# JANHIT ABHIYAN v. UNION OF INDIA

- **Citation:** [2022] 14 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2022-11-07
- **Bench:** Uday Umesh Lalit, Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi, J.B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/janhit-abhiyan-v-union-of-india-35733
- **Pages:** 409

## Headnote

Constitution (One Hundred and Third Amendment) Act, 2019
- Challenge to - Vide said amendment, Arts. 15 and 16 of the
Constitution were amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby,
the State was empowered, inter alia, to provide for a maximum of ten
per cent reservation for "the economically weaker sections" (EWS)
of citizens other than "the Scheduled Castes", "the Scheduled
Tribes" and the non-creamy layer of "the Other Backward Classes"
- The amendment did not mandate but enabled reservation for EWS
and prescribed a ceiling limit of ten per cent - Challenge to said
amendment essentially on three-fold grounds: first, that making of
special provisions including reservation in education and employment
on the basis of economic criteria is entirely impermissible and offends
the basic structure of the Constitution; second, that in any case,
exclusion of socially and educationally backward classes i.e., SCs,
STs and non-creamy layer OBCs from the benefit of the special
provisions for EWS is inexplicably discriminatory and destroys the
basic structure of the Constitution; and third, that providing for ten
per cent additional reservation directly breaches the fifty per cent
ceiling of reservations already settled by decisions of Supreme Court
and hence, results in unacceptable abrogation of the Equality Code
which, again, destroys the basic structure of the Constitution -
Constitution (One Hundred and Third Amendment) Act, 2019 -
Validity of - Held (per 3:2 majority) (Majority opinion contained in
separate judgments rendered by Dinesh Maheshwari, Bela M.
Trivedi and J.B. Pardiwala, JJ.) : Valid - Held (per Dinesh
Maheshwari, J.): Reservation is an instrument of affirmative action
by the State so as to ensure all-inclusive march towards the goals of
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an egalitarian society while counteracting inequalities; it is an
instrument not only for inclusion of socially and educationally
backward classes to the mainstream of society but, also for inclusion
of any class or section so disadvantaged as to be answering the
description of a weaker section - In this background, reservation
structured singularly on economic criteria does not violate any
essential feature of the Constitution and does not cause any damage
to the basic structure of the Constitution - Exclusion of the classes
covered by Arts.15(4), 15(5) and 16(4) from getting the benefit of
reservation as economically weaker sections, being in the nature of
balancing the requirements of non-discrimination and compensatory
discrimination, does not violate Equality Code and does not in any
manner cause damage to the basic structure of the Constitution -
Reservation for economically weaker sections of citizens up to ten
per cent in addition to the existing reservations does not result in
violation of any essential feature of the Constitution and does not
cause any damage to the basic structure of the Constitution on
account of breach of the ceiling limit of fifty per cent because, that
ceiling limit itself is not inflexible and in any case, applies only to
reservations envisaged by Arts.15(4), 15(5) and 16(4) of the
Constitution - The 103rd Constitution Amendment cannot be said to
breach the basic structure of the Constitution by permitting the State
to make special provisions, including reservation, based on
economic criteria or by permitting the State to make special provisions
in relation to admission to private unaided institutions or in excluding
the SEBCs/OBCs/SCs/STs from the scope of EWS reservation - Held
(per Bela M. Trivedi, J.) (Concurring with Dinesh Maheshwari, J.):
The impugned amendment enabling the State to make special
provisions for the "economically weaker sections" of the citizens
other than the scheduled castes/schedules tribes and socially and
educationally backward classes of citizens, is required to be treated
as an affirmative action on t

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 [2022] 14 S.C.R. 1
1
JANHIT ABHIYAN
v.
UNION OF INDIA
(Writ Petition (Civil) No. 55 of 2019)
NOVEMBER 07, 2022
[UDAY UMESH LALIT, CJI, DINESH MAHESHWARI,
S. RAVINDRA BHAT, BELA M. TRIVEDI AND
J.B. PARDIWALA, JJ.]
