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

21. Learned senior counsel, Mr. Shekhar Naphade, has argued that there was no dimension of equality, other than what was rooted in Articles

14 to 16 of the Constitution. Relying on passages of judgments of A.N. Ray, C.J. and P. Jaganmohan Reddy, J. in Kesavananda, which indicated that new dimensions of equality could be discerned having regard to new challenges, he has submitted that those observations were not endorsed by other judges. As a result, the amendment cannot sustain itself on the ground that it gives shape to another facet or dimension of equality. Learned counsel has further contended that economic criteria cannot be the sole criteria for the basis of classification, and if it is to be taken as a sole criterion, Indra Sawhney has to be revisited, which cannot be done by this Bench of 5 Judges.

22. Learned senior counsel, Mr. Jayant Muthuraj, in addition to the arguments already advanced, would submit that ten per cent. reservation in open category in favour of forward class reduces the availability of seats in open category for other classes and communities, in particular the persons belonging to the creamy layer category in SEBCs/OBCs. This, according to him, would damage the basic structure of the

Constitution.

23. Learned senior counsel, Mr. Ravi K. Deshpande, and the learned counsel, Mr. Sachin Patil, Mr. Shashank Ratnoo, Mr. Varun Thakur, Mr. P.A. Noor Muhammad and Mr. A. Selvin Raja have also made their submissions as interveners. All of their submissions, which are akin to the submissions already noticed above, need not be elaborated. However, in sum and substance, their additional submissions had been that the amendment in question, which states ‘not more than ten per cent. of the total seats in each category’ has to be interpreted as providing ten per cent. reservation for EWS in each category. One of the interveners provided the statistics as to the percentage of people working in each category to submit that the exclusion of SCs, STs and OBCs is invalid as they are still inadequately represented in State services. Further they submitted that the current strength of Bench is not competent to overrule Indra Sawhney wherein it was explicitly held that reservation cannot be based solely on economic criteria. Yet further, discussing the power of Parliament under Article 368, it was posited that the Parliament has the power to amend the Constitution by way of ‘addition, variation or repeal’ and not by breaking down the basic structure of the Constitution.

In part challenge to the amendment in question

24. Learned senior counsel, Mr. Gopal Sankaranarayanan has taken a stance different than other petitioners, and has contended that the amendment in question is violative of basic structure of the Constitution only to the extent of the words ‘in addition to the existing reservation and’ which need to be severed and that the rest of the part, which provides classification on the economic criteria for extension of special provisions for the advancement of economically weaker sections excluding classes already covered under Articles 15(4) and 16(4), was permissible.
    • The learned counsel has, otherwise, supported the amendment in question on two grounds. First, that the insertion of the Economically Weaker Sections is perfectly valid as a class for the extension of special provisions for their advancement, admissions and for reservations in posts. He has submitted that the classification on the basis of economic criteria has been recognised in plethora of measures introduced by the State from providing housing, admission in schools or hospitals, to several statutes for their upliftment. Further, this Court in R. Balaji, R. Chitralekha and Anr. v. State of Mysore and Ors.: (1964) 6 SCR 368 and Vasanth Kumar has accepted poverty as an indicator of

backwardness, while considering reservation. It has been argued that the present constitutional amendment has removed the basis of Indra Sawhney (bar on using economic criteria as a sole determinative of backwardness); and in fact, such an amendment would further the goal of economic justice, thus strengthening the basic structure of the Constitution. The learned counsel has supported his submission with reference to the decision in Waman Rao and Ors. v. Union of India and Ors.: (1981) 2 SCC 362^[17].

• Second, at divergence from   other submissions

regarding exclusion of SC, ST and OBC communities, he has argued that such an exclusion is permissible as the exclusion is not of ‘castes’ but of

‘classes’ who are already receiving the benefit of special provisions. Further, the SCs, STs and OBCs receive political reservations as well without having any ceiling limits as such whereas, EWS reservation is capped at ten per cent. and is not extended to political reservation, thereby providing a balance with sufficient guardrails and safeguards. Therefore, this amendment was long due, stepping away from castebased reservation to provide reservation for that class of persons who

had hitherto been overlooked.

