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

101. 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 103^rd Amendment. In this view of the matter, the other contentions and submissions need not be dilated herein.

Conclusions

102. For what has been discussed and held hereinabove, the points formulated in paragraph 31 are answered as follows: –
     1. 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. 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 nondiscrimination 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. 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.
103. Not much of the contentions have been urged in relation to the impact of the amendment in question on admissions to private unaided institutions. However, it could at once be clarified that what has been observed hereinabove in relation to the principal part of challenge to the amendment in question, read with the decision of this Court in Pramati Trust, the answer to the issue framed in that regard would also be against the challenge.
104. Accordingly, and in view of the above, the answers to the issues formulated in these matters are as follows:
     1. The 103^rd 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 103^rd 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.         The 103^rd 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.
105. Consequently, the transferred cases, transfer petitions, writ petitions and the petition for special leave to appeal forming the part of this batch of matters are dismissed.

 Acknowledgments

106. While closing on this reference, sincere thanks and compliments deserve to be placed on record for the learned counsel for the respective parties, their associates, and their researchers as also all the constructive contributors, whose erudite and scholarly presentation of respective viewpoints has rendered invaluable assistance to this Court in shaping the formulations herein.

………….…………………….J.

                                                                             (DINESH MAHESHWARI)

NEW DELHI;

NOVEMBER   07,2022.

                       REPORTABLE

         IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) No. 55 of 2019

JANHIT ABHIYAN                                       …..  APPELLANT 

                                               VERSUS

UNION OF INDIA                                                               …. RESPONDENT

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

J U D G M E N T BELA M. TRIVEDI, J.

1. I have had the benefit of perusing the opinion of my learned Brother Dinesh Maheshwari, J. and I am in respectful agreement with him. However, having

regard to the importance of the constitutional issues involved, I deem it appropriate to pen down my few views, in addition to his opinion.

2. For the sake of brevity, the divergent and irreconcilable submissions made by the Learned Counsels for the parties and the propositions of law laid down by this Court from time to time on the issues involved, are not repeated, the same having already been narrated in the opinion of my learned Brother.
3. Since the advent of the Constitution, there is a constant churning process going on to keep alive the spirit of its Preamble and to achieve the goal of establishing a Welfare State, adhering to the inherent elements of the Constitutional morality and Constitutional legality. As a result thereof about 105 amendments have been made so far, in the Constitution. We have been called upon to examine the constitutional validity of the Constitution (One hundred and third Amendment) Act, 2019.
4. For ready reference, the impugned 103^rd Amendment along with the Statement of Objects and Reasons is reproduced:-

“MINISTRY OF LAW AND JUSTICE

(Legislative Department)

New Delhi, the 12th January, 2019/Pausha 22, 1940 (Saka)

The following Act of Parliament received the assent of the President on the 12th January, 2019, and is hereby published for general information:—

THE CONSTITUTION (ONE HUNDRED AND THIRD

AMENDMENT) ACT, 2019

[12th January, 2019.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Sixty-ninth Year of the

Republic of India as follows:—

Short title and commencement.

1. (1) This Act may be called the Constitution (One Hundred and Third Amendment) Act, 2019.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Amendment of article 15.

2. In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

• any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
• any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Explanation.—For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’.

Amendment of article 16.

3. In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.”.

————

DR . G. NARAYANA RAJU,

Secretary to the Govt. of India.”

“STATEMENT OF OBJECTS AND REASONS

At present, the economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under clauses (4) and (5) of article 15 and clause (4) of article 16 are generally unavailable to them unless they meet the specific criteria of social and educational backwardness.

2. The directive principles of State policy contained in article 46 of the Constitution enjoins that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

3. Vide the Constitution (Ninety-third Amendment) Act, 2005, clause (5) was inserted in article 15 of the Constitution which enables the State to make special provision for the advancement of any socially and educationally backward classes of citizens, or for the Scheduled Castes or the Scheduled Tribes, in relation to their admission in higher educational institutions. Similarly, clause (4) of article 16 of the Constitution enables the State to make special provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

4. However, economically weaker sections of citizens were not eligible for the benefit of reservation. With a view to fulfil the mandate of article 46, and to ensure that economically weaker sections of citizens to get a fair chance of receiving higher education and participation in employment in the services of the State, it has been decided to amend the Constitution of India.

5. Accordingly, the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 provides for reservation for the economically weaker sections of society in higher educational institutions, including private institutions whether aided or unaided by the State other than the minority educational institutions referred to in article 30 of the constitution and also provides for reservation for them in posts in initial appointment in services under the State.

