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

37. It shall now be appropriate to delve a bit deeper into some of the significant and important cases in which the doctrine of basic structure was employed/applied in the context of a constitutional amendment^[25].

37.1. In Kesavananda, this Court outlined the basic structure doctrine of the Constitution. In fact, in Kesavananda, this Court, by a 7-6 majority, went several steps ahead in asserting its power of judicial review so as to scrutinize any amendment to see if it violated the basic structure of the Constitution; and asserted its right to strike down amendments to the

Constitution that were in violation of the fundamental architecture of the

Constitution. Factually, the case was a challenge to the Kerala Land

Reforms Act, 1963 which interfered with petitioner’s rights to manage property under Article 26. Furthermore, the Twenty-fourth, Twenty-fifth and Twenty-ninth constitutional amendments were also challenged. By Twenty-fourth Amendment, Articles 13 and 368 were amended to exclude constitutional amendments from the definition of law under Article 13; the Twenty-fifth Amendment excluded judicial review by providing that the law giving effect to principles specified in clause (b) or clause (c) of Article 39 could not be questioned by the Court; and the Twenty-ninth Amendment put certain land reform enactments in the Ninth Schedule. The present discussion need not be over-expanded with reference to the variety of opinions expressed therein. For the present purpose, a few relevant opinions could be extracted as follows: –

Sikri, C.J.

“209…..In other words, the expression ‘Amendment of this Constitution” does not include a revision of the whole Constitution. If this is true — I say that the concession was rightly made — then which is that meaning of the word “Amendment” that is most appropriate and fits in with the whole scheme of the Constitution. In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.

284. In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression “amendment of this Constitution” has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents.

395. It was said that if Parliament cannot increase its power of amendment clause (d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution would be bad. I see no force in this contention. Article 13(2) as existing previous to the 24th Amendment as interpreted by the majority in Golak Nath’s case (supra), prevented Legislatures from taking away or abridging the rights conferred by Article 13. In other words, any law which abridged a fundamental right even to a small extent was liable to be struck down Article 368 can amend every article of the Constitution as long as the result is within the limits already laid down by me. The amendment of Article 13(2) does not go beyond the limits laid down because Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fundamental rights. After the amendment now a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.

469. I have held that Article 368 does not enable Parliament to abrogate or take away fundamental rights. If this is so, it does not enable Parliament to do this by any means, including the device of Article 31-B and the Ninth Schedule. The device of Article 31-B and the Ninth Schedule is bad in so far as it protects Statutes even if they take away fundamental rights. Therefore, it is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts if they take away fundamental rights.

Shelat, J. and Grover, J.

546. The meaning of the words “amendment of this Constitution” as used in Article 368 must be such which accords with the true intention of the Constitution-makers as ascertainable from the historical background, the Preamble, the entire scheme of the Constitution, its structure and framework and the intrinsic evidence in various articles including Article 368. It is neither possible to give it a narrow meaning nor can such a wide meaning be given which can enable the amending body to change substantially or entirely the structure and identity of the Constitution. Even the concession of the learned Attorney-General and the AdvocateGeneral of Maharashtra that the whole Constitution cannot be abrogated or repealed and a new one substituted supports the conclusion that the widest possible meaning cannot be given to it.

583. The entire discussion from the point of view of the meaning of the expression “amendment” as employed in Article 368 and the limitations which arise by implications leads to the result that the amending power under Article 368 is neither narrow nor unlimited. On the footing on which we have proceeded the validity of the 24th Amendment can be sustained if Article 368, as it originally stood and after the amendment, is read in the way we have read it. The insertion of Articles 13(4) and 368(3) and the other amendments made will not affect the result, namely, that the power in Article 368 is wide enough to permit amendment of each and every article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity.

Hegde, J. and Mukherjea, J.

666. On a careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society. These limitations are only illustrative and not exhaustive. Despite these limitations, however, there can be no question that the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligation imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a Welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the State should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way.… Every encroachment on freedoms sets a pattern for further encroachments. Our constitutional plan is to eradicate poverty without destruction of individual freedoms.

Khanna, J.

1416. Argument has then been advanced that if power be held to be vested in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be nonexistent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagantly. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental right by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of Marshall, C.J., regarding the possibility of the abuse of power of legislation and of taxation in the case of Providence Bank v. Alpheus Billings:

“This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally.”

