Writ Petition (Civil) no. 55 of 2019

                                               2022 SCC online SC 1540

Facts:

On 14^th January 2019, the Government of India amended Articles 15 & Article 16 of the Indian Constitution and added clauses 15(6) and 16(6). Articles 15 and 16 of the Constitution give power to the state to make special provisions for socially and educationally backward classes. The added clauses will now also incorporate the special provisions for Economically weaker sections other than the backward class and the SCs and STs which are already mentioned in clauses 5&6 of the article.

The state is now empowered to make distinctive provisions by way of affirmative actions to uplift the Economically Weaker Section by granting them reservations in admissions to institutions public, private (aided & unaided), and also in government posts solely based on economic backwardness. The only exception to the applicability of this amendment was in minority institutions as mentioned in 30(1) of the Constitution. It sets a cap limit of 10 percent to be followed while giving reservations to the said section. 10% reservation to be given to economically weaker sections inter alias with reservation for socially and educationally backward classes, scheduled castes & tribes. This amendment ignited the deliberation on the constitutionality of the provisions which was given in the amendment, more than 20 petitions had been filed to question the legality of the amendment due to this uproar the Supreme Court was exhorted to take cognizance in the said issue. 

Issues Raised:

The issues that were raised against these amendments were 

1. Whether the 103^rd Constitutional Amendment is violative of the basic structure of the Constitution that was laid down by the honorable Supreme Court in the case of Kesavananda Bharti vs the State of Kerala.

2. Whether the 103^rd Constitutional Amendment is said to violate the basic structure of the Constitution by empowering the State to grant reservations in private unaided institutions.

3. Whether the 103^rd Constitutional Amendment is violative of the basic structure of the Constitution by excluding the socially and educationally backward classes, scheduled tribes, and scheduled castes from the purview of EWS reservation

4. It raises a question on whether the 50% cap limit on the reservation which was laid down by the Supreme Court of India in the case of “Indira Sawhney vs Union of India” can be considered a Basic Structure of the Constitution or not and if yes then this amendment which granted reservation for the EWS is exceeding the limit which was laid down. 

The Supreme Court after reviewing the issues which were raised by the petitioners came to a conclusion that the first three issues are the fundamental bone of contention and the later are only supplementing the first three proposition.

Contention of Parties:

The petitioner takes on the 103^rd Constitutional Amendment: 

1. The petitioner generally relies on the constituent assembly debates, preamble, and Article 38 of the Constitution which enjoins a state to secure and protect “ a social order in which justice, social, economic and political shall inform the institutions of the national life”. To ensure this social justice a special provision was envisioned in clause 4 of articles 5&6 of the Constitution. the petitioner is of the view that the fundamental reason behind the concept of reservation is to ensure social and educational equality for deprived classes of the Indian society that were barred from taking education and claiming any reputable social identity. 

2. The petitioner’s counsel has argued that the EWS reservation is for those who were never socially and educationally backward nor they are inadequately represented in any institution. The counsel has also argued that this reservation is for those who have never been subjected to any kind of discrimination in any instance of history.

3. The learned counsel also argued on the point of exclusion of Socially and Economically backward classes, Scheduled Castes, Scheduled Tribe’s from the ambit of EWS reservation is discriminatory. If solely economic backwardness is the criterion for EWS reservation then how come the people from marginalized communities do not come under the purview of EWS reservation?  It cannot be denied that the people from the pre-conceived marginalized communities could also come under the criteria that are set forth for the EWS reservation.  

4. The learned argued that one of the reasons for the reservation was to end the monopoly of certain classes over the resources and institutions of the country to ensure the representation of the marginalized communities. EWS reservation is ushering in a way to maintain the perpetual monopoly of those classes who have been benefiter’s and still are the beneficiaries of public resources. 

These were the fundamental issues that were raised by the petitioner which revolves around the question of whether the said amendment is violative of basic structure doctrine or not and whether is it unconstitutional to set the reservation provisions solely on the criterion of economic backwardness negating the historical perspective which is the kernel essence of reservation. 

Respondent arguments:

1. The respondent has argued that the exclusion of SEBCs, SCs & STs is permissible because this exclusion is not of caste but of classes who are already being benefited by the reservation.

2. The learned Attorney General has posited that the mere violation of Article 14 does not  amount to the violation of the “Basic Structure” doctrine unless and until the violation is a grave, shocking, unconscionable travesty of the quintessence of equal justice

3. The learned counsel has posited that the 50% rule is not sacrosanct.

4. Learned counsel Mr. Kanu Aggarwal has supplemented a submission of the learned Solicitor General that the amendment has its limit by incorporating a 10% cap limit for the EWS reservation

5. The respondent’s counsel has posited that the amendment is synchronizing with the constitution and preambular vision of the constitution makers by ensuring economic justice. 

To sum up the argument from the respondent side, their stand is basically to substantiate that the given reservation does not violate the basic structure doctrine just because it violated Article 14 of the Constitution and does not include the SEBCs, SCs & STs in its purview. The respondent’s side also presented an argument to prove that the 50% reservation limit that was laid down is not a hard and fast rule. 

