JANHIT ABHIYAN versus UNION OF INDIA

[2022] 14 S.C.R. 1

JANHIT ABHIYAN

UNION OF INDIA

(Writ Petition (Civil) No. 55 of 2019)

NOVEMBER 07, 2022

[UDAY UMESH LALIT, CJI, DINESH MAHESHWARI,S. RAVINDRA BHAT, BELA M. TRIVEDI ANDJ.B. PARDIWALA, JJ.]

Constitution (One Hundred and Third Amendment) Act, 2019– Challenge to – Vide said amendment, Arts. 15 and 16 of theConstitution were amended by adding two new clauses viz., clause(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby,the State was empowered, inter alia, to provide for maximum of tenper cent reservation for “the economically weaker sections” (EWS)of citizens other than “the Scheduled Castes”, “the ScheduledTribes” and the non-creamy layer of “the Other Backward Classes”– The amendment did not mandate but enabled reservation for EWSand prescribed ceiling limit of ten per cent – Challenge to saidamendment essentially on three-fold grounds: first, that making ofspecial provisions including reservation in education and employmenton the basis of economic criteria is entirely impermissible and offendsthe basic structure of the Constitution; second, that in any case,exclusion of socially and educationally backward classes i.e., SCs,STs and non-creamy layer OBCs from the benefit of the specialprovisions for EWS is inexplicably discriminatory and destroys thebasic structure of the Constitution; and third, that providing for tenper cent additional reservation directly breaches the fifty per centceiling of reservations already settled by decisions of Supreme Courtand hence, results in unacceptable abrogation of the Equality Codewhich, again, destroys the basic structure of the Constitution –Constitution (One Hundred and Third Amendment) Act, 2019 –Validity of – Held (per 3:2 majority) (Majority opinion contained inseparate judgments rendered by Dinesh Maheshwari, Bela M.Trivedi and J.B. Pardiwala, JJ.) : Valid – Held (per DineshMaheshwari, J.): Reservation is an instrument of affirmative actionby the State so as to ensure all-inclusive march towards the goals of

DEF

Aan egalitarian society while counteracting inequalities; it is aninstrument not only for inclusion of socially and educationallybackward classes to the mainstream of society but, also for inclusionof any class or section so disadvantaged as to be answering thedescription of weaker section – In this background, reservationstructured singularly on economic criteria does not violate anyBessential feature of the Constitution and does not cause any damageto the basic structure of the Constitution – Exclusion of the classescovered by Arts.15(4), 15(5) and 16(4) from getting the benefit ofreservation as economically weaker sections, being in the nature ofbalancing the requirements of non-discrimination and compensatoryCdiscrimination, does not violate Equality Code and does not in anymanner cause damage to the basic structure of the Constitution –Reservation for economically weaker sections of citizens up to tenper cent in addition to the existing reservations does not result inviolation of any essential feature of the Constitution and does notcause any damage to the basic structure of the Constitution onDaccount of breach of the ceiling limit of fifty per cent because, thatceiling limit itself is not inflexible and in any case, applies only toreservations envisaged by Arts.15(4), 15(5) and 16(4) of theConstitution – The 103[rd] Constitution Amendment cannot be said tobreach the basic structure of the Constitution by permitting the StateEto make special provisions, including reservation, based oneconomic criteria or by permitting the State to make special provisionsin relation to admission to private unaided institutions or in excludingthe SEBCs/OBCs/SCs/STs from the scope of EWS reservation – Held(per Bela M. Trivedi, J.) (Concurring with Dinesh Maheshwari, J.):The impugned amendment enabling the State to make specialFprovisions for the “economically weaker sections” of the citizensother than the scheduled castes/schedules tribes and socially andeducationally backward classes of citizens, is required to be treatedas an affirmative action on the part of the Parliament for the benefitand for advancement of the economically weaker sections of theGcitizens – Treating economically weaker sections of the citizens as aseparate class would be reasonable classification, and cannot betermed as an unreasonable or unjustifiable classification, much lessa betrayal of basic feature or violative of Art.14 – Just as equalscannot be treated unequally, unequals also cannot be treated equally– Treating unequals as equals would as well offend the doctrine ofHequality enshrined in Arts.14 and 16 of the Constitution – Theimpugned amendment creates separate class of “economicallyweaker sections of the citizens” from the general/unreserved class,without affecting the special rights of reservations provided to theScheduled Caste/Scheduled Tribe and backward class of citizenscovered under Art.15(4), 15(5) and 16(4) – Therefore, their exclusionfrom the newly created class for the benefit of the “economicallyweaker sections of the citizens” in the impugned amendment cannotbe said to be discriminatory or violative of the equality code – Suchamendment could certainly be not termed as shocking,unconscionable or unscrupulous travesty of the quintessence ofequal justice – The limitations- substantive or procedural - imposedon the exercise of constituent power of the State under Art.368 couldnot be said by any stretch of imagination, to have been disregardedby the Parliament – Neither the procedural limitation i.e. the modeof exercise of the amending power nor the substantive limitation i.e.the restricted field has been disregarded, which otherwise wouldinvalidate the impugned amendment – What is visualised in thePreamble and what is permissible both in Part-III and Part-IV of theConstitution cannot be said to be violative of the basic structure orbasic feature of the Constitution – In absence of any obliteration ofany of the constitutional provisions or any alteration or destructionin the existing structure of equality code or in the basic structure ofthe Constitution, neither the width test nor the identity test aspropounded in Kesavananda case can be said to have been violatedin the impugned Amendment – Accordingly, the challenge to theconstitutional validity of the 103[rd] Amendment fails, and the validitythereof is upheld – However, there is need to revisit the system ofreservation in the larger interest of the society as whole, as stepforward towards transformative constitutionalism – If time limit isprescribed, for the special provisions in respect of the reservationsand representations provided in Arts. 15 and 16 of the Constitution,it could be way forward leading to an egalitarian, casteless andclassless society – Held (per J.B. Pardiwala, J.) (Concurring withDinesh Maheshwari, J.): Reservation is not an end but means – ameans to secure social and economic justice – The longstandingdevelopment and the spread of education have resulted in taperingthe gap between the classes to considerable extent – As largerpercentages of backward class members attain acceptable standards

Aof education and employment, they should be removed from thebackward categories so that the attention can be paid toward thoseclasses which genuinely need help – In such circumstances, it isvery much necessary to take into review the method of identificationand the ways of determination of backward classes, and also,ascertain whether the criteria adopted or applied for theBclassification of backward is relevant for today’s conditions –Reservation should not continue for an indefinite period of time soas to become vested interest – The impugned amendment is validand in no manner alters the basic structure of the Constitution –Held (per S. Ravindra Bhat, J. (for Uday Umesh Lalit, CJI andChimself) (Minority opinion): The States’ compelling interest to fulfilthe objectives set out in the Directive Principles, through specialprovisions on the basis of economic criteria, is legitimate – Thatreservation or special provisions have so far been provided in favourof historically disadvantaged communities, cannot be the basis forcontending that other disadvantaged groups who have not beenDable to progress due to the ill effects of abject poverty, should remainso and the special provisions should not be made by way of affirmativeaction or even reservation on their behalf – Therefore, specialprovisions based on objective economic criteria (for the purpose ofArt.15), is per se not violative of the basic structure – However, theEframework in which it has been introduced by the impugnedamendment – by excluding backward classes -– is violative of thebasic structure – The impugned amendment and the classification itcreates, is arbitrary, and results in hostile discrimination of thepoorest sections of the society that are socially and educationallybackward, and/or subjected to caste discrimination – Insertion ofFArt.15(6) and 16(6) is struck down, and is held to be violative of theequality code, particularly the principle of non-discrimination andnon-exclusion which forms an inextricable part of the basic structureof the Constitution – ss.2 and 3 of the Constitution (One Hundredand Third Amendment) Act, 2019 which inserted clause (6) in Art.15Gand clause (6) in Art.16, respectively, are unconstitutional and voidon the ground that they are violative of the basic structure of theConstitution – Constitution of India – Arts. 15 and 16.

Doctrines/Principles – Doctrine of basic structure – VideConstitution (One Hundred and Third Amendment) Act, 2019, Arts.H15 and 16 of the Constitution was amended by adding two new

clauses viz., clause (6) to Art.15 with Explanation and clause (6) toArt.16; and thereby, the State was empowered, inter alia, to providefor maximum of ten per cent reservation for “the economicallyweaker sections” (EWS) of citizens other than “the ScheduledCastes”, “the Scheduled Tribes” and the non-creamy layer of “theOther Backward Classes” – The amendment did not mandate butenabled reservation for EWS and prescribed ceiling limit of tenper cent – Whether the doctrine of basic structure could be invokedfor laying challenge to the 103[rd] Amendment – Held (per DineshMaheshwari, J.): No – Using the doctrine of basic structure as asword against the amendment in question and thereby to stultify State’seffort to do economic justice as ordained by the Preamble and DPSPand, inter alia, enshrined in Articles 38, 39 and 46 of the Constitutioncannot be countenanced – Provisions contained in Arts. 15 and 16of the Constitution, providing for reservation by way of affirmativeaction, being of exception to the general rule of equality, cannot betreated as basic feature – Moreover, even if reservation is one ofthe features of the Constitution, it being in the nature of enablingprovision only, cannot be regarded as an essential feature of thatnature whose modulation for the sake of other valid affirmativeaction would damage the basic structure of the Constitution –Constitution (One Hundred and Third Amendment) Act, 2019.Constitution of India – Art.368 – Power to amend theConstitution availing under Art.368 – Held (Per DineshMaheshwari, J.): Is recognized as constituent power and is subjectto various safeguards intrinsic to Art.368, including the proceduralsafeguards.

Constitution of India – Art.368 – Doctrine of Basic Structureand Constitutional Amendments – Discussed – Held (Per DineshMaheshwari, J.): The power to amend the Constitution essentiallyvests with the Parliament and when high threshold and otherprocedural safeguards are provided in Art.368, it would not becorrect to assume that every amendment to the Constitution couldbe challenged by theoretical reference to the basic structure doctrine– As exposited in Kesavananda case, the amending power can evenbe used by the Parliament to reshape the Constitution in order tofulfil the obligation imposed on the State, subject, of course, to thedefined limits of not damaging the basic structure of the Constitution

A– Again, as put in Kesavananda case, judicial review of constitutionalamendment is matter of great circumspection for the judiciary wherethe Courts cannot be oblivious of the practical needs of theGovernment and door has to be left open even for ‘trial and error’,subject, again, to the limitations of not damaging the identity of theConstitution – The expressions “basic features” and “basicBstructure” convey different meaning, even though many times theyhave been used interchangeably – Basic structure of the Constitutionis the sum total of its essential features – As to when abrogation ofany particular essential feature would lead to damaging the basicstructure of Constitution would depend upon the nature of thatCfeature as also the nature of amendment – As regards Part-III of theConstitution, every case of amendment of Fundamental Rights maynot necessarily result in damaging or destroying the basic structure– The issue would always be as to whether what is sought to bewithdrawn or altered is an inviolable part of the basic structure –Mere violation of the rule of equality does not violate the basicDstructure of the Constitution unless the violation is shocking,unconscionable or unscrupulous travesty of the quintessence ofequal justice – If any constitutional amendment moderately abridgesor alters the equality principles, it cannot be said to be violationof the basic structure.