Constitution (One Hundred and Third Amendment) Act, 2019
- Challenge to - Vide said amendment, Arts. 15 and 16 of the
Constitution were amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby,
the State was empowered, inter alia, to provide for a maximum of ten
per cent reservation for "the economically weaker sections" (EWS)
of citizens other than "the Scheduled Castes", "the Scheduled
Tribes" and the non-creamy layer of "the Other Backward Classes"
- The amendment did not mandate but enabled reservation for EWS
and prescribed a ceiling limit of ten per cent - Challenge to said
amendment essentially on three-fold grounds: first, that making of
special provisions including reservation in education and employment
on the basis of economic criteria is entirely impermissible and offends
the basic structure of the Constitution; second, that in any case,
exclusion of socially and educationally backward classes i.e., SCs,
STs and non-creamy layer OBCs from the benefit of the special
provisions for EWS is inexplicably discriminatory and destroys the
basic structure of the Constitution; and third, that providing for ten
per cent additional reservation directly breaches the fifty per cent
ceiling of reservations already settled by decisions of Supreme Court
and hence, results in unacceptable abrogation of the Equality Code
which, again, destroys the basic structure of the Constitution -
Constitution (One Hundred and Third Amendment) Act, 2019 -
Validity of - Held (per 3:2 majority) (Majority opinion contained in
separate judgments rendered by Dinesh Maheshwari, Bela M.
Trivedi and J.B. Pardiwala, JJ.) : Valid - Held (per Dinesh
Maheshwari, J.): Reservation is an instrument of affirmative action
by the State so as to ensure all-inclusive march towards the goals of
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[2022] 14 S.C.R.
an egalitarian society while counteracting inequalities; it is an
instrument not only for inclusion of socially and educationally
backward classes to the mainstream of society but, also for inclusion
of any class or section so disadvantaged as to be answering the
description of a weaker section - In this background, reservation
structured singularly on economic criteria does not violate any
essential feature of the Constitution and does not cause any damage
to the basic structure of the Constitution - Exclusion of the classes
covered by Arts.15(4), 15(5) and 16(4) from getting the benefit of
reservation as economically weaker sections, being in the nature of
balancing the requirements of non-discrimination and compensatory
discrimination, does not violate Equality Code and does not in any
manner cause damage to the basic structure of the Constitution -
Reservation for economically weaker sections of citizens up to ten
per cent in addition to the existing reservations does not result in
violation of any essential feature of the Constitution and does not
cause any damage to the basic structure of the Constitution on
account of breach of the ceiling limit of fifty per cent because, that
ceiling limit itself is not inflexible and in any case, applies only to
reservations envisaged by Arts.15(4), 15(5) and 16(4) of the
Constitution - The 103rd Constitution Amendment cannot be said to
breach the basic structure of the Constitution by permitting the State
to make special provisions, including reservation, based on
economic criteria or by permitting the State to make special provisions
in relation to admission to private unaided institutions or in excluding
the SEBCs/OBCs/SCs/STs from the scope of EWS reservation - Held
(per Bela M. Trivedi, J.) (Concurring with Dinesh Maheshwari, J.):
The impugned amendment enabling the State to make special
provisions for the "economically weaker sections" of the citizens
other than the scheduled castes/schedules tribes and socially and
educationally backward classes of citizens, is required to be treated
as an affirmative action on the part of the Parliament for the benefit
and for advancement of the economically weaker sections of the
citizens - Treating economically weaker sections of the citizens as a
separate class would be a reasonable classification, and cannot be
termed as an unreasonable or unjustifiable classification, much less
a betrayal of basic feature or violative of Art.14 - Just as equals
cannot be treated unequally, unequals also cannot be treated equally
- Treating unequals as equals would as well offend the doctrine of
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equality enshrined in Arts.14 and 16 of the Constitution - The
impugned amendment creates a separate class of "economically
weaker sections of the citizens" from the general/unreserved class,
without affecting the special rights of reservations provided to the
Scheduled Caste/Scheduled Tribe and backward class of citizens
covered under Art.15(4), 15(5) and 16(4) - Therefore, their exclusion
from the newly created class for the benefit of the "economically
weaker sections of the citizens" in the impugned amendment cannot
be said to be discriminatory or violative of the equality code - Such
amendment could certainly be not termed as shocking,
unconscionable or unscrupulous travesty of the quintessence of
equal justice - The limitations- substantive or procedural - imposed
on the exercise of constituent power of the State under Art.368 could
not be said by any stretch of imagination, to have been disregarded
by the Parliament - Neither the procedural limitation i.e. the mode
of exercise of the amending power nor the substantive limitation i.e.
