Reservation Must Not Continue For An Indefinite Period So As To Become A Vested Interest: Supreme Court

CASE TITLE:
Janhit Abhiyan Vs. Union of India with 32 connected matters

DATE OF ORDER:
7 November 2022

JUDGES:
CJI UU Lalit with Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala and Justice S Ravindra

PARTIES:
Petitioner: Janhit Abhiyan
Respondent: Union of India

SUBJECT

The 103rd Constitutional Amendment, which included a 10% reservation for Economically Weaker Sections (EWS) in education and public employment, has been affirmed as lawful by a 3:2 majority of the Supreme Court Constitution Bench. After 75 years of independence, Justice Bela Trivedi noted in her farewell remarks that it is time to review the reservation system.

IMPORTANT PROVISIONS

Constitution of India

• Article 334 - Reservation of seats and special representation to cease after forty years Notwithstanding anything in the foregoing provisions of this Part, the provisions of Constitution relating to

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and

(b) the representation of the Anglo Indian community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of forty years from the commencement of this Constitution: Provided that nothing in this article shall affect any representation in the House of the People or in the legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be.

ISSUES RAISED

• Whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?
• Whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically weaker sections violates the Equality Code and thereby, the basic structure doctrine?
• Whether reservation for economically weaker sections of citizens up to ten per cent in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty per cent.?

ARGUMENTS ADVANCED

• The learned counsel has emphasized that, while heavily drawing upon the Constituent Assembly Debates, Preamble, and Article 38 of the Constitution, which commands the State to secure and protect “a social order in which justice, social, economic, and political shall inform the institutions of the national life,” it was intended that special provisions be envisioned under Article 15(4) and reservations in employment to ensure this social justice and the ethos of the Constitution (4). A part of the population, he claimed, was emphasized and denied access to resources and educational opportunities because of some ancient habits.
• People at the bottom of the social scale experienced discrimination, emphasized, and deprivation of equality and fundamental rights. The socially downtrodden sectors were given reserves and special provisions as a form of positive discrimination to remedy these historical imbalances and provide them a voice in governance as well as access to resources like education and public jobs. As a result, the Constitution’s fundamental framework was shaped by the goal of ensuring social equality and justice.
• The learned counsel has stated that the amendment in question, which tries to empower the privileged sectors of society, who are neither socially or educationally backward nor insufficiently represented, has broken this fundamental framework. He further argued that the amendment in question had reclassified as economically weaker certain groups of persons who had never experienced prejudice, historically or otherwise, and who were also neither socially or educationally deficient. The learned counsel supported his argument that reservation should not be used by the forward class as a self-perpetuating mechanism depriving the disadvantaged by citing statements made by Dr. B.R. Ambedkar, Mr. V.I. Muniswamy Pillai, and Mr. Sardar Nagappa in the debates of the Constituent Assembly.
• The learned counsel has further submitted that the non obstante clause in Articles 15(6) and 16(6), while granting reservation to a class of citizens who are already privileged and adequately represented, has vetoed the requirement of being socially and educationally backward or inadequately represented, which was the core of reservation’s philosophy. The Constitution specifies social “and” educational backwardness, not social “or,” as the standard for determining whether a class has experienced positive discrimination. He claimed that the forward class’s socially and educationally backward classes were included in the term “backward class,” making them eligible for the benefits of reservation.
• The learned counsel has made yet another argument that the goal of positive discrimination was to abolish the monopoly of some classes and build an inclusive society to guarantee equal opportunities to the emphasized groups. The amendment in question, however, creates a permanent monopoly by granting reservations to a group of people whose identification is ambiguous and based on their individual traits. This is especially true given that these classes have enjoyed and continue to enjoy control over resources and public employment.Therefore, the learned counsel has argued that the 103rd Amendment should be repealed since it violates the concept of equality, which is the foundation of the Constitution.
• The learned counsel has explained the dual goals of the Equality Code, which are formal equality and substantive equality, as set forth in Articles 14 to 17 of the Constitution, and has argued that these provisions are intended to ensure that those members of society who have been denied any real opportunities, participation in public life, and decision-making due to the reasons listed in Article 15(1) are elevated through positive discrimination, giving flesh to these principles. The Equality Code is fundamentally violated by the absence of these barriers and protections in the newly established class of EWS constituted by the in question amendment.
• The learned counsel has argued that the communities that the amendment in question seeks to protect are duly represented in all walks of life and are therefore ineligible to benefit from reservations under Articles 15 and 16. They have further emphasized the argument that social and educational backwardness and inadequate representation are the foundation for the grant of reservations. She bases her argument on the court’s rulings in M.R. Balaji and Indra Sawhney, contending that the legislature should take both social and educational backwardness into account before granting the benefit of reservation rather than just social or educational backwardness.
• The experienced attorney has argued that the goal of reservation was to provide the underprivileged with a level playing field with the privileged in order to participate equally in public life. Additionally, this Court has ruled that reservations cannot be granted on the basis of just one factor, such as caste. Without taking into account the idea of representation, the amendment at issue bases quota grants solely on economic criteria, which goes against both judicial rulings and the Preambular’s ideal of a casteless society, undermining the Constitution’s fundamental principles.
• The learned attorney has further argued that the amendment in question lacks any safeguards or guardrails for classes that are socially and educationally backward, despite the fact that there are commissions and guardrails designed by the constitution to ensure that the benefits are only given to the sections that are truly deserving and socially and educationally backward. The amendment is only applicable to classes that are neither identifiable nor have any method of identification established by the constitution.
• The learned counsel argued that the amendment to the extent that “other than the class mentioned in clauses (4) [and (5)]” should be severed from Articles 15(6) and 16(6) in order to include the poor of all classes without any exclusion or discrimination, even if this Court were to accept poverty and income as valid criteria for the grant of reservation at that time.
• To further distinguish between the backward class and the weaker parts addressed under Articles 16(4) and 46, respectively, learned counsel has relied on Indra Sawhney. It has been maintained that as the latter contains no restrictions, Article 46 cannot serve as the foundation for a reservation. He has also argued that going over the 50% threshold would violate the twin tests of width and identity laid out by this Court in M. Nagaraj and Ors. v. Union of India and Ors.: (2006) 8 SCC 212 and cause an inequality disturbance. He has also argued that the 50% threshold cannot be exceeded in any situation other than when a law is protected by the Constitution’s Ninth Schedule, which the disputed amendment is not.He used the ruling in Indra Sawhney and Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors.: (2021) 8 SCC 1 to buttress his claim that the percentage of reservations allowed under Article 16(4) should not be higher than fifty percent.

