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

(emphasis supplied)

55. Thus, it could reasonably be summarised that for the socioeconomic structure which the law in our democracy seeks to build up, the requirements of real and substantive equality call for affirmative actions; and reservation is recognised as one such affirmative action, which is permissible under the Constitution; and its operation is defined by a large number of decisions of this Court, running up to the detailed expositions in Jaishri Patil.
56. However, it need be noticed that reservation, one of the permissible affirmative actions enabled by the Constitution of India, is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated; or whose modulation for a valid reason, including benefit of any section other than the sections who are already availing its benefit, may damage the basic structure.

Economic Disabilities and Affirmative Action

57. After having traversed through the two fundamental aspects, Equality and Reservation, we may focus on the central point of consideration in these matters i.e., the economic disabilities and

affirmative action in that regard.

58. The social revolution was put at the top of the national agenda by the Constituent Assembly when it adopted Objectives Resolution. In

Kesavananda, it was observed: –

“646….By the Objectives Resolution adopted on January 22, 1947, the Constituent Assembly solemnly pledged itself to draw up for India’s future governance a Constitution wherein “shall be guaranteed and secured to all the people of India justice, social, economic and political, equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality and wherein adequate safeguard would be provided for minorities, backward and tribal areas and depressed and other backward classes”. The close association between political freedom and social justice has become a common concept since the French Revolution. Since the end of the First World War, it was increasingly recognised that peace in the world can be established only if it is based on social justice. The most modern Constitutions contain declaration of social and economic principles, which emphasise, among other things, the duty of the State to strive for social security and to provide work, education and proper condition of employment for its citizens. In evolving the Fundamental Rights and the Directive Principles, our founding fathers, in addition to the experience gathered by them from the events that took place in other parts of the world, also drew largely on their experience in the past. The Directive Principles and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative democracies will have no meaning without economic and social justice to the common man. This is a universal experience. Freedom from foreign rule can be looked upon only as an opportunity to bring about economic and social advancement. After all freedom is nothing else but a chance to be better. It is this liberty to do better that is the theme of the Directive Principles of State Policy in Part IV of the Constitution.”

59. The Chief Architect of the Constitution Dr. B.R. Ambedkar, on 19.11.1948, had stressed in the Constituent Assembly that the

Constitution was committed to the principle of ‘economic democracy’ as a compliment to political democracy. His words are worth quoting: –

“Sir, that is the reason why the language of the articles in Part IV is left in the manner in which this Drafting Committee thought it best to leave it….It is, therefore, no use saying that the directive principles have no value. In my judgment, the directive principles have a great value, for they lay down that our ideal is economic democracy. Because we did not want merely a parliamentary form of Government to the instituted through the various mechanisms provided in the Constitution. without any direction as to what our economic ideal, as to what our social order ought to be, we deliberately included the Directive Principles in our Constitution. I think, if the friends who are agitated over this question bear in mind what I have said just now that our object in framing this Constitution is really twofold:

(i) to lay down the form of political democracy, and (ii) to lay down that our ideal is economic democracy and also to prescribe that every Government whatever, it is in power, shall strive to bring about economic democracy, much of the misunderstanding under which most members are labouring will disappear….”^[37]

60. M. Seervai writes: –

“4.13 (a) The words “justice, liberty, equality and fraternity” are words of passion and power – the last three were the watchwords of the French Revolution. If they are to retain their power to move men’s hearts and to stir them to action, the words must be used absolutely – as they are used in the preamble. But do they throw any light on the provisions of the Constitution? The only one of the four objectives which is directly incorporated in any Article is “Justice, social, economic and political”, for Art. 38 provides: “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.” (italics supplied) And Art. 39 amplifies the concept of justice by providing that the State shall in particular (that is, especially) direct its policy towards securing the objectives set out of Clauses (a) to (f) of that Article.”^[38]

61. The Preamble to our Constitution sets the ideals and goals which the makers of the Constitution intended to achieve. Therefore, it is also regarded as ‘a key to open the mind of the makers’ of the Constitution which may show the general purposes for which several provisions in the Constitution are enacted. In Kesavananda, the Preamble is held to be a part of the Constitution. Further, in State of Uttar Pradesh v. Dr. Dina Nath Shukla and Anr.: (1997) 9 SCC 662, the Preamble is held to be a part of the Constitution and its basic structure. The Preamble indicates the intent of the makers of the Constitution ‘to secure to all its citizens:

