JANHIT ABHIYAN versus UNION OF INDIA & ORS. on 5 August 2020

O R D E R

Writ Petition(C) No. 55 of 2019 etc.

1. In this batch of writ petitions, petitioners have challenged theconstitutional validity of, The Constitution (One Hundred and ThirdAmendment) Act, 2019 [for short, ‘the Amendment Act’]. By theaforesaid amendment, Articles 15 and 16 of the Constitution of Indiawere amended by inserting clause (6), after clause (5), in Article 15 andby inserting clause (6) after clause (5), in Article 16. The newly insertedArticles 15(6) and 16(6) read as under :

“15(6). Nothing in this article or sub-clause (g) of clause (1) ofarticle 19 or clause (2) of article 29 shall prevent the State frommaking, - (a) any special provision for the advancement of any economicallyweaker sections of citizens other than the classes mentionedin clauses (4) and (5); and

(b) any special provision for the advancement of any economicallyweaker sections of citizens other than the classes mentionedin clauses (4) and (5) in so far as such special provisions relateto their admission to educational institutions including privateeducational institutions, whether aided or unaided by the State,other than the minority educational institutions referred to inclause (1) of article 30, which in the case of reservation wouldbe in addition to the existing reservations and subject to amaximum of ten per cent. of the total seats in each category.

Explanation.-For the purposes of this article and article 16,“economically weaker sections” shall be such as may be notifiedby the State from time to time on the basis of family income andother indicators of economic disadvantage.

16(6). Nothing in this article shall prevent the State from makingany provision for the reservation of appointments or posts in favourof any economically weaker sections of citizens other than theclasses mentioned in clause (4), in addition to the existing B

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Areservation and subject to a maximum of ten per cent. of theposts in each category.”

2. By virtue of Article 15(6) of the Constitution, States areempowered to make a special provision for the advancement of anyeconomically weaker sections of citizens other than the classes mentionedBin clauses (4) and (5) and to make a special provision relating to theiradmission to educational institutions including private educationalinstitutions, whether aided or unaided by the State, other than the minorityeducational institutions referred to in clause (1) of Article 30, in additionto existing reservations and subject to a maximum of ten per cent of thetotal seats in each category. Similarly, Article 16(6) empowers the StateCto make any provision for the reservation of appointments or posts infavour of any economically weaker sections of citizens other than theclasses mentioned in clause (4), in addition to the existing reservationand subject to a maximum of ten per cent of the posts in each category.

3. The above said impugned constitutional amendments areDquestioned in this batch of cases mainly on the ground that the impugnedamendments are ultra vires as they alter the basic structure of theConstitution of India. Further, it is also the case of the petitioners thatthe impugned amendments run contrary to the dictum in the majorityjudgment, in the case of Indra Sawhney & Ors. V. Union of India &EOrs.[1]. It is the case of the petitioners that a backward class cannot bedetermined only and exclusively with reference to economic criterion.Petitioners have also pleaded that the reservation of ten per cent ofvacancies, in available vacancies/posts, in open competition on the basisof economic criterion will exclude all other classes of those above thedemarcating line of such ten per cent seats. It is further pleaded thatFreservation in unaided institutions violates the fundamental right underunder Article 19(1)(g) of the Constitution. It is their case that the Statecannot insist on private educational institutions which receive no aid fromthe State to implement the State policy on reservation for grantingadmission on lesser percentage of marks, i.e., on any criterion exceptGmerit.4. The counter affidavit is filed on behalf of respondent-Union ofIndia. In the counter affidavit filed by the Under Secretary to the Ministryof Social Justice and Empowerment, the following averments are made:

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•While denying various allegations made by the petitioners, it isstated that, the Amendment Act was necessitated to benefitthe economically weaker sections of the society who are notcovered within the existing schemes of reservation, which asper statistics, constitute a considerably large segment of Indianpopulation. In order to do justice across all the weaker sectionsof the society, it was considered imperative that the Constitutionbe appropriately amended to enable the State to extend variousbenefits, including reservations in educational institutions andpublic employment, to the economically weaker sections ofthe society, who are not covered by existing schemes ofreservation to enable them equal opportunity to get access toeducational institutions and also in employment.