EDoctrines / Principles – Doctrine of equality – Reasonableclassification – Discussed – Held (Per Dinesh Maheshwari, J.):Equals must be treated equally while unequals need to be treateddifferently – classification to be valid must necessarily satisfy twotests: first, the distinguishing rationale should be based on justFobjective and secondly, the choice of differentiating one set ofpersons from another should have reasonable nexus to the objectsought to be achieved – However, valid classification does notrequire mathematical niceties and perfect equality; nor does it requireidentity of treatment – If there is similarity or uniformity within

group, the law will not be condemned as discriminatory, even thoughGdue to some fortuitous circumstances arising out of particularsituation, some included in the class get an advantage over othersleft out, so long as they are not singled out for special treatment – Inspite of certain indefiniteness in the expression ‘equality’, when thesame is sought to be applied to particular case or class of cases in

the complex conditions of modern society, there is no denying thefact that the general principle of ‘equality’ forms the basis of aDemocratic Government – Democracy – Constitution of India –Arts. 14 to 18.

Reservation – Affirmative Action by ‘Reservation’: Exceptionto the General Rule of Equality – Affirmative action by way ofcompensatory discrimination – Held (Per Dinesh Maheshwari, J.):In multifaceted social structure, ensuring substantive and realequality, perforce, calls for consistent efforts to remove inequalities,wherever existing and in whatever form existing – Hence, the Stateis tasked with affirmative action – And, one duly recognised form ofaffirmative action is by way of compensatory discrimination, whichhas the preliminary goal of curbing discrimination and the ultimategoal of its eradication so as to reach the destination of real andsubstantive equality – This has led to what is known as reservationand quota system in State activities – The ‘doctrine of equality’, ascollectively enshrined in Arts.14 to 18, happens to be the principalbasis for the creation of reasonable classification whereunder‘affirmative action’, be it legislative or executive, is authorised tobe undertaken – The constitutional Courts too, precedent byprecedent, have constructively contributed to evolution of what maybe termed as ‘reservation jurisprudence’ – Reservationjurisprudence – Constitution of India – Arts. 14 to 18.

Reservation – For economically weaker sections – EconomicDisabilities and Affirmative Action – Held (Per Dinesh Maheshwari,J.): The expression ‘economically weaker sections of citizens’ is nota matter of mere semantics but is an expression of hard realities –Poverty is not merely state of stagnation but is point of regression– Providing for affirmative action in relation to one particularsegment or class may operate constructively in the direction ofmeeting with and removing the inequalities faced by that segment orclass but, if another segment of society suffers from inequalitiesbecause of one particular dominating factor like that of poverty,the said segment could not be denied of the State support by way ofaffirmative action of reservation only because of the fact that thatsegment is otherwise not suffering from other disadvantages – Inthe State’s efforts of ensuring all-inclusive socio-economic justice,there cannot be competition of claims for affirmative action based

Aon disadvantages in the manner that one disadvantaged sectionwould seek denial of affirmative action for another disadvantagedsection – Justice – Socio-economic justice.

Doctrines /Principles – Principle of “Distributive Justice” –Discussed – Mandate of the Constitution – Held (Per DineshBMaheshwari, J.): Principle of “Distributive Justice” is bedrock ofthe provisions like Art.46 as also Arts. 38 and 39 of the Constitution– The mandate of the Constitution to the State is to administerdistributive justice; and in the law-making process, the concept ofdistributive justice connotes, inter alia, the removal of economicinequalities – There could be different methods of distributive justiceC– The philosophy of distributive justice is of wide amplitude which,inter alia, reaches to the requirements of removing economicinequalities; and then, it is not confined to one class or few classesof the disadvantaged citizens – The wide spectrum of distributivejustice mandates promotion of educational and economic interestsDof all the weaker sections, in minimizing the inequalities in income

as also providing adequate means of livelihood to the citizens – Inthis commitment, leaving one class of citizens to struggle because ofinequalities in income and want of adequate means of livelihoodmay not serve the ultimate goal of securing all-inclusive socio-economic justice – Constitution of India – Art.46, 38 and 39 – WordsEand Phrases – “Distributive Justice”.

Constitution of India – Doctrine of Basic Structure andConstitutional Amendments – Held (Per Dinesh Maheshwari, J.):There is no, and there cannot be any, cut-and-dried formula or atheorem which could supply ready-made answer to the questionFas to whether particular amendment to the Constitution violatesor affects the basic structure – The nature of amendment and thefeature/s of the Constitution sought to be touched, altered,modulated, or changed by the amendment would be the materialfactors for an appropriate determination of the question – DoctrineGof basic structure cannot be readily applied to every constitutionalamendment – Supreme Court has applied the same only against suchhostile constitutional amendments which were found to be strikingat the very identity of the Constitution, like direct abrogation of thefeatures of judicial review (Kesavananda, Minerva Mills and P.Sambhamurthy cases); free and fair elections (Indira Nehru GandhiH

case); plenary jurisdiction of constitutional Courts (L. ChandraKumar case); and independence of judiciary (NJAC Judgment case)– Most of the other attempts to question the constitutional amendmentshave met with disapproval of the Court even when there had beendeparture from the existing constitutional provisions and scheme.

Constitution of India – Interplay of amending powers of theParliament and judicial review by the Constitutional Court over suchexercise of amending powers – Reason for minimal interference bySupreme Court in the constitutional amendments – Held (Per DineshMaheshwari, J.): In our constitutional set-up of parliamentarydemocracy, even when the power of judicial review is an essentialfeature and thereby an immutable part of the basic structure of theConstitution, the power to amend the Constitution, vested in theParliament in terms of Art.368, is equally an inherent part of thebasic structure of the Constitution – Both these powers, of amendingthe Constitution (by Parliament) and of judicial review (byConstitutional Court) are subject to their own limitations.

Reservation – Compensatory discrimination – Exclusion ofSocially and Educationally Backward Classes (SEBCs) / OtherBackward Classes (OBCs) / Scheduled Castes (SCs)/ ScheduledTribes (STs) from Economically Weaker Sections (EWS) reservation– Held (Per Dinesh Maheshwari, J.): Compensatory discrimination,wherever applied, is exclusionary in character and could acquireits worth and substance only by way of exclusion of others – Suchdifferentiation cannot be said to be legally impermissible; rather itis inevitable – Exclusion of Socially and Educationally BackwardClasses (SEBCs) / Other Backward Classes (OBCs) / ScheduledCastes (SCs)/ Scheduled Tribes (STs) from Economically WeakerSections (EWS) reservation is compensatory discrimination of thesame species as is exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.

Reservation – Reservation by affirmative action – Held (PerDinesh Maheshwari, J.): Economic backwardness of citizens canalso be the sole ground for providing reservation by affirmativeaction.

Equality – Indian constitutional jurisprudence – Equalityclause in the Constitution – Held (Per Dinesh Maheshwari, J.):

AGuarantee of equality is substantive and not mere formalisticrequirement – Equality is at the nucleus of the unified goals of socialand economic justice.

Reservation – Exception to the general rule of equality – Held(Per Dinesh Maheshwari, J.): For the socio-economic structure whichBthe law in our democracy seeks to build up, the requirements of realand substantive equality call for affirmative action – Reservation isrecognised as one such affirmative action, which is permissible underthe Constitution; and its operation is defined by large number ofdecisions of this Court, running up to the detailed expositions in Dr.Jaishri Patil case – However, reservation is nevertheless an exceptionCto the general rule of equality and hence, cannot be regarded assuch an essential feature of the Constitution that cannot bemodulated.

Constitution of India – Art.46 – Phraseology of Art. 46 –Expression “other weaker sections” in Art.46 – Meaning of – HeldD(Per Dinesh Maheshwari, J.): The broader expression “other weakersections” in Art.46 is disjointed from the particular weaker sections(Scheduled Castes and Scheduled Tribe); and is not confined toonly those sections who are similarly circumstanced to SCs and STs– It cannot be said that the expression “other weaker sections” isEnot to be given widest possible meaning or that this expression refersonly to those weaker sections who are similarly circumstanced toSCs and STs – Reservation.

Constitution of India – Amendment to – Scope for judicialreview –Held (per Bela Trivedi, J.): Any amendment made by theFParliament is open to judicial review and is liable to be interferedwith by the Court on the ground that it affects one or the other basicfeature of the Constitution.

Constitution of India – Amendment to – Challenge to, onground of being discriminatory – Held (per Bela Trivedi, J.): AGConstitutional amendment cannot be struck down as discriminatoryif the state of facts are reasonably conceived to justify it.

Constitution of India – Interpretation of – Distinction frominterpretation of statutes – Held (per J.B. Pardiwala, J.): If there isan apparent or real conflict between two provisions of theConstitution, it is to be resolved by applying the principle ofH

harmonious construction – The rules of the interpretation of theConstitution have to take into consideration the problems ofgovernment, structure of State, dynamism in operation, cautionabout checks and balances, not ordinarily called for in theinterpretation of statutes.

Constitution of India – Amendment of – Scope and limitations– Held (per J.B. Pardiwala, J.): Since the power to amend theConstitution is derivative power, the exercise of such power toamend the Constitution is subject to two limitations, namely, thedoctrine of Basic Structure and lack of legislative competence – Ifan amendment is to be struck down under the ‘basic structure’formulation, the central principle of these inter-related provisionsshould be at threat – mere violation of one of the enablingprovisions would not be of much consequence under the doctrine ofBasic Structure as long as such violation does not infringe upon thecentral thesis of equality – Redress for marginal encroachmentcannot be found under the ‘Basic Structure Doctrine’ – Doctrines/Principles – Doctrine of ‘Basic Structure’.Constitution (One Hundred and Third Amendment) Act, 2019– Challenge to – Vide said amendment, Arts. 15 and 16 of theConstitution was amended by adding two new clauses viz., clause(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby,the State was empowered, inter alia, to provide for maximum of tenper cent reservation for “the economically weaker sections” (EWS)of citizens other than “the Scheduled Castes”, “the ScheduledTribes” and the non-creamy layer of “the Other Backward Classes”– Held (per J.B. Pardiwala, J.): The new concept of economiccriteria introduced by the impugned amendment for affirmative actionmay go long way in eradicating caste-based reservation – It maybe perceived as first step in the process of doing away with caste-based reservation.

Doctrines/ Principles – Doctrine of basic structure – Enablingprovision – Effect of – Held (per Ravindra Bhat, J. (for Uday UmeshLalit, CJI and himself): It is inaccurate to say that provisions thatenable, exercise of power, would not violate the basic structure ofthe Constitution – The court’s inquiry therefore, cannot stop at thethreshold, when an enabling provision is enacted – Its potential for

ABC

Aviolating the basic structure of the Constitution is precisely the powerit confers, on the legislature, or the executive.