JUDGMENT ANALYSIS

• The bench observed that Article 368 begins with a non obstante clause and goes on to reiterate that nothing in Article 13 would apply to any adjustment made under Article 368 after the changes adopted in Kesavananda. Looking at Article 13 of the Constitution is appropriate in this situation because it would otherwise declare void any laws that violate or interfere with fundamental rights, but the inserted sub-clause (4) prevents it from applying to amendments made under Article 368.
• Sub-clause (6) and Explanation have been added to Article 15 and sub-clause (6) has been added to Article 16 of the Indian Constitution as a result of the aforementioned modification. We need to take a closer look at these two articles—15 and 16—since they are the focus of the amendment in question and the crux of the current dispute. It is important to note now that these Articles have experienced numerous alterations throughout the years in order to serve the objective. For the sake of this debate, it would be beneficial to highlight both the original adoption of these Articles and their current state following several revisions, notably the 103rd Constitution Amendment.
• The Equality Code, a crucial component of the Constitution, is said to be nullified by reservations based only on economic reasons and by the exclusion of classes protected by Articles 15(4), 15(5), and 16(4) from its benefits, according to the main argument of the challenge. As a result, it is essentially necessary to investigate the entire problem using the idea of basic structure. In the aforementioned light of the situation, it would be appropriate and appropriate to consider all the essential components of the doctrine of basic structure, as developed and up to this point applied to constitutional amendments, as well as the discernible principles that should be applied to the amendment in question, before delving into the concepts of equality and reservation.
• The fundamental principles of the Constitution are not violated by a simple infraction of the norm of equality unless the infraction is stunning, outrageous, or an egregious betrayal of the essence of equal justice, as described in Bhim Singhji. It cannot be stated that a constitutional amendment that slightly reduces or modifies the equality principles violates the fundamental framework. The main argument against the 103rd Amendment is that adding clause (6) to Article 15 and adding clause (6) to Article 16 simultaneously nullifies the Equality Code, a crucial component of the Indian Constitution, and so destroys the foundation of the Constitution.
• Our Constitution has equality as a fundamental principle, but in the truest sense, the equality that our Constitution envisions as a part of social, economic, and political justice is genuine and substantive equality that operates organically and dynamically against all types of disparities. By its very nature, this process of addressing disparities necessitates fair categorizations to ensure that equals are treated similarly and unequals are handled differently and in accordance with their needs.
• The “doctrine of equality,” which is jointly upheld in Articles 14 through 18, serves as the main foundation for establishing a fair classification under which “affirmative action,” whether it be legislative or executive, is permitted to be taken. By building on previous decisions, the constitutional courts have also positively influenced the development of what we may call “reservation jurisprudence.”
• Discrimination in matters of employment or appointment to any office under the State is prohibited by Article 16, which enacts another aspect of equality, on nearly the same reasons as in Article 15. The provisions of Article 16(4) and (4-A) allow the State to create arrangements for appointment reservations in favour of any disadvantaged class of citizens, creating another another exception to the rule of equality. According to Indra Sawhney, these measures can include reservations or quotas that can be set as part of the exercise of executive authority even without parliamentary authorization. The twin goals of Articles 15 and 16 are to adequately protect the underprivileged and, through special measures, to improve their capacities so that they can compete with the rest of society on their own.
• Thus, it is reasonable to conclude that in order to achieve the socioeconomic structure that our democratic law aspires to, affirmative action is necessary. Reservation is recognised as one such action, which is permitted by the Constitution, and its operation is outlined by a significant number of decisions by this Court, up to and including the detailed expositions in Dr. Jaishri Patil.

CONCLUSION

This court concurs that Article 15(6) would require unaided private educational institutions to offer EWS reservations. However, since “exclusion” leads to the conclusion that the Amendment violates the fundamental structure, the issue at hand is no longer relevant. The Constitution (One Hundred and Third Amendment) Act of 2019’s Sections 2 and 3, which added clauses (6) to Articles 15 and 16, respectively, are hereby declared invalid and unconstitutional for the aforementioned reasons because they violate the Constitution’s fundamental principles. As a result, the writ petitions and other actions are resolved in accordance with the aforementioned terms. There won’t be a cost-related order.

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