The 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 the said amendment was challenged in Supreme Court and one of the main challenge to the amendment was that reservation was enabled to address historical inequalities that, as a vehicle of positive discrimination, the socially oppressed. 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.
To this challenge, the court answered as follows-
Poverty- a point of regression
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. The impact of this was also reflected in the work of the World Bank which is the custodian of the International Poverty Line Statistics.
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.
Welfare State as one of the main objectives of the Constitution
In Kesavananda Bharthi v. Union of India (1973), 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.
In M.R. Balaji and Ors. v. State of Mysore and Ors: 1963 Supp (1) SCR 4399, 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…
…. 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.”
Similarly, in R. Chitralekha v. State of Mysore and Ors.: (1964) 6 SCR 368, Supreme 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: –
K. 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….”
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, the Court held that mere poverty cannot be a consideration for the test of backwardness for the purpose of enabling reservations by observing as follows: –
D.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 backwardness 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 poverty 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 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, 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: –
“44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward.
67. Today, the political theory which acknowledges the obligation of Government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a State with obligation to help the weaker sections of its members seems to have increasing influence in constitutional law.
The idea finds expression in a number of cases in America involving social discrimination and also in the decisions requiring the State to offset the effects of poverty by providing counsel, transcript of appeal, expert witnesses, etc. Today, the sense that Government has affirmative responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in constitutional law. While special concessions for the underprivileged have been easily permitted, they have not traditionally been required.”
In M/s Shantistar Builders v. Narayan K. Totame and Ors.: (1990) 1 SCC 520, the Government of Maharashtra exempted certain excess land from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of constructing dwelling houses under a scheme for the weaker sections of the society on the conditions specified in the order. In the given context, this Court observed as follows: –
Ranganath Misra, J.
“12. Members of the Scheduled Castes and Scheduled Tribes have ordinarily been accepted as belonging to the weaker sections. Attempt to bring in the test of economic means has often been tried but no guideline has been evolved. Undoubtedly, apart from the members of the Scheduled Castes and Scheduled Tribes, there would be millions of other citizens who would also belong to the weaker sections.
The Constitution-makers intended all citizens of India belonging to the weaker sections to be benefited when Article 46 was incorporated in the Constitution. Parliament in adopting the same language in Section 21 of the Act also intended people of all weaker sections to have the advantage. It is, therefore, appropriate that the Central Government should come forward with an appropriate guideline to indicate who would be included within weaker sections of the society.”
In Indra Sawhney v. Union of India (1992), the following observations were made in regard to the myriad features of backwardness including the economic backwardness: –
“44. The word ‘backward’ is very wide bringing within its fold the social backwardness, educational backwardness, economic backwardness, political backwardness and even physical backwardness.
116. The composition and terms of reference of the Second Backward Classes Commission show that the Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India but not the socially, economically and educationally backward classes.
The earlier OM issued on August 13, 1990 reads that with a view to providing certain weightage to socially and educationally backward classes in the services of the Union and their Public Undertakings, as recommended by the Commission, the orders are issued in the terms mentioned therein.
The subsequent amended OM dated September 25, 1991 states that in order to enable the ‘poorer sections’ of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation, the Government have decided to amend the earlier Memorandum.
Thus this amended OM firstly speaks of the ‘poorer sections’ of the SEBCs and secondly about the economically backward sections of the people not covered by any of the existing schemes of reservation. However, both the OMs while referring to the SEBCs, do not include the ‘economic backwardness’ of that class along with ‘social and educational backwardness’.
By the amended OM, the Government while providing reservation for the backward sections of the people not covered by the existing schemes of reservation meant for SEBCs, classifies that section of the people as ‘economically backward’, that is to say that those backward sections of the people are to be identified only by their economic backwardness and not by the test of social and educational backwardness, evidently for the reason that they are all socially and educationally well advanced.”
The Court’s Conclusion
After referring above mentioned cases, the court reached at the conclusion that,
- 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 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 aforesaid 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.
- 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 119 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 120 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. 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. 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 socio-economic justice.
Constitution is a 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.
Supreme Court in the case of Association of Unified Tele Services Providers and Ors. v. Union of India and Ors.: (2014) 6 SCC 110 has pithily explained the principles in the following terms:-
“43. The Constitution, as it is often said “is a living organic thing and must be applied to meet the current needs and requirements”. The Constitution, therefore, is not bound to be understood or accepted to the original understanding of the constitutional economics. Parliamentary Debates, referred to by service providers may not be the sole criteria to be adopted by a court while examining the meaning and content of Article 149, since its content and significance has to vary from age to age.”
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 court held that-
“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.”
Janhit Abhiyan v. Union of India (2023)
 National Multidimensional Poverty Index, Baseline report, NITI Aayog (2021).