Constitution of India – Judicial review of constitutionalamendments – Scope – Held (per Ravindra Bhat, J. (for Uday UmeshLalit, CJI and himself): Appropriate test or standard of judicialBreview of constitutional amendments is not the same as in the caseof ordinary laws – In constitutional amendment judicial review, thecourt would consider the history of the provision amended, or theway the new provision impacts the identity, or character, or natureof the Constitution.

CConstitution of India – Fraternity – Relevance of – Held (perRavindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): Peoplecannot be assured of Justice, Liberty or Equality, unless Fraternityin one form or another, to some degree, is felt by individuals at eachlevel of our social order, and economic system – Weakening fraternitytherefore undermines justice, liberty, and equality – The value ofDfraternity is as much part of the equality code, and its facets –equality of opportunity, the principle of non-discrimination and thenon-exclusionary principle, as it inextricably binds them with theconcepts of liberty and freedom.

Words and Phrases – “basic features” and “basic structure”E– Meaning of – Held (per Dinesh Maheshwari, J.): Basic structureof the Constitution is the sum total of its essential features.

Words and Phrases – Words “other than” in Arts. 15(6) and16(6) of the Constitution – If to be read as “in addition to”, so as toinclude SCs/STs/OBCs within Economically Weaker Sections (EWS)F– Held (per Dinesh Maheshwari, J.): The suggested construction isplainly against the direct meaning of the exclusionary expression“other than” as employed in, and for the purpose of, the said Arts.15(6) and 16(6) – Constitution of India – Arts. 15(6) and 16(6).

Words and Phrases – “compensatory discrimination” andG“reservation jurisprudence” – Discussed (per Dinesh Maheshwari,J.).

Words and Phrases – “economically weaker sections ofcitizens” – Meaning of – Discussed (per Dinesh Maheshwari, J.).

Equality – Real and substantive equality – Economic justicevis-à-vis social justice – Discussed (per Dinesh Maheshwari, J.).

In the instant writ petitions and other proceedings thefollowing three questions came up for consideration:-

Question 1: Whether the 103[rd] Constitution Amendmentcan be said to breach the basic structure of the Constitution bypermitting the State to make special provisions, includingreservation, based on economic criteria?

Question 2: Whether the 103[rd] Constitution Amendmentcan be said to breach the basic structure of the Constitution bypermitting the State to make special provisions in relation toadmission to private unaided institutions?

Question 3: Whether the 103[rd] Constitution Amendmentcan be said to breach the basic structure of the Constitution inexcluding the SEBCs/OBCs/SCs/STs from the scope of EWSreservation?

Disposing of the Writ petitions and other proceedings, theCourt

HELD:

Per COURT (3:2 majority)

In view of the decision rendered by the majority consistingof Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. JusticeBela M. Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, thechallenge raised to 103[rd] Amendment to the Constitution failsand the decision rendered by Hon’ble Mr. Justice S. RavindraBhat remains in minority. [Para 2]

Per DINESH MAHESHWARI, J.

HELD: 1. The power to amend the Constitution availingunder Article 368 has been significant area of the developmentof Constitutional Law in our country. This power, recognised as aconstituent power, is subject to various safeguards which areintrinsic to Article 368, including the procedural safeguards. [Para34][96-D-E]

14SUPREME COURT REPORTS

A2. The expressions “basic features” and “basic structure”convey different meaning, even though many times they have beenused interchangeably. It could reasonably be said that basicstructure of the Constitution is the sum total of its essentialfeatures. As to when abrogation of any particular essential featurewould lead to damaging the basic structure of Constitution wouldBdepend upon the nature of that feature as also the nature ofamendment. [Paras 39.4, 39.5][124-D-E]

3. In nutshell, the principle of equality can be stated thus:equals must be treated equally while unequals need to be treateddifferently, inasmuch as for the application of this principle in realClife, one has to differentiate between those who being equal, aregrouped together, and those who being different, are left out fromthe group. This is expressed as reasonable classification. Now, aclassification to be valid must necessarily satisfy two tests: first,the distinguishing rationale should be based on just objectiveDand secondly, the choice of differentiating one set of persons fromanother should have reasonable nexus to the object sought tobe achieved. However, valid classification does not requiremathematical niceties and perfect equality; nor does it requireidentity of treatment. If there is similarity or uniformity within agroup, the law will not be condemned as discriminatory, evenEthough due to some fortuitous circumstances arising out of aparticular situation, some included in the class get an advantageover others left out, so long as they are not singled out for specialtreatment. In spite of certain indefiniteness in the expression‘equality’, when the same is sought to be applied to particularFcase or class of cases in the complex conditions of modernsociety, there is no denying the fact that the general principle of‘equality’ forms the basis of Democratic Government. [Para44][127-A-D]

4. In the multifaceted social structure, ensuring substantiveGand real equality, perforce, calls for consistent efforts to removeinequalities, wherever existing and in whatever form existing.Hence, the State is tasked with affirmative action. And, one dulyrecognised form of affirmative action is by way of compensatorydiscrimination, which has the preliminary goal of curbing

discrimination and the ultimate goal of its eradication so as toreach the destination of real and substantive equality. This hasled to what is known as reservation and quota system in Stateactivities. [Para 48][129-A-C]

5. The ‘doctrine of equality’, as collectively enshrined inArticles 14 to 18, happens to be the principal basis for the creationof reasonable classification whereunder ‘affirmative action’, beit legislative or executive, is authorised to be undertaken. Theconstitutional Courts too, precedent by precedent, haveconstructively contributed to the evolution of what one may termas ‘reservation jurisprudence’. However, reservation, one of thepermissible affirmative actions enabled by the Constitution ofIndia, is nevertheless an exception to the general rule of equalityand hence, cannot be regarded as such an essential feature of theConstitution that cannot be modulated; or whose modulation fora valid reason, including benefit of any section other than thesections who are already availing its benefit, may damage the basicstructure. [Paras 50, 56][129-F-G; 130-A; 133-D]

6. In almost all references to real and substantive equality,the concept of economic justice has acquired equal focus alongsidethe principles of social justice. In giving effect to the rule of equalityenshrined in Article 14, the Courts have also been guided by thejurisprudence evolved by the U.S. Supreme Court in the light ofthe amendments made to their Constitution, which were foundedon economic considerations. This is to highlight that the economicbackwardness of citizens can also be the sole ground for providingreservation by affirmative action. Any civilized jurisdictiondifferentiates between haves and have-nots, in several walks oflife and more particularly, for the purpose of differential treatmentby way of affirmative action. If an egalitarian socio-economic orderis the goal so as to make the social and economic rights ameaningful reality, which indeed is the goal of our Constitution,the deprivations arising from economic disadvantages, includingthose of discrimination and exclusion, need to be addressed to bythe State; and for that matter, every affirmative action has thesanction of our Constitution, as noticeable from the frame of

APreamble as also the text and texture of the provisions containedin Part III and Part IV. [Paras 64, 65, 67][138-F, G; 139-A, E-F]

7. The expression ‘economically weaker sections of citizens’is not matter of mere semantics but is an expression of hardrealities. Poverty is not merely state of stagnation but is pointBof regression. Of course, mass poverty cannot be eliminated withina short period and it is question of progress along time path.In Kesavananda case, building Welfare State is held to be one ofthe main objectives of the Constitution. In the Welfare State, publicpower becomes an instrumentality for the achievement ofpurposes beyond the minimum objectives of domestic order andCnational defence. It is not enough that the society be securedagainst internal disorder and/or external aggression; societycan be thus secured and well-ordered but, could be lacking inreal and substantive justice for all. Equally, providing foraffirmative action in relation to one particular segment or classDmay operate constructively in the direction of meeting with andremoving the inequalities faced by that segment or class but, ifanother segment of society suffers from inequalities because ofone particular dominating factor like that of poverty, the questionarises as to whether the said segment could be denied of theState support by way of affirmative action of reservation onlyEbecause of the fact that that segment is otherwise not sufferingfrom other disadvantages. The answer could only be in thenegative for, in the State’s efforts of ensuring all-inclusive socio-economic justice, there cannot be competition of claims foraffirmative action based on disadvantages in the manner that oneFdisadvantaged section would seek denial of affirmative action foranother disadvantaged section. [Paras 69, 70][140-B, F-H; 141-A-B]

8. On contextual reading, it could reasonably be culledout that the observations, wherever occurring in the decisions ofGthis Court, to the effect that reservation cannot be availed onlyon economic criteria, were to convey the principle that to availthe benefit of this affirmative action under Articles 15(4) and/or15(5) and/or 16(4), as the case may be, the class concerned oughtto be carrying some other disadvantage too and not the economicdisadvantage alone. The said decisions cannot be read to meanH

that if any class or section other than those covered by Articles15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage onlydue to economic conditions, the State can never take affirmativeaction qua that class or section. In view of the principles discerniblefrom the decisions as also the background aspects, including theavowed objective of socio-economic justice in the Constitution,the observations of this Court in the past decisions thatreservations cannot be claimed only on the economic criteria,apply only to class or classes covered by or seeking coverageunder Articles 15(4) and/or 15(5) and/or 16(4); and else, this Courthas not put blanket ban on providing reservation for othersections who are disadvantaged due to economic conditions.[Paras 72, 73][156-D-G]9. The mandate of the Constitution to the State is toadminister distributive justice; and in the law-making process,the concept of distributive justice connotes, inter alia, the removalof economic inequalities. There could be different methods ofdistributive justice; and it comprehends more than merelyachieving the lessening of inequalities by tax or debt reliefmeasures or by regulation of contractual transactions orredistribution of wealth, etc. It is more than evident that thephilosophy of distributive justice is of wide amplitude which, interalia, reaches to the requirements of removing economicinequalities; and then, it is not confined to one class or fewclasses of the disadvantaged citizens. In other words, the widespectrum of distributive justice mandates promotion of educationaland economic interests of all the weaker sections, in minimizingthe inequalities in income as also providing adequate means oflivelihood to the citizens. In this commitment, leaving one classof citizens to struggle because of inequalities in income and wantof adequate means of livelihood may not serve the ultimate goalof securing all-inclusive socio-economic justice. In fact, theargument that the State may adopt any poverty alleviation measurebut cannot provide reservation for EWS by way of affirmative actionproceeds on the assumption that the affirmative action ofreservation in our constitutional scheme is itself reserved onlyfor SEBCs/OBCs/SCs/STs in view of the existing text of Articles

A15(4), 15(5) and 16(4) of the Constitution. Such an assumption isneither valid nor compatible with our constitutional scheme. Thisline of argument is wanting on the fundamental constitutionalobjectives, with the promise of securing ‘JUSTICE, social,economic and political’ for ‘all’ the citizens; and to promoteFRATERNITY among them ‘all’. Thus viewed, the challenge toBthe amendment in question fails on the principle of distributivejustice. [Paras 74.1.1, 74.1.2]P158-B-H]

10. Though, the text and the order of expressions used inthe body of Article 46 have been repeatedly recounted on behalfof the petitioners to emphasise on the arguments based onCejusdem generis principle of interpretation but, as aforesaid, thatprinciple does not fit in the interpretation of an organic thing likethe Constitution. This apart, when traversing through theprinciples of interpretation, it could also be noticed that in case ofany doubt, the heading or sub-heading of provision could also

