JANHIT ABHIYAN VS UNION OF INDIA : ONE HUNDRED AND THIRD AMENDMENT PROVIDING TEN PERCENT RESERVATION TO EWS CONSTITUTIONALLY VALID
The Supreme Court with 3:2 majority held in Janhit Abhiyan Vs Union of India (2022) 14 SCR 1 that 103rd amendment to the Constitution empowering the State to provide for a maximum of ten percent reservation for Economically Weaker Sections (EWS) of citizens other than SC, ST and non-creamy lawyer of OBC is constitutionally valid.
FACTS OF THE CASE
The Supreme Court passed Constitution (One Hundred and Third Amendment Act, 2019) which came into effect on 14.01.2019 whereby the Parliament amended Articles 15 and 16 of the Constitution of India by adding two new clauses – clause (6) of Article 15 with Explanation and clause (6) to Article 16. Vide this amendment State was empowered to provide for a maximum of ten per cent reservation for “Economically Weaker Sections” of citizens other than the Scheduled Castes, the Scheduled Tribes and 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 percent.
Several Writ Petitions were filed before the Supreme Court challenging the Constitutional validity of One Hundred and Third Amendment. As substantial questions of law were involved as such the matter was referred to the Constitution Bench.
FINDINGS OF THE SUPREME COURT
Amendability of the Constitution
The Supreme Court observed that the challenge is not to an executive order or to an ordinary legislation but to a Constitutional amendment. The challenge is founded on the premise that the amendment in question violates the basic structure of the Constitution in a manner that it destroys its identity. 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, entire challenge is essentially required to be examined on the anvil of the doctrine of basic structure.
The Supreme Court surveyed several judgments and observed 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 basic structure. The nature of amendment and the feature/s of the Constitution to be touched, altered, modulated or changed by the amendment would be the material factors for an appropriate determination of the question.
The Supreme Court observed that mere violation of the rule of equity 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.
The need for affirmative action and Equality Code
The Supreme Court noticed that constitutional validity of 103rd Amendment is premised on the fact that it abrogated equality code and thereby destroys the basic structure of the Constitution of India.
The Supreme Court observed that equality is a feature fundamental to our Constitution. But, in true sense, equality envisaged by our Constitution is real and substantive equality. This process of striking at inequalities, by its very nature calls for reasonable classifications so that equals are treated equally while unequals are treated differently and as per their requirements.
The Supreme Court summarized that for the socioeconomic structure which the law in our democracy seeks to build up, the requirements of real and substantive equality call for affirmative actions and reservation is recognized as one such affirmative action which is permissible under the Constitution and its operation is defined by a large numbers of decisions of this Court.
The Supreme Court observed that 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 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 test and texture of the provisions contained in Part III and Part IV.
Whether Economic Criteria can be sole basis of Affirmative Action
It was contended before the Supreme Court that economic criteria cannot be sole basis of affirmative action. The Supreme Court observed that its observation in the past decisions that reservation cannot be claimed only on economic criteria, apply only to class or classes covered by or seeking coverage under Article 15 (4) and/or 15 (5) and/or 16 (4). The Supreme Court has not put a blanket ban on providing reservation for other sections who are disadvantaged due to economic conditions.
The Supreme Court observed that 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 form the particular weaker sections (SC and ST) and is not confined to only those sections who are similarly circumstanced to SCs and STs.
The Supreme Court also observed that exclusion of the classes covered by Articles 15 (4), 15 (5) and 16 (4) from getting the benefit of reservation as EWS, being in 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 of India.
Breach of Fifty Percent Ceiling
The Supreme Court observed that fifty per cent ceiling would be applied only to those reservation 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 of class in need, it could never be provided. In light of the possible harm of preferential treatment qua other innocent class of competitors i.e. general merit candidates, this Court had expressed the desirability of ceiling of fifty per cent for reservation in education and public employment. But all such observations are required to be read essentially in the context of the reservation obtaining under Articles 15 (4), 15 (5) and 16(4).
The Supreme Court in light of aforesaid findings held 103rd Amendment to the Constitution valid.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.