Other Factors and General Summation
- There have been several suggestions during the course of arguments that while the existing reservations are class-specific, the impugned reservation is person-specific and even the eligibility factor, that is of ‘economic weakness’, is itself uncertain, fortuitous and mutable. All these submissions have only been noted to be rejected in the context of the limited permissible challenge to the amendment in question on the doctrine of basic structure. None of these submissions make out a case of violation of any such essential feature of the Constitution that leads to destroying the basic structure.
- It may, however, be observed that as per the Explanation to Article 15(6), the reservations in relation to economically weaker sections would avail to such sections/persons as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. The question as to whether any particular section or person falls in or is entitled to stand within the class of ‘economically weaker sections of citizens’ may be a question to be determined with reference to the parameters laid down and indicators taken into consideration by the State. Coupled with this, even the extent of reservation provided therein may also be a question to be determined with reference to the relevant analysis of the material data justifying a particular percentage. In other words, the question as to whether any particular classification as economically weaker section is based on relevant data and factors as also the extent of reservation for that section could be the matters of consideration as and when arising but, for these and akin grounds, the constitutional amendment, moderately expanding the enabling power of the State, cannot be questioned.
- The fact that ‘representation’ alone is not the purpose of enabling provisions of Article 16 could be directly seen from clause (4-B) of Article 16, inserted later and upheld by this Court ensuring that ceiling on reservation quota to carried forward posts does not apply to subsequent years. Interestingly, clause (5) of Article 16, protecting the operation of any law in relation to any incumbent of an office in connection with the affairs of any religious or denominational institution as regards eligibility, operates in an entirely different field but finds mention in Article 16 for being an exception to the general rule of equality of opportunity. Viewed as a whole, it is difficult to say that permissible deviation from the rule of equality in the matters of employment is having the objective of representation alone.
- Moreover, even if it be assumed that the existing provisions concerning reservation are correlated with ‘representation’, such a correlation would only remain confined to the classes availing benefit under Article 16(4); and it cannot be said that for any other deserving section or class reservation could be provided only for the purpose of representation. As repeatedly noticed, the real and substantive equality takes myriad shapes, depending on the requirements. Therefore, questioning clause (6) of Article 16 only on the ground of it being not representation-oriented, does not appear to be a sustainable argument vis-a-vis the doctrine of basic structure.
- A few other pertinent features of consideration herein may also be usefully indicated.
- As noticed, our country is and has been a participant in various International Conventions having a co-relation with the questions pertaining to economic disabilities. Kesavananda has referred to a decision rendered by Lord Denning in Corocraft v. Pan American
Airways: 1969 (1) All ER 82 that, ‘…it is the duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it.’ In R. D. Upadhyay v. State of Andhra Pradesh and Ors.: (2007) 15 SCC 337, a 3-Judge Bench affirmed the earlier decisions upholding the enforceability of International Conventions when they elucidate and effectuate the Fundamental Rights and that such conventions may also be read as part of domestic law as long as there is no inconsistency between them. Thus understood, it hardly needs elaboration that the laws (including constitutional amendments) enacted, inter alia, for giving effect to International Conventions, have to be broadly construed and cannot be struck down for askance.
- Apart from the principles relating to judicial restraint and circumspection in the matters of challenge to constitutional amendment, as stated by Khanna, J. in Kesavananda (reproduced hereinbefore), what Justice Cardozo of U.S. Supreme Court said about the judicial process in the matters of challenge to constitutionality is also instructive: –
“… The restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and directing choice within the limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social needs.”[46]
- It would also be worthwhile to quote the words of famous American jurist Thomas M. Cooley thus: –
“The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, unless those rights are secured by some constitutional provision which comes within the judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative power can be pointed out in the constitution, and the case shown to come within them.”[47]
- The above-mentioned norms of circumspection had been the guiding factors in examining the challenge to the amendment in question, with this Court being conscious that the Parliament, whilst enacting amendments to the Constitution, exercises constituent power, as distinguished from ordinary legislative power. 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.