1535. In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristrocracy of the Robe, Covert Legislation, or Judge-made law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the U.S. Constitution:

“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics…Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”….”

(emphasis supplied)

37.2. In Indira Nehru Gandhi, using the doctrine of basic structure, the Thirty-ninth Constitutional Amendment Act was struck down whereby the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha were put beyond the judicial scrutiny. Such an amendment was held to be destroying the basic feature of the

Constitution.

37.3. In Minerva Mills, again, using the doctrine of basic structure, clauses (4) and (5) of the Constitution (Forty-second Amendment) Act,

1976 were struck down with the following, amongst other, observations: –

Chandrachud, C.J. 

“56. The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin’s observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.

57. ….. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.”

(emphasis supplied)

37.4. In Waman Rao, it was held that the First Constitution Amendment

Act, that introduced Articles 31-A and 31-B, as well as the Twenty-fifth Amendment Act that introduced Article 31-C were constitutional, and did not damage any basic or essential features or the basic structure of the Constitution. Herein, this Court examined the validity of Article 31-A and Article 31-B of the Constitution of India with respect to the doctrine of basic structure introduced in Kesavananda and observed that all the decisions made prior to the introduction of the doctrine shall remain valid. The impact of this decision had been that all the acts and regulations that were included under Ninth Schedule to the Constitution prior to the Kesavananda decision were to remain valid while further amendments to the Schedule could be challenged on the grounds of violation of the doctrine of basic structure. The relevant observations in this case read as under: –  

Chandrachud, C.J.

“14. … We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution.

29. The First Amendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution. It is impossible for any government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law. Thus, the adoption of ‘family unit’ as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters. That cannot, in our opinion, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality. It seems to us ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings.

49. We propose to draw a line, treating the decision in Kesavananda Bharati as the landmark. Several Acts were put in the Ninth Schedule prior to that decision on the supposition that the power of the Parliament to amend the Constitution was wide and untrammelled. The theory that the Parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati. This is one reason for upholding the laws incorporated into the Ninth Schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati was rendered. A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth Schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society.

51. Thus, insofar as the validity of Article 31-B read with the Ninth Schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31-B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31-B for the plain reason that in the face of the judgment in Kesavananda

Bharati, there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.

54. Apart from this, if we are right in upholding the validity of Article 31-A on its own merits, it must follow logically that the unamended Article 31-C is also valid. … Whatever we have said in respect of the defined category of laws envisaged by Article 31-A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to clauses (b) and (c) of Article 39. It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19. Article 31 is now out of harm’s way. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of Article 39 will fortify that structure. We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in clauses (b) and (c) of Article 39. The challenge made to the validity of the first part of the unamended Article 31-C therefore fails.”

(emphasis supplied)

37.5. In P. Sambhamurthy and Ors. v. State of Andhra Pradesh and Anr.: (1987) 1 SCC 362^[26] this Court examined Article 371-D inserted by the Constitution (Thirty-second Amendment) Act, 1973 and struck down its clause (5) with proviso, as being violative of the basic structure since it conferred power on the State Government to modify or annul the final order of the Administrative Tribunal, which was against the concept of justice and principle of rule of law.

37.6. In Kihoto Hollohan v. Zachillhu and Ors.: 1992 Supp (2) SCC 651, the constitutional validity of the Tenth Schedule to the Constitution introduced by the Constitution (Fifty-second Amendment) Act, 1985, was assailed. Though, the majority opinion did not find the entire amendment unconstitutional but the Court declared invalid Paragraph 7 of the Tenth Schedule to the Constitution, which excluded judicial review of any matter connected with the disqualification of a member of a House in terms of

the provisions contained in that Schedule, essentially for want of ratification in accordance with the proviso to clause (2) of Article 368.

