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 had 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”.
The amendment does not mandate but enables reservation for EWS and prescribes a ceiling limit of ten per cent.
Challenges to the Amendment
But the said amendment was challenged in Supreme Court, the challenge to the amendment were 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 these 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 the decisions of Supreme Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution.
Submission of the Parties
Read- The Arguments of Counsels in EWS Quota Case Hearing
PROF. MADAN GOPAL SUBMITTED THAT,
- Article 38 of the Constitution which enjoins the State to secure and protect “a social order in which justice, social, economic and political shall inform the institutions of the national life”, stressed that it was to ensure this social justice and the ethos of the Constitution that special provisions were envisioned under Article 15(4) and reservations in employment were provided under Article 16(4).
- The people in the lowest strand of social hierarchy were ostracized and stigmatised from public life and were deprived of basic liberties and equality. It was to address these historical inequalities that, as a vehicle of positive discrimination, the socially oppressed sections were provided reservations.
Therefore, the idea of ensuring social equality and justice was a congenital feature of the Constitution shaping its basic structure.
- The amendment in question has introduced privileged sections of society as economically weaker who were never subjected to any discrimination, whether historically or otherwise; and were not backward, socially and educationally.
- The non obstante clause in Articles 15(6) and 16(6), while granting reservation to already privileged and adequately represented class of citizens, has vetoed the pre-requisite of being socially and educationally backward or inadequately represented, which was the kernel to philosophy of reservation.
The Constitution puts forth social ‘and’ educational backwardness and not social ‘or’ educational backwardness as a criterion to determine positive discrimination in favour of a class. This foundation of social justice for historically marginalised and disadvantaged people is completely obliterated by the amendment in question, which removes that criterion.
- The purpose of positive discrimination was to put an end to monopoly of certain classes and create an inclusive society so as to ensure equality of opportunity to the marginalised sections.
However, the amendment in question creates a perpetual monopoly by providing reservation to that section of population whose identification is imprecise and is based on their individual traits more so, when these classes have been enjoying and are still enjoying control over resources and public employment.
SENIOR ADVOCATE MEENAKSHI ARORA SUBMITTED THAT,
- Economic status is transient in nature and would keep on changing unlike the status of backwardness, which is based on age-old caste practices and oppressions that are immutable. The newly protected class under the amendment in question lacks historic and continuing lack of adequate representation caused by structural or institutional barriers, so as to be eligible for positive discrimination.
- Further, the reservation is intended to be operative only until there is inadequacy in representation of those classes and not in perpetuity. However, the present amendment prescribes essentially no end to reservation as there would always be people poorer than others.
- Even if this Court were to accept poverty and income as valid criteria for the grant of reservation then too, the amendment to the extent of ‘other than the class mentioned in clause (4) [and (5)]’ should be severed from Articles 15(6) and 16(6) so as to include the poor of all classes without any exclusion or discrimination.
SENIOR ADVOCATE SANJAY PARIKH-
Extensively relying on Constitution assembly debates, the counsel submitted that,
- Assembly was of the clear opinion that the word ‘backward’ should precede ‘class of people’. Therefore, despite being aware of the rampant poverty in the country, the focus of reservations was predominantly on the social stigma attached to the group. Reservation in public employment was given because the framers wanted the backward classes to share State power and for that matter, they had to be provided equal opportunity.
- The criteria for ‘backwardness’ was always ‘social’ in nature and ‘economic’ backwardness was never accepted as the sole criteria. Placing reliance on the decision of the Court in Indra Sawhney, he has contended that by the majority of 8:1, it was held that economic criteria cannot be the sole basis to grant reservation under Article 16.
- Under Article 340, the first Backward Classes Commission laid down 22 parameters for the identification of a backward class. The amendment in question does not have any such machinery employed within its ambit for the identification of population who would fall under the EWS category.
Relying upon the census report, he has submitted that the population who would fall under the EWS would be around five per cent., and providing ten per cent. of reservation for such a small population, more so to the forward class, is manifestly arbitrary and fraud on the Constitution. Further, this positive discrimination is taking away the rights from rest of the population.