•Subsequent to the decision of this Court in the case of IndraSawhney[1], the Government appointed an Expert Committeeto recommend the criteria for exclusion of advanced sectionsof Socially and Educationally Backward Classes, i.e., thecreamy layer. The said Committee made certainrecommendations for exclusion of creamy layer and theGovernment, by accepting the same, has issued OfficeMemorandum dated 08.09.1993 on the exclusion criteria.Thereafter a Commission for Economically Backward Classes,chaired by Maj. Gen. (Retd.) S.R. Sinho, was constituted tosuggest the criteria for identification of EconomicallyBackward Classes (EBC) as well as to recommend welfaremeasures and quantum of reservation in education andGovernment employment to the extent as appropriate. In itsreport dated 02.07.2010, the Commission recommended thatall BPL (Below Poverty Line) families among general categoryas notified from time to time and also all families whose annualincome from all sources is below the taxable limit should beidentified as EBCs. In view of the report submitted by SinhoCommission, it was deemed necessary that a constitutionalamendment be brought in to promote social equality by providingopportunity in higher education and employment to those whohave been excluded by virtue of their economic status.

•While referring to the duty of the State as per directive underArticle 46 of the Constitution and in view of the A

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Arecommendations made by the Committee, The Constitution(One Hundred and Twenty Fourth Amendment) Bill, 2019 wasintroduced and same was passed in the Lok Sabha on08.01.2019 and on 09.01.2019. By referring to the Statementof Objects and Reasons of the Bill, it is stated that to ensureeconomically weaker sections of citizens get a fair chance ofBreceiving higher education and participation in employment inthe service of the State, the said amendments were brought.

•While denying the allegation of the petitioners that the impugnedamendments alter the basic structure of the Constitution, it ispleaded that, to sustain a challenge against a constitutionalCamendment, it must be shown that the very identity of theConstitution has been altered. It is stated that a mereamendment to an Article of the Constitution, even if embodyinga basic feature, will not necessarily lead to a violation of basicfeature involved. By stating that the said newly insertedDprovisions, namely, Articles 15(6) and 16(6) are enablingprovisions for advancement of economically weaker sectionsand such provisions are in fact in conformity with the principleof reservation and affirmative action which are the touchstoneof protection of equality of citizens and also the basis underArticles 15(1); 15(2); 16(1) and 16(2).E

•It is pleaded further that the economic criterion can be a relevantcriterion for affirmative action under the Constitution.Reference is made in the counter affidavit, to the decision ofthis Court in the case of Ashoka Kumar Thakur v. Unionof India & Ors.[2].F

•While answering the allegation of the petitioners, that economicbackwardness cannot be the sole criterion for identifyingbackward class, it is pleaded that the ratio decided by thisCourt in the case of Indra Sawhney[1 ]cannot be applied tojudge the validity of impugned amendments. It is stated that inGthe case of Indra Sawhney[1] memoranda issued by theGovernment of India were under challenge and as much asthe present challenge relates to the constitutional amendment,said ratio decided cannot be applied. It is also pleaded in thecounter affidavit that the limit of 50% of reservation is onlyH2 (2008) 6 SCC 1

applicable to reservations made under Articles 15(4), 15(5)and 16(4) and does not apply to Article 15(6).

•While answering the allegation of the petitioners that imposingreservation in unaided institutions is manifestly arbitrary andillegal, it is pleaded that the impugned amendments do not violateArticle 19(1)(g) read with Article 19(6) of the Constitution asthe State is entitled to make any law imposing reasonablerestrictions on the exercise of right in Article 19(1)(g).

5. With the aforesaid pleadings, it is pleaded that there is no meritin the petitions and they deserve dismissal by this Court.

6. We have heard Sri Rajeev Dhawan, learned senior counsel; SriM.N. Rao, learned senior counsel; Sri Gopal Sankaranarayanan, learnedsenior counsel; and Ms. Meenakshi Arora, learned senior counsel forthe petitioners and Sri K.K. Venugopal, learned Attorney General forIndia appearing for Union of India.

