janhit abhiyan vs union of india and ors.7 november 2022 

हिन्दी मे

REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL/CIVIL APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO.  55 OF 2019

JANHIT ABHIYAN                                                                          …PETITIONER(S)

VERSUS

UNION OF INDIA                                                                         …RESPONDENT(S)

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 O  R  D  E  R

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 103^rd

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.

……….…………………….CJI.(UDAY UMESH LALIT)

………….…………………….J.(DINESH MAHESHWARI)

………….…………………….J.(S. RAVINDRA BHAT)

………….…………………….J.(BELA M. TRIVEDI)

………….…………………….J.(J.B. PARDIWALA)

NEW DELHI;

NOVEMBER 07, 2022.

REPORTABLE

IN THE SUPREME COURT OF INDIA ORIGINAL/CIVIL APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO(S). 55 OF 2019

JANHIT ABHIYAN                                                   …PETITIONER(S)

VERSUS

UNION OF INDIA                                                  …RESPONDENT(S)

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]

JUDGMENT DINESH MAHESHWARI, J.

Contents

Preliminary and Brief Outline……………………………………………………………………………………………. 3

The Referral and the Questions Formulated …………………………………………………………………… 5

Rival Submissions …………………………………………………………………………………………………………….. 7

In challenge to the amendment in question ……………………………………………………………………… 7

In part challenge to the amendment in question …………………………………………………………….. 33

In support of the amendment in question ……………………………………………………………………….. 36

Points for Determination …………………………………………………………………………………………………. 44

Relevant Constitutional Provisions ……………………………………………………………………………….. 45

Doctrine of Basic Structure and Constitutional Amendments …………………………………….. 54

Expanding Doctrine of ‘Equality’ ……………………………………………………………………………………. 85

Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality ………… 89

Economic Disabilities and Affirmative Action ……………………………………………………………….. 95

Whether Economic Criteria as Sole Basis for Affirmative Action Violates Basic

Structure …………………………………………………………………………………………………………………………. 102

EWS Reservation Not Availing to Certain Classes: Whether Violates Basic Structure

………………………………………………………………………………………………………………………………………… 125

Breach of Fifty Per Cent. Ceiling of Reservations and Basic Structure …………………….. 136

Other Factors and General Summation ……………………………………………………………………….. 146

Conclusions……………………………………………………………………………………………………………………. 152

Acknowledgments …………………………………………………………………………………………………………. 154

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, 2019^[1], 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] of citizens other than “the Scheduled Castes”^[3], “the Scheduled Tribes”^[4] and the non-creamy layer of “the Other Backward Classes”^[5]. 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 classes^[6] i.e., SCs, STs and noncreamy 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 make special provisions for the economically weaker sections of citizens, is squarely within the four corners of the Constitution of India; rather making of such provisions is necessary to achieve the Preambular goal of ‘JUSTICE, social, economic and political’ in real sense of terms. It is also asserted that there is no discrimination in relation to the classes that are excluded from EWS for the simple reason that the existing special provisions of affirmative action in their relation continue to remain in operation. As regards the breach of fifty per cent. ceiling of reservations, the contention is that the said ceiling is not inflexible or inviolable and in the context of the object sought to be achieved, ten per cent. has been provided as the maximum by way of the enabling provision.
3. With the foregoing outline, we may usefully take note of the reference made to the Constitution Bench for determination of the substantial questions of interpretation of the Constitution, as are involved in these matters and the questions formulated while commencing the hearing.

The Referral and the Questions Formulated

4. By an order dated 05.08.2020, a 3-Judge Bench of this Court took note of the issues arising in these matters and referred the same for determination by a Constitution Bench while observing, inter alia, as under: –

“…..By virtue of the impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections. It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges. Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges….”

5. Pursuant to the order aforesaid, this batch of matters has been referred to this Constitution Bench for determination of the issues arising from the challenge to the 103^rd On 08.09.2022, after perusing the issues suggested by learned counsel for the respective parties, this Court noted, amongst others, the issues suggested by the learned Attorney General for India as follows: –

“(1) Whether the 103^rd Constitution Amendment can 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)Whether the 103^rd Constitution Amendment can 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)Whether the 103^rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?

