40. I am conscious of the fact that the economically weaker sections of the citizens are not declared as socially and economically backward classes (SEBCs) for the purpose of Article 15(4) of the Constitution. However, for the purpose of judging the validity of the impugned amendment, this, in my view, would not be of any consequence. One should take notice of the fact that Article 16(4) of the Constitution refers to backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State. In such a case, it is provided that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of such backward classes of the citizens.  On the other hand, Article 15(4) refers to socially and educationally backward classes of citizens along with the Scheduled Castes or the Scheduled Tribes and provides that nothing in that Article or Article 29(2) shall prevent the State from making any special provision for the advancement of such classes. Article 16(4) pertains to backward class of citizens for the purpose of making reservation in public employment. Article 15(4), on the other hand, refers to socially and educationally backward classes for the purpose of making any special provision by the State for the advancement of such classes. While affirmative action implied in Article 16(4) is restricted to reservation in employment, Article 15(4) has a wider canvass and reach by virtue of the pronounced purpose of making special provision.
41. Such a distinction between the two provisions was noticed by this Court in the case of Indra Sawhney (supra) wherein Reddy, J. speaking for the majority, observed as under:

“(c) Whether the backwardness in Article 16(4) should be both social and educational?

786. The other aspect to be considered is whether the backwardness contemplated in Article 16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji (M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439: AIR 1963 SC 649) it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4). Though Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words “socially and educationally” preceding the words “backward class of citizens” the same meaning came to be attached to them. Indeed, it was stated in Janki Prasad Parimoo (Janki Prasad Parimoo v. State of J & K, (1973) 1 SCC 420: 1973 SCC (L&S) 217: (1973) 3 SCR 236) (Palekar, J speaking for the Constitution Bench) that:

“Article 15(4) speaks about ‘socially and educationally backward classes of citizens’ while Article 16(4) speaks only of

‘any backward class citizens’. However, it is now settled that the expression ‘backward class of citizens’ in Article 16(4) means the same thing as the expression ‘any socially and educationally backward class of citizens’ in Article 15(4). In order to qualify for being called a ‘backward class citizen’ he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4).”

787. It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Article 16 does not contain the qualifying words “socially and educationally” as does clause (4) of Article 15. It may be remembered that Article 340 (which has remained unamended) does employ the expression ‘socially and educationally backward classes’ and yet that expression does not find place in Article 16(4). The reason is obvious: “backward class of citizens” in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward Thus, certain classes which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4). It is equally relevant to notice that Article 340 does not expressly refer to services or to reservations in services under the State, though it may be that the Commission appointed thereunder may recommend reservation in appointments/posts in the services of the State as one of the steps for removing the difficulties under which SEBCs are labouring and for improving their conditions. Thus, SEBCs referred to in Article 340 is only one of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services ─ which may mean, at any level whatsoever ─ insisting upon educational backwardness may not be quite appropriate.”                                       (Emphasis supplied)

42. Despite such legal distinction drawn by this Court between the “backward classes” referred to in Article 16(4) and “socially and educationally backward classes” referred to in Article 15(4) of the Constitution, in the practice which has developed over a period of time, such distinction has been virtually obliterated. It is an undisputed position that the State has been categorising various classes and communities as socially and educationally backward classes (SEBCs) often referred to in popular term as the Other Backward Classes or OBCs. Such list is common for both the benefits envisaged under Article 16(4) of the Constitution as well as Article 15(4). In other words, it is this very list of SEBCs which is utilised by the State organs for the purpose of granting reservation in public employment in terms of Article 16(4) of the Constitution. This very classification of the SEBC status also qualifies the member of the community to reservation in education including professional courses which would flow from the provisions made in Article 15(4) of the Constitution.
43. Though previously Articles 15(4) and 16(4) resply were seen as exception of the equality enshrined in the Articles 15(1) and 16(1) respectively, this understanding of the constitutional provisions underwent a major change in the decision in M. Thomas (supra). Mathew J, observed as under:-

“78. I agree that Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of scheduled castes and scheduled tribes. If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even upto the point of making reservation.”

44. This change in the approach was noticed and amplified by this Court in the larger Bench judgment in the case of Indra Sawhney (supra). It was observed as under: –

“741. In Balaji [M.R. Balaji v. State of Mysore,1963 Supp 1 SCR 439

: AIR 1963 SC 649] it was held — “there is no doubt that Article 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2)”. It was observed that Article 15(4) was inserted by the First Amendment in the light of the decision in Champakam [ State of Madras v. Smt Champakam Dorairajan, 1951 SCR 525 : AIR 1951 SC 226], with a view to remove the defect pointed out by this court namely, the absence of a provision in Article 15 corresponding to clause (4) of Article 16. Following Balaji [M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439 : AIR 1963 SC 649] it was held by another Constitution Bench (by majority) in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179

: (1965) 2 LLJ 560] — “further this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1)”. Subba Rao, J, however, opined in his dissenting opinion that Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision itself. Be that as it may, since the decision in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] , it was assumed by this Court that Article 16(4) is an exception to Article 16(1). This view, however, received a severe setback from the majority decision in State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906]. Though the minority (H.R. Khanna and A.C. Gupta, JJ) stuck to the view that Article 16(4) is an exception, the majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article 16(4) is not an exception to Article 16(1) but that it was merely an emphatic way of stating a principle implicit in Article 16(1). (Beg, J took a slightly different view which it is not necessary to mention here.) The said four learned Judges — whose views have been referred to in para 713 — held that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1). The speech of

Dr Ambedkar during the debate on draft Article 10(3) [corresponding to Article 16(4)] in the Constituent Assembly — referred to in para 693 — shows that a substantial number of members of the Constituent Assembly insisted upon a “provision (being) made for the entry of certain communities which have so far been outside the administration”, and that draft clause (3) was put in in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.

742. Regarding the view expressed in Balaji [ M.R. Balaji v. State of

Mysore, 1963 Supp 1 SCR 439 : AIR 1963 SC 649] and Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560], it must be remembered that at that time it was not yet recognised by this Court that Article 16(1) being a facet of Article 14 does implicitly permit classification. Once this feature was recognised the theory of clause (4) being an exception to clause (1) became untenable. It had to be accepted that clause (4) is an instance of classification inherent8 in clause (1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) then it is equally an exception to clause (2). Question then arises, in what respect if clause (4) an exception to clause (2), if ‘class’ does not means ‘caste’. Neither clause (1) nor clause (2) speak of class. Does the contention mean that clause (1) does not permit classification and therefore clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.”

45. In that context, this Court answered the question whether Article 16(4) is exhaustive of the very concept of reservation. It was held that though Article 16(4) is exhaustive for reservation in favour of backward classes and no further special treatment is permissible in their favour outside of Article 16(4), Article 16(4) itself is not exhaustive of the concept of reservation. It was held that Article 16(1) itself, of course, in very exceptional situations and not for all and sundry reasons permits reservations. The contention that Article 16(1) permits preferential treatment and not reservation was thus rejected.
46. According to the Constitutional scheme, the right to education forms part of the right to life under Article 21 and the right to education is incorporated separately and in clear terms as an independent fundamental right in the form of Article 21-A. That Article is couched in the language which is mandatory insofar as the State is obliged to provide free and compulsory education to all children of the age of 6 to 14 years. The matter of free and compulsory primary education has been perceived to be so important even at the time of drafting of the Constitution that Articles 45 and 46 resply were incorporated in Part IV of the Constitution to lay the principles fundamental in the governance of the country and they were made the duty of the State to apply those principles in making laws by virtue of Article 37. Now that right to education is not only declared as fundamental right of every child, but the State has been obliged to provide free and compulsory education, no authority which is the State within the definition contained in Article 12 could legitimately renege on the constitutional covenant. The phrase “free and compulsory education” in Article 21-A clearly makes it obligatory on the State to not only provide necessary funds and facilities for free, but also compulsory education. Thus, the State is under an obligation to apply the provisions contained in Articles 45 and 46 resply to provide childhood care and primary education and promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. (See : Adam B. Chaki (supra)) CONSTITUTIONAL VALIDITY OF CLAUSE (5) IN ARTICLE 15
47. The constitutional validity of clause (5) in Article 15 of the Constitution introduced by the Constitution (93^rd Amendment) Act, 2005 was made the subject matter of challenge before this Court in Pramati Educational and Cultural Trust (Registered) and Others v. Union of India and Others, (2014) 8 SCC 1.
48. The constitutional validity of clause (5) in Article 15 was essentially challenged on the ground that the same is violative of Article 19(1)(g) of the Constitution, inasmuch as it compels the private educational institutions to give up a share of the available seats to the candidates chosen by the State and such appropriation of seats would not be a regulatory measure and not a reasonable restriction on the right under Article 19(1)(g) of the Constitution within the meaning of Article 19(6) of the Constitution. It was further argued that clause (5) of Article 15 of the Constitution, as its very language, indicates would not apply to the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. It was argued that thus it violated Article 14 because the aided minority institutions and unaided minority institutions cannot be treated alike. It was also argued that  clause (5) of Article 15 of the Constitution is discriminatory and violative of the equality clause in Article 14 of the Constitution, which is a basic feature of the Constitution.
49. On the other hand, while defending clause (5) of Article 15 of the Constitution, it was argued on behalf of the Union of India that clause (5) of Article 15 of the Constitution is only an enabling provision empowering the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including the private educational institutions. It was also argued that Article 15(5) is consistent with the socialistic goals set out in the Preamble and the Directive Principles in Part IV and to ensure the march and progress of the weaker sections resulting in progress to socialistic democratic State establishing the egalitarian ethos/egalitarian equality which is the mandate of the Constitution and has also been recognised by this Court in the case of Nagaraj  and Others v. Union of India and Others, (2006) 8 SCC 212 : AIR 2007 SC 71. It was argued that this Court in M.R. Balaji and Others v. State of Mysore (1963) Supp 1 SCR 439, disagreed with the judgment in the State of Madras v. Sm. Champakam Dorairajan (supra) and upheld that Article 46 of the Constitution charges the State with promoting with special care the educational and economic interests of the weaker sections of the society. The underlying logic behind the judgment in M.R. Balaji (supra) has logically flown from the mandate of Article 15(4), Article 16(4), Article 38, Article 45 and Article 46 resply and that Article 15(5) is only a continuation of that process.  Much emphasis was laid on the fact that when the elementary education has been made a fundamental right, in order to make that objective more meaningful, it was also necessary for the State to ensure that even in higher education, there must be affirmative equality by providing chances or opportunities to the socially and educationally backward classes.
50. The Constitution Bench, in Pramati Educational and Cultural Trust (supra), after due consideration of the rival contentions canvassed on either side and while upholding the validity of clause (5) of Article 15 of the Constitution, held as under:

“29. We may now examine whether the Ninety-third Amendment satisfies the width test. A plain reading of clause (5) of Article 15 would show that the power of a State to make a law can only be exercised where it is necessary for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and not for any other purpose. Thus, if a law is made by the State only to appease a class of citizen which is not socially or educationally backward or which is not a Scheduled Caste or Scheduled Tribe, such a law will be beyond the powers of the State under clause (5) of Article 15 of the Constitution. A plain reading of clause (5) of Article 15 of the Constitution will further show that such law has to be limited to making a special provision relating to admission to private educational institutions, whether aided or unaided, by the State. Hence, if the State makes a law which is not related to admission in educational institutions and relates to some other aspects affecting the autonomy and rights of private educational institutions as defined by this Court in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481], such a law would not be within the power of the State under clause (5) of Article 15 of the Constitution. In other words, power in clause (5) of Article 15 of the Constitution is a guided power to be exercised for the limited purposes stated in the clause and as and when a law is made by the State in purported exercise of the power under clause (5) of Article 15 of the Constitution, the Court will have to examine and find out whether it is for the purposes of advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and whether the law is confined to admission of such socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to private educational institutions, whether aided or unaided, and if the Court finds that the power has not been exercised for the purposes mentioned in clause (5) of Article 15 of the Constitution, the Court will have to declare the law as ultra vires Article 19(1)(g) of the Constitution. In our opinion, therefore, the width of the power vested on the State under clause (5) of Article 15 of the Constitution by the constitutional amendment is not such as to destroy the right under Article 19(1)(g) of the Constitution.

30. We may now examine the contention of Mr Nariman that clause (5) of Article 15 of the Constitution fails to make a distinction between aided and unaided educational institutions and treats both aided and unaided alike in the matter of making special provisions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The distinction between a private aided educational institution and a private unaided educational institution is that private educational institutions receive aid from the State, whereas private unaided educational institutions do not receive aid from the State. As and when a law is made by the State under clause (5) of Article 15 of the Constitution, such a law would have to be examined whether it has taken into account the fact that private unaided educational institutions are not aided by the State and has made provisions in the law to ensure that private unaided educational institutions are compensated for the admissions made in such private unaided educational institutions from amongst socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes. In our view, therefore, a law made under clause (5) of Article 15 of the Constitution by the State on the ground that it treats private aided educational institutions and private unaided educational institutions alike is not immune from a challenge under Article 14 of the Constitution. Clause (5) of Article 15 of the Constitution only states that nothing in Article 15 or Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to educational institutions including private educational institutions, whether aided or unaided by the State. Clause (5) of Article 15 of the Constitution does not say that such a law will not comply with the other requirements of equality as provided in Article 14 of the Constitution. Hence, we do not find any merit in the submission of the Mr Nariman that clause (5) of Article 15 of the Constitution that insofar as it treats unaided private educational institutions and aided private educational institutions alike it is violative of Article 14 of the Constitution.
31. We may now deal with the contention of Mr Divan that clause (5) of Article 15 of the Constitution is violative of Article 14 of the Constitution as it excludes from its purview the minority institutions referred to in clause (1) of Article 30 of the Constitution and the contention of Mr Nariman that clause (5) of Article 15 excludes both unaided minority institutions and aided minority institutions alike and is thus violative of Article 14 of the Constitution.

           x                         x                            x                            x

34. Clause (5) of Article 15 of the Constitution enables the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Such admissions of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes who may belong to communities other than the minority community which has established the institution, may affect the right of the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. In other words, the minority character of the minority educational institutions referred to in clause (1) of Article 30 of the Constitution, whether aided or unaided, may be affected by admissions of socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes and it is for this reason that minority institutions, aided or unaided, are kept outside the enabling power of the State under clause (5) of Article 15 with a view to protect the minority institutions from a law made by the majority. As has been held by the Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1], the minority educational institutions, by themselves, are a separate class and their rights are protected under Article 30 of the Constitution, and, therefore, the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution.
35. We may now consider the contention of Mr Divan that clause (5) of Article 15 of the Constitution is violative of secularism insofar as it excludes religious minority institutions referred to in Article 30(1) of the Constitution from the purview of clause (5) of Article 15 of the Constitution. In M. Ismail Faruqui v. Union of India

[(1994) 6 SCC 360], this Court has held that: (SCC p. 403, para 37) 

“37. … The Preamble of the Constitution read in particular with Articles 15 to 28 emphasises this aspect and indicates that … the concept of secularism embodied in the constitutional scheme [is] a creed adopted by the Indian people….”

Hence, secularism is no doubt a basic feature of the Constitution, but we fail to appreciate how clause (5) of Article 15 of the Constitution which excludes religious minority institutions in clause (1) of Article 30 of the Constitution is in any way violative of the concept of secularism. On the other hand, this Court has held in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481)] that the essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs and Articles 29 and 30 seek to preserve such differences and at the same time unite the people of India to form one strong nation (see para 161 of the majority judgment of Kirpal, C.J., in T.M.A. Pai Foundation (T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481) at p. 587 of SCC). In our considered opinion, therefore, by excluding the minority institutions referred to in clause (1) of Article 30 of the Constitution, the secular character of India is maintained and not destroyed.

        x                            x                            x                            x

37. Educational institutions in India such as Kendriya Vidyalayas,

Indian Institute of Technology, All India Institute of Medical Sciences and Government Medical Colleges admit students in seats reserved for backward classes of citizens and for the Scheduled Castes and the Scheduled Tribes and yet these government institutions have produced excellent students who have grown up to be good administrators, academicians, scientists, engineers, doctors and the like. Moreover, the contention that excellence will be compromised by admission from amongst the backward classes of citizens and the Scheduled Castes and the Scheduled Tribes in private educational institutions is contrary to the Preamble of the Constitution which promises to secure to all citizens “fraternity assuring the dignity of the individual and the unity and integrity of the nation”. The goals of fraternity, unity and integrity of the nation cannot be achieved unless the backward classes of citizens and the Scheduled Castes and the Scheduled Tribes, who for historical factors, have not advanced are integrated into the mainstream of the nation. We, therefore, find no merit in the submission of Mr Nariman that clause (5) of Article 15 of the Constitution violates the right under Article 21 of the Constitution.

38. We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1] that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct. Instead, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution is valid.”

[Emphasis supplied]

51. Thus, if Article 15(5) of the Constitution has been found to be consistent with the socialistic goals set out in the Preamble and the Directive Principles in Part IV and to ensure the march and progress of the weaker sections resulting in progress to Socialistic Democratic State establishing the egalitarian ethos/egalitarian equality which is the mandate of the Constitution and has also been approved in Nagaraj (supra), then clause (6) in Article 15 of the Constitution could also be said to be consistent with the socialistic goals set out in the Preamble and the Directive Principles in Part IV. Article 15(6), brought in by way of the Constitution (103^rd Amendment) Act, 2019, which provides for identical reservation for the economically weaker sections of the citizens in private unaided educational institutions. The Constitution Bench in Pramati Educational and Cultural Trust (supra) was not impressed with the challenge to Article 15(5) on the ground of breach of basic structure so far as it relates to the unaided private educational institutions.
52. Taking the aforesaid view of the matter, the Constitution Bench of this Court, in the case of Pramati Educational and Cultural Trust (supra), held that the Constitution (93^rd Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution could not be said to have altered the basic structure or framework of the Constitution and is constitutionally valid.
53. In view of the aforesaid, Article 15(6), which is the subject matter of challenge and which provides for reservation for the “EWS other than the SC,

ST and OBC-NCL” in private unaided educational institutions, cannot be said to be altering the basic structure. It is constitutionally valid. However, the question whether the exclusion clause is violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms inextricable part of the basic structure of the Constitution, shall be answered by me a little later.

54. Let us remember the observations made by Mathew, J. in the case of M. Thomas (supra), as under:

“73. There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.”  (Emphasis supplied)

55. It has been held by this Court in the case of Dalmia Cement (Bharat) Ltd. and Another v. Union of India and Others, (1996) 10 SCC 104, that with a view to establish an egalitarian social order, the trinity, the Preamble, the Fundamental Rights in Part III and the Directive Principles of State Policy in Part IV of the

Constitution delineated the social economic justice. The word “justice” envisioned in the Preamble is used in a broad spectrum to harmonise the individual right with the general welfare of the society.  The Constitution is the supreme law.  The purpose of law is realization of justice whose content and scope vary depending on the prevailing social environment. Every social and economic change causes change in the law. In a democracy governed by the rule of law, it is not possible to change the legal basis of social and economic life of the community without bringing about any corresponding change in the law.  In   Dalmia Cement (Bharat) Ltd. (supra), this Court further observed that social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor, etc. from the handicaps, penury, to ward them off from distress and to make their lives livable for the greater good of the society at large. Therefore, social and economic justice in the context of our Indian Constitution must, be understood in a comprehensive sense to remove every inequality and to provide equal opportunity to all citizens in social as well as economic activities and in every part of life. Economic justice means abolition of those economic conditions which ultimately result in the inequality of economic values between men leading towards backwardness.

56. In the case on hand, it was vociferously argued that the individuals belonging to the economical weaker sections may not form a class and they may be weaker as individual only. Secondly, their weakness may not be the result of the past social and educational backwardness or discrimination. The basis of such argument is the observation of Sawant, J. in Indra Sawhney (supra). All the learned counsel while criticising the impugned amendment kept reminding this Court time and again that the Constitution has never recognised economic criteria as a mode of reservation. Reservation in employment, etc. is only meant for the socially oppressed class. Economically weaker sections of the citizens may be financially handicapped or poor but still socially, they can be said to be much advanced and cannot be compared with the socially oppressed class like the SCs/STs.  Thus, the reservation for the weaker sections of the citizens has destroyed or rather abridged the basic structure of the Constitution. I shall deal with this argument of abridgement of the basic structure a little later. But, I would definitely like to say something as regards the economic criteria for the purpose of reservation.
57. In this country with a population of around 1.41 billion, the economic backwardness is not confined only to those who are covered by Article 15(4) or Article 16(4) of the Constitution. In a country where only a small percentage of the population is above the poverty line, to deny opportunities of higher education (which secures employment) and employment is to deny to those who are qualified and deserving what is or at least should be their due.
58. When the 42nd Constitutional Amendment was on the anvil, there was suggestion of inclusion of “right to work” which carries with it the natural corollary of assured employment as a fundamental right. This, understandably, could not be done in a political system which is based on mixed economy. The natural effect of reservation is to close the door of betterment or even employment to even a portion of economically weak section of community. This all the more emphasises the urgent necessity of eliminating or at least substantially reducing the causes which have contributed to the creation of socially and educationally backward section of the community, thus, creating a situation when the need of reservation would be no more. Then alone the promise of equality for all would become a reality. And, it is to be remembered that right of equality is the “Cornerstone of the Constitution” (per Khanna, J.). Chandrachud, J. says: “it is a right which more than any other is a basic postulate of our Constitution”. Mathew,
59. describes it as the “most fundamental postulate of republicanism”. [See :

Padmraj Samarendra v. the State of Bihar, Patna High Court, Special Bench, 1978 SCC OnLine Pat 64 : 1979 PLJR 258 : AIR 1979 Pat 266 at page 267]

59. In the aforesaid context, it would further be useful again to extract the observation of Iyer, J., in M. Thomas (supra) who concurring with A. N. Ray, CJ, observed:

“149. ….no caste, however seemingly backward, or claiming to be derelict, can be allowed to breach the dykes of equality of opportunity guaranteed to all citizens. To them the answer is that, save in rare cases of ‘chill penury repressing their noble rage’, equality is equality — nothing less and nothing else. The heady upper berth occupants from ‘backward’ classes do double injury. They beguile the broad community into believing that backwardness is being banished. They rob the need-based bulk of the backward of the ‘office’ advantages the nation, by classification, reserves or proffers. The constitutional dharma, however, is not an unending deification of ‘backwardness’ and showering ‘classified’ homage, regardless of advancement registered, but progressive exercising of the social evil and gradual withdrawal of artificial crutches. Here the Court has to be objective, resisting mawkish politics…..”

60. Also, the note of caution sounded by this Court in the State of Jammu & Kashmir v. Triloki Nath Khosa and others, AIR 1974 SC 1, reads as follows:

“56.…..let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity?”

61. In Ram Singh and Others v. Union of India, (2015) 4 SCC 697, this Court, while considering a challenge to the notification published in the Gazette of India dated 04.03.2014 by which the Jat Community came to be included in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh and Uttarakhand, observed very emphatically as under:-

“54. Past decisions of this Court in M.R. Balaji v. State of Mysore [AIR 1963 SC 649 : 1963 Supp (1) SCR 439] and Janki Prasad Parimoo v. State of J&K [(1973) 1 SCC 420 : 1973 SCC (L&S) 217] had conflated the two expressions used in Articles 15(4) and 16(4) and read them synonymously. It is in Indra Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] that this Court held that the terms “backward class” and “socially and educationally backward classes” are not equivalent and further that in Article 16(4) the backwardness contemplated is mainly social. The above interpretation of backwardness in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] would be binding on numerically smaller Benches. We may, therefore, understand a social class as an identifiable section of society which may be internally homogeneous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lay the foundation for affirmative action by the State to reach out to the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority v. Union of India [(2014) 5 SCC 438] is too significant a development to be ignored. In fact it is a pathfinder, if not a pathbreaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and

benefits on the basis of historical prejudice.”

[Emphasis supplied]

62. In State of Kerala v. R. Jacob Mathew and others, AIR 1964 Kerala 316, Chief Justice M.S. Menon observed as follows:

“9. In these regions of human life and values the clear-cut distinctions of cause and effect merge into each other. Social backwardness contributes to educational backwardness; educational backwardness perpetuates social backwardness; and both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition…..”

[Emphasis supplied]

63. In R. Balaji (supra), Gajendrakadkar J. said that:

“…..Social backwardness is on the ultimate analysis the result of poverty, to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward….  

          x                            x                            x                            x

…..However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty…..”

[Emphasis supplied]

ECONOMIC CRITERIA FOR THE AFFIRMATIVE ACTION UNDER THE CONSTITUTION

64. What is so principally, so fundamentally wrong in singling out an economic criterion for reservation? Is it that they do not belong to a homogenous group? Is it cast in stone that they (beneficiaries of reservation) should belong to homogenous group? Why cannot economic criterion be a ground for the State’s affirmative action?
65. The aforesaid are the few questions which were put by this Bench to the learned counsel appearing for the respective petitioners. One common reply to the aforesaid questions was that the reservation is only meant for the persons falling within Article 15(4) and Article 16(4) of the Constitution and that there are other affirmative actions which can address the problem of economy, but not necessarily reservation.
66. Economic criteria can be a relevant factor for affirmative action under the Constitution. In M. Thomas (supra), the constitutional validity of Rule 13AA giving further exemption of two years to the members belonging to the Scheduled Tribes and Scheduled Castes in the service from passing the tests referred to in Rule 13 or Rule 13A, was questioned. The High Court struck down the rule. Allowing the State appeal, this Court held that:

“67. Today, the political theory which acknowledges the obligation of Government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a State with obligation to help the weaker sections of its members seems to have increasing influence in constitutional law. The idea finds expression in a number of cases in America involving social discrimination and also in the decisions requiring the State to offset the effects of poverty by providing counsel, transcript of appeal, expert witnesses, etc. Today, the sense that Government has affirmative responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in constitutional law. While special concessions for the underprivileged have been easily permitted, they have not traditionally been required. Decisions in the areas of criminal procedure, voting rights and education in America suggest that the traditional approach may not be completely adequate. In these areas, the inquiry whether equality has been achieved no longer ends with numerical equality ; rather the equality clause has been held to require resort to a standard of proportional equality which requires the State, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. [See “Developments—Equal Protection”, 82 Harv L R 1165]

68. The idea of compensatory State action to make people who are really unequal in their wealth, education or social environment, equal, in specified areas, was developed by the Supreme Court of the United States. Rousseau has said :

It is precisely because the force of circumstances tends to destroy equality that force of legislation must always tend to maintain it. [Contract Social ii, 11.]

69. In Griffin v. Illinois [351 US 12.] an indigent defendant was unable to take advantage of the one appeal of right granted by Illinois law because he could not afford to buy the necessary transcript. Such transcripts were made available to all defendants on payment of a similar fee ; but in practice only non-indigents were able to purchase the transcript and take the appeal. The Court said that there can be no equal justice where the kind of trial a man gets depends on the amount of money he has

and held that the Illinois procedure violated the equal protection clause. 

The State did not have to make appellate review available at all; but if it did, it could not do so in a way which operated to deny access to review to defendants solely because of their indigency. A similar theory underlies the requirement that counsel be provided for indigents on appeal. In Douglas v. California [372 US 353] the case involved the California procedure which guaranteed one appeal of right for criminal defendants convicted at trial. In the case of indigents the appellate Court checked over the record to see whether it would be of advantage to the defendant or helpful to the appellate Court to have counsel appointed for the appeal. A negative answer meant that the indigent had to appeal pro se if at all. The Court held that this procedure denied defendant the equal protection of the laws. Even though the State was pursuing an otherwise legitimate objective of providing counsel only for non-frivolous claims, it had created a situation in which the well-to-do could always have a lawyer — even for frivolous appeals — whereas the indigent could not.

x                            x                            x                            x

71. Though in one sense Justice Harlan is correct, when one comes to think of the real effect of his view, one is inclined to think that the opinion failed to recognise that there are several ways of looking at equality, and treating people equally in one respect always results in unequal treatment in some other respects. For Mr. Justice Harlan, the only type of equality that mattered was numerical equality in the terms upon which transcripts were offered to defendants. The majority, on the other hand, took a view which would bring about equality in fact, requiring similar availability to all of criminal appeals in Griffin’s case (supra) and counsel-attended criminal appeals in Douglas case (supra). To achieve this result, the Legislature had to resort to a proportional standard of equality. These cases are remarkable in that they show that the kind of equality which is considered important in the particular context and hence of the respect in which it is necessary to treat people equally.

[See “Developments—Equal Protection”, 82 Harv LR 1165.]

x                            x                            x                            x

158. It is no doubt true that Article 16(1) provides for equality of opportunity for all citizens in the services under the State. It is, however, well-settled that the doctrine contained in Article 16 is a hard and reeling reality, a concrete and constructive concept and not a rigid rule or an empty formula. It is also equally well-settled by several authorities of this Court that Article 16 is merely an incident of Article 14, Article 14 being the genus is of universal application whereas Article 16 is the species and seeks to obtain equality of opportunity in the services under the State. The theory of reasonable classification is implicit and inherent in the concept of equality for there can hardly be any country where all the citizens would be equal in all respects. Equality of opportunity would naturally 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. It has never been disputed in judicial pronouncements by this Court as also of the various High Courts that Article 14 permits reasonable classification. But what Article 14 or Article 16 forbid is hostile discrimination and not reasonable classification. In other words, the idea of classification is implicit in the concept of equality because equality means equality to all and not merely to the advanced and educated sections of the society. It follows, therefore, that in order to provide equality of opportunity to all citizens of our country, every class of citizens must have a sense of equal participation in building up an egalitarian society, where there is peace and plenty, where there is complete economic freedom and there is no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved…..

                      x                            x                            x                            x

230. Scheduled castes and scheduled tribes are castes and tribes specified by the President under Articles 341 and 342 of the Constitution to be known as such for the purposes of the Constitution. It is accepted that generally speaking these castes and tribes are backward in educational and economic fields. It is claimed that the expression “scheduled castes” does not refer to any caste of the Hindu society but connotes a backward class of citizens. A look at Article 341 however will show that the expression means a number of existing social castes listed in a schedule ; castes do not cease to be castes being put in a schedule though backwardness has come to be associated with them. Article 46 requires the State to promote the economic interests of the weaker sections of the people and, in particular, of the scheduled castes and the scheduled tribes. The special reference to the scheduled castes and the scheduled tribes does not suggest that the State should promote the economic interests of these castes and tribes at the expense of other “weaker sections of the people”. I do not find anything reasonable in denying to some lower division clerks the same opportunity for promotion as others have because they do not belong to a particular caste or tribe. Scheduled castes and scheduled tribes no doubt constitute a welldefined class, but a classification valid for one purpose may not be so for another ; in the context of Article 16(1) the sub-class made by Rule 13AA within the same class of employees amounts to, in my opinion, discrimination only on grounds of race and caste which is forbidden by clause (2) of Article 16….

231. All I have said above relates to the scope of Article 16(1) only, because Counsel for the appellant has built his case on this provision alone. Clause (4) of Article 16 permits reservation of appointments on posts in favour of backward classes of citizens notwithstanding Article 16(1) ; I agree with the views expressed by Khanna, J. on Article 16(4) which comes in for consideration incidentally in this case. The appalling poverty and backwardness of large sections of the people must move the State machinery to do everything in its power to better their condition but doling out unequal favours to members of the clerical staff does not seem to be a step in that direction : tilting at the windmill taking it to be a monster serves no

useful purpose.”                                           [Emphasis supplied]

67. On the issue of economic criteria as an affirmative action under the Constitution, there is no difference of opinion amongst us. My esteemed Brother Justice Bhat, in his dissenting judgment has beautifully observed that the economic emancipation is a facet of economic justice which the Preamble as well as Articles 38 and 46 resply promise to all Indians. It is intrinsically linked with distributive justice – ensuring a fair share of the material resources, and a share of the progress of the society as a whole, to each individual. My esteemed Brother Justice Bhat has rightly observed that the break from the past – which was rooted on elimination of caste-based social discrimination, in affirmative action – to now include affirmative action based on deprivation, through impugned amendment, does not alter, destroy or damage the basic structure of the Constitution. On the contrary, it adds a new dimension to the constitutional project of uplifting the poorest segments of the society.
68. The following is discernable from the aforesaid: –
    • When substantive equality is the avowed constitutional mandate, the State is obliged to provide a level playing field ( Nagaraj (supra) para 47).
    • The test for such reasonable classification is not necessarily, or much less exclusively, the social backwardness test of Article 15(4) and Article 16(4) resply.
    • Article 16(4) [and Article 15(4)] provision is rooted as historical reasons of exclusion from service. The provision was thus fulcrummed on the Constituent Assembly’s clear intent (expressed through Dr. B.R. Ambedkar’s speech) to redress the specific wrong.
    • Indra Sawhney (supra) was limited to then existing Article 16 and construed the meaning of “socially” backward classes for the purpose of Article 16(4).
    • Indra Sawhney (supra) was thus undertaking a “schematic interpretation” of the Article 16(4) [subsequently held equally applicable for Article 15(4)].
    • The Special “schematic interpretation” based on the original intent doctrine led the amendment of the Constitution and introduction of Article 16(4A) [77^th Amendment], Article 16(4B) [81^st Amendment] and Article 15(5) [91^st Amendment] all of which have been upheld by this Court.
    • The recuring feature of such constitutional progression is the

Parliament’s freedom and liberty from the “original intent” doctrine.  It is the same theme that enables the Parliament to constantly innovate and improvise to better attend to the Directive Principles’ mandate of Articles 38 & 46 resply or of the equality code itself.