7. Sri Rajeev Dhawan, learned senior counsel appearing for thepetitioner in W.P.(C)No.122 of 2019 while referring to ‘Rules of Courtetc.’ under Article 145(3) of the Constitution, has submitted that as thecase involves a substantial question of law as to interpretation of theconstitutional amendment, the present batch of cases need to be heardby a Constitution Bench of five Judges. Learned senior counsel alsoplaced reliance on Order XXXVIII of the Supreme Court Rules, 2013and submitted that as much as it is the case of the petitioners that theimpugned Amendment Act violates the basic structure doctrine withparticular reference to right to equality, as such, it constitutes a substantialquestion of law within the meaning as referred above. It is submittedthat having regard to grounds on which the impugned amendments arequestioned, a substantial question of law, namely, whether the Constitution(One Hundred and Third Amendment) Act, 2019 violates the basisstructure of the Constitution, insofar as it relates to the equality provisionsof the Constitution and matters relating thereto, is to be decided. It issubmitted that by applying the tests of ‘width’ and ‘identity’ of equalityprovisions, the impugned amendments are to be judged. Learned seniorcounsel has placed reliance on the judgment of this Court in the case ofM. Nagaraj & Ors. V. Union of India & Ors.[3], in support of hisargument that for examining amendments to equality provisions of the A

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AConstitution, such a matter is to be heard by a Constitution Bench. Onthe validity of the impugned Amendment Act, learned senior counsel hassubmitted that by applying the tests of ‘width’ and ‘identity’ formulatedby this Court in the case of M. Nagaraj[3 ]which is approved in the caseof I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu[4] and JarnailSingh & Ors. v. Lachhmi Narain Gupta & Ors.[5], the impugnedBamendments affect the ‘width’ and ‘identify’ of equality provisions, assuch same is fit to be declared as unconstitutional. It is submitted that byapplying the above said tests, if the impugned amendments are examined,the impugned Articles are in violation of the basic structure of theConstitution. Further, it is submitted that the impugned Amendment ActCviolates the rule of 50% quota for affirmative action and reservation asenunciated by this Court in the case of Indra Sawnhey[1]. Further, it issubmitted by learned senior counsel that the two-fold test for testing thevalidity of fundamental right under the basic structure doctrine is toconsider whether (a) identity and (b) width of fundamental right is affected or not. It is submitted that if identity of the right is distorted or takenDaway, such action will be in violation of basic structure.

8. Sri M.N. Rao, learned senior counsel appearing for thepetitioners in W.P.(C)No.95 of 2019, by referring to various articles inthe draft Constitution prepared by the constitutional adviser and byreferring to debates of Constituent Assembly and by placing reliance onEobservations made by this Court in the judgment in the case of IndraSawhney[1], has submitted that the educational backwardness of backwardclasses is on account of their social backwardness. It is submitted thatthe social backwardness is the cause and not the consequence of eitherof their economic or educational backwardness. It is submitted that the Freason for providing reservation under Articles 15(4) and 16(4) by carvingout an exception to the equality clause is to confine the benefits only topersons answering the description of backward classes. It is furthersubmitted that the economic criterion by itself will not identify thebackward class. Finally it is submitted by learned senior counsel that if economically weaker sections are brought within the purview ofGbackward classes, it will destroy the ratio legis, the very reason orfoundation of law to carve out the exceptions to the equality clause.

9. Sri Gopal Sankaranarayanan, learned senior counsel appearingfor the petitioners in W.P.(C)No.73 of 2019 submitted that the fundamental4 (2007) 2 SCC 1H5 (2018) 10 SCC 396

