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

(emphasis supplied)

38. A comprehension of the foregoing makes one aspect more than

clear. It is that there is no, and there cannot be any, cut-and-dried formula or a theorem which could supply a ready-made answer to the question as to whether a particular amendment to the Constitution violates or affects the basic structure. The nature of amendment and the feature/s of the Constitution sought to be touched, altered, modulated, or changed by the amendment would be the material factors for an appropriate determination of the question. As observed hereinbefore, amorphous state of the doctrine of basic structure is rather pertinent in this quest, so as to keep in tune with the organic nature of the Constitution.

• However, the observations foregoing are not to suggest as if the doctrine of basic structure is so open-ended that it would be readily applied to every constitutional amendment. Quite to the opposite, as exemplified by the decisions above-referred, this Court has applied the same only against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution, like direct abrogation of the features of judicial review (Kesavananda, Minerva Mills and Sambhamurthy^[29]); free and fair elections (Indira Nehru

Gandhi); plenary jurisdiction of constitutional Courts (L. Chandra

Kumar); and independence of judiciary (NJAC Judgment). Most of the other attempts to question the constitutional amendments have met with disapproval of this Court even when there had been departure from the existing constitutional provisions and scheme.

• The reason for minimal interference by this Court in the constitutional amendments is not far to seek. In our constitutional set-up of parliamentary democracy, even when the power of judicial review is an essential feature and thereby an immutable part of the basic structure of the Constitution, the power to amend the Constitution, vested in the Parliament in terms of Article 368, is equally an inherent part of the basic structure of the Constitution. Both these powers, of amending the Constitution (by Parliament) and of judicial review (by Constitutional Court) are subject to their own limitations. The interplay of amending powers of the Parliament and judicial review by the Constitutional Court over such exercise of amending powers may appear a little bit complex but ultimately leads towards strengthening the constitutional value of separation of powers. This synergy of separation is the strength of our Constitution.

39. A few material aspects related with this interlacing of the amending powers of the Parliament and operation of the doctrine of basic structure could be usefully condensed as follows:
    • The power to amend the Constitution essentially vests with the

Parliament and when a high threshold and other procedural safeguards are provided in Article 368, it would not be correct to assume that every amendment to the Constitution could be challenged by theoretical reference to the basic structure doctrine.

• As exposited in Kesavananda, the amending power can even be used by the Parliament to reshape the Constitution in order to fulfil the obligation imposed on the State, subject, of course, to the defined limits of not damaging the basic structure of the Constitution.
• Again, as put in Kesavananda, judicial review of constitutional amendment is a matter of great circumspection for the judiciary where the Courts cannot be oblivious of the practical needs of the Government and door has to be left open even for ‘trial and error’, subject, again, to the limitations of not damaging the identity of the Constitution.
• The expressions “basic features” and “basic structure” convey different meaning, even though many times they have been used interchangeably. It could reasonably be said that basic structure of the Constitution is the sum total of its essential features.
• As to when abrogation of any particular essential feature would lead to damaging the basic structure of Constitution would depend upon the nature of that feature as also the nature of amendment.
• As regards Part-III of the Constitution, every case of amendment of Fundamental Rights may not necessarily result in damaging or destroying the basic structure. The issue would always be as to whether what is sought to be withdrawn or altered is an inviolable part of the basic structure.
• Mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice, as exposited in Bhim Singhji.
• If any constitutional amendment moderately abridges or alters the equality principles, it cannot be said to be a violation of the basic structure.

40. While keeping in view the principles foregoing, we may embark upon the points arising for determination in this matter so as to answer the root question as to whether the amendment in question violates the basic structure of the Constitution?
41. As noticed, the principal part of challenge to the 103^rd Amendment is premised on the ground that insertion of clause (6) to Article 15 as also the parallel insertion of clause (6) to Article 16 abrogates the Equality Code, an essential feature of the Constitution of India; and thereby destroys the basic structure of the Constitution. In order to determine as to whether the amendment in question destroys or violates the basic structure, we need to examine the doctrine of equality as enshrined in our Constitution; the concept of reservation by affirmative action as an exception to the general rule of equality; the economic disability and affirmative action to deal with the same; the implications of economic criteria as the sole basis for affirmative action; the implications of the exclusion of socially and educationally backward classes from the affirmative action for economically weaker sections; and the implication of the quantum of additional ten per cent. reservation for EWS. These aspects may now be exmined in this very order as infra.

