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Janhit Abhiyan v. Union of India

Case Comment, Publications

(Writ Petition (Civil) no. 55 of 2019)

2022 SCC Online SC 1540

FACTS

The case challenged the validity of the 103rd Constitutional Amendment. The Constitution 103rd Amendment Act of 2019 was passed by the Parliament of India on 9th January 2019. The act allowed for  10% reservation in higher educational institutions and initial recruitment in government jobs for the Economically Weaker Section (EWS) of the citizens. In other words, it made economic basis alone a criteria for reservation. It was enacted for the people who are not socially handicapped (SC, ST, OBC) but are economically handicapped. It was to be determined by factors such as the size of the land owned, annual income, etc. Article 15 and 16 of the constitution was amended by the act as Article 15(6) and 16(6) were inserted. On 12 January 2019, the President of India gave assent to the act and it was published in the official gazette on the very same day.

Article 15(6) enabled the state to make special provisions for the advancement of any economically weaker section of the citizens including reservation in educational institutions, both public and private. Article 16(6) similarly enabled the state to make special provisions for the advancement of any economically weaker section of the citizens including reservation in public sector employment.

There were more than 20 petitioners who were against the amendment act and challenged its constitutional validity. It was claimed that the act was violative of Article 14 and the basic structure doctrine which was established by the Kesavananda Bharati case. In 2019 the case was filed before the Supreme Court of India. After many hearings, on 5th August 2020, the Supreme Court realised that the case should be referred to a five judge constitutional bench.as it involved several substantial questions of law.

After a delay of more than 2 years the case was decided on 7th November 2022.

ISSUES

  1. Whether economic criteria can be the sole basis to get reservation?
  2. Whether reservation for the Economically Weaker Sections violates Article 14 and is invalid for excluding Socially and Educationally Backward groups (SEBCs) which include Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs)?
  3. Whether 50% reservation cap put by the 1992 Indra Sawhney case is violated by the 103rd Constitutional Amendment Act of 2019?
  4. Whether the government is authorised to provide reservations in private educational institutions that do not receive government aid, as provided in the Amendment Act.

CONTENTIONS

By the petitioner’s side:

  • On the basis of the judgement of the 1992 case Indra Sawhney v. Union of India, they argued that the reservation can’t be granted solely based on economic standards. Reservation is not a stream where you equate economic capacity of an individual, it is rather meant to ensure that the historical disadvantages are being taken care of. By making the economic condition a basis for reservation, the amendment act has changed the very rationale on which reservation is based upon.
  • SC/ST and OBC are excluded from this reservation category and this violates the fundamental right under article 14.
  • The act is violative of 50% cap put on reservations by the Indra Sawhney case.
  • The basic foundation of the reservation was to eliminate the social and educational disadvantages faced by specific castes in history and further to eliminate the class distinction. The act by extending the reservation to the people who did not face any such disadvantage has violated this basic foundation. It also led to another distinction based on economy.
  • The act is violative of the fundamental right to equality because the institutions which were not aided by the state (unaided private institutions) were also to provide for the reservation.

By the respondent’s side:

The respondent’s side argued in favour of the amendment act. The arguments were to establish that the amendment act does not breach the fundamental framework of the Indian Constitution but rather strengthens it.

  • They argued that poverty has been prevalent in India since independence and it is a criteria for backwardness. The amendment act has tried to solve this backwardness by providing reservation for the people affected by it and therefore the economic criteria is justifiable as a sole basis for reservation.
  • The exclusion of SC/ST and OBC is fair as they are already provided reservation under article 15(4), 15(5) and 16(4). They are already provided reservation in both higher education and public employment and therefore their exclusion in no way takes their rights away. The exclusion is meant to prevent them from gaining double advantage under both reservations.
  • The 50% cap comes with an exception that it can be breached in extraordinary circumstances. The public, particularly the general class has always been against the reservation for SC/ST and OBC and has always been claiming that there are people in the general class who are not economically well-off who must also receive the benefits of reservation. The amendment act is a way by which the parliament has agreed with the public and extended the benefits of reservation to those who are economically backward.
  • EWS reservation promotes the basic principles of the Constitution by eliminating economic disparity and providing reservation under DPSPs (article 38 and 46).
  • Reservation for the Economically weaker section is not violative of the right to equality and instead promotes it by providing fairness based on the economic conditions of the citizens of India.

HOLDING and RATIONALE

The Supreme Court has upheld the 103rd Constitution Amendment providing for 10% quota for the economically weaker sections (EWS) from unreserved categories. The beneficiaries can avail the quota for admission to central institutions and Central government jobs.

A five-judge constitution bench with Chief Justice UU Lalit and Justice S Ravindra Bhat forming the dissent opinion, while Justices Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala in favour of the reservation, in a 3-2 verdict, held that the provisions of the amendment act does not violate the Constitution of India.