37.7. In Raghunathrao, the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 which removed privy purses was brought into question, inter alia, on the ground that it violated the basic structure and essential features of the Constitution of India and was, therefore, outside the scope and ambit of the powers of the Parliament to amend the Constitution. This Court denied interference while observing, inter alia, as under: –   

“96. Permanent retention of the privy purse and the privileges of rights would be incompatible with the sovereign and republican form of Government. Such a retention will also be incompatible with the egalitarian form of our Constitution. That is the opinion of the Parliament which acted to repeal the aforesaid provisions in exercise of its constituent power. The repudiation of the right to privy purse privileges, dignities etc. by the deletion of Articles 291 and 362, insertion of Article 363-A and amendment of clause (22) of Article 366 by which the recognition of the Rulers and payment of privy purse are withdrawn cannot be said to have offended Article 14 or 19(g) [sic 19(1)(f)] and we do not find any logic in such a submission. No principle of justice, either economic, political or social is violated by the Twenty-sixth Amendment. Political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to democratic form of Government and right to participation in political affairs. Economic justice is enshrined in Article 39 of the Constitution. Social justice is enshrined in Article 38. Both are in the directive principles of the Constitution. None of these rights are abridged or modified by this Amendment. We feel that this contention need not detain us any more and, therefore, we shall pass on to the next point in debate.

107. On a deep consideration of the entire scheme and content of the Constitution, we do not see any force in the above submissions. In the present case, there is no question of change of identity on account of the Twenty-sixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme or in its basic features, or in its basic form or in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of the writ petitioners and interveners, remains the same and unchanged.”

(emphasis supplied)

37.8. A 7-Judge Bench of this Court in L. Chandra Kumar v. Union of India and Ors.: (1997) 3 SCC 261^[27] had the occasion to examine the nature and extent of jurisdiction of the High Court under Articles 226/227; and it was held that power of judicial review under Articles 226/227 and Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting its basic structure. The Constitution Bench held invalid the provisions of clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, inserted by the Constitution (Forty-second Amendment) Act, which excluded the jurisdiction of the High Court while observing as under: –

“99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution…….”

(emphasis supplied)

37.9. In M. Nagaraj, the Constitution Bench validated the Constitution (Seventy-seventh Amendment) Act, 1995 which inserted Article 16(4-A);

the Constitution (Eighty-first Amendment) Act, 2000 which inserted Article 16(4-B); the Constitution (Eighty-second Amendment) Act, 2000 which inserted a proviso to Article 335; and the Constitution (Eighty-fifth Amendment) Act, 2001 which added “consequential seniority” for SC/STs under Article 16(4-B). The said amendments were introduced essentially to nullify the effect of the decision in Indra Sawhney wherein a 9-Judge Bench had ruled that reservation in appointments did not apply to promotions. Article 16(4-A) enables the State to make any law regarding reservation in promotion for SC/STs. Article 16(4-B) provides that reserved promotion posts for SC/STs that remain unfilled, can be carried forward to the subsequent year. Article 16(4-B) also ensures that the ceiling on the reservation quota for these carried forward posts does not apply to subsequent years. Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. The amendment to Article 335 clarified that the Article will not apply to the State relaxing evaluation standards ‘in matters of promotion’. The Court held as under: –

“104. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article             16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4).

108. Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-second Amendment) Act, 2000 we find that the said proviso has a nexus with Articles 16(4-A) and 16(4B). Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring discretionary power on the State to relax qualifying marks or standards of evaluation. Therefore, the question before us is—whether the State could be empowered to relax qualifying marks or standards for reservation in matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in Article 335 is not obliterated. Reason is that “efficiency” is a variable factor. It is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read with Article 46 which provides 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 Scheduled Tribes, and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.

109. In conclusion, we reiterate that the object behind the impugned constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and the constitutional limitations indicated above.

Conclusion

121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in K. Sabharwal.

124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.”

(emphasis supplied)

37.10. In Ashoka Kumar Thakur, the provisions of Constitution (Ninetythird Amendment) Act, 2005 were under challenge, which inserted clause (5) to Article 15 of the Constitution. This Court rejected the contention of violation of the basic structure while holding, inter alia, as under: –

“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.

120. If any constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is (sic not) accepted, our Constitution would not be able to adapt itself to the changing conditions of a dynamic human society. Therefore, the plea raised by the petitioners’ counsel that the present Constitution (Ninety-third Amendment) Act, 2005 alters the basic structure of the Constitution is of no force. Moreover, the interpretation of the Constitution shall not be in a narrow pedantic way. The observations made by the Constitution Bench in Nagaraj case at p. 240 are relevant: (SCC para 19)

“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 constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges.”