the restricted field has been disregarded, which otherwise would
invalidate the impugned amendment - What is visualised in the
Preamble and what is permissible both in Part-III and Part-IV of the
Constitution cannot be said to be violative of the basic structure or
basic feature of the Constitution - In absence of any obliteration of
any of the constitutional provisions or any alteration or destruction
in the existing structure of equality code or in the basic structure of
the Constitution, neither the width test nor the identity test as
propounded in Kesavananda case can be said to have been violated
in the impugned Amendment - Accordingly, the challenge to the
constitutional validity of the 103rd Amendment fails, and the validity
thereof is upheld - However, there is a need to revisit the system of
reservation in the larger interest of the society as a whole, as a step
forward towards transformative constitutionalism - If a time limit is
prescribed, for the special provisions in respect of the reservations
and representations provided in Arts. 15 and 16 of the Constitution,
it could be a way forward leading to an egalitarian, casteless and
classless society - Held (per J.B. Pardiwala, J.) (Concurring with
Dinesh Maheshwari, J.): Reservation is not an end but a means - a
means to secure social and economic justice - The longstanding
development and the spread of education have resulted in tapering
the gap between the classes to a considerable extent - As larger
percentages of backward class members attain acceptable standards
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of education and employment, they should be removed from the
backward categories so that the attention can be paid toward those
classes which genuinely need help - In such circumstances, it is
very much necessary to take into review the method of identification
and the ways of determination of backward classes, and also,
ascertain whether the criteria adopted or applied for the
classification of backward is relevant for today's conditions -
Reservation should not continue for an indefinite period of time so
as to become a vested interest - The impugned amendment is valid
and in no manner alters the basic structure of the Constitution -
Held (per S. Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and
himself) (Minority opinion): The States' compelling interest to fulfil
the objectives set out in the Directive Principles, through special
provisions on the basis of economic criteria, is legitimate - That
reservation or special provisions have so far been provided in favour
of historically disadvantaged communities, cannot be the basis for
contending that other disadvantaged groups who have not been
able to progress due to the ill effects of abject poverty, should remain
so and the special provisions should not be made by way of affirmative
action or even reservation on their behalf - Therefore, special
provisions based on objective economic criteria (for the purpose of
Art.15), is per se not violative of the basic structure - However, the
framework in which it has been introduced by the impugned
amendment - by excluding backward classes -- is violative of the
basic structure - The impugned amendment and the classification it
creates, is arbitrary, and results in hostile discrimination of the
poorest sections of the society that are socially and educationally
backward, and/or subjected to caste discrimination - Insertion of
Art.15(6) and 16(6) is struck down, and is held to be violative of the
equality code, particularly the principle of non-discrimination and
non-exclusion which forms an inextricable part of the basic structure
of the Constitution - ss.2 and 3 of the Constitution (One Hundred
and Third Amendment) Act, 2019 which inserted clause (6) in Art.15
and clause (6) in Art.16, respectively, are unconstitutional and void
on the ground that they are violative of the basic structure of the
Constitution - Constitution of India - Arts. 15 and 16.
Doctrines/Principles - Doctrine of basic structure - Vide
Constitution (One Hundred and Third Amendment) Act, 2019, Arts.