SENIOR COUNSEL, MR. SALMAN KHURSHID
Reservation formed a special part of affirmative action. It is within the larger affirmative action circle that reservation finds its place. Drawing analogy with countries like U.S.A., Israel and Germany, the counsel has submitted that indeed affirmative action can be an answer, but it is not the only answer. There are, therefore, many ways of addressing the issue of economic disadvantage other than reservation, as has been done by these countries.
Attorney General for India, K.K. Venugopal submitted that,
- 103rd Amendment does not violate the basic structure of the Constitution, rather fosters it. Second, the exclusion of those classes already covered under Articles 15(4) and 16(4) from the proposed reservation did not breach the Equality Code. Third, the fifty per cent. limit is not a sacrosanct rule. Lastly, the benefit to EWS with respect to admission in private aided or unaided educational institutions does not violate Article 14, as has been settled by this Court.
- Over the years, repeatedly recognised that it was desirable to use poverty as the only basis for affirmative action and that it is poverty or economic deprivation that results in social and educational backwardness.
- The exclusion of already covered classes does not violate Equality Code as the EWS among the SC, ST and OBC communities are already enjoying the benefit of affirmative action in their favour by way of reservations in educational institutions and public employment, seats in Legislature, etc., to attain an equal status – socially and educationally.
The Court’s Findings
DINESH MAHESHWARI, J.
- According to the principal part of challenge, the Equality Code, an essential feature of the Constitution, gets abrogated because of reservation structured only on economic criteria and because of exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from its benefit. Therefore, the entire challenge is essentially required to be examined on the anvil of the doctrine of basic structure.
- 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.
- The doctrine of basic structure is not so open-ended that it would be readily applied to every constitutional amendment. Quite to the opposite, as exemplified by the decisions, the Court has applied the same only against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution.
- 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.
- 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.
- 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 Preamble as also the text and texture of the provisions contained in Part III and Part IV.
- The expression ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an expression of hard realities. 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’.
- 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.
- On a contextual reading of previous decisions of supreme court on equality, 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 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.
- The petitioners’ emphasis on the phraseology of Article 46 of the Constitution of India; that measures contemplated therein are supposed to be taken in favour of SCs/STs and such other weaker sections who are “similarly circumstanced to SCs/STs”. The submission has been that this provision cannot be invoked for reservation in favour of any economically weaker section that is not carrying other attributes which could place it at par with, or akin to, SCs/STs.
This line of arguments is based on too narrow and unacceptably restricted reading of the text of Article 46 while totally missing on its texture; and suffers from at least three major shortcomings-
The first and the apparent shortcoming is that this line of arguments not only goes off at a tangent but also misses out the important principle of “Distributive Justice”, which is a bedrock of the provisions like Article 46 as also Articles 38 and 39 of the Constitution of India.
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.
The philosophy of distributive justice is of wide amplitude which, inter alia, reaches to the requirements of removing economic inequalities.
In fact, the argument that the State may adopt any poverty alleviation measure but cannot provide reservation for EWS by way of affirmative action proceeds on the assumption that the affirmative action of reservation in our constitutional scheme is itself reserved only for SEBCs/OBCs/SCs/STs in view of the existing text of Articles 15(4), 15(5) and 16(4) of the Constitution. Such an assumption is neither valid nor compatible with our constitutional scheme.
This line of argument is wanting on the fundamental constitutional objectives, with the promise of securing ‘JUSTICE, social, economic and political’ for ‘all’ the citizens; and to promote FRATERNITY among them ‘all’.
Thus viewed, the challenge to the amendment in question fails on the principle of distributive justice.
Constitution as living Organic Thing
The Constitution is recognised as a living organic thing to be required to meet the current needs and requirements. Ergo, the provisions of the Constitution cannot be put in a straitjacket.
Therefore, it cannot be said that the eclectic 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.