69. The march from the past is also discernible from the judicial approach. If adequate representation in services of under-represented class was the sole purpose of Article 16(4), any person from that class would be representative of that class. When Indra Sawhney (supra) read the necessity of excluding Creamy

Layer from the ‘backward class’ in Article 16(4) – it took note of the events 42 years post the adoption of the Constitution. It is 30 years since the seminal judgment of Indra Sawhney. Time enough for the Parliament to feel the necessity of attending to another section of deprived classes.

70. Therefore, the 103^rd Constitutional Amendment signifies the Parliament’s intention to expand affirmative action to hitherto untouched groups – who suffer from similar disadvantages as the OBCs competing for opportunities. If economic advance can be accepted to negate certain social disadvantages for the OBCs [Creamy Layer concept] the converse would be equally relevant. At least for considering the competing disadvantages of Economically Weaker Sections. Economic capacity has been upheld as a valid basis for classification by this Court in various other contexts. It has also been implored to be considered as a relevant facet of the ‘Equality Code’ provisions. The 103^rd Amendment offers a basis not frowned upon by Article 15(1) or 16(2) for providing a population generic and caste/religion/community neutral criteria. It also harmonizes with the eventual constitutional goal of a casteless society. Indra Sawhney (supra) holds that the Chitralekha (supra) propounded occupation-cum-means test can be a basis of social backwardness even for the purposes of Article 16(4). Article 15(6)(b) Explanation defining EWS could be said to be fully compliant with this norm.

CONSTITUTION (103^RD AMENDMENT) ACT, 2019

71. Let me now look into the Constitution (103^rd Amendment) Act, 2019 which came into effect on 14^th of January, 2019 amending Articles 15 and 16 resply of the Constitution by adding new clauses which empower the State to provide a maximum of 10% reservation for the “weaker sections” (EWS) of citizens other than the Scheduled Castes (SCs), Scheduled Tribes (STs) and Non- Creamy Layer of the Other Backward Classes (OBCs-NCL).
72. The Constitution (124^th Amendment) Bill, 2019 reads thus:

“THE CONSTITUTION (ONE HUNDRED AND TWENTY-

FOURTH AMENDMENT) BILL, 2019

A

BILL

further to amend the Constitution of India.

BE it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:—

1. (1) This Act may be called the Constitution (One Hundred and Twenty-fourth Amendment) Act, 2019.
2. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

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.’. 

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.”.

            The Statement of Objects and Reasons reads thus:-

“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.”

73. Thus, from the Objects and Reasons as aforesaid it is evident that the entire edifice of the impugned amendment is to fulfil the mandate of Article 46 of the Constitution. What was looked into by the Parliament was the fact that the economically weaker sections of citizens were not eligible for the benefit of reservations. However, with a view to fulfil the mandate of Article 46 and to ensure that economically weaker sections of the citizens get a fair chance of being imparted higher education and participation in employment in the services of the State, the Constitution (103^rd Amendment) Act was brought into force.
74. The reservation for the new category will be in addition to the existing scheme of 15%, 7.50% and 27% resply reservations for the SC, ST and OBC-NCL, thus, bringing the total reservation to 59.50%. An ‘Explanation’ appended to Article 15 states that the EWS shall be such as may be notified by the State from time to time based on the family income and other indicators of economic disadvantage. In its Office Memorandum F. No. 20013/01/2018-BC-II dated January 17, 2019, the Ministry of Social Justice and Empowerment, Government of India has stipulated that only persons whose families have a gross annual income less than Rs.8 lakhs, or agricultural land less than 5 acres, or residential flat less than 1,000 sq. ft., or residential plot less than 100 sq. yards in the notified Municipalities, or residential plot less than 200 sq. yards in the areas other than the notified Municipalities, are to be identified as EWS for the benefit of reservation.
75. What is exactly happening after the impugned amendment? Or to put it in other words, what is the effect of it?
    • The total reservation is now to the extent of 59.50%. The hue and cry is that the same is in excess of the ceiling of 50% fixed by this Court in Indra Sawhney (supra).
    • It excludes the Scheduled Castes (SCs), the Schedule Tribes

(STs) and the Non-Creamy Layer of Other Backward

Classes (OBCs-NCL). The hue and cry is that the same has

abridged the equality code. In other words, the exclusion is violative of Articles 14, 15 and 16 resply of the Constitution.

• Reservation of 10% of the vacancies among the open competition candidates means exclusion of those above the demarcating line from those 10% seats. In other words, the competition will now be within 40%. The hue and cry in this regard is that it is not permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding.

76. In the aforesaid context, by and large, all the learned counsel who argued that the impugned judgment is unconstitutional strenuously urged before the Constitution Bench to take the view that Article 46 of the Constitution could not have been made the edifice for the impugned amendment. It was vociferously argued that Article 46 should be interpreted on the principle of ejusdem generis. To put in other words, it was vociferously submitted that the words “weaker sections” used in Article 46 should be read to mean only the Scheduled Castes or the Scheduled Tribes.
77. Article 46 reads as under:-

“46.—Promotion of educational and economic interests of

Scheduled Castes, Scheduled Tribes and other weaker sections.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.”

78. I found something very interesting to read in regard to Article 46 from the decision of this Court in the case of M/s Shantistar Builders v. Narayan Khimalal Totame and Others, (1990) 1 SCC 520, wherein a Bench of three Judges speaking through Ranganath Misra, J. observed: –

“11. …. ‘Weaker sections’ have, however, not been defined either in the Constitution or in the Act itself. An attempt was made in the Constituent Assembly to provide a definition but was given up. Attempts have thereafter been made from time to time to provide such definition but on account of controversies which arise once the exercise is undertaken, there has been no success. A suggestion for introducing economic criterion for explaining the term was made in the approach to the Seventh Five Year Plan (1985-1990) brought out by the Planning Commission and approved by the National Development Council and the Union Government. A lot of controversy was raised in Parliament and the attempt was dropped. In the absence of a definition perhaps a proper guideline could be indicated but no serious attention has been devoted to this aspect.

12. Members of the Scheduled Castes and Scheduled Tribes have ordinarily been accepted as belonging to the weaker sections. Attempt to bring in the test of economic means has often been tried but no guideline has been evolved. Undoubtedly, apart from the members of the Scheduled Castes and Scheduled Tribes, there would be millions of other citizens who would also belong to the weaker sections. The Constitution-makers intended all citizens of

India belonging to the weaker sections to be benefited when Article

46 was incorporated in the Constitution. …..”                                                               

                       [Emphasis supplied]

79. I am of the view that the words “weaker sections” used in Article 46 cannot be read to mean only the Scheduled Castes or the Scheduled Tribes nor the same can be interpreted on the principle of ejusdem generis, as argued. The expression refers to all weaker sections and in particular the Scheduled Castes and the Scheduled Tribes. Inasmuch as, if we confine the meaning of the expression “weaker sections” only to the Scheduled Castes or the Scheduled

Tribes or the likes, namely backward class, then it will expose the weaker

sections of citizens, other than the Scheduled Castes and the Scheduled Tribes and backward class people to exploitation without any protection from it.  Sandro Galea, Dean and Robert A. Knox Professor, Boston University School of Public Health has defined Economic Justice as “a set of moral principles for building economic institutions, the ultimate goal of which is to create an opportunity for each person to create a sufficient material foundation upon which to have a dignified, productive, and creative life beyond economics.” Therefore, an economic justice argument focuses on the need to ensure that everyone has access to the material resources that create opportunities, in order to live a life unencumbered by pressing economic concerns.” Social welfare or welfare of the State is the onus of the State itself. Thus, Part IV has been given the status and expression in the Constitution which lays down the constitutional policy that the State must strive for, if the country is to develop as a welfare State. The weaker section of the people is the lowliest class of people (poorest of the poor), economically and educationally weak who have been given constitutional protection. Their welfare is paramount as can be read from the conjoint reading of Articles 21 and 46 resply of the Constitution.

80. Speaking the constitutional position in this regard, this Court in M.

Thomas (supra) observed as under: –

“126. ….. The Preamble to the Constitution silhouettes a ‘justiceoriented’ community. The Directive Principles of State Policy, fundamental in the governance of the country, enjoin on the State the promotion 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 protect them from social injustice.

To neglect this obligation is to play truant with Article 46. Undoubtedly, economic interests of a group — as also social justice to it — are tied up with its place in the services under the State. …”

81. Article 21 encompasses the right to live with dignity. The right to live with dignity is not an ordinary expression. It has serious meaning attached to it. In the words of the Allahabad High Court (Abdul Moin, J.), “our society is an amalgamation of various classes of people. Some are wealthy. Some are not Some lead life of penance with pleasure. Some lead life of penance due to their fortune. Our Constitution endorses welfare of all classes.” This is why Article 21 has been given wide connotation and expression by the courts, particularly, by this Court to give effect to the constitutional policy of welfare state. The decision of this Court in Unni Krishnan (supra) is an authority on this aspect where the Court confirmed that right to education is implicit under Article 21 and proceeded to identify the content and parameters of this right to be achieved by Articles 41, 45, and 46 resply in relation to education. Understood in this context, Article 46 gives not only solemn protection to the weaker sections of the people at par with the Scheduled Castes and the Scheduled Tribes but speaks of special care to be taken by the State of this section of people. Further, the expression “educational and economic interests” in Article 46 concludes the whole legal position in relation to Article 46 to mean that the State must endeavour to do welfare especially of this section of people. The endeavour of the State to give the weaker section of the people a life of dignity is the link between Articles 46 and 21 resply. The conjoint reading of both the provisions puts constitutional obligation on the State to achieve the goal of welfare of the weaker sections of the people by all means. Article 46 is not based on social test but on the means test. It speaks of “educational and economic interests” of “weaker sections”. The expression “weaker sections” and their “economic interests” are correlative and denote the means status of the people who are to be taken care of. Although, the phrase “economic interests” is not to be read alone but in consonance with the expression “educational” used in Article 46; yet to confuse Article 46 with the “social status” would be to put a strain and nullify otherwise the pure object of Article 46. The distinction can be explained with the aid of Article 15(4). Article 15(4) gives impetus to the social and educational “advancement” of Backward Classes or the Scheduled Castes and Scheduled Tribes. It is an enabling provision for the State to make special provisions for the socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes. The emphasis here is on the upliftment of three constitutionally earmarked classes i.e., Scheduled Castes, Scheduled Tribes and Backward classes. However, Article 46 is wide in expression. The object of welfare under Article 46 is towards those educationally and economically weak. In fact, this Court has laid down in M.R. Balaji (supra) that, “in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Article 46 and the preamble of the Constitution.” Reference in this context may also be made to Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. [See : Atish Kumar v. Union of India, Writ (C) No. 14955 of 2019, High Court of Judicature at Allahabad, Lucknow Bench].
82. Thus, it is evident from the aforesaid that there can be reservation for certain weaker sections other than the SCs/STs and socially and educationally backward classes. The impugned amendment is meant for weaker sections of the society who are economically weak and cannot afford to impart education to their children or are unable to secure employment in the services of the State.
83. Thus, in view of my aforesaid discussion, I am not impressed with the submission canvassed on behalf of the writ applicants that Article 46 of the Constitution cannot be brought in aid to defend the constitutional validity of the impugned amendment.

INTERPRETATION OF THE CONSTITUTION

84. There are certain important differences in the theory of interpretation of a Constitution contrasted with the theory of interpretation of statutes. These differences arise from the very nature and quality of a Constitution. It would be pertinent over here to make a brief reference to these differences. Although the validity of a statute can be assailed on the ground that it is ultra vires (beyond the powers), yet the Legislature which enacted it, the validity of the Constitution cannot be assailed on any ground whatsoever.
85. The framing of the Constitution of a State is a capital political fact and not a juridical act. No court or other authority in the State under the Constitution can, therefore, determine the primordial question whether the Constitution has been lawfully framed according to any standards. Even if a Constitution is framed under violence, rebellion or coercion, it stands outside the whole area of law, jurisprudence and justiciability. The basic principle of constitutional jurisprudence is that the Constitution is the supreme law of the land, even supreme above the law and itself governing all other laws. [Mukharji ‘The New Jurisprudence” p. 103]. But this principle is not applicable to an amendment of the Constitution. The Constitution can be amended only in accordance with the provisions thereof by the authority empowered to do so in accordance with the procedure laid down therein.  The validity of a constitutional amendment can, therefore, be challenged on the ground that it is ultra vires.
86. The interpretation of a Constitution involves more than a passing interest concerning the actual litigants and being a pronouncement of the Courts on the government and administration, has a more general and far-reaching consequence. Chief Justice Marshall of the American Supreme Court, therefore warned in Mcculloch v. Maryland, 4 Wheaton 316, “We must never forget that it is a Constitution we are expounding”. The policy of a particular state is more easily discernible and interpreted than the policy of a Constitution, which is a charter for government and administration of a whole nation and a country. It is that policy consideration which makes the statutory interpretation different from the interpretation of the Constitution. [Mukharji ‘The New Jurisprudence’, p. 105]. More foresight in the nature of judicial statesmanship, therefore, is required in interpreting a Constitution than in construing a statute. The Constitution is not to be construed in any narrow pedantic sense [Per Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578, 614] and a broad liberal spirit should inspire those whose duty it is to interpret it, for a Constitution, which provides for the government of a country, is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void).[Per Gwyer C.J. in Central Provinces Case, (1939) F. C. R. 18 at p. 37]. But this does not mean that a Court is free to stretch for pervert the language of a Constitution in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or for the purpose of correcting supposed errors. [ibid]
87. If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction. [Seervai ‘Constitutional Law of India’ pp.25-27 (Vol.I)] Since it is impossible to make a clear-cut distinction between mutually exclusive legislative powers, it is well settled that in case of conflict, Central Law would prevail over State Law, for otherwise an absurd situation would arise if two inconsistent laws, each of equal validity, could exist side by side within the same territory. [Salmond ‘Jurisprudence’, p.32]
88. Stone J. of the American Supreme Court in United States v. Patrick B. Classic [1941 SCC OnLine US SC 112 _: 313 US 299 (1941)] expressed the important principle of constitutional interpretation in these terms: –

“….in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. Cf. Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Brown v. Walker, 161 U.S. 591, 595, 16 S.Ct. 644, 646, 40 L.Ed. 819; Robertson v. Baldwin, 165 U.S. 275, 281, 282, 17 S.Ct. 326, 328, 329, 41 L.Ed. 715. If we remember that ‘it is a Constitution we are expounding’, we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the Constitutional purpose.”

89. This has been sometimes called as ‘flexible’ or ‘progressive’ interpretation of the Constitution which Dr. Wynes refers to as the doctrine of ‘generic interpretation’.
90. The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State, dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes. [Mukharji ‘The New Jurisprudence’, p. 106]
91. Although a Constitution is not to be fettered by the past history, yet it is relevant for properly interpreting the Constitution. This Court accepted the logic that the Indian Constitution was not written on a ‘blank slate’ and because the Government of India Act, 1935 provided the basic fabric for the Indian Constitution, it was invoked to interpret the Constitution in the light of the provisions of the Act. [P.V. Sundararamier & Co. v. State of A.P. and Others,

1958 SCR 1422 : AIR 1958 SC 468]

92. The principle of ejusdem generis, a rule of statutory interpretation, has been applied to the Indian Constitution by this Court in the State of West Bengal v. Shaik Serajuddin Batley, 1954 SCR 378. The statutory rule of interpretation expressed “Expressio unius est exclusion alterius” (the express mention of one person or thing is the exclusion of another) is not strictly applicable to constitutional interpretation. [Mukharji ‘The New Jurisprudence’, p. 110]
93. It is the fundamental principle of construction that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitution vide Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Others, 1959 SCR 279 : AIR 1958 SC 538. [Reference : Law, Judges and Justice by S.M.N. Raina, First Edn.]
94. In the case of C. Poudyal v. Union of India and Others, 1994 Supp (1) SCC 324, this Court at p. 385, para 124 held as under:

“124. …. In the interpretation of a constitutional document, “words are but the framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that “the intention of a Constitution is rather to outline principles than to engrave details”.”

95. In the case of Kihoto Hollohan v. Zachillhu and Others, 1992 Supp (2) SCC 651, this Court at p. 676, para 27 held as under:

“27. A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances — a distinction which differentiates a statute from a Charter under which all statutes are made. …”

96. In the case of Nagaraj and Others v. Union of India and Others, (2006) 8 SCC 212, this Court at p. 240 & p. 241, para 19 held as under:

“19. The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges.”   [Emphasis supplied]

 DOCTRINE OF BASIC STRUCTURE

97. “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage; therefore, you cannot destroy its identity.” [Minerva Mills Ltd. and Ors. v. Union of India and others, AIR 1980 SC 1789]

98. The doctrine of Basic Structure includes general features of the broad democracy, supremacy of the Constitution, rule of law, separation of powers, judicial review, freedom and dignity of the individual, unity and integrity of the nation, free and fair education, federalism and secularism. The Basic Structure Doctrine admits to identify a philosophy upon which a Constitution is based. A Constitution stands on certain fundamental principles which are its structural pillars and if those pillars are demolished or damaged, the whole constitutional edifice may fall down. The metaphor of a living Constitution is usually used in its interpretive meaning i.e., that the language of the document should evolve through judicial decisions according to the changing environment of society. A

Constitution’s amendment process provides another mechanism for such evolution, as a ‘built-in provision for growth’. Prima facie, the view that a

Constitution must develop over a period of time supports a broad use of the amendment power. Nevertheless, even if we conceive of the Constitution as a living tree, which must evolve with the nation’s growth and develop with its philosophical and cultural advancement, it has certain roots that cannot be uprooted through the growth process. In other words, the metaphor of a living tree captures the idea of certain constraints: ‘trees, after all, are rooted, in ways that other living organisms are not’.  These roots are the basic principles of a given Constitution. [Reference : “Unconstitutional Constitutional Amendments

: A Study of the Nature and Limits of Constitutional Amendment Powers”,

Yaniv Roznai, Thesis, February, 2014]

99. In the words of Carl Friedrich, a German mathematician and physicist:

“A constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper functions, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed.”

100. Therefore, it is not merely a matter of which principles are more fundamental than the others. It is not an exercise of ‘ranging over the constitutional scheme to pick out elements that might arguably be more fundamental in the hierarchy of values’, William Harris correctly claimed, adding that: ‘a Constitutional provision would be fundamental only in terms of some articulated political theory that makes sense of the whole Constitution’. The idea of a hierarchy of norms within the foundational structuralism is to examine whether a constitutional principle or institution is so basic to the constitutional order that changing it – and looking at the whole constitution – would be to change the entire constitutional identity.
101. Gary Jacobsohn, Professor of Constitutional and Comparative Law in the

Department of Government and Professor of Law at the University of Texas at Austin, argues that constitutional identity is never a static thing, as it emerges from the interplay of inevitably disharmonic elements. But changes to the constitutional identity, ‘however significant, rarely culminate in a wholesale transformation of the constitution’.  This is because a nation usually aims to remain faithful to a ‘basic structure’, which comprises its constitutional identity.

‘It is changeable’, Gary writes, ‘but resistant to its own destruction’.

102. Yaniv Roznai in his thesis referred to above, has referred to Water Murphy who argues:

“Thus an “amendment” corrects or modifies the system without fundamentally changing its nature: An “amendment” operates within the theoretical parameters of the existing Constitution. A proposal to transform a central aspect of the compact to create another kind of system – for example, to change a constitutional democracy into an authoritarian state … – would not be an amendment at all, but a re-creation of both the covenant and its people. That deed would lie outside the authority of any set of governmental bodies, for all are creatures of the people’s agreement.”

103. In other words, constitutional changes should not be tantamount to constitutional metamorphosis. Conversely, one should not confuse constitutional preservation with constitutional stagnation. As Joseph Raz writes:

“The law of the constitution lies as much in the interpretive decisions of the courts as in the original document that they interpret … But … it is the same constitution. It is still the constitution adopted two hundred years ago, just as a person who lives in an eighteenthcentury house lives in a house built two hundred years ago. His house had been repaired, added to, and changed many times since. But it is still the same house and so is the constitution. A person may, of course, object to redecorating the house or to changing its windows, saying that it would not be the same. In that sense it is true that an old constitution is not the same as a new constitution, just as an old person is not the same as the same person when young. Sameness in that sense is not the sameness of identity … It is the sameness of all the intrinsic properties of the object. … The point of my coda is to warn against confusing change with loss of identity and against the spurious arguments it breeds. Dispelling errors is all that a general theory of the constitution can aspire to achieve.”

STANDARD OF REVIEW

104. While considering the appropriate standards of review of the constitutional amendments vis-à-vis unamenable principles, Yaniv Roznai has suggested three different levels of standards:
     1. Minimal Effect Standard:

105. The first option is the Minimal Effect Standard. This is the most stringent standard of the judicial review of amendments. According to this standard, any violation or infringement of an unamendable principle is prohibited no matter how severe the intensity of the infringement is, including amendments that have only a minimal effect on the protected principles. On the one hand, one may claim that the importance of the protected unamendable principles – as pillars of the constitution – necessitates the most stringent protection. If the aim of unamendability is to provide for hermetic protection of a certain set of values or institutions, then any violation of these principles ought to give rise to grounds for judicial intervention. On the other hand, such a standard would not only bestow great power to the courts, but also would place wide – perhaps too wide – restrictions on the ability to amend the constitution. The theory of unamendability should not be construed as a severe barrier to change. It should be construed as a mechanism enabling constitutional progress, permitting certain flexibility by allowing constitutional amendments, while simultaneously shielding certain core features of the constitution from amendment, thereby preserving the constitutional identity.

2. Disproportionate Violation Standard :

106. The intermediate standard of review is the Disproportionate Violation Standard. It is an examination of the proportionality of the violation. The principle of proportionality is nowadays becoming an almost universal doctrine in constitutional adjudication. Proportionality generally requires that a violation of a constitutional right has a ‘proper purpose;’ that there is a rational connection between the violation and that purpose; that the law is narrowly tailored to achieve that purpose; and that the requirements of the proportionality stricto (balancing) test are met.  A disproportionate violation of a constitutional right would be considered unconstitutional and thus void. This standard emphasises the balancing of conflicting interests.
     3. Fundamental Abandonment Standard:

107. Fundamental Abandonment Standard is the lowest level of scrutiny. According to this standard, only an extraordinary infringement of unamendable principles, one that changes and ‘fundamentally abandons’ them, would allow judicial annulment of constitutional amendments. This seems to be the approach taken by the German Constitutional Court.
108. One of the initial references to doctrine of basic features and its permanency was in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, observed, that the Constitution “formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?”
109. The doctrine actually came to be in the seminal case of Kesavananda Bharati (supra), where the Supreme Court emphasising on the essence of the basic structure held that “every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.” The concept of basic structure, as such gives coherence and durability to a Constitution, for it has a certain intrinsic force in it.
110. Inspired by the doctrine of Basic Structure enshrined in Articles 1 to 19 of the German Constitution, 1949 (“The Basic Law for the Federal Republic of Germany’), where these principles are based on the premise that democracy is not only a parliamentary form of government but also is philosophy of life based on the appreciation of the dignity, the value and the inalienable rights of each individual human being; such as that of right to life and physical integrity; equality before law; rights to personal honour and privacy; occupational freedom; inviolability of the home; right to property and inheritance. The essence of basic rights could, under no circumstance, be affected.
111. Article 20 of the Federal Republic of Germany provides that Germany is a Democratic and Social Federal State. State authority is derived from the people through elections. All Germans have right to resist anyone seeking to abolish the constitutional order, if no other remedy is available.
112. Article 79 of the Federal Republic of Germany lays down the procedure to amend the Basic Law by supplementing a particular provision or expressly amending the same. However, amendments to the Basic Law affecting the principles laid down in Articles 1 and 20 or affecting the division of federation i.e. participation of Centre and State in the legislative process are inadmissible.
113. The provisions under the German Constitution deal with rights, which are not mere values, rather, they are justiciable and capable of interpretation. Thus, those values impose a positive duty on the State to ensure their attainment as far as practicable. The State must facilitate the rights, liberties and freedoms of the individuals.
114. In India, the doctrine of Basic Structure is a judicial innovation, and it continues to evolve via judicial pronouncements of this Court. The contours of the expression have been looked into by the Court from time to time, and several constitutional features have been identified as the basic structure of the Constitution; but there is not an exhaustive definition or list of what constitutes the ‘basic structure’ of the Constitution – the Court decides from case to case if a constitutional feature can be regarded as basic or not.
115. Kesavananda Bharati (supra) was heard by a Full Bench of this Court consisting of 13 Judges. A majority of Judges held that the view taken in Golak Nath and Others v. State of Punjab and Another, 1967 AIR 1643 : (1967) 2

SCR 762, that the word “law” in Article 13 included a constitutional amendment, could not be upheld.  The said decision was, therefore, overruled. But the Court was sharply split on the question whether the word “amendment” in Article 368 as it stood before its amendment by the 24^th Amendment included the power to alter the basic feature or to repeal the Constitution itself.

116. Six Judges led by Sikri CJ were of the view that the Constitution could not be amended so as to abrogate or emasculate the basic features of the Constitution some of which were characterized by Sikri, CJ as under: –

“(1) Supremacy of the Constitution;

• Republican and Democratic forms of Government;
• Secular character of the Constitution;
• Separation of powers between the legislature, the executive and the judiciary;
• The Federal character of the Constitution.”

117. It was further held that fundamental rights could not be abrogated though reasonable abridgment of fundamental rights could be affected in public interest. According to this view, Parliament would be able to adjust fundamental rights in order to secure what the Directive Principles directed to be accomplished while maintaining the freedom and dignity of the citizens. Khanna, J. took a more liberal view in regard to the power of amendment of the Parliament. He agreed with the above-mentioned six Judges that the power of amendment is not unlimited and made the following pertinent observations in Paragraph 1437:

“1437. ….The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alternations. ………………. The words “amendment of the constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the constitution….”

118. He was, however, of the view that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. He was also of the view that the right to property does not pertain to basic structure or framework of the Constitution (vide Paragraph 1550). In short, the decision of the majority may be stated as under : –
     • Golak Nath case [AIR 1967 SC 1643 : (1967) 2 SCR 762 : (1967) 2 SCJ 486] is overruled;
     • Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution;
     • The Constitution (Twenty-fourth Amendment) Act, 1971, is valid;
     • Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid;
     • The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971, is valid. The second part, namely, “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid;
     • The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

119. Other six Judges led by Ray J. (as he then was) held that the power to amend was wide and unlimited and included the power to add, alter or repeal any provision of the Constitution. They, therefore, upheld all the Constitutional amendments.
120. Seven judges against six thought that the basic structure of the Constitution cannot be altered under the amending power although there was no agreement among themselves about the meaning and content of the so-called basic structure.
121. Sikri, CJ, observed:

“The expression “amendment of this Constitution” does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.”                           [Kesavananda Bharati, at p. 1565.]

122. Shelat and Grover, JJ., said on the scope of amending power under Article 368 as follows:

“Though the power to amend cannot be narrowly construed and extends to all the articles it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features;” [Kesavananda Bharati, at p. 1609-10.]

123. Hegde and Mukherjea, JJ., expressed the same opinion. They said:

“Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution.” [Kesavananda Bharati, at p. 1648.]

124. Reddy, J. was of the same opinion. Khanna, J. held that the amending power of Parliament is very wide under Article 368, but he also imposed certain limitations on the amending power in the name of basic structure of the Constitution. He said:

“….it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the constitution…..” [Kesavananda Bharati, at p. 1860.]

He further said that:

“…..Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and would include within itself the power to amend the various articles of the Constitution. … The power of amendment would also include within itself the power to add, alter or repeal the various articles.”

[Kesavananda Bharati, at p. 1903-04.]

125. Thus, it is very clear that the sense in which Khanna, J., uses the expression ‘basic structure or framework of the Constitution’ is very different from the sense in which six judges led by Sikri, CJ., use the expression ‘essential features or basic features’ of the Constitution. Fundamental rights can be abrogated by the use of the amending power according to Khanna, J., but not so according to six judges led by Sikri, C.J.
126. Ray, J. rejected the idea of any implied limitations on the amending power and thought that the power to amend is wide and unlimited. He said that:

“….There can be or is no distinction between essential and inessential features of the Constitution to raise any impediment to amendment of alleged essential features….” [Kesavananda Bharati at p. 1718]

127. The aforesaid opinion was also shared by Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.
128. Thus, if Kesavananda Bharati (supra) is to be read closely and carefully, it says that there are no limitations on the exercise of Article 368 (which is a constituent power), yet it is subject to the ‘Basic Structure Doctrine’. The origin of the ‘Doctrine of Basic Features’ lies in the fear of an apprehension of constitutional collapse, and anxiety which is exceptional in the life of a Constitution. The ‘Basic Structure Doctrine’ was meant for special use in times when constitutional amendments threatened the fundamental structure of the Constitution. The special stature anticipates a careful use of the doctrine so as to ensure that its unique place is preserved. Vital as the doctrine was, even more important was to exercise some restraint and to ensure its meaningful use. The

‘Basic Structure Doctrine’ has been taken recourse to over and over again with little concern about its restrained use. Professor Satya Prateek,  former  Assistant  Professor,  O.P. Jindal Global University, in one of his essays titled ‘Today’s

Promise, Tomorrow’s Constitution : ‘Basic Structure’, Constitutional Transformations And The Future Of Political Progress In India’ has very rightly stated that the doctrine has been extensively used in affecting policy decisions and its indifferent use is the root cause of the resentment that has brewed against it. Over a period of time, it has been used less for constitutional gate–keeping in times of crisis and more for decisively influencing the course which State policy might take in future. The repeated use of the doctrine of Basic Structure may impair the doctrine itself and it is likely that the idea of constitutional essentialism might not get the respect it deserves from the political institutions. Prof. Satya

Prateek has beautifully explained stating that the ‘Basic Structure Doctrine’ is indeed special, it is a powerful tool we have for constitutional preservation but its special character as well as its authority is severely threatened in a culture of unresponsive use.

129. According to the widely accepted principles of constitutional interpretation, the provisions of a constitution should be construed in the widest possible manner. Constitutional law is the basic law. It is meant for people of different opinions. It should be workable by people of different ideologies and at different times. Since it provides a framework for the organisation and working of a State in a society which keeps on changing, it is couched in elastic terms and, therefore, it has to be interpreted broadly. No generation has a right to bind the future generations by its own beliefs and values. Each generation has to choose for itself the ways of life and social organisation. Constitution should be so adaptable that each generation may be able to make use of it to realise its aspirations and ideals. An amending clause is specifically provided to adapt the Constitution according to the needs of the society and the times. In view of this, no implied limitation can be imposed on the amending power. To do so would be to defeat the very purpose of it. The Constitution-makers had before them the Constitutions of the United States, Australia, Canada, Ireland, South Africa and Germany which they were constantly referring to while discussing and drafting the amending provisions. In all these Constitutions the word ‘amendment’ is used in the widest possible sense. Therefore, our Constitution-makers may be presumed to have used this word in the same broad sense in the absence of any express limitations. [B.N. Rau, Table of Amending Process, Constitutional Precedents, 1^st Series (1947) Hari Chand, Amending Process in the Indian Constitution 96 (1972).]
130. Dwivedi, J., in Kesavanand Bharati (supra) said about the scope of amending power as follows:

“Article 368 is shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and political conditions of its time. Most of the Constitution-makers were freedomfighters. It is difficult to believe that those who had fought for freedom to change the social and political organisation of their time would deny the identical freedom to their descendants to change the social, economic and political organisation of their times. The denial of power to make radical changes in the Constitution to the future generation would invite the danger of extra constitutional changes of the Constitution.

“The State without the means of some change is without means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve.” [Burke, Recollections on the Revolution in France and other Writings. Oxford University Press, 1958 Reprint, p. 23.]”