(4) Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be considered to be a part of the basic structure of the Constitution? if so, can the 103^rd Constitution Amendment be said to breach the basic structure of the Constitution?”

5.1. Having taken note of the relevant facets of the matter, this Court found that the first three issues suggested by the learned Attorney General were the main issues arising in the matter while the other issues were essentially in the nature of supplementing and substantiating the propositions emerging from the said three issues. Accordingly, this Court proceeded with the hearing with respect to the first three issues aforesaid, while leaving it open to the learned counsel appearing for the respective parties to advance their submissions touching upon other facets in aid of the said three issues.

6. We have heard learned counsel for the petitioners, the respondents, and the interveners at substantial length and have also permitted them to submit written notes on their respective submissions. The principal and material submissions advanced in these matters could be usefully summarised, while avoiding unnecessary repetition of the same line of arguments.

Rival Submissions

In challenge to the amendment in question

7. (Dr.) G. Mohan Gopal led the arguments on the side of the petitioners challenging the amendment in question and also wrapped up the submissions in rejoinder.

7.1 The learned counsel has, while extensively relying on the Constituent Assembly Debates, Preamble, and Article 38 of theConstitution which enjoins the State to secure and protect “a social order in which justice, social, economic and political shall inform the institutions of the national life”, stressed that it was to ensure this social justice and the ethos of the Constitution that special provisions were envisioned under Article 15(4) and reservations in employment were provided under Article 16(4). He argued that it was due to certain primordial practices that a section of population was marginalised and was deprived of material resources and educational opportunities. The people in the lowest strand of social hierarchy were ostracised and stigmatised from public life and were deprived of basic liberties and equality. It was to address these historical inequalities that, as a vehicle of positive discrimination, the socially oppressed sections were provided reservations and special provisions so as to give them a voice in administration, access to resources such as education and public employment. Therefore, the idea of ensuring social equality and justice was a congenital feature of the Constitution shaping its basic structure.

7.2 The learned counsel has argued that this basic structure has been violated by the amendment in question which seeks to empower the privileged sections of society, who are neither socially and educationally backward nor inadequately represented. He also submitted that the amendment in question has introduced those section of people as economically weaker who were never subjected to any discrimination, whether historically or otherwise; and were not backward, socially and educationally. The learned counsel quoted Dr. B.R. Ambedkar, Mr. V.I. Muniswamy Pillai and Mr. Sardar Nagappa, from the Constituent Assembly Debates, to support his contention that reservation should not be used by the forward class as a self-perpetuating mechanism depriving the disadvantaged. The equation of the victims of social discrimination with those responsible for their victimisation, for the purpose of conferring benefits, was a contortion of the Constitution and no less than playing a fraud on it. He relied on decisions of this Court in Devadasan v. Union of India and Anr.: (1964) 4 SCR 680, State of Kerala and Anr. v. N.M. Thomas and Ors.: (1976) 2 SCC 310^[7] and Indra Sawhney and Ors. v. Union of India and Ors.: 1992 Supp (3) SCC 217^[8] to submit that this Court has discerned reservations and special provisions as an effective affirmative action to mitigate inequalities and ensure social justice and equality of opportunity. The learned counsel has further relied on the decision of this Court in M.R. Balaji and Ors. v. State of Mysore and Ors.: 1963 Supp (1) SCR 439⁹,  which held that latent or covert transgression of the Constitution by abusing an ostensible power granted by it will amount to ‘fraud on the Constitution’.

7.3 The learned counsel has further submitted that the non obstante clause in Articles 15(6) and 16(6), while granting reservation to already privileged and adequately represented class of citizens, has vetoed the pre-requisite of being socially and educationally backward or inadequately represented, which was the kernel to philosophy of reservation. The Constitution puts forth social ‘and’ educational backwardness and not social ‘or’ educational backwardness as a criterion to determine positive discrimination in favour of a class. This foundation of social justice for historically marginalised and disadvantaged people is completely obliterated by the amendment in question, which removes that criterion. He argued that backward class included those classes from the forward class that were socially and educationally backward, hence making them eligible for benefits of reservation. He exemplified this by stating that there were numerous communities, traditionally belonging to the so-called ‘forward’ class, in several States and several of those are not professing any religion, but are recognised as OBC on the ground that they are socially and educationally backward.

