| Headnote |
Constitution (One Hundred and Third Amendment) Act, 2019 – Challenge to – Vide said amendment, Arts. 15 and 16 of the Constitution were amended by adding two new clauses viz., clause (6) to Art.15 with Explanation and clause (6) to Art. 16; and thereby, the State was empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes” – The amendment did not mandate but enabled reservation for EWS and prescribed a ceiling limit of ten per cent – Challenge to said amendment 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 classes i.e., SCs, STs and non-creamy layer OBCs from the benefit of the 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 decisions of Supreme Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution – Constitution (One Hundred and Third Amendment) Act, 2019 – Validity of – Held (per 3:2 majority) (Majority opinion contained in separate judgments rendered by Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala, JJ.) : Valid – Held (per Dinesh Maheshwari, J.): 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 – In this background, reservation structured singularly on economic criteria does not violate any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution – Exclusion of the classes covered by Arts. 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 non-discrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution – Reservation for economically weaker sections of citizens up to ten per cent in addition to the existing reservations does not result in violation of any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution on account of breach of the ceiling limit of fifty per cent because, that ceiling limit itself is not inflexible and in any case, applies only to reservations envisaged by Arts. 15(4), 15(5) and 16(4) of the Constitution – 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 or by permitting the State to make special provisions in relation to admission to private unaided institutions or in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation – Held (per Bela M. Trivedi, J.) (Concurring with Dinesh Maheshwari, J.): The impugned amendment enabling the State to make special provisions for the “economically weaker sections” of the citizens other than the scheduled castes/schedules tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for advancement of the economically weaker sections of the citizens – Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and cannot be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Art. 14 – Just as equals cannot be treated unequally, unequals also cannot be treated equally – Treating unequals as equals would as well offend the doctrine of equality enshrined in Arts. 14 and 16 of the Constitution – The impugned amendment creates a separate class of “economically weaker sections of the citizens” from the general/unreserved class, without affecting the special rights of reservations provided to the Scheduled Caste/Scheduled Tribe and backward class of citizens covered under Art. 15(4), 15(5) and 16(4) – Therefore, their exclusion from the newly created class for the benefit of the “economically weaker sections of the citizens” in the impugned amendment cannot be said to be discriminatory or violative of the equality code – Such amendment could certainly be not termed as shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice – The limitations- substantive or procedural - imposed on the exercise of constituent power of the State under Art.368 could not be said by any stretch of imagination, to have been disregarded by the Parliament – Neither the procedural limitation i.e. the mode of exercise of the amending power nor the substantive limitation i.e. the restricted field has been disregarded, which otherwise would invalidate the impugned amendment – What is visualised in the Preamble and what is permissible both in Part-III and Part-IV of the Constitution cannot be said to be violative of the basic structure or basic feature of the Constitution – In absence of any obliteration of any of the constitutional provisions or any alteration or destruction in the existing structure of equality code or in the basic structure of the Constitution, neither the width test nor the identity test as propounded in Kesavananda case can be said to have been violated in the impugned Amendment – Accordingly, the challenge to the constitutional validity of the 103rd Amendment fails, and the validity thereof is upheld – However, there is a need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism – If a time limit is prescribed, for the special provisions in respect of the reservations and representations provided in Arts. 15 and 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society – Held (per J.B. Pardiwala, J.) (Concurring with Dinesh Maheshwari, J.): Reservation is not an end but a means – a means to secure social and economic justice – The longstanding development and the spread of education have resulted in tapering the gap between the classes to a considerable extent – As larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories so that the attention can be paid toward those classes which genuinely need help – In such circumstances, 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 is relevant for today’s conditions – Reservation should not continue for an indefinite period of time so as to become a vested interest – The impugned amendment is valid and in no manner alters the basic structure of the Constitution – Held (per S. Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself) (Minority opinion): The States’ compelling interest to fulfil the objectives set out in the Directive Principles, through special provisions on the basis of economic criteria, is legitimate – That reservation or special provisions have so far been provided in favour of historically disadvantaged communities, cannot be the basis for contending that other disadvantaged groups who have not been able to progress due to the ill effects of abject poverty, should remain so and the special provisions should not be made by way of affirmative action or even reservation on their behalf – Therefore, special provisions based on objective economic criteria (for the purpose of Art.15), is per se not violative of the basic structure – However, the framework in which it has been introduced by the impugned amendment – by excluding backward classes -– is violative of the basic structure – The impugned amendment and the classification it creates, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination – Insertion of Art.15(6) and 16(6) is struck down, and is held to be violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution – ss. 2 and 3 of the Constitution (One Hundred and Third Amendment) Act, 2019 which inserted clause (6) in Art.15 and clause (6) in Art.16, respectively, are unconstitutional and void on the ground that they are violative of the basic structure of the Constitution – Constitution of India – Arts. 15 and 16.Doctrines/Principles – Doctrine of basic structure – Vide Constitution (One Hundred and Third Amendment) Act, 2019, Arts. 15 and 16 of the Constitution was amended by adding two new clauses viz., clause (6) to Art. 15 with Explanation and clause (6) to Art. 16; and thereby, the State was empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes” – The amendment did not mandate but enabled reservation for EWS and prescribed a ceiling limit of ten per cent – Whether the doctrine of basic structure could be invoked for laying a challenge to the 103rd Amendment – Held (per Dinesh Maheshwari, J.): No – 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 the Preamble and DPSP and, inter alia, enshrined in Articles 38, 39 and 46 of the Constitution cannot be countenanced – Provisions contained in Arts. 15 and 16 of the Constitution, 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 the Constitution – Constitution (One Hundred and Third Amendment) Act, 2019.Constitution of India – Art. 368 – Power to amend the Constitution availing under Art.368 – Held (Per Dinesh Maheshwari, J.): Is recognized as a constituent power and is subject to various safeguards intrinsic to Art.368, including the procedural safeguards.Constitution of India – Art. 368 – Doctrine of Basic Structure and Constitutional Amendments – Discussed – Held (Per Dinesh Maheshwari, J.): The power to amend the Constitution essentially vests with the Parliament and when a high threshold and other procedural safeguards are provided in Art. 368, it would not be correct to assume that every amendment to the Constitution could be challenged by theoretical reference to the basic structure doctrine – As exposited in Kesavananda case, the amending power can even be used by the Parliament to reshape the Constitution in order to fulfil the obligation imposed on the State, subject, of course, to the defined limits of not damaging the basic structure of the Constitution – Again, as put in Kesavananda case, judicial review of constitutional amendment is a matter of great circumspection for the judiciary where the Courts cannot be oblivious of the practical needs of the Government and door has to be left open even for ‘trial and error’, subject, again, to the limitations of not damaging the identity of the Constitution – The expressions “basic features” and “basic structure” convey different meaning, even though many times they have been used interchangeably – Basic structure of the Constitution is the sum total of its essential features – As to when abrogation of any particular essential feature would lead to damaging the basic structure of Constitution would depend upon the nature of that feature as also the nature of amendment – As regards Part-III of the Constitution, every case of amendment of Fundamental Rights may not necessarily result in damaging or destroying the basic structure – The issue would always be as to whether what is sought to be withdrawn or altered is an inviolable part of the basic structure – Mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice – If any constitutional amendment moderately abridges or alters the equality principles, it cannot be said to be a violation of the basic structure.Doctrines / Principles – Doctrine of equality – Reasonable classification – Discussed – Held (Per Dinesh Maheshwari, J.): Equals must be treated equally while unequals need to be treated differently – A classification to be valid must necessarily satisfy two tests: first, the distinguishing rationale should be based on a just objective and secondly, the choice of differentiating one set of persons from another should have a reasonable nexus to the object sought to be achieved – However, a valid classification does not require mathematical niceties and perfect equality; nor does it require identity of treatment – If there is similarity or uniformity within a group, the law will not be condemned as discriminatory, even though due to some fortuitous circumstances arising out of a particular situation, some included in the class get an advantage over others left out, so long as they are not singled out for special treatment – In spite of certain indefiniteness in the expression ‘equality’, when the same is sought to be applied to a particular case or class of cases in the complex conditions of a modern society, there is no denying the fact that the general principle of ‘equality’ forms the basis of a Democratic Government – Democracy – Constitution of India – Arts. 14 to 18.Reservation – Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality – Affirmative action by way of compensatory discrimination – Held (Per Dinesh Maheshwari, J.): In a multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities, wherever existing and in whatever form existing – Hence, the State is tasked with affirmative action – And, one duly recognised form of affirmative action is by way of compensatory discrimination, which has the preliminary goal of curbing discrimination and the ultimate goal of its eradication