131. The whole Constitution is basic law. It is not easy to distinguish which part is more basic than the other as there is no objective test to distinguish. [Ray, J., in Kesavananda Bharati (supra) at p. 1675, 1682 & 1684.] Since, there are no objective criteria to distinguish, there are bound to be subjective preferences and choices in deciding what constitutes this so-called basic structure. Even, if it were possible to distinguish essential features from non-essential features, it is not possible to assert that the essential features are necessarily eternal and immutable. [ Mathew, J., Kesavananda Bharati (supra) at p. 1947.] Judging from past history one may doubt if any feature of law and society is unchangeable. What was considered fundamental by one society at one time was abandoned later as an outmoded impediment.
132. Fundamental rights, no doubt, are very important and constitute the bedrock of civilization. But society keeps on changing with the changes in the socioeconomic conditions. The limits of these rights may need constant re-definition. Even their essential content may undergo a radical transformation. To enable necessary adjustments in the legal relationships and to bring them in harmony with social realities, an amending power is provided in all Constitutions. The easier the mode of amendment, the more flexible the Constitution is. In the absence of some amending provision, a Constitution will fail to contain the social changes and is bound to break down. It is a necessary safety valve to allow radical changes through constitutional processes. If the necessary changes cannot be brought through constitutional means, revolution becomes a necessity. Thus, an unlimited amending power and a simple procedure of amendment is an effective means to bring about social revolution through law. The British Constitution offers a very good example of a flexible Constitution with an easy procedure of simple majority vote to bring about any changes in law including constitutional law. Perhaps, this aspect of constitutional law and strong democratic traditions in Britain prompted even Marx to say that probably Britain is the only country where revolution may be brought about through peaceful and democratic means. [Friedrich Engels (ed.) Karl Marx, Capital, (1952. 50 Britannic Great Book Series] Thus, to have wide amending power and easy procedure of amendment is not to undervalue fundamental rights, nor is it an invitation to abolish them but is a means to preserve them through necessary adaptations in harmony with the changed social realities. Stability of fundamental rights lies not in the absence of legal power to remove them but in the social and political support for them. [Reference : Phantom of Basic Structure of the Constitution, Source : Journal of the Indian Law Institute, April-June 1974, Vol. 16]
133. N. Palkhivala has summed up the effect of the majority judgment in his book titled “Our Constitution Defaced and Defiled” in the following words:

“Parliament cannot, in the exercise of its amending power, alter the basic structure or framework of the constitution. For instance, it cannot abolish the sovereignty of India or the free democratic character of the republic; nor can it impair the integrity and unity of India or abolish the States.  (The principle that the basic structure or framework of the Constitution cannot be altered gives a wider scope to the amending power than the principle that none of the essential features of the Constitution can be damaged or destroyed.) The Court’s jurisdiction cannot be ousted as is sought to be done by Article 31C. If the Court’s jurisdiction were ousted, any of the States could pass laws which might lead to the

dismemberment of India.”

134. Thus, Kesavananda Bharati (supra) struck a balance between the rights of the individuals and the powers of the State to curtail those rights. It found a suitable via-media between the two rival philosophies – one favouring the complete sanctity of fundamental rights while the other supporting the complete flexibility of the Constitution. [Reference: Law, Judges and Justice – by Justice S.M.N. Raina].
135. In Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299, the Court, expanding the scope of the basic structure, held that there were four unamendable features which formed part of the basic structure, namely, “(i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion and (iv) The nation shall be governed by a government of laws, not of men.” These, according to them, were “the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution.”
136. The Court also noted that the principle of free and fair elections is an essential postulate of democracy, and which, in turn, is a part of the basic structure of the Constitution. That democracy was an essential feature forming part of the basic structure. In this case, the Court struck down clause (4) of Article 329-A which provided for special provision as to elections to Parliament in the case of Prime Minister and Speaker, on the ground that it damaged the democratic structure of the Constitution. That the said clause (4) had taken away the power of judicial review of the courts as it abolished the forum without providing for another forum for going into the dispute relating to the validity of election of the Prime Minister. It extinguished the right and the remedy to challenge the validity of such an election. The complaints of improprieties, malpractices and unfair means have to be dealt with as the principle of free and fair elections in a democracy is a basic feature of the Constitution, and thus, clause (4) was declared to be impermissible piece of constitutional amendment.
137. However, the Court in this case also observed that “the concept of a basic structure, as brooding omnipresence in the sky, apart from specific provisions of the Constitution, is too vague and indefinite to provide a yardstick to determine the validity of an ordinary law.”
138. In Minerva Mills Ltd. (supra), discussing the standard to be applied to what qualifies as the basic structure, this Court held that “….the features or elements which constitute the basic structure or framework of the Constitution or which, if damaged or destroyed, would rob the Constitution of its identity so that it would cease to be the existing Constitution but would become a different Constitution. … Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance…..”. The Court further held that “Fundamental rights occupy a unique place in the lives of civilised societies and have been variously described in our Judgments as “transcendental”, “inalienable” and “primordial”…..they constitute the ark of the Constitution”. … “….To destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure”.
139. In R. Bommai and others etc. etc. v. Union of India and others etc. etc., AIR 1994 SC 1918, expanding the list of basic features, this Court held that secularism was an essential feature of the Constitution and part of its basic structure. In this case, this Court explained the concept of basic structure of the Constitution, while dealing with the issue of exercise of the power by the Central Government under Article 356 of the Constitution.
140. In Nagraj (supra), the Constitution Bench of this Court dealing with the issue of basic structure observed that “axioms like secularism, democracy, reasonableness, social justice, etc. are overarching principles which provide linking factor for principles of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values”. Such rights have to be respected and cannot be taken away.
141. The framers of the Constitution have built a wall around the fundamental rights, which has to remain forever, limiting the ability of the majority to intrude upon them. That wall is a part of basic structure. [See : R. Coelho (dead) by L.Rs. v. State of Tamil Nadu, AIR 2007 SC 861; See also Kesavananda Bharati (supra)].
142. Thus, “for a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e. to form a part of the basic structure.” [ Nagaraj (supra)]
143. When an issue is raised regarding the basic structure, the question does arise as to whether the amendment alters the structure of the constitutional provisions.

“The criterion for determining the validity of a law is the competence of the lawmaking authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on the mode of exercise of the power.” [M. Nagaraj (supra)]

144. The aforesaid structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot be destroyed by any form of amendment. Parliament cannot expand its power of amendment under Article 368 so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution.
145. In R. Coelho (dead) by L.R.s (supra), a Nine Judge Bench of this Court laid down the concrete criteria for basic structure principle, observing:

“123. … Since power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the constitution, such amendments would be void.….

x                            x                            x                            x

137. ….every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clauses 4 and 5 of Article 368 or Section 4 of 42_nd Amendment have been held to be incompatible with the doctrine of basic structure doctrine as they introduced new elements which altered the identity of the Constitution, or deleted the existing elements from the Constitution by which the very core of the

Constitution is discarded…..”                                   [Emphasis added]

146. Articles 14, 19 and 21 resply represent the fundamental values and form the basis of rule of law, which is a basic feature of the Constitution. For instance, Parliament, in exercise of its amending power under Article 368, can make additions in the three legislative lists contained in the Seventh Schedule of the Constitution, but it cannot abrogate all the lists as that would abrogate the federal structure, which is one of the basic features of the Constitution.
147. To qualify to be a basic structure it must be a “terrestrial concept having its habitat within the four corners of the Constitution.” What constitutes basic structure is not like “a twinkling star up above the Constitution.” It does not consist of any abstract ideals to be found outside the provisions of the Constitution. The Preamble no doubt enumerates great concepts embodying the ideological aspirations of the people but these concepts are particularised and their essential features delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which they aimed to realise, the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution. These specific provisions, either separately or in combination, determine the content of the great concepts set out in the Preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the Preamble. The specific provisions of the Constitution form the yarn from which the basic structure has to be woven.
148. In Supreme Court Advocates-on-Record Association and another v. Union of India, AIR 2016 SC 117, this Court held that there are declared limitations on the amending power conferred on Parliament which cannot be breached. Breach of a single provision of the Constitution is sufficient to render the entire legislation ultra vires the Constitution. The Court held that the basic structure of the Constitution includes supremacy of the Constitution, the republican and democratic form of Government, the federal character of distribution of powers, secularism, separation of powers between the Legislatures, Executive and the Judiciary, and independence of the Judiciary.
149. In Kuldip Nayar v. Union of India & Ors., AIR 2006 SC 3127, this Court, while dealing with the question of political party system vis-à-vis democracy observed that “parliamentary democracy and multi-party system are an inherent part of the basic structure of Indian Constitution. It is the political parties that set up candidates at an election who are predominantly elected as Members of the

State Legislatures.” Further, the Court, placing reliance on Kesavananda Bharati (supra) observed that “….a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party system as well as the system of Cabinet Government are such that the people as a whole can have little control in the matter of detailed law-making”.

150. In Kihoto Hollohan v. Zachillhu (supra), the Court felt that the existence of the Tenth Schedule of the Constitution further strengthens the importance of the political parties in our democratic set-up. Rejecting the argument that the political party is not a democratic entirety, and that Whip issued under the Tenth Schedule is unconstitutional, the Court reiterated that the Parliament was empowered to provide that the Members are expected to act in accordance with the ideologies of their respective political parties and not against it. Thus, ‘Basic’ means the base of a thing on which it stands and on the failure of which it falls.

Hence, the essence of the ‘basic structure of the Constitution’ lies in such of its features, which if amended would amend the very identity of the Constitution itself, ceasing its current existence. It, as noted above is, not a “vague concept” or “abstract ideals found to be outside the provisions of the Constitution”. Therefore, the meaning/extent of ‘basic structure’ needs to be construed in view of the specific provision(s) under consideration, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of governance of the country. [Reference :  paragraphs 108 to 114, paragraphs 135 to 150  from –    Doctrine of Basic Structure : Contours by Dr. Justice B.S. Chauhan Former Judge, Supreme Court of India; dated 16 September, 2018]

151. In the case on hand, the entire debate on the constitutional validity of the

103^rd Constitution Amendment has proceeded on the doctrine of Basic Structure.  If there is one decision of this Court which explains the doctrine of Basic Structure and its reach and effects in the most lucid and simple manner, the same is the case of Glanrock Estate Private Limited v. State of Tamil Nadu, (2010) 10 SCC 96. In the said case, a Bench of three Judges examined the constitutional validity of the Constitution (34^th Amendment) Act, 1974 by which the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 stood inserted in the Ninth Schedule to the Constitution as Item 80. It was argued on behalf of the petitioner therein that the inclusion of Janmam Act in the Ninth Schedule amounted to direct negation and abrogation of judicial review. It was argued that the Constitution (34^th Amendment) Act, 1974 destroyed the basic feature of the Constitution, namely, judicial review.

152. H. Kapadia, CJ, speaking for the Bench, in the Glanrock Estate (supra), has explained certain concepts like the egalitarian equality, overarching principles and reading of Article 21 with Article 14.
153. The learned Judge explained that in applying the above three principles, one has to go by the degree of abrogation as well as the degree of elevation of an ordinary principle of equality to the level of overarching principles. The learned Judge reminded that the case was not one wherein the challenge was to any ordinary law of the land. The Court said that the challenge was to the constitutional amendment. In a rigid Constitution (Article 368) power to amend the Constitution is a derivative power, which is an aspect of the constituent power.
154. In the case on hand also, the challenge is to the exercise of derivative power of the Parliament in the matter of 103^rd Constitution Amendment. Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of Basic Structure and lack of legislative competence. The doctrine of Basic Structure is brought in as a window to keep the power of judicial review intact as abrogation of such a power would result in violation of basic structure. When we speak of discrimination or arbitrary classification, the same constitutes violation of Article 14 of the Constitution. This Court laid stress to keep in mind that the distinction between constitutional law and ordinary law in a rigid Constitution like ours. The said distinction proceeds on the assumption that ordinary law can be challenged on the touchstone of the Constitution. Therefore, when an ordinary law seeks to make a classification without any rational basis and without any nexus with the object sought to be achieved, such ordinary law could be challenged on the touchstone of Article 14 of the Constitution. However, when it comes to the validity of a constitutional amendment, one has to examine the validity of such amendment by asking the question as to whether such an amendment violates any overarching principle in the Constitution. What is overarching principle?

Concepts like secularism, democracy, separation of powers, power of judicial review fall outside the scope of amendatory powers of the Parliament under Article 368.   If any of these were to be deleted, it would require changes to be made not only in Part III of the Constitution but also in Article 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution. When an impugned Act creates a classification without any rational basis and having no nexus with the objects sought to be achieved, the principle of equality before law is violated undoubtedly. Such an Act can be declared to be violative of Article 14. Such a violation does not require re-writing of the Constitution. This would be a case of violation of ordinary principle of equality before law. Similarly, “egalitarian equality” is a much wider concept. It is an overarching principle.  The term “egalitarianism” has distinct definition that all people should be treated as equal and have the same political, economic, social and civil rights or have a social philosophy advocating the removal of economic inequalities among the people, economic egalitarianism or the decentralisation of power.

155. For the purpose of explaining “egalitarian equality” as an overarching principle, this Court in Glanrock Estate (supra) gave an illustration of the acquisition of forests. This Court observed thus:

“26. … This would be a case of violation of ordinary principle of equality before law.

27. Similarly, “egalitarian equality” is a much wider concept. It is an overarching principle. Take the case of acquisition of forests. Forests in India are an important part of environment. They constitute national asset. In various judgments of this Court delivered by the Forest Bench of this Court in T.N. Godavarman Thirumulpad v. Union of India (Writ Petition No. 202 of 1995), it has been held that “inter-generational equity” is part of Article 21 of the Constitution.
28. What is inter-generational equity? The present generation is answerable to the next generation by giving to the next generation a good environment. We are answerable to the next generation and if deforestation takes place rampantly then inter-generational equity would stand violated.
29. The doctrine of sustainable development also forms part of

Article 21 of the Constitution. The “precautionary principle” and the “polluter pays principle” flow from the core value in Article 21.

30. The important point to be noted is that in this case we are concerned with vesting of forests in the State. When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of overarching principle. Equality doctrine has various facets. It is in this sense that in I.R. Coelho case [(2007) 2 SCC 1] this Court has read Article 21 with Article 14. The above example indicates that when it comes to preservation of forests as well as environment vis-à-vis development, one has to look at the constitutional amendment not from the point of view of formal equality or equality enshrined in Article 14 but on a much wider platform of an egalitarian equality which includes the concept of “inclusive growth”. It is in that sense that this Court has used the expression Article 21 read with Article 14 in I.R. Coelho case [(2007) 2 SCC 1]. Therefore, it is only that breach of the principle of equality which is of the character of destroying the basic framework of the Constitution which will not be protected by Article 31-B. If every breach of Article 14, however, egregious, is held to be unprotected by Article 31-B, there would be no purpose in protection by Article 31-B.
31. The question can be looked at from yet another angle. Can Parliament increase its amending power by amendment of Article 368 so as to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in Parliament. It cannot lift all limitations/restrictions placed on the amending power or free the amending power from all limitations.

This is the effect of the decision in Kesavananda Bharati [(1973) 4 SCC 225]. …”

156. This Court, in the aforesaid context, said that the point to be noted, therefore, is that when constitutional law is challenged, one has to apply the “effect test” to find out the degree of abrogation. This is the “degree test” which has been referred to earlier. If one finds that the constitutional amendment seeks to abrogate core values/overarching principles like secularism, egalitarian equality, etc. and which would warrant re-writing of the Constitution, then such constitutional law would certainly violate the basic structure. In other words, such overarching principles would fall outside the amendatory power under Article 368 in the sense that the said power cannot be exercised even by the Parliament to abrogate such overarching principles. The Court proceeded to quote the observations made by Mathew, J. in Indira Nehru Gandhi (supra), that equality is a feature of rule of law and not vice-versa. The expression “rule of law” describes a society in which Government must act in accordance with law. A society governed by law is the foundation of personal liberty. It is also the foundation of economic development since investment will not take place in a country where rights are not respected. The Court said that it is in that sense that the expression “Rule of Law” constitutes an overarching principle embodied in Article 21, one aspect of which is equality.
157. As stated above, the amending power under Article 368 of the Constitution is a derivative power. The doctrine of Basic Structure provides a touchstone on which the validity of the Constitutional Amendment Act could be judged. While applying this doctrine, one need not go by the content of a “right” but by the test of justifiability under which one has to see the scope and the object of the Constitutional Amendment. The doctrine of Classification under Article 14 has several facets. Equality is a comparative concept. This Court proceeded to observe something very important. It said that “a person is treated unequally only if that person is treated worse than others, and those others (the comparison group) must be those who are “similarly situated” to the complainant.”
158. The pivotal or seminal question that falls for my consideration is whether the “similarly situated test” is attracted in the present case so as to say that the egalitarian equality as an overarching principle is violated and has thereby rendered clause (6) of Article 15 and clause (6) of Article 16 invalid as they exclude the SCs, STs and OBCs.
159. In Glanrock Estate (supra), K.S. Panicker Radhakrishnan, J., concurring with S.H. Kapadia, CJ, thought fit to supplement the reasonings by his separate order. Radhakrishnan, J. observed thus:

“79. Right to equality before law, right to equality of opportunity in matters of public employment, right to protection of life and personal liberty, right against exploitation, right to freedom of religion, etc. are all fundamental rights guaranteed under Part III of the Constitution and a common thread running through all the articles in Part III of the Constitution have a common identity committed to an overarching principle which is the basic structure of the Constitution. Rule of law is often said as closely interrelated principle and when interpreted as a principle of law, it envisages separation of powers, judicial review, restriction on the absolute and arbitrary powers, equality, liberty, etc. Separation of powers is an integral part of rule of law which guarantees independence of judiciary which is a fundamental principle viewed as a safeguard against arbitrary exercise of powers, legislative and constitutional.

80. Doctrine of absolute or unqualified parliamentary sovereignty is antithesis to rule of law. Doctrine of parliamentary sovereignty may, at times, make rule of law and separation of powers subservient to the wish of the majority in Parliament. Parliamentary supremacy cannot be held unqualified so as to undo the basic structure. Basic structure doctrine is, in effect, a constitutional limitation against parliamentary autocracy. Let us, however, be clear that the principles of equality inherent in the rule of law do not averse to the imposition of special burdens, grant special benefits and privileges to secure to all citizens justice, social and economic, and for implementing the directive principles of State policy for establishing an egalitarian society.”

                                                                                            [Emphasis supplied]

160. Thus, the word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alteration. As a result of the amendment, the old Constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the Constitution. Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, yet it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy, nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha.
161. Justice H.R. Khanna in one of his lectures delivered at the Delhi Study Group in New Delhi, stated something which is worth taking note of:

“Criticism has been levelled against the concept of basic structure that it creates uncertainty in a vital matter like the power to amend the Constitution. It is urged that unless that concept is put in precise cut and dry form, those amending the Constitution would always remain uncertain whether the constitutional amendment, even though passed by the requisite majority, would be upheld by the courts. In this respect it may be stated that the majority decision of this Court in Kesavananda Bharati case contains sufficient indication by giving illustrations as to what would constitute basic structure of the Constitution. It is never desirable in constitutional matters to put either the provisions or basic propositions in cut and dry form, nor is it proper in such matters to try to be exhaustive for once you do that you forget a vital fact of life that in human affairs there can arise a variety of situations and that it is beyond any human ingenuity to pierce through the visage of time and to contrive for all types of contingencies. It is for that reason that the provision of a Constitution are couched in general terms because that fact gives the provisions flexibility, helps them to grow and enables them to adapt themselves to new situations. Rigidity is one thing which the provisions of a Constitution must shun for such rigidity can result in the break-down of the Constitution in situations where what is needed is resilience and flexibility rather than brittleness and rigidity. Absence of formal exactitude or want of fixity of meaning is not unusual or even regrettable attribute of constitutional provision. Nor is it desirable in such matters to freeze a concept at some fixed stage of thought or time. The US Constitution was framed about 200 years ago. It was designed for a country which at that time was primarily agricultural and consisted of a small number of States. The fact that the said Constitution has stood the test of time and has proved effective for the most industrialized country consisting of a very large number of States is primarily due to the fact that the provisions of its Constitution are couched in general language. As mentioned by a great master the generalities of US Constitution have helped it to grow and adapt its provisions to the varying situations. Although one can never prevent the challenge to any provision, however immaculately drafted, there can be not much doubt about the validity of most of the provisions.”                 [Emphasis supplied]

162. Thus, what is important from the aforesaid is that it is never desirable in constitutional matters to put either the provisions or basic propositions in cut and dry form nor is it proper in such matters to try to be exhaustive for once you do that you forget a vital fact of life that in human affairs there can arise a variety of situations and that it is beyond any human ingenuity to pierce through the visage of time and to contrive for all types of contingencies. The amending power cannot be construed in a narrow and pedantic manner. It cannot be said that no part of Part III can be abridged.  What is violative of the basic structure is the withdrawal of the props on which the edifice stands, will alter the identity of the Constitution. [See : Kesavananda Bharati (supra)].  Only if a right is so abridged that it tends to affect the basic structure or essential content of the right and reduces the right only to a name, will be abridgement or ceases to be an abridgement.
163. If the economic criteria based on the economic indicator which distinguishes between one individual and another is relevant for the purpose of classification and grant of benefit of reservation under clause (6) of Article 15 as held by my esteemed Brother Justice Bhat, then merely because the SCs/STs/OBCs are excluded from the same, by itself, will not make the classification arbitrary and the amendment violative of the basic structure of the Constitution. This is where with all humility at my command I beg to differ with my esteemed Brother Justice Bhat for whom I have utmost and profound respect.
164. Article 14 has two clear facets which are invalid. One is over- classification and the other is under-classification, which is otherwise, overinclusiveness or under-inclusiveness. The judicial review of over-classification should be undertaken very strictly. In the cases of under-classification when the complaint is either by those who are left out or those who are in i.e. that the statute has roped him in, but a similarly situated person has been left out, it would be under-inclusiveness. It is to say that you ought to have brought him in to make the classification reasonable.  It is in such cases that the courts have said that ‘who should be brought in’ should be left to the wisdom of the legislature because it is essentially a stage where there should be an element of practicability. Therefore, the cases of under-inclusion can be reviewed in a little liberal manner. The under-inclusion argument should not be very readily accepted by the courts because the stage could be experimental. For instance, in the case on hand, the argument in the context of 103^rd Constitution Amendment is that SCs, STs and OBCs have been left out, the Court would say that it is under-inclusiveness. The Legislature does not have to bring any and everybody to make it reasonable.  The case on hand is not one of active exclusion.  The SCs, STs and OBCs who have been left out at the first instance are telling the Court that they ought to have been included. In such circumstances, the test would be very strict, not that it would be impervious to review. Had they been included in clause (6) of Article 15 & clause (6) of Article 16 resply at any point of time and thereafter, excluded, it would be legitimate for them to argue that having treated them as one, they cannot be excluded in an arbitrary manner.
165. This Court in the State of Gujarat and Another v. Shri Ambika Mills Ltd. Ahmedabad and Another, (1974) 4 SCC 656, has explained the concept of under-inclusiveness. I quote the relevant observations: –

“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.

55. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification.
56. The first question, therefore, is, whether the exclusion of establishments carrying on business or trade and employing less than 50 persons makes the classification under-inclusive, when it is seen that all factories employing 10 or 20 persons, as the case may be, have been included and that the purpose of the law is to get in unpaid accumulations for the welfare of the labour. Since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognized the very real difficulties under which legislatures operate — difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re-shape — and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched. [Missouri, K & T Rly v. May, 194 US 267, 269] What, then, are the fair reasons for non-extension? What should a court do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters? Should it, by its judgment, force the legislature to choose between inaction or

perfection?”                                                 [Emphasis supplied]

166. Ambica Mills (supra) justified under-inclusiveness on the grounds of recognition of degrees of harm, administrative convenience, and legislative experimentation. Reference was made to Justice Oliver Wendell Holmes’s observation in Missouri, K & T Rly v. May, 194 US 267 (1904), 269, that “legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched”, to state that the judiciary must exercise self-restraint in such cases.
167. The equality code in Article 14 of the Indian Constitution prescribes substantive and not formal equality. It is now a settled position that classification per se is not discriminatory and violative of Article 14. Article 14 only forbids class legislation and not reasonable classification. A classification is reasonable, when the following twin tests as laid down by S.R. Das, J., in The State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284, are fulfilled:
     • The classification must be based on an intelligible differentia which distinguishes persons or things that are grouped, from others left out of the group; and
     • The differentia must have a rational relationship to the object sought to be achieved by the statute.
168. Das J. in Anwar Ali Sarkar (supra) held that there must be some yardstick to differentiate the class included and the others excluded from the group. The differentia used for the classification in the amendment is to promote or uplift the economically weaker sections of citizens who are otherwise not covered under Article 15(4) and Article 16(4) of the Constitution. This is keeping in mind the Directive Principles of State Policy as embodied under Article 46 of the Constitution. Therefore, there is a yardstick used for constituting the class for the purpose of the amendment. To put it in other words, the insertion of the economically weaker sections is perfectly valid as a class for the extension of special provision for their advancement for admission and for reservation in posts.
169. The broad egalitarian principle of social and economic justice for all is implicit in every Directive Principle and, therefore, a law designed to promote a directive principle, even if it comes into conflict with the formalistic and doctrinaire of equality before the law, would most certainly advance the broader egalitarian principles and desirable constitutional goal of social and economic justice for all. [See : Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147]
170. Article 14 of the Constitution of India corresponds to the last portion of Section 1 of the 14^th Amendment of the American Constitution, except that our Article 14 has also adopted the English doctrine of Rule of law by the addition of the words “equality before the law”. However, the addition of these extra words does not make any substantial difference in its practical application. The, meaning, scope and effect of Article 14 of the Constitution of India have been discussed and laid down by this Court in the case of Charanjit Lal Chowdhury The Union of India and others, AIR 1951 SC 41.
171. It could be said that this Court in Seshachalam and Others v. Chairman, Bar Council of Tamil Nadu and Others reported in (2014) 16 SCC 72, has taken the view that the reasonable classification to prevent double benefits under the equality code is permissible. This Court observed thus:

“28. The various welfare fund schemes are in actuality intended for the benefit of those who are in the greatest need of them. The lawyers, straight after their enrolment, who join the legal profession with high hopes and expectations and dedicate their whole lives to the professions are the real deservers. Lawyers who enrol themselves after their retirement from government services and continue to receive pension and other terminal benefits, who basically join this field in search of greener pastures in the evening of their lives cannot and should not be equated with those who have devoted their whole lives to the profession. For these retired persons, some amount of financial stability is ensured in view of the pension and terminal benefits and making them eligible for lump sum welfare fund under the Act would actually amount to double benefits. Therefore, in our considered view, the classification of lawyers into these two categories is a reasonable classification having a nexus with the object of the Act.

29. Furthermore, it is also to be noted that in view of their being placed differently than the class of lawyers who chose this profession as the sole means of their livelihood, it can reasonably be discerned that the retired persons form a separate class. As noticed earlier, the object of the Act is to provide for the constitution of a Welfare Fund for the benefit of advocates on cessation of practice. As per Section 3(2)(d) any grant made by the

Government to the welfare fund is one of the sources of the Advocates’ Welfare Fund. The retired employees are already in receipt of pension from the Government or other employer and to make them get another retiral benefit from the Advocates’ Welfare Fund would amount to double benefit and they are rightly excluded from the benefit of the lump sum amount of the welfare fund.”

                                                                                            [Emphasis supplied]

172. One of the arguments of Mr. Gopal Sankaranarayanan, the learned senior counsel who appeared for the petitioner in Writ Petition (Civil) No. 73 of 2019 that has appealed to me is that the SC/ST/OBCs received political reservation as well as under the Constitution and there are no ceiling limits to the extent of reservation which each of the groups can receive. On the other hand, the EWS reservation is kept at 10% and is not extended to the political reservation, thereby providing a balance. Indisputably, the exclusion in Articles 15(6) and 16(6) resply from the benefits of EWS measures is only of the “classes mentioned” in the Articles 15(4), 15(5) and 16(4) of the Constitution. The contention that the exclusion of these groups is discriminatory overlooks the fact that by exclusion of the creamy layer, the lower economic strata of the SC/ST and OBCs are already represented in the classes covered by the Articles 15(4), 15(5) and 16(4) resply. The sketch below would make it more clear.

173. Let me go back to Kathi Raning Rawat (supra). I have referred to Kathi Raning Rawat (supra) in para 14 of my judgment. Let me reiterate the observations made in Kathi Raning Rawat (supra) which I have incorporated in para 14. I quote once again:

“7. All   legislative  differentiation    is not necessarily discriminatory. In fact, the word “discrimination” does not occur in Art. 14. The expression “discriminate against” is used in Art. 15(1) and Art. 16(2), and it means, according to the Oxford Dictionary, “to make an adverse distinction with regard to; to distinguish unfavourably from others”. Discrimination thus involves an element of unfavourable bias and it is in that sense that the  expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds  mentioned in Arts. 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Art. 14 is different….”

174. Article 15, just like Article 16, is a facet of the right to equality. That right as interpreted in the context of Article 14 is not the right to uniform or identical treatment. It is a right to be treated equally among equals. Unequal treatment of equals is as much violation of that right as equal treatment of unequals. Every difference of treatment is not inconsistent with that right just as every identical treatment is not consistent with it. For determining the consistency of such treatment with the right to equality from time to time different tests such as reasonable classification, suspect classification, or classification lying in between the two, etc. have been devised and applied. But they have not always been able to provide satisfactory explanation, particularly when it comes to affirmative action or positive equality. An all comprehensive and satisfactory test in this regard has been provided by Ronald Dworkin, an American philosopher and scholar of United States Constitutional Law, in his distinction between the right to equal treatment and the right to treatment as an equal. According to Ronald Dworkin, the latter is the fundamental right, while the former is only a derivative right. The right to treatment as an equal consists in equal respect and concern, while the right to equal treatment consists in identical treatment. But identical treatment is neither possible nor consistent with the right to equality. Therefore, what the right to equality requires is equal concern. As long as that concern exists, the difference of treatment is consistent with the right to equality. Not every difference of treatment is per se inconsistent with the right to equality. Only that difference of treatment which is based on lack of equal concern is inconsistent with that right. To illustrate, different treatment on the basis of race, religion or caste is not, in itself, bad so long as equal concern or respect is shown to every race, religion or caste. It becomes vulnerable only when it is based on disrespect, contempt or prejudice to a race, religion or caste. Article 15 prohibits only such and not every difference of treatment based on religion, race, caste, sex, place of birth or any of them. This is very much obvious from the expression “discriminate against” in Article 15 of the Constitution. The State is not prohibited from treating people differently on the basis of religion, race, caste, sex or place of birth; it is prohibited from discriminating against them on these grounds. Discrimination results only when religion, race, caste, sex or place of birth or any of them is made the basis of disrespect, contempt or prejudice for difference in treatment. In other words, if difference in treatment on any of these grounds is not based on any disrespect, contempt or prejudice, it is not discriminatory and, therefore, not against Article 15(1). The same is true for Article 29(2).
175. Articles 15(1) and 29(2) resply while thus prohibiting discrimination or prejudicial or contemptuous difference of treatment on the grounds mentioned in those Articles, Article 15(4) sanctions “special provisions for the advancement of any socially and educationally backward classes … or for the Scheduled Castes and the Scheduled Tribes”. Could it be said or argued that any provision for the advancement of any socially and educationally backward class or for SCs and STs can be termed or characterised as the one based on any prejudice, contempt or insult to any forward class? If the answer is in the negative, then why any provision for the advancement of any economically weaker section of the society excluding SCs and STs should be termed or characterised as the one based on any prejudice, contempt or insult to any backward class?

The aforesaid would equally apply to Article 16 of the Constitution.

[Reference : “Are Articles 15(4) and 16(4) Fundamental Rights” by Prof.

Mahenendra P. Singh, Professor of Law, Delhi University]

176. Patanjali Sastri, CJ in Kathi Raning Rawat (supra) explained:

“7. All   legislative  differentiation    is not necessarily discriminatory. In fact, the word “discrimination” does not occur in Art. 14. The expression “discriminate against” is used in Art. 15(1) and Art. 16(2), and it means, according to the Oxford Dictionary, “to make an adverse distinction with regard to; to distinguish unfavourably from others”. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds  mentioned in Arts. 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Art. 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies.… ”

177. Fazal Ali, J. in his concurring judgment Kathi Raning Rawat (supra) explained the concept in the following words:

“19. I think that a distinction should be drawn between “discrimination without reason” and ”discrimination with reason”.

The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects, may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances….” 

