- 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 as sought to be submitted by the Learned Counsels for the petitioners.
- 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. Neither the procedural limitation i.e. the mode of exercise of the amending power has been disregarded 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 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.
- Before parting, let me say something on the time span of the reservation policy.
- It is said that no document can be perfect and no ideals can be fully achieved. But does that mean we should have no ideals? No vision? Sardar Patel had said [60] – “But in the long run, it would be in the interest of all to forget that there is anything like majority or minority in this country; that in India there is only one community…”
- Can we not move towards an ideal envisaged by the framers of our Constitution to have an egalitarian, casteless and classless society? Though difficult, it is an achievable ideal. Our Constitution which is a living and organic document continuously shapes the lives of citizens in particular and societies in general.
- At this juncture, some of the very apt observations made by the Constitution Bench in C. Vasanth Kumar[61] are worth noting-
Per D.A. Desai, J.
“30. Let me conclude. If economic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This approach seeks to translate into reality the twin constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest regressive movement and to take a firm step towards establishing a casteless society; and two, to progressively eliminate poverty by giving an opportunity to the disadvantaged sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty.
- Let me make abundantly clear that this approach does not deal with reservation in favour of Scheduled Castes and Scheduled Tribes. Thousands of years of discrimination and exploitation cannot be wiped out in one generation. But even here economic criterion is worth applying by refusing preferred treatment to those amongst them who have already benefited by it and improved their position. And finally reservation must have a time span otherwise concessions tend to become vested interests.”
Per E.S. Venkataramiah, J.
“150. At this stage it should be made clear that if on a fresh determination some castes or communities have to go out of the list of backward classes prepared for Article 15(4) and Article 16(4), the Government may still pursue the policy of amelioration of weaker sections of the population amongst them in accordance with the Directive Principle contained in Article 46 of the Constitution. “
In the said judgment, Chief Justice Y.V. Chandrachud, as he then was, had proposed thus:-
“2. I would state my opinion in the shape of the following propositions:
- The reservation in favour of Scheduled Castes and Scheduled Tribes must continue as at present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation.
- The means test, that is to say, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period mentioned in (1) above. It is essential that the privileged section of the underprivileged society should not be permitted to monopolise preferential benefits for an indefinite period of time.
- Insofar as the other backward classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education: One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions.
- The policy of reservations in employment, education and legislative institutions should be reviewed every five years or so. That will at once afford an opportunity (i) to the State to rectify distortions arising out of particular facets of the reservation policy and (ii) to the people, both backward and non-backward, to ventilate their views in a public debate on the practical impact of the policy of reservations.”
- The concern for continuing the reservation as an affirmative action only for a limited period was also expressed by this Court in “Ashok Kumar Thakur vs.
Union of India”[62]
“666. Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be realisation of a noble dream. To start with, the effect of reservation may appear to perpetuate caste. The immediate effect of caste-based reservation has been rather unfortunate. In the pre-reservation era people wanted to get rid of the backward tag—either social or economical. But post reservation, there is a tendency even among those who are considered as “forward”, to seek the “backward” tag, in the hope of enjoying the benefits of reservations. When more and more people aspire for “backwardness” instead of “forwardness” the country itself stagnates. Be that as it may. Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing a united society with diversity, we will end up as a fractured society forever suspicious of each other. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.”
- What was envisioned by the framers of the Constitution, what was proposed by the Constitution Bench in 1985 and what was sought to be achieved on the completion of fifty years of the advent 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 cannot be gainsaid that the age-old caste system in India was responsible for the origination of the reservation system in the country. 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.
- Be it noted that as per Article 334 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the SCs and the STs in the House of the People and in the Legislative Assemblies of the States would cease to have effect on the expiration of a period of eighty years from the commencement of the Constitution. 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 104th 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.
