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SUPREME COURT OF INDIA
UDAY UMESH LALIT, CJI., DINESH MAHESHWARI, S. RAVINDRA BHAT, BELA M. TRIVEDI, J.B. PARDIWALA, JJ.
Janhit Abhiyan – Appellant
Versus
Union Of India - Respondent
WRIT PETITION (CIVIL) NO. 55 OF 2019 WITH T.C.(C) No. 8/2021, W.P.(C) No. 596/2019, W.P.(C) No. 446/2019, W.P.(C) No. 427/2019, W.P. (C) No. 331/2019, W.P.(C) No. 343/2019, W.P.(C) No. 798/2019, W.P. (C) No. 732/2019, W.P. (C) No. 854/2019, T.C. (C) No. 12/2021, T.C.(C) No. 10/2021, T.C. (C) No. 9/2021, W.P.(C) No. 73/2019, W.P. (C) No. 72/2019, W.P. (C) No. 76/2019, W.P.(C) No. 80/2019, W.P. (C) No. 222/2019, W.P. (C) NO. 249/2019, W.P.(C) No. 341/2019, T.P.(C) No. 1245/2019, T.P. (C) No. 2715/2019, T.P.(C) No. 122/2020, SLP(C) No. 8699/2020, T.C.(C) No. 7/2021, T.C.(C) No. 11/2021, W.P.(C) No. 69/2019, W.P.(C) No. 122/2019, W.P. (C) No. 106/2019, W.P.(C) No. 95/2019, W.P.(C) No. 133/2019, W.P. (C) No. 178/2019, W.P.(C) No. 182/2019, W.P.(C) No. 146/2019, W.P. (C) No. 168/2019, W.P.(C) No. 212/2019, W.P.(C) No. 162/2019, W.P.(C) No. 419/2019, W.P.(C) No. 473/2020, W.P.(C) No. 493/2019
Decided on : 07-11-2022
Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala,JJ. (Majority View)
Per Dinesh Maheshwari,J.
Reservation – EWS reservation prescribing a ceiling limit of ten per cent – Constitutionality of Constitution (One Hundred and Third Amendment) Act, 2019 – 103rd Constitution Amendment cannot be said to breach basic structure of Constitution by permitting State to make special provisions, including reservation, based on economic criteria – 103rd Constitution Amendment cannot be said to breach basic structure of Constitution by permitting State to make special provisions in relation to admission to private unaided institutions – 103rd Constitution Amendment cannot be said to breach basic structure of Constitution in excluding SEBCs/OBCs/SCs/STs from scope of EWS reservation – Reservation is an instrument of affirmative action by State so as to ensure all-inclusive march towards goals of an egalitarian society while counteracting inequalities; it is an instrument not only for inclusion of socially and educationally backward classes to mainstream of society but, also for inclusion of any class or section so disadvantaged as to be answering 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 basic structure of Constitution of India – Reservation for economically weaker sections of citizens up to ten per cent. in addition to existing reservations does not result in violation of any essential feature of Constitution of India and does not cause any damage to basic structure of Constitution of India on account of breach of ceiling limit of fifty per cent because that ceiling limit itself is not inflexible and in any case, applies only to reservations envisaged by Articles 15(4), 15(5) and 16(4) of Constitution of India. (Paras 102 and 104)
Per Bela M. Trivedi,J.
Reservation – EWS reservation prescribing a ceiling limit of ten per cent – Constitutionality of Constitution (One Hundred and Third Amendment) Act, 2019 – What was envisioned by framers of Constitution, what was proposed by Constitution Bench in 1985 and what was sought to be achieved on completion of fifty years of advent of Constitution, i.e. that policy of reservation must have a time span, has still not been achieved even till this day, i.e. till completion of seventy-five years of our Independence – Age-old caste system in India was responsible for origination of reservation system in country – It was introduced to correct historical injustice faced by persons belonging to scheduled castes and scheduled tribes and other backward classes, and to provide them a level playing field to compete with persons belonging to forward classes – However, at end of seventy-five years of our independence, we need to revisit system of reservation in larger interest of society as a whole, as a step forward towards transformative constitutionalism – As per Article 334 of Constitution, provisions of Constitution relating to reservation of seats for SCs and STs in House of People and in Legislative Assemblies of States would cease to have effect on expiration of a period of eighty years from commencement of Constitution – Representation of Anglo-Indian community in House of the Parliament and in Legislative Assemblies of States by nomination, has already ceased by virtue of 104th Amendment w.e.f. 25.01.2020 – Therefore, similar time limit if prescribed, for special provisions in respect of reservations and representations provided in Articles 15 and Article 16 of Constitution, it could be a way forward leading to an egalitarian, casteless and classless society. (Paras 28 and 29)
Per J.B.Pardiwala,J.
Reservation – EWS reservation prescribing a ceiling limit of ten per cent – Constitutionality of Constitution (One Hundred and Third Amendment) Act, 2019 – 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 lies in eliminating causes that have led to social, educational and economic backwardness of weaker sections of community – This exercise of eliminating causes started immediately after Independence i.e., almost seven decades back and it still continues – Longstanding development and the spread of education have resulted in tapering gap between classes to a considerable extent – As larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from backward categories so that attention can be paid toward those classes which genuinely need help – In such circumstances, it is very much necessary to take into review method of identification and ways of determination of backward classes and also ascertain whether criteria adopted or applied for classification of backward is relevant for today’s conditions – 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)
Facts of the case:
In present batch of transferred cases, transfer petitions, writ petitions and the petition for special leave to appeal, the challenge is to Constitution (One Hundred and Third Amendment) Act, 2019, which came into effect on 14.01.2019, 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, 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”. Amendment in question does not mandate but enables reservation for EWS and prescribes a ceiling limit of ten per cent.