178. In the State of Madhya Pradesh v. Narmada Bachao Andolan and Another, (2011) 7 SCC 639, this Court observed quoting Kathi Raning Rawat  (supra):

“73. Discrimination means an unjust, an unfair action in favour of one and against another. It involves an element of intentional and purposeful differentiation and further an element of unfavourable bias; an unfair classification. Discrimination under Article 14 of the Constitution must be conscious and not accidental discrimination that arises from oversight which the State is ready to rectify. [Vide Kathi Raning Rawat v. State of Saurashtra [AIR 1952 SC 123 : 1952 Cri LJ 805], and Video Electronics (P) Ltd. v. State of Punjab [(1990) 3 SCC 87 : 1990 SCC (Tax) 327 : AIR 1990 SC 820].” 

179. Let me also refer to a speech of the President of the Supreme Court of the United States on “Equality and Human Rights”, Oxford Equality Lecture 2018, Lady Hale dated 29^th October, 2018. The speech starts stating: –

“Equality sounds a simple concept but the reality is very complicated. Is it about where you start – with equal opportunities – or where you end up – with equal outcomes – or something in between – like a level playing field?”

180. Let me now refer to some relevant parts of the speech:

“There must be other people in an ‘analogous situation’ or ‘similarly situated’ who are treated more favourably than the complainant. In ordinary discrimination cases, now under the Equality Act 2010, the equivalent requirement, that the circumstances of the comparator must be the same or not materially different from those of the complainant, can generate a lot of argument. How different is different? I usually give the illustration of Shamoon v Chief

Constable of the Royal Ulster Constabulary [2003] UKHL 11,

[2003] ICR 337: the House of Lords held that the situation of a senior female police officer was not the same as the situation of male officers who had been treated more favourably, because there had been complaints against her from subordinates and not against them. This begs the question of whether the complaints themselves stemmed from discriminatory attitudes towards senior police officers. A better illustration now might be Hewage v Grampian Health Board [2012] UKSC 37, 2013 SC (UKSC) 54, where an Asian female consultant in orthodontics complained of bullying and harassment by her managers and the more favourable treatment given to white male consultants who’d made similar complaints. The Health Board tried hard to argue that their situations were different because of minor differences between them – but we did not agree. 

These arguments arise because under the Equality Act it is not generally a defence to direct discrimination that the difference in treatment is justified. It is tempting, therefore, where a court or tribunal thinks that there might have been a justification to find that the cases are not the same. This is not a problem under article 14 where both direct and indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim. So the approach to comparability ought to be more relaxed, as indeed it is. As Lord Nicholls put it in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL17, [2006] 1 AC 173, para 3: 

“ . . . the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.” 

Thus in most cases it comes down to justification. There is a link here with status. Discrimination on some grounds is more difficult to justify than discrimination on others. In R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311, Lord Walker produced the illuminating idea that personal characteristics are ‘more like a series of concentric circles’ (para 5). The inner circle is innate, largely immutable, and closely connected with personality: gender, sexual orientation, colour, race, disability. Next come nationality, language, religion and politics, which may be innate or acquired, but are all-important to personality and reflect important values protected by the European Convention. Outside those are acquired characteristics, more concerned with what people do or with what happens to them than with who they are, such as military status, residence, or past employment. He put street homelessness into that category: ‘The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify’ (para 5). So denying disability premium to street homeless was justified. Strasbourg has also put immigration status into this category (Bah v United Kingdom (2011) 31 BHRC 609). 

But there is also a link with the subject matter. Discrimination in some areas is easier – much easier – to justify than in others. Generally speaking, we address justification in four questions: is there a legitimate aim; is there a rational connection between the means and the aim; could the aim be achieved by measure which would intrude less upon the fundamental right in question; and has a fair balance been struck between the end and the means? But the test to be applied in striking that balance does differ according to the subject-matter. 

This brings me to the most fraught area of all – welfare benefits. Welfare benefits do more than try to ensure a level playing field on which all start equal and then make of life what they can. Welfare benefits are trying to do something to redress inequality of results: to lift people out of absolute poverty; to redress some of the disadvantage suffered by children growing up in poverty; to make reasonable adjustments to cater for disability. They are not of course trying to achieve absolute equality – just to prevent the worst effects of gross socio-economic inequalities.” 

181. Keeping in view the aforesaid, let me now refer to some of the observations made by this Court in Ashoka Kumar Thakur (supra):

“114. A survey of the conclusions reached by the learned Judges in Kesavananda Bharati case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] clearly shows that the power of amendment was very wide and even the fundamental rights could be amended or altered. It is also important to note that the decision in Berubari Union and Exchange of Enclaves, Reference under Article 143(1) of the Constitution of India, In re [AIR 1960 SC 845 : (1960) 3 SCR 250] to the effect that the Preamble to the Constitution was not part of the Constitution was disapproved in Kesavananda Bharati case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC

225 ] and it was held that it is a part of the Constitution and the Preamble to the Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble visions envisaged in the Preamble. A close analysis of the opinions in Kesavananda Bharati case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] shows that all the provisions of the Constitution, including the fundamental rights, could be amended or altered and the only limitation placed is that the basic structure of the Constitution shall not be altered. The judgment in Kesavananda Bharati case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 ] clearly indicates what is the basic structure of the Constitution. It is not any single idea or principle like equality or any other constitutional principles that are subject to variation, but the principles of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the directive principles of the State policy envisaged in Part IV of the Constitution….”

115. The basic structure of the Constitution is to be taken as a larger principle on which the Constitution itself is framed and some of the illustrations given as to what constitutes the basic structure of the Constitution would show that they are not confined to the alteration or modification of any of the fundamental rights alone or any of the provisions of the Constitution. Of course, if any of the basic rights enshrined in the Constitution are completely taken out, it may be argued that it amounts to alteration of the basic structure of the Constitution. For example, the federal character of the Constitution is considered to be the basic structure of the Constitution. There are large number of provisions in the Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with various aspects of human life. The Constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs.
116. … as regards constitutional amendments, if any challenge is made on the basis of basic structure, it has to be examined based on the basic features of the Constitution.
117. It may be noticed that the majority in Kesavananda Bharati case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] did not hold that all facets of Article 14 or any of the fundamental rights would form part of the basic structure of the Constitution….
118. Equality is a multicoloured concept incapable of a single definition as is also the fundamental right under Article 19(1)(g). The principle of equality is a delicate, vulnerable and supremely precious concept for our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the “basic structure” of the Constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way, may be changed within the constraints of the broader principle. The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity. It is not the introduction of significant and far-reaching change that is objectionable, rather it is the content of this change insofar as it implicates the question of constitutional identity.
119. The observations made by Mathew, J. in Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1 : AIR 1975 SC 2299 : (1976) 2 SCR 347] are significant in this regard [: Quoted and paraphrased in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, p. 673, para 83.] :

“83. … ‘To be a basic structure it must be a terrestrial concept having its habitat within the four corners of the Constitution.’

(Indira Nehru case [1975 Supp SCC 1 : AIR 1975 SC 2299 :

(1976) 2 SCR 347] , SCC p. 137, para 341)

What constitutes basic structure is not like ‘a twinkling star up above the Constitution’. It does not consist of any abstract ideals to be found outside the provisions of the Constitution. The Preamble no doubt enumerates great concepts embodying the ideological aspirations of the people but these concepts are particularised and their essential features delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which they aimed to realise, the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution. These specific provisions, either separately or in combination, determine the content of the great concepts set out in the Preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the Preamble. The specific provisions of the Constitution are the stuff from which the basic structure has to be woven. (Indira Nehru case [Indira Nehru Gandhi v. Raj

Narain, 1975 Supp SCC 1 : AIR 1975 SC 2299 : (1976) 2 SCR

347] , SCC p. 138, para 345)”

x                             x                            x                            x

121. It has been held in many decisions that when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star and the directive principles of State policy as the “book of interpretation”. The Preamble embodies the hopes and aspirations of the people and directive principles set out the proximate grounds in the governance of this country.

x                            x                            x                            x

373. Affirmative action is employed to eliminate substantive social and economic inequality by providing opportunities to those who may not otherwise gain admission or employment. Articles 14, 15 and 16 allow for affirmative action. To promote Article 14 egalitarian equality, the State may classify citizens into groups, giving preferential treatment to one over another. When it classifies, the State must keep those who are unequal out of the same batch to achieve constitutional goal of egalitarian society.”

182. I am of the view as Prof. Satya Prateek rightly puts that the enabling provisions, varying enforcement mechanisms and the State opinion on backwardness, reservation, adequate representation etc., in any circumstances cannot be recognised as the fundamental or basic structure of the Constitution. By their very nature, they are bound to change, with time, location and circumstances. On the other hand, the fundamental tenets or the core principles of the Constitution are foundational – they are at the core of its existence. They are seminal to the Constitution’s functioning. The Constitution retains its existence on these foundations as they preserve the Constitution in its essence. This is not to mark out the possibilities of structural adjustments in the foundations with time. The foundations may shift, fundamental values may assume a different meaning with time but they would still remain to be integral to the constitutional core of principles, the core on which the Constitution would be legitimately sustained. (Reference: Virendra Kumar, Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled Governance, 49:3, Journal of the Indian Law Institute, 365, 385 (2007))
183. Virendra Kumar believes that there is a difference between the fundamental rights and the values that structure such fundamental rights. He views the values to have an overarching influence and says that it is totally possible to hold that violation of the fundamental rights in certain situations, may not infringe the fundamental values in their backdrop. (Reference –Essay by Satya Prateek).
184. The ad hoc policies of the State directed towards achieving a larger, fundamental standard of equality, cannot by itself become fundamental. Fundamental would only be the principle and not the way these principles are sought to be realised. Such mechanisms which facilitate ‘equality of opportunity in public employment’ as guaranteed under Article 16 of the Constitution are ad hoc They could be suitably modified with passage of time or even be done away with for a more suitable, convenient and efficient reservation policy, largely dependent on the State’s own understanding of the best way to pursue the constitutional ends.
185. This Court in Ajit Singh and Others v. State of Punjab and Others reported as (1999) 7 SCC 209 (5-Judge Bench) after quoting with approval the law laid down in its previous judgments in R. Balaji (supra) and C.A. Rajendran v. Union of India & Others reported as (1968) 1 SCR 721 : AIR 1968 SC 507 ruled that there is no duty on the Government to provide reservation. The Court held that both Articles 16(4) and 16(4A) resply do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those articles so warranted.
186. Each one of these Constitutional provisions that are categorised as rights under Part III has intrinsic value content. Many of these rights are a part of the mechanism geared towards realising a common constitutional principle. For example, Articles 14, 15 and 16 resply of the Constitution are committed to the common principle of equality. Reasonably then, if an amendment is to be struck down under the ‘basic structure’ formulation, the central principle of these interrelated provisions should be at threat. A mere violation of one of these enabling provisions would not be of much consequence under the doctrine of Basic Structure as long as such violation does not infringe upon the central thesis of equality. Redress for marginal encroachment cannot be found under the ‘Basic Structure Doctrine’. In considering the effect of an amendment on the constitutional core, it is important to keep in mind the widest ramifications of the amendment. It is imperative to contemplate and consider every way in which the

‘basic structure’ of the Constitution might be threatened through the impugned amendment. The amendment would stand as constitutional only after a satisfactory understanding as to its effect on the constitutional core is reached by the courts. To sustain itself, the amendment should not violate such core in the widest interpretation given to it.  (Reference : Prof. Satya Prateek’s essay)

187. The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation. It may be perceived as a first step in the process of doing away with caste-based reservation. In the words of Nani A. Palkhivala, “……The basic structure of the Constitution envisages a cohesive, unified, casteless society. By breathing new life into casteism the judgment (Mandal-Indra Sawhney) fractures the nation and disregards the basic structure of the Constitution. The decision would revitalize casteism, cleave the nation into two – forward and backward – and open up new vistas for internecine conflicts and fissiparous forces, and make backwardness a vested interest. It will undo whatever has been achieved since independence towards creating a unified, integrated nation. The majority judgment (Mandal) will revive casteism which the Constitution emphatically intended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivileged would now become the privileged…..”
188. Baba Saheb Ambedkar recognised fraternity as a necessary principle for the survival of Indian democracy. He defined fraternity as the ‘common brotherhood of all Indians’. In his revolutionary, yet undelivered speech titled ‘Annihilation of Caste’, he described fraternity as the ‘essential attitude of respect and reverence towards fellowmen’.
189. Let me remind one and all of what this Court observed almost five decades back in Minor Peeriakaruppan v. State of Tamil Nadu and Others [(1971) 1 SCC 38 : AIR 1971 SC 2303]:

“29. …. But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest.….”          [Emphasis supplied]

190. Thus, reservation is not an end but a means – a means to secure social and economic justice. Reservation should not be allowed to become a vested interest. Real solution, however, lies in eliminating the causes that have led to the social, educational and economic backwardness of the weaker sections of the community. This exercise of eliminating the causes started immediately after the Independence i.e., almost seven decades back and it still continues. The longstanding development and the spread of education have resulted in tapering the gap between the classes to a considerable extent. As larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories so that the attention can be paid toward those classes which genuinely need help.  In such circumstances, it is very much necessary to take into review the method of identification and the ways of determination of backward classes, and also, ascertain whether the criteria adopted or applied for the classification of backward is relevant for today’s conditions. The idea of Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years. However, it has continued past seven decades. Reservation should not continue for an indefinite period of time so as to become a vested interest.
191. In the result, I hold that the impugned amendment is valid and in no manner alters the basic structure of the Constitution.
192. I am of the view that all the petitions challenging the impugned amendment should fail.

..……………..……….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. 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, W.P.(C) No. 146/2019, W.P. (C) No.

168/2019, W.P. (C) No. 178/2019, W.P. (C) No. 182/2019]

J U D G M E N T

1. RAVINDRA BHAT, J.

Table of Contents

1. Context and history of reservations……………………………………………………………. 4
2. Dealing with the basic structure……………………………………………………………… 10
3. Important cases on the doctrine……………………………………………………………….. 10
4. Test for determining basic structure…………………………………………………………. 14

III.  Re Question 3: analyzing the exclusionary clause “other than” and whether it offends the basic structure……………………………………………………………………….. 22

1. Historical analysis of the Equality Code……………………………………………………. 24

(i)  Article 15…………………………………………………………………………………………………………………….. 24

(ii) Article 16…………………………………………………………………………………………………………………….. 27

(iii) Article 17……………………………………………………………………………………………………………………. 29

(iv) Other provisions in the Constitution……………………………………………………………………………… 33

1. Content of Equality Code………………………………………………………………………… 34
2. Equality Code is a part of the basic structure…………………………………………….. 37
3. Impact/effect of the phrase “other than” in the impugned amendment…………… 45

(i)  Test of reasonable classification…………………………………………………………………………………… 45

(ii) Individual – as the beneficiary……………………………………………………………………………………… 52

(iii) Violation of the basic structure……………………………………………………………………………………. 54

1. Re Question No. 1: permissibility of special provisions (including reservation) ……………………………………………………………………………………………………

based on economic criteria…………………………………………………………………………… 56

1. Judicial observations on economic criteria………………………………………………… 56
2. State’s obligations under Directive Principles to fulfil mandate of substantive equality…………………………………………………………………………………………………….. 60
3. Flexibility of constitutional amendments to enable substantive equality…………. 61
4. Purpose that the amendment seeks to achieve through introduction of economic criteria………………………………………………………………………………………………………….
5. Conclusion on permissibility of economic criteria per se………………………………. 67
6. Consideration of Article 16(6)………………………………………………………………… 67
7. Re: Question 2: special provisions based on economic criteria, in relation to admission to private unaided institutions…………………………………………………….. 71

VII.  Addressing other related challenges to, and justifications of the impugned .

Amendment………………………………………………………………………………………………… 73

1. Possibility of reading down the exclusion…………………………………………………… 73
2. Absence of ‘guardrails’ to deny economic criteria per se……………………………… 75
3. Basic structure doctrine as a discernible concept………………………………………… 76
4. Whether an enabling provision can violate the basic structure……………………… 78
5. Parallel with exclusion of creamy layer……………………………………………………… 83
6. Other justifications for the classification……………………………………………………. 84

(i)  Reasonable classification to prevent double benefits……………………………………………………… 85

(ii) Scope of Article 46……………………………………………………………………………………………………….. 86

(iii) EWS as a ‘compensatory’ measure………………………………………………………………………………. 88

1. The breach of the 50% cap – A note of caution…………………………………………… 92

VIII. Conclusion………………………………………………………………………………………….. 93

1. The principles of non-discrimination and fraternity in the constitutional ethos.. 94
2. Summary of findings in Questions 1-3………………………………………………………. 97

        65

1. I regret my inability to concur with the views expressed by the majority opinion on the validity of the 103^rd Amendment on Question No. 3, since I feel – for reasons set out elaborately in the following opinion – that this court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion. In my considered opinion, the amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the basic structure.
2. At the outset, I must state that I am in agreement that the addition, or insertion of the ‘economic criteria’ for affirmative action in aid of the section of population who face deprivation due to poverty, in furtherance of Article 46, does not per se stray from the Constitutional principles, so as to alter, violate, or destroy its basic structure. As long as the State addresses deprivation resulting from discriminatory social practices which have kept the largest number of our populace in the margins, and continues its ameliorative policies and laws, the introduction of such deprivationbased affirmative action, is consistent with constitutional goals. What, however, needs further scrutiny, (which this opinion proposes to address presently) is whether the manner of implementing – i.e., the implicit exclusion of those covered under Art. 15(4) and 16(4) [Scheduled Castes

(“SC”), Scheduled Tribes (“ST”), and socially and educationally backward classes (“SEBC”)], cumulatively referred to as ‘backward classes’] violates, or damages the basic structure or essential features of the Constitution.

3. Therefore, I will first address the point of my disagreement – Question 3 [Part III] followed by a discussion on Question 1 [Part IV]; I have also separately considered economic criteria vis-a-vis Article 16, specifically [Part V]. I have given my additional reasoning on Question 2 [Part VI]. Since all three questions framed by this court, entail an examination under the doctrine of basic structure, I find it necessary to lay out the contours of this doctrine, the standard of review for identifying the essential feature or principle, and for application of the doctrine itself [Part II].

               I.        Context and history of reservations

4. Given that it has been exhaustively recounted in the judgment of Justice Dinesh Maheshwari – it is unnecessary for the purpose of this opinion to retrace the history of how affirmative action and reservations in India have been worked out; I have briefly outlined what is relevant to my analysis.
5. Aside from the allusion to Maharaja Chhatrapati Shahuji’s reservation of 50% (in 1902), the kind of affirmative action one sees today, can be traced to the 1931 census which separately determined the  “depressed classes”. Premised on this, the Government of India (Scheduled Castes) Order, 1936^[63] enlisted a large number of communities which faced the brunt of caste stigma and other socially evil practices. Parallelly, in several princely

states disparate efforts were made to ameliorate the lot of such communities and castes, that had been discriminated against and marginalised for centuries. This history informs a large part of the Constituent Assembly debates, during which, member after member, reiterated the fledgling nation’s determination not only to ensure equality before law, and equal protection of the law, but travelling beyond that, to ensuring substantive equality of opportunity and access to public places, goods, employment, etc.

6. One of the first cases that this court decided was State of Madras v. Champakam Dorairajan^[64], where this court held to be unconstitutional, a communal reservation which fixed quotas for different communities and castes – this led to insertion of Article 15(4) by the Constitution (First Amendment) Act. The next important case was R. Balaji v. State of Mysore³ where this court held that reservations cannot be solely based on caste, and rather would have to satisfy the test of social and educational backwardness, as per the (then) text of the Constitution. It was held that the result of poverty, to a large extent, was that the poor class of citizens automatically became socially backward. They did not enjoy a status in society and were therefore, forced to take a backward seat. Other decisions followed the law declared in M.R. Balaji – In T. Devadasan v. Union of India⁴, too, a rule enabling carrying forward of SC vacancies which resulted in almost 2/3^rd of the vacancies being earmarked for SC candidates, was adversely commented upon and held to be unconstitutional. The majority remarked importantly that the reason for backwardness of SC/ST communities was due to “historical causes” and that the “purpose of Article 16(4) is to ensure that such people, because of

their backwardness should not be unduly handicapped in the matter of securing employment in the services of the State”. Reservations is therefore “in favour of backward classes who are not adequately represented in the services under the State”. The court also said that a rule for reservation and posts for such backward classes “cannot be said to have violated Article 14”, as advanced classes cannot be considered for appointment to such posts because “they may be equally or even more meritorious than the members of the backward classes”.

7. However, in an illuminating dissenting, Subba Rao, J, highlighted the linkages between Articles 14, 15 and 16, stressing on the fact that Article 16(4) was a facet of Article 16(1):

“26. Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race—one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Art. 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article.”

8. A majority of the 7-judge bench in State of Kerala v. N.M. Thomas^[65], accepted this dissenting view of K. Subba Rao, J. (in Devadasan). In N.M. Thomas, a rule exempting SC candidates from qualifying in a departmental examination for a longer duration than others, was upheld by the Supreme Court. The court noted that:

• The basic content of Articles 14, 15(1) and 16(1) constituted a code in that Articles 15(4) and 16(4) was to enable equality of opportunity for class which would otherwise have been excluded from appointment. Hence, any preferential rule for backward classes, could not be unconstitutional;
• Article 16(1) permits classification and Article 16(4) is not an exception to Article 16(1);
• A classification is reasonable if it includes all persons who are similarly situated with respect to the purpose⁶;
• Article 16(1) sets out a positive aspect of equality of opportunity in matters of public employment and Article 16(2) negatively prohibits discrimination on the enumerated grounds in the area covered by Article 16(1);
• But for Article 16(4), 16(1) would have prevented preferential treatment for reservations for backward classes of citizens.

It was held that Article 16(4) was introduced to reconcile Article 16(1) [representing the dynamics of ‘justice’ conceived as ‘equality’, in conditions under which candidates actually competing for posts in the Government] and Articles 46 and 335 embodying the duties of the State so as to protect them from the inequities of social injustice. These

encroachments in the field of Article 16(1) can only be permitted if they are warranted under Article 16(4).

9. The most authoritative decision on the point of reservations was the nineJudge ruling in Indra Sawhney v. Union of India^[66]. The court also had the occasion to consider the validity of an office memorandum which introduced a 27% quota in favour of other backward classes in relation to Central Government posts and services. The verdict was not a unanimous one. There were six opinions. The broadest summary of those opinions:
   • the reference to backward classes of citizens within Article 16(4) refers to social and educational backwardness;
   • Article 16(4) is a facet and part of Article 16(1), and not an exception to the latter. The judgment of Jeevan Reddy, J explains the ruling in M. Thomas on this point approvingly at paragraph 713 (SCC p. 672-674);
   • Caste alone cannot be the determining factor to decide social and educational backwardness and that a caste can be and can often be a social class in India;
   • The economic criterion alone for determining backwardness of classes or groups is impermissible, because the indicators are social and educational backwardness having regard to the express terms of Articles 15(4) and 16(4);
   • There can be sub-classification amongst backward classes of citizens for the purpose of ensuring that most vulnerable groups benefit;
   • There can be no reservations in promotions under Article 16(4); and
   • The “creamy layer” or more affluent sections of other backward classes had to be identified by the state to ensure that the most

deprived sections were not kept out. Such categories could not claim the benefit of reservation.

10. Nagaraj v. Union of India^[67], Ashok Kumar Thakur v. Union of India^[68], K. Krishna Murthy v. Union of India^[69], Pramati Educational & Cultural Trust v. Union of India^[70], Chebrolu Leela Prasad Rao v. State of A.P^[71], and Jaishri Laxmanrao Patil v. State of Maharashtra^[72], are the other significant decisions, rendered by Constitution Benches, after Indra Sawhney on this. In M. Nagaraj, the court negatived a challenge to Article 16(4-A and B) introduced by a Constitutional amendment on the ground that it violated the basic structure principle. The court held that though facets of equality were part of the basic structure, the provision Article 16(4A) permitting reservations in promotion for SC/STs did not violate the basic structure. The amendment in fact, restored the situation which existed due to prior court rulings that such reservations in promotion were permissible. The court also held that the “catch-up rule”¹⁴ was not an rule of equality, or a constitutional principle that could not be overborne.¹⁵ The court, in M. Nagaraj, discussed the principles underlying the basic structure doctrine, as well as the applicable tests to determine it (which I have referred to in the following section).

               II.      Dealing with the basic structure

11. I agree with the judgment of Justice Dinesh Maheshwari in its tracing of the doctrine of basic structure, and its journey, through past precedents spanning nearly five decades. I will however, record a few additional conclusions based upon my reading.

A. Important cases on the doctrine

12. The court’s polyvocal majority in Kesavananda Bharati v. State of Kerala^[73], did not offer unanimity on the key elements of the constitution, or the values underlying it, as essential features. What however, the judges constituting the majority were clear, was that the power of amendment needed regulation, or control, through the basic structure doctrine. For the purpose of brevity – and compactness, it would be sufficient to notice the analysis and summary^[74] of the majority in Kesavananda Bharati, made by the majority opinion of Chandrachud, CJ, in Minerva Mills v. Union of India^[75] (paragraph 7-11, SCC).
13. In Indira Nehru Gandhi v. Raj Narain¹⁹, this court invalidated provisions of the 39^th Constitutional Amendment (which resulted in taking away the court’s adjudicatory powers and vesting it in a tribunal, which was to decide legality of elections of four specified functionaries), as violative of

the basic structure doctrine – specifically the principle of rule of law, and the doctrine of separation of powers. Chandrachud, J. in his judgment made pertinent observations about what constitutes the basic structure, and how equality is an integral part of it. Speaking about the basic structure, he said:

“664. I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are that: (i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion and that (iv) the nation shall be governed by a Government of laws, not of men. These, in my opinion, are the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution.”

[…]

691. 6 […] The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. “The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features — this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.”

14. K Mathew, J. made general observations with regard to the fact that the basic structure should be rooted in some provisions of the Constitution and also importantly, flagged the equality code as one of the basic features of the Constitution.
15. This court’s decision in Minerva Mills marks a watershed moment in the journey of the basic structure doctrine. The court had to decide on the validity of Sections 4 and 55 of the 42^nd Amendment Act^[76] which sought to nullify the basic structure doctrine itself, by amending Article 368^[77]; and

amendment to Article 31C which sought to immunize all laws which declared that they were made to advance all or any of the provisions of Part IV of the Constitution. The court reiterated the basic structure doctrine, and held that the amendment to Article 368, which sought to fetter the court’s inquiry into the validity of constitutional amendments, violated the basic structure. By a majority decision of 4:1, the court held that the amendment to Article 31C too violated the basic structure.

16. Judicial review was the value, which the court held to be violated in other decisions as well – such as in Sambamurthy v. State of A.P^[78], Kihoto Hollohan v. Zachillhu ^[79], in L. Chandra Kumar v. Union of India^[80]. In the latter, it was held that judicial review, through Articles 32 and 226 are part of the basic structure of the Constitution. Thus, here, for the first time, specific provisions were held to be part of the basic structure. Raghunathrao Ganpatrao v. Union of India²⁵ held that the deletion of provisions – held to be an “integral” part of the constitution (by the judgment of a 11-judge bench, when the basic structure doctrine was not recognized), did not violate the basic structure, or lead to loss of its identity. The majority judgment in Kihoto Hollohon is narrowly premised^[81]; it severed a part of the offending portion of the 52^nd Amendment, to the extent it excluded judicial review, since its deletion was procedurally unsustainable, given the text of Article 368, which requires that such

amendments need ratification by the legislatures of one half of the total states forming the Union.  

17. Next, in Nagaraj, this court tersely stated that the standard to be applied in evaluating whether an amendment has also modified the overarching principles, that inform each and every fundamental right and link them, is to find whether due to such change we have a completely different Constitution. In particular, after summarising various opinions in Kesavananda Bharati, the court observed that “[t]he basic structure jurisprudence is a preoccupation with constitutional identity.” The object of which is “continuity” within which “continuity of identity, changes are admissible”. The court, however refused to strike down Article 16(4B) [which had sought to overrule decisions of this court, to the effect that when reservations are resorted to in promotions, leading to accelerated promotions, the non-reserved category of employees, upon their promotions should be permitted to retain or “catch up” their previous seniority]. The court made certain general observations which are relevant, and are extracted below:

“102 … Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets— “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 the 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.

18. The other decisions in R. Coelho and Pramati, too dealt with facets of basic structure. I shall be discussing I.R. Coelho and M. Nagaraj, later, more elaborately, when dealing with the equality code, and its facets being intrinsic to the basic structure of the Constitution.

B. Test for determining basic structure

19. It was remarked in Indira Gandhi that:

“661.…The subject-matter of constitutional amendments is a question of high policy and Courts are concerned with the implementation of laws, not with the wisdom of the policy underlying them….”^[82]

It is axiomatic that a constitutional provision cannot be construed in the same manner as a legislative enactment, delegated legislation, or executive measure. All those can be subjected to judicial review on distinct heads such as legislative competence, constitutional limitations (such as in Part III or Part XI of the Constitution), ultra vires the parent enactment or constitutional limitation (delegated legislation), illegality, conflict with provisions of the constitution, Wednesbury unreasonableness, unfair procedure, proportionality, or other grounds of administrative law review (executive action).

20. Logically, then, the applicable standard of review of constitutional amendments should be higher – also because the procedure adopted to amend, under Article 368, is special, and requires two-third majority in favour of any proposed amendment, with the super-added provision in case of amendments to certain enumerated provisions, of resolutions approving the amendment by a majority of the legislatures of all states as well. This exercise of constituent power, therefore, cannot be subjected to the same standard of review, as in the case of legislative or executive actions. The clearest enunciation of this was in Chandrachud, J’s opinion in Indira Gandhi:

“691. […] Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution, and (2) it must not offend against the provisions of Articles 13(1) and (2) of the Constitution. ‘Basic structure’, by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. … ‘The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features’—this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.”

At another place, the same learned judge (Chandrachud, J) observed that:

“663. […] For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance…”^[83]

[…]

“692. […] There is no paradox, because certain limitations operate upon the higher power for the reason that it is a higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations.”^[84]

21. In Nagaraj upon review of previous authorities, this court indicated the methodology of determining whether a constitutional amendment violates the basic structure:

“24. The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism, etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules.

25. For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, is the second step to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of Parliament. To sum up : in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the Only then, can it be examined whether it is so fundamental as to

bind even the amending power of Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.

26. […] secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice, etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. For example, under the German constitutional law, human dignity under Article 1 is inviolable. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give (sic be given). It simply is. Every human being has dignity by virtue of his existence. The constitutional courts in Germany, therefore, see human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of basic structure stands evolved under the German Constitution and by interpretation given to the concept by the constitutional courts.
27. Under the Indian Constitution, the word “federalism” does not exist in the Preamble. However, its principle (not in the strict sense as in USA) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the Seventh Schedule to the Constitution.
28. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225] it has been observed that “one cannot legally use the Constitution to destroy itself”. It is further observed “the personality of the Constitution must remain unchanged”. Therefore, this Court in Kesavananda Bharati [(1973) 4 SCC 225] while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati [(1973) 4 SCC 225] . To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. Secularism in India has acted as a balance between socio-economic reforms which limits religious options and communal developments. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.”

                                                                                  (emphasis supplied)

 Thus, the test of “identity” which some of the judges in Kesavananda

Bharati indicated, as of the core of the basic structure doctrine, was restated, and elaborated upon in M. Nagaraj as the concept or doctrine of

‘constitutional identity’. The standard of review, it was held was that firstly, the essential feature must be a constitutional law principle, which is binding on the legislature and secondly, the analysis is whether such principle is so fundamental that it must restrict even the Parliament’s amending power (see paragraph 25, extracted above).

22. This court has, in applying the test, followed the historical approach in conducting substantive basic structure review. This method was indicated by Chandrachud, J in Waman Rao v. Union of India^[85]. In this case, Articles 31-A, 31-B, and 31-C which had been introduced to advance the land reform programmes were challenged as violations of the basic structure of the Constitution. Chandrachud, J observed that the “questions have a historical slant and content: and history can furnish a safe and certain clue to their answer”. After considering the history of the newly inserted provision (by the first Amendment Act, 1951) it was held that

“24. …Looking back over the past thirty years of constitutional history of our country, we as lawyers and Judges, must endorse the claim made … that if Article 31-A were not enacted, some of the main purposes of the Constitution would have been delayed and eventually defeated  and that by the 1^st Amendment, the constitutional edifice was not impaired but strengthened.”

23. An independent justification for the amendments was of implementing the constitutional purposes as outlined in Article 39(b) and (c), i.e., “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. The historical approach was also apparent, when this court considered the amendments which

deleted Articles 291 and 362 of the Constitution in Raghunathrao Ganpatrao, as well as in Kihoto Hollohon.