JUSTICE, social, economic and political…’ In V.N. Shukla’s Constitution of India, the significance of the expressions occurring in the Preamble and their sequence has been highlighted in the following words: –

“….the Constitution makers sought to secure to citizens of India justice- social, economic and political; liberty of thought, expression, belief, faith, and worship; equality of status and of opportunity, and to promote among the people of India, fraternity, assuring the dignity of the individual and the unity and integrity of the nation. Although the expressions “justice”, “liberty”, “equality”, “fraternity” and “dignity of the individual” do not have fixed contents and may not be easy to define, they are not without content or as mere platitudes. They are given content by the enacting provisions of the Constitution, particularly by Part III, the Fundamental Rights; Part IV, the Directive Principles of State Policy; Part IVA, the Fundamental Duties; and Part XVI, Special Provisions Relating to Certain Classes. Special attention has been drawn to the sequence of these values in the Preamble which establishes primacy of justice over freedom and equality and this is what the Constitution does by making special provisions for the weaker and excluded sections of the society, women, children and minorities.”^[39]

61.1. The word ‘economic’ is employed more than thirty times in the Constitution. The relevant provisions in which it prominently occurs are: the Preamble and Article 38 (economic justice); Article 39-A (legal aid with neutrality of economic disability); Article 46 (promotion of economic interests of weaker sections), Articles 243-G and 243-W (economic development to be undertaken by local bodies).

62. Our jurisprudence supports making of a provision for tackling the disadvantages arising because of adverse economic conditions. In fact, Article 38 of the Constitution, inter alia, provides for securing economic justice and for striving to minimise the inequalities in income amongst individuals and groups of people. In Jolly George Varghese and Anr. v. The Bank of Cochin: (1980) 2 SCC 360, adopting of coercive recovery proceedings in execution of decree, which were impinging upon liberty of

a judgment-debtor, was not countenanced by this Court; and in that context, a decision of the Kerala High Court relying upon the Universal

Declaration of Human Rights, 1948 was referred to. Article 22 of the Universal Declaration of Human Rights, 1948, on which the said decision is based, providing for social security reads as under: –

“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”

63. As noticed hereinbefore, in Minerva Mills, this Court distinctly pointed out that the equality clause in the Constitution does not speak of mere formal equality but embodies the concept of real and substantive equality, which strikes at inequalities arising on account of vast social and economic differentials; and that the dynamic principle of egalitarianism furthers the concept of social and economic justice.
    • A few other observations of this Court, though made in different contexts but having a bearing on the question of economic justice as a part of overall socio-economic justice, could also be usefully indicated.
      • In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors.: (1997) 11 SCC 121 this Court said: –

“25.…It is to be remembered that the Preamble is the arch of the Constitution which accords to every citizen of India socioeconomic and political justice, liberty, equality of opportunity and of status, fraternity, dignity of person in an integrated Bharat. The fundamental rights and the directive principles and the Preamble being trinity of the Constitution, the right to residence and to settle in any part of the country is assured to every citizen. In a secular socialist democratic republic of Bharat hierarchical caste structure, antagonism towards diverse religious belief and faith and dialectical difference would be smoothened and the people would be integrated with dignity of person only when social and economic democracy is established under the rule of law. The difference due to cast, sect or religion pose grave threat to affinity, equality and fraternity. Social democracy means a way of life with dignity of person as a normal social intercourse with liberty, equality and fraternity. The economic democracy implicits in itself that the inequalities in income and inequalities in opportunities and status should be minimised and as far as possible marginalised…

”

• In People’s Union for Democratic Rights and Ors. v. Union of India and Ors.: (1982) 3 SCC 235, this Court observed: –

“2…..Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty; utter grinding poverty has broken their back and sapped their moral fibre…….The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International Human Rights Conference in Teheran called by the General Assembly in 1968 declared in a final proclamation:

“Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.”

Of course, the task of restructuring the social and economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive…The State or public authority…should be…interested in ensuring basic human rights, constitutional as well as legal, to those who are in a

                                                                      socially and economically disadvantaged position…..”

64. Thus, in almost all references to real and substantive equality, the concept of economic justice has acquired equal focus alongside the

principles of social justice.