Findings of Court:
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 Preamble and DPSP and, inter alia, enshrined in Articles 38, 39 and 46, cannot be countenanced. This is essentially for the reason that 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 Constitution. Therefore, doctrine of basic structure cannot be invoked for laying a challenge to the 103rd Amendment.
Result : Transferred cases, transfer petitions, writ petitions and petition for special leave to appeal forming part of this batch of matters dismissed.
Key Points: - The Court held that the 103rd Amendment cannot be said to breach the basic structure by permitting economic-criteria based reservation. (!) - Excluding SEBCs/OBCs/SCs/STs from EWS reservation raises questions about equality code and is scrutinized under basic structure; majority upheld exclusion as constitutional, while one judge dissented (concurring views referenced). (!) (!) (!) - The judgement discusses the fifty percent ceiling on reservations (Indra Sawhney) and its potential to be exceeded in extraordinary situations; however, the majority did not overrule this, while one judge warns about breaching the cap. (!) (!) (!) - The decision emphasizes that reservation is an enabling, not an absolute right, and that Parliament may expand affirmative action within constitutional limits. (!) (!) - The Court acknowledges the Preamble and DPSPs as guiding principles supporting economic justice and distributive justice, including Article 46 and Articles 38, 39. (!) (!) (!) - The majority concludes that EWS reservation up to ten percent, in addition to existing reservations, does not violate the basic structure; the minority rejects this on grounds of exclusion. (!) (!) - The majority sustains reservations as a legitimate tool for inclusive growth; the dissenting opinion criticizes exclusion as undermining egalitarian goals. (!) (!) - The decision references Indra Sawhney and Nagaraj framework for "backwardness," representation, and proportional equality in evaluating reservations. (!) (!) (!) - The Court notes that Article 15(6) and 16(6) were struck down in the dissenting view for creating exclusionary criteria. (!) - The judgment underlines that the Constitution is a living document, with flexible interpretation to meet changing conditions. (!) (!)
ORDER :
These matters have been disposed of today by pronouncement of four separate judgments rendered by Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Mr. Justice S. Ravindra Bhat, for himself and on behalf of the Hon’ble the Chief Justice; Hon’ble Ms. Justice Bela M. Trivedi; and, Hon’ble Mr. Justice J.B. Pardiwala.
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 103rd Amendment to the Constitution fails and the decision rendered by Hon’ble Mr. Justice S. Ravindra Bhat remains in minority.
Consequently, the Writ Petitions and other proceedings stand disposed of.
DINESH MAHESHWARI, J.
| Contents | |||
| Preliminary and Brief Outline | |||
| The Referral and the Questions Formulated | |||
| Rival Submissions | |||
| In challenge to the amendment in question In part challenge to the amendment in question In support of the amendment in question | |||
| Points for Determination | |||
| Relevant Constitutional Provisions | |||
| Doctrine of Basic Structure and Constitutional Amendments | |||
| Expanding Doctrine of ‘Equality’ | |||
| Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality | |||
| Economic Disabilities and Affirmative Action | |||
| Whether Economic Criteria as Sole Basis for Affirmative Action Violates Basic Structure | |||
| EWS Reservation Not Availing to Certain Classes: Whether Violates Basic Structure | |||
| Breach of Fifty Per Cent. Ceiling of Reservations and Basic Structure | |||
| Other Factors and General Summation | |||
| Conclusions | |||
| Acknowledgments | |||
Preliminary and Brief Outline
1. In this 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, 20191[Hereinafter also referred to as ‘the amendment in question’ or ‘the 103rd Constitution Amendment’ or simply ‘the 103rd Amendment’.], which came into effect on 14.01.2019, 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” 2[‘EWS’, for short.] of citizens other than “the Scheduled Castes” 3[‘SC’, for short.], “the Scheduled Tribes” 4[‘ST’, for short.] and the non-creamy layer of “the Other Backward Classes” 5[‘OBC’, for short.]. 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.
2. In a very brief outline of the forthcoming discussion, it could be noticed that the challenge to the amendment in question is premised 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 classes6[‘SEBC’, for short.] i.e., SCs, STs and non-creamy layer OBCs from the benefit of these 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 the decisions of this Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution. Per contra, it is maintained on behalf of the sides opposing this challenge that the amendment in question, empowering the State to ma
(Majority View):(1) EWS reservation – 103rd Constitution Amendment cannot be said to breach basic structure of Constitution by permitting State to make special provisions, including reservation, base....
(1) When Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is law which is binding under Article 141 and to be implemented. When law is laid down....
Sub-classification within Scheduled Castes for affirmative action is constitutionally permissible if it meets the intelligible differentia test and doesn't exclude any caste from benefits, overruling....
Promotions for SC/ST candidates against unreserved vacancies require quantifiable data proving inadequacy of representation, and any related clarifications issued without such data are unconstitution....
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