24. Likewise, in C. Poudyal v. Union of India^[86], where this court, speaking through three different judgments (one of them a dissenting judgment, by L.M. Sharma, CJ) used history of the amendment, and contrasted it with the history of the provisions of the Constitution. The impugned provision, Article 371F(f) enabled representation of members of the Buddhist Monasteries, in the Sikkim Legislature. The dissenting view held that the provisions for reservation in state assembly, based upon religion, violated the basic structure of the Constitution. The majority judgment upheld the amendment, as necessary because of historical continuity, and the need to assimilate Sikkimese society within the republic. However, the majority at the same time, also stated that such a conclusion might not have been the same, if such reservation were introduced elsewhere:

“128. […] These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium. The political and social maturity and of economic development might in course of time enable the people of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future — one hopes sooner — usher-in a more egalitarian dispensation. Indeed, the impugned provisions, in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character.  129. It is true that the reservation of seats of the kind and the extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass the Constitutional muster”. But in relation to a new territory admitted to the Union, the terms and conditions are not such as to fall outside the permissible constitutional limits. Historical considerations and compulsions do justify in equality and special treatment...”

(emphasis supplied)

25. Judicial review of legislation on the touchstone of their validity vis-à-vis fundamental rights, is an analogy closest to constitutional amendment review, on the ground of its conformity to the basic structure. It is an entirely different kind of review that “imposes substantive limits on the

scope of constitutional amendment. However, these limits or basic features are identified as constitutional principles which are distinct from the constitutional provisions which embody these principles” ^[87]. Drawing from the remarks in Minerva Mills and Indira Gandhi. Dr. Krishnaswamy notes in his work that this form of basic structure review has to account for the distinction between

“ordinary democratic law making and higher level democratic law making, it must rightly identify the different limits on these two forms of law making. Only an independent model of basic structure review which ensures that constitutional amendments do not destroy core constitutional principles can fulfil this requirement.”³³

26. It also needs to be noticed that when the court conducts a constitutional amendment validity review, to consider if it violates the basic structure, apart from the standard, the discussion is rooted in the lexicology of judicial review, developed from the jurisprudence of past precedents. In other words, the difference in standard which this court adopts does not result in a difference in the approach, to consider if the amendment violates the basic structure. In judicial review, of a legislation, which violates the provisions of the constitution, the court considers the law, its impact on the fundamental right, its object and its reasonableness or In basic structure review, likewise, the subject of scrutiny is the amendment, its content, its impact on the overarching value or principle, which is part of the basic structure, and whether that impact destroys or violates the identity of the Constitution. Illustratively, in Kihoto Hollohon, the court dealt with the constitutionality of amendments, introducing the X^th Schedule to the Constitution and considered past cases, interpreting the

Constitution to see if the newly added provisions accorded with the

existing Constitution. In R.C. Poudyal, the court upheld reservation in favour of Buddhist monasteries, and explained that it was for continuity. The court drew upon the equality jurisprudence. The minority and dissenting views also relied heavily upon past judicial precedents to underscore the importance of prohibition against religion-based discrimination and reservation not necessarily dealing with the validity of constitutional amendments alone, but to bring out the idea of judicial review. The same goes for the five judge decision in Supreme Court Advocates on Record Association (SCAORA) v. Union of India^[88] in which the value of an independent judiciary, and what it is expected to achieve in a democracy was underlined, by reference to past cases which did not deal with constitutionality of amendments. Hence, even while judicial review of constitutional amendments carries with it a standard higher than judicial review of law or executive action, and uses a particular methodology or test to discern whether the amendment changes or damages the basic structure, the court at the same time, draws upon past precedents its exercise of judicial review, and the resulting interpretation of the Constitution, as it exists.

27. This idea – of a distinct category of judicial review, which deals with constitutional amendment review, was also voiced in Nagaraj.^[89] In basic structure review parlance, the legitimate role of the court is to evaluate whether, in the given case, the “identity” of the Constitution is

affected so as to violate the basic structure and to apply the “direct impact” test (as propounded in I.R. Coelho).

28. It is evident that at different points in time, different values that underlie the Constitution and are manifested – either directly in the form of express provisions, or what can be inferred as basic “overarching” principles (Nagaraj) or what impacts the identity (Kesavananda Bharati, Raghunathrao Ganpatrao, M. Nagaraj, and R. Coelho) or takes away the “essence” of certain core principles, through amendment were examined. Raghunathrao Ganpatrao echoed the idea of identity, and the idea of

“basic form or in its character” of the Constitution.  I.R. Coelho went on to say that “it cannot be held that essence of the principle behind Article 14 is not part of the basic structure” and also that “doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values” – which, if allowed to be altered, would change the “nature” of the Constitution. The court also stated that “in judging the validity of constitutional amendment we have to be guided by the impact test”.

29. It is therefore clear that the appropriate test or standard of judicial review of constitutional amendments is not the same as in the case of ordinary laws; the test is whether the amendment challenged destroys, abrogates, or damages the “identity”, or “nature” or “character” or “personality” of the Constitution, by directly impacting one or some of the “overarching principles” which inform its express provisions. Further in constitutional amendment judicial review, the court would consider the history of the provision amended, or the way the new provision impacts the identity, or character, or nature of the Constitution.
30. The standard of judicial review of constitutional amendments, draws upon distinct terminologies – identity, personality, nature and character to see if the constitutional identity undergoes a fundamental change, as to alter the Constitution into something it can never be. Or, differently put, the test is whether the impact of the amendment is to change the Constitution, into something it could never be considered to be. Each of the terms, i.e. identity, nature, personality, character, and so on, are methods of expressing the idea that some part of the Constitution, either through its express provisions, or its general scheme, and yet transcending those provisions, are embedded as overarching principles, which cannot be destroyed or damaged.
31. Having laid out the test of basic structure assessment in the paragraphs above, I will now apply this standard of review to the impugned amendment in the following sections.

III. Re Question 3: analyzing the exclusionary clause “other than” and whether it offends the basic structure

32. The insertion of clause (6) in Article 15 and 16, introduces a new class i.e.,

“economically weaker sections” which are defined to be “other than” the classes covered in Article 15(4) [i.e., other than socially and educationally backward classes including Scheduled Castes and Scheduled Tribes, which coincides with “backward class of citizens” covered in Article 16(4)].  The plain interpretation of this new expression, read along with the Statement of Objects and Reasons brings home the idea that this allusion to “special provision” – including reservations, is meant only for the newly created class and excludes the classes described under Article 15(4) and 16(4).

This is the base on which the petitioners’ mount their challenge, contending that the exclusion falls foul of the equality code and amounts to a violation of basic structure.

33. The Union’s position was that objections to the exclusion of SC/ST/OBC communities could not be countenanced; at any rate, such exclusion did not reach to the level of damaging the basic structure of the Constitution. It was contended that the mechanism of reservation itself per se, carries within it the idea of exclusion. Consequently, the “set apart” by way of reservation for SC/ST/OBC collectively to the tune of 50% by itself, implies that others are kept apart and cannot question such reservation for the weaker sections of society (as settled in Indra Sawhney). It was submitted that the exclusion of all categories except the target groups [i.e, exclusion of SC/ST/OBC and the general category who do not fulfil the economic criteria] was not discriminatory, let alone violative of the basic structure of the Constitution.
34. Clearly there is no dispute, in the manner that the phrase “other than” appearing in Articles 15(6) and 16(6), is to be read – either on the side of the petitioners, or the respondents. That exclusion is implicit, is agreed upon – the point of divergence is only on whether such an exclusion is permissible or not. To examine this, it is necessary to trace the history of the provisions that constitute the Equality Code and its content, and the cases that have interpreted them, in order to cull out the principle(s), relevant for a basic structure assessment. For this, I will firstly trace the history of the provisions that constitute the Equality Code, secondly discuss the content of this Code; thirdly, how this Equality Code is in itself, a part of the basic structure; and lastly how the impugned amendment violates the basic structure on the ground of exclusion.

A. Historical analysis of the Equality Code

(i) Article 15

35. The original draft Constitution contained a provision that comprehensively encompassed the idea of non-discrimination, in draft Article 9, which later emerged as Article 15. This article, and more specifically Article 15(2), prohibited discrimination in various spheres and commended that access be made available to a range of facilities, spaces, and resources on a nondiscriminatory basis.
36. The history and evolution of this Article as it stands today, is revealing. The Motilal Nehru Report 1928^[90], had recommended, in the demand for self-rule a charter of governance and basic human rights. The relevant provision, Clause 4 (v), (vi), (xiii) and (xiv) read as follows:
    • All citizens in the Commonwealth of India have the right to free elementary education without any distinction of caste or creed in the matter of admission into any educational institutions, maintained or aided by the state, and such right shall be enforceable as soon as due arrangements shall have been made by competent authority. Provided that adequate provisions shall be made by the State for imparting public instruction in primary schools to the children of members of minorities of considerable strength in the population through the medium of their own language and in such script as in vogue among them. Explanation:- This provision will not prevent the State from making the teaching of the language of the Commonwealth obligatory in the said schools.
    • All citizens are equal be for the law and possess equal civic rights.

**********                                                    ************

• No person shall by reason of his religion, caste or creed be prejudiced in any way in regard to public employment, office of power or honour and the exercise of any’ trade or calling.
• All citizens have an equal right of access to, and use of, public roads, public wells and all other places of public resort.”

37. Similarly, the historic Poona Pact^[91] contained the seeds of what are now Articles 15 and 16:

“…8. There shall be no disabilities attached to any one on the ground of his being a member of the Depressed Classes in regard to any election to local bodies or appointment to the public services. Every endeavour shall be made to secure a fair representation of the Depressed Classes in these respects, subject to such educational qualifications as may be laid down for appointment to the Public Services.

9. In every province out of the educational grant an adequate sum shall be ear-marked for providing educational facilities to the members of Depressed Classes,”

38. Ambedkar³⁸ and Sh. K.M. Munshi³⁹, had drafted two versions, on similar lines. These two drafts were discussed by the Sub-Committee on Fundamental Rights and an amended form, was included in their draft report:

(1) All persons within the Union shall be equal before the law. No personal shall be denied the equal protection of the laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language or sex. In particular – 

(a) There shall be no discrimination against any person on any of the grounds aforesaid in regard to the use of wells, tanks, roads, schools and places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public.⁴⁰

39. After discussions, the Advisory Committee recommended that the nondiscrimination provision would be an independent clause protecting a

‘citizen’, and the ground of ‘language’ was dropped. Members of the

³⁸ Art. II(1)(4) in Dr. B. R. Ambedkar’s draft, available in B. Shiva Rao, ‘The Framing of India’s Constitution: 

Select Documents’, vol. II, 4(ii)(d), p. 86:

“Whoever denies to any person, except for reasons by law applicable to persons of all classes and regardless of their social status, the full enjoyment of any of the accommodations, advantages, facilities, privileges of inns, educational institutions, roads, paths, streets, tanks, wells, and other watering places, public conveyances on land, air or water, theatres, or other places of public amusement, resort or convenience, where they are dedicated to or maintained or licensed for the use of the public, shall be guilty of an offence”. 

• III (1), (3), (4)(b) in K.M. Munshi’s draft available in B. Shiva Rao, ‘The Framing of India’s Constitution: Select Documents’, vol. II, 4(ii)(b), p. 74-75.

“All persons irrespective of religion, race, colour, caste, language, or sex are equal before the law and are entitled to the same rights and are subject to the same duties.

Women citizens are the equal of men citizens in all spheres of political, economic, social and cultural life and are entitled to the same civil rights and are subject to the same civil duties unless where exception is made in such rights or duties by the law of the Union on account of sex. 

***

All persons shall have the right to the enjoyment of equal facilities in public places subject only to such laws as impose limitations on all persons, irrespective of religion, race, colour, caste or language.”

• Draft report, Annexure, clause 4 available in B. Shiva Rao, ‘The Framing of India’s Constitution: Select Documents’, vol. II, 4(iv), p. 138.

Minority Sub-Committee, then considered this clause and made further recommendations – including, that education and schools should not be within the purview of this provision. A four-member sub-committee including Dr. Ambedkar was constituted and tasked to draw a specific provision in this regard. This resulted in a general provision which reads as follows: “the State shall make no discrimination against any citizens on grounds of religion, race, caste or sex”, but it was clarified that with regard to access to trading establishments, restaurants, etc., ‘sex’ would not be a prohibited ground. This too, did not pass muster and therefore, the redrafted clause⁴¹ had a general principle prohibiting discrimination, with a separate articulation within the provision which allowed for separate amenities for the benefit of women and children. With minor changes, this was included as clause 11 in the Draft Constitution of October 1947, and was later accepted by the Drafting Committee without change, as Article 9. The debates in the Constituent Assembly leading to the framing of Articles 15(1) and 15(2) clearly point to the overarching idea of nondiscrimination as one of the basic facets of equality [which is reflected clearly in the jurisprudence of this court; elaborated more in Part III (A)].

40. Laws or executive action that further discrimination, directly or indirectly, on proscribed grounds, have also been recognised as violative of the right to equality, and consequently have been struck down, routinely by this court⁴².

• “(1) The State shall make no discrimination against any citizen on the grounds of religion, race, caste or sex. (2) There shall be no discrimination against any citizen on any ground of religion, race, caste, or sex in regard to –
  • Access to trading establishments including public restaurants and hotels;
  • The use of wells, tanks, roads, and places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public:

Provided that nothing contained in this clause shall prevent separate provision being made for women and children”.

Advisory Committee Proceedings, April 21-22, 1947; and Interim Report of the Advisory Committee,

Annexure. Select Documents, vol. II, 6(iv) and 7(i), p. 221, 253, 254-4, 296

• Air India v. Nargesh Mirza (1981) SC 1829, 1982 SCR (1) 438; Vishaka v. State of Rajasthan (1997) 6 SCC 241: 1997 SCC (Cri) 932; Anuj Garg and Others v. Hotel Association of India and Others, (2008) 3 SCC 1;

(ii) Article 16

41. As far as Article 16 goes, the idea behind that provision was to achieve the goal of equal opportunity (as appearing in the Preamble) in matters of public employment. The difference between Articles 15(1) and 16(1) is that the former applies generally and prohibits the State from discriminating on enumerated grounds in diverse activities – including access to educational institutions, amenities, and other public goods, which are to be made available without regard to caste, religion, or sex, etc. Article 16(1) is a positive right declaring that all are equal in terms of opportunity for public employment. Article 16(2) goes on to enumerate grounds such as caste, race, religion, caste, sex, descent, place of birth and residence [few of which are different from the proscribed ground under Article 15(1)] as grounds on which the state cannot discriminate. Article 16(3) empowers Parliament (to the exclusion of State legislatures) to enact law, prescribing requirements as to residence within a State or Union Territory, for a class or classes of employment or appointment to local or other authorities, within a State or Union Territory. The Constitution makers did not wish to arm the State legislature with the power of prescribing local residential qualifications for employment within the State or local authorities and preferred to entrust that power with the Parliament which were expected to lay down principles of general application in that regard. Article 16(4) is the only provision in the original Constitution which enabled reservation – in favour of any backward class of citizens that were not adequately represented in the services under the State.

National Legal Services Authority v UOI and Others (2014) 5 SCC 438; Indian Young Lawyers Association and Ors. v. State of Kerala and Ors. (2019) 11 SCC 1; Vineeta Sharma v. Rakesh Sharma & Others, (2020) 9 SCC 1; Secretary, Ministry of Defence v. Babita Puniya & Others (2020) 7 SCC 469; Lt. Col. Nitisha & Others v. Union of India & Others, 2021 SCC OnLine SC 261.

42. In this context, in that part of the debate dealing with “backward classes” in draft Article 10(1)- in the Constituent Assembly Debates, Dr. Ambedkar spoke about the three points of view which recommended reconciliation to a workable proposition: firstly, that every individual qualified for a particular post should be free to apply and compete for it; secondly, that the fullest operation of the first rule would mean that there ought to be no reservation for any class or community at all; and the third significant point that though theoretically, equality of opportunity should be available to all, at the same time, some provision should be made for entry of certain community “which have so far been outside the administration”^[92].
43. Proposing Article 10(3), Dr. Ambedkar stated that Article 10(1) (precursor to Article 16(4) and 16(1) respectively) is a “generic principle”:

“At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now—for historical reasons—been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services.”

Dr. Ambedkar then went on to say that reservation should operate ideally for a minority of posts and that the identifying principle for positive discrimination would be use of a “qualifying phrase such as backward”^[93] in whose favour an exception could be made without which the exception could ultimately eat up the rule.

44. The idea or dominant theme behind the entire scheme of Article 16, right through Article 16(4) – is equality of opportunity in matters of public employment. At the same time, the Constitution framers realised that substantive equality would not be achieved unless allowance were made through some special provision ensuring representation of the most backward class of citizens who were hitherto, on account of caste practices,

or such constraints, barred from public employment. Therefore, the idea of Section 16(4) essentially is to enable representation, the controlling factor being adequacy of representation. That apart, the other control which the Constitution envisioned was the identification of backward classes of citizens through entrenched provisions that set up institutions which were to function in an objective manner based on certain norms – Articles 340, 341 and 342, which relate to Identification of SC/ST/BC- and the newly added Article 342A.

        (iii)         Article 17

45. The anxiety of the Constitution framers in outlawing untouchability in all forms (without any reference to religion or community), resulted in its express manifestation as Article 17, wherein the expression “untouchability” was left undefined. The debates of the Assembly suggest that this was intentional. B. Shiva Rao’s treatise^[94] discloses that proceedings of the Sub-Committee on Fundamental Rights, which undertook the task of preparing the draft provisions on fundamental rights suggested a clause enabling for the abolition of “untouchability”- this was Clause 4(a) of Article III of K.M. Munshi’s draft of fundamental rights:

“Untouchability is abolished and the practice thereof is punishable by the law of the Union.”

And similarly, Article 11(1) of Dr Ambedkar’s draft provided that: 

“any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished.”

46. Considerable deliberations took place since there was unanimity among all sections of representatives in the Constituent Assembly that the practice of untouchability (in all its forms) had to be outlawed. The Assembly

bestowed its attention to the minutiae of what constitutes untouchability, whether its forms of practice in the Hindu religion alone qualified for prohibition, or also inter-communally, etc. Dr. Ambedkar, K.M. Munshi, Sardar Patel, and B.N. Rau, participated in all these deliberations. Shiva

Rao observes that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities”^[95]. Attempts made to amend the article were deemed unnecessary due to the careful and extensive deliberations, and the unanimity amongst members; there was actually no change in the draft, which survived to become a part of the Constitution:

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.”

47. The result was an all-encompassing provision which Article 17 is as it stands, outlawing untouchability in all its forms – by the State, individuals, and other entities. The reach and sweep of this provision – like Article 15(2) is wide; it is truly horizontal in its application.
48. Given that the case law relating to Article 15 and 16 has substantially been covered in the judgment of Justice Dinesh Maheshwari, I have not reiterated the same. However, it is my considered opinion, that due weightage was not given to Article 17, which as argued by some of the petitioners, is also a part of the Equality Code; I have included some judgments which underscore the importance of this injunction and its continued need.
49. The social evil – of untouchability and its baleful effect of untouchability based discrimination was recounted by this court, in State of Karnataka v.

Appa Balu Ingale⁴⁷ :

“21. Thus it could be concluded that untouchability has grown as an integral facet of socio-religious practices being observed for over centuries; keeping the Dalits away from the mainstream of the society on diverse grounds, be it of religious, customary, unfounded beliefs of pollution etc. It is an attitude and way of behaviour of the general public of the Indian social order towards Dalits. Though it has grown as an integral part of caste system, it became an institution by itself and it enforces disabilities, restrictions, conditions and prohibitions on Dalits for access to and the use of places of public resort, public means, roads, temples, water sources, tanks, bathing ghats, etc., entry into educational institutions or pursuits of avocation or profession which are open to all and by reason of birth they suffer from social stigma. Untouchability and birth as a Scheduled Caste are thus intertwined root causes. Untouchability, therefore, is founded upon prejudicial hatred towards Dalits as an independent institution. It is an attitude to regard Dalits as pollutants, inferiors and outcastes. It is not founded on mens rea. The practice of untouchability in any form is, therefore, a crime against the Constitution. The Act also protects civil rights of Dalits. The abolition of untouchability is the arch of the Constitution to make its preamble meaningful and to integrate the Dalits in the national mainstream.”

50. The criterion for determining communities or castes as scheduled castes has been recognized as those who suffered on account of the practice of untouchability, and its pernicious effects, in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.⁴⁸:

“9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed Sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes….”

51. That SC communities are victims of the practise of untouchability, and the equality code was meant to provide them opportunities, and eliminate

• 1995 Supp (4) SCC 469
• (1990) 3 SCC 130

discrimination, was narrated in the earlier decision in Valsamma Paul & Ors. V. Cochin University & Ors^[96]:

“7. […] The practice of untouchability, which had grown for centuries, denuded social and economic status and cultural life of the Dalits and the programmes evolved under Articles 14 15(2) 15(4) and 16(4) aimed to bring Dalits into national mainstream by providing equalitarian facilities and opportunities. They are designated as “Scheduled Castes” by definition under

Article 366(24) and “Scheduled Tribes” under Article 366(25) read with Articles 341 and 342 respectively. The constitutional philosophy, policy and goal are to remove handicaps, disabilities, suffering restrictions or disadvantages to which Dalits/ Tribes are subjected, to bring them into the national mainstream by providing facilities and opportunities for them…” 

52. In Abhiram Singh and Ors. C.D. Commachen^[97] this court again revisited the “central theme” of elimination of discrimination of SCs:

“118. […] The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order…”

53. The Constitution Bench ruling in Indian Young Lawyers Assn. (Sabarimala Temple) v. State of Kerala^[98] took note of the fact that the evil of untouchability, which kept out large swathes of Indian population in the thrall of caste-based exclusion, was sought to be dismantled, and real equality was sought to be achieved:

“386. The rights guaranteed under Part III of the Constitution have the common thread of individual dignity running through them. There is a degree of overlap in the Articles of the Constitution which recognise fundamental human freedoms and they must be construed in the widest sense possible. To say then that the inclusion of an Article in the Constitution restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was introduced by the Framers to incorporate a specific provision in regard to untouchability. The introduction of Article 17 reflects the transformative role and vision of the Constitution. It brings focus upon centuries of discrimination

in the social structure and posits the role of the Constitution to bring justice to the oppressed and marginalised. The penumbra of a particular Article in Part III which deals with a specific facet of freedom may exist elsewhere in Part III. That is because all freedoms share an inseparable connect. They exist together and it is in their co-existence that the vision of dignity, liberty and equality is realised. As noted in Puttaswamy [K.S. Puttaswamy (Privacy9 J.) v. Union of India, (2017) 10 SCC 1], “the Constituent Assembly thought it fit that some aspects of liberty require a more emphatic declaration so as to restrict the authority of the State to abridge or curtail them…”

54. The centrality of Article 17 and the constitutional resolve to eliminate untouchability in all forms to any debate on equality involving SC/ST communities is undeniable. Other provisions such as Article 15 (2), Article 23 and 24 also contain links to Article 17, because the constitution aimed not merely at outlawing untouchability, but ensuring access to public amenities and also guaranteeing that the stigma of caste discrimination should not result in exploitation.

        (iv)          Other provisions in the Constitution

55. Apart from Article 16, the other provisions which expressly talked of reservations are not in regard to public employment but are in respect of elective offices – Articles 330 and 332 – both of which enabled reservation in favour of SCs and STs in proportion to their population in the concerned States legislative or Parliamentary constituencies.
56. The other provisions which expressly forbid and injunct the state from practising discrimination are Article 29(2) and Article 325. Article 29 (2) enacts that

“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

Article 325 reads as follows:

“325. No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex: There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the

Legislature of a State and no person shall be ineligible for inclusion in any

such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.”

B. Content of Equality Code

57. The equality code (Articles 14, 15, 16, and 17), so referred to in various previous decisions of this court) does not merely visualize a bland statement of equality before law and equal protection of law but also contains specific injunctions against state from discriminating on proscribed grounds [such as caste, race, sex, place of birth, religion, or any of them, in Article 15; and caste, sex, religion, place of residence, descent, place of birth, or any of them, in Article 16]. The engraining of these specific heads – enjoining the State not to discriminate on such specific heads, such as caste, religion or sex is therefore, as much part of equality code, as the principle of equality enacted in general terms, in Article 14. The inclusion of Article 17 – as an unequivocal injunction, against untouchability, of any form, enjoins the state to forbear caste discrimination, overtly, or through classification, and looms large as a part of the equality code and indeed the entire framework of the Constitution.
58. Joseph Raz described this dimension as “the ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives”.^[99] Ambedkar put the issue very poignantly, saying that systematic caste discrimination was akin to slavery, since such subjugation “means a state of society in which some men are forced to accept from others the purposes which control their conduct”⁵³. In caste based hierarchal societies, which discriminated against a significant segment of society, the extent of deprivation – of choice was such that those born into those castes or

communities were not part of the community and were termed “outcastes”. This exclusion was specifically targeted against, and sought to be eliminated, by the Constitution.It is inconceivable that the deletion of caste (as long as Indian society believes in and practices the caste system) as a proscribed ground through a constitutional amendment would stand scrutiny. This example is given to illustrate that the value of proscribing caste discrimination is rooted in the express provision of the Constitution, as a part of the equality code. Equally, one cannot visualize an amendment which promotes or even permits discrimination of other proscribed grounds, such as gender, descent, or religion. All this would per se violate equality – both textually, as well as the principle of equality, which the Constitution propounds. The rationale for enacting these as proscribed grounds either under Article 15 or 16 (or both) was that the framers of the Constitution were aware that courts could use these markers to determine when reasonable classification is permissible. Thus, for instance, if the proscribed ground of ‘gender’ was absent, it could have been argued that gender is a basis for an intelligible differentia, in a given case. To ensure that such classifications and arguments were ruled out, these proscribed grounds were included as specific injunctions against the State. The provisions, and the code, therefore, are not only about the grand declaratory sweep of equality: but equally about the absolute prohibition against exclusion from participation in specified, enumerated activities, through entrenched provisions.

59. A closer look at Article 15, especially Article 15(2), would further show that likewise most of the proscribed grounds in Article 15(1) were engrafted to ensure that access to public resources – in some cases not even maintained by the state, but available to the public generally, could not be barred. This provision too was made to right a historical wrong, i.e., denial of access to the most deprived sections of society of the most basic resources, such as water, food, etc. The injunction against untouchability under Article 17, ensuring that such practice is outlawed is strengthened by taking away the subject matter from state domain and placing it as an exclusive legislative head to the Parliament through Article 35. In a similar vein, Articles 23 and 24 (although seemingly unconnected with the issue of equality), enact very special rights – which are enforceable against both the State agencies and others. Through these articles, the forms of discrimination, i.e., exploitation, trafficking, and forced labour (which was resorted to against the most deprived classes of society described as SCs and STs) was sought to be outlawed.
60. The elaborate design of the Constitution makers, who went to great lengths to carefully articulate provisions, such that all forms of discrimination were eliminated – was to ensure that there was no scope for discrimination of the kind that the society had caused in its most virulent form in the past, before the dawn of the republic. These, together with the affirmative action provisions – initially confined to Articles 15(3) and 16(4), and later expanded to Article 15(4) and 15(5) – was to guarantee that not only facial discrimination was outlawed but also that the existing inequalities were ultimately eliminated. To ensure the latter, only one segment, i.e., socially and educationally backward classes were conceived as the target group, i.e., or its beneficiaries. Therefore, in this Court’s opinion, the basic framework of the constitution or the idea and identity of equality was that:

• There ought to be no discrimination in any form, for any reason whatsoever on the proscribed grounds, including in matters of public employment;
• That the provision for affirmative action was an intrinsic part of the framework and value of equality, i.e., to ensure that the equality of classes hitherto discriminated and ostracized, was eventually redressed.

61. This was recognized in Jaishri Laxmanrao Patil as “the obligation or duty to equalize those sections of the population” on the States’ part.^[100] Likewise, the observations of Sahai, J. in Indra Sawhney characterize Article 15(4) and 16(4) as ‘obligations’.

C. Equality Code is a part of the basic structure

62. That the principle of equality is the most important indispensable feature of the Constitution and destruction thereof will amount to changing the basic structure of the Constitution has been held in numerous cases. That it is an inextricable part of the basic structure, is clearly enunciated in Kesavananda Bharati (para 1159, SCC), Minerva Mills (para 19), Raghunath Ganpatrao (para 142), R. C. Poudyal (para 54), Indra Sawhney (para 260-261), Indra Sawhney (2) v. Union of India^[101] (para 64-65), Nagaraj (para 31-32) and I.R. Coelho (para 105), among others.
63. In Indira Gandhi, V. Chandrachud, J. identified “equality of status and opportunity” to all its citizens, as an unamendable basic feature of the Constitution. In the same case, K. K. Mathew, J. identified specific provisions of the Constitution, relating to the equality principle, as a part of the basic structure:

“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.”

64. In a five-judge bench decision, through his concurring opinion, S.B. Sinha, J stated, in Saurabh Chaudri & Ors. v. Union of India & Ors.^[102] That:

“82. Article 14 of the Constitution of India prohibits discrimination in any form. Discrimination at its worst form would be violative of the basic and essential feature of the Constitution. It is trite that even the fundamental rights of a citizen must conform to the basic feature of the Constitution. Preamble of the Constitution in no uncertain terms lays emphasis on equality.”

65. A nine-judge bench of this court, in R. Bommai v. Union of India^[103], though not dealing with a constitutional amendment, opined that “these fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution….”. Again, in M. Nagaraj, it was opined that “…the principle which emerges is that “equality” is the essence of democracy and, accordingly a basic feature of the Constitution.”
66. R. Coelho v. State of Tamil Nadu^[104] is the next important decision, of note, by a nine-judge bench decision. The court, undoubtedly was not concerned with the direct impact of an amendment on Article 14 or equality, but with the effect of an overarching immunizing provision such as Article 31-B. It was unanimously held, that:

“109. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati case [(1973) 4 SCC 225] clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case [1975 Supp SCC 1]. 

[…]

141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure

doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.

142. There is also a difference between the ‘rights test’ and the ‘essence of right test’. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire Chapter is made inapplicable, ‘the essence of the right’ test as applied in M. Nagaraj’s case (supra) will have no applicability. In such a situation, to judge the validity of the law, it is ‘right test’ which is more appropriate. We may also note that in Minerva Mills and Indira Gandhi’s cases, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, in our view, is incompatible with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied…”

67. Observations in the cases referred to above, therefore, have outlined that certain provisions of the equality code – rather the ideas – and principles intrinsic to Articles 14 and 15, and the rights in Articles 19 and 21, are part of the basic structure of the Constitution.
68. Speaking of the general right to equality, this court in Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors^[105] stated that

“65. Going by the scheme of the Constitution, it is more than obvious that the framers had kept in mind social and economic conditions of the marginalized Section of the society, and in particular, those who were backward and discriminated against for centuries. Chapters on ‘Fundamental Rights’ as well as ‘Directive Principles of State Policies’ eloquently bear out the challenges of overcoming poverty, discrimination and inequality, promoting equal access to group quality education, health and housing, untouchability and exploitation of weaker section. In making such provisions with a purpose of eradicating the aforesaid ills with which marginalized Section of Indian society was suffering (in fact, even now continue to suffer in great measure), we, the people gave us the Constitution which is transformative in nature…” 

It was also held that

“67. […] when our Constitution envisages equal respect and concern for each individual in the society and the attainment of the goal requires special attention to be paid to some, that ought to be done. Giving of desired concessions to the reserved category persons, thus, ensures equality as a levelling process. At jurisprudential level, whether reservation policies are defended on compensatory principles, utilitarian principles or on the

principle of distributive justice, fact remains that the very ethos of such policies is to bring out equality, by taking affirmative action…”

69. In Samatha v. State of A.P. & Ors.^[106] this court underlined the unity of directive principles and fundamental rights, and the deep, intrinsic connection between equality, liberty, and fraternity:

“72. […] Fundamental Rights and Directive Principles of the Constitution have fused in them as fundamental human rights as indivisible and interdependent. The Constitution has charged the State to provide facilities and opportunities among the people and groups of people to remove social and economic inequality and to improve equality of status. Article 39(b) enjoins the State to direct its policy towards securing distribution of the ownership and control of the material resources of the community as best to subserve the common good. The founding fathers with hind sight, engrafted with prognosis, not only inalienable human rights as part of the Constitution but also charged the State as its policy to remove obstacles, disabilities and inequalities for human development and positive actions to provide opportunities and facilities to develop human dignity and equality of status and of opportunity for social and economic democracy. Economic and social equality is a facet of liberty without which meaningful life would be hollow and mirage.”

