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

Points for Determination

31. Three major issues to be answered in these matters by this Bench have been noticed at the outset. In order to answer those issues and in view of the variety of submissions urged as also the subject-matter, following principal points arise for determination:
    • As to whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?
    • As to whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically weaker sections violates the Equality Code and thereby, the basic structure doctrine?
    • As to whether reservation for economically weaker

sections of citizens up to ten per cent. in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty per cent.?

31.1. All these points are essentially structured on three important components namely, (i) the general rule of equality enshrined in Article 14 of the Constitution; (ii) the reservations enabled in Articles 15 and 16 as exception to the general rule of equality; and (iii) the doctrine of basic structure that defines and limits the power of the Parliament to amend the Constitution.

Relevant Constitutional Provisions

32. Any process of determination of the points aforesaid would

invariably require an insight of the constitutional provisions. The relevant provisions could be usefully reproduced as follows:

32.1. Preamble to the Constitution of India, in its present form, reads as under: –

 “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

    JUSTICE, social, economic and political;

    LIBERTY of thought, expression, belief, faith and worship;

    EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

 IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO

OURSELVES THIS CONSTITUTION.”

32.2. The underlying attribute of all the points and questions arising in these matters is as to whether the 103^rd Amendment violates the basic structure of the Constitution. The discussion, therefore, revolves around the power of the Parliament to amend the Constitution and for this purpose, we need to have a close look at the provisions contained in Article 368 of the Constitution.

32.2.1. Article 368, as originally adopted, read as under: –

“368. Procedure for amendment of the Constitution.–

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in—

• article 54, article 55, article 73, article 162 or article 241, or
• Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
• any of the Lists in the Seventh Schedule, or
• the representation of States in Parliament, or
• the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States specified in Parts A and B of the First Schedule by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.”

32.2.2. Article 368 has undergone several amendments, some of which had been the subject matter of debates in this Court, including the cases of Kesavananda and Minerva Mills. Leaving aside other details, we may reproduce the relevant of the provisions now contained in Article 368 as under: –

“368. Power of Parliament to amend the Constitution and procedure therefor.—(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2)  An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in—

• article 54, article 55, article 73, article 162, article 241 or article 279-A, or
• Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
• any of the Lists in the Seventh Schedule, or
• the representation of States in Parliament, or
• the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3)   Nothing in article 13 shall apply to any amendment made under this article.

***                       ***                          *** ”²⁴

32.2.3. After the amendments approved in Kesavananda, Article 368 starts with a non obstante clause and further to that, sub-clause (3) thereof re-emphasises that nothing in Article 13 would apply to any amendment made under Article 368. In this context, a look at Article 13 of

²⁴  Clauses (4) and (5) inserted by the Constitution (Forty-second Amendment) Act, 1976 were declared invalid by this Court in Minerva Mills. They read as under: –

“(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.”

the Constitution is apposite, which otherwise declares void every law which is inconsistent with or is in derogation of Fundamental Rights but, the inserted sub-clause (4) keeps its operation away from the amendment made under Article 368. Article 13 reads as under: –

“13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

• The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
• In this article, unless the context otherwise requires,—
  • “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
  • “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”

32.3. By way of the amendment in question, sub-clause (6) and Explanation have been added to Article 15 and sub-clause (6) has been added to Article 16 of the Constitution of India. These two Articles, 15 and 16, being the subject of the amendment in question and forming the core of controversy before us, need a closer look. For the purpose, it is relevant to indicate at this stage itself that these Articles have undergone several changes from time to time. For the purpose of the present discussion, worthwhile it would be to take note of these Articles as originally adopted and as now existing after various amendments, including the 103^rd Constitution Amendment²⁵.

32.3.1. Articles 15 and 16, in their original form were as under: –

“15.  Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. — (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

²⁵ As noticed, the provisions in question have been inserted to Articles 15 and 16 of the Constitution of India by way of the Constitution (One Hundred and Third Amendment) Act, 2019.

This amendment was made after passing of the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 by the Parliament. The Statement of Objects and Reasons for introduction of the said Bill read as under: –

“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.”