7.4 On the point of exclusion of SCs, STs and OBCs, the learned counsel has argued that the concept of Fraternity, as envisaged in the Constitution, informs Articles 15 and 17, giving shape to equality while prohibiting discrimination and discriminatory practices prevalent in our society. Inclusion of forward class and exclusion of disadvantaged class from the protection and benefit of reservation violate the basic structure of the Constitution. Learned counsel has relied on the decision of this Court in Prathvi Raj Chauhan v. Union of India and Ors.: (2020) 4 SCC 727 to highlight the place and role of Fraternity in the scheme of polity and society. Further he has stated that such exclusion of SCs, STs and OBCs was primarily based on caste because it is indeed undisputed that a large chunk of population so excluded are also economically backward along with being socially and educationally backward. Hence, he would submit that the basic principle of equality forming the basic structure of the Constitution stands abrogated by excluding those who are socially and educationally backward and also are part of systemic poverty/labour under abject poverty.

7.5 The learned counsel has yet further argued that the purpose of positive discrimination was to put an end to monopoly of certain classes and create an inclusive society so as to ensure equality of opportunity to the marginalised sections. However, the amendment in question creates a perpetual monopoly by providing reservation to that section of population whose identification is imprecise and is based on their individual traits more so, when these classes have been enjoying and are still enjoying control over resources and public employment.

7.6 Lastly, the learned counsel would submit that the amendment in question is not based on economic condition, which is multi-dimensional, but on financial incapacity which is transient in nature, rewarding poor financial behaviours and is, therefore, not a reliable criterion for giving reservation. There are two wings of reservation – social and educational backwardness, which cover the people who are economically weaker but not those who are financially incapable. Economic weakness goes handin-hand with social and educational backwardness. EWS is individualcentric in contrast to Article 38(2) of the Constitution, which talks about inter-group inequalities. Thus, the learned counsel has submitted that the 103^rd Amendment deserves to be set aside, being violative of the principle of equality, which is the basic structure of the Constitution.

8. The learned senior counsel, Ms. Meenakshi Arora, elucidating on the twin objectives of Equality Code enshrined under Articles 14 to 17 of the Constitution as to the formal equality and substantive equality, has submitted that these provisions are to ensure that those sections of society who have been kept out of any meaningful opportunity, participation in public life and decision making, on the grounds enumerated under Article 15(1), be uplifted through positive discrimination, giving flesh and blood to the Equality Code, and essentially enabling the substantive equality. Emphasizing on the efficiency in services as under Article 335, she would submit that the positive discrimination has to be read alongwith other guardrails provided by the Constitution, ensuring identification of the protected group by constitutionally sanctioned bodies. The absence of these guardrails and safeguards in the newly created class of EWS through the amendment in question strikes at the core of the Equality Code, violating the basic structure of Constitution.
   • Stressing further on the argument of social and educational backwardness and inadequacy in representation being the bedrock for grant of reservations, the learned counsel has submitted that the communities, whom the amendment in question aims to protect, are duly represented in all walks of life and hence, even from the angle of adequacy in representation, they are not eligible to avail benefit of reservation under Articles 15 and 16. She has placed reliance on decisions of this Court in R. Balaji and Indra Sawhney to submit that it is social ‘and’ educational backwardness and not social ‘or’ educational backwardness that is to be considered by the legislature to grant the benefit of reservation. Furthermore, she has submitted that backwardness is sine qua non and the lynchpin for special provision or reservation; and as stated by Dr. B.R. Ambedkar, backwardness was designed as a

qualifying phrase to ensure that the ‘exception does not eat the rule’.

• Moving on and while relying on the decisions of this Court in Indra

Sawhney, N.M. Thomas, M.R. Balaji and B.K. Pavitra and Ors. v. Union of India and Ors.: (2019) 16 SCC 129, the learned counsel has submitted that the purpose of reservation was to enable the backward classes to have a level playing field with the forward class so that they can participate in public life with them on an equal basis. Also, this Court has held that no one criterion such as caste could be the sole basis for grant of reservation. In the amendment in question, the economic criteria is the sole basis for grant of reservation without considering the concept of representation; and this prescription is not only against the judicial pronouncements but also against the Preambular vision of casteless

society, hitting the basic structure of the Constitution.