..……………………………J. [BELA M. TRIVEDI]
NEW DELHI;
07.11.2022
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL/CIVIL APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 55 OF 2019
| JANHIT ABHIYAN |
VERSUS
| …PETITIONER(S) | |||
| UNION OF INDIA | …RESPONDENT(S) |
WITH
T.C. (Civil) No. 8 of 2021
W.P. (Civil) No. 596 of 2019
W.P. (Civil) No. 446 of 2019
W.P. (Civil) No. 427 of 2019
W.P. (Civil) No. 331 of 2019 W.P. (Civil) No. 343 of 2019
W.P. (Civil) No. 798 of 2019
W.P. (Civil) No. 732 of 2019
W.P. (Civil) No. 854 of 2019
T.C. (Civil) No. 12 of 2021
T.C. (Civil) No. 10 of 2021
T.C. (Civil) No. 9 of 2021
W.P. (Civil) No. 73 of 2019
W.P. (Civil) No. 72 of 2019
W.P. (Civil) No. 76 of 2019
W.P. (Civil) No. 80 of 2019
W.P. (Civil) No. 222 of 2019
W.P. (Civil) No. 249 of 2019
W.P. (Civil) No. 341 of 2019
T.P. (Civil) No. 1245 of 2019
T.P. (Civil) No. 2715 of 2019 T.P. (Civil) No. 122 of 2020
S.L.P. (Civil) No. 8699 of 2020 T.C. (Civil) No. 7 of 2021
T.C. (Civil) No. 11 of 2021
W.P. (Civil) No. 69 of 2019
W.P. (Civil) No. 122 of 2019 W.P. (Civil) No. 106 of 2019 W.P. (Civil) No. 95 of 2019
W.P. (Civil) No. 133 of 2019
W.P. (Civil) No. 178 of 2019
W.P. (Civil) No. 182 of 2019
W.P. (Civil) No. 146 of 2019
W.P. (Civil) No. 168 of 2019
W.P. (Civil) No. 212 of 2019
W.P. (Civil) No. 162 of 2019
W.P. (Civil) No. 419 of 2019
W.P. (Civil) No. 473 of 2020
W.P. (Civil) No. 493 of 2019
- U D G M E N T
J.B. PARDIWALA, J. :
- I have had the benefit of carefully considering the lucid and erudite judgment delivered by my learned Brother Justice Ravindra Bhat taking the view that Sections 2 and 3 resply of the Constitution (One Hundred and Third Amendment) Act, 2019 which inserted clause (6) in Article 15 and clause (6) in Article 16 respectively are unconstitutional and void on the ground that they destroyed and are violative of the basic structure of the Constitution. My esteemed Brother Justice
Bhat has taken the view that the State’s compelling interest to fulfil the objective 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 of contending that the 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. My learned esteemed Brother Justice Bhat has concluded that therefore the special provisions based on objective economic criteria, is per se not violative of the basic structure. However, my esteemed Brother Justice Bhat thought fit to declare clause (6) of Article 15 as unconstitutional essentially on the ground that the exclusion clause therein and the classification could be termed as arbitrary resulting in hostile discrimination of the poorest sections of the society who are socially and educationally backward and/or subjected to caste discrimination.
- In so far as clause (6) of Article 16 is concerned, my esteemed Brother Justice Bhat struck it down on two counts – first, the same is 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 and, secondly, although the “economic criteria” per se is permissible in relation to access of public goods (under Article 15), yet the same is not true for Article 16 as the goal of which is empowerment through representation of the community.
- On the other hand, my esteemed Brother Justice Dinesh Maheshwari, in his separate judgment, has taken the view that clause (6) in Article 15 and clause (6) in Article 16 do not violate the basic structure of the Constitution in any manner and are valid.
- Having gone through both the sets of judgments, I regret my inability to agree with my esteemed Brother Justice Bhat that clause (6) in Article 15 and clause (6) in Article 16 are unconstitutional and void. Whereas, I agree with the final decision taken by my esteemed Brother Justice Dinesh Maheshwari that the impugned amendment is valid, I would like to assign my own reasons as I have looked into the entire issue from a slightly different angle.
- “The Judgment of this Court in His Holiness Keshvananda Bharati Sripadagalvaru and others v. State of Kerala and another, AIR 1973 SC 1461, which introduced the concept of Basic Structure in our constitutional jurisprudence is the spontaneous response of an activist Court after working with our Constitution for about 25 years. This Court felt that in the absence of such a stance by the constitutional Court there are clear tendencies that the tumultuous tides of democratic majoritarianism of our country may engulf the constitutional values of our nascent democracy. The judgement in Kesavananda Bharti (supra) is possibly an “auxiliary precaution against a possible tidal wave in the vast ocean of Indian democracy”. …….. But we must have a clear perception of what the Basic Structure is. It is hazardous to define what is the Basic Structure of the Constitution as what is basic does not remain static for all time to come…..”
[See : J&K National Panthers Party v. The Union of India & Ors, (2011) 1 SCC 228]
- The idea of equality is the heart and soul of the Indian Constitution. India achieved independence on the 15th of August, 1947 after a long political struggle in which a number of patriots laid down their lives and countless suffered to secure self-government and to throw off the foreign yoke. But self-government was not an end in itself. It was a means to an end. They struggled and suffered not merely to be ruled by their chosen representatives in the place of foreign rulers, but to achieve the basic human rights and freedom and to secure social, economic and political justice so as to build up a welfare State from which poverty, ignorance and disease may be banished and to lay the foundation of a strong and independent country which may command respect in the world.
- A Constituent Assembly was formed to draw up a Constitution which was ultimately adopted on the 26th January, 1950. The aspirations of the people are reflected in the Preamble of the Constitution which reads thus:-
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.”