• Advancing his submission that the amendment in question, to the extent of ‘in addition to existing reservation’, is violative of the basic structure of the Constitution, the learned counsel has given three-fold reasoning. First, the expression ‘in addition to’ cements reservation, perpetuating the existing reservations within the Constitution as a permanent feature which violates basic structure of the Constitution as laid down in various decisions including those in Champakam, R. Balaji, Indra Sawhney, Ashoka Kumar Thakur v. State of Bihar and Ors.: (1995) 5 SCC 403 and Subhash Chandra and Anr. v. Delhi

Subordinate Services Selection Board and Ors.: (2009) 15 SCC

458. 458. Secondly, the amendment in question inserts enabling provision “in addition to”, making EWS reservation reliant on those of SCs, STs and/or

OBCs, which effectively converts enabling provisions in Articles 15(4), 15(5) and 16(4) into enabled provisions, inconsistent with the ethos and guiding principles of the Constitution. Lastly, on the extent of reservation, he would submit that the amendment providing reservation “in addition to existing reservation” breaches the fifty per cent. ceiling limit, which is now not only a part of constitutional interpretation of reservation provisions but is also a part of basic structure of the Constitution. He has further emphasised that in more than 54 judgments of this Court in over 60 years, it has been repeatedly stated that fifty per cent. ceiling limit must be maintained when reservations are activated while interpreting Articles

15 and 16. This, as per his contention, lends enough strength for fifty per cent. ceiling limit to be a basic feature of the Constitution. In support of his submission on the extent of reservations, learned counsel has relied upon the decisions in Bhim Singhji v. Union of India and Ors.: (1981) 1 SCC 166^[18], M. Nagaraj and Dr. Jaishri Patil.

In support of the amendment in question

25. Learned Attorney General for India, Mr. K.K. Venugopal, has posited that the 103^rd Amendment does not violate the basic structure of the Constitution, rather fosters it. Second, the exclusion of those classes already covered under Articles 15(4) and 16(4) from the proposed

reservation did not breach the Equality Code. Third, the fifty per cent. limit is not a sacrosanct rule. Lastly, the benefit to EWS with respect to admission in private aided or unaided educational institutions does not violate Article 14, as has been settled by this Court.

25.1. While quoting from Bhim Singhji, the learned Attorney General has submitted that a mere violation of Article 14 does not violate the basic structure of the Constitution unless ‘the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice’. Relying on M. Nagaraj, he has submitted that a constitutional amendment can be struck down only when it changes the identity of the Constitution. In support of his submissions, he has also relied on the

decisions of this Court in Raghunathrao Ganpatrao v. Union of India: 1994 Supp (1) SCC 191^[19], Ashoka Kumar Thakur and Minerva Mills.

25.2. Learned Attorney General has placed reliance on the decision of this Court in M. Nagaraj, as to dynamic interpretation of the Constitution to strengthen its Preambular vision; and has submitted that Articles 38 and 46 along with Preamble to the Constitution enjoin a duty on the State to eliminate social, economic and political inequalities and to promote justice. He has further argued that this Court has, over the years, repeatedly recognised that it was desirable to use poverty as the only basis for affirmative action and that it is poverty or economic deprivation that results in social and educational backwardness. He has relied on the decisions of this Court in Vasanth Kumar and Ashoka Kumar Thakur to support his contention. He has further submitted that the creation of new class fosters the vision of ‘Economic Justice’, as set out in the Preamble, hence strengthening the basic structure of the Constitution.

25.3. Learned Attorney General has further contended that the exclusion of already covered classes does not violate Equality Code as the EWS among the SC, ST and OBC communities are already enjoying the benefit of affirmative action in their favour by way of reservations in educational institutions and public employment, seats in Legislature, etc., to attain an equal status – socially and educationally. However, the EWS among the classes not covered under any of provisions preceding Articles

15(6) and 16(6) do not have any special provision made in their favour

except for reservation by way of the present amendment. Further, this ten per cent. carved out for EWS is in addition to the existing reservation in favour of SEBCs; meaning thereby that it does not in any way affect the reservation upto fifty per cent. for the SEBCs/OBCs/SCs/STs.