balancing factor of the reservation policies has been the ceiling limit of50%. It is submitted that it has been consistently held by this Court thatif the reservations exceed such percentage the equality code of theConstitution would be breached. It is submitted by learned senior counselthat the ratio of 50% which is initially laid down in the judgment of thisCourt in the case of M.R. Balaji & Ors. v. State of Mysore[6] is finallyapproved in the judgment of this Court in the case of Indra Sawhney[1].By referring to the aforesaid judgments of this Court, it is submitted bylearned senior counsel that the impugned Amendment Act breaches the50% ceiling limit and runs contrary to the judgments of this Court asreferred above. It is submitted that the petitioners have no quarrel withthe introduction of reservation for economically weaker sections but atthe same time the equality code of the Constitution ought to be strictlyobserved and breach of 50% ceiling limit should not be allowed. Learnedsenior counsel also submitted that as the questions involved in this batchof cases amount to substantial questions of law within the meaning ofArticle 145(3) of the Constitution, these cases need to be heard by aBench of five Judges.

10. Ms. Meenakshi Arora, learned senior counsel appearing forthe petitioners in W.P.(C)No.182 of 2019 has submitted that the impugnedAmendment Act violates the basic structure doctrine and also crossesthe limit of 50% which runs contrary to several judgments of this Court.

11. On the other hand, learned Attorney General for India – SriK.K. Venugopal – by referring to Preamble of the Constitution and Article46 of the Constitution of India, submitted that an affirmative action bymaking a provision for reservation can be made to the economicallyweaker sections of society. It is submitted that to secure justice to allcitizens based on social, economic and political, as referred to in thePreamble, it is always open for the State to bring a constitutionalamendment so as to promote such economically weaker sections, inrelation to admissions to educational institutions and also in makingappointments in public services. Learned Attorney General has submittedthat a three-Judge Bench of this Court in the case of Society for UnaidedPrivate Schools of Rajasthan v. Union of India & Anr.[7] has approvedthe classification based on economic criteria as provided under provisionsof Right of Children to Free and Compulsory Education Act, 2009. He 6 (1963) Supp. 1 SCR 439

7 (2012) 6 SCC 1

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Ahas further submitted that in view of the same the impugned AmendmentAct cannot be said to be either illegal or in violation of the basic structureof the Constitution. It is submitted that as observed by this Court in thecase of Indra Sawhney[1 ]while 50% shall be the rule but at the sametime in a situation like this, which is an extraordinary situation, such limitcan be exceeded. Learned Attorney General has brought to our noticeBcertain observations made in the aforesaid judgment. Learned AttorneyGeneral, in support of his argument that such percentage can be exceeded,placed reliance on a judgment of this Court in the case of Voice(Consumer Care) Council v. State of Tamil Nadu[8]. In the State ofTamil Nadu, the Tamil Nadu Backward Classes, Scheduled Castes andCScheduled Tribes (Reservation of Seats in Educational Institutions andof Appointments or Posts in the Services under the State) Act, 1993 wasbrought into force providing 69% reservation for BC, SC and ST. Whenthe said Act was upheld by the High Court, matter is carried to theSupreme Court and this Court has passed interim order to create additional seats for general category candidates, with a view to remove the grievanceDof the general category candidates. The State of Tamil Nadu has filedapplication requesting for modification of the order dated 22.07.1996.This Court declined to modify such order and dismissed the interlocutoryapplication. At the same time it is kept open to the State of Tamil Naduto take steps for listing of the matters which have been referred toEConstitution Bench. Further relying on the judgment of this Court in thecase of Society of Unaided Private Schools for Rajasthan[7], thelearned Attorney General, has submitted that the questions raised by thepetitioners can no more be considered as substantial questions of lawfor being referred to a Bench of five Judges. It is submitted that there isno basis for the plea of the petitioners that the impugned AmendmentFAct violates the basic structure doctrine. It is submitted by learnedAttorney General that the basic structure comprises of many featureslike several pillars in a foundation some of which are enumerated in theopinions rendered by this Court in the case of His HolinessKesavananda Bharati Sripadagalvaru v. State of Kerala & Anr.[9].GIt is submitted that the significance of these pillars is that if one of themis removed the entire edifice of the Constitution will fall. Hence, it issubmitted that in judging the constitutional amendment, the question tobe addressed is whether the said amendment would lead to a collapse of 8 (1996) 11 SCC 740H9 (1973) 4 SCC 225

8 (1996) 11 SCC 740H9 (1973) 4 SCC 225

the edifice of the Constitution. It is submitted that to sustain a challengeagainst a constitutional amendment, it must be shown that the very identityof the Constitution has been altered. It is stated that as no such groundsexist to show that the identity of the Constitution has been altered byvirtue of the impugned amendment, the plea of the petitioners that theimpugned amendment is in violation of basic structure doctrine also hasno legs to stand.