so as to reach the destination of real and substantive equality – This has led to what is known as reservation and quota system in State activities – The ‘doctrine of equality’, as collectively enshrined in Arts.14 to 18, happens to be the principal basis for the creation of a reasonable classification whereunder ‘affirmative action’, be it legislative or executive, is authorised to be undertaken – The constitutional Courts too, precedent by precedent, have constructively contributed to evolution of what may be termed as ‘reservation jurisprudence’ – Reservation jurisprudence – Constitution of India – Arts. 14 to 18. Reservation – For economically weaker sections – Economic Disabilities and Affirmative Action – Held (Per Dinesh Maheshwari, J.): The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities – Poverty is not merely a state of stagnation but is a point of regression – Providing for affirmative action in relation to one particular segment or class may operate constructively in the direction of meeting with and removing the inequalities faced by that segment or class but, if another segment of society suffers from inequalities because of one particular dominating factor like that of poverty, the said segment could not be denied of the State support by way of affirmative action of reservation only because of the fact that that segment is otherwise not suffering from other disadvantages – In the State’s efforts of ensuring all-inclusive socio-economic justice, there cannot be competition of claims for affirmative action based on disadvantages in the manner that one disadvantaged section would seek denial of affirmative action for another disadvantaged section – Justice – Socio-economic justice.Doctrines /Principles – Principle of “Distributive Justice” – Discussed – Mandate of the Constitution – Held (Per Dinesh Maheshwari, J.): Principle of “Distributive Justice” is a bedrock of the provisions like Art. 46 as also Arts. 38 and 39 of the Constitution – The mandate of the Constitution to the State is to administer distributive justice; and in the law-making process, the concept of distributive justice connotes, inter alia, the removal of economic inequalities – There could be different methods of distributive justice – The philosophy of distributive justice is of wide amplitude which, inter alia, reaches to the requirements of removing economic inequalities; and then, it is not confined to one class or a few classes of the disadvantaged citizens – The wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income as also providing adequate means of livelihood to the citizens – In this commitment, leaving one class of citizens to struggle because of inequalities in income and want of adequate means of livelihood may not serve the ultimate goal of securing all-inclusive socioeconomic justice – Constitution of India – Art. 46, 38 and 39 – Words and Phrases – “Distributive Justice”.Constitution of India – Doctrine of Basic Structure and Constitutional Amendments – Held (Per Dinesh Maheshwari, J.): There is no, and there cannot be any, cut-and-dried formula or a theorem which could supply a ready-made answer to the question as to whether a particular amendment to the Constitution violates or affects the basic structure – The nature of amendment and the feature/s of the Constitution sought to be touched, altered, modulated, or changed by the amendment would be the material factors for an appropriate determination of the question – Doctrine of basic structure cannot be readily applied to every constitutional amendment – Supreme Court has applied the same only against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution, like direct abrogation of the features of judicial review (Kesavananda, Minerva Mills and P. Sambhamurthy cases); free and fair elections (Indira Nehru Gandhi case); plenary jurisdiction of constitutional Courts (L. Chandra Kumar case); and independence of judiciary (NJAC Judgment case) – Most of the other attempts to question the constitutional amendments have met with disapproval of the Court even when there had been departure from the existing constitutional provisions and scheme. Constitution of India – Interplay of amending powers of the Parliament and judicial review by the Constitutional Court over such exercise of amending powers – Reason for minimal interference by Supreme Court in the constitutional amendments – Held (Per Dinesh Maheshwari, J.): In our constitutional set-up of parliamentary democracy, even when the power of judicial review is an essential feature and thereby an immutable part of the basic structure of the Constitution, the power to amend the Constitution, vested in the Parliament in terms of Art.368, is equally an inherent part of the basic structure of the Constitution – Both these powers, of amending the Constitution (by Parliament) and of judicial review (by Constitutional Court) are subject to their own limitations. Reservation – Compensatory discrimination – Exclusion of Socially and Educationally Backward Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled Castes (SCs)/ Scheduled Tribes (STs) from Economically Weaker Sections (EWS) reservation – Held (Per Dinesh Maheshwari, J.): Compensatory discrimination, wherever applied, is exclusionary in character and could acquire its worth and substance only by way of exclusion of others – Such differentiation cannot be said to be legally impermissible; rather it is inevitable – Exclusion of Socially and Educationally Backward Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled Castes (SCs)/ Scheduled Tribes (STs) from Economically Weaker Sections (EWS) reservation is compensatory discrimination of the same species as is exclusion of general EWS from SEBCs/OBCs/ SCs/STs reservation. Reservation – Reservation by affirmative action – Held (Per Dinesh Maheshwari, J.): Economic backwardness of citizens can also be the sole ground for providing reservation by affirmative action.Equality – Indian constitutional jurisprudence – Equality