6. The Bill seeks to achieve the above objects.

NEW DELHI;

The 7th January, 2019.  THAAWARCHAND GEHLOT”

5. The legal and constitutional history of India depicted through the erudite, scholarly and authoritative opinions pronounced by this Court in the past, has always been very educative and interesting. The wide spectrum and perspectives of the contours of the Constitution of India laid down therein, have actually worked at the fulcrum and have guided us as a laser beam in the interpretation of the Constitutional provisions. The sole fountainhead of the constituent power conferred upon the Parliament to amend the provisions of the Constitution is Article 368 thereof. It is very well-established proposition of law that it is the Constitution and not the constituent power which is supreme. The Constitution which reflects the hopes and aspirations of people, also provides for the framework of the different organs of the State viz. the Executive, the Legislature and the Judiciary. The Judiciary is entrusted with

the responsibility of upholding the supremacy of the Constitution. That does not mean that such power of judicial review makes the judiciary supreme. The Constitution itself has created a system of checks and balances by which the powers are so distributed that none of the three organs it sets up, can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them.^[48]   Yet the power of judicial review is provided expressly in our Constitution by means of Articles 226 and 32, which is one of the features upon which hinges the system of checks and balances. This power is of paramount importance in a federal Constitution like ours and is the heart and core of the democracy.

6. It is axiomatic that the Parliament has been conferred upon the constituent power to amend by way of addition, variation or repeal any provision of the Constitution under Article 368 of the Constitution, and the same is required to be exercised in accordance with the procedure laid down in the said Article. The Constitution is said to be a living document or a work in progress only because of the plenary power to amend is conferred upon the Parliament under the said provision. Of course, as laid down in plethora of judgments, the said power is subject to the constraints of the basic structure theory. Deriving inspiration from the Preamble and the whole scheme of the Constitution, the majority in Kesavananda Bharati case held that every provision of the Constitution can be amended so long as the basic foundation and structure of the Constitution remains the same. Some of the basic features of the constitutional structure carved out by the Court in the said judgment were, the supremacy of the Constitution, Republican and democratic form of government, separation of powers, judicial review, sovereignty and the integrity of the nation, Federal Character of Government etc. A multitude of features have been acknowledged as the basic features in various subsequent judicial pronouncements. Accordingly, any amendment made by the

Parliament is open to the 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.

7. In case of Kihoto Hollohan vs. Zachillhu & Ors.^[49] the Court explaining the limitations imposed on the constituent power observed that the limitations imposed are substantive limitations and procedural limitations. Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit. Therefore, violation of the basic structure of the Constitution would be a substantive limitation restricting the field of exercise of the amending power under Article 368 of the Constitution.

Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, the disregard of which invalidates its exercise. In Kesavananda Bharati^[50] Case, it has been observed that while examining the width of the constituent power, it is essential to see its limits, the maximum and the minimum; the entire ambit and the magnitude of it. It has been further observed that Parliament could under Article 368 amend Article 13 and also the fundamental rights; and that the power of amendment under Article 368 is wide, but it is not wide enough to totally abrogate any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity^[51].

8. In the light of afore-stated legal position, let us examine whether the impugned amendment has disregarded any of the limitations – substantive or procedural. The gravamen of the submissions made by the learned counsels for the petitioners is that the Equality clause as interpreted in catena of decisions is the most important and indispensable feature of the Constitution, and the destruction thereof will amount to changing the basic structure of the Constitution. The bone of contention raised by them is that the exclusionary clauses contained in Articles 15(6) and 16(6) keeping out the backward classes and SCs/STs from having the benefits of the economic reservation, are discriminatory in nature and violate the equality code and in turn the basic structure of the Constitution.
9. At the outset, very relevant and apt observations made by Krishna Iyer, J. in Maharao Sahib Shri Bhim Singhji vs. Union of India & Ors.^[52], with regard to the breach of equality code, deserve reference.

“Every breach of equality cannot spell disaster as a lethal violation of basic structure. Peripheral inequality is inevitable when large scale equalization processes are put into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far, it shakes the democratic foundation and must suffer the death penalty.”

10. In an another interesting opinion by Justice Mathew in Indira Nehru Gandhi

Vs. Raj Narain^[53], it was observed that: –

“334. Equality is a multi-coloured concept incapable of a single definition. It is a notion of many shades and connotations. The preamble of the Constitution guarantees equality of status and of opportunity. They are nebulous concepts. And I am not sure whether they can provide a solid foundation to rear a basic structure. I think the types of equality which our democratic republic guarantees are all subsumed under specific articles of the Constitution like Articles 14, 15, 16, 17, 25 etc. and there is no other principle of equality which is an essential feature of our democratic polity.”

11. The seven-judge Bench of this Court in State of Kerala & Anr. vs. N.M. Thomas & Ors.^[54], stated that Article 16(1) is only part of comprehensive scheme to ensure equality in all spheres and is an instance of larger concept of equality of law. Article 16(4) cannot be viewed as an exception to Article 16(1), but only as something which logically emanates from Article 16(1).
12. In Waman Rao & Ors. Vs. Union of India & Ors.^[55], it was observed that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of

Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution.