12. We have heard learned senior counsel for the petitioners andthe learned Attorney General for India for the Union of India.

13. Learned senior counsel for the petitioners at first instanceargued by seeking reference to a larger Bench of five Judges by placingreliance on Article 145(3) of the Constitution and Order XXXVIII of theSupreme Court Rules, 2013, which is opposed by learned AttorneyGeneral appearing for the Union of India on the ground that in view ofthe decisions relied on by him no reference need be made.

14. Although we have heard learned senior counsels for thepetitioners and learned Attorney General appearing for the Union ofIndia, on the issue of reference, as well as on merits of the matter, as weare in agreement with the submissions made by the learned counselsappearing for the petitioners that these matters involve substantialquestions of law, as such, they are required to be heard by a Bench offive Judges in view of the provision under Article 145(3) of theConstitution of India and Order XXXVIII of the Supreme Court Rules,2013, we are not entering into the merits of the matter on the validity ofimpugned Amendment Act.

15. To refer the matter to a Bench of five Judges, we deem itappropriate to refer to the provision under Article 145(3) as well asOrder XXXVIII Rule 1(1) of the Supreme Court Rules, 2013. The saidrelevant provisions read as under :

“145. Rules of Court, etc.-(1) … … …

(2) … … …

(3) The minimum number of Judges who are to sit for the purposeof deciding any case involving a substantial question of law as tothe interpretation of this Constitution or for the purpose of hearingany reference under article 143 shall be five:

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AProvided that, where the Court hearing an appeal underany of the provisions of this Chapter other than article 132 consistsof less than five Judges and in the course of the hearing of theappeal the Court is satisfied that the appeal involves a substantialquestion of law as to the interpretation of this Constitution thedetermination of which is necessary for the disposal of the appeal,Bsuch Court shall refer the question for opinion to a Court constitutedas required by this clause for the purpose of deciding any caseinvolving such a question and shall on receipt of the opinion disposeof the appeal in conformity with such opinion.”

Similarly, Order XXXVIII Rule 1(1) of the Supreme Court Rules,C2013 reads as under :

“1(1). Every petition under article 32 of the Constitution shall bein writing and shall be heard by a Division Court of not less thanfive Judges provided that a petition which does not raise asubstantial question of law as to the interpretation of theDConstitution may be heard and decided by a Division Court ofless than five Judges, and, during vacation, by a Vacation Judgesitting singly.”