25.4. As to the extent of reservation, learned Attorney General has submitted that the fifty per cent. cap as laid down in Indra Sawhney is for the classes covered under Articles 15(4), 15(5) and 16(4). Therefore, extending the benefit of ten per cent. to these classes would exceed the reservation made for them beyond fifty per cent. and that would be violative of Indra Sawhney. He has also contended that this fifty per cent. rule could be breached in extraordinary situation, as held by Indra Sawhney; and is, therefore, not an inviolable rule or part of the basic structure of the Constitution.

25.5. On the question of private unaided educational institutions, learned Attorney General has relied on the decision in Society for

Unaided Private Schools of Rajasthan v. Union of India and Anr.: (2012) 6 SCC 1 which upheld twenty-five per cent. reservation in favour of EWS under the Right of Children to Free and Compulsory Education Act, 2009, which was further affirmed the by 5-Judge Bench in Pramati

Educational and Cultural Trust (Registered) and Ors. v. Union of India and Ors.: (2014) 8 SCC 1^[20].

26. Learned Solicitor General of India, Mr. Tushar Mehta, has

submitted that to set aside a constitutional amendment, very high judicial

threshold is needed. He would submit that a constitutional amendment may even touch upon the basic structure but unless it is shown that it fundamentally alters the basic structure or basic features of the Constitution, it cannot be struck down under judicial review. In support of his contentions, learned Solicitor General has placed reliance on the said decisions in Raghunathrao, Bhim Singhji and Kesavananda as also on the decision in Indira Nehru Gandhi v. Raj Narain and Anr.: 1975 Supp SCC 1^[21]. He has further argued that the amendment in question, instead of hitting or disturbing the basic structure, rather strengthens the Preambular vision of the Constitution i.e., of providing economic justice to its people along with social and political justice.

• Learned Solicitor General has further argued that the exclusion of classes already covered under Articles 15(4) and 16(4) does not violate the Equality Code; and that from the time of the decision in Champakam to the recent decision in Jaishri Patil, the understanding and concept of equality and reservation have changed and evolved with time, and the reservation itself has been treated as a part and parcel of the Equality Code that furthers substantive equality. The Constitution has recognised different zones of affirmative action, whereby it extends reservation and special provisions as to the needs of each section of the society. For instance, all SEBCs do not have any reservation in Parliament, however, SCs and STs have been given a secured representation in Parliament.

Learned Solicitor General has also submitted that except for the open

category, the SCs, STs and OBCs are not permitted to migrate to the other vertical reservations; and similarly, the Constitution has created another vertical zone for EWS category, which exists outside the fold of pre-existing reservations. Further, he would submit that ten per cent. reservation in favour of EWS would result in miniscule delimitation of the available seats in favour of SC, ST and OBC communities (SC: reduces from 65 per cent. to 55 per cent.; ST: reduces from 57.5 per cent. to 47.5 per cent.; and OBC: reduces from 77 per cent. to 67 per cent.).

• On the question of fifty per cent. ceiling limit, learned Solicitor General has again submitted that this percentage could be exceeded in exceptional circumstances for, being neither a fundamental tenet of the Constitution nor a part of its basic structure. He lastly contended that the validity of a constitutional amendment cannot be tested on possible apprehensions or absence of guardrails.
• Kanu Agrawal, learned counsel, has supplemented the submissions of learned Solicitor General that the amendment in question has guardrails inbuilt in it by having the upper limit of reservation fixed at ten per cent. unlike Articles 15(4), 15(5) and 16(4). He further submitted that exclusion of other classes is inherent in the concept of reservation and therefore, the exclusion of SC, ST and OBC communities already covered under preceding provisions is not violative of Equality Code. Thus, the exclusion clause ‘other than’ is an “opportunity cost” which does not violate the basic structure of the Constitution. Further, he has submitted that Pramati Trust is squarely applicable to Article 15(6) as well as to making of special provisions in relation to admission to the private unaided institutions.