122. Therefore, we hold that the Ninety-third Amendment to the Constitution does not violate the “basic structure” of the Constitution so far as it relates to aided educational institutions. Question whether reservation could be made for SCs, STs or SEBCs in private unaided educational institutions on the basis of the Constitution (Ninety-third Amendment); or whether reservation could be given in such institutions; or whether any such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution; or whether the Constitution (Ninety-third Amendment) which enables the State Legislatures or Parliament to make such legislation are all questions to be decided in a properly constituted lis between the affected parties and others who support such legislation.”

(emphasis supplied)

37.11. In K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr.: (2010) 7 SCC 202, the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992 which had inserted Part IX and Part IX-A to the Constitution thereby contemplating the powers, composition and functions of local self-government institutions i.e., the Panchayats (for rural areas) and Municipalities (for urban areas) were in challenge. This Court rejected the challenge while holding that there was no damage to the basic structure and concluded as follows: –

“82. In view of the above, our conclusions are:

• The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Article 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local selfgovernment. Even when made, they need not be for a period corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter.

• Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable the State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the State legislations.

• We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of “backward classes” under Article 243-D(6) and Article 243-T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4).

• The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.

• The reservation of chairperson posts in the manner contemplated by Articles 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment.”

(emphasis supplied)

37.12. In Pramati Trust, the validity of clause (5) of Article 15 of the

Constitution inserted by the Constitution (Ninety-third Amendment) Act, 2005 was again in question in reference to the private unaided educational institutions (the aspect which was not under consideration in Ashoka Kumar Thakur) as also the validity of Article 21-A of the Constitution inserted by the Constitution (Eighty-sixth Amendment) Act, 2002 with effect from 01.04.2010. This Court denied that there was any basic structure violation while observing, inter alia, as under: –

“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 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.

51. In our considered opinion, therefore, by the Constitution (Eighty-sixth Amendment) Act, a new power was made available to the State under Article 21-A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years as this goal contemplated in the directive principles in Article 45 before this constitutional amendment could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6) of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the Constitution. By exercising this additional power, the State can by law impose admissions on private unaided schools and so long as the law made by the State in exercise of this power under Article 21-A of the Constitution is for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years and so long as such law forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution.

56. In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-sixth Amendment) Act, 2002 inserting Article 21-A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No. 1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106, 128, 144-45, 160 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All IAs stand disposed of. The parties, however, shall bear their own costs.”

(emphasis supplied)

37.13. In Supreme Court Advocates-on-Record Association and Anr.

2014. Union of India: (2016) 5 SCC 1^[28], the questions were pertaining to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and that of the National Judicial Appointments Commission Act, 2014. This Court held that the amendment violated the basic structure inasmuch as by altering the process of appointment of Judges to the Supreme Court and the High Court, the amendment was striking at the very basis of the independence of the judiciary, an essential feature of the

Constitution. A few passages from the majority opinions read as under: –

Khehar, J. 

“308. Articles 124-A(1)(a) and (b) do not provide for an adequate representation in the matter to the judicial component to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary, and therefore, the same are liable to be set aside and struck down as being violative of the “basic structure” of the Constitution of India. Thus viewed, we are satisfied that the “basic structure” of the Constitution would be clearly violated if the process of selection of Judges to the higher judiciary was to be conducted in the manner contemplated through NJAC. The impugned constitutional amendment being ultra vires the “basic structure” of the Constitution is liable to be set aside.

Lokur,J.

928. The 99th Constitution Amendment Act and the NJAC Act not only reduce the Chief Justice of India to a number in NJAC but also convert the mandatory consultation between the President and the Chief Justice of India to a dumb charade with NJAC acting as an intermediary. On earlier occasions, Parliament enhanced its power through constitutional amendments, which were struck down, inter alia, in Indira Nehru Gandhi and Minerva Mills. The 99th Constitution Amendment           Act     unconstitutionally minimises the role of the Chief Justice of India and the judiciary to a vanishing point in the appointment of Judges. It also considerably downsizes the role of the President. This effaces the basic structure of the independence of the judiciary by sufficiently altering the process of appointment of Judges to the Supreme Court and the High Court, or at least alters it unconstitutionally thereby striking at the very basis of the independence of the judiciary.”