Dbe referred to as an internal aid in construing the provision, whilenot cutting down the wide application of clear words used in theprovision. What is interesting to notice is that in the heading ofArticle 46, the chronology of the description of target groups forpromotion of educational and economic interests is stated inreverse order than the contents of the provision. The headingEsignifies ‘Promotion of educational and economic interests ofScheduled Castes, Scheduled Tribes and other weaker sections’whereas the contents of the main provision are framed with thesentence ‘interest of the weaker sections of the people, and, inparticular, of the Scheduled Castes and the Scheduled Tribes’. AFsimple reading of the heading together with the contents wouldmake 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 toonly those sections who are similarly circumstanced to SCs andSTs. [Para 74.2.3][159-G-H; 160-A-D]G

11. The amendment in question could be correlated withany other provision of the Constitution, including the Preambleas well as Articles 38 and 39. Moreover, it is not the requirement

of our constitutional scheme that an amendment to the Constitutionhas to be based on some existing provision in DPSP. In fact, anamendment to the Constitution (of course, within the bounds ofbasic structure) could be made even without any correspondingprovision in DPSP. In the aforesaid view of matter, there appearsno reason to analyse another unacceptable line of argumentsadopted by the petitioners that the amendment in questionprovides for compensatory discrimination in favour of the so-calledforward class/caste. Suffice it to observe that the amendment inquestion is essentially related to the requirements of thoseeconomically weaker sections who have hitherto not been giventhe benefit of such an affirmative action (particularly ofreservation), which was accorded to the other class/classes ofcitizens namely, the SEBCs/OBCs/SCs/STs. Viewing thisaffirmative action of EWS reservation from the standpoint ofbackward class versus forward class is not in accord with the verypermissibility of compensatory discrimination towards the goal ofreal and substantive justice for all. The challenge to theamendment in question on the ground that though the State couldtake all the relevant measures to deal with poverty and thedisadvantages arising therefrom but, the affirmative action ofreservation is envisaged by the Constitution only for socially andeducationally backward class of citizens; and economicdisadvantage alone had never been in contemplation for this actionof reservation, is required to be rejected. In any case, anylegitimate effort of the State towards all-inclusive socio-economicjustice, by way of affirmative action of reservation in support ofeconomically weaker sections of citizens, who had otherwise notbeen given the benefit of this affirmative action, cannot be lightlyinterfered with by the Court. [Paras 74.3, 75, 76][160-F-H; 161-A-B, D-E]

12. EWS reservation itself is another form of compensatorydiscrimination, which is meant for serving the cause of suchweaker sections who have hitherto not been given any Statesupport by way of reservation. SEBCs/OBCs/SCs/STs are havingthe existing compensatory discrimination in their favour whereinthe presently supported EWS are also excluded alongwith all otherexcluded classes/persons. As necessary corollary, when EWS

Ais to be given support by way of compensatory discrimination,that could only be given by exclusion of others, and moreparticularly by exclusion of those who are availing the benefit ofthe existing compensatory discrimination in exclusion of all others.Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs fromEWS reservation is the compensatory discrimination of the sameBspecies as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation. As said above, compensatory discrimination,wherever applied, is exclusionary in character and could acquireits worth and substance only by way of exclusion of others. Suchdifferentiation cannot be said to be legally impermissible; ratherCit is inevitable. [Para 82.1][165-E-F]13. The fact that exclusion is innate in compensatorydiscrimination could further be exemplified by the fact that in IndraSawhney, this Court excluded the creamy layer of OBCs from thebenefit of reservation. In the complex set-up of formal equalityDon one hand (which debars discrimination altogether) and realand substantive equality on the other (which permitscompensatory discrimination so as to upset the disadvantages),exclusion is as indispensable as the compensatory discriminationitself is. In fact, ‘creamy layer’ principle itself was applied to makea true compact of socially and educationally backward class. TwoEfeatures strikingly come to fore with creamy layer principle. Oneis that to make real compact of socially and educationallybackward class, economic factors play an equally important role;and then, the exclusionary principle applies therein too. Thesetwo features, when applied to the present case, make it clear that

Fthe use of economic criteria is not contra- indicated for the exerciseof reservation, rather it is imperative; and second, to make theexercise of compensatory discrimination meaningful so as toachieve its desired result, exclusion of every other class/personfrom the target group is inevitable. Thus viewed, the amendmentin question remains unexceptionable in the accepted principlesGof constitutional law presently in operation. [Paras 83, 83.1][166-B-E]

14. Having examined the permissible limits of affirmativeaction in light of the possible harm of preferential treatment quaother innocent class of competitors, i.e., general merit candidates,H

this Court has expressed the desirability of fifty per cent as theceiling limit for reservation in education and public employmentbut, all such observations are required to be read essentially inthe context of the reservation obtaining under Articles 15(4), 15(5)and 16(4) or other areas of affirmative action like that in relationto local self- government and cannot be overstretched to thereservation provided for entirely different class, consisting of theeconomically weaker sections. [Para 93][178-B-D]

15. In the ultimate analysis, it is beyond doubt that usingthe doctrine of basic structure as sword against the amendmentin question and thereby to stultify State’s effort to do economicjustice as ordained by the Preamble and Directive Principles ofState Policy (DPSP) and, inter alia, enshrined in Articles 38, 39and 46, cannot be countenanced. This is essentially for the reasonthat the provisions contained in Articles 15 and 16 of theConstitution of India, providing for reservation by way ofaffirmative action, being of exception to the general rule of equality,cannot be treated as basic feature. Moreover, even ifreservation is one of the features of the Constitution, it being inthe nature of enabling provision only, cannot be regarded as anessential feature of that nature whose modulation for the sake ofother valid affirmative action would damage the basic structure ofthe Constitution. Therefore, the doctrine of basic structure cannotbe invoked for laying challenge to the 103rd Amendment. [Para101][182-E-G]

16. Reservation is an instrument of affirmative action bythe State so as to ensure all-inclusive march towards the goals ofan egalitarian society while counteracting inequalities; it is aninstrument not only for inclusion of socially and educationallybackward classes to the mainstream of society but, also forinclusion of any class or section so disadvantaged as to beanswering the description of weaker section. In this background,reservation structured singularly on economic criteria does notviolate any essential feature of the Constitution of India and doesnot cause any damage to the basic structure of the Constitutionof India. [Para 102][183-B-C]

ABC

A17. Exclusion of the classes covered by Articles 15(4), 15(5)and 16(4) from getting the benefit of reservation as economicallyweaker sections, being in the nature of balancing the requirementsof non-discrimination and compensatory discrimination, does notviolate Equality Code and does not in any manner cause damageto the basic structure of the Constitution of India. [Para 102][183-BD]

18. Reservation for economically weaker sections of citizensup to ten per cent. in addition to the existing reservations doesnot result in violation of any essential feature of the Constitutionof India and does not cause any damage to the basic structure ofCthe Constitution of India on account of breach of the ceiling limitof fifty per cent because, that ceiling limit itself is not inflexibleand in any case, applies only to the reservations envisaged byArticles 15(4), 15(5) and 16(4) of the Constitution of India. [Para102][183-E-F]D[[rd]]

19. The 103[[rd]] Constitution Amendment cannot be said tobreach the basic structure of the Constitution by permitting theState to make special provisions, including reservation, based oneconomic criteria. [Para 104][184-A]

20. The 103[rd] Constitution Amendment cannot be said toEbreach the basic structure of the Constitution by permitting theState to make special provisions in relation to admission to privateunaided institutions. [Para 104][184-B]

21. The 103[rd] Constitution Amendment cannot be said tobreach the basic structure of the Constitution in excluding theFSEBCs/OBCs/SCs/STs from the scope of EWS reservation. [Para104][184-B]

Kesavananda Bharati Sripadagalvaru v. State of Keralaand Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; BhimSinghji v. Union of India and Ors. (1981) 1 SCC 166Gand Minerva Mills Ltd. and Ors. v. Union of India andOrs. (1980) 3 SCC 625: [1981] 1 SCR 206 – reliedon.

State of Madras v. Champakam Dorairajan AIR 1951SC 226: [1951] SCR 525; K.C. Vasanth Kumar and Anr.

v. State of Karnataka1985 Supp SCC 714:A[1985] Suppl. SCR 352; Justice K.S. Puttaswamy(Retd.) and Anr. v. Union of India and Ors. (2017) 10SCC 1: [2017] 10 SCR 569; People’s Union forDemocratic Rights and Ors. v. Union of India and Ors.(1982) 3 SCC 235: [1983] 1 SCR 456; Jolly GeorgeBVarghese and Anr. v. The Bank of Cochin (1980) 2 SCC360: [1980] 2 SCR 913; Ahmedabad MunicipalCorporation v. Nawab Khan Gulab Khan and Ors.(1997) 11 SCC 121:[1996] 7 Suppl. SCR 548; State ofKerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC310; P. Sambhamurthy and Ors. v. State of AndhraCPradesh and Anr. (1987) 1 SCC 362: [1987]1 SCR 879; Lingappa Pochanna Appelwar v. State ofMaharashtra and Anr. (1985) 1 SCC 479: [1985]2 SCR 224; T. Devadasan v. Union of India and Anr.[1964] 4 SCR 680; Indra Sawhney and Ors. v. UnionDof India and Ors. 1992 Supp (3) SCC 217; M. Nagarajand Ors. v. Union of India and Ors. (2006) 8 SCC212:[2006] 7 Suppl. SCR 336; Ashoka Kumar Thakurv. Union of India and Ors. (2008) 6 SCC 1:[2008]4 SCR 1; M.R. Balaji and Ors. v. State of Mysore andOrs. [1963] Supp 1 SCR 439; Indra Sawhney v. UnionEof India (2000) 1 SCC 168:[1999] 5 Suppl. SCR 229;R. Chitralekha and Anr. v. State of Mysore and Ors.[1964] 6 SCR 368; Janki Prasad Parimoo and Ors. v.State of J&K and Ors. (1973) 1 SCC 420: [1973] 3SCR 236; Sri Sankari Prasad Singh Deo v. Union ofFIndia and Anr. [1952] SCR 89; Sajjan Singh v. State ofRajasthan [1965] 1 SCR 933; I.C. Golak Nath and Ors.v. State of Punjab and Anr. [1967] 2 SCR 762; E.P.Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC3: [1974] 2 SCR 348; Prathvi Raj Chauhan v. Unionof India and Ors. (2020) 4 SCC 727: [2020] 2GSCR 727; B.K. Pavitra and Ors. v. Union of India andOrs. (2019) 16 SCC 129:[2019] 7 SCR 1086; Dr. JaishriLaxmanrao Patil v. Chief Minister and Ors. (2021) 8SCC 1; Dayaram Khemkaran Verma v. State of Gujarat2016 SCC Online Guj 1821;Madhav Rao Scindia