In the heading of Article 46, the chronology of the description of target groups for promotion of educational and economic interests is stated in reverse order than the contents of the provision. The heading signifies ‘Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections’ whereas the contents of the main provision are framed with the sentence ‘interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes’.
A simple reading of the heading together with the contents would make it clear that the broader expression “other weaker sections” in Article 46 is disjointed from the particular weaker sections (Schedule Castes and Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs.
“The challenge to the amendment in question on the ground that though the State could take all the relevant measures to deal with poverty and the disadvantages arising therefrom but, the affirmative action of reservation 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, is required to be rejected.
In any case, any legitimate effort of the State towards all-inclusive socio-economic justice, by way of affirmative action of reservation in support of economically weaker sections of citizens, who had otherwise not been given the benefit of this affirmative action, cannot be lightly interfered with by the Court.”
Challenge on exclusion of other classes
- 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.
- 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.
- 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.
- 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.
Challenge to crossing of the 50% ceiling of reservation
- The argument regarding the cap of fifty per cent. is based on all those decisions by this Court which were rendered with reference to the reservations existing before the advent of the amendment in question. The fifty per cent. ceiling proposition would obviously be applied only to those reservations which were in place before the amendment in question.
No decision of Supreme Court could be read to mean that even if the Parliament finds the necessity of another affirmative action by the State in the form of reservation for a section or class in need, it could never be provided. As noticed herein below, the decisions of this Court are rather to the contrary and provide that flexibility within which the Parliament has acted for putting in place the amendment in question.
- 50% ceiling limit, though held attached to the constitutional requirements, has not been held to be inflexible and inviolable for all times to come. Reasons for this are not far to seek. As mentioned hereinbefore, reservation by affirmative action is not having trappings of any such essential feature of the Constitution, collectively enumerated by Kesavananda and successive decisions, that its modulation with reference to any particular compelling reason or requirement could damage the basic structure of the Constitution.
- In another view of the matter, the prescription of ceiling limit of fifty per cent., being apparently for the benefit of general merit candidates, does not provide any justified cause to the candidates standing in the bracket of already available reservation to raise any grievance about extra ten per cent. reservation for the benefit of another section of society in need of affirmative action.
In any case, there is no question of violation of any such basic feature of the Constitution that the entire structure of equality of opportunity in Article 16 would collapse by this EWS reservation.
- There have been several suggestions during the course of arguments that while the existing reservations are class-specific, the impugned reservation is person-specific and even the eligibility factor that is of ‘economic weakness’, is itself uncertain, fortuitous and mutable. All these submissions have only been noted to be rejected in the context of the limited permissible challenge to the amendment in question on the doctrine of basic structure.
The identity of EWS Category
The question as to whether any particular section or person falls in or is entitled to stand within the class of ‘economically weaker sections of citizens’ may be a question to be determined with reference to the parameters laid down and indicators taken into consideration by the State.
Coupled with this, even the extent of reservation provided therein may also be a question to be determined with reference to the relevant analysis of the material data justifying a particular percentage.
In other words, the question as to whether any particular classification as economically weaker section is based on relevant data and factors as also the extent of reservation for that section could be the matters of consideration as and when arising but, for these and akin grounds, the constitutional amendment, moderately expanding the enabling power of the State, cannot be questioned.
As noticed from Kesavananda, the power to amend the Constitution can be used to reshape the Constitution to fulfil the obligation imposed on the State. Starting from the insertion of clause (4) to Article 15 by the Constitution (First Amendment) Act, 1951; moving on to the insertion of clause (4-A) to Article 16 by the Constitution (Seventy-seventh Amendment) Act, 1995 to the insertion of clause (4-B) to Article 16 by the Constitution (Eighty-first Amendment) Act, 2000 and further amendment of the said clause (4-A) by the Constitution (Eighty-fifth Amendment) Act, 2001;
yet further with the insertion of clause (5) to Article 15 by the Constitution (Ninety-third Amendment) Act, 2005; and lately with insertion of Articles 366(26-C) and 342-A by the Constitution (One Hundred and Second Amendment) Act, 2018, the Parliament has indeed brought about certain modulations, within the framework of the Constitution of India, to cater to the requirements of the citizenry with real and substantive justice in view.
