Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(SC) 471

SUPREME COURT OF INDIA
S.A. BOBDE, CJI., R. SUBHASH REDDY, B.R. GAVAI, JJ.
Janhit Abhiyan – Petitioner
Versus
Union of India And Others – Respondent
Writ Petition (C) No. 55, 73, 72, 76, 69, 80, 122, 106, 95, 222, 133, 178, 182, 249, 146, 168, 212, 162, 331, 341, 343, 419, 427, 446, 493, 854, 596, 732, 798 of 2019, Transfer Petition (C) No.323, 630, 539, 341, 357, 675 of 2019
Decided on : 05-08-2020

Advocates Appeared:
Mr. Aakash Kakade, Mr. Somanatha Padhan, Dr. K.S. Chauhan, Mr. Ajit Kumar Ekka, Mr. Ravi Prakash, Mr. Chand Kiran, Mr. Ajit Kumar, Mr. K.K. L. Gautam, Mr. Sanjeev Malhotra, Mr. S. Gowthaman, Mr. Prasanna S., Mr. Rahul Narayan, Mr. Yadav Narender Singh, Mr. Ashutosh Yadav, Mr. Abhishek Yadav, Mr. Roy Abraham, Mr. Himinder Lal, Dr. M.P. Raju, Mr. P.I. Jose, Mr. Rajendra Verma, Mr. Vikrant Nehra, Mr. S. S. Nehra, Mr. Gopal Sankaranarayanan, Senior Advocate Mr. Mrinal Kanwar, Advocate Mr. Senthil Jagadeesan, Mr. Sudhansu Palo, Mr. A. Subba Rao, Ms. Manju Jetley, Mr. Namit Saxena, Mr. Nirmal Kumar Ambastha, Ms. Ashmita Bisarya, Mr. Sudhanshu Chandra, Mr. M. Vijaya Bhaskar, Mr. D. Mahesh Babu, Mr. Zulfiker Ali P. S, Dr. Ashutosh Garg, Mr. Rakesh Kumar, Mr. Satya Mitra, Mrs. Anil Katiyar, Mr. P. A. Noor Muhamed, Mr. A. Mohamed Yusuff, Mr. Abdul Shukoor M., Mr. K.P. Mohamad Shareef, Ms. Giffara S., Mr. Abdul Rahiman, Mr. Sheik Moulali Basha, Mr. Shadan Farasat, Mr. Kailas Bajirao Autade, Mr. Sheetal Patil, Mr. Prashant Shantaram Chaudhari, Mr. Radha Shyam Jena, Mrs. Niranjana Singh, Ms. Shalini Kumar, Mr. Dinesh Rajbhar, Ms. Anzu. K. Varkey, Dr. Manish Singhvi, Sr.Adv. Mr. Sandeep Jha, Mr. V. K. Biju, Mr. Nishant Ramakantrao Katneshwarkar, Mr. Gaurav Sharma, Mr. Subodh S. Patil, Mrs. Anil Katiyar, Mr. Raj Bahadur Yadav, Mr. K. V. Mohan, Intervenor-in-person, Ms. Diya Kapur, Ms. Liz Mathew, Mr. Govind Manoharan, Mr. A. Karthik, Mr. R. C. Kohli, Mr. Kaleeswaram Raj, Mr. Mohammed Sadique T.A., Ms. Thulasi K.Raj, Ms. Maitreyi Hegde, Advocates.

IMPORTANT POINT
Reservation to economically weaker sections of citizens – Such questions do constitute substantial questions of law to be considered by a Bench of five Judges.

Headnote:
Constitution of India – Articles 15(6) and 16(6) read with Article 145(3) – Supreme Court Rules, 2013 – Order XXXVIII Rule 1(1) – Reservation to economically weaker sections of citizens – Constitutional validity of – By virtue of impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which empower State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections – It is case of petitioners that very amendments run contrary to constitutional scheme and no segment of available seats/posts can be reserved only on the basis of economic criterion – Such questions do constitute substantial questions of law to be considered by a Bench of five Judges – Whether impugned Amendment Act violates basic structure of Constitution, by applying tests of ‘width’ and ‘identity’ with reference to equality provisions of Constitution, is a matter which constitutes substantial question of law within meaning of given provisions – In plea of ceiling of 50% for affirmative action, it is case of respondent-Union of India that though ordinarily 50% is rule but same will not prevent to amend Constitution itself in view of existing special circumstances to uplift members of society belonging to economically weaker sections – Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges as per Article 145(3) of Constitution read with Order XXXVIII Rule 1(1) of Supreme Court of Rules, 2013 – Matter referred to CJI. (Paras 16 and 18)
Facts of the case:
By virtue of Article 15(6) of the Constitution, States are empowered to make a special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) and to make a special provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, in addition to existing reservations and subject to a maximum of ten per cent of the total seats in each category. Similarly, Article 16(6) empowers the State to make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to existing reservation and subject to a maximum of ten per cent of the posts in each category. Impugned constitutional amendments are questioned in this batch of cases mainly on the ground that the impugned amendments are ultra vires as they alter the basic structure of Constitution of India.
Findings of Court:
By virtue of the impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections. It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges.
Result : Matter referred to Larger Bench.

ORDER

1. In this batch of writ petitions, petitioners have challenged the constitutional validity of, The Constitution (One Hundred and Third Amendment) Act, 2019 [for short, 'the Amendment Act']. By the aforesaid amendment, Articles 15 and 16 of the Constitution of India were amended by inserting clause (6), after clause (5), in Article 15 and by inserting clause (6) after clause (5), in Article 16. The newly inserted Articles 15(6) and 16(6) read as under:

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent, of the total seats in each category.

Explanation.-For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

16(6). Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent, of the posts in each category."

2. By virtue of Article 15(6) of the Constitution, States are empowered to make a special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) and to make a special provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, in addition to existing reservations and subject to a maximum of ten per cent of the total seats in each category. Similarly, Article 16(6) empowers the State to make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.

3. The above said impugned constitutional amendments are questioned in this batch of cases mainly on the ground that the impugned amendments are ultra vires as they alter the basic structure of the Constitution of India. Further, it is also the case of the petitioners that the impugned amendments run contrary to the dictum in the majority judgment, in the case of Indra Sawhney & Ors. vs. Union of India & Ors, (1992) Supp3 SCC 217. It is the case of the petitioners that a backward class cannot be determined only and exclusively with reference to economic criterion. Petitioners have also pleaded that the reservation of ten per cent of vacancies, in available vacancies/posts, in open competition on the basis of economic criterion will exclude all other classes of those above the demarcating line of such ten per cent seats. It is further pleaded that reservation in unaided institutions violates the fundamental right under Article 19(1)(g) of the Constitution. It is their case that the State cannot insist on private educational institutions which receive no aid from the State to implement the State policy on reservation for granting admission on l

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2020 Supreme(SC) 471

IMPORTANT POINTReservation to economically weaker sections of citizens – Such questions do constitute substantial questions of law to be considered by a Bench of five Judges.

Cases Referred (7)

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IMPORTANT POINT
Reservation to economically weaker sections of citizens – Such questions do constitute substantial questions of law to be considered by a Bench of five Judges.