15 and 16 of the Constitution was amended by adding two new
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clauses viz., clause (6) to Art.15 with Explanation and clause (6) to
Art.16; and thereby, the State was empowered, inter alia, to provide
for a maximum of ten per cent reservation for "the economically
weaker sections" (EWS) of citizens other than "the Scheduled
Castes", "the Scheduled Tribes" and the non-creamy layer of "the
Other Backward Classes" - The amendment did not mandate but
enabled reservation for EWS and prescribed a ceiling limit of ten
per cent - Whether the doctrine of basic structure could be invoked
for laying a challenge to the 103rd Amendment - Held (per Dinesh
Maheshwari, J.): No - Using the doctrine of basic structure as a
sword against the amendment in question and thereby to stultify State's
effort to do economic justice as ordained by the Preamble and DPSP
and, inter alia, enshrined in Articles 38, 39 and 46 of the Constitution
cannot be countenanced - Provisions contained in Arts. 15 and 16
of the Constitution, providing for reservation by way of affirmative
action, being of exception to the general rule of equality, cannot be
treated as a basic feature - Moreover, even if reservation is one of
the features of the Constitution, it being in the nature of enabling
provision only, cannot be regarded as an essential feature of that
nature whose modulation for the sake of other valid affirmative
action would damage the basic structure of the Constitution -
Constitution (One Hundred and Third Amendment) Act, 2019.
Constitution of India - Art.368 - Power to amend the
Constitution availing under Art.368 - Held (Per Dinesh
Maheshwari, J.): Is recognized as a constituent power and is subject
to various safeguards intrinsic to Art.368, including the procedural
safeguards.
Constitution of India - Art.368 - Doctrine of Basic Structure
and Constitutional Amendments - Discussed - Held (Per Dinesh
Maheshwari, J.): The power to amend the Constitution essentially
vests with the Parliament and when a high threshold and other
procedural safeguards are provided in Art.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 case, 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
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- Again, as put in Kesavananda case, 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 - 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 - If any constitutional amendment moderately abridges
or alters the equality principles, it cannot be said to be a violation
of the basic structure.
Doctrines / Principles - Doctrine of equality - Reasonable
classification - Discussed - Held (Per Dinesh Maheshwari, J.):
Equals must be treated equally while unequals need to be treated
differently - A classification to be valid must 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 - 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
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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 - Democracy - Constitution of India -
Arts. 14 to 18.
Reservation - Affirmative Action by 'Reservation': Exception
to the General Rule of Equality - Affirmative action by way of
compensatory discrimination - Held (Per Dinesh Maheshwari, J.):
In a 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 - The 'doctrine of equality', as
collectively enshrined in Arts.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 evolution of what may
be termed as 'reservation jurisprudence' - Reservation
jurisprudence - Constitution of India - Arts. 14 to 18.
Reservation - For economically weaker sections - Economic
Disabilities and Affirmative Action - Held (Per Dinesh Maheshwari,
J.): 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
- 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 said segment could not 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 - In
the State's efforts of ensuring all-inclusive socio-economic justice,
there cannot be competition of claims for affirmative action based
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on disadvantages in the manner that one disadvantaged section
would seek denial of affirmative action for another disadvantaged
section - Justice - Socio-economic justice.
Doctrines /Principles - Principle of "Distributive Justice" -
Discussed - Mandate of the Constitution - Held (Per Dinesh
Maheshwari, J.): Principle of "Distributive Justice" is a bedrock of
the provisions like Art.46 as also Arts. 38 and 39 of the Constitution
- The mandate of the Constitution to the State is to administer
distributive justice; and in the law-making process, the concept of
distributive justice connotes, inter alia, the removal of economic
inequalities - There could be different methods of distributive justice
- The philosophy of distributive justice is of wide amplitude which,
inter alia, reaches to the requirements of removing economic
inequalities; and then, it is not confined to one class or a few classes
of the disadvantaged citizens - The wide spectrum of distributive
justice mandates promotion of educational and economic interests
of all the weaker sections, in minimizing the inequalities in income
as also providing adequate means of livelihood to the citizens - In
this commitment, leaving one class of citizens to struggle because of
inequalities in income and want of adequate means of livelihood
may not serve the ultimate goal of securing all-inclusive socioeconomic justice - Constitution of India - Art.46, 38 and 39 - Words
and Phrases - "Distributive Justice".