Bahadur etc. v. Union of India (1971) 1 SCC 85:[ 1971]3 SCR 9; State (NCT of Delhi) v. Union of India andAnr. (2018) 8 SCC 501: [2018] 7 SCR 1; T.M.A. PaiFoundation and Ors. v. State of Karnataka and Ors.(2002) 8 SCC 481; V.V. Giri v. D.S. Dora [1960] 1 SCR246; Saurav Yadav and Ors. v. State of Uttar Pradeshand Ors. (2021) 4 SCC 542; Waman Rao and Ors. v.Union of India and Ors. (1981) 2 SCC 362: [1981]2 SCR 1; Ashoka Kumar Thakur v. State of Bihar andOrs. (1995) 5 SCC 403: [1995] 3 Suppl. SCR 269; Subhash Chandra and Anr. v. Delhi SubordinateServices Selection Board and Ors. (2009) 15 SCC458:[2009] 12 SCR 978; Raghunathrao Ganpatrao v.Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR 480; Society for Unaided Private Schools of Rajasthanv. Union of India and Anr. (2012) 6 SCC 1; PramatiEducational and Cultural Trust (Registered) and Ors. v.Union of India and Ors. (2014) 8 SCC 1; Indira NehruGandhi v. Raj Narain and Anr. 1975 Supp SCC 1; Stateof Karnataka v. Union of India and Anr. (1977) 4 SCC608: [1978] 2 SCR 1; Kihoto Hollohan v. Zachillhu andOrs. 1992 Supp (2) SCC 651: [1992] 1 SCR 686; L.Chandra Kumar v. Union of India and Ors. (1997) 3SCC 261: [1997] 2 SCR 1186; K. Krishna Murthy (Dr.)and Ors. v. Union of India and Anr. (2010) 7 SCC 202:[2010] 6 SCR 972; Supreme Court Advocates-on-Record Association and Anr. v. Union of India (2016) 5SCC 1: [2015] 13 SCR 1; Maganlal Chhaganlal (P)Ltd. v. Municipal Corporation of Greater Bombay andOrs. (1974) 2 SCC 402: [1975] 1 SCR 1; Chairmanand Managing Director, Central Bank of India and Ors.v. Central Bank of India SC/ST Employees WelfareAssociation and Ors. (2015) 12 SCC 308: [2015]1 SCR 55; State of Uttar Pradesh v. Dr. Dina NathShukla and Anr. (1997) 9 SCC 662: [1997] 1 SCR 750;M/s Shantistar Builders v. Narayan K. Totame and Ors.(1990) 1 SCC 520; Association of Unified Tele ServicesProviders and Ors. v. Union of India and Ors. (2014) 6SCC 110: [2014] 9 SCR 780; People’s Union for Civil

Liberties (PUCL) and Anr. v. Union of India and Anr.(2003) 4 SCC 399: [2003] 2 SCR 1136; M/s Frick IndiaLtd. v. Union of India and Ors. (1990) 1 SCC 400:[1989] 2 Suppl. SCR 570; Akhil Bharatiya SoshitKaramchari Sangh (Railway) v. Union of India and Ors.(1981) 1 SCC 246: [1981] 2 SCR 185 and R. D.Upadhyay v. State of Andhra Pradesh and Ors. (2007)15 SCC 337: [2006] 3 SCR 1132 – referred to.

Corocraft v. Pan American Airways 1969 (1) All ER 82– referred to.

Per BELA M. TRIVEDI, J. (Concurring with DINESHMAHESHWARI, J.)

HELD: 1. It is very well-established proposition of law thatit is the Constitution and not the constituent power which issupreme. It is axiomatic that the Parliament has been conferredupon the constituent power to amend by way of addition, variationor repeal any provision of the Constitution under Article 368 ofthe Constitution, and the same is required to be exercised inaccordance with the procedure laid down in the said Article. TheConstitution is said to be living document or work in progressonly because of the plenary power to amend is conferred uponthe Parliament under the said provision. Of course, as laid downin plethora of judgments, the said power is subject to theconstraints of the basic structure theory. Deriving inspiration fromthe Preamble and the whole scheme of the Constitution, themajority in Kesavananda Bharati case held that every provisionof the Constitution can be amended so long as the basic foundationand structure of the Constitution remains the same. Some of thebasic features of the constitutional structure carved out by theCourt in the said judgment were, the supremacy of theConstitution, Republican and democratic form of government,separation of powers, judicial review, sovereignty and the integrityof the nation, Federal Character of Government etc. multitudeof features have been acknowledged as the basic features invarious subsequent judicial pronouncements. Accordingly, anyamendment made by the Parliament is open to the judicial review

CDEFG

Aand is liable to be interfered with by the Court on the ground thatit affects one or the other basic feature of the Constitution. [Paras5, 6][188-B-C; 189-A-B]

2. As transpiring from the Statements of Objects andReasons for introducing the Bill to the impugned amendment,Bthe Parliament has taken note that the economically weakersections of the citizens have largely remained excluded fromattaining the higher educational institutions and publicemployment on account of their financial incapacity to competewith the persons who are economically more privileged. Thebenefits of existing reservations under Clauses (4) and (5) ofCArticle 15 and Clause (4) of Article 16 are generally unavailableto them unless they meet with the specific criteria of social andeducational backwardness. It has been further stated that videthe Constitution (Ninety-third Amendment) Act, 2005, Clause (5)was inserted in Article 15 of the Constitution which enables the

DState to make special provision for the advancement of any socialand educational backwardness of citizens, or for the ScheduledCastes or the Scheduled Tribes, in relation to their admission inhigher educational institutions. Similarly, Clause(4) of Article 16of the Constitution enables the State to make special provisionfor the reservation of appointments or posts in favour of anyEbackward class of citizens which in the opinion of the State, is notadequately represented in the services under the State. However,economically weaker sections of citizens were not eligible for thebenefit of reservation. Therefore, with view to fulfil the idealslying behind Article 46, and to ensure that economically weakerFsections of citizens to get fair chance of receiving highereducation and participation in employment in the services of theState, it was decided to amend the Constitution of India. [Para19][194-A-E]

3. As well settled, it must be presumed that the legislatureGunderstands and appreciates the needs of its own people. Its lawsare directed to the problems made manifest by experience, andits discriminations are based on adequate norms. Therefore, theconstitutional amendment could not be struck down asdiscriminatory if the state of facts are reasonably conceived to

justify it. In the instant case, the Legislature being aware of theexclusion of economically weaker sections of citizens from havingthe benefits of reservations provided to the SCs/STs and SEBCscitizens in Clauses(4) and (5) of Article 15 and Clause(4) of Article16, has come out with the impugned amendment empowering theState to make special provision for the advancement of the“economically weaker sections” of citizens other than the classesmentioned in Clauses(4) and (5) of Article 15 and further to makespecial provision for the reservation of appointments or posts infavour of the economically weaker sections of the citizens otherthan the classes mentioned in Clause(4) of Article 16. Theimpugned amendment enabling the State to make specialprovisions for the “economically weaker sections” of the citizensother than the scheduled castes/schedules tribes and socially andeducationally backward classes of citizens, is required to be treatedas an affirmative action on the part of the Parliament for the benefitand for the advancement of the economically weaker sections ofthe citizens. Treating economically weaker sections of the citizensas separate class would be reasonable classification, and couldnot be termed as an unreasonable or unjustifiable classification,much less betrayal of basic feature or violative of Article 14.Just as equals cannot be treated unequally, unequals also cannotbe treated equally. Treating unequals as equals would as welloffend the doctrine of equality enshrined in Articles 14 and 16 ofthe Constitution. [Para 20][194-F-H; 195-A-C]4. The Scheduled Castes/Scheduled Tribes and thebackward class for whom the special provisions have already beenprovided in Article 15(4), 15(5) and 16(4) form separate categoryas distinguished from the general or unreserved category. Theycannot be treated at par with the citizens belonging to the generalor unreserved category. The impugned amendment creates aseparate class of “economically weaker sectionsof the citizens”from the general/unreserved class, without affecting the specialrights of reservations provided to the Scheduled Caste/ScheduledTribe and backward class of citizens covered under Article 15(4),15(5) and 16(4). Therefore, their exclusion from the newly createdclass for the benefit of the “economically weaker sections of thecitizens” in the impugned amendment cannot be said to bediscriminatory or violative of the equality code. Such amendment

ABC

Acould certainly be not termed as shocking, unconscionable orunscrupulous travesty of the quintessence of equal justice assought to be submitted by the petitioners. [Para 21][195-D-F]

5. The sum and substance is that the limitations –substantive or procedural – imposed on the exercise of constituentBpower of the State under Article 368 could not be said by anystretch of imagination, to have been disregarded by the Parliament.Neither the procedural limitation i.e. the mode of exercise of theamending power has been disregarded nor the substantivelimitation i.e. the restricted field has been disregarded, whichotherwise would invalidate the impugned amendment. What isCvisualised in the Preamble and what is permissible both in Part-III and Part-IV of the Constitution could not be said to be violativeof the basic structure or basic feature of the Constitution. Inabsence of any obliteration of any of the constitutional provisionsand in absence of any alteration or destruction in the existingDstructure of equality code or in the basic structure of theConstitution, neither the width test nor the identity test aspropounded in Kesavananda could be said to have been violatedin the impugned Amendment. Accordingly, the challenge to theconstitutional validity of the 103[rd] Amendment fails, and the validitythereof is upheld. [Para 22][195-G-H; 196-A-B]

6. What was envisioned by the framers of the Constitution,what was proposed by the Constitution Bench in 1985 and whatwas sought to be achieved on the completion of fifty years of theadvent of the Constitution, i.e. that the policy of reservation musthave time span, has still not been achieved even till this day, i.e.Ftill the completion of seventy-five years of our Independence. Itcannot be gainsaid that the age-old caste system in India wasresponsible for the origination of the reservation system in thecountry. It was introduced to correct the historical injustice facedby the persons belonging to the scheduled castes and scheduledGtribes and other backward classes, and to provide them levelplaying field to compete with the persons belonging to the forward-classes. However, at the end of seventyfive years of ourindependence, we need to revisit the system of reservation in

the larger interest of the society as whole, as step forwardtowards transformative constitutionalism. [Para 28][199-D-F]

7. As per Article 334 of the Constitution, the provisions ofthe Constitution relating to the reservation of seats for the SCsand the STs in the House of the People and in the LegislativeAssemblies of the States would cease to have effect on theexpiration of period of eighty years from the commencement ofthe Constitution. The representation of Anglo-Indian communityin the House of the Parliament and in the Legislative Assembliesof the States by nomination, has already ceased by virtue of the104[th]Amendment w.e.f. 25.01.2020. Therefore, similar time limitif prescribed, for the special provisions in respect of thereservations and representations provided in Article 15 andArticle 16 of the Constitution, it could be way forward leading toan egalitarian, casteless and classless society. [Para 29][199-F-H; 200-A]

Kesavananda Bharati v. State of Kerala & Anr. (1973)4 SCC 225; K.C. Vasanth Kumar and Anr. v. State ofKarnataka, (1985) Suppl. SCC 714 : 1985 (1) Suppl. SCR 352 and Ashoka Kumar Thakur v. Union of India,(2008) 6 SCC 1 : 2008 (4) SCR 1 – relied on.

