment 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” she stated.
Justice J.B. Pardiwala stated that 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.
He observed that 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 classes is relevant for today’s conditions.
He said that reservation should not continue for an indefinite period of time so as to become a vested interest.
In the result, he held that the impugned amendment is valid and in no manner alters the basic structure of the Constitution.
The Chief Justice of India Uday Umesh Lalit and Justice S. Ravindra Bhat held that special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structure.
However they observed that the framework in which it has been introduced by the impugned amendment – by excluding backward classes – is violative of the basic structure.
The two judges said that 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.
They stated that the 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.
The two judges while dissenting with the other judges declared that 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.
In view of the decision rendered by the majority consisting of Justice Dinesh Maheshwari, Justice Bela M. Trivedi and Justice J.B. Pardiwala, the challenge raised to 103rd Amendment to the Constitution fails and the decision rendered by Justice S. Ravindra Bhat remains in minority.
Case title: Janhit Abhiyan v/s Union of India
Citation: Writ petition (civil) no. 55 of 2019