70. In a similar manner, Indian Medical Association & Ors. v. Union of India & Ors.^[107] underscored the centrality of equality and the egalitarian principle, of the Constitution:

“165. It is now a well settled principle of our constitutional jurisprudence that Article 14 does not merely aspire to provide for our citizens mere formal equality, but also equality of status and of opportunity. The goals of the nation-state are the securing for all of its citizens a fraternity assuring the dignity of the individual and the unity of the nation. While Justice – social, economic and political is mentioned in only Article 38, it was also recognized that there can be no justice without equality of status and of opportunity (See M. Nagaraj). As recognized by Babasaheb Ambedkar, at the moment that –ur Constitution just set sail, that while the first rule of the ship, in the form of formal equality, was guaranteed, inequality in terms of access to social and economic resources was rampant and on a massive scale, and that so long as they individually, and the social groups they were a part of, continue to not access to social and economic resources that affords them dignity, they would always be on the margins of the ship, with the ever present danger of falling off that ship and thereby never partaking of the promised goals of that ship.

Babasaheb Ambedkar with great foresight remarked that unless such more

fundamental inequalities, that foster conditions of injustice, and limit liberty of thought and of conscience, are eradicated at the earliest, the ship itself would be torn apart.

[…]

168. An important and particular aspect of our Constitution that should always be kept in mind is that various aspects of social justice, and an egalitarian social order, were also inscribed, not as exceptions to the formal content of equality but as intrinsic, vital and necessary components of the basic equality code itself. To the extent there was to be a conflict, on account of scarcity, it was certainly envisaged that the State would step in to ensure an equitable distribution in a manner that would be conducive to common good; nevertheless, if the state was to transgress beyond a certain limit, whereby the formal content of equality was likely to be drastically abridged or truncated, the power of judicial review was to curtail it…”
169. Therefore, the design of the Constitution, which by the Preamble, promises justice – social, economic, and political, liberty of thought and expression, equality, and fraternity; and the various provisions which manifest it (Articles 14-18, 19, 20-21, 23-24, 29, 38-39, 41 and 46) – articulate an organic and unbreakable bond between these concepts, which are guarantees. The idea of the twin assurance of non-discrimination and equality of opportunity, is to oblige the state to ensure that meaningful equality is given to all. Similarly, the fraternal principle binds both the state and the citizen, as without fraternity, liberty degenerates to individualistic indulgence. Without dignity, equality and liberty, are rendered hollow. This inviolable bond, therefore, is part of the core foundation of our republic. Freedom from colonial rule was with the agenda of creating a democratic republic, reflecting the unique genesis of its nation, holding the people with diverse languages, cultures, religions with a common bond of egalitarianism, fraternity, and liberties, assuring dignity to all – the State and the citizens were to ensure that these were preserved, at all times, for each individual.
170. This principle of equality – non-discrimination or non-exclusion, never had occasion to be considered in past decisions that examined amendments to

the Constitution which dealt with different facets of equality – such as the ceiling on land holding (Waman Rao, Bhim Singhji v. Union of India^[108]) or omission of princely privileges (Raghunath Ganpatrao). Thus the court did not adjudicate upon the non-discriminatory or non-exclusionary principle. In each case, the facet of equality alleged to have been violated by a constitutional amendment, limited or affected property. In other words, the focus of every instance where an amendment was struck down (barring those in L. Chandra Kumar, P. Sambamurthy, Indira Gandhi, and  Kihoto Hollohan) were defining of excess property in the hands of the “haves” and the more fortunate, in possession of land exceeding ceilings (agrarian or otherwise), and dismantling of princely privileges deemed antithetical to republicanism and thereby promoting republicanism and equality. The court’s caveat – be it in Kesavananda Bharati, Waman Rao or Bhim Singhji – were only to the extent that oversight, to ensure that the contents of the laws adhered to the directive principles and were not a mask or veneer to extinguish liberties enshrined in Articles 14 and 19, and were to be retained.

73. The effort of the State in each of these instances, was to create new avenues by expropriation of wealth, assets, and properties from the ‘haves’ and ensure distributive justice in furtherance of the objectives under Article 38 [particularly clause (2); and also Article 39 (particularly clause (b)] – that of minimising inequalities, and distribution of ownership and control of material resources, respectively. Thus, 263 entries out of the total of 284 entries in the IX^th Schedule of the Constitution, are legislations relating to land reforms, land ceilings, and other agrarian reforms acts, of the States and Union Territories.
74. In the other class of amendments where the constitutional ethos was

promoted [introduction of Article 21A, and Article 15(5) (to facilitate Article 21A)], this court’s decisions (in Pramati and Society for Unaided Schools of Rajasthan v. Union of India^[109] respectively) are telling, because these provisions did not practice discrimination in the sharing of new benefits or rights, and were inclusive. The court naturally upheld them. The only challenge dealing with equality – in M. Nagaraj, failed because the right to “catch up rule” was a derivative principle evolved by the court, in the context of the larger canvas that there was no right to promotion [Article 16(4) did not carry within it the right to promotion – a formulation in Indra Sawhney, which holds good even as on date, for all classes save the SCs and STs]. This court held that such rule did not negate the

“essence” of equality or its “egalitarian” facet.

75. In juxtaposition to all this, for the first time, the constituent power has been invoked to practice exclusion of victims of social injustice, who are also amongst the poorest in this country, which stands in stark contradiction of the principle of egalitarianism and social justice for all. The earlier amendments were aimed at ensuring egalitarianism and social justice in an inherently unequal society, where the largest mass of people were impoverished, denied access to education, and other basic needs.
76. In every case, which implicates the right to equality, when the Court is asked to adjudge upon the validity of a Constitutional amendment, invariably what the Court focuses its gaze upon, is what is facet of equality. The debates which led to the framing of the Constitution, are emphatic that the equalizing principle is a foundational tenet “an article of faith” upon which our democratic republic rests. Equality – both as a principle, an idea, and as a provision is “so mixed” as to make it impossible to extricate the form from the substance, the idea from its expression. Likewise, equality –

of protection before the law, of opportunity – as a right not to be discriminated against on grounds enumerated in Articles 15(1) and 16(1) are engrained principles, nay, entrenched entitlements. The question which this court therefore addresses, in every case which complains of infractions of the essential features of the Constitution is – has that principle been undermined or the core idea (of equality) been distorted.

77. The bedrock value which enlivens Articles 14, 15, 16, 17, 18, 29(2), and 325, therefore, is the principle of non-discrimination. Alongside the generic principle of equality, captured by Article 14, is the idea that certain segments of society which had been historically stigmatised and discriminated on account of the caste identity of its members, should be the beneficiaries of protective discrimination to enable them proper access to public goods, facilities, spaces, and representation in public employment. The idea of equality, therefore, is tethered to another inseparable facet, i.e., non-discrimination, that there cannot be any exclusion by the state in these vital spheres of human activity. This principle of non-discrimination is what emerges from the history of the provisions (outlined previously), and the precedents of this court. Further, the manner in which these provisions have been interpreted reiterate that integral to that non-discriminatory facet, is the idea of positive discrimination in favour of hitherto discriminated communities

(“Harijans”, as termed in N.M. Thomas, or SC/STs). Consequently, the irresistible conclusion is that non-discrimination – especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provisions in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure.

D. Impact/effect of the phrase “other than” in the impugned amendment

(i)  Test of reasonable classification

78. At the outset, it is acknowledged that the doctrine of reasonable classification is not per se a part of the basic structure; it is however, a method evolved by this court to breathe life into and provide content to the right to equality under Article 14 – the latter being a part of the basic structure. The contention made by those supporting the amendment – that treating the SC, ST and OBC as a distinct class from those who are not covered under Article 15(4) and 16(4) is a reasonable classification, necessitates further scrutiny.
79. It was the submission of the learned Attorney General and Solicitor General, that SC/ST/OBC communities who have thus far enjoyed and will continue to enjoy special provision and reservation made in their favour (Articles 15(4) and 16(4)) constitute a homogenous class, the members of whose communities are beneficiaries of existing reservation [which also includes the poorer members among their group], whereas the beneficiaries of the new EWS reservation, were those who did not enjoy such benefits. Consequently, there was no deprivation of opportunity within the quota/silo set apart for the former category. That further opportunities are being denied to them on account of the creation of the 10% quota, marginally affects them^[110]. Such adverse effect, it was argued, could not be characterized as a shocking breach of the equality code or that it affected the identity of the Constitution. It was submitted furthermore, that even in the existing reservation, the SC/ST/OBC candidate belonging to such

category, could compete in the quota set apart for their caste or class and not of the quota of each other. Thus, the SC candidates cannot compete in the quota set apart for SC or OBC. This, it was urged is reasonable classification by which unequals are not treated equally. This characterization of the classification, and justification for the impugned amendment, found favour in the judgments by Dinesh Maheshwari, Bela Trivedi, and J.B. Pardiwala, JJ. I respectfully disagree with this conclusion.

80. I am of the opinion that the application of the doctrine classification differentiating the poorest segments of the society, as one segment (i.e., the forward classes) not being beneficiaries of reservation, and the other, the poorest, who are subjected to additional disabilities due to caste stigmatization or social barrier based discrimination – the latter being justifiably kept out of the new reservation benefit, is an exercise in deluding ourselves that those getting social and educational backwardness based reservations are somehow more fortunate. This classification is plainly contrary to the essence of equal opportunity. If this Constitution means anything, it is that the Code of Articles 15(1), 15(2), 15(4), 16(1), 16(2), and 16(4) are one indivisible whole. This court has reiterated time and again that Articles 16(1) and 16(4) are facets of the same equality principle. That we need Article 15(4) and 16(4) to achieve equality of opportunity guaranteed to all in Articles 15(1) and 16(1) cannot now be undermined, through this reasoning, to hold that the theory of classification permits exclusion on this very basis.
81. In State of West Bengal v. Anwar Ali Sarkar^[111], one of the earliest decisions to utilize the classification principle held (per Mahajan, J), that:

“64. […] The classification permissible, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. Classification thus means segregation in classes which

have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. Thus the legislature may fix the age at which persons shall be deemed competent to contract between themselves, but no one will claim that competency to contract can be made to depend upon the stature or colour of the hair. “Such a classification for such a purpose would be arbitrary and a piece of legislative despotism.”

Per SR Das, J:

“85. It is now well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an “abstract symmetry” in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation…”

82. This court, in the State of Jammu and Kashmir v. Triloki Nath Khosa & Ors.^[112] that classification,

“31. […] is fraught with the danger that it may produce artificial inequalities and therefore, the right to classify is hedged in with salient restraints, or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterized by different and distinct attainments. Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved.”

                                                                                       (emphasis supplied)

83. Again, in Mohammad Shujat Ali and Ors. v. Union of India⁶⁷ this court observed that the “doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master”.

84. The basis of classification in the impugned amendment, enacted in furtherance of Article 46 – is economic deprivation. Applying that criterion, it is either income, or landholding, or value of assets or the extent of resources controlled, which are classifiers. The social origins, or identities of the target group are thus irrelevant. That there is some basis for classification, whether relevant or irrelevant, which is sufficient to differentiate between members of an otherwise homogenous group, is no justification. This was highlighted most recently by this court in Pattali Makkal Katchi v. A. Mayilerumperumal and Ors^[113]:

“79. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, 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. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservation of appointments and posts for them to secure adequate representation. These provisions are intended to bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). However, it is to be noted that equality under Articles 15 and 16 could not have a different content from equality under Article 14 [State of Kerala v. N.M Thomas (1976) 2 SCC 310]. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial [Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682].”

                                                                                       (emphasis supplied)

85. Krishna Iyer, J, speaking in A.S. Iyer v. V. Balasubramanyam⁶⁹ put the matter even more pithily:

“57. […] equality clauses in our constitutional ethic have an equalizing message and egalitarian meaning which cannot be subverted by discovering classification between groups and perpetuating the inferior-superior complex by a neo-doctrine…”

86. Classification, it is said, is a subsidiary rule, to give practical shape to the principle of equality. However, as emphasized by K. Subba Rao, J. in Lachhman Das v. State of Punjab^[114]:

“47. […] Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basic for classification may gradually and imperceptibly deprive the Article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.”

87. The economic criteria, based on economic indicators, which distinguish between one individual and another, would be relevant for the purpose of classification, and grant of reservation benefit. The Union’s concern that SC/ST/OBCs are beneficiaries of other reservations, which set apart the poorest among them, from the poorest amongst other communities which do not fall within Articles 15(4) and 16(4), cannot be a distinguishing factor, as to either constitute an intelligible differentia between the two, nor is there any rational nexus between that distinction and the object of the amendment, which is to eliminate poverty and further the goal of equity and economic justice.
88. There is a considerable body of past judgments enunciating the principle that any exclusionary basis, should be rational, and non-discriminatory. In National Legal Services Authority v. Union of India & Ors.⁷¹ This court frowned upon the discrimination faced by transgender persons and held all practices which excluded their participation to be discriminatory. The court explained how treatment of equals and unequals as equals, is violative of the basic structure. Crucially, the court observed that:

“61. Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the laws

within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection…”

89. The salience of the non-exclusionary precept as facets of nondiscrimination (equality), liberty and dignity, was ruled in Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.^[115] where it was emphasized that

“300. […] this Court will be guided by the pursuit to uphold the values of the Constitution, based in dignity, liberty and equality. In a constitutional order of priorities, these are values on which the edifice of the Constitution stands. They infuse our constitutional order with a vision for the future-of a just, equal and dignified society. Intrinsic to these values is the anti-exclusion principle. Exclusion is destructive of dignity.”

90. Similarly, in Charu Khurana v. Union of India⁷³ this court held that discrimination against women artistes in the cinema industry violated equality. It was held that dignity was an integral part of a person’s identity:

“33. […] Be it stated, dignity is the quintessential quality of a personality and a human frames always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to see that all citizens and they are not deprived of by reasons of economic disparity…”

91. Can the fact that SC/ST and OBC communities are covered by reservations to promote their equality, to ensure that centuries old disadvantages and barriers faced by them (which are still in place, and is necessary to ensure their equal participation) be a ground for a reasonable classification? In my opinion, that cannot be the basis of classification. None of the materials placed on the record contain any suggestion that the SC/ST/OBC

categories should be excluded from the poverty or economic criteria-based reservation, on the justification that existing reservation policies have yielded such significant results, that a majority of them have risen above the circumstances which resulted in, or exacerbate, their marginalization and poverty. There is nothing to suggest, how, keeping out those who qualify for the benefit of this economic-criteria reservation, but belong to this large segment constituting 82% of the country’s population (SC, ST and OBC together), will advance the object of economically weaker sections of society.

92. As an aside, it may also be noted that according to the figures available, 45 districts are fully declared, and 64, partially declared, as Fifth Schedule areas, out of 766 districts in the country. Majority of the population of these areas are inhabited by members of scheduled tribes. According to the Sinho Committee, 48.4% of all Scheduled Tribes are in the BPL (below poverty line) zone. This is 4.25 crores of the population. In this manner, the exclusion operates additionally, in a geographical manner, too, denying the poorest tribals, living in these areas, the benefit of reservation meant for the poor.
93. The reservations in favour of the poorest members of society, is not identity-based, or on past discrimination of the community concerned which shackled them within the confines of their caste (and what members of that caste could do). It is based on persistent economic deprivation, or poverty. The identifying characteristic is, therefore, entirely new. It has no connection with social or educational The social or educational backwardness of the communities to which beneficiaries of the impugned amendments belong, are irrelevant. Therefore, caste or community is not the identifying criteria or classifier. In such eventuality, the wall of separation, so to say by which the exclusion clause (“other than”) keeps out the socially and educationally backward classes, particularly SC/STs operates to discriminate them, because overwhelming numbers of the poorest are from amongst them.

(ii) Individual – as the beneficiary

94. Further, in the case of economic deprivation, what is to be seen is that poverty – or its acute ill effects are equally felt by all, irrespective of which silos they are in. Thus, at an individual level, a tribal girl facing economic hardship, is as equally deprived of meaningful opportunity as a non-tribal, “non-backward”/forward class girl is. The characterization of existing reservations to SCs/STs/OBCs, as benefits or privileges, which disentitle them from accessing this new resource, of reservations based on economic deprivation, though they fall within the latter description, because “they are loaded with such benefits” (as contended by the respondents), with respect belittles their plight.
95. The problem with the “silo” argument furthered by the Union, is that it not only fails to locate the individual within a collective, reducing her visibility in the debate and robbing her of voice, but also further ignores the potentiality of each individual to excel, and cross the barriers of these very ”silos”. The polarity between “collective” rights and entitlements and “individual” is artificial. At the end of it all, the Constitution has to mean, and provide something, for the common individual/person; it has to provide the greatest good to all, not merely sections or collectives. Therefore, the view that the collective is the constitutive element, from whose prism the individual is viewed, diminishes the role and the focal point of inquiry, away from the individual, thereby affording a convenient way of placing people in different “silos”.
96. This court’s understanding, in the past too, has been that equality of opportunity is individual – likewise, the benefit of reservation too is made on the basis of the community’s social and educational backwardness, or they being victims of the practice of untouchability: yet the individuals are recipients. In Nagaraj, therefore, it was held that

“…the concept of “equality of opportunity” in public employment concerns an individual, whether that individual belongs to the general category or Backward Class. The conflicting claim of individual right Under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimisation of these conflicting interests and claims.”

97. The object of reservations is to benefit the individual, in the case of enabling access to public goods such as education, whereas in the case of elective office or even public office, though the individual is the recipient of the reservation, the community is expected to benefit, due to its representation through her. This was emphasized by this court in

Krishna Murthy in the following words:

“55. It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level on the other hand. While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local-self government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to.”

This goal of empowerment through ‘representation’, is not applicable in the case of reservations on the basis of economic criteria – which as the petitioners laboriously contended, is transient, temporary, and rather than a discernible ‘group’, is an individualistic characteristic. This distinction on the question of Article 16(6), is elaborated on further in Part V.

98. Apart from the fact that reservations are made for or in favour of collectives, which are the building blocks of society such as castes, they are meant to benefit individuals. Castes are merely a convenient method of identifying the backward communities whose members are beneficiaries. The fact remains that it is citizens who are meant to benefit from it. The entire jurisprudence, or even the text of Articles 15 and 16, bear out this aspect. To say, therefore, that collectively communities identified as Scheduled Castes and Scheduled Tribe, are beneficiaries and that is reason enough to exclude those castes/tribes from the benefit of new resources (created by the state through the amendment) though undisputedly a substantial number of members of these historically marginalised communities and castes also fulfil the eligibility criteria that entitles one as deserving of the new resource, is nothing but discrimination at an individual level. This undermines the very basis of the promise of equal opportunity and equality of status which the Constitution makers so painstakingly and carefully conceived of as a guarantee for all, particularly the members of the most discriminated and deprived sections of the community, i.e., the SC and ST communities. In these circumstances it is cold comfort, therefore, for the person who otherwise fulfils all the characteristics of an identifier such as poverty – which is not based on social identity, but on deprivation – to be told that she is poor, as desperately poor or even more so than members of other communities (who were not entitled to the reparative reservations under Article 15(4) and 16(4)), yet she is being kept out because she belongs to a scheduled caste or scheduled tribe.

        (iii)         Violation of the basic structure

99. Poverty debilitates all sections of society. In the case of members of communities which faced continual discrimination – of the most venial form, poverty afflicts in the most aggravated form. The exclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code, and thus reaches to the level of offending or damaging the very identity of the Constitution. To use the terminology in R. Coelho, the impact of this amendment on the equality code which is manifested in its non-discriminatory or non-exclusionary form, leads it to radically damage the identity of the Constitution. The promise of the Constitution that no one will be discriminated on the ground of caste-based practices and untouchability (which is the basis of identification of such backward class of citizens as scheduled castes), is plainly offended. Therefore, the exclusionary clauses in articles 15(6) and Articles 16(6) damage and violate the basic structure of the Constitution.
100. The characterisation of including the poor (i.e., those who qualify for the economic eligibility) among those covered under Articles 15(4) and

16(4), in the new reservations under Articles 15(6) and 16(6), as bestowing

“double benefit” is incorrect. What is described as ‘benefits’ for those covered under Articles 15(4) and 16(4) by the Union, cannot be understood to be a free pass, but as a reparative and compensatory mechanism meant to level the field – where they are unequal due to their social stigmatisation. This exclusion violates the non-discrimination and the non-exclusionary facet of the equality code, which thereby violates the basic structure of the Constitution.

101. The impugned amendment creates paths, gateways, and opportunities to the poorest segments of our society, enabling them multiple access points to spaces they were unable to go to, places and positions they were unable to fill, and opportunities they could not hope, ever to ordinarily use, due to their destitution, economic deprivation, and penury. These: destitution, economic deprivation, poverty, are markers, or intelligible differentia, forming the basis of the classification on which the impugned amendment is entirely premised. To that extent, the amendment is constitutionally indefeasible. However, by excluding a large section of equally poor and destitute individuals – based on their social backwardness and legally acknowledged caste stigmatization – from the benefit of the new opportunities created for the poor, the amendment practices constitutionally prohibited forms of discrimination. The overarching principles underlying Articles 15(1), 15(2), and Articles 16(1), 16(2) is that caste based or community-based exclusion (i.e., the practice of discrimination), is impermissible. Whichever way one would look at it, the Constitution is intolerant towards untouchability in all its forms and manifestations which are articulated in Articles 15(1), (2), Articles 16, 17, 23 and 24. It equally prohibits exclusion based on past discriminatory practices. The exclusion made through the “other than” exclusionary clause, negates those principles and strikes at the heart of the equality code (specifically the non-discriminatory principle) which is a part of the core of the Constitution.

IV. Re Question No. 1: permissibility of special provisions (including

reservation) based on economic criteria

102. At the outset, it is clarified that I am in agreement with the other members of this bench, that ‘economic criteria’ for the purpose of Article 15 is permissible and have provided my additional reasoning and analysis in this section; however, I diverge with regards to Article 16 for the purpose of reservations in appointment to public employment, which is elaborated in Part V.

A. Judicial observations on economic criteria

103. Repeated decisions of this court have iterated that caste alone could not be the criteria for determining social and educational backwardness.

M.R. Balaji was the first to articulate this proposition. This was accepted in later decisions. The Union and other respondents in the present challenge, relied on Article 46 and certain other provisions of Part IV of the Constitution. The text of Article 46 is extracted again for reference:

“46. 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.”

104. This court, in both M. Thomas and Indra Sawhney propounded the idea that preferential treatment based on classification, to further affirmative action, could be traced to Articles 15(1) and 16(1). However, it was emphasized that on the question of reservation for socially and educationally backward classes, scheduled castes and scheduled tribes, the field was occupied by Articles 15(4) and 16(4). At the same time, their location did not prevent the State from making classification for other groups. The question of whether the economic criterion alone could be the basis of such reservation was squarely addressed in Indra Sawhney. The court held that such reservation based solely on the application of the economic criterion was not justified. B.P. Jeevan Reddy, J. who authored the majority judgement on this aspect, observed that the office memorandum in question did not recite the concerned provision, and then proceeded to reason why it was unsustainable:

“845. …Evidently, this classification among a category outside clause (4) of Article 16 is not and cannot be related to clause (4) of Article 16. If at all, it is relatable to clause (1). Even so, we find it difficult to sustain. Reservation of 10% of the vacancies among open competition candidates on the basis of income/property-holding means exclusion of those above the demarcating line from those 10% seats. The question is whether this is constitutionally permissible? We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding. Since the employment under the State is really conceived to serve the people (that it may also be a source of livelihood is secondary) no such bar can be created. Any such bar would be inconsistent with the guarantee of equal opportunity held out by clause (1) of Article 16. On this ground alone, the said clause in the Office Memorandum dated May 25, 1991 fails and is accordingly declared as such.”

105. It is quite evident that the economic criterion as the basis for reservations, was not upheld on account of the existing structure and phraseology in Articles 15(1) and 16(1). There is nothing in the judgment in Indra Sawhney suggestive of this court’s omnibus disapproval of the idea of rooting affirmative action (including reservation) on the basis of economic criteria. Nor did this court comment (or could have commented) on a possible future amendment to the Constitution, introducing the economic criteria as the basis for reservation or special provisions.
106. One of the questions considered in Indra Sawhney was whether reservations contemplated could be confined to what existed, in the form of Articles 15 and 16. This court, having regard to the existing structure of those provisions, answered the question as follows:

“744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, — and not for all and sundry reasons — that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a correspondingly whittled down and that is not a reasonable thing to do.”

107. It is apparent that the court was considering the issue through the prism of the provisions as they existed. The court did not – and correctly, could not have visualized what may be become a necessity, perhaps even a compelling one in the future, of the need to bridge the ever-widening gap between the affluent and comfortable on the one hand, and the desperately poor, on the other. The need to ensure that those suffering the adverse effects of abject poverty – illiteracy, marginal income, little or no access to basic amenities such as shelter, hygiene, nutrition, or crucially, education (which has transformational value) – are given a modicum of access to achieve basic goals which the Preamble assures, and Part IV provisions directs the State to achieve, therefore, is another dimension which Parliament thought appropriate to achieve, while introducing the economic criteria. Therefore, the judgment in Indra Sawhney, howsoever authoritative, cannot be considered as the last word, when considering the introduction of the new criteria for affirmative action. That judgment is authoritative, for its determination of what is permissible, and what should be the constitutional method of implementing, backwardness-based affirmative action. However, it cannot be considered as exhaustive of new criteria, which may be brought about by constitutional amendments (thus, removing the basis of the judgment itself). Therefore, to say that Indra Sawhney or any other judgment does not permit reservations or affirmative action, based on economic criteria, alone, is incorrect. That judgment cannot restrain Parliament from introducing constitutional amendments that enact such criteria, as the basis of reservation benefits, or other special provisions. Further, existing criteria for reservations, cannot be the only way in which the state is permitted to achieve social and economic justice goals: those criteria must be followed, but cannot preclude the introduction of new criteria, or new methods, through amendment to the Constitution.

B. State’s obligations under Directive Principles to fulfil mandate of substantive equality

108. A perusal of the Directive Principles of State Policy, reveals the State’s obligations, as intended by the Constituent Assembly. The State, through Article 38(1), is obligated to establish a social order to promote welfare of people by extending to them justice – social, economic and political. It also has the responsibility of minimising income inequalities and the elimination of inequalities in status, facilities and opportunities, by virtue of Article 38(2) specifically. Article 39 not only postulates the right to an adequate means of livelihood, and redistribution of material resources for common good, it further directs the State to ensure that there is no concentration of wealth and means of production in hands of the few, to the common detriment. Articles 38 and 39 read with Articles 41, 42, 43, 45, 46, 47 and 48, holistically, contribute to economic justice.
109. Social justice implies removing all inequalities and affording equal opportunities to citizens in social as well as in economic affairs.^[116] Directive Principles of State Policy, through Articles 38, 39, 41 and 43, mandate the state to establish an “economically just” social order. The Preambular aims of justice (economic, social and political), and equality of status and opportunity, find articulation in both Part III and Part IV of the Constitution. Till now, the State pursued the goal of achieving equality of status and opportunity, substantively, by employing some form of protective discrimination, to eliminate past discrimination, which had set

up barriers to the most marginalised sections of society, thereby denying them access to resources and public employment. The structuring of enabling provisions [Articles 15(4) and 16(4)] is such that the target group were only those who fell within the description of classes that suffered social and educational backwardness. These included the most disadvantaged among the disadvantaged and oppressed, i.e., scheduled castes and scheduled tribes. The inclusion of any other people therefore, could not be contemplated in the context of the Constitution, as well as its text, as it stood.   

110. The aim of creating a uniform, egalitarian, casteless society is to be seen as a paramount objective. Reservation was deemed as one of the principal means of achieving that goal. Such measures have worked, and their retention underlines that as a nation, we have miles to go, before we are anywhere near the promise we have given onto ourselves. In this journey, if it is discerned that alongside these hitherto oppressed communities, who were hostilely treated on account of their caste status, there are also a substantial number of people, who have not progressed due to their economic deprivation; the state is duty bound to take remedial measures to address their plight.

C. Flexibility of constitutional amendments to enable substantive equality

111. Constitutions being charters of governance, carry within them delineation of powers, of various branches of government, and numerous constituent units, at the same time, guaranteeing liberties, assuring equality. To be vibrant and relevant, they are to be sufficiently flexible to allow experimentation. This experimentation is vital, to enable the assimilation of felt needs of the society – for change: in view of developments in interpretation, efficacy of provisions of the charter, unmet or new aspirations, etc. The need to ensure that the fruits of progress reach

all, especially the poor, who are marginalized, is an important constitutional obligation, which finds voice in several provisions of the Directive Principles of State Policy. The existence, or rather, the express recognition of discrimination which prevented large segments of the population, access to institutions, or participation in public affairs and offices cannot, therefore, imply the preclusion of recognition of any other criteria, for providing means to other disadvantaged groups, based on other factors. In this case, the factor, or basis chosen, is economic deprivation.  

112. In Kihoto Hollohan this court noted that a Constitution “outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances – a distinction which differentiates a statue from a Charter under which all statutes are made.”. This court quoted from Cooley on ‘Constitutional Limitations’⁷⁵ that an amendment, to the constitution, upon its adoption becomes a part thereof; as much so as if it had been originally incorporated in the Constitution and

“it is to be construed accordingly” .

113. Constitutions are meant to endure; they outline the broad contours of governance of the society which creates them. Modern constitutions typically delineate power: legislative, executive and judicial and, depending upon the genius of the individual society, set up systems of checks and balances to limit the zones of operation of each branch. Where the Constitution governs a large territory, comprising of provincial or constituent units, the delineation of legislative power is also indicated. Furthermore, in every Constitution, limitations on state power, in the form of a Bill of Rights (by whatever name called) are engrafted to safeguard individual liberties and ensure that there is equality in all spheres of activity. Constitutions also indicate the manner of their amendment:

⁷⁵ 8th Edn. Vol. 1 page 129.

essentially regarding the special procedures needed for the purpose, and in some instances, the limitation upon the amending power, in regard to certain subjects, which are deemed beyond the pale of that power.  

114. The rationale for such amending power is that no matter how exhaustive a constitution is, how deeply its framers have deliberated, it may possibly not provide for all situations. There may be need to re-align legislative heads, in the light of subsequent changes dictated by social or political consensus, or compromise. Societies are constantly, in a state of flux. In the words of Thomas Jefferson, considered to be the Founding Father of the United States:

“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”^[117]

115. The opinion of Khanna, J, too recognizes this aspect, in

Kesavananda Bharati. He said that constitutions provide  

“1437. […] for the framework of the different organs of the State viz. the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs a constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come…”

Commenting that it cannot be regarded as “a mere legal document” the learned judge further noted that the  “1437. […] Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Constitution must

therefore contain ample provision for experiment and trial in the task of administration…”

116. Such being the case, the concerns which emerge from changing time, are usually met within the framework of a flexible constitutional document. However, occasionally, that document needs to be re-examined, and if necessary, amended to accommodate the challenges that are unmet and beyond the contemplation of that foundational charter.
117. It is axiomatic that the wisdom of a legislation is not within the domain of the courts. Speaking of constitutional amendments, Sikri, CJ., in Kesavananda Bharati observed:

“288. It is of course for Parliament to decide whether an amendment is necessary. The Courts will not be concerned with the wisdom of the amendment.”

118. Shelat and Grover, JJ. stated the same idea, and added that it is the consequences of the provision, having regard to the width of the power, which properly falls for judicial consideration:

“532. It is difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power contained in a Constitution any question of its abuse is involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution-makers or for the Parliament or the legislature. But that the real consequences can be taken into account while judging the width of the power is well settled. The court cannot ignore the consequences to which a particular construction can lead while ascertaining the limits of the provisions granting the power.”^[118]

119. Whether the circumstances justified the move, or that some measure was better than what was conceived and enacted is not what can be gone into by the courts. This is even more so, in the case of constitutional amendments, where the facts which impelled the Parliament to draw upon its extraordinary power, a constituent power, no less, and amend the

Constitution, are not matters of examination or deep consideration. Therefore, whether there is objective material to justify the economic criteria, or the sufficiency of it, are not relevant for the court to examine, while considering the validity of this constitutional amendment. Equally Parliament’s motive (or of a legislative body), in enacting the legislative measure, or constitutional amendment, is an irrelevant factor. What the court can certainly consider is, the purpose which the amendment seeks to achieve, which is often discernible from the processes leading up to the passing of such an amendment, the discussions that arise, etc.  