Kihoto Hollohan v. Zachillhu & Ors. (1992) Suppl. 2SCC 651: [1992] 1 SCR 686; Maharao Sahib Shri BhimSinghji v. Union of India & Ors. (1981) 1 SCC 166;Indira Nehru Gandhi v. Raj Narain (1975) Suppl. SCC1: [1976] 2 SCR 347; State of Kerala & Anr. v. N.M.Thomas & Ors. (1976) 2 SCC 310: [1976] 1 SCR 906and Waman Rao & Ors. v. Union of India & Ors. (1981)2 SCC 362:[1981] 2 SCR 1; M. Nagraj & others v.Union of India (2006) 8 SCC 212: [2006] 7 Suppl.SCR 336 and State of Gujarat and Another v. & TheAshok Mills Co. Ltd. Ahmedabad and Another (1974) 4SCC 656: [1974] 3 SCR 760 – referred to.

Per J.B. PARDIWALA, J. (Concurring with DINESHMAHESWHARI, J.)

HELD:1. Article 21 encompasses the right to live withdignity. Article 21 has been given wide connotation and expression

Aby the courts, particularly, by this Court to give effect to theconstitutional policy of welfare state. The decision of this Courtin Unni Krishnan is an authority on this aspect where the Courtconfirmed that right to education is implicit under Article 21 andproceeded to identify the content and parameters of this right tobe achieved by Articles 41, 45, and 46 in relation to education.BUnderstood in this context, Article 46 gives not only solemnprotection to the weaker sections of the people at par with theScheduled Castes and the Scheduled Tribes but speaks of specialcare to be taken by the State of this section of people. Further,the expression “educational and economic interests” in ArticleC46 concludes the whole legal position in relation to Article 46 tomean that the State must endeavour to do welfare especially ofthis section of people. The endeavour of the State to give theweaker section of the people life of dignity is the link betweenArticles 46 and 21. The conjoint reading of both the provisionsputs constitutional obligation on the State to achieve the goal ofDwelfare of the weaker sections of the people by all means. Article46 is not based on social test but on the means test. It speaks of“educational and economic interests” of “weaker sections”. Theexpression “weaker sections” and their “economic interests”are correlative and denote the means status of the people whoEare to be taken care of. Although, the phrase “economic interests”is not to be read alone but in consonance with the expression“educational” used in Article 46; yet to confuse Article 46 withthe “social status” would be to put strain and nullify otherwisethe pure object of Article 46. The distinction can be explainedwith the aid of Article 15(4). Article 15(4) gives impetus to theFsocial and educational “advancement” of Backward Classes orthe Scheduled Castes and Scheduled Tribes. It is an enablingprovision for the State to make special provisions for the sociallyand educationally backward classes of citizens or for the ScheduledCastes or the Scheduled Tribes. The emphasis here is on theGupliftment of three constitutionally earmarked classes i.e.,Scheduled Castes, Scheduled Tribes and Backward classes.However, Article 46 is wide in expression. The object of welfareunder Article 46 is towards those educationally and economicallyweak. Thus, it is evident from the aforesaid that there can bereservation for certain weaker sections other than the SCs/STsH

and socially and educationally backward classes. The impugnedamendment is meant for weaker sections of the society who areeconomically weak and cannot afford to impart education to theirchildren or are unable to secure employment in the services ofthe State. [Para 81, 82][263-G-H; 264-A-H; 265-A-C]

2. The interpretation of Constitution involves more thana passing interest concerning the actual litigants and being apronouncement of the Courts on the government andadministration, has more general and far-reaching consequence.If there is an apparent or real conflict between two provisions ofthe Constitution, it is to be resolved by applying the principle ofharmonious construction. The rules of the interpretation of theConstitution have to take into consideration the problems ofgovernment, structure of State, dynamism in operation, cautionabout checks and balances, not ordinarily called for in theinterpretation of statutes. [Para 86, 87, 90][266-A-B, F; 267-F]3. Since the power to amend the Constitution is derivativepower, the exercise of such power to amend the Constitution issubject to two limitations, namely, the doctrine of Basic Structureand lack of legislative competence. The doctrine of Basic Structureis brought in as window to keep the power of judicial reviewintact as abrogation of such power would result in violation ofbasic structure. When one speaks of discrimination or arbitraryclassification, the same constitutes violation of Article 14 of theConstitution. There is distinction between constitutional lawand ordinary law in rigid Constitution like ours. The saiddistinction proceeds on the assumption that ordinary law can bechallenged on the touchstone of the Constitution. Therefore, whenan ordinary law seeks to make classification without any rationalbasis and without any nexus with the object sought to be achieved,such ordinary law could be challenged on the touchstone of Article14 of the Constitution. However, when it comes to the validity ofa constitutional amendment, one has to examine the validity ofsuch amendment by asking the question as to whether such anamendment violates any overarching principle in the Constitution.What is overarching principle? Concepts like secularism,

Ademocracy, separation of powers, power of judicial review falloutside the scope of amendatory powers of the Parliament underArticle 368. If any of these were to be deleted, it would requirechanges to be made not only in Part III of the Constitution butalso in Article 245 and the three Lists of the Constitution resultingin the change of the very structure or framework of theBConstitution. When an impugned Act creates classificationwithout any rational basis and having no nexus with the objectssought to be achieved, the principle of equality before law isviolated undoubtedly. Such an Act can be declared to be violativeof Article 14. Such violation does not require re-writing of theCConstitution. This would be case of violation of ordinary principleof equality before law. Similarly, “egalitarian equality” is muchwider concept. It is an overarching principle. The term“egalitarianism” has distinct definition that all people should betreated as equal and have the same political, economic, socialand civil rights or have social philosophy advocating the removalDof economic inequalities among the people, economicegalitarianism or the decentralisation of power. [Para 154][287-C-H; 288-A-B]

4. Article 14 has two clear facets which are invalid. One isover- classification and the other is under-classification, which isEotherwise, over- inclusiveness or under-inclusiveness. The judicialreview of over-classification should be undertaken very strictly.In the cases of under-classification when the complaint is eitherby those who are left out or those who are in i.e. that the statutehas roped him in, but similarly situated person has been leftFout, it would be under-inclusiveness. It is to say that you ought tohave brought him in to make the classification reasonable. It is insuch cases that the courts have said that ‘who should be broughtin’ should be left to the wisdom of the legislature because it isessentially stage where there should be an element of

practicability. Therefore, the cases of under-inclusion can beGreviewed in little liberal manner. The under-inclusion argumentshould not be very readily accepted by the courts because thestage could be experimental. For instance, in the case on hand,the argument in the context of 103rd Constitution Amendment isthat SCs, STs and OBCs have been left out, the Court would sayH

that it is under-inclusiveness. The Legislature does not have tobring any and everybody to make it reasonable. The case on handis not one of active exclusion. The SCs, STs and OBCs who havebeen left out at the first instance are telling the Court that theyought to have been included. In such circumstances, the test wouldbe very strict, not that it would be impervious to review. Hadthey been included in clause (6) of Article 15 & clause (6) of Article16 resply at any point of time and thereafter, excluded, it wouldbe legitimate for them to argue that having treated them as one,they cannot be excluded in an arbitrary manner. [Para 164][293-H; 294-A-E]

5. Each one of the Constitutional provisions that arecategorised as rights under Part III has intrinsic value content.Many of these rights are part of the mechanism geared towardsrealising common constitutional principle. For example, Articles14, 15 and 16 of the Constitution are committed to the commonprinciple of equality. Reasonably then, if an amendment is to bestruck down under the ‘basic structure’ formulation, the centralprinciple of these inter-related provisions should be at threat. Amere violation of one of these enabling provisions would not beof much consequence under the doctrine of Basic Structure aslong as such violation does not infringe upon the central thesis ofequality. Redress for marginal encroachment cannot be foundunder the ‘Basic Structure Doctrine’. In considering the effect ofan amendment on the constitutional core, it is important to keepin mind the widest ramifications of the amendment. It is imperativeto contemplate and consider every way in which the ‘basicstructure’ of the Constitution might be threatened through theimpugned amendment. The amendment would stand asconstitutional only after satisfactory understanding as to its effecton the constitutional core is reached by the courts. To sustainitself, the amendment should not violate such core in the widestinterpretation given to it. [Para 186][310-D-G]

6. The new concept of economic criteria introduced by theimpugned amendment for affirmative action may go long way ineradicating caste-based reservation. It may be perceived as first

[2022] 14 S.C.R.

Astep in the process of doing away with caste-based reservation.[Para 187][310-H]

7. Reservation is not an end but means – means to securesocial and economic justice. Reservation should not be allowedto become vested interest. Real solution, however, lies inBeliminating the causes that have led to the social, educational andeconomic backwardness of the weaker sections of the community.This exercise of eliminating the causes started immediately afterthe Independence i.e., almost seven decades back and it stillcontinues. The longstanding development and the spread ofeducation have resulted in tapering the gap between the classesCto considerable extent. As larger percentages of backward classmembers attain acceptable standards of education andemployment, they should be removed from the backwardcategories so that the attention can be paid toward those classeswhich genuinely need help. In such circumstances, it is very muchDnecessary to take into review the method of identification andthe ways of determination of backward classes, and also, ascertainwhether the criteria adopted or applied for the classification ofbackward is relevant for today’s conditions. The idea of Baba SahebAmbedkar was to bring social harmony by introducing reservationfor only ten years. However, it has continued past seven decades.EReservation should not continue for an indefinite period of timeso as to become vested interest. [Para 190][311-H; 312-A-D]8. In the result, the impugned amendment is valid and in nomanner alters the basic structure of the Constitution. [Para191][312-D-E]F

Minor A. Peeriakaruppan v. State of Tamil Nadu andOthers (1971) 1 SCC 38: [1971] 2 SCR 430 – reliedon.

