The Supreme Court on Monday, November 7, upheld the validity of the 103rd Constitution Amendment that provides 10% reservation to Economically Weaker Sections (EWS) in admissions and government jobs. The amendment was upheld through a 3:2 majority, where three judges — Justices Dinesh Maheshwari, Bela M Trivedi, and JB Pardiwala — upheld the amendment, and two judges — Justice Ravindra Bhat and Chief Justice UU Lalit — dissented.
In the Janhit Abhiyan vs Union of India case, the petitioners challenged the Constitution (103rd Amendment) Act, 2019 that came into effect on January 14, 2019. The amendment pertains to Articles 15 and 16 of the Constitution of India, where new clauses were added. Article 15 deals with ‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’ and Article 16 with ‘Equality of opportunity in matters of public employment’.
Through the 103rd amendment, the government has been empowered to provide for a maximum of 10% reservation for ‘economically weaker sections’ of citizens, but this reservation does not apply to Scheduled Castes (SC), Scheduled Tribes (ST) and the ‘non-creamy layer’ of the Other Backward Classes (OBC-NCL). The phrase ‘economically weaker sections’ is to be “notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.”
The batch of petitions were filed by NGOs Janhit Abhiyan, Youth for Equality, Akhil Bhartiya Kushwaha Mahasabha, SC/ST Agricultural Research and Education Employees Welfare Association, People’s Party of India (Democratic), and Viduthalai Chiruthaigal Katchi (VCK) MP Thol Thirumavalavan, Dravida Munnetra Kazhagam (DMK) leader RS Bharati amidst others.
The amendment was challenged on three premises:
1. 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;
2. Exclusion of socially and educationally backward classes (SCs, STs and OBC-NCLs) from the benefit of these special provisions for EWS is inexplicably discriminatory and destroys the basic structure of the Constitution;
3. Providing 10% additional reservation directly breaches the 50% ceiling of reservations and thereby destroys the basic structure of the Constitution.
After hearing the case for a week, four separate judgements were rendered by Justice Dinesh Maheshwari; Justice S Ravindra Bhat for himself and on behalf of the Chief Justice; Justice Bela M Trivedi; and, Justice JB Pardiwala. Here’s what the judgements said:
The Basic Structure Doctrine of the Constitution of India refers to the idea that the founding values and core identity of the Constitution cannot be altered by legislative action, to maintain the spirit and character of the Constitution. The Kesavananda Bharati case, which was referred to multiple times in the judgement, is a landmark case that eventually led to the formation of the Basic Structure Doctrine of the Indian Constitution.
One of the most pertinent questions of law in the present judgement is whether the 103rd amendment, which provides for 10% reservation for EWS is violative of the basic tenet of equality as enshrined in the Constitution. To this, the majority opinion is that the proposed amendment is in concurrence with the Constitutional mandate of equality.
Stressing on the fact that the reservation for EWS does not create any kind of unequal discrimination, Justice Dinesh Maheshwari pointed out that it cannot be said to be a violation of the basic structure when a constitutional amendment ‘moderately abridges or alters the equality principles’. Further, pointing out that the principal part of challenge to the amendment was based on the contention that it abrogates the Equality Code and thereby destroys the basic structure of the Constitution, the judge went on to examine the doctrine of equality.
He also said that reservation cannot be regarded as 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.”
“Reservation 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. Thus, reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India,” the judge said.
Concurring with this, Justice Trivedi observed that the amendment could “certainly be not termed as shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice” as sought by the counsels for the petitioners. Justice JB Pardiwala also aligned with the same rationale, agreeing with Justice Maheswhari and Justice Trivedi.
However, Justice Ravindra Bhat and Chief Justice UU Lalit gave dissenting opinions to this question, observing that though accounting for reservations on the basis of financial criteria is not violative of the Constitution as such, the matter is not as linear as it appears to be. The question of the basic structure of the Constitution is one that concerns the core values and identity of our constitutional morality. Justice Bhat stated, “Our Constitution does not speak the language of exclusion. In my considered opinion the amendment is the language of exclusion and violates the principle of justice, and thereby the basic structure.”
The petitioners contended that people belonging to SC/ST/OBC-NCL category are the poorest of the poor and keeping them out of the benefit of EWS reservation is in conflict with constitutional norms and principles. Justice Dinesh said that while the argument ‘at the first blush’ seems to have some substance, a little pause and a closer look makes it clear that the grievance of the petitioners ‘remains wholly unsustainable’.
“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,” the justice Maheshwari said.
Speaking of the Parliament’s decision to bring the amendment, the judge said that there was no need to extend those classes already covered “yet another benefit” in reservation carved out for other economically weaker sections, for the reason that those classes are already provided reservation. He also said that through EWS reservation, the quota earmarked for the other classes under consideration is not depleted in any manner.