As per the majority view, “reservation is an instrument of affirmative action by state so as to ensure an all inclusive approach”.  They held that the government has come out with the amendment for the development of EWS categories. It is an affirmative action by the Parliament which aims to benefit the EWS class. EWS is a category of disadvantage of its own. They are at a disadvantage compared to the people who are well off. This satisfies the reasonable classification doctrine under article 14.

As for the 50% ceiling, the Chief Justice Lalit and Justice Bhatt said that permitting the breach of 50% cap will lead to compartmentalisation. If we allow it, the right to equality will become a right to reservations. However, the majority judgement held that the limit can be breached in extraordinary situations and is not inflexible. Further they added that the 50% cap is exclusively for socially and educationally backward classes(SEBCs) and not for all types of reservation. EWS is a distinct category and cannot be included in the 50% cap.

Though the Chief Justice Lalit and Justice Bhatt considered the exclusion of SEBCs as discriminatory, the majority judgement agreed with the respondent’s argument and upheld that “the exclusion of SEBCs cannot be said as discriminatory or violative of the Constitution”. They quoted that “Just as equals cannot be treated unequally, unequals cannot be treated equally”.

Justices Trivedi and Pardiwala while upholding the validity of the amendment act also made observations with respect to the necessity to have a time-span for reservations. They said that reservations can’t go on indefinitely and needs to be re-examined.

DEFECTS


The judgement acknowledged the fact that reservation has been used for political gains from time to time. It has been stated that “these policies have occasionally resulted in unjust enrichment and are even used for political advantages and electoral gains”. Despite this recognition there has been no suggestion by the justices on how to stop this misuse. Without proper actions, these abuses can never be stopped and will continue to exist. The judgement simultaneously recognized the misuse as well as suggested that the reservation policies are essential to fulfil the goal of egalitarian India. This creates a contradiction without any suggestion of the ways to resolve it.

Also, there has been suggestion for the re-visit to the reservation policies as the society has significantly evolved since these policies were framed. But there is a lack of discussion about the evolving needs and the changes that need to be made in the reservation policies to suit the contemporary needs.



INFERENCE

The amendment has been interpreted by the Supreme Court in such a manner that it may fulfil the preambular objective of providing economic justice to all. Simultaneously, the contrasting opinion of CJI UU Lalit and J Ravindra Bhat signifies the historical essence of reservation as a redressal to those invariably discriminated against by virtue of their caste.

The act as pointed out by the dissenting justices creates another layer of poor within the poor. In history it was caste that decided the occupation of people and therefore determined the income of the people. The socially backward castes therefore were the ones who were economically disadvantaged too. Reservation has already been granted to them and now creating another class of people does not solve the problem of poverty but instead further promotes the class distinction. The amendment failed to acknowledge the intersection of economic status with caste.

The case brings out the fact that though reservation has been a part of Indian Constitution since the Independence but still it has been unable to reduce the disparities among people. It has not reduced the gap between the rich and poor and therefore the amendment is enacted to reduce it. The reservation policies were brought in the 1950s in the Indian constitution and they were according to the Indian scenario at that point of time. With the evolution of society, much has changed. The people who were disadvantaged back then may not be disadvantaged today. It is a big possibility that their ancestors have reaped off the benefits of the reservation and now their generation is both socially and economically well off. Reservation should benefit the people who are actually at disadvantage and need them. Therefore the justices observation of the re-examination of the reservation policies is much needed. Also, the suggestion that the reservation can’t go on indefinitely must be worked upon. The reservation policies must be tailored to suit the contemporary needs of Indian society.

Anchal Pansari

O.P. Jindal Global University

REFERENCES

  1. Janhit Abhiyan v. Union of India 2022 SCC OnLine SC 1540.
  2. The Constitution of India, 1950. https://lddashboard.legislative.gov.in/sites/default/files/COI…pdf.
  3. The following Act of Parliament received the assent of the President on the, (2019), https://www.scobserver.in/wp-content/uploads/2021/10/103rdAmendment.pdf (last visited Jun 20, 2024).
  4. BYJU’S Exam Prep, 103 Constitutional Amendment Act: 103rd Amendment of Constitution, BYJU’S Exam Prep (2023), https://byjusexamprep.com/upsc-exam/103-constitutional-amendment-act#toc-2 (last visited Jun 20, 2024).
  5. Editor, 50 years of the unprecedent case of Kesavananda Bharati and the “Doctrine of Basic Structure,” SCC Times (2023), https://www.scconline.com/blog/post/2023/04/24/kesavananda-bharati-vs-state-of-kerala/ (last visited Jun 20, 2024).
  6. Indira Sawhney Vs. Union of India AIR 1993, SC 477.
  7. Team Attorneylex, Janhit Abhiyan Vs. Union Of India (2022 Scc Online Sc      1540),TeamAttorneylex(2023), https://teamattorneylex.in/2023/04/13/janhit-  abhiyan-vs-union-of-india-2022-scc-online-sc-1540/ (last visited June 20, 2024).