Constitution of India - Doctrine of Basic Structure and
Constitutional Amendments - Held (Per Dinesh Maheshwari, J.):
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 - Doctrine
of basic structure cannot be readily applied to every constitutional
amendment - Supreme 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 P.
Sambhamurthy cases); free and fair elections (Indira Nehru Gandhi
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case); plenary jurisdiction of constitutional Courts (L. Chandra
Kumar case); and independence of judiciary (NJAC Judgment case)
- Most of the other attempts to question the constitutional amendments
have met with disapproval of the Court even when there had been
departure from the existing constitutional provisions and scheme.
Constitution of India - Interplay of amending powers of the
Parliament and judicial review by the Constitutional Court over such
exercise of amending powers - Reason for minimal interference by
Supreme Court in the constitutional amendments - Held (Per Dinesh
Maheshwari, J.): 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 Art.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.
Reservation - Compensatory discrimination - Exclusion of
Socially and Educationally Backward Classes (SEBCs) / Other
Backward Classes (OBCs) / Scheduled Castes (SCs)/ Scheduled
Tribes (STs) from Economically Weaker Sections (EWS) reservation
- Held (Per Dinesh Maheshwari, J.): Compensatory discrimination,
wherever applied, is exclusionary in character and could acquire
its worth and substance only by way of exclusion of others - Such
differentiation cannot be said to be legally impermissible; rather it
is inevitable - Exclusion of Socially and Educationally Backward
Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled
Castes (SCs)/ Scheduled Tribes (STs) from Economically Weaker
Sections (EWS) reservation is compensatory discrimination of the
same species as is exclusion of general EWS from SEBCs/OBCs/
SCs/STs reservation.
Reservation - Reservation by affirmative action - Held (Per
Dinesh Maheshwari, J.): Economic backwardness of citizens can
also be the sole ground for providing reservation by affirmative
action.
Equality - Indian constitutional jurisprudence - Equality
clause in the Constitution - Held (Per Dinesh Maheshwari, J.):
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Guarantee of equality is substantive and not a mere formalistic
requirement - Equality is at the nucleus of the unified goals of social
and economic justice.
Reservation - Exception to the general rule of equality - Held
(Per Dinesh Maheshwari, J.): For the socio-economic structure which
the law in our democracy seeks to build up, the requirements of real
and substantive equality call for affirmative action - 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 Dr.
Jaishri Patil case - However, reservation 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.
Constitution of India - Art.46 - Phraseology of Art. 46 -
Expression "other weaker sections" in Art.46 - Meaning of - Held
(Per Dinesh Maheshwari, J.): The broader expression "other weaker
sections" in Art.46 is disjointed from the particular weaker sections
(Scheduled Castes and Scheduled Tribe); and is not confined to
only those sections who are similarly circumstanced to SCs and STs
- It cannot be said that the expression "other weaker sections" is
not to be given widest possible meaning or that this expression refers
only to those weaker sections who are similarly circumstanced to
SCs and STs - Reservation.
Constitution of India - Amendment to - Scope for judicial
review -Held (per Bela Trivedi, J.): Any amendment made by the
Parliament is open to judicial review and is liable to be interfered
with by the Court on the ground that it affects one or the other basic
feature of the Constitution.
Constitution of India - Amendment to - Challenge to, on
ground of being discriminatory - Held (per Bela Trivedi, J.): A
Constitutional amendment cannot be struck down as discriminatory
if the state of facts are reasonably conceived to justify it.
Constitution of India - Interpretation of - Distinction from
interpretation of statutes - Held (per J.B. Pardiwala, J.): If there is
an apparent or real conflict between two provisions of the
Constitution, it is to be resolved by applying the principle of
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harmonious construction - The rules of the interpretation of the
Constitution have to take into consideration the problems of
government, structure of a State, dynamism in operation, caution
about checks and balances, not ordinarily called for in the
interpretation of statutes.
Constitution of India - Amendment of - Scope and limitations
- Held (per J.B. Pardiwala, J.): Since the power to amend the
Constitution is a derivative power, the exercise of such power to
amend the Constitution is subject to two limitations, namely, the
doctrine of Basic Structure and lack of legislative competence - If
an amendment is to be struck down under the 'basic structure'
formulation, the central principle of these inter-related provisions
should be at threat - A mere violation of one of the enabling
provisions would not be of much consequence under the doctrine of
Basic Structure as long as such violation does not infringe upon the
central thesis of equality - Redress for marginal encroachment
cannot be found under the 'Basic Structure Doctrine' - Doctrines/
Principles - Doctrine of 'Basic Structure'.
Constitution (One Hundred and Third Amendment) Act, 2019
- Challenge to - Vide said amendment, Arts. 15 and 16 of the
Constitution was amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby,
the State was empowered, inter alia, to provide for a maximum of ten
per cent reservation for "the economically weaker sections" (EWS)
of citizens other than "the Scheduled Castes", "the Scheduled
Tribes" and the non-creamy layer of "the Other Backward Classes"
- Held (per J.B. Pardiwala, J.): The new concept of economic
criteria introduced by the impugned amendment for affirmative action
may go a long way in eradicating caste-based reservation - It may
be perceived as a first step in the process of doing away with castebased reservation.
Doctrines/ Principles - Doctrine of basic structure - Enabling
provision - Effect of - Held (per Ravindra Bhat, J. (for Uday Umesh
Lalit, CJI and himself): It is inaccurate to say that provisions that
enable, exercise of power, would not violate the basic structure of
the Constitution - The court's inquiry therefore, cannot stop at the
threshold, when an enabling provision is enacted - Its potential for
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violating the basic structure of the Constitution is precisely the power
it confers, on the legislature, or the executive.
Constitution of India - Judicial review of constitutional
amendments - Scope - Held (per Ravindra Bhat, J. (for Uday Umesh
Lalit, CJI and himself): Appropriate test or standard of judicial
review of constitutional amendments is not the same as in the case
of ordinary laws - In constitutional amendment judicial review, the
court would consider the history of the provision amended, or the
way the new provision impacts the identity, or character, or nature
of the Constitution.
Constitution of India - Fraternity - Relevance of - Held (per
Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): People
cannot be assured of Justice, Liberty or Equality, unless Fraternity
in one form or another, to some degree, is felt by individuals at each
level of our social order, and economic system - Weakening fraternity
therefore undermines justice, liberty, and equality - The value of
fraternity is as much a part of the equality code, and its facets -
equality of opportunity, the principle of non-discrimination and the
non-exclusionary principle, as it inextricably binds them with the
concepts of liberty and freedom.
Words and Phrases - "basic features" and "basic structure"
- Meaning of - Held (per Dinesh Maheshwari, J.): Basic structure
of the Constitution is the sum total of its essential features.
Words and Phrases - Words "other than" in Arts. 15(6) and
16(6) of the Constitution - If to be read as "in addition to", so as to
include SCs/STs/OBCs within Economically Weaker Sections (EWS)
- Held (per Dinesh Maheshwari, J.): The suggested construction is
plainly against the direct meaning of the exclusionary expression
"other than" as employed in, and for the purpose of, the said Arts.
15(6) and 16(6) - Constitution of India - Arts. 15(6) and 16(6).
Words and Phrases - "compensatory discrimination" and
"reservation jurisprudence" - Discussed (per Dinesh Maheshwari,
J.).
Words and Phrases - "economically weaker sections of
citizens" - Meaning of - Discussed (per Dinesh Maheshwari, J.).
