SC on Validity of 103rd Amendment- 2022

JANHIT ABHIYAN      v.     UNION OF INDIA       [SC  2022]

These matters have been disposed of by pronouncement of four separate judgments. In view of the decision rendered by the majority, the challenge raised to 103^rd Amendment to the Constitution fails.

Judgment by Dinesh Maheshwari, J.

Points for Determination

Three major issues to be answered in these matters by this Bench have been noticed at the outset. In order to answer those issues and in view of the variety of submissions urged as also the subject-matter, following principal points arise for determination:

(a) As to whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?

(b) As to whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically weaker sections violates the Equality Code and thereby, the basic structure doctrine?

(c) As to whether reservation for economically weaker sections of citizens up to ten per cent in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty per cent.?

All these points are essentially structured on three important components namely, (i) the general rule of equality enshrined in Article 14 of the Constitution; (ii) the reservations enabled in Articles 15 and 16 as exception to the general rule of equality; and (iii) the doctrine of basic structure that defines and limits the power of the Parliament to amend the Constitution.

Reasons for decision

…. having examined the permissible limits of affirmative action in light of the possible harm of preferential treatment qua other innocent class of competitors, i.e., general merit candidates, this Court has expressed the desirability of fifty per cent. as the ceiling limit for reservation in education and public employment but, … all such observations are required to be read essentially in the context of the reservation obtaining under Articles 15(4), 15(5) and 16(4) or other areas of affirmative action like that in relation to local self-government and cannot be overstretched to the reservation provided for entirely different class, consisting of the economically weaker sections.

Moreover, as noticed, this ceiling limit, though held attached to the constitutional requirements, has not been held to be inflexible and inviolable for all times to come... reservation by affirmative action is not having trappings of any such essential feature of the Constitution, collectively enumerated by Kesavananda and successive decisions, that its modulation with reference to any particular compelling reason or requirement could damage the basic structure of the Constitution.

In another view of the matter, the prescription of ceiling limit of fifty per cent., being apparently for the benefit of general merit candidates, does not provide any justified cause to the candidates standing in the bracket of already available reservation to raise any grievance about extra ten per cent reservation for the benefit of another section of society in need of affirmative action. In any case, there is no question of violation of any such basic feature of the Constitution that the entire structure of equality of opportunity in Article 16 would collapse by this EWS reservation.

Same as that the Parliament is not at liberty to destroy the basic structure of the Constitution, the Constitutional Court is also not at liberty to declare constitutional amendments void because of their perceived injustice or impolicy or where they appear to the Court to be violating fundamental principles of governance, unless such principles are placed beyond legislative encroachment by the Constitution itself. As noticed from Kesavananda, the power to amend the Constitution can be used to reshape the Constitution to fulfil the obligation imposed on the State.

Starting from the insertion of clause (4) to Article 15 by the Constitution (First Amendment) Act, 1951; moving on to the insertion of clause (4-A) to Article 16 by the Constitution (Seventy-seventh Amendment) Act, 1995 to the insertion of clause (4-B) to Article 16 by the Constitution (Eighty-first Amendment) Act, 2000 and further amendment of the said clause (4-A) by the Constitution (Eighty-fifth Amendment) Act, 2001; yet further with the insertion of clause (5) to Article 15 by the Constitution (Ninety-third Amendment) Act, 2005; and lately with insertion of Articles 366(26-C) and 342-A by the Constitution (One Hundred and Second Amendment) Act, 2018, the Parliament has indeed brought about certain modulations, within the framework of the Constitution of India, to cater to the requirements of the citizenry with real and substantive justice in view. In the same vein, if the Parliament has considered it fit to make provisions in furtherance of the objectives of socio-economic justice by the amendment in question for economically weaker sections, the amendment cannot be condemned as being violative of any of the basic features of the Constitution and thereby damaging the basic structure.

In the ultimate analysis, it is beyond doubt that 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, cannot be countenanced. This is essentially for the reason that the 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 the Constitution. Therefore, the doctrine of basic structure cannot be invoked for laying a challenge to the 103rd Amendment.

Conclusions

For what has been discussed and held hereinabove, the points formulated in paragraph 31 are answered as follows: -

1. a) 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 of India and does not cause any damage to the basic structure of the Constitution of India.
2. b) Exclusion of the classes covered by Articles 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 of India.
3. c) 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 of India and does not cause any damage to the basic structure of the Constitution of India 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 the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.

Accordingly …. answers to the issues formulated in these matters are as follows:

1) 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.

2) The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions.

3) The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation.

Judgment by Bela M. Trivedi, J.

As well settled, it must be presumed that the legislature understands and appreciates the needs of its own people. Its laws are directed to the problems made manifest by experience, and its discriminations are based on adequate norms…  In the instant case, the Legislature being aware of the exclusion of economically weaker sections of citizens from having the benefits of reservations provided to the SCs/STs and SEBCs citizens in Clauses(4) and (5) of Article 15 and Clause(4) of Article 16, has come out with the impugned amendment empowering the State to make special provision for the advancement of the “economically weaker sections” of citizens other than the classes mentioned in Clauses(4) and (5) of Article 15 and further to make special provision for the reservation of appointments or posts in favour of the economically weaker sections of the citizens other than the classes mentioned in Clause(4) of Article 16.

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 the 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 could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14.

As laid down by this Court, 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 Articles 14 and 16 of the Constitution.

The Scheduled Castes/Scheduled Tribes and the backward class for whom the special provisions have already been provided in Article 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category. They cannot be treated at par with the citizens belonging to the general or unreserved category. 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 Article 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 sum and substance is that the limitations – substantive or procedural –imposed on the exercise of constituent power of the State under Article 368 could not be said by any stretch of imagination, to have been disregarded by the Parliament…. What is visualised in the Preamble and what is permissible both in Part-III and Part-IV of the Constitution could not 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 and in absence of 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 could 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

What was envisioned by the framers of the Constitution…. i.e. that the policy of reservation must have a time span, has still not been achieved even till this day, i.e. till the completion of seventy-five years of our Independence….. It was introduced to correct the historical injustice faced by the persons belonging to the scheduled castes and scheduled tribes and other backward classes, and to provide them a level playing field to compete with the persons belonging to the forward classes. However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.

The representation of Anglo-Indian community in the House of the Parliament and in the Legislative Assemblies of the States by nomination, has already ceased by virtue of the 104^th Amendment w.e.f. 25.01.2020. Therefore, similar time limit if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society.