In a majority judgement, a five-judge constitutional bench of the Supreme Court upheld the reservation introduced for the Economically Weaker Sections (EWS) up to 10% to be constitutionally valid.
The bench of Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala held the majority view while CJI UU Lalit and Justice S Ravindra Bhat took the dissenting view that EWS reservation was not constitutionally valid for being exclusionary to the disadvantaged classes i.e. Scheduled Castes (SC), Scheduled Tribes (ST)and Other Backwards Classes (OBC) (non-creamy layer). The analysis of the minority judgement may be read here.
The Constitution (103rd Amendment) Act was introduced in 2019.
This amendment inserted Clause (6) to Article 15 which reads as follows:
(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
Clause (6) inserted to Article 16 reads thus:
“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.
The petitioners, challenging the constitutionality of the 2019 amendment, were represented by academician Dr Mohan Gopal, Prof Ravi Verma Kumar, Senior Advocates
The Court held that the doctrine of basic structure has been applied in the past by the court against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution, like direct abrogation of the features of judicial review (Kesavananda Bharati vs. State of Kerala & Anr. (1973) 4 SCC 225, Minerva Mills Ltd. And Ors. v. Union of India and others, AIR 1980 SC 1789 and P. Sambhamurthy and O
The court also noted that a mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice, as exposited in Bhim Singhji (Maharao Sahib Shri Bhim Singhji vs. Union of India & Ors. (1981) 1 SCC 166). If a constitutional amendment moderately abridges or alters the equality principles, it cannot be said to be a violation of the basic structure. (Para 39).
The court concluded its observations on basic structure by stating thus,
“Para 101. …even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution.”
The court explained the principle of equality in the following manner:
“Para 44. In a nutshell, the principle of equality can be stated thus: equals must be treated equally while unequals need to be treated differently, in as much as for the application of this principle in real life, we have to differentiate between those who being equal, are grouped together, and those who being different, are left out from the group. This is expressed as reasonable classification.
The court held that valid classification does not require perfect equality and if there is uniformity within a group, the law cannot be termed discriminatory even if some included in the class get an advantage over others left out, so long as they are not singled out for special treatment.
The court observed that Articles 15 and 16 do not cast a duty on the State in terms of providing reservation and neither do they confer a right on anyone. Reservation is an exception to the general rule of equality and hence, “cannot be regarded as such 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”, the court opined. (Para 56)
Justifying reservation on economic criteria
The petitioners had argued that affirmative action was envisaged only for socially and educationally backward class of citizens; and economic disadvantage alone had never been in contemplation for this action of reservation
“Para 67. …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 to by the State; and for that matter, every affirmative action has the sanction of our Constitution,” the court held.
The court refused to accept the contention of the petitioners that the expression “other weaker sections” refers only to those weaker sections who are similarly circumstanced to SCs and STs.
Article 46, part of Directive Principles of State Policy (DPSP), under the Constitution reads as
“Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections 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”
The court opined 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 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.” (Para 73)
Further the court held that it is not the requirement of our constitutional scheme that an amendment to the Constitution has to be based on some existing provision in DPSP and hence did not analyse any of the further and detailed arguments on and around Article 46.
Is the amendment exclusionary?
The petitioners had contended that keeping the socially and educationally backward classes out of Articles 15(6) and 16(6) is directly in conflict with the constitutional scheme and is therefore an act of inexplicably hostile discrimination. They asserted that the SC/ST/OBC are comprised of the poorest of the poor and hence keeping them out of the benefit of EWS reservation is an exercise conceptionally at conflict with constitutional norms and principles.
However, the court observed that there is a logic in the exclusion of SC/ST/OBC from the EWS reservation and that this exclusion is inevitable for the true operation and effect of the scheme of EWS reservation.
On one hand the court recognises that poverty is associated with social and educational backwardness which is predominant in SC/ST/OBCs, yet it finds that since these categories are already provided with affirmative action in terms of reservation there is no need to extend them yet another benefit under EWS. As per the court, affirmative action of reservation for a particular target group, to achieve its desired results, has to be carved out by exclusion of others.
The court also held that if this exclusion was not put in place, the entire balance of the general principles of equality and compensatory discrimination would be disturbed, with extra or excessive advantage being given to SC/ST/OBCs.
“Para 82.1. …As a necessary corollary, when EWS is to be given support by way of compensatory discrimination, that could only be given by exclusion of others, and more particularly by exclusion of those who are availing the benefit of the existing compensatory discrimination in exclusion of all others. Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory discrimination of the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.”
Is right to equality violated?
The court said that even if for the sake of argument, it is assumed that the amendment alters equality principles, it is, in this case, a moderate abridgment of rights for a valid purpose and does not amount to an abrogation or annulment of those rights. “it cannot be said that the amendment in question leads to such a violation of the rule of equality which is shocking or is unscrupulous travesty of quintessence of equal justice,” the court held. (Para 85)
50% cap on reservations
The court controversially opined that the argument regarding the cap of 50% is based on all those decisions by this Court which were rendered with reference to the reservations existing before the advent of this amendment and that this 50% cap is applicable to classes who avail benefits envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution alone.
In its concluding remarks, the majority judgement of the court held thus,
• reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India.
• Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of nondiscrimination and compensatory discrimination, does not violate the Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India.
• Reservation for EWS does not breach the limit of the 50% ceiling because that ceiling is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.
The court conclusively held in a majority verdict that the 103rdconstitution amendment does not breach the basic structure of the Constitution in excluding SC/ST/OBCs or by making special provisions on economic criteria.
Critique of the SC decision
A critique of the majority judgement published in The Quint notes that the majority bench overlooked the fact that those born in poverty though unfortunate are likely to be able due to uplift themselves out of poverty. However, those belonging to SC/ST/OBCs are in that social and economic position due to their ascribed status which means they are born into it and cannot change this ‘social status’ or their caste, even if they uplift themselves economically somehow. Also, reservation was intended by the Constitution makers to be a tool for non-discrimination and not non-deprivation.
The majority bench failed to delve into the intent behind reservations as a compensatory tool for correcting historical injustice imposed upon these disadvantaged communities who have been facing social discrimination for generations. In fact, by underplaying the extent and import of this caste based phenomenon that has taken brutal forms, the majority verdict articulates a push back argument from privileged sections of anti-reservationists visible and vocal since the Mandal agitation.
The fact that the majority bench has very conveniently set aside the 50% cap on reservations upheld by the Supreme Court in its preceding judgements has also paved the way for the government to introduce more such reservations.
In an opinion piece, noted theoretician on equality and discrimination and a former Delhi University professor, Satish Deshpande writes (in the Indian Express), “but the spirit behind the EWS law achieves exactly what it aims for and struggles so hard to avoid stating openly – reservation for the Hindu upper castes (although, the Union in its arguments does mention reservation is for the ‘forward castes’). And so a new chapter begins in the long saga of the appeasement of our most powerful and most pampered minority”.
He further points out that the most recent rural and urban poverty lines are Rs. 972 and Rs. 1,407, respectively and in a household of five members this amounts to yearly consumption expenditure of Rs.72,000 on an average. The eligibility limit for EWS is Rs. 8 lakh per annum which is 11 times more than this amount. Clearly deprivation or poverty is not what concerned the judges who delivered the majority verdict.
The complete judgement may be read here: