Parliament of India passed Constitution (One Hundred and Third Amendment) Act, 2019 which came into effect on 14 Jan 2019. Through this amendment, Parliament amended Article 15 and 16 of the Constitution of India by adding two new clauses viz., clause (6) to Article 15with Explanation and clause (6) to Article 16; and thereby, the State has been empowered, to provide for a maximum of ten per cent reservation for “the economically weaker sections” of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes”.
But said amendment was challenged and one of the argument for challenge was that t the exclusion of SEBCs/OBCs/SCs/STs from the benefit of EWS reservation violates the basic framework of the Constitution.
According to the petitioners, the classes covered by Articles 15(4), 15(5) and 16(4) are comprising of the poorest of the poor and hence, keeping them out of the benefit of EWS reservation is an exercise conceptionally at conflict with the constitutional norms and principles.
The Court’s Answer
The amendment in question introduces clause (6) to both the Articles, i.e., 15 and 16. Clause (6) of Article 15 starts with a non obstante preposition, making it operative notwithstanding anything otherwise contained in other clauses of Article 15 or Article 19(1)(g) or Article 29(2).
Sub-clause (a) of clause (6) of Article 15 enables the State to make any special provision for the advancement of any economically weaker sections of citizens and sub-clause (b) thereof provides for making a maximum of ten per cent. reservation in the matter of admission to educational institutions, public or private, barring minority educational institutions.
Similarly, clause (6) of Article 16 also starts with a non obstante preposition, making it operative notwithstanding anything otherwise contained in other clauses of that Article and enables the State to make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens to a maximum of ten per cent.
As per the Explanation to clause (6) of Article 15, “economically weaker sections” for the purpose of both these Articles 15 and 16 shall be such as to be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.
However, when both these clauses exclude from their ambit those classes who are already covered under Articles 15(4), 15(5) and 16(4), that is to say, the benefits under these amended provisions do not avail to Scheduled Castes, Scheduled Tribes, and Other Backward Classes (Non-creamy layer), the ground of challenge is that keeping the socially and educationally backward classes out of Articles 15(6) and 16(6) is directly at conflict with the constitutional scheme and is of inexplicably hostile discrimination.
The court said that, there is a definite logic in this exclusion; rather, this exclusion is inevitable for the true operation and effect of the scheme of EWS reservation. In identifying the classes of persons for the purpose of Articles 15(4), 15(5) and 16(4) of the Constitution i.e., Other Backward Classes (Non-creamy layer), Scheduled Castes and Scheduled Tribes, the social and educational backwardness predominantly figures but then, it needs no great deal of research to demonstrate that the poverty too is thickly associated with these factors.
It cannot be denied that poverty is a material factor taken into consideration along with caste, residence, occupation or other dominant feature while recognising any particular class/caste’s entitlement to the affirmative action by way of reservation enabled in terms of Articles 15(4), 15(5) and 16(4).
In that scenario, if the Parliament has considered it proper not to extend those classes covered by the existing clauses of Articles 15(4), 15(5) and 16(4) another benefit in terms of affirmative action of reservation carved out for other economically weaker sections, there is no reason to question this judgment of the Parliament.
Obviously, for the reason that those classes are already provided with affirmative action in terms of reservation, in the wisdom of the Parliament, there was no need to extend them or any of their constituents yet another benefit in the affirmative action of reservation carved out for other economically weaker sections.
The moment there is a vertical reservation, exclusion is the vital requisite to provide benefit to the target group. In fact, the affirmative action of reservation for a particular target group, to achieve its desired results, has to be carved out by exclusion of others. The same principle has been applied for the affirmative action of reservation qua the groups of SEBCs, OBCs, SCs, and STs. Each of them takes reservation in their vertical column in exclusion of others.
But for this exclusion, the purported affirmative action for a particular class or group would be congenitally deformative and shall fail at its inception. Therefore, the claim of any particular class or section against its exclusion from the affirmative action of reservation in favour of EWS has to be rejected.
Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory discrimination of the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.
Such differentiation cannot be said to be legally impermissible; rather it is inevitable. When that be so, clamour against exclusion in the present matters could only be rejected as baseless.
The fact that exclusion is innate in compensatory discrimination could further be exemplified by the fact that in Indra Sawhney, this Court excluded the creamy layer of OBCs from the benefit of reservation.
In the complex set-up of formal equality on one hand (which debars discrimination altogether) and real and substantive equality on the other (which permits compensatory discrimination so as to upset the disadvantages), exclusion is as indispensable as the compensatory discrimination itself is.
In fact, ‘creamy layer’ principle itself was applied to make a true compact of socially and educationally backward class. Two features strikingly come to fore with creamy layer principle. One is that to make a real compact of socially and educationally backward class, economic factors play an equally important role; and then, the exclusionary principle applies therein too.
These two features, when applied to the present case, make it clear that the use of economic criteria is not contra-indicated for the exercise of reservation, rather it is imperative; and second, to make the exercise of compensatory discrimination meaningful so as to achieve its desired result, exclusion of every other class/person from the target group is inevitable.
In Indra Sawhney, in the context of the question as to whether Article 16(4) is exhaustive of the concept of reservation in favour of backward classes, Jeevan Reddy, J. made the following, amongst other, observations: –
“Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16.”
The above observations make it absolutely clear that so far as the classes availing the benefit of compensatory discrimination in the form of reservation under Article 16(4) are concerned, no further classification or special treatment is to be given to them. A fortiori, they cannot make a claim to intrude into other compensatory discrimination in favour of another deserving group.
Janhit Abhiyan v. Union of India (2023)
 Indra Sawhney v. Union of India (1992)