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Equality - Real and substantive equality - Economic justice
vis-à-vis social justice - Discussed (per Dinesh Maheshwari, J.).
In the instant writ petitions and other proceedings the
following three questions came up for consideration:-
Question 1: Whether the 103rd Constitution Amendment
can be said to breach the basic structure of the Constitution by
permitting the State to make special provisions, including
reservation, based on economic criteria?
Question 2: Whether the 103rd Constitution Amendment
can be said to breach the basic structure of the Constitution by
permitting the State to make special provisions in relation to
admission to private unaided institutions?
Question 3: Whether the 103rd Constitution Amendment
can be said to breach the basic structure of the Constitution in
excluding the SEBCs/OBCs/SCs/STs from the scope of EWS
reservation?
Disposing of the Writ petitions and other proceedings, the
Court
HELD:
Per COURT (3:2 majority)
In view of the decision rendered by the majority consisting
of Hon'ble Mr. Justice Dinesh Maheshwari, Hon'ble Ms. Justice
Bela M. Trivedi and Hon'ble Mr. Justice J.B. Pardiwala, the
challenge raised to 103rd Amendment to the Constitution fails
and the decision rendered by Hon'ble Mr. Justice S. Ravindra
Bhat remains in minority. [Para 2]
Per DINESH MAHESHWARI, J.
HELD: 1. The power to amend the Constitution availing
under Article 368 has been a significant area of the development
of Constitutional Law in our country. This power, recognised as a
constituent power, is subject to various safeguards which are
intrinsic to Article 368, including the procedural safeguards. [Para
34][96-D-E]
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2. 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. [Paras 39.4, 39.5][124-D-E]
3. 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, one has 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 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. 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. [Para
44][127-A-D]
4. 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
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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. [Para 48][129-A-C]
5. 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 one may term
as 'reservation jurisprudence'. However, 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. [Paras 50, 56][129-F-G; 130-A; 133-D]
6. In almost all references to real and substantive equality,
the concept of economic justice has acquired equal focus alongside
the principles of social justice. 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. 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. 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
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Preamble as also the text and texture of the provisions contained
in Part III and Part IV. [Paras 64, 65, 67][138-F, G; 139-A, E-F]
7. 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.
In Kesavananda case, 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 socioeconomic 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. [Paras 69, 70][140-B, F-H; 141A-B]
8. On a contextual reading, it could reasonably be culled
out that the observations, wherever occurring in the decisions of
this Court, to the effect that reservation cannot be availed only
on economic criteria, were to convey the principle that to avail
the benefit of this affirmative action under Articles 15(4) and/or
15(5) and/or 16(4), as the case may be, the class concerned ought
to be carrying some other disadvantage too and not the economic
disadvantage alone. The said decisions cannot be read to mean
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that if any class or section other than those covered by Articles
15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only
due to economic conditions, the State can never take affirmative
action qua that class or section. In view of the principles discernible
from the decisions as also the background aspects, including the
avowed objective of socio-economic justice in the Constitution,
the observations of this Court in the past decisions that
reservations cannot be claimed only on the economic criteria,
apply only to class or classes covered by or seeking coverage
under Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court
has not put a blanket ban on providing reservation for other
sections who are disadvantaged due to economic conditions.
[Paras 72, 73][156-D-G]
9. The mandate of the Constitution to the State is to
administer distributive justice; and in the law-making process,
the concept of distributive justice connotes, inter alia, the removal
of economic inequalities. There could be different methods of
distributive justice; and it comprehends more than merely
achieving the lessening of inequalities by tax or debt relief
measures or by regulation of contractual transactions or
redistribution of wealth, etc. It is more than evident that the
philosophy of distributive justice is of wide amplitude which, inter
alia, reaches to the requirements of removing economic
inequalities; and then, it is not confined to one class or a few
classes of the disadvantaged citizens. In other words, the wide
spectrum of distributive justice mandates promotion of educational
and economic interests of all the weaker sections, in minimizing
the inequalities in income as also providing adequate means of
livelihood to the citizens.