27. Learned senior counsel, Mr. Mahesh Jethmalani, has submitted that the amendment in question takes into account the changing conditions of society as iterated in Nagaraj and hence, purposive interpretation of the Constitution has to be resorted to. He has further submitted that, as held in Dr. Jaishri Patil, there must be harmony between Fundamental Rights and DPSP, which the amendment seeks to strike. Further, learned counsel would submit that the challenge in Indra Sawhney was to an Office Memorandum and the view of the Court that economic criteria cannot be the sole basis ran contrary to its own view of excluding creamy layer from OBCs on economic basis. Further, Indra Sawhney tested the Office Memorandum on the tenets of Article 16 alone. Here, the amendment in question, being a constitutional amendment, has to be tested on the threshold of violation of basic structure to an extent that it changes the identity of the Constitution.
28. Learned senior counsel, Mr. Niranjan Reddy, has submitted that neither the entitlement to reservation nor exclusion therefrom is part of the basic structure of the Constitution; and that reservations are enabling provisions, temporary in nature and do not hold within them the feature of permanence, so as to form part of the basic structure of the Constitution.

Indra Sawhney, staged 30 years ago, dealt with ‘schematic interpretation’ of Articles 16(4) and 15(4). He further emphasized on the balance to be maintained between the competing claims that keeps on changing with the needs of the society. He based his argument principally on the premise that economic criteria by itself can be a determinative factor for backwardness. He has supported his contention by quoting Indra Sawhney, which mentioned R. Chitralekha (supra), where occupation-cum-means test was employed so as to determine social backwardness. On the issue of exclusion of SCs, STs and OBCs, he has submitted that there is already an affirmative action in the form of reservation and special provisions operating in their favour. Their “opportunity quotient” including the reserved and open category exceeds fifty per cent. Hence, the ten per cent. in favour of EWS, in no way violates the Equality Code. According to the learned counsel, in fact, exclusion of SCs, STs and OBCs perfectly fits the constitutional scheme so as to avoid double benefit to them; and thus, exclusion is a part of reasonable classification.

29. Learned senior counsel, Ms. Vibha Dutta Makhija, has submitted that the ‘Living Tree’ approach has to be applied while interpreting the Constitution so as to further a more inclusive and progressive society.

Learned counsel has argued that right of the EWS category arises from Article 21 of the Constitution, which provides for the right of dignity; and poverty affects dignity. She has also emphasised on various international obligations namely Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights, which the Constitution caters under Articles 46, 51(c) and 253, so as to submit that it is the duty of the State to eradicate poverty in order to ensure economic justice; and in that context too, the amendment in question becomes an empowering measure for those who are in systemic poverty. She has further referred to the works of economist Mr. Amartya Sen, to elucidate upon the concept and effect of poverty.

• Learned counsel has further argued that the Constitution does not impede the Parliament to protect a new section of people in order to further the Preambular vision of economic justice, different from the traditional approach of caste-based affirmative action. Learned counsel has further exemplified, by referring to U.P. Constables, teachers and Shiksha-Mitra recruitments, that OBCs are already in good position now, earning seats in meritorious category as well as in reserved category and it is the EWS who are suffering and being deprived of the seats. She lastly contended that the basis of classification in the amendment in question is ‘intersecting disadvantages’ if not ‘generational

disadvantages’; and there is no bar or violation of basic structure of the Constitution in addressing these intersecting disadvantages.

30. Learned counsel, Mr. V.K. Biju, on the basis of various reports and statistical data, has argued that reservation on the basis of economic criteria is the need of the hour and the stepping stone to achieve economic and social justice, moving away from caste-based reservations, as also vocalised by Dr. B.R. Ambedkar in Constituent Assembly Debates. He has further argued that even in Indra Sawhney, the Court took a conscious note that there may be a group or class of people, who can qualify for benefits of reservation irrespective of caste.