D. Purpose that the amendment seeks to achieve through introduction of economic criteria

120. The above discussion is conclusive on the question of relevance of materials to justify constitutional amendments. Nevertheless, since arguments were addressed by the petitioners and Union on this, it would be appropriate to deal with them. The materials relied on, in the form of the Sinho Commission Report (2010), the Statement of Objects of the Bill when it was introduced, together with the parliamentary debates (brief as they are) before it fructified into the Amendment, are indicative of what Parliament wished to achieve, through the amendment.
121. The respondent-Union relied heavily upon the NITI Aayog Report on National Multidimensional Poverty Index (published in 2021). The issue of mapping poverty has consistently engaged the attention of the State – earlier, poverty was mapped using the “the poverty line”, which has now given way to the “multi-dimensional” approach. By this latter methodology, various indicators are considered to look at a holistic picture of deprivation. The NITI Aayog Report considered – as poor, an individual spending less than ₹47 a day in cities as against one spending less than ₹32 a day in villages. The National Multidimensional Poverty Index (“NMPI”) based itself on three facets – education, health, and standard of living – each having a weightage of one-third, in the index. Each of these are further based on 12 sections – nutrition, child and adolescent mortality, antenatal care, years of schooling, school attendance, cooking fuel, sanitation, drinking water, electricity, housing, assets, and bank accounts.
122. There were deprived people by each of these criteria though some of them may not have been multidimensionally poor in 2015-16. The highest number of the deprived were identified on the indicators of cooking fuel (58.5%) and sanitation (52%). In other words, more than half the population were poor on these two facets, in terms of the report. Housing had a deprivation proportion of 45.6% of the population during 2015-16, followed by nutrition (37.6%), maternal health (22.6%), drinking water (14.6 %), assets (14%), years of schooling (13.9%), electricity (12.2%), bank account (9.7%), school attendance (6.4%) and child and adolescent mortality (2.7%).^[119]
123. The Sinho Commission was set up to examine the condition of economically backward classes and suggested measures – including the feasibility of reservations – to improve their lot. The Report, published in July 2010, was based on the census of 2001, and later surveys, wherein the Commission took note of various factors such as employment, education, nutrition levels, housing, access to resources, etc. The statistics (NSSO 2004-05) which this Report is based on, disclosed that in all, 31.7 crore people were below the poverty line (“BPL”), of which the scheduled caste population was 7.74 crores (i.e., 38% of total scheduled castes), scheduled

tribe population was 4.25 crores (48.4% of total scheduled tribes), 13.86 crores of OBC population (which was 33.1% of total OBCs), and 5.85 crores of General Category (18.2% of total general category).

E. Conclusion on permissibility of economic criteria per se

124. Economic emancipation is a facet of economic justice which the Preamble, as well as Articles 38 and 46 promise to all Indians. It is intrinsically linked with distributive justice – ensuring a fair share of the material resources, and a share of the progress of society as a whole, to each individual. Without economic emancipation, liberty – indeed equality, are mere platitudes, empty promises tied to “ropes of sand”^[120]. The break from the past – which was rooted on elimination of caste-based social discrimination, in affirmative action – to now include affirmative action based on deprivation, through the impugned amendment, therefore, does not alter, destroy or damage the basic structure of the Constitution. It adds a new dimension to the Constitutional project of uplifting the poorest segments of society.

               V.      Consideration of Article 16(6)

125. It is important to note that there are crucial supplementary reasons, why the reservation benefits introduced through Article 16(6) are to be examined from another point of view – apart from the point of exclusion.
126. The issue of providing reservations in public employment, was debated four times, by the Constituent Assembly, (30.11.1948, 09.12.1948, 23.08.1949 and 14.10.1949) which considered Draft Article 10(3). Several speakers emphasized that reservations in favour of backward classes of citizens was necessary to empower them and give voice to them in the

administration of the country. The speech, by H.V. Kamath, on the content of what is now Article 16(4), is illustrative:

“This is not a more directive principle of state policy; this is in Chapter III, on Fundamental Rights. When this is guaranteed to them, no backward class of citizens need be apprehensive. If there is no representation for them in the services they can take the Government to task on that account. I think this would be an adequate safeguard for them so far as their share in the services is concerned. I hope that this article 10 guarantees that right to them, and so they need have no dispute or quarrel with the article before the House today.”

127. This aspect, of representation, was highlighted in Indra Sawhney:

“694. […] the objective behind Clause (4) of Article 16  was the sharing of State power. The State power which was almost exclusively 68onopolized by the upper castes i.e., a few communities, was now sought to be made broadbased. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16 (4)  is empowerment of the deprived backward communities – to give them a share in the administrative apparatus and in the governance of the community”

The majority judgment again stated:

“788. […] It is a well known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such backward classes. In this sense Dr. Rajiv Dhawan may be right when he says that the object of Article 16 (4)  was “empowerment” of the backward classes. The idea was to enable them to share the state power. We are, accordingly, of the opinion that the backwardness contemplated by Article 16 (4) is mainly social backwardness. It would not be correct to say that the backwardness under Article 16 (4) should be both social and educational…”

128. In Nagaraj, too, the idea of reservations under Article 16(4) being provided, to enable representation, was underlined: “55. […] in The General Manager, Southern Railway and another v. Rangachari Gajendragadkar, J. giving the majority judgment said that reservation under Article 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims

of backward classes and claims of other employees as well as the requirement of efficiency of administration.”

129. It is clear, from the above discussion, that equality of opportunity in public employment – a specific facet of the equality code – is a guarantee to each citizen. The equally forthright prohibition in Article 16(2), enjoining discrimination on various grounds, including caste, is to reinforce the absoluteness of equality of opportunity, that it cannot be denied. The only departure through Article 16(4) is to give voice to hitherto unrepresented classes, discriminated against on the proscribed grounds. This link – between providing equal opportunity, and representation through reservations, was the only exception, permitted by the Constitution, to further equality in public employment.
130. The impugned amendment snaps the link between the idea of providing reservation for backward classes to ensure their empowerment and representation (who were, before the enactment of Article 16(4), absent from public employment). The entire philosophy of Article 16 is to ensure barrier-free equal opportunity in regard to public employment. Article 16(4) – as stated previously enables citizens belonging to backward classes access to public employment with the superadded condition that this is to ensure their “adequate representation”. Important decisions of this court: Indra Sawhney, M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta^[121] and BK Pavitra (II) v. Union of India⁸¹ have time and again emphasized that reservations under Article 16 are conditioned upon periodic adequate representation review.
131. The introduction of reservations for economically weaker sections of the society is not premised on their lack of representation (unlike backward classes); the absence of this condition implies that persons who

benefit from the EWS reservations can, and in all probability do belong to classes or castes, which are “forward” and are represented in public service, adequately. This additional reservation, by which a section of the population who are not socially backward, and whose communities are represented in public employment – violates the equality of opportunity which the Preamble assures, and Article 16(1) guarantees.

132. The impugned amendment results in treating those covered by reservations under Article 16(4) with a standard that is more exacting and stringent than those covered by Article 16(6). For instance, if the poorest citizens among a certain community or that entire community, is unrepresented, and the quota set apart for the concerned group (SC) as a whole is filled, the requirement of “representation” is deemed fulfilled, i.e., notwithstanding that the specific community has not been represented in public employment, no citizen belonging to it, would be entitled to claim reservation. However, in the case of non-SC/ST/OBCs, whether the individual belongs to a community which is represented or not, is entirely irrelevant. This vital dimension of need to be represented, to be heard in the decision-making process, has been entirely discarded by the impugned amendment in clause (6) of Article 16. Within the amended Article 16, therefore, lie two standards: representation as a relevant factor (for SC, ST and OBC under Article 16(4)), and representation as an irrelevant factor (for Article 16(6)).
133. Therefore, for the reasons already covered in Question 3, and as set out separately above, the introduction of this reservation in public employment violates the right to equal opportunity, in addition to the nondiscriminatory facet of equality, both of which are part of the equality code and the basic structure.

VI. Re: Question 2: special provisions based on economic criteria, in relation to admission to private unaided institutions

134. The eleven-judge bench ruling in M.A. Pai Foundation v. State of Karnataka^[122] has recognized that Article 19(1)(g) of the Constitution embraces the right to establish private educational institutions as an avocation. The insertion of Article 21A, and later Article 15(5) added a new dimension. These amendments are to be viewed as society’s resolve that all institutions – public and private – have to join in the national endeavour to promote education at all levels. Education in this context is to be seen as a “material resource” of the society, meant to benefit all its segments.
135. The Right of Children to Free and Compulsory Education Act, 2009 by Section 12(a) in fact introduces an all-encompassing quota which is inclusive, under the broad rubric of “economically weaker sections of the society“.^[123] Parliament had this model, and was also aware that this Court had upheld it in Society for Unaided Private Schools of Rajasthan and further that Article 15(5) too was upheld in
136. Unaided private institutions, including those imparting professional education, cannot be seen as standing out of the national mainstream. As held in the aforementioned judgments, reservations in private institutions is not per se violative of the basic structure. Thus, reservations as a concept cannot be ruled out in private institutions where education is imparted. They may not be State or State instrumentalities, yet the value that they add, is part of the national effort to develop skill and disseminate knowledge. These institutions therefore also constitute material resources

of the community in which the State has vital interest, and are not merely bodies set up to further private objective of their founders, unlike in case of the shareholders of a company. Such institutions are seen as part of the State’s endeavour to bring educational levels of the country up, and foster fraternity, as held in Pramati:

“37. […] The goals of fraternity, unity and integrity of the nation cannot be achieved unless the backward classes of citizens and the Scheduled Castes and the Scheduled Tribes, who for historical factors, have not advanced are integrated into the mainstream of the nation…”

137. Further, in Indian Medical Association on reservation of seats under Article 15(5) in Army College of Medical Sciences (ACMS), the court held:

 “74. At this stage we wish to make a necessary and a primordially important observation that has troubled us right throughout this case. The primordial premise of the arguments by unaided educational institutions in claiming an ability to choose students of their own choice, in case after case before this Court, was on the ground that imposition of reservations by the State would impede their right to choose the most meritorious on the basis of marks secured in an objective test. It would appear that, having unhorsed the right of the State to impose reservations in favour of deprived segments of the population, even though such reservations would be necessary to achieve the constitutionally mandated goals of social justice and an egalitarian order, unaided institutions are now seeking to determine their own delimited “sources” of students to the exclusion of everybody else.

75. The fine distinctions made…that an allocation when made by the State is reservation, as opposed to allocations made by private educational institutions in selecting a source do not relate to the fundamental issue here: when the State delimits, and excludes some students who have secured more marks, to achieve goals of national importance, it is sought to be projected as contrary to constitutional values, and impermissibly reducing national welfare by allowing those with lesser marks to be selected into professional colleges; and at the same time, such a delimitation by a private educational institution, is supposedly permissible under our Constitution, and we are not then to ask what happens to that very same national interest and welfare in selecting only those students who have secured the highest marks in a common entrance test. We are reminded of the story of the camel that sought to protect itself from the desert cold, and just wanted to poke its head into the tent. It appears that the camel is now ready to fully enter the tent, in the desert, and kick the original inhabitant out altogether.
76. In any case we examine these propositions below, as we are unable to convince ourselves that this Court would have advocated such an illogical position, particularly given our history of exclusion of people, on various invidious grounds, from portals of education and knowledge. Surely, inasmuch as this Constitution has been brought into force, as a constitutive document of this nation, on the promise of justice—social, economic and political, and equality—of status and opportunity, for all citizens so that they could live with dignity and fraternal relations amongst groups of them, it would be surprising that this Court would have unhorsed the State to exclude anyone even though it would lead to greater social good, because marks secured in an entrance test were sacrosanct, and yet give the right to nonminority private educational institutions to do the same. The knots of legal formalism, and abandonment of the values that the Constitution seeks to protect, may lead to such a result. We cannot believe that this Court would have arrived at such an interpretation of our Constitution, and in fact below we find that it has not.

                                                                                     (emphasis supplied)

138. No better articulation than the aforementioned is warranted to hold the EWS reservation equally applicable to unaided private institutions.

However, given that my analysis under question 3 on ‘exclusion’ holds the Amendment to be violative of the basic structure, the question herein has been rendered moot.

VII. Addressing other related challenges to, and justifications of the

impugned Amendment

A. Possibility of reading down the exclusion

139. An argument made by some of the petitioners, was that the amendment could be sustained, if the phrase “other than” was read down, in such a manner so as to read as “in addition to” or in a manner that negates the exclusionary element, which offends the basic structure.
140. The doctrine of reading down, has been employed by this court, in the past, in numerous cases; however, in each instance, it has been clarified that it is to be used sparingly, and in limited circumstances. Additionally, it is clear from the jurisprudence of this court that the act of reading down a provision, must be undertaken only if doing so, can keep the operation of the statute “within the purpose of the Act and constitutionally valid”^[124]. In

Delhi Transport Corporation v. DTC Mazdoor Congress⁸⁵ Sawant, J recounted the position on this doctrine succinctly:

“255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible — one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the subject of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it….”

141. Therefore, when the intention is clear, and the text unambiguous, the warning against employing this device of reading down, has been consistent. In Minerva Mills, this court was faced with the possibility of reading down to uphold a constitutional amendment, which was rejected as follows:
     64. […] The device of reading down is not to be resorted to in order to save the susceptibilities of the law-makers, nor indeed to imagine a law of one’s liking to have been passed. One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment…

[…]

65. […] If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends…”

142. The intention of Parliament while exercising constituent power occupies a much higher threshold or operates in a higher plane, when compared to legislative intent of ordinary law, the latter being subject to

⁸⁵ 1991 Supp (1) SCC 600

different grounds of judicial scrutiny. Therefore, attractive as it may be – it is my considered opinion that the plea to read down the exclusion, is untenable because the intention of the Parliament in exercise of its constituent power is clear and unambiguous.

B. Absence of ‘guardrails’ to deny economic criteria per se

143. The petitioners submitted that the Constitution has enacted “guardrails” to control reservations based on social and educational backwardness in the form of (1) mandating institutions; (2) tasking institutions with evolving principles for identification of backward classes, SC/STs; and (3) periodically reviewing lists of SC/STs and OBCs. These arguments-of lack of “guardrails” to counter economic criteria, per se, are in my opinion, insubstantial. As elaborated in Part V, I have accepted the contention that the guardrail of ‘adequate representation’ in Article 16, prohibits introduction of reservation based on economic criteria for the purpose of public employment. The other arguments on absence of guardrails, are dealt with presently.
144. The explanation to Article 15(6) enlists the broadest criteria of what constitutes “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 disadvantages”), upon which legislation and executive policy can be built (and subject to subsequent challenge or scrutiny, if such a situation arises). The indicators of economic deprivation, enacted through the explanation are income, or such other criteria, including other traits which may be relevant. For the purpose of evolving economic criteria as a separate or a new basis for affirmative action, the indication of the broadest guideline of income, and other relevant criteria, are sufficient. The extent of income, relative to income earning capacity, having regard to the state in question, or areas in states, or extent of assets,

are matters of detail which can be factored into the policies of the state or the Union, having regard to the felt necessities of the time, or circumstances.

145. As far as the existence of institutional guarantees in the form of commissions or bodies, such as National Scheduled Caste and Scheduled Tribe Commissions, Backward Class Commissions, etc., which specific provisions (i.e., Articles 338, 338A, 338B, 340) of the Constitution provide for are concerned, it is for the Union, or the states as the case may be, to create these permanent bodies through appropriate legislation. In fact, the judgement of this court in Indra Sawhney had suggested the creation of a permanent body to determine OBCs which led to the setting up of the National Backward Class commission through a separate Parliamentary enactment. Therefore, the absence of any such provision enabling the setting up of a permanent institution per se cannot lead this court to conclude that the basic structure or essential features of the Constitution are violated.

C. Basic structure doctrine as a discernible concept

146. Having perused the other opinions authored by members of this bench, I am compelled to record my disagreement, and caution, relating to certain observations on the basic structure doctrine. In the myriad challenges based on basic structure, the ones that succeeded, have been based on violation of constitutional principles, such as judicial review (Indira Gandhi, Minerva Mills, L. Chandra Kumar and Sambamurty) independence of the judiciary (SCAORA case); rule of law, democracy and separation of powers (Indira Gandhi). To say that this court thwarted policies, or more seriously, that it dictated policy, is parlous, and tends to undermine the foundations of judicial functioning.^[125] In each instance when

the court intervened and held an amendment to be violative of the basic structure, the rule of law triumphed. For instance, in Kesavananda Bharati itself, the court only held unconstitutional the part of a provision that upheld declaration in a law (whether made by Parliament or the State) which stated that its objectives were to promote Articles 38 and 39, thus excluding judicial scrutiny to discern whether the law actually promoted any value of those directive principles. Such wide and untrammelled power, to override Articles 14 and 19, were not left unchecked. On the other hand, the court upheld, in Raghunathrao Ganpatrao, deletion of two provisions, which an eleven judge bench had previously held to be “integral” to the formation of the nation, and the Constitution.

147. Furthermore, the basic structure is not as fluid as is made out to be; the contours of what it constitutes have emerged, broadly speaking, through various decisions. Can the value of democracy, be so nebulous, “amorphous” or transient, that it can be undermined by succeeding generations, as is suggested? Can the rule of law become rule by law, which is the essence of autocracy and authoritarianism? Can the Orwellian concept of an oligarchic equality be ever conceived as the essential principle of equality? Can liberty be subjected to indefinite incarceration without trial or charges and yet remain of the same content, as to mean what it means under Articles 21 and the Preamble? The answer has to be a resounding negative in each of the cases. The basic structure may not be a defined concept; it is however not indecipherable. The values which the court set out to guard, by the framing of that doctrine, are eternal to every democracy, every free society: liberty, equality, fraternity, social and economic justice.
148. The members of this bench, constituting the majority, have relied on the test of validity of a constitutional amendment evolved in Bhim Singhji. I find it pertinent to highlight that in this decision the only reference to the said test was by Krishna Iyer J.^[126] who himself did not indicate how Section 27 of the impugned Act (which was inserted as an enactment in the IX^th Schedule), amounted to a “shockingly unconscionable or unscrupulous travesty of quintessence of equal justice”. Similarly, the common judgment of Chandrachud J., and Bhagwati J., also was silent on this aspect. Tulzapurkar J., judgment invalidated not only Section 27 but several other provisions of the Act also.  In these circumstances, the observations of Krishna Iyer J., as to be the high threshold of violation of Article 14 in the context of insertions of an enactment in the Ninth Schedule i.e. “shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice”, has limited application.
149. It is noteworthy that this judgment was taken into account by the unanimous decision of a nine-judge bench in R. Coelho where the appropriate test to determine whether insertion of an enactment into the Ninth Schedule, was finally settled. The court not only took note of Kesavananda Bharati, Minerva Mills and Bhim Singhji but also Waman Rao and held that the appropriate test would be the “impact” on the right and also whether the “identity of the constitution” is changed by way of the amendment or the enactment which is inserted through an amendment.

That aspect has been discussed in an earlier portion of this judgment.  I.R. Coelho is also an authority that Article 14 and 15 principles underlying them are integral parts of the basic structure of the Constitution. In these circumstances, the test indicated by Krishna Iyer, J. has been altered, to a different one, by I.R. Coelho.

D. Whether an enabling provision can violate the basic structure

150. The Union and other respondents had submitted that the newly introduced provisions, through the impugned amendment, are merely

enabling, and confer power upon the state, to make special provisions and reservations, based on the economic criterion – thus, cannot violate the basic structure. This view has also been accepted in the opinion authored by Justice J.B. Pardiwala. I am of the considered opinion that the argument that the provisions are enabling and therefore, do not violate the basic structure (of the Constitution) is not substantial.

151. Previous decisions of this court have invalidated Constitutional Amendments, even when containing merely enabling provisions. In Chandra Kumar, the provisions in question were, inter alia, Articles 323A

(2) (d) and 323B (3) (d), which read as follows:

“Article 323A (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

(147)A law made under clause (1) may-

[….]

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);

**************                                                 *****************

Article 323B (1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.

• The matters referred to in clause (1) are the following, namely:-

[…]

• A law made under clause (1) may-
• provide for the establishment of a hierarchy of tribunals;
• specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; I provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to all or any of the matters

falling within the jurisdiction of the said tribunals…”

**************                                                 *****************

152. The court did not merely hold that the legal provisions, which enabled exclusion of jurisdiction of courts, violated any provision of the constitution. It proceeded to hold that the provision which enabled the enactment of a law, that excluded jurisdiction of courts, more particularly the High Courts, and thus, shut out judicial review, violated and destroyed the basic structure of the Constitution.
153. By the Constitution (Thirty Second Amendment) Act, 1973, Article 371D was introduced, which inter alia, enabled the President to set up Administrative Tribunals, in relation to areas in Andhra Pradesh. Article 371D(5) was the subject matter of challenge before this court in

Sambamurthy. Article 371D(3) and (5) read as follow:

“The President may, by order, provide for the Constitution of an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers and authority including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty-Second Amendment) Act, 1973, was exercisable by any Court (other than the Supreme Court) or by any Tribunal or other authority as may be specified in the order with respect to the following matters, namely:-

[…]

(5) The order of the Administrative Tribunal finally dis- posing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made. whichever is earlier;

Provided that the State Government may. by special order made in writing for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may ”e.”

154. This court held that the power under Article 371D(5), per se, and not merely the exercise of it, was shockingly subversive of the rule of law:

“4. […] this power of modifying or annulling an order of the Administrative Tribunal conferred on the State Government under the proviso to Clause (5) is violative of the rule of law which is clearly a basic and essential feature of the Constitution. It is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by over-tiding the decision given against it, it would sound the death/knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet get away with it…”

155. Likewise, in C. Poudyal, the controversy was with respect to reservations made in favour of a religious sect, i.e., the Buddhist Sangha. The provision which enabled this reservation, was in Article 371F (f) which inter alia, reads as follows:

“371F. Special provisions with respect to the State of Sikkim 

Notwithstanding anything in this Constitution,

(a) the Legislative Assembly of the State of Sikkim shall consist of not less than thirty members;

[…]

(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim;…”

156. The majority opinion upheld the amendment, and the provision- not because it was an enabling provision, but that it dealt with inclusion of new territory, and ensured historical continuity, of a state, with its past traditions, and was part of the compact through which it entered the Union.

At the same time, the majority opinion, tellingly stated that

“129. It is true that the reservation of seats of the kind and the extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass the Constitutional muster. But in relation to a new territory admitted to the Union, the terms and conditions are not such as to fall outside the permissible constitutional limits. Historical considerations and compulsions do justify in equality and special. Treatment…”

Chief Justice L.M. Sharma, who wrote a dissenting opinion, held that the provision which enabled reservation on the basis of religion, was violative of the basic structure of the constitution.^[127]

157. It is therefore, inaccurate to say that provisions that enable, exercise of power, would not violate the basic structure of the Constitution. The enabling provision in question’s basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court’s inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted. Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. To borrow a powerful simile from a dissenting opinion in a decision of the United States Supreme Court, that upheld broad use of emergency power, to incarcerate thousands of US citizens, such enabling powers, if left alone, can “lie(s) about like a loaded weapon”^[128] with its potential to destroy core constitutional values.
158. In R. Bommai, although the validity of a Constitutional amendment was not in issue, the nine-judge Bench made certain crucial observations, with respect to use of power, under Article 356 of the Constitution. The court stated that

“96. […] The Constitution is essentially a political document and provisions such as Article 356  have a potentiality to unsettle and subvert the entire constitutional scheme. The exercise of powers vested under such provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional balance lest the Constitution is defaced and destroyed. This can be achieved even without bending much less breaking the normal rules of interpretation, if the interpretation is alive to the other equally important provisions of the Constitution and its bearing on them. Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation that we may place on Article 356 must, therefore help to preserve and not subvert their fabric…”

159. Therefore, the fact that impugned amendments have introduced provisions which are merely enabling, does not protect it from basic structure scrutiny. To view a newly added provision as only “enabling” can be an oversimplification in constitutional parlance. The court’s concern is not with the conferment of power per se, but with the width of it, lack of constitutional control, and the direct impact it can have on principles constituting the basic structure.

E. Parallel with exclusion of creamy layer

160. Another assumption that the exclusion of the creamy layer can somehow be equated to, the exclusion that the impugned amendment perpetrates, necessitates correction. As discussed previously, the Constituent Assembly debates plainly show that Article 16(4) was included with the intention of permitting representation and diversity. The other parameter was that without such a provision, the rule of equality of opportunity [mandated by Article 16(1)] would not admit of positive discrimination. Therefore, the idea of positive or compensatory discrimination was intrinsic to the idea of equal opportunity – a fact recognised and acknowledged as late as in Nagaraj. The idea that Article 16(4) really is meant to ensure representation is also borne out textually, since the State is enjoined to ensure that “adequate representation” is given to members of the backward classes. These sections of society were hitherto barred access to public offices and denied opportunity to representation in public affairs. If one keeps this in mind, the matrix operating for reservation under Article 16(4) is one permitting diversity, representation, and eliminating discrimination.
161. The idea of introducing creamy layer, gained momentum for the first time in C. Vasant Kumar v. State of Karnataka^[129] and was recognised as

a compulsion which the State had to adopt in carrying out the exercise of identifying socially and educational backward classes. The rationale for identification and consequent exclusion of creamy layer amongst the backward class is that there exists a segment or section among the backward classes who have gained reservations and have advanced socially and educationally. The criteria adopted by the States has been the level of advancement – reflected in the economic and social status of such segments of society. Thus, if in the application of such criteria, it is found that amongst the OBCs, sections have moved forward and gained affluence, they are to be treated as advanced sections of society. In other words, moving out of the grouping as backward classes are deemed to be

“forward”. Constitutionally speaking, Indra Sawhney is an authority on this issue, i.e., that identification of creamy layer among the OBCs is as such a duty of the State to ensure that meaningful opportunities are given to the really backward. The corollary is therefore, the caste status of those who form part of creamy layer becomes irrelevant; and hence, they are not entitled to reservation under 15(4) or 16(4). Keeping all this in mind, the fact that some amongst the OBCs (creamy layer) do not enjoy the benefit of reservation (under 15(4) and 16(4)) does not lend justification for excluding those who are entitled to reservations under 15(4) and 16(4), due to their caste or social/educational backwardness, for benefit under Articles 15(6) – which is a reservation based on a different criterion, despite them being equally, or even more deprived than those who belong to the forward caste.

F. Other justifications for the classification

162. I am unable to agree with the characterisation of the classification in the impugned amendment as accepted by Dinesh Maheshwari, Bela

Trivedi, and J.B. Pardiwala, JJ), for reasons set out in Part III (D). I shall

in this section, respond to specific conclusions arrived at by the judges that constitute the majority.

(i) Reasonable classification to prevent double benefits

163. The allusion to over-classification and under classification, as the bases for exclusion in the context of the doctrine of classification governing Article 14, cannot be denied as a matter of law. However, to say that the non-inclusion of SC/ST and OBC communities – though the largest segments of the poor are from amongst them, is mere reasonable under- inclusion, cannot be accepted – especially in the context of a constitutional amendment. Reliance has been placed on State of Gujarat v. Shri Ambika Mills^[130] and Seshachalam & Ors. v. Chairman Bar Council of TN^[131]. In Ambica Mills, the court upheld the legislative measure, which excluded establishment or persons, on the ground that the state’s policies to cover establishments, having regard to the objects, was not defeated, and the classification, not fatal, because it left out some classes of establishments having regard to their size. In Seshachalam, the exclusion from payment of lump sum amount, under an Advocate’s welfare scheme, of lawyers receiving pension from their erstwhile employers, was held to not offend Article 14. Each of these cases are not apt instances, for the purposes of this case. The use of the term “double benefit” is discernible in the latter case. If one considers that if pension was being introduced for professionals for the first time, who had no other means of livelihood, when they gave up their avocation, the exclusion of those who had their full run of employment, enjoyed pension from their erstwhile employer, and then joined the legal profession, was justifiable, given that the State was assuming a burden for the first time, and keeping apart resources for that purpose. This classification was justified also on the basis of the principle

in R.K. Garg v. Union of India⁹³, that in matters concerning economic policy, the state has wider latitude.

164. It is worth recollecting that Mathew, J. in Ambica Mills cautioned that one has to look beyond the classification. Else, the mind boggles at the classification, resulting in its justification. As recognised in some of the earliest decisions, the rule of classification is not the right to equality (just as the rights are fundamental, not the restrictions). I wish to highlight at this juncture, what was said in Roop Chand Adlakha v. Delhi Development Authority⁹⁴ – “To overdo classification is to undo equality.”

(ii) Scope of Article 46

165. In my considered opinion, it would be wrong to characterize that the classification made for upliftment of SC/STs for whom special mention is made, is a “classification” for the purpose of upliftment of economically weaker sections, under Article 46, which permits a later classification that excludes them. If anything, the intent of Article 46 is to ensure upliftment of all poor sections: the mention of SC/STs is to remind the state that especially those classes should not be left out. But ironically, that is exactly the result achieved by their exclusion.
166. There can be no debate that Article 46 is an injunction to the State to take all steps to ameliorate the lot of economically weaker sections of the society. That this injunction was not confined to only SCs/STs has been widely accepted. In Indra Sawhney this aspect was recognized and elaborated, by PB Sawant, J. who stated that economic backwardness may not be the result of social backwardness:

“481. […] The concept of “weaker sections” in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an

• (1981) 4 SCC 675
• 1989 Supp (1) SCC 116

identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only the concept of “weaker sections” under Article 46 is different from that of the “backward class” of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true. If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying backward classes of citizens under Article 16(4) would be more clear. To the consideration of that aspect we may now turn.

[…]

576. Economic backwardness is the bane of the majority of the people in this country. There are poor sections in all the castes and communities. Poverty runs across all barriers. The nature and degree of economic backwardness and its causes and effects, however, vary from section to section of the populace. Even the poor among the higher castes are socially as superior to the lower castes as the rich among the higher castes. Their economic backwardness is not on account of social backwardness. The educational backwardness of some individuals among them may be on account of their poverty in which case economic props alone may enable them to gain an equal capacity to compete with others. On the other hand, those who are socially backward such as the lower castes or occupational groups, are also educationally backward on account of their social backwardness, their economic backwardness being the consequence of both their social and educational backwardness. Their educational backwardness is not on account of their economic backwardness alone. It is mainly on account of their social backwardness. Hence mere economic aid will not enable them to compete with others and particularly with those who are socially advanced. Their social backwardness is the cause and not the consequence either of their economic or educational backwardness. It is necessary to bear this vital distinction in mind to understand the true import of the expression “backward class of citizens” in Article 16(4).”

167. Therefore, that Article 46 covers a wider canvass, and includes people who are poor, and whose poverty is not the result of social backwardness, has been recognized always. To now say that the mention of SC/STs in Article 46, and provision of reservations for them, is sufficient to distinguish them as a separate class, within Article 46, ignoring the rationale for continued reservations in their favour, (i.e., due to social exclusion) is to ignore important legal realities:

• That Article 46 comprehends all economically weaker sections of people, including SC/STs and OBC;
• The mention of SC/STs in Article 46 is a reminder to the state never to ignore them from the reckoning whenever a measure towards economic emancipation under Article 46 is introduced by the State.
• Article 46 existed from the beginning, and has been resorted to for providing all manner of measures to assist the poorest segments of society, irrespective of whether they are SCs/STs OBCs, such as scholarships, freeships, amenities, and concessions.

        (iii)         EWS as a ‘compensatory’ measure

168. The characterisation of reservations for economically weaker sections of the population (EWS) as compensatory and on par with the existing reservations under Articles 15(4) and 16(4), in my respectful opinion, is without basis. The endeavour of the Constitution makers was to ensure that past discriminatory practices which had, so to say, eaten the vitals of the Indian society and distorted it to such an extent that when the republic was created, an equal society was merely an illusion, which compelled them to enact special provisions such as Article 16(4) – and later Article 15(4), to ensure equality. It was not compensatory but also reparatory. They continue to compensate, definitionally and in reality, because even as on date, the acknowledged position is that reservations are necessary for SCs/STs and OBCs who are not part of the creamy layer. On the other hand, the EWS category, was consciously not made beneficiaries of reservations at the time of the framing of the Constitution, because perhaps the framers felt that the enacted provisions (including the soon to be added Articles 31A and 31B) and the slew of economic reforms which were enacted were sufficient to remove economic disparities.  That hope however, did not materialise.  Economic disparities (unconnected with social and educational backwardness) continued – and perhaps were even exacerbated to such an extent that as of now almost 25% of the population continue to live in abject poverty. Indra Sawhney acknowledged that measures taken for their purpose would only result in “poverty alleviation”.
169. Therefore, to conclude that reservations for EWS based upon the economic criteria is on par with reservations which the Constitution mandated, and envisioned as a pledge to create an equal society, is constitutionally unsound. The amendment which introduces new reservations does not “compensate”: unlike the protective and compensatory reservations for socially and educationally backward classes (and SC/STs) who were discriminated systemically and who needed the “push” which is sought to be addressed by reservations, the economically weaker sections who are conceived to be the targets (i.e., forward classes) were never consciously discriminated against. Nor is it anyone’s case, that they faced social and other barriers which made it impossible for them to advance.
170. I am also of the opinion that the observations made in Indra Sawhney – especially in paragraph 743 (SCC Reports) with respect to other kinds of reservations, has to be read in the context of the observations in M.Thomas and by the majority of judges in Indra Sawhney itself, which is that Article 16(1) permits classification and that the category of reservations in accord with the than existing provisions of the Constitution, favouring backward classes were stood exhausted by reason of Article 16(4). Illustratively therefore, the reservations in favour of sections (such as persons with disabilities, transgenders etc.) would be covered by the affirmative content of Article 16(1).  It is in that sense that the observations made in Indra Sawhney have to be understood rather than the court foreseeing an amendment to the Constitution which permitted an entirely new section of the persons not based on social grouping, but on an economic criterion as a target or recipients of reservations. Therefore, these two categories of reservations cannot be compared.
171. I cannot persuade myself to be sanguine about the fact that the poorest of the poor do not comprise large sections of the backward classes and even larger segments of the SCs/STs. The Sinho Commission Report itself is a testimony to this fact, that amongst the entire population of STs, 48% are the poorest; amongst the entire population of Scheduled Castes

38% are the poorest and amongst the OBC’s no less than 33% are the poorest.