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

• access to shops, public restaurants, hotels and places of public entertainment; or
• the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

16. Equality of opportunity in matters of public employment. —(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

• No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
• Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment.
• Nothing in this article shall prevent the State from making any 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.”

32.3.2. These Articles 15 and 16, as now existing after various amendments, including the amendment in question, read as under: –

“15.  Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. —(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

• access to shops, public restaurants, hotels and places of public entertainment; or
• the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

• Nothing in this article shall prevent the State from making any special provision for women and children.
• Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
• Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes 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.
• 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.

16. Equality of opportunity in matters of public employment.— (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
    • No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
    • Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
    • Nothing in this article shall prevent the State from making any 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.

• Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
• Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
  • Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
  • 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.”

32.3.3. Articles 14, 17 and 18, forming the integral part of Equality Code along with the afore-mentioned Articles 15 and 16, could also be taken note of as under: –

“14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

***          ***          ***

17. Abolition of Untouchability.—“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.
18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.
    • No citizen of India shall accept any title from any foreign State.
    • No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
    • No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.”

32.4. Various provisions in Part IV of the Constitution of India laying down Directive Principles of State Policy also require a close look, including Article 46, which has been referred to in the Statement of

Objects and Reasons for the purpose of the amendment in question.

Articles 38, 39 and 46 of the Constitution of India read as under: –

“38. State to secure a social order for the promotion of welfare of the people. —(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

39. Certain principles of policy to be followed by the State.— The State shall, in particular, direct its policy towards securing— (a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

• that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
• that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
• that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

***          ***          ***

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.”

Doctrine of Basic Structure and Constitutional Amendments

33. It is hardly a matter of debate that the challenge herein is not to any executive order or even to an ordinary legislation. The challenge is to a constitutional amendment. There has not been any question as regards fulfilment of all other requirements of Article 368 of the Constitution of India while making the amendment in question and insertion of the relevant clauses to Articles 15 and 16. The challenge is founded on, and in fact could only be founded on, the premise that the amendment in question violates the basic structure of the Constitution in the manner that it destroys its identity. According to the principal part of challenge, the Equality Code, an essential feature of the Constitution, gets abrogated because of reservation structured only on economic criteria and because of exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from its benefit. Therefore, the entire challenge is essentially required to be examined on the anvil of the doctrine of basic structure.

33.1. In the aforesaid view of the matter, before entering into the concepts relating to the equality as also the reservation, it shall be apt and apposite to take into account all the vital elements of the doctrine of basic structure, as developed and hitherto applied to the constitutional amendments; and the discernible principles which are to be applied to the amendment in question.

34. The power to amend the Constitution availing under Article 368 has been a significant area of the development of Constitutional Law in our country. This power, recognised as a constituent power, is subject to various safeguards which are intrinsic to Article 368, including the procedural safeguards. The political process from time to time that resulted in various constitutional amendments, some of them radical in nature, gave rise to several debates in this Court as regards the width and amplitude as also the limitations of this amending power of the

Parliament. Thus, Article 368 and the power of the Parliament had been the subject-matter of various decisions, some of which being of farreaching consequences. Before embarking upon a survey of the relevant decisions and the principles discernible therefrom, particularly after the locus classicus of Kesavananda and the later expositions (which had their genesis in the nature of amendment and which were relatable to the given set of facts and circumstances), it would be profitable to put a glance at a few background aspects.

35. The doctrine of basic structure was not as such discussed in the Constituent Assembly while formulating the enabling provisions for amending the Constitution. Then, at the initial stages of Constitutional Law development, the proposition of challenging an amendment to the Constitution, as mooted in the case of Sri Sankari Prasad Singh Deo v. Union of India and Anr.: 1952 SCR 89 as also in Sajjan Singh v. State of Rajasthan: (1965) 1 SCR 933 did not meet with approval of this Court.

However, first reference to the idea of ‘basic feature’ was made by Justice Mudholkar in Sajjan Singh (supra)^[22]. Then, the idea that certain

Parts of the Constitution were unamendable was accepted by the 11-

Judge Bench in I.C. Golak Nath and Ors. v. State of Punjab and Anr.: (1967) 2 SCR 762. However, in Kesavananda, the 13-Judge Bench of this Court, while partially overruling Golak Nath by a majority of 7-6, held that though any part of the Constitution could be amended by the Parliament, its basic structure could not be damaged.