65. In giving effect to the rule of equality enshrined in Article 14, the

Courts have also been guided by the jurisprudence evolved by the U.S. Supreme Court in the light of the amendments made to their Constitution, which were founded on economic considerations.^[40] This is to highlight that the economic backwardness of citizens can also be the sole ground for providing reservation by affirmative action. Any civilized jurisdiction differentiates between haves and have-nots, in several walks of life and more particularly, for the purpose of differential treatment by way of affirmative action.

66. Poverty, the disadvantageous condition due to want of financial resources, is a phenomenon which is complex in origin as well as in its manifestation. The 2001 explanation of poverty by the United Nations

Committee on Economic, Social and Cultural Rights says: –

“Persons living in poverty are confronted by the most severe obstacles – physical, economic, cultural and social – to accessing their rights and entitlements. Consequently, they experience many interrelated and mutually reinforcing deprivations – including dangerous work conditions, unsafe housing, lack of nutritious food, unequal access to justice, lack of political power and limited access to health care – that prevents them from realising their rights and perpetuate their poverty. Persons experiencing extreme poverty live in a vicious cycle of powerlessness, stigmatization, discrimination, exclusion and material deprivation, which all mutually reinforce one another.”^[41]

67. The above-quoted        expositions and    explanations      would

comprehensively inform anyone that if an egalitarian socio-economic order is the goal so as to make the social and economic rights a meaningful reality, which indeed is the goal of our Constitution, the deprivations arising from economic disadvantages, including those of discrimination and exclusion, need to be addressed to by the State; and for that matter, every affirmative action has the sanction of our Constitution, as noticeable from the frame of Preamble as also the text and texture of the provisions contained in Part III and Part IV.

Whether Economic Criteria as Sole Basis for Affirmative Action Violates Basic Structure

68. The principal ground of assailing the amendment in question in this batch of matters is that even when the State could take all the relevant measures to deal with poverty and disadvantages arising therefrom, so far as the affirmative action of reservation is concerned, the same is envisaged by the Constitution only for socially and educationally backward class of citizens; and economic disadvantage alone had never been in contemplation for this action of reservation. We may examine the sustainability of this line of arguments.
69. The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities. Poverty is not merely a state of stagnation but is a point of regression. Of course, mass poverty cannot be eliminated within a short period and it is a question of progress along a time path. The United Nations General

Assembly, by its Resolution dated 25.09.2015, set forth seventeen Sustainable Development Goals and the first of them is to ‘End poverty in all its forms everywhere’. The 2030 agenda for Sustainable Development by one hundred and ninety-three countries of the United Nations General Assembly, including India, brought institutionalised focus in measuring and addressing poverty in all its forms, as expounded under the aforesaid

Goal 1. The impact of this was also reflected in the work of the World

Bank which is the custodian of the International Poverty Line Statistics^[42]. In this backdrop, the insertion of enabling provisions, within the framework of the Constitution of India, to remedy the evil effects of poverty by way of reservation, is primarily to be regarded as a part of the frontal efforts to eradicate poverty ‘in all its forms everywhere’. The only question is as to whether providing for economic criteria as the sole basis for reservation is a violation of the basic structure of the Constitution.

70. In Kesavananda, building a Welfare State is held to be one of the main objectives of the Constitution. In the Welfare State, public power becomes an instrumentality for the achievement of purposes beyond the minimum objectives of domestic order and national defence. It is not enough that the society be secured against internal disorder and/or external aggression; a society can be thus secured and well-ordered but, could be lacking in real and substantive justice for all. Equally, providing for affirmative action in relation to one particular segment or class may

operate constructively in the direction of meeting with and removing the inequalities faced by that segment or class but, if another segment of society suffers from inequalities because of one particular dominating factor like that of poverty, the question arises as to whether the said segment could be denied of the State support by way of affirmative action of reservation only because of the fact that that segment is otherwise not suffering from other disadvantages. The answer could only be in the negative for, in the State’s efforts of ensuring all-inclusive socio-economic justice, there cannot be competition of claims for affirmative action based on disadvantages in the manner that one disadvantaged section would seek denial of affirmative action for another disadvantaged section.

71. With the foregoing preliminary comments, reference could be made to the pertinent and instructive expositions of this Court in a few of the relevant cases cited by the respective parties in support of their respective contentions as regards the economic criteria being the sole basis for affirmative action, on its permissibility or impermissibility.
    • In R. Balaji, an order dated 31.07.1962 by the State of Mysore, reserving a total of sixty-eight per cent. seats in engineering and medical colleges and other technical institutions for various backward classes was challenged, being violative of Article 15(4) of the Constitution. In the given context, it was observed by this Court as under:

P.B. Gajendragadkar, J.