13. The case of Nagraj & others Vs. Union of India^[56], classifies equality into two parts – “Formal equality” and “Proportional equality”. Proportional equality is equality “in fact”, whereas Formal equality is equality “in law”. Formal equality exists in the rule of law. In case of Proportional equality, the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality. The Constitution Bench in the said case was called upon to examine the constitutional validity of Article 16(4A) and 16(4B) as well as the 77^th, 82^nd and 85^th amendments of the Constitution. While unanimously upholding the validity of the said Amendments, it was observed that-

“118. The constitutional principle of equality is inherent in the rule of law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The rule of law is satisfied when laws are applied or enforced equally, that is, evenhandedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on case-to-case basis.”

14. In State of Gujarat and Another vs. & The Ashok Mills Co. Ltd. Ahmedabad and Another^[57], it was observed: –

“53. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. And the very idea of classification is that of inequality. In tackling this paradox, the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification.

54. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase ‘similarly situated’ mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.”

15. What is discernible from the above cited decisions is that the concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Equality is violated if it rests on unreasonable classification. A reasonable classification is permissible, which includes all who are similarly situated, and none who are not. Discrimination is the essence of classification. Those who are similarly circumscribed are entitled to an equal treatment. Classification has to be founded on substantial differences which distinguish persons grouped together from those left out of the groups, and such differential attributes must bear a just and rational relation to the object sought to be achieved.
16. The Preamble, the Part III-Fundamental Rights and the Part IV-Directive

Principles of State Policy- the Trinity are the conscience of the Constitution. The Preamble visualises to remove economic inequalities and to secure to all citizens of India, Justice – Social, Economic and Political, which is the sum total of the aspirations incorporated in Part IV. Economic empowerment to the weaker sections of the society is the fundamental requirement for ensuring equality of status and to promote fraternity assuring dignity as visualised by the framers of our Constitution. And therefore any positive discrimination in favour of the weak or disadvantaged class of people by means of a valid classification has been treated as an affirmative action on the part of the State. The Preamble to the Constitution and the Directive Principles of the State Policy give a positive mandate to the State and the State is obliged to remove inequalities and backwardness from the society.

17. As observed in Ashok Kumar Thakur^[58], while considering the

constitutionality of social justice legislation, it is worthwhile to note the objectives which have been incorporated by the Constitution makers in the Preamble of the Constitution and how they are sought to be secured by enacting Fundamental Rights in Part-III and Directive Principles of State Policy in Part-IV of the Constitution. The Fundamental Rights represent the civil and political rights and the Directive Principles embody social and economic rights. Together they are intended to carry out the objectives set out in the Preamble to the Constitution. Article 46 enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation. The theory of reasonable classification is implicit and inherent in the concept of equality. Equality of opportunity would also mean a 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.

18. Justice Krishna Iyer in M. Thomas^[59] has beautifully explained what is

“social engineering”

“119. Social engineering — which is law in action — must adopt new strategies to liquidate encrusted group injustices or surrender society to traumatic tensions. Equilibrium, in human terms, emerges from release of the handicapped and the primitive from persistent social disadvantage, by determined, creative and canny legal manoeuvres of the State, not by hortative declaration of arid equality. “To discriminate positively in favour of the weak may sometimes be promotion of genuine equality before the law” as Anthony Lester argued in his talk in the B.B.C. in 1970 in the series: What is wrong with the law [ Published in book form —Edited by Micheel Zander — BBC, 1970 — quoted in Mod Law Rev Vol 33, Sept 1970, pp. 579, 580] . “One law for the Lion and Ox is oppression”. Or, indeed, as was said of another age by Anatole France:

“The law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread. ”

19. As transpiring from the Statements of Objects and Reasons for introducing the Bill to the impugned amendment, the Parliament has taken note that the economically weaker sections of the citizens have largely remained excluded from attaining the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under Clauses(4) and (5) of Article 15 and Clause(4) of Article 16 are generally unavailable to them unless they meet with the specific criteria of social and educational backwardness. It has been further stated that vide the Constitution (Ninety-third Amendment) Act, 2005, Clause(5) was inserted in Article 15 of the Constitution which enables the State to make special provision for the advancement of any social and educational backwardness of citizens, or for the Scheduled Castes or the Scheduled Tribes, in relation to their admission in higher educational institutions. Similarly, Clause(4) of Article 16 of the Constitution enables the State to make special provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State. However, economically weaker sections of citizens were not eligible for the benefit of reservation. Therefore, with a view to fulfil the ideals lying behind Article 46, and to ensure that economically weaker sections of citizens to get a fair chance of receiving higher education and participation in employment in the services of the State, it was decided to amend the Constitution of India.
20. 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. Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it. 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.