36. A precursor to the developments aforesaid could be traced to the year 1965 when a German jurist, Prof. Dietrich Conrad (1932- 2001), gave a lecture on ‘Implied Limitations of the Amending Power’ at the Banaras Hindu University wherein he, inter alia, asked: “Could the amending power be used to abolish the Constitution, and reintroduce, let’s say, the rule of a Moghul emperor or the Crown of England?”²⁷ Later,

²⁷ The contribution of Prof. Conrad in Origination and Development of doctrine of basic structure has been pertinently underscored in A.G. Noorani’s, ‘Constitutional Questions and Citizens’ Rights, Oxford University Press (2006) in the first chapter titled as “Sanctity of the Constitution:

Dieter Conrad- The man behind the ‘basic structure’ doctrine”, inter alia, in the following words: –

“There is, sadly, little acknowledgment in India of that debt we owe to a distinguished German jurist and scholar steeped in other disciplines beyond the confines of law–Professor Dietrich Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg, Germany.

In Golak Nath’s case, the doctrine of any implied limitations on

Parliament’s power to amend the Constitution was not accepted. The majority felt that ‘there is considerable force in this argument’ but thought it unnecessary to pronounce on it. ‘This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in provisions other than in Part III of the Constitution.’

The argument of implied limitations had been advanced at the Bar by

M.K. Nambyar, one of India’s leading constitutional lawyers. Few people knew then that he owed the argument to Professor Conrad. In February 1965, while on a visit to India, Conrad delivered a lecture on ‘Implied Limitations of the Amending Power’ to the Law Faculty of the Banaras Hindu University. A paper based on the subject was sent to Professor T.S. Rama Rao in Madras for his comments. Nambyar’s attention was drawn to this paper which he read before the Supreme Court, though with little result.

Professor Conrad’s lecture, delivered in February 1965, showed remarkable perceptiveness besides deep learning. He observed:

 ‘Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion I may propose some fictive

he wrote an article titled ‘Limitations of Amendment Procedures and the Constituent Power’ published in the Indian Year Book of International Affairs wherein he described the limits on the amending power as

follows:-

“The functional limitations implied in the grant of amending power to Parliament may then be summarized thus: No amendment may abrogate the constitution. No amendment may effect changes which amount to a practical abrogation or total revision of the constitution. Even partial alterations are beyond the scope of amendment if their repercussions on the organic context of the whole are so deep and far reaching that the fundamental identity of the constitution is no longer apparent……”^[23]

36.1. Thus, even the origin of the submissions before this Court leading to the expositions on the doctrine of basic structure could be traced to the thought-process stimulated by the thinkers like Prof. Conrad. However, as shall be unfolding hereafter, there had been voices of concern about the exact nature and implication of this doctrine. For example, concern was expressed in the case of State of Karnataka v. Union of India and Anr.: (1977) 4 SCC 608 in rather intriguing terms as follows: –

amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper?

‘Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorization by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a Moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period–discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.’

A more detailed exposition of Professor Conrad’s views appeared after the judgment in Golak Nath’s case (Limitation of Amendment Procedures and the Constituent Power, Indian Year Book of International Affairs, 1966–7, Madras, pp. 375–430).”

“120. …In Kesavananda Bharati case this Court had not worked out the implications of the basic structure doctrine in all its applications. It could, therefore, be said, with utmost respect, that it was perhaps left there in an amorphous state which could give rise to possible misunderstandings as to whether it is not too vaguely stated or too loosely and variously formulated without attempting a basic uniformity of its meaning or implications…”

36.2. However, when the enquiry itself is into the effect of amendment of the supreme and organic document, which is fundamental to

everything related to the country, the amorphous state of the doctrine of basic structure, obviously, leaves every option open for purposive approach, in tune with the dynamics of change while ensuring that the fundamental ethos remain unscathed^[24].