(emphasis supplied)

37.14. In his powerful dissent in the above-referred NJAC Judgment, Justice Chelameswar surveyed a vast variety of case law relating to the doctrine/theory of basic structure and thereafter, summed up the relevant propositions, inter alia, as follows: –

“1196. An analysis of the judgments of the abovementioned cases commencing from Kesavananda case yields the following                                  propositions:

1196.1. Article 368 enables Parliament to amend any provision of    the Constitution.

1196.2. The power under Article 368 however does not enable                 Parliament to destroy the basic structure of the Constitution.

1196.3. None of the cases referred to above specified or declared what is the basic structure of the Constitution.

1196.4.      The      expressions      “basic      structure”      and                                 

“basic features” convey different ideas though some of the                  learned Judges used those expressions interchangeably.

1196.5. The basic structure of the Constitution is the sum total of the basic features of the Constitution.

1196.6. Some of the basic features identified so far by this                    Court are democracy, secularism, equality of status,

independence of  judiciary, judicial review and some of the                fundamental rights.

1196.7. The abrogation of any one of the basic features results normally in the destruction of the basic structure of the Constitution subject to some exceptions.

1196.8. As to when the abrogation of a particular basic feature can be said to destroy the basic structure of the Constitution      depends upon the nature of the basic feature sought to be               amended and the context of the amendment. There is no              universally applicable test vis-à-vis all the basic features.”

(emphasis supplied)

37.15. Lastly, in the decision in Dr. Jaishri Patil to which one of us (S. Ravindra Bhat, J.) was a party, this Court considered the validity of the Constitution (One Hundred and Second Amendment) Act, 2018 which, inter alia, inserted Articles 366(26-C) and 342-A. As a result of this amendment, the President alone, to the exclusion of all other authorities, is empowered to identify socially and educationally backward classes and include them in a list to be published under Article 342-A (1), which shall be deemed to include SEBCs in relation to each State and

Union territory for the purposes of the Constitution. The said amendment

was challenged, inter alia, on the ground that the same was not ratified by at least half of the States and that it was striking at the federal structure of the Constitution. While rejecting the challenge, this Court held that there was no breach of the basic structure of the Constitution. Some of the relevant questions formulated in that case and the opinions expressed could be usefully reproduced as under: –

“7.4. (4) Whether the Constitution (One Hundred and Second) Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?

7.5. (5) Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342-A read with Article 366(26-C) of the Constitution of India?

7.6. (6) Whether Article 342-A of the Constitution abrogates

States’ power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy/structure of the Constitution of India?

            Bhat, J.  

182. This Court is also of the opinion that the change brought about by the 102nd Amendment, especially Article 342-A is only with respect to the process of identification of SEBCs and their list.

Necessarily, the power to frame policies and legislation with regard to all other matters i.e. the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservations and special provisions under Articles 15(4), 15(5) and 16(4) are entirely with the State Government in relation to its institutions and its public services (including services under agencies and corporations and companies controlled by the State Government). In other words, the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficial or welfare scheme which is conceivable under Article 15(4) can all be achieved by the State through its legislative and executive powers. This power would include making suggestions and collecting data — if necessary, through statutory commissions, for making recommendations towards inclusion or exclusion of castes and communities to the President on the aid and advice of the Union Council of Ministers under Article 342-A. This will accord with the spirit of the Constitution under Article 338B and the principle of cooperative federalism which guides the interpretation of this Constitution.

193. By these parameters, the alteration of the content of the State legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the Constitution, and denudes the States of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution. Applying such a benchmark, this Court is of the opinion that the power of identification of SEBCs hitherto exercised by the States and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342-A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative of proviso to Article 368(2) of the Constitution of India. As a result, it is held that the writ petition is without merit; it is dismissed.

194.5. Re Point (5): Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342-A read with Article 366(26-C) of the Constitution of India? On these two interrelated points of reference, my conclusions are as follows:

194.5.5. The States’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 — except with respect to identification of SEBCs, remains undisturbed.

194.6. Re Point (6): Article 342-A of the Constitution by denuding the States power to legislate or classify in respect of “any backward class of citizens” does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India.

            Bhushan, J.  

686. We do not find any merit in the challenge to the Constitution 102nd Amendment. The Constitution 102nd

Amendment does not violate any basic feature of the Constitution. The argument of the learned counsel for the petitioner is that Article 368 has not been followed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State. Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by the proviso to Article 368 clause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102nd Amendment interpreted in the manner as above.”