Expanding Doctrine of ‘Equality’

42. It would be apt to begin this discussion with the following words of H. M. Seervai, a jurist of great repute, as regards fundamentals of the concepts of Liberty and Equality:

“Liberty and equality are words of passion and power. They were the watchwords of the French Revolution; they inspired the unforgettable words of Abraham Lincoln’s Gettysburg Address; and the U.S. Congress gave them practical effect in the 13^th Amendment, which abolished slavery, and in the 14^th Amendment, which provided that “the State shall not deny to any person within its jurisdiction…the equal protection of the laws.” Conscious of this history, our founding fathers not only put Liberty and Equality in the Preamble to our Constitution but gave them practical effect in Art. 17 which abolished “Untouchability,” and in Art. 14 which provides that “the State shall not deny to any person equality before the law and the equal protection of the laws in the territory of India”^[30]–^[31].

43. Articles 14 to 18 of the Constitution are to ensure the right to equality. The makers of our Constitution noticed the widespread social and economic inequalities in the society that obtained ever since a long past, often sanctioned by public policies, religion and other social norms and practices. Therefore, they enacted elaborate provisions for

eradication of inequalities and for establishing an egalitarian society. The first expression ‘equality before the law’ of Article 14 is taken from the alltime wisdom as also from English Common Law, implying absence of any special privilege in any individual³⁷; and the other expression ‘the equal protection of the laws’, referable to the 14^th Amendment to the U.S. Constitution, is a constitutional pledge of protection or guarantee of equal laws. Both these expressions occur in Article 7 of the Universal Declaration of Human Rights, 1948.

44. In a nutshell, the principle of equality can be stated thus: equals must be treated equally while unequals need to be treated differently, inasmuch as for the application of this principle in real life, we have to differentiate between those who being equal, are grouped together, and those who being different, are left out from the group. This is expressed as reasonable classification. Now, a classification to be valid must

³⁷ In fact, total equality has been fundamental to the concept of Dharma, leaving no scope for discrimination on any ground. These aspects have been succinctly explained by the acclaimed jurist M. Rama Jois in his classic work Legal and Constitutional History of India (N. M. Tripathi Private Ltd. 1984 – Volume I, at p. 582) in the following amongst other expressions while reproducing from Rig Veda: –

“…The very expression Dharma is opposed to and inconsistent with any such social inequality. The relevant provisions of the Shruti (Vedas) leave no room for doubt that discrimination on the ground of birth or otherwise had no Vedic sanction; on the other hand such discrimination was plainly opposed to Vedic injunction. Discrimination of any kind is, therefore, contrary to Dharma. It is really Adharma.

Charter of equality (Samanata) is found incorporated in the Rigveda, the most ancient of the Vedas, and also in the Atharvaveda.

Rigveda – Mandala-5, Sukta-60, Mantra-5:

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Ajyestaso akanishtasa ete

Sam bhrataro va vridhuhu sowbhagaya.