In the same vein, if the Parliament has considered it fit to make provisions in furtherance of the objectives of socio-economic justice by the amendment in question for economically weaker sections, the amendment cannot be condemned as being violative of any of the basic features of the Constitution and thereby damaging the basic structure.
In the ultimate analysis, it is beyond doubt that 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, cannot be countenanced.
This is essentially for the reason that the provisions contained in Articles 15 and 16 of the Constitution of India, 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. Therefore, the doctrine of basic structure cannot be invoked for laying a challenge to the 103rd Amendment.
J. BELA M. TRIVEDI
Economic empowerment to the weaker sections of the society is the fundamental requirement for ensuring equality of status and to promote fraternity assuring dignity as visualised by the framers of our Constitution. And therefore any positive discrimination in favour of the weak or disadvantaged class of people by means of a valid classification has been treated as an affirmative action on the part of the State.
The Preamble to the Constitution and the Directive Principles of the State Policy give a positive mandate to the State and the State is obliged to remove inequalities and backwardness from the society.
As well settled, it must be presumed that the legislature understands and appreciates the needs of its own people. Its laws are directed to the problems made manifest by experience, and its discriminations are based on adequate norms. Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it.
J.B. PARDIWALA, J.
- When substantive equality is the avowed constitutional mandate, the State is obliged to provide a level playing field.
- The test for such reasonable classification is not necessarily, or much less exclusively, the social backwardness test of Article 15(4) and Article 16(4) resply.
- When Indra Sawhney (supra) read the necessity of excluding Creamy Layer from the ‘backward class’ in Article 16(4) – it took note of the events 42 years post the adoption of the Constitution. It is 30 years since the seminal judgment of Indra Sawhney. Time enough for the Parliament to feel the necessity of attending to another section of deprived classes.’
- Therefore, the 103rd Constitutional Amendment signifies the Parliament’s intention to expand affirmative action to hitherto untouched groups – who suffer from similar disadvantages as the OBCs competing for opportunities. If economic advance can be accepted to negate certain social disadvantages for the OBCs [Creamy Layer concept] the converse would be equally relevant.
- The exclusion in Articles 15(6) and 16(6) resply from the benefits of EWS measures is only of the “classes mentioned” in the Articles 15(4), 15(5) and 16(4) of the Constitution. The contention that the exclusion of these groups is discriminatory overlooks the fact that by exclusion of the creamy layer, the lower economic strata of the SC/ST and OBCs are already represented in the classes covered by the Articles 15(4), 15(5) and 16(4) resply. The sketch below would make it more clear.
- The enabling provisions, varying enforcement mechanisms and the State opinion on backwardness, reservation, adequate representation etc., in any circumstances cannot be recognised as the fundamental or basic structure of the Constitution. By their very nature, they are bound to change, with time, location and circumstances.
- The ad hoc policies of the State directed towards achieving a larger, fundamental standard of equality, cannot by itself become fundamental. Fundamental would only be the principle and not the way these principles are sought to be realised. Such mechanisms which facilitate ‘equality of opportunity in public employment’ as guaranteed under Article 16 of the Constitution are ad hoc arrangements.
Justice UU Lalit, Justice Ravindra Bhatt
Both judges gave minority judgment, we will discuss their judgment in another article.
By pronouncement of four separate judgments rendered by,
- Justice Dinesh Maheshwari,
- Justice S. Ravindra Bhat, for himself and on behalf of the Chief Justice Uday Umesh Lalit;
- Justice Bela M. Trivedi; and,
- Justice J.B. Pardiwala.
In view of the decision rendered by the MAJORITY consisting of Justice Dinesh Maheshwari, Justice Bela M. Trivedi and Justice J.B. Pardiwala, the challenge raised to 103rd Amendment to the Constitution failed and the decision rendered by Justice S. Ravindra Bhat remains in minority.
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