Kesavananda Bharati Sripadagalvaru v. State of Keralaand Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; TheGState of Madras v. Champakam Dorairajan & AnotherAIR 1951 SC 226: [1951] SCR 525; Kathi RaningRawat v. State of Saurashtra AIR 1952 SC 123: [1952]SCR 435; State of Kerala and Another v. N.M. Thomasand Others (1976) 2 SCC 310 : [1976] 1 SCR 906;HE.P. Royappa v. State of Tamil Nadu and Another AIR

1974 SC 555: [1974] 2 SCR 348; Govt. of AndhraPradesh v. P.B. Vijaykumar and another AIR 1995 SC1648; T.M.A. Pai Foundation and Others v. State ofKarnataka and Others (2002) 8 SCC 481: [2002] 3Suppl. SCR 587; Supreme Court Advocates-on-RecordAssociation and another v. Union of India AIR 2016SC 117: [2015] SCR 975; Smt. Indira Nehru Gandhi v.Shri Raj Narain AIR 1975 SC 2299: [1975]Suppl. SCC 1; S.R. Bommai and others etc. etc. v. Unionof India and others etc. etc. AIR 1994 SC 1918: [1994]2 SCR 644; I.R. Coelho (dead) by L.Rs. v. State ofTamil Nadu AIR 2007 SC 861: [2007] 1 SCR 706; TheState of West Bengal v. Anwar Ali Sarkar [1952] 0SCR 284; State of Gujarat and Another v. Shri AmbikaMills Ltd. Ahmedabad and Another (1974) 4 SCC 656:[1974] 3 SCR 760; Mohammad Shujat Ali and othersv. Union of India and others Ashutosh Gupta v. State ofRajasthan AIR 2002 SC 1533; Mohini Jain (Miss) v.State of Karnataka and Others (1992) 3 SCC 666:[1992] 3 SCR 658; Society for Unaided Private Schoolsof Rajasthan v. Union of India and Another (2012) 6SCC1: [2012] 2 SCR 715; Pramati Educational andCultural Trust (Registered) and Others v. Union of Indiaand Others (2014) 8 SCC 1: [2014] 11 SCR 712; M.Nagaraj and Others v. Union of India and Others (2006)8 SCC 212: [2006] 7 Suppl. SCR 336; M.R. Balaji andOthers v. State of Mysore [1963] Supp 1 SCR 439 andDalmia Cement (Bharat) Ltd. and Another v. Union ofIndia and Others (1996) 10 SCC 104: [1996] 1 Suppl. SCR 825; State of Jammu & Kashmir v. Triloki NathKhosa and others AIR 1974 SC 1: [1974] 1 SCR 771;Ram Singh and Others v. Union of India (2015) 4SCC 697: [2015] 5 SCR 670; M/s Shantistar Buildersv. Narayan Khimalal Totame and Others (1990) 1 SCC520; Ashoka Kumar Thakur v. Union of India (2008) 6SCC 1: [2008] 4 SCR 1; M.P.V. Sundararamier & Co.v. State of A.P. and Others [1958] SCR 1422; State ofWest Bengal v. Shaik Serajuddin Batley [1954]SCR 378; Shri Ram Krishna Dalmia v. Shri Justice S.R.

Tendolkar and Others [1959] SCR 279; R.C. Poudyalv. Union of India and Others 1994 Supp (1) SCC 324 :[1993] 1 SCR 891; Kihoto Hollohan v. Zachillhu andOthers 1992 Supp (2) SCC 651: [1992] 1 SCR 686;Kuldip Nayar v. Union of India & Ors. AIR 2006 SC3127: [2006] 5 Suppl. SCR 1; Glanrock Estate PrivateLimited v. State of Tamil Nadu (2010) 10 SCC 96: [2010]12 SCR 597; Sanjeev Coke Manufacturing Co. v.Bharat Coking Coal Ltd. (1983) 1 SCC 147: [1983] 1SCR 1000; S. Seshachalam and Others v. Chairman,Bar Council of Tamil Nadu and Others (2014) 16 SCC72 : [2014] 12 SCR 465; State of Madhya Pradesh v.Narmada Bachao Andolan and Another (2011) 7 SCC639: [2011] 6 SCR 443; Ajit Singh and Others v. Stateof Punjab and Others (1999) 7 SCC 209: [1999] 2Suppl. SCR 521; C.A. Rajendran v. Union of India &Others [1968] 1 SCR 721; Indra Sawhney and Othersv. Union of India and Others 1992 Supp (3) SCC 217 :[1992] 2 Suppl. SCR 454; Unni Krishnan, J.P. andOthers v. State of Andhra Pradesh and Others (1993) 1SCC 645: [1993] 1 SCR 594; Sajjan Singh v. State ofRajasthan AIR 1965 SC 845: [1965] 1 SCR 933 andGolak Nath and Others v. State of Punjab and Another1967 AIR SC 1643: [1967] 2 SCR 762 – referred to.Srimathi Champakam Dorairajan and Another v. TheState of Madras AIR 1951 Madras 120; PadmrajSamarendra v. the State of Bihar, Patna High Court,Special Bench, 1978 SCC OnLine Pat 64 : 1979 PLJR258 : AIR 1979 Pat 266; State of Kerala v. R. JacobMathew and others, AIR 1964 Kerala 316 – referredto.

James v. Commonwealth of Australia (1936) A.C. 578,614; Central Provinces Case (1939) F. C. R. 18; UnitedStates v. Patrick B. Classic [1941 SCC OnLine US SC112: 313 US 299 (1941)] ; Missouri, K & T Rly v. May,194 US 267 (1904), 269 – referred to.

Per S. RAVINDRA BHAT, J. (for UDAY UMESH LALIT,CJI and himself) (Minority opinion)

1. Our Constitution does not speak the language ofexclusion. The 103[rd] Constitution Amendment, by the languageof exclusion, undermines the fabric of social justice, and thereby,the basic structure. [Para 1][314-E]

2. The addition, or insertion of the ‘economic criteria’ foraffirmative action in aid of the section of population who facedeprivation due to poverty, in furtherance of Article 46 of theConstitution, does not per se stray from the Constitutionalprinciples, so as to alter, violate, or destroy its basic structure.As long as the State addresses deprivation resulting fromdiscriminatory social practices which have kept the largestnumber of our populace in the margins, and continues itsameliorative policies and laws, the introduction of suchdeprivation-based affirmative action, is consistent withconstitutional goals. What, however, needs further scrutiny, iswhether the manner of implementing – i.e., the implicit exclusionof those covered under Art. 15(4) and 16(4) [Scheduled Castes(“SC”), Scheduled Tribes (“ST”), and socially and educationallybackward classes (“SEBC”)], cumulatively referred to as‘backward classes’] violates, or damages the basic structure oressential features of the Constitution. [Para 2][314-F-H; 315-A]

3. The appropriate test or standard of judicial review ofconstitutional amendments is not the same as in the case ofordinary laws; the test is whether the amendment challengeddestroys, abrogates, or damages the “identity”, or “nature” or“character” or “personality” of the Constitution, by directlyimpacting one or some of the “overarching principles” whichinform its express provisions. Further in constitutional amendmentjudicial review, the court would consider the history of theprovision amended, or the way the new provision impacts theidentity, or character, or nature of the Constitution. The standardof judicial review of constitutional amendments, draws upondistinct terminologies – identity, personality, nature and characterto see if the constitutional identity undergoes fundamentalchange, as to alter the Constitution into something it can never

Abe. Or, differently put, the test is whether the impact of theamendment is to change the Constitution, into something it couldnever be considered to be. Each of the terms, i.e. identity, nature,personality, character, and so on, are methods of expressing theidea that some part of the Constitution, either through its expressprovisions, or its general scheme, and yet transcending thoseBprovisions, are embedded as overarching principles, which cannotbe destroyed or damaged. [Paras 29, 30][332-C-G]

4. The application of the doctrine classification differentiatingthe poorest segments of the society, as one segment (i.e., theforward classes) not being beneficiaries of reservation, and theCother, the poorest, who are subjected to additional disabilitiesdue to caste stigmatization or social barrier based discrimination– the latter being justifiably kept out of the new reservationbenefit, is an exercise in deluding ourselves that those gettingsocial and educational backwardness based reservations areDsomehow more fortunate. This classification is plainly contrary tothe essence of equal opportunity. If this Constitution meansanything, it is that the Code of Articles 15(1), 15(2), 15(4), 16(1),16(2), and 16(4) are one indivisible whole. Articles 16(1) and 16(4)are facets of the same equality principle. That one needs Article15(4) and 16(4) to achieve equality of opportunity guaranteed toEall in Articles 15(1) and 16(1) cannot now be undermined, throughthis reasoning, to hold that the theory of classification permitsexclusion on this very basis. [Para 80][356-D-F]

5. The basis of classification in the impugned amendment,enacted in furtherance of Article 46 – is economic deprivation.FApplying that criterion, it is either income, or landholding, or valueof assets or the extent of resources controlled, which areclassifiers. The social origins, or identities of the target groupare thus irrelevant. That there is some basis for classification,whether relevant or irrelevant, which is sufficient to differentiateGbetween members of an otherwise homogenous group, is nojustification. The economic criteria, based on economic indicators,which distinguish between one individual and another, would berelevant for the purpose of classification, and grant of reservation

benefit. The Union’s concern that SC/ST/OBCs are beneficiariesof other reservations, which set apart the poorest among them,from the poorest amongst other communities which do not fallwithin Articles 15(4) and 16(4), cannot be distinguishing factor,as to either constitute an intelligible differentia between the two,nor is there any rational nexus between that distinction and theobject of the amendment, which is to eliminate poverty and furtherthe goal of equity and economic justice. [Para 84, 87][358-F; 360-C-E]

6. None of the materials placed on the record contain anysuggestion that the SC/ST/OBC categories should be excludedfrom the poverty or economic criteria-based reservation, on thejustification that existing reservation policies have yielded suchsignificant results, that majority of them have risen above thecircumstances which resulted in, or exacerbate, theirmarginalization and poverty. There is nothing to suggest, how,keeping out those who qualify for the benefit of this economic-criteria reservation, but belong to this large segment constituting82% of the country’s population (SC, ST and OBC together), willadvance the object of economically weaker sections of society.[Para 91][362-B-C]7. The characterisation of including the poor (i.e., those whoqualify for the economic eligibility) among those covered underArticles 15(4) and 16(4), in the new reservations under Articles15(6) and 16(6), as bestowing “double benefit” is incorrect. Whatis described as ‘benefits’ for those covered under Articles 15(4)and 16(4) by the Union, cannot be understood to be free pass,but as reparative and compensatory mechanism meant to levelthe field – where they are unequal due to their socialstigmatisation. This exclusion violates the non-discrimination andthe non-exclusionary facet of the equality code, which therebyviolates the basic structure of the Constitution. [Para 100][365-F-G]

8. The impugned amendment creates paths, gateways, andopportunities to the poorest segments of our society, enablingthem multiple access points to spaces they were unable to go to,places and positions they were unable to fill, and opportunitiesthey could not hope, ever to ordinarily use, due to their destitution,

Aeconomic deprivation, and penury. These: destitution, economicdeprivation, poverty, are markers, or intelligible differentia,forming the basis of the classification on which the impugnedamendment is entirely premised. To that extent, the amendmentis constitutionally indefeasible. However, by excluding largesection of equally poor and destitute individuals – based on theirBsocial backwardness and legally acknowledged caste stigmatization– from the benefit of the new opportunities created for the poor,the amendment practices constitutionally prohibited forms ofdiscrimination. The overarching principles underlying Articles15(1), 15(2), and Articles 16(1), 16(2) is that caste based orCcommunity-based exclusion (i.e., the practice of discrimination),is impermissible. Whichever way one would look at it, theConstitution is intolerant towards untouchability in all its formsand manifestations which are articulated in Articles 15(1), (2),Articles 16, 17, 23 and 24. It equally prohibits exclusion based onpast discriminatory practices. The exclusion made through theD“other than” exclusionary clause, negates those principles andstrikes at the heart of the equality code (specifically the non-discriminatory principle) which is part of the core of theConstitution. [Para 101][365-H; 366-A-D]