clause in the Constitution – Held (Per Dinesh Maheshwari, J.): Guarantee of equality is substantive and not a mere formalistic requirement – Equality is at the nucleus of the unified goals of social and economic justice. Reservation – Exception to the general rule of equality – Held (Per Dinesh Maheshwari, J.): For the socio-economic structure which the law in our democracy seeks to build up, the requirements of real and substantive equality call for affirmative action – Reservation is recognised as one such affirmative action, which is permissible under the Constitution; and its operation is defined by a large number of decisions of this Court, running up to the detailed expositions in Dr. Tishri Patil case – However, reservation is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated.Constitution of India – Art.46 – Phraseology of Art. 46 – Expression “other weaker sections” in Art. 46 – Meaning of – Held (Per Dinesh Maheshwari, J.): The broader expression “other weaker sections” in Art. 46 is disjointed from the particular weaker sections (Scheduled Castes and Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs – It cannot be said that the expression “other weaker sections” is not to be given widest possible meaning or that this expression refers only to those weaker sections who are similarly circumstanced to SCs and STs – Reservation. Constitution of India – Amendment to – Scope for judicial review –Held (per Bela Trivedi, J.): Any amendment made by the Parliament is open to judicial review and is liable to be interfered with by the Court on the ground that it affects one or the other basic feature of the Constitution.Constitution of India – Amendment to – Challenge to, on ground of being discriminatory – Held (per Bela Trivedi, J.): A Constitutional amendment cannot be struck down as discriminatory if the state of facts are reasonably conceived to justify it.Constitution of India – Interpretation of – Distinction from interpretation of statutes – Held (per J.B. Pardiwala, J.): If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction – The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State, dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes. Constitution of India – Amendment of – Scope and limitations – Held (per J.B. Pardiwala, J.): Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of Basic Structure and lack of legislative competence – If an amendment is to be struck down under the ‘basic structure’ formulation, the central principle of these inter-related provisions should be at threat – A mere violation of one of the enabling provisions would not be of much consequence under the doctrine of Basic Structure as long as such violation does not infringe upon the central thesis of equality – Redress for marginal encroachment cannot be found under the ‘Basic Structure Doctrine’ – Doctrines/ Principles – Doctrine of ‘Basic Structure’.Constitution (One Hundred and Third Amendment) Act, 2019 – Challenge to – Vide said amendment, Arts. 15 and 16 of the Constitution was amended by adding two new clauses viz., clause (6) to Art. 15 with Explanation and clause (6) to Art. 16; and thereby, the State was empowered, inter alia, to provide for a maximum of ten per cent reservation for “the economically weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes” – Held (per J.B. Pardiwala, J.): The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation – It may be perceived as a first step in the process of doing away with caste-based reservation. Doctrines/ Principles – Doctrine of basic structure – Enabling provision – Effect of – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): It is inaccurate to say that provisions that enable, exercise of power, would not violate the basic structure of the Constitution – The court’s inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted – Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. Constitution of India – Judicial review of constitutional amendments – Scope – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): Appropriate test or standard of judicial review of constitutional amendments is not the same as in the case of ordinary laws – In constitutional amendment judicial review, the court would consider the history of the provision amended, or the way the new provision impacts the identity, or character, or nature of the Constitution.Constitution of India – Fraternity – Relevance of – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): People cannot be assured of Justice, Liberty or Equality, unless Fraternity in one form or another, to some degree, is felt by individuals at each level of our social order, and economic system – Weakening fraternity therefore undermines justice, liberty, and equality – The value of fraternity is as much a part of the equality code, and its facets – equality of opportunity, the principle of non-discrimination and the non-exclusionary principle, as it inextricably binds them with the concepts of liberty and freedom. Words and Phrases – “basic features” and “basic structure” – Meaning of – Held (per Dinesh Maheshwari, J.): Basic structure of the Constitution is the sum total of its essential features.Words and Phrases – Words “other than” in Arts. 15(6) and 16(6) of the Constitution – If to be read as “in addition to”, so as to include SCs/STs/OBCs within Economically Weaker Sections (EWS) – Held (per Dinesh Maheshwari, J.): The suggested construction is plainly against the direct meaning of the exclusionary expression “other than” as employed in, and for the purpose of, the said Arts. 15(6) and 16(6) – Constitution of India – Arts. 15(6) and 16(6). Words and Phrases – “compensatory discrimination” and “reservation jurisprudence” – Discussed (per Dinesh Maheshwari, J.). Words and Phrases – “economically weaker sections of citizens” – Meaning of – Discussed (per Dinesh Maheshwari, J.). Equality – Real and substantive equality – Economic justice vis-à-vis social justice – Discussed (per Dinesh Maheshwari, J.). |