The judge also observed that exclusion becomes vital the moment there is a vertical reservation, in order to provide benefit to the target group. “The same principle has been applied for the affirmative action of reservation to the groups of Socially and Economically Backward Classes (SEBCs), OBCs, SCs, and STs,” he said and added that their grievance “cannot be said to be a legal grievance so as to be agitated before the Court.”
“As excluding certain classes from getting the benefit of reservation as EWS is in the nature of balancing the requirements of nondiscrimination and compensatory discrimination, it does not violate Equality Code,” the judge observed.
Justice Bela M Trivedi concurred with this by observing that the SC/ST and the backward classes for whom special provisions have already been provided “form a separate category from the general or unreserved category” and that they cannot be treated on par with the citizens belonging to the general or unreserved category.
The judge also said that the amendment carved a separate class of economically weaker sections of citizens from the general/unreserved class and that it did not affect the reservations provided to SC, ST and backward classes of citizens. Therefore, the judge observed that their exclusion from the EWS category cannot be said to be discriminatory or violative of the equality code.
She also said that the amendment was brought in after the Parliament took note of the economically weaker sections of citizens being largely excluded from accessing higher educational institutions and public employment “on account of their financial incapacity to compete with the persons who are economically more privileged.”
Justice Pardiwala said that Article 16(4) is exhaustive, but only with respect to reservation in case of backward classes. The judge observed that Article 16(4) does not per se give an exhaustive take on the concept of reservation as such, and therefore, it is not discriminatory to create a separate class of economically weaker sections as long as the reservation for backward classes remains unaffected.
Justice Bhat and CJI UU Lalit on the other hand, gave an elaborate dissent on this aspect. He stated that the amendment restricts SC/ST/OBC to their pre-assigned reservation quotas, thereby preventing them from availing further benefits aimed at addressing the specific discrimination endured by them due to social inequalities and bias. This, the judge observed, goes against the principles of fraternity, and further limits the socially disadvantaged from availing benefits based on economic deprivation.
While considering whether economic criteria, by being the sole basis for affirmative action, violates the basic structure of the Constitution, Justice Dinesh Maheshwari raised a question: Can a particular segment of citizens be denied state support through reservation “only because of the fact that that segment is otherwise not suffering from other disadvantages?” He said the answer would be a ‘no’.
He also said that the argument that the State may adopt any poverty alleviation measure but cannot provide reservation for EWS is based on the assumption that reservation in our constitutional scheme is itself reserved only for Socially and Economically Backward Classes (SEBCs)/OBCs/SCs/STs. “Such an assumption is neither valid nor compatible with our constitutional scheme,” he said.
The judge also observed that the prescription of a ceiling limit of 50% for the benefit of general caste candidates does not provide any justified cause to the candidates standing in “the bracket of already available reservation” to raise any grievance about extra 10% reservation for the benefit of another section of society.
The judge also observed, “Reservation for EWS of citizens up to 10% in addition to the existing reservations does not result in violation of any essential feature of the Constitution of India, on account of breach of the ceiling limit of 50% because the ceiling limit itself is not inflexible and it applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.”
Justice Pardiwala underlined that though economic reservation excludes socially backward classes, such a provision for reservation is not barred by the Constitution. He referred to other provisions that create reservations on the basis of economic status such as Right to Free and Compulsory Education, to further fortify his opinion that reservations that fall outside the ambit of social backwardness do exist and are not in contravention to the ideas of Constitutional integrity.
Justice Ravindra Bhat and CJI UU Lalit observed that though there is no constitutional bar on creating financial reservations, we must recall the spirit of the Constituent Assembly debates and factor in the founding nature of reservations. The judges stated that reservations, the way our Constitution-makers intended them to be, are community-centric, and not individual-centric in nature. Reservations serve the purpose of reversing social marginalisation that have over time denied certain communities access and an equitable playing field in the society. It is to address this that reservations come into play, and not to cater to individuals or groups who have already been historically enjoying social capital and access.
Recalling that the Constitution framers as well as the Constitution Bench in 1985 proposed that the policy of reservation must have a time limit, Justice Trivedi said that it has still not been achieved even after the completion of 75 years of Independence. Further stating that it cannot be said that the caste system was responsible for the origin of the reservation system and that it was introduced to correct the historical injustice faced by the persons belonging to the Scheduled Castes and Scheduled Tribes and other Backward Classes, and to provide them a level playing field to compete with persons belonging to the forward classes, she said that the system of reservation needs to be revisited “in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.”
Pointing out to the 104th Amendment of the Constitution that brought to an end the representation of the Anglo-Indian community in the Parliament and in the State Legislative Assemblies, Justice Bela M Trivedi said that prescribing a similar time limit for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution “could be a way forward leading to an egalitarian, casteless and classless society.”