“That takes us to the question about the extent of the special provision which it would be competent to the State to make under Art. 15(4). Article 15(4) authorises the State to make any special provision for the advancement of the Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. The learned Advocate-General contends that this Article must be read in the light of Art. 46, and he argues that Art. 15(4) has deliberately and wisely placed no limitation on the State in respect of the extent of special provision that it should make. Art. 46 which contains a directive principle, 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 the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. There can be no doubt that the object of making a special provision for the advancement of the castes or communities, there specified, is to carry out the directive principle enshrined in Art. 46. It is obvious that unless the educational and economic interests of the weaker sections of the people are promoted quickly and liberally, the ideal of establishing social and economic equality will not be attained, and so, there can be no doubt that Art. 15(4) authorises the State to take adequate steps to achieve the object which it has in view. No one can dispute the proposition that political freedom and even fundamental rights can have very little meaning or significance for the Backward Classes and the Scheduled Castes and Scheduled Tribes unless the backwardness and inequality from which they suffer are immediately redressed…

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…. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4). It is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistant with the fundamental rights guranteed under Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done.”

(emphasis supplied)

• Similarly, in Chitralekha (supra), this Court upheld an order of the Government that defined ‘backwardness’ without any reference to caste, using other criteria such as occupation, income and other economic factors. The Court ruled that while caste may be relevant to determine backwardness, the mere exclusion of caste does not impair the classification if it satisfies other tests. The relevant observations of this

Court read as under: –

1. Subba Rao, J.

“The Constitution of India promises Justice, social, economic and political; and equality of status and of opportunity, among others. Under Art. 46, one of the Articles in Part IV headed “Directive Principles of State Policy”, 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….”

• Furthermore, in Janki Prasad Parimoo and Ors. v. State of J&K and Ors.: (1973) 1 SCC 420, the teachers in the Secondary High School of the State, who comprised a large portion of Kashmiri Pandits, found that in spite of their seniority, promotions to the gazetted posts in the service were being made on communal basis and not in accordance with the Jammu and Kashmir Civil Services (Classification, Control and Appeals) Rules, 1969. In this matter, this Court held that mere poverty cannot be a consideration for the test of backwardness for the purpose of enabling reservations by observing as follows: – G. Palekar, J.

“24. It is not merely the educational backwardness or the social backwardness which makes a class of citizens backward; the class identified as a class as above must be both educationally and socially backward. In India social and educational backwardness is further associated with economic backwordness and it is observed in Balaji’s case (supra) referred to above that backwardness, socially and educationally, is ultimately and primarily due to proverty. But if proverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward, and if reservations are made only on the ground of economic considerations, an untenable situation may arise even in sectors which are recognised as socially and educationally advanced there are large pockets of poverty. In this country except for a small percentage of the population the people are generally poor — some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they are bound to be poor. His chief concern is, therefore, to determine whether the class or group is socially and educationally backward. Though the two words ‘socially’ and ‘educationally’ are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced itis generally also socially advanced because of the reformative effect of education on that class. The words “advanced” and “backward” are only relative terms — there being several layers or strata of classes, hovering between “advanced” and “backward”, and the difficult task is which class can be recognised out of these several layers as been socially and educationally backward.”

• In M. Thomas, provisions of the Kerala State and Subordinate Services Rules, 1958 were in question, where Rule 13A required every employee, to be promoted in subordinate services, to clear a test within two years of promotion, but it gave SC/ST candidates an extension of two more years. Later, Rule 13AA was added that enabled the State Government to grant more time to SC/ST candidates to pass the test for promotional posts apart from the initial four years. The main issue was as to whether the said Rule 13-AA was offending Article 16(1) and 16(2) of the Constitution. In this regard, the following observations of this Court become relevant with emphasis on economic criteria: –

A.N. Ray, C.J.

“44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of scheduled castes and tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.

K.K. Mathew, J. 

64. It would follow that if we want to give equality of opportunity for employment to the members of the scheduled castes and scheduled tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court when it makes a decision as the Court also is ‘State’ within the meaning of Article 12 and makes law even though

“interstitially from the molar to the molecular”. I have explained at some length the reason why Court is ‘State’ under Article 12 in my judgment in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala.

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