172. The fact that different forms of discrimination and even untouchability still persists in society, impelled parliament as late as 2015 to amend the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, by Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2015. The statement of Object and Reasons to the amendment, inter alia reads as follows:

“2. Despite the deterrent provisions made in the Act, atrocities against the members of the Scheduled Castes and Scheduled Tribes continue at a disturbing level. Adequate justice also remains difficult for a majority of the victims and the witnesses, as they face hurdles virtually at every stage of the legal process. The implementation of the Act suffers due to (a) procedural hurdles such as non registration of cases; (b) procedural delays in investigation, arrests and filing of charge-sheets; and (c) delays in trial and low conviction rate.

3. It is also observed that certain forms of atrocities, known to be occurring in recent years, are not covered by the Act. Several offences under the Indian Penal Code, other than those already covered under section 3(2) (v) of the Act, are also committed frequently against the members of the Scheduled Castes and the Scheduled Tribes on the ground that the victim was a member of a Scheduled Caste and Scheduled Tribe. It is also felt that the public accountability provisions under the Act need to be outlined in greater detail and strengthened.”
4. The amendment enlarged and added the definition of certain terms, and extended to discrimination on the grounds of economic boycott, social boycott and even changed the provision dealing with presumption as to the offence making it more stringent.
5. It is also worth noting that according to the National Crime Record Bureau Report titled –“Crime in India 2021”^[132]:
   2013. The total population of Scheduled Castes in entire country (according to 2011 census) – 2013.8 lakhs, i.e., 20.13 crores.
   2014. Total crimes against Scheduled Castes in 2019 was 45961 and 2020 it was 50291 and in 2021, 50900. Of this about 20% constituted crimes against Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
   2015. As per same report, the total population of Scheduled Tribes in the entire country (based on 2011 census report) is 1042.8 lakhs, i.e., 10.42 crores.
   2016. The total crime reported and registered against Scheduled Tribes in 2019 was 7570; increased to 8272 in 2020, and 8802 in 2021.
   2017. Bulk of the crimes reported against Scheduled Tribes were offences under Indian Penal Code, with a much smaller proportion of offences under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

This data is demonstrative, that crime against those marginalized and stigmatized by caste, continue till this date. These legal developments and statistics belie the perception that such classes which can benefit from compensatory discrimination can be rightfully excluded from the benefit of reservations for the poor. That view, in my opinion is indefensible, and ignores stark realities.

175. If such explanations for the differentiations, or exclusions are to be accepted, then this court will be paving the way for future discriminations, through constitutional amendments, based on constitutionally proscribed grounds. Even through the present amendments, especially Article 15(6)(a), it is possible to create corporations, and policies (not merely reservations) which can result in benefits to specific target groups and communities in forward castes, which may far exceed the allocations for those covered by Articles 15(4) and 16(4). When challenged, excessive budgetary allocations can successfully be justified on the ground of classification, i.e. that those who receive reservation and benefits under Articles 15(4) and 16(4) are different. Likewise preferential treatment, of communities, based on descent may well be sanctioned through later constitutional amendments, that may also be justified as a different basis, a class apart from others. These possibilities cannot be ruled out, because what begins as a seemingly innocuous alteration, may result in the

“emasculation” and ultimate annihilation of the grand principle of equality.

G. The breach of the 50% cap – A note of caution

176. In view of my conclusions as recorded in this opinion – that the impugned amendment is violative of the basic structure of the Constitution, I find that there is no need for a specific finding on the 50% cap, or its breach of the basic structure; however I deem it necessary to sound a note of caution, on the consequence  of upholding the reservation, thereby, breaching the 50% limit.
177. It is pertinent to note that the breach of the 50% limit is the principal ground of attack, of the 76^th Constitutional Amendment 1994 which inserted as Entry 257A – the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 in the IX^th The validity of that enactment – and whether the inclusion by the constitutional amendment, violates basic structure, is directly in issue in a batch of cases pending before this court. The view of the members of this bench constituting the majority – that creation of another class which can be a recipient of up to 10% of the reservation, over and above 50%, which is permitted under Articles 15(4) or 16(4), in my considered opinion, therefore, has a direct bearing on the likely outcome in the challenge in that proceeding. I would therefore sound this cautionary note since this judgment may well seal the fate of the pending litigation – without the benefit of hearing in those proceedings.
178. The last reason why I find myself unpersuaded to agree with the opinion that the impugned amendments by creating a different kind of criteria, have to be viewed separately and that Indra Sawhney was confined to reservations in Articles 15(4) and 16 (4) is because permitting the breach of the 50% rule as it were through this reasoning, becomes a gateway for further infractions whereby which in fact would result in compartmentalization; the rule of reservation  could dealt well become rule of equality or the right to equality, could  then easily be reduced to right to reservation – leading us back to the days of Champakam Dorairajan.  In this regard, the observations of Ambedkar have to be kept in mind that the reservations are to be seen temporary and exceptional or else they would “eat up the rule of equality”^[133].
179. In view of the above discussion, and given my conclusion on the validity of the impugned amendment, I would respectfully prefer to keep the question of violation of 50% rule open.

VIII. Conclusion

180. In the light of the above discussion, it is held that the principles of non-discrimination, non-exclusion and equality of opportunity to all is manifested in the Constitution through the equality code, which is part of its basic structure. Their link with fraternity, which the Preamble assures is intrinsic to “dignity of the individual and unity and integrity of the nation”, is inseparable. The framers of our constitution recognised that there can be no justice without equality of status, and that bereft of fraternity, even equality would be an illusion as existing divisions and “narrow domestic walls”^[134] would fragment society.

A. The principles of non-discrimination and fraternity in the constitutional ethos

181. The fraternal principle is deeply embedded to this nation’s ethos and culture. The specific provisions which form part of the Equality Code, are inextricably intertwined with fraternity as well. It is fraternity – and no other idea, which acknowledges that ultimately, all individuals are human beings, born through the same natural process, subjected to the same physical limitations, and finally leave this world at an unknown time, but are sure to leave. Fraternity as a concept awakens humans to the reality that despite our apparent or superficial differences – ethnic, religion, caste, gender, origin or economic status – the institutions we create need our collective cooperation and individual commitment. Every social order invariably contains individuals with differences – be it grounded in ethnicity, wealth, talent, or realisation of one’s abilities; the diversities abound. The idea of fraternity is to awaken the consciousness of each member of society that the human institutions which they create, the ideas they seek to develop, and the progress they wish to achieve, cannot be in

isolation – by separation – but with cooperation and harmony.

182.       Ours is a nation of multi-dimensional diversity. The Constitution forges unity, and instructs people of this country about its social goals, and the means to achieve it. By it, We the People, “solemnly resolve to … secure to all its citizens … Justice, Liberty and Equality, and to promote … Fraternity”. It reinforces national unity re-emphasising the idea of oneness as people of India, first and foremost, regardless of our regional, linguistic, religious, ethnic, economic, etc., diversities. In this context, fraternity is brotherhood. It focuses on concern for others, and respect for and acceptance of differences of caste, gender, ethnicity, economic status, religion, etc. People cannot be assured of Justice, Liberty or Equality, unless Fraternity in one form or another, to some degree, is felt by individuals at each level of our social order, and economic system.   183.       It is essential that for the unity of this great nation, that we all recognize that fraternity is the integrator, and unifier, which needs active propagation and practise, in tune with our preambular resolve  to preserve our Republic. Therefore, divisiveness of any form: in the polity, social hierarchy, religion, origin, or regional destroys fraternity and undermines unity. Divisiveness tends to polarize people and is likely to foster distrust. Weakening fraternity therefore undermines justice, liberty, and equality. 184.       On this, I want to highlight the words of two social reformers, which demonstrate that the principle of fraternity and the ideas and values connected to it, are not new, but in fact, transcend time.  Swami Vivekananda’s message, in his address at the World Parliament of Religions, in Chicago, on 11th September, 1893 had the theme of universal brotherhood of all, and that differences in religion, the exclusion of one of another, would fade. He evocatively said that:

“If anybody dreams of the exclusive survival of his own religion and the destruction of others, I pity him from the bottom of my heart, and point out to him that upon the banner of every religion will soon be written, in spite of resistance, ‘Help and not fight’, ‘Assimilation and not Destruction’,

‘Harmony and Peace and not dissension’.”

Sri Aurobindo too, was conscious of the need for fraternity. In a speech delivered in Howrah, on 27 June, 1909, he presciently said:

“Again, there is fraternity. It is the last term of the gospel. It is the most difficult to achieve, still it is a thing towards which all religions call and human aspirations rise. There is discord in life, but mankind yearns for peace and love. This the reason why the gospels which preach brotherhood spread quickly and excite passionate attachment. This was the reason of the rapid spread of Christianity. This was the reason of Buddhism’s spread in this country and throughout Asia. This is the essence of humanitarianism, the modern gospel of love for mankind. None of us have achieved our ideals, but human society has always attempted an imperfect and limited fulfilment of them. It is the nature, the dharma of humanity that it should be unwilling to stand alone. Every man seeks the brotherhood of his fellow and we can only live by fraternity with others. Through all its differences and discords humanity is striving to become one.”

185. Thus, one-ness, inclusiveness, humanism and the idea that not only are all equal, and should have equal opportunities, and the content of each one’s rights be no different from the other, but also that all stand together, and for each other, is a powerful precept. This precept suffuses every provision of Part III of the Constitution, especially Articles 14-18, 38-39 and 46.
186. This intrinsic value of fraternity, its intricate connection with justice, liberty, and equality, assuring the dignity of the individual are steeped in the constitutional jurisprudence of this nation. The constitution does not merely bind the institutions it creates and regulate their action, confer rights on individuals, but it is also a “pact between people” and is a charter given on to themselves defining their conduct with each other.^[135]  In my opinion, this value of fraternity is as much a part of the equality code, and its facets

– equality of opportunity, the principle of non-discrimination and the non-

exclusionary principle, as it inextricably binds them with the concepts of liberty and freedom. Building upon the simile used by Chandrachud, J of the basic structure of the Constitution being “woven out of the conspectus of the Constitution” – equality and justice are the warp and weft of the constitutional fabric: with liberty, fraternity, and dignity, lending it richness in colour.

187. The exclusionary clause (in the impugned amendment) that keeps out from the benefits of economic reservation, backward classes and SC/STs therefore, strikes a death knell to the equality and fraternal principle which permeates the equality code and non-discrimination principle.
188. The concepts which our Constitution fosters, and the principles it engenders – equality, fraternity, egalitarianism, dignity, and justice (at individual and social levels) are all inclusive, all encompassing. The equality code in its majestic formulation (Article 14, 15, 16 and 17) promotes inclusiveness. Even provisions enabling reservations foster social justice and equality, to ensure inclusiveness and participation of all sections of society. These provisions assure representation, diversity, and empowerment. Conversely, exclusion, with all its negative connotation – is not a constitutional principle and finds no place in our constitutional ethos. Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion.

B. Summary of findings in Questions 1-3

189. On Question 1, it is held that the states’ compelling interest to fulfil the objectives 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 for contending that 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. Therefore, special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structure.
190. However, in answer to Question 3, I have highlighted that the framework in which it has been introduced by the impugned amendment – by excluding backward classes – is violative of the basic structure. The identifier for the new criteria-is based on deprivation faced by individuals. Therefore, which community the individual belongs to is irrelevant. An individual who is a target of the new 10% reservation may be a member of any community or class. The state does not – and perhaps justly so – will not look into her background. Yet in the same breath, the state is saying that members of certain communities who may be equally or desperately poor (for the purposes of classification identification) but will otherwise be beneficiaries of reservation of a different kind, would not be able to access this new benefit, since they belong to those communities. This dichotomy of on the one hand, using a neutral identifier entirely based on economic status and at the same time, for the purpose of exclusion, using social status, i.e., the castes or socially deprived members, on the ground that they are beneficiaries of reservations (under Article 15(4) and 16(4)) is entirely offensive to the Equality Code.
191. A universally acknowledged truth is that reservations have been conceived and quotas created, through provision in the Constitution, only to offset fundamental, deep rooted generations of wrongs perpetrated on entire communities and castes. Reservation is designed as a powerful tool

to enable equal access and equal opportunity. Introducing the economic basis for reservation – as a new criterion, is permissible. Yet, the “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability. The exclusionary clause operates in an utterly arbitrary manner.

Firstly, it “others” those subjected to socially questionable, and outlawed practices – though they are amongst the poorest sections of society. Secondly, for the purpose of the new reservations, the exclusion operates against the socially disadvantaged classes and castes, absolutely, by confining them within their allocated reservation quotas (15% for SCs, 7.5% for STs, etc.). Thirdly, it denies the chance of mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation. The net effect of the entire exclusionary principle is Orwellian, (so to say)^[136] which is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible. Within the narrative of the classification jurisprudence, the differentia (or marker) distinguishing one person from another is deprivation alone. The exclusion, however, is not based on deprivation but social origin or identity. This strikes at the essence of the non-discriminatory rule. Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens – and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining,

and destroying the equality code, and particularly the principle of nondiscrimination.

192. Therefore, on question 3, it is clear that the impugned amendment and the classification it creates, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination. For these reasons, the insertion of Article 15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the principle of nondiscrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution.
193. While this reasoning is sufficient to conclude that Article 16(6) is liable to be struck down, there are additional reasons (elaborated in Part V), due to which this court is compelled to clarify that while the ‘economic criteria’ per se is permissible in relation to access of public goods (under Article 15), the same is not true for Article 16, the goal of which is empowerment, through representation of the community.
194. On the point of Question 2, this court is in agreement that unaided private educational institutions would be bound under Article 15(6) to provide for EWS reservations. However, given that the analysis under

Question 3 on ‘exclusion’ leads to the conclusion that the Amendment is violative of the basic structure, the question herein has been rendered moot.

195. For the above reasons, it is hereby declared that Sections 2 and 3 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 are violative of the basic structure of the Constitution.
196. The writ petitions and other proceedings are consequently, disposed of, in the above terms. There shall be no order as to costs.

197. It would be in order to place my gratitude and appreciation for the valuable assistance rendered by all counsels who appeared and made submissions during the course of the hearings, i.e., K.K. Venugopal, Attorney General for India, Tushar Mehta, Solicitor General of India, Ms. Meenakshi Arora, Mr. Sanjay Parikh, Prof. Ravi Verma Kumar, Mr. Salman Khurshid, Mr. P. Wilson, Dr. K. S. Chauhan, Mr. Gopal Sankaranarayanan, Mr. Mahesh Jethmalani, Mr. Niranjan Reddy, Ms. Vibha Makhija, senior advocates; and Prof (Dr) G. Mohan Gopal, Mr. Yadav Narender Singh, Mr. Shadan Farasat, Ms. Diya Kapur, Dr. M. P. Raju, Mr. Kaleeswaram Raj, Mr. Pratik R. Bombarde, Mr. Akash Kakade, Mr. Kanu Agrawal, Mr. V.K. Biju, advocates; and all the other counsels that assisted them.

………………………………………………CJI.

                                                                  [UDAY UMESH LALIT]

………………………………………………….J.

                                                                   [S. RAVINDRA BHAT]

New Delhi,

November 7, 2022.

[1] Hereinafter also referred to as ‘the amendment in question’ or ‘the 103^rd Constitution Amendment’ or simply ‘the 103^rd Amendment’.

[2] ‘EWS’, for short.

[3] ‘SC’, for short.

[4] ‘ST’, for short.

[5] ‘OBC’, for short.

[6] ‘SEBC’, for short.

[7] Hereinafter also referred to as ‘N.M. Thomas’.

[8] Hereinafter also referred to as ‘Indra Sawhney’. ⁹ Hereinafter also referred to as ‘M.R. Balaji’.

[9] Hereinafter also referred to as ‘M. Nagaraj’.

[10] Hereinafter also referred to as ‘Dr. Jaishri Patil’. ¹² Hereinafter also referred to as ‘Champakam’.

[11] Hereinafter also referred to as ‘Ashoka Kumar Thakur’.

[12] Hereinafter also referred to as ‘Kesavananda’.

[13] Hereinafter also referred to as ‘Vasanth Kumar’.

[14] ‘DPSP’, for short.

[15] Hereinafter also referred to as ‘Minerva Mills’.

[16] ‘A Theory of Discrimination Law’ by Tarunabh Khaitan, Oxford University Press 2015.

[17] Hereinafter also referred to as ‘Waman Rao’.

[18] Hereinafter also referred to as ‘Bhim Singhji’.

[19] Hereinafter also referred to as ‘Raghunathrao’.

[20] Hereinafter also referred to as ‘Pramati Trust’.

[21] Hereinafter also referred to as ‘Indira Nehru Gandhi’.

[22] The learned Judge referred to the facts that the Constituent Assembly, consciously enacted a written Constitution; created three organs of State; enacted a federal structure; recognised certain rights as fundamental and provided for their enforcement; and prescribed forms of oath of Office which would require the Members of the Union Judiciary and of the higher judiciary in the State, to uphold the Constitution; and above all, formulated a solemn and dignified Preamble which, ‘appears to be an epitome of the basic features of the Constitution’. The learned Judge, thereafter, posed the points to ponder over thus:

“…..Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”

[23] The Indian Year Book of International Affairs, 1966-7, at p. 420.

[24] The acclaimed and honourable jurist O. Chinnappa Reddy would define this journey in these words: “Since there are no signposts signalling basic features of the Constitution, every attempt to discover a basic feature becomes a ‘voyage of discovery’.” [The Court and the Constitution of India: Summits and Shallows; Oxford University Press 2008 – at p.54].

[25] The extractions hereinbelow are of the relevant passages/paragraphs, which may not be in continuity but the disjoining signs after end of the passage/paragraph have been generally avoided to maintain the continuity of discussion.

[26] Hereinafter also referred to as ‘P. Sambhamurthy’.

[27] Hereinafter also referred to as ‘L. Chandra Kumar’.

[28] Hereinafter also referred to as ‘NJAC Judgment’.

[29] In Kihoto Hollohan (supra), Paragraph 7 of the Tenth Schedule to the Constitution, though relating to the matter of exclusion of judicial review but was struck down essentially for the view of majority about want of ratification in accordance with the proviso to clause (2) of Article 368.

[30] H.M. Seervai, ‘Constitutional Law of India, A Critical Commentary’, 4th Edition, (1991reprinted 1999) at p. 435.

[31] The echoing words of Abraham Lincoln’s Gettysburg Address, as reproduced by H.M. Seervai read as follows: “Four score and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”

[32] “From the fact that people are very different, it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently…”, said an Austrian economist Friedrich A. Hayek (1899-1992) in ‘The Constitution of Liberty’, 1960, the University of Chicago, p. 87.

[33] Dr. Alladi Krishnaswami Aiyar, ‘The Constitution and Fundamental Rights’, The Srinivasa Sastri Institute of Politics, Mylapore, Madras (1955), at p. 28.

[34] ‘Moments in a History of Reservations’ by Bhagwan Das in Economic and Political Weekly, 28.10.2000.

[35] He is also credited to have presided over the first All India Conference of the Depressed Classes at Nagpur in the year 1920 where Dr. B. R. Ambedkar was among the main speakers and where it was resolved, among other things, to have true representatives of the depressed classes in the legislature. [Vide: Dr. Sanjay Paswan, Dr. Pramanshi Jaideva, ‘Encyclopaedia of Dalits in India’, Kalpaz Publications, New Delhi (2003)].

[36] Vide Chairman and Managing Director, Central Bank of India and Ors. v. Central Bank of India SC/ST Employees Welfare Association and Ors.: (2015) 12 SCC 308.

[37] Constituent Assembly Debates, Vol VII, p. 494.

[38] H.M. Seervai, ‘Constitutional Law of India, A Critical Commentary’, 4th Edition, (1991reprinted 1999) at p. 280.

[39] ‘V.N. Shukla’s Constitution of India’, Eastern Book Company, Lucknow, 13^th Edition (2017), pp. 4-5.

[40] It is pertinent to quote what an American Judge of Seventh Circuit, Court of Appeals, said about amendments to the American Constitution: “The takings clause of the Fifth Amendment also seems founded on economic considerations – and so indeed does the Fourth Amendment (and not just the exclusionary rule that has been grafted onto it by the courts)”- Richard A. Posner, ‘The Constitution as an Economic Document’, 56 George Washington Law Review 4 (1987).

[41] United Nations General Assembly, ‘Final draft of the guiding principles on extreme poverty and human rights, submitted by the Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda Carmona’, A/HRC/21/39, 18^th July 2012.

[42] National Multidimensional Poverty Index, Baseline report, NITI Aayog (2021).

[43] Benjamin N. Cardozo, ‘The Nature of the Judicial Process’, Yale University Press (1921), p.

17.

[44] Vide M/s Frick India Ltd. v. Union of India and Ors.: (1990) 1 SCC 400.

[45] ‘Law, Liberty and Social Justice’, Asia Publishing House, Bombay (1965), p. 120.

[46] Benjamin N. Cardozo, ‘The Nature of the Judicial Process’, Yale University Press (1921), p. 94.

[47] T.M. Cooley, ‘A Treatise on the Constitutional Limitations’, Hindustan Law Book Company (2005), p 168.

[48] Kesavananda Bharati vs. State of Kerala & Anr. (1973) 4 SCC 225 (Para 577)

[49] (1992) Suppl. 2 SCC 651

[50] Ibid (Para-524-525)

[51] Ibid (Para-1162)

[52] (1981) 1 SCC 166

[53] (1975) Suppl. SCC 1

[54] (1976) 2 SCC 310

[55] (1981) 2 SCC 362

[56] (2006) 8 SCC 212

[57] (1974) 4 SCC 656

[58] Ibid. (2008) 6 SCC 1

[59] Ibid (1976) 2 SCC 310

[60] CAD Vol. VIII P.272, 25 May 1949

[61] (1985) Suppl. SCC 714

[62] (2008) 6 SCC 1

[63] Government of India (Scheduled Castes) Order, 1936

<https://socialjustice.gov.in/writereaddata/UploadFile/GOI–SC–ORDER–1936.pdf>.

[64] State of Madras v. Champakam Dorairajan, 1951 SCC 351, (hereinafter, “Champakam Dorairajan“). ³ M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji“), See para 21.  ⁴ T. Devadasan v. Union of India (1964) 4 SCR 680 (hereinafter, “T. Devadasan”).

[65] State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 (hereinafter “N.M. Thomas”) ⁶ para 83 per Mathew, J.

[66] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, (hereinafter, “Indra Sawhney“).

[67] M. Nagaraj v. Union of India, (2006) 8 SCC 212, (hereinafter, “M. Nagaraj“).

[68] Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (hereinafter, “Ashok Kumar Thakur”).

[69] K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, (hereinafter as “K. Krishna Murthy“).

[70] Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1, (“Pramati“).

[71] Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401, (“Chebrolu Leela Prasad “).

[72] Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1, (hereinafter, “Jaishri Laxmanrao Patil“). ¹⁴ So described, in view of the previous decisions of the court, which had declared that senior employees in a cadre, overlooked for promotion on account of quotas in promotion in favour of SC/STs were entitled to “catch up” their seniority in the lower cadre, when they were promoted. This was to balance their equities, or off-set the disadvantage they were placed in due to reservations in promotions, which enabled junior officials in a cadre to steal a march and secure promotions earlier. ¹⁵ The court stated that

“As stated hereinabove, the concept of the ‘catch-up’ rule and ‘consequential seniority’ are not constitutional requirements. They are not implicit in clauses (1) and (4) of  Article 16. They are not constitutional limitations.

They are concepts derived from service jurisprudence. They are not constitutional principles.” 

[73] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; 1973 Supp SCR 1 (hereinafter, “Kesavananda Bharti“).

[74] Salient aspects are that: Sikri, CJ stated that the “fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence” and enumerated some of the essential features – supremacy of the constitution, republican and democratic form of Government, secular character of the Constitution; separation of powers between the Legislature, the executive and the judiciary, and the federal character of the Constitution. Shelat and Grover, JJ too indicated that the Preamble contained the key to the basic structure, which rested on a harmony between Parts III and IV and that the amendments could not result in “changing the identity of the Constitution.” Hegde and Mukherjea, JJ stated similarly that the basic structure was “delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements or fundamental features”. Reddy, J draws analogy from the Preamble to say that the features “are justice, freedom of expression and equality of status and opportunity”. Khanna, J emphasises survival of the Constitution

“without loss of its identity”.

[75] Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, (hereinafter as “Minerva Mills“)  ¹⁹ Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. (“Indira Gandhi“).

[76] Constitution (Forty-second Amendment) Act 1976.

[77] Introducing two clauses (4) and (5), which read as follows:

“(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article”

[78] P. Sambamurthy v. State of A.P., (1987) 1 SCC 362, (hereinafter as “P. Sambamurthy“).

[79] Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, (hereinafter “Kihoto Hollohan“).

[80] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, (hereinafter “L. Chandra Kumar“). ²⁵ Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191, (hereinafter “Raghunathrao Ganpatrao“).

[81] The minority opinion of Verma, J. (see para 181-182) struck down the provision on the ground that it violated the rule of law, which is a basic feature of the Constitution.²⁶ The majority judgment, by Venkatachaliah, J also struck down the offending provision, but for different reasons (procedural lapses).

[82] 27 Indira Gandhi, para 661.

[83] Indira Gandhi, para 663.

[84] Indira Gandhi, para 692.

[85] Waman Rao v. Union of India, (1981) 2 SCC 362, (hereinafter, “Waman Rao“).

[86] R. C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, (hereinafter “R.C. Poudyal“).

[87] Dr. Sudhir Krishnaswamy, ‘3 Applying Basic Structure Review: The Limits of State Action and the Standard of Review’, Democracy and Constitutionalism in India – A Study of the Basic Structure doctrine, Oxford University Press (2009).  ³³ Ibid., p. 88.

[88] (2016) 5 SCC 1

[89] “103. The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on the mode of exercise of the power. Though the amending power in the Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand 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, disregard of which invalidates its exercise.” (See Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] .)

[90] Motilal Nehru Report, 1928

<https://www.constitutionofindia.net/historical_constitutions/nehru_report__motilal_nehru_1928__1st%20Janu ary%201928>

[91] Poona Pact, Agreed to by Leaders of Caste-Hindus and of Dalits, at Poona on 24-1932 <https://www.constitutionofindia.net/historical_constitutions/poona_pact_1932__b_r_ambedkar_and_m_k_gan dhi__24th%20September%201932>

[92] Constituent Assembly Debates, Vol. 7, 30^th November 1948, 7.63.205.

[93] Ibid.

[94] B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at p. 202.

[95] 46 Ibid.

[96] (1996) 3 SCC 545

[97] (2017) 2 SCC 629

[98] (2019) 11 SCC 1

[99] Joseph Raz, The Morality of Freedom (OUP, 1986), p. 369.  ⁵³ Dr. B.R. Ambedkar, Annihilation of Caste (1939).  

[100] See paragraph 23-24, SCC.

[101] (2000) 1 SCC 168

[102] (2003) 11 SCC 146; 2003 (Supp 5) SCR 152

[103] S.R. Bommai v. Union of India, (1994) 3 SCC 1, (hereinafter “S.R. Bommai“).

[104] (2007) 2 SCC 1

[105] Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350.

[106] Samatha v. State of A.P., (1997) 8 SCC 191; 1997 (Supp 2) SCR 305

[107] Indian Medical Assn. v. Union of India, (2011) 7 SCC 179

[108] Bhim Singhji v. Union of India, (1981) 1 SCC 166, (hereinafter as “Bhim Singhji“).

[109] Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, (hereinafter as “Society for Unaided Schools of Rajasthan“).

[110] By way of example, it was submitted that in Central Universities and Central services so far, the OBC communities could compete in 27% of the seats reserved for them and in addition also participated as open category candidates. The total available for them is 77% and with the introduction of the EWS category along with the exclusion class, the number has been reduced to 67% – which was argued as only margically affecting them, at best.

[111] State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1; 1952 SCR 284.

[112] State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19.  ⁶⁷ Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76.

[113] Pattali Makkal Katchi v. A. Mayilerumperumal and Ors, 2022 SCC Online SC 386.  ⁶⁹ Col. A.S. Iyer v. V. Balasubramanyam, (1980) 1 SCC 634.

[114] Lachhman Dass v. State of Punjab, (1963) 2 SCR 353; [1963] 2 SCR 353.  ⁷¹ National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[115] Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.  ⁷³ Charu Khurana v. Union of India, (2015) 1 SCC 192.

[116] Gokulesh Sharma, Human rights and Social Justice Fundamental Rights vis-à-vis Directive Principles, Deep and Deep Publication Ltd (1997).

[117] In a letter to Samuel Kerceval on July 12, 1816.

[118] In Kihoto Hollohon too, the court adverted to Parliamentary wisdom, which results in an amendment, that cannot be questioned in by the court.

[119] The NMPI assists in estimation of poverty at the level of the states and all the over 700 districts across the 12 indicators, capturing multitude of deprivations and indicator-wise contribution to poverty. Thus, in terms of NMPI, 51.91% population of Bihar is poor, followed by 42.16% in Jharkhand, 37.79% in Uttar Pradesh, with

Madhya Pradesh (36.65%) as fourth in the index, and Meghalaya (32.67%) is at fifth place. Kerala, Goa, and Sikkim have the lowest percentage of population who are multidimensionally poor at 0.71%, 3.76% and 3.82%, respectively. Amongst Union Territories (UTs), Dadra and Nagar Haveli (27.36%), Jammu & Kashmir, and Ladakh (12.58%), Daman and Diu (6.82%) and Chandigarh (5.97%), are emerged as the poorest UTs. The proportion of poor in Puducherry at 1.72% is the lowest among the UTs, followed by Lakshadweep at 1.82%, Andaman & Nicobar Islands at 4.30% and Delhi at 4.79%.

[120] Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150 (1891), quoted in State of West Bengal v. Anwar Ali Sarkar 1952 (1) SCR 284 and Nandini Satpathy v. PL Dani 1978 (3) SCR 608.

[121] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396. ⁸¹ BK Pavitra (II) v. Union of India, (2019) 16 SCC 129.

[122] (2002) 8 SCC 481.

[123] Section 12. Extent of school’s responsibility for free and compulsory education.— (1) For the purposes of this Act, a school: (a) specified in sub-clause (i) of clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein.

[124] Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600, para 326.

[125] J.B. Pardiwala, J cites with approval certain academic material in paragraph 124 of his draft opinion.

[126] Bhim Singhji, paragraph 20.

[127] Paragraph 50 and 54 (SCC).

[128] Korematsu v. United States, 323 U.S. 214 (1944).

[129] K.C Vasanth Kumar v State of Karnataka, (1985) Supp SCC 714.

[130] State of Gujarat v. Shri Ambika Mills (1974) 4 SCC 656 (hereinafter, “Ambika Mills”).

[131] S. Seshachalam & Ors. v. Chairman Bar Council of TN (2014) 16 SCC 72 (hereinafter, “Seshachalam”).

[132] Source: https://ncrb.gov.in/en/node/3721

[133] Constituent Assembly Debates, Vol. 7, 30^th November 1948, 7.63.205.

[134] Rabindranath Tagore, ‘Where the Mind is Without Fear’, Gitanjali (1910).

[135] Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727.  

[136] George Orwell, Animal Farm where idea of equality is explained allegorically, through the example of a society comprising of animals who have seized control, by one of them saying that the rule ‘All animals are equal’ reads that ‘All animals are equal but some animals are more equal than others’.