Rational:

The Supreme Court upheld the 103^rd Amendment by a 3:2 majority. Honorable justices Maheshwari, B.M Trivedi, and Pardiwala pronounced their judgments in favor of the parliament while Chief Justice Uday Umesh Lalit and Justice R Ravindra Bhat strongly dissented from the Amendment and declared it to be Unconstitutional.

Justice Trivedi in her judgment states that “equality of opportunity would also mean fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same.” she accentuated the fact that a significant number of people from the EWS category whom this reservation is ought to be benefited are suffering from financial problems and could not meet the required level of education just because of there financial scarcity. And they are also kept aside from the benefit of reservation. She also advocated that economic backwardness could be the criterion for letting down the reservation.

Justice Maheshwari and Pardiwala both accentuated the importance of reservation as affirmative action by the state to benefit the disadvantaged section of society and they deflected from the view that social and educational backwardness could only be the grounds of reservation. Justice Maheshwari also dissented from the argument that the reservation violates the 50% reservation limit he said in his judgment that the limit was not inflexible and was subjected to extension. 

Justice J.B. Pardiwala questioned the grounds of reservation which were set by the constitutional makers he stated that those grounds are subjected to check for relevancy at this time he suggested the importance of formulating grounds for reservation.

Chief Justice Uday Umesh Lalit and Justice R Ravindra Bhat dissented from the majority judgment they declared this amendment to be unconstitutional for providing the reservation to EWS by excluding the pre-existing socially, educationally, and economically backward sections of the society. They also stated that this reservation violated the decided upper limit of 50% reservation which was laid down by the 9-judge bench of the Supreme Court in the case of “Indira Sawhney vs Union of India”. Article 16 talks about giving reservations to those who are inadequately represented and EWS reservation article 16(6) is solely based on economic backwardness. They viewed this contradiction to be violative of the bedrock principles of the Constitution.

Defects in law: 

The acceptance of new economic criteria for giving reservations and exclusion of the existing Socially and Economically Backward Classes, Scheduled Castes’ & Scheduled Tribes from the horizon of this amendment somehow violated Articles 15 and 16 of the Indian Constitution. The exclusion of the existing marginalized communities from the 10% reservation given to EWS is apparently against the fundamental philosophy of reservation. Mr Salman Khurshid a learned counsel has submitted before the honourable Court, that reservation is one of the epitome of affirmative action for the left-behind sections of society but it is not only an answer drawing examples from countries like Israel and the USA he presented that government could address in many ways to the backwardness of economically disadvantage groups other than reservation. 

The fundamental bone of contention, in this case, was how a could reservation be granted solely on the criterion of economic backwardness ousting the historically downtrodden sections of the society and negating the very convention of reservation which was envisaged by the constitutional makers. 

Inference:

The 103^rd Constitutional Amendment reserves 10% of admission and governmental Posts seats. The amendment sparked a huge round of debates within the country’s social, political, and intellectual strata. Some argue that it’s a trailblazer against considering the traditional concept of caste for giving reservation and a move towards the formation of a casteless society in India by addressing the real cause of backwardness in the modern-day globalized world. 

The opposite side views this amendment as a blatant violation of the kernel philosophy of reservation and deviating from the vision that was envisaged by the constitutional makers. They argue that excluding the existing Socially and Economically Backward Classes, Scheduled Castes’ & Scheduled Tribes from the realm of this reservation and garlanding the benefit to those who were never socially and educationally backward nor ever faced any type of social discrimination in any instance of history.

However, on 7^th November 2022, the 5 Judge Constitutional bench of The Honourable Supreme Court upheld the Constitutional validity of this amendment by a majority ratio of 3:2. According to the assenting Judges the Amendment gives blood and flesh to the preambular vision of achieving social, economic and political justice for all while the dissenting judges view this amendment as contradictory to the fundamental principles of reservation. 

It would be interesting to perceive how the socio-political and intellectual strata would react to this judgment.

References

Dinesh Maheshwari, Retrieved from Indian Kanoon: https://indiankanoon.org/doc/98959833/

Bhumika Grover, Retrieved from The Amikus Qriae: https://theamikusqriae.com/janhit-abhiyan-v-union-of-india/

(The Supreme Court November 16, 1992), Indira Sawhney & others vs Union of India, AIR 1993 SC 477; 1992 Supp 2 SCR 454. 

Kesavananda Bharti vs State of Kerala, (The Supreme Court April 24, 1973), Writ Petition (Civil) 135 of 1970

Pandey, D. J. (2023). The Constitutional law of India 60th Edition. Central Law Agency.

Krish Vikram, Retrieved from The Amikus Qriae: https://theamikusqriae.com/case-comment-janhit-abhiyan-vs-union-of-india/

Dinesh Maheshwari, Retrieved from Indian Kanoon.com, (2023, November 7), https://indiankanoon.org/doc/98959833/

NAME – MD OBAID AKRAM

INSTITUTION – UNIVERSITY OF ALLAHABAD