9. Equality of opportunity in public employment – specificEfacet of the equality code – is guarantee to each citizen. Theequally forthright prohibition in Article 16(2), enjoiningdiscrimination on various grounds, including caste, is to reinforcethe absoluteness of equality of opportunity, that it cannot bedenied. The only departure through Article 16(4) is to give voiceFto hitherto unrepresented classes, discriminated against on theproscribed grounds. This link- between providing equalopportunity, and representation through reservations, was the onlyexception, permitted by the Constitution, to further equality inpublic employment. The impugned amendment snaps the link

between the idea of providing reservation for backward classesGto ensure their empowerment and representation (who were, beforethe enactment of Article 16(4), absent from public employment).The entire philosophy of Article 16 is to ensure barrier-free equalopportunity in regard to public employment. Article 16(4) –enables citizens belonging to backward classes access to publicH

employment with the superadded condition that this is to ensuretheir “adequate representation”. Important decisions of this court:Indra Sawhney, M. Nagaraj, Jarnail Singh v. Lachhmi Narain Guptaand BK Pavitra (II) v. Union of India have time and againemphasized that reservations under Article 16 are conditionedupon periodic adequate representation review. [Paras 129,130][378-E-H; 379-A]

10. The introduction of reservations for economically weakersections of the society is not premised on their lack ofrepresentation (unlike backward classes); the absence of thiscondition implies that persons who benefit from the EWSreservations can, and in all probability do belong to classes orcastes, which are “forward” and are represented in public service,adequately. This additional reservation, by which section of thepopulation who are not socially backward, and whose communitiesare represented in public employment – violates the equality ofopportunity which the Preamble assures, and Article 16(1)guarantees. [Para 131][379-B-C]

11. The impugned amendment results in treating thosecovered by reservations under Article 16(4) with standard thatis more exacting and stringent than those covered by Article16(6). For instance, if the poorest citizens among certaincommunity or that entire community, is unrepresented, and thequota set apart for the concerned group (SC) as whole is filled,the requirement of “representation” is deemed fulfilled, i.e.,notwithstanding that the specific community has not beenrepresented in public employment, no citizen belonging to it, wouldbe entitled to claim reservation. However, in the case of non-SC/ST/OBCs, whether the individual belongs to community whichis represented or not, is entirely irrelevant. This vital dimensionof need to be represented, to be heard in the decision-making process,has been entirely discarded by the impugned amendment in clause(6) of Article 16. Within the amended Article 16, therefore, lietwo standards: representation as relevant factor (for SC, STand OBC under Article 16(4)), and representation as an irrelevantfactor (for Article 16(6)). [Para 132][379-D-F]

12. The introduction of this reservation in public employmentviolates the right to equal opportunity, in addition to the non-

Adiscriminatory facet of equality, both of which are part of the equalitycode and the basic structure. [Para 133][379-G]

13. The characterisation of reservations for economicallyweaker sections of the population (EWS) as compensatory andon par with the existing reservations under Articles 15(4) andB16(4), is without basis. The endeavour of the Constitution makerswas to ensure that past discriminatory practices which had, so tosay, eaten the vitals of the Indian society and distorted it to suchan extent that when the republic was created, an equal societywas merely an illusion, which compelled them to enact specialprovisions such as Article 16(4) – and later Article 15(4), to ensureCequality. It was not compensatory but also reparatory. Theycontinue to compensate, definitionally and in reality, because evenas on date, the acknowledged position is that reservations arenecessary for SCs/STs and OBCs who are not part of the creamylayer. On the other hand, the EWS category, was consciously notDmade beneficiaries of reservations at the time of the framing ofthe Constitution, because perhaps the framers felt that the enactedprovisions (including the soon to be added Articles 31A and 31B)and the slew of economic reforms which were enacted weresufficient to remove economic disparities. That hope however,did not materialise. Economic disparities (unconnected with socialEand educational backwardness) continued – and perhaps were evenexacerbated to such an extent that as of now almost 25% of thepopulation continue to live in abject poverty. Indra Sawhneyacknowledged that measures taken for their purpose would onlyresult in “poverty alleviation”. [Para 168][398-B-F]F14. The principles of non-discrimination, non-exclusion andequality of opportunity to all is manifested in the Constitutionthrough the equality code, which is part of its basic structure.Their link with fraternity, which the Preamble assures is intrinsicto “dignity of the individual and unity and integrity of the nation”,Gis inseparable. The framers of our constitution recognised thatthere can be no justice without equality of status, and that bereftof fraternity, even equality would be an illusion as existingdivisions and “narrow domestic walls” would fragment society.[Para 180][402-F-G]

15. The fraternal principle is deeply embedded to thisnation’s ethos and culture. The specific provisions which formpart of the Equality Code, are inextricably intertwined withfraternity as well.

People cannot be assured of Justice, Liberty or Equality,unless Fraternity in one form or another, to some degree, is feltby individuals at each level of our social order, and economicsystem. Weakening fraternity therefore undermines justice,liberty, and equality. [Paras 181, 182, 183][403-B, F, H]

16. One-ness, inclusiveness, humanism and the idea that notonly are all equal, and should have equal opportunities, and thecontent of each one’s rights be no different from the other, butalso that all stand together, and for each other, is powerfulprecept. This precept suffuses every provision of Part III of theConstitution, especially Articles 14-18, 38-39 and 46. The valueof fraternity is as much part of the equality code, and its facets –equality of opportunity, the principle of non-discrimination andthe non-exclusionary principle, as it inextricably binds them withthe concepts of liberty and freedom. [Paras 185, 186][404-H; 405-A, B-C]

17. The exclusionary clause (in the impugned amendment)that keeps out from the benefits of economic reservation,backward classes and SC/STs therefore, strikes death knell tothe equality and fraternal principle which permeates the equalitycode and non-discrimination principle. [Para 187][405-D-E]

18. The concepts which our Constitution fosters, and theprinciples it engenders – equality, fraternity, egalitarianism, dignity,and justice (at individual and social levels) are all inclusive, allencompassing. The equality code in its majestic formulation(Article 14, 15, 16 and 17) promotes inclusiveness. Evenprovisions enabling reservations foster social justice and equality,to ensure inclusiveness and participation of all sections of society.These provisions assure representation, diversity, andempowerment. Conversely, exclusion, with all its negativeconnotation – is not constitutional principle and finds no placein our constitutional ethos. Therefore, to admit now, that exclusionof people based on their backwardness, rooted in social practice,

Ais permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion. [Para 188][405-E-G]

19. On Question 1, it is held that the states’ compellinginterest to fulfil the objectives set out in the Directive Principles,through special provisions on the basis of economic criteria, isBlegitimate. That reservation or special provisions have so far beenprovided in favour of historically disadvantaged communities,cannot be the basis for contending that other disadvantaged groupswho have not been able to progress due to the ill effects of abjectpoverty, should remain so and the special provisions should notbe made by way of affirmative action or even reservation on theirCbehalf. Therefore, special provisions based on objective economiccriteria (for the purpose of Article 15), is per se not violative ofthe basic structure. [Para 189][405-H; 406-A-B]20. However, the framework in which it has been introducedby the impugned amendment – by excluding backward classes -–Dis violative of the basic structure. The identifier for the newcriteria-is based on deprivation faced by individuals. Therefore,which community the individual belongs to is irrelevant. Anindividual who is target of the new 10% reservation may be amember of any community or class. The state does not – andEperhaps justly so - will not look into her background. Yet in thesame breath, the state is saying that members of certaincommunities who may be equally or desperately poor (for thepurposes of classification identification) but will otherwise bebeneficiaries of reservation of different kind, would not be ableto access this new benefit, since they belong to those communities.FThis dichotomy of on the one hand, using neutral identifierentirely based on economic status and at the same time, for thepurpose of exclusion, using social status, i.e., the castes or sociallydeprived members, on the ground that they are beneficiaries ofreservations (under Article 15(4) and 16(4)) is entirely offensiveGto the Equality Code. [Para 190][406-C-F]

21. universally acknowledged truth is that reservationshave been conceived and quotas created, through provision inthe Constitution, only to offset fundamental, deep rootedgenerations of wrongs perpetrated on entire communities andHcastes. Reservation is designed as powerful tool to enable equal

access and equal opportunity. Introducing the economic basis forreservation – as new criterion, is permissible. Yet, the “othering”of socially and educationally disadvantaged classes – includingSCs/ STs/ OBCs by excluding them from this new reservation onthe ground that they enjoy pre-existing benefits, is to heap freshinjustice based on past disability. The exclusionary clause operatesin an utterly arbitrary manner. Firstly, it “others” those subjectedto socially questionable, and outlawed practices – though theyare amongst the poorest sections of society. Secondly, for thepurpose of the new reservations, the exclusion operates againstthe socially disadvantaged classes and castes, absolutely, byconfining them within their allocated reservation quotas (15%for SCs, 7.5% for STs, etc.). Thirdly, it denies the chance of mobilityfrom the reserved quota (based on past discrimination) to areservation benefit based only on economic deprivation. The neteffect of the entire exclusionary principle is Orwellian, (so to say)which is that all the poorest are entitled to be considered,regardless of their caste or class, yet only those who belong toforward classes or castes, would be considered, and those fromsocially disadvantaged classes for SC/STs would be ineligible.Within the narrative of the classification jurisprudence, thedifferentia (or marker) distinguishing one person from another isdeprivation alone. The exclusion, however, is notbased ondeprivation but social origin or identity. This strikes at the essenceof the non-discriminatory rule. Therefore, the total and absoluteexclusion of constitutionally recognised backward classes ofcitizens - and more acutely, SC and ST communities, is nothingbut discrimination which reaches to the level of undermining, anddestroying the equality code, and particularly the principle of non-discrimination. [Para 191][406-F-H; 407-A-D]

22. On question 3, it is clear that the impugned amendmentand the classification it creates, is arbitrary, and results in hostilediscrimination of the poorest sections of the society that aresocially and educationally backward, and/or subjected to castediscrimination. For these reasons, the insertion of Article 15(6)and 16(6) is struck down, is held to be violative of the equalitycode, particularly the principle of non-discrimination and non-

ABC

DEF

Aexclusion which forms an inextricable part of the basic structureof the Constitution. [Para 192][407-E-F]

23. While this reasoning is sufficient to conclude that Article16(6) is liable to be struck down, there are additional reasonsdue to which this court is compelled to clarify that while theB‘economic criteria’ per se is permissible in relation to access ofpublic goods (under Article 15), the same is not true for Article16, the goal of which is empowerment, through representation ofthe community. [Para 193][407-F-G]

24. On the point of Question 2, it is true that unaided privateCeducational institutions would be bound under Article 15(6) toprovide for EWS reservations, however, given that the analysisunder Question 3 on ‘exclusion’ leads to the conclusion that theAmendment is violative of the basic structure, the question hereinhas been rendered moot. [Para 194][408-A-B]

D25. Sections 2 and 3 of the Constitution (One Hundred andThird Amendment) Act, 2019 which inserted clause (6) in Article15 and clause (6) in Article 16, respectively, are unconstitutionaland void on the ground that they are violative of the basic structureof the Constitution. [Para 195][408-B-C]

EState of Madras v. Champakam Dorairajan 1951 SCC351: [1951] SCR 525; M.R. Balaji v. State of Mysore[1963] Supp 1 SCR 439; T. Devadasan v. Union of India(1964) 4 SCR 680