No one is superior (ajyestasaha) or inferior (akanishtasaha). All are brothers (ete bhrataraha). All should strive for the interest of all and should progress collectively (sowbhagaya sam va vridhuhu)”.

necessarily satisfy two tests: first, the distinguishing rationale should be based on a just objective and secondly, the choice of differentiating one set of persons from another should have a reasonable nexus to the object sought to be achieved. However, a valid classification does not require mathematical niceties and perfect equality; nor does it require identity of treatment.^[32] If there is similarity or uniformity within a group, the law will not be condemned as discriminatory, even though due to some fortuitous circumstances arising out of a particular situation, some included in the class get an advantage over others left out, so long as they are not singled out for special treatment. In spite of certain indefiniteness in the expression ‘equality’, when the same is sought to be applied to a particular case or class of cases in the complex conditions of a modern society, there is no denying the fact that the general principle of ‘equality’ forms the basis of a Democratic Government.^[33]

45. Since the early 1970s, equality in Article 14 being a dynamic concept, has acquired new dimensions. In P. Royappa (supra), a new approach to this doctrine was propounded in the following words: –

“85. …Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is

unequal both according to political logic and constitutional law and is therefore violative of Article 14…”

(emphasis supplied)

45.1.  In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Ors.: (1974) 2 SCC 402, it was observed: –

“33. …..Article 14 enunciates a vital principle which lies at the core of our republicanism and shines like a beacon light pointing towards the goal of classless egalitarian socio-economic order which we promised to build for ourselves when we made a tryst with destiny on that fateful day when we adopted our Constitution. If we have to choose between fanatical devotion to this great principle of equality and feeble allegiance to it, we would unhesitatingly prefer to err on the side of the former as against the latter…”

46. Indian constitutional jurisprudence has consistently held the guarantee of equality to be substantive and not a mere formalistic requirement. Equality is at the nucleus of the unified goals of social and economic justice. In Minerva Mills it was observed: –

“111.  … the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle…”

(emphasis supplied)

47. Thus, equality is a feature fundamental to our Constitution but, in true sense of terms, equality envisaged by our Constitution as a component of social, economic and political justice is real and substantive equality, which is to organically and dynamically operate against all forms of inequalities. This process of striking at inequalities, by its very nature, calls for reasonable classifications so that equals are treated equally while unequals are treated differently and as per their requirements.

Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality

48. In the multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities, wherever existing and in whatever form existing. Hence, the State is tasked with affirmative action. And, one duly recognised form of affirmative action is by way of compensatory discrimination, which has the preliminary goal of curbing discrimination and the ultimate goal of its eradication so as to reach the destination of real and substantive equality. This has led to what is known as reservation and quota system in State

activities.

49. Reservation and quota system was introduced in Malta much

before it was mentioned in India^[34]. Reservation in India was introduced in the last decades of the 19^th century at a time when the Indian subcontinent was broadly divided, according to two main forms of governance, into British India and about 600 Princely States. Some of the progressive States had modernised the society through the promotion of education and industry. For example, the Princely States of Mysore, Baroda and Kolhapur took considerable interest in the awakening and advancement of deprived sections of society. Chhatrapati Shahuji

Maharaj, the Ruler of Princely State of Kolhapur, is said to have been influenced by the thoughts of egalitarian thinker Jyotirao Phule and is said to have introduced affirmative action in 1902, reserving a part of administrative posts for ‘depressed classes’.^[35]

50. Leaving the historical perspective at that, for the purpose of questions at hand, we may, however, move on to the provisions in the Constitution of India and take note of their operation with reference to the relevant decisions. The ‘doctrine of equality’, as collectively enshrined in Articles 14 to 18, happens to be the principal basis for the creation of a reasonable classification whereunder ‘affirmative action’, be it legislative or executive, is authorised to be undertaken. The constitutional Courts too, precedent by precedent, have constructively contributed to the evolution of what we may term as ‘reservation jurisprudence’.
51. The Constitution of India has about two dozen Articles providing for compensatory or special treatment for disadvantaged citizens or for protecting them against discrimination. Part III specifies the Fundamental Rights that are constitutionally guaranteed. Article 12 defines the ‘State’ against whom these Fundamental Rights can be enforced. Article 13 declares void all laws offending Fundamental Rights. Article 14, apparently considered to be one of the most important of the Fundamental Rights, guarantees the right to equality and equal protection

of the laws. Article 15 confers on the SEBCs/OBCs/SCs/STs the right to seek reservation in admission to educational institutions. It also provides for the advancement of these classes. Similarly, Article 16 provides for reservation in the matter of public employment for Backward Classes. Both Articles 15 and 16, being citizenship-specific unlike Article 14, prohibit discrimination broadly i.e., only on the grounds of, religion, race, caste, sex or place of birth. Part XVI of the Constitution, making ‘Special Provisions Relating to Certain Classes’, provides for reservation of seats in legislatures for Scheduled Castes, Scheduled Tribes and so on.