16. In view of the aforesaid provisions, it is clear that for thepurpose of deciding any case involving a substantial question of law asEto interpretation of the Constitution it is to be heard by a Bench of fiveJudges. Thus it is to be examined whether the question raised in the writpetitions will involve a substantial question of law or not. It is the case ofthe petitioners that the impugned amendments violate the basic structureof the Constitution mainly on the ground that the existing provisions ofFthe Constitution empower to provide affirmative action only in favour ofsocially backward classes. It is for the first time that by the impugnedamendments in the Constitution itself the new clauses are incorporatedenabling the State to provide affirmative action by way of reservation tothe extent of 10% in educational institutions and for appointment inservices to economically weaker sections of society. The main plank ofGthe argument from the side of the petitioners is that the economic criteriaalone cannot be the basis to determine backwardness. In support of thesame, learned counsels for the petitioners strongly rely on nine-JudgeBench judgment of this Court in the case of Indra Sawhney[1]. Thus it ispleaded that the impugned amendments run contrary to the above saidHjudgment. It is also the case of the petitioners that exceeding the ceiling cap of 50% is also in violation of the very same judgment of this Court.Though learned Attorney General appearing for the Union of India hasstrongly relied on the judgment of this Court in the case of Society forUnaided Private Schools of Rajasthan[7] where the provisions of Rightof Children to Free and Compulsory Education Act, 2009 are upheld.By virtue of the impugned amendments, very Constitution is amendedby inserting new clauses in Articles 15 and 16 thereof, which empowerthe State to make reservations by way of affirmative action to the extentof 10% to economically weaker sections. It is the case of the petitioners,that the very amendments run contrary to the constitutional scheme, andno segment of available seats/posts can be reserved, only on the basis ofeconomic criterion. As such, we are of the view that such questions doconstitute substantial questions of law to be considered by a Bench offive Judges. It is clear from the language of Article 145(3) of theConstitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules,2013, the matters which involve substantial questions of law as tointerpretation of constitutional provisions they are required to be heard aBench of five Judges. Whether the impugned Amendment Act violatesbasic structure of the Constitution, by applying the tests of ‘width’ and‘identity’ with reference to equality provisions of the Constitution, is amatter which constitutes substantial question of law within the meaningof the provisions as referred above. Further, on the plea of ceiling of50% for affirmative action, it is the case of the respondent-Union ofIndia that though ordinarily 50% is the rule but same will not prevent toamend the Constitution itself in view of the existing special circumstancesto uplift the members of the society belonging to economically weakersections. Even such questions also constitute as substantial questions oflaw to be examined by a Bench of five Judges as per Article 145(3) ofthe Constitution read with Order XXXVIII Rule 1(1) of the SupremeCourt of Rules, 2013.

T.P.(C)Nos.341 of 2019; 323 of 2019; 357 of 2019; 539 of 2019; 630 of 2019; and 675 of 2019

17. These transfer petitions are filed by and/or on behalf of Unionof India, under Article 139A(1) of the Constitution of India read withOrder XLI Rules 1 to 5 of the Supreme Court Rules, 2013 seeking transferof writ petitions filed before various High Courts to this Court. WritPetition involving the very same question, i.e., challenge to the validity ofThe Constitution (One Hundred and Third Amendment) Act, 2019 has AB

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Abeen filed before this Court in W.P.(C)No.55 of 2019 titled, ‘JanhitAbhiyan v. Union of India & Ors.’ and this Court, by order dated25.01.2019, has already issued notice in such writ petition. It is submittedby learned Attorney General that, as the very same amendment is subjectmatter of challenge in the writ petitions pending before various HighCourts and to avoid conflicting findings by different High Courts, suchBwrit petitions are required to be transferred to this Court. As much asthis Court has already issued notice in a writ petition wherein validity ofvery same Amendment Act is questioned before this Court, we deem itappropriate that these transfer petitions are fit to be allowed. Accordingly,transfer petitions are allowed and W.P.(C)|No.1475/2019 titled as ‘R.S.CBharati v. Union of India’; W.P.(C)No.2099/2019 titled as ‘DesiyaMakkal Sakthi Katchi v. Principal Secretary & Ors.’; W.P.(C)No.1629/2019 titled as ‘Kali Poongundran v. Union of India & Ors.’; W.P.No.3209/2019 titled as ‘A.S.A. Umar Farooq v. Union of India & Ors.’ pendingbefore High Court of Madras; W.P.(C)No.884/2019 titled as ‘Telangana State Backward Classes Welfare Association & Anr. v. Union of IndiaD& Ors.’ pending before the High Court for the State of Telangana; andC.W.P.No.3220/2019 titled as ‘Rakesh Dhundhara v. Union of India &Ors.’ pending before the High Court of Punjab and Haryana at Chandigarhare ordered to be transferred to this Court for being listed along withW.P.(C)No.55 of 2019 etc. Registry to take necessary steps byErequesting the concerned High Courts to transmit the record of theabovementioned writ petitions.

All the matters

18. For the aforesaid reasons, we allow the transfer petitions andrefer this batch of cases, including the cases covered by transferFapplications, to a Bench of five Judges. Registry to place the matterbefore Hon’ble the Chief Justice, for obtaining appropriate orders in thisregard.

GKalpana K. Tripathy

Matters referred to five Judges Bench.

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