52. Although several Articles are relevant as expressing the spirit of the Constitution, three of them are predominantly germane i.e., Article 14 as embodying the generic principle of equality (as genus) and Articles 15 and 16, enacting the facets of general equality (as species), vide M. Thomas.
    • It is evident that the normal process of development benefits only that section of society which already possesses land, education, and social status/respect. For those who have none of these, or are deprived of any of these, there was the task of making sure that they, who had been unable to enjoy these rights due to myriad reasons, were given special facilities, privileges and encouragement so that they could participate as equals in the mainstream of socio-economic system, taking them to the path of Liberty and Justice and thereby promoting Fraternity among all the citizens, assuring the dignity of the individual. Given these objectives, the Indian constitutional structure, unlike the U.S. Constitution, specifically provides for ‘compensatory discrimination’, vide Vasanth Kumar; and, in that context, reservation is the basic gateway to tread the path of all-around development.
    • Thus, Article 15 enacts the principle of equality before law to specific situations. While it prohibits certain classifications, it expressly requires making of certain classifications which would impliedly be within the broad reach of Article 14. Clause (4) was added to Article 15 by the Constitution (First Amendment) Act, 1951, w.e.f. 18.06.1951 to nullify the effects of the decision in Champakam. Article 16, which enacts another facet of equality, prohibits discrimination in the matters relating to employment or appointment to any office under the State on almost the same grounds as in Article 15. Clauses (4) and (4-A) of Article 16 carve out another exception to the rule of equality and enable the State to make provisions for reservations of appointment in favour of any backward class of citizens. Such provisions include reservations or quotas that can be made in the exercise of executive powers and even without any legislative support, vide Indra Sawhney. The twin objectives of Articles 15 and 16 are to provide adequate protection to the disadvantaged and, through special measures, to raise their capabilities so that they would, on their own, compete with the rest.
    • The reference to Scheduled Castes and Scheduled Tribes in

Articles 15 and 16 takes us to Articles 341 and 342, which authorise the President to issue a notified order in respect of each of the States/Union Territories specifying the castes, races or tribes which are to be regarded as Scheduled Castes and Scheduled Tribes. Articles 338 and 338-A respectively provide for the establishment of National Commission for Scheduled Castes and National Commission for Scheduled Tribes.

Similarly, Article 338-B provides for the establishment of National Commission for Backward Classes. These constitutional bodies, inter alia, have the duty to participate in and advice on the socio-economic development of the communities concerned. Article 342-A introduced by

102^nd Constitutional Amendment w.e.f. 15.08.2018 authorises the President in consultation with the Governor of the State concerned to notify socially and educationally backward classes (discussed and upheld in Dr. Jaishri Patil).

53. Reverting to Articles 15 and 16, it could at once be noticed that the provisions concerning reservation were crafted carefully to be just

‘enabling provisions’. They were worded to confer no more than a

discretionary power on the State. They did not cast a duty on the State to the effect that it must set apart such and such proportion of seats in educational institutions or of posts in government services by way of reservation^[36].The provisions were written so as to obviate a challenge to the steps that the State may take to raise the downtrodden. However, they were, as such, not to confer a right on anyone.

54. As regards reservation as one of the measures of affirmative action, the extent thereof has been a major area of debates and has led to various expositions, as shall be noticed in the later segments of this judgment. For the present purpose, of comprehending the ethos and contours of this affirmative action, the following are the pertinent observations of this Court in Nagaraj, essentially made in the context of Article 16: –

“102 …… Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State…….. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid.…….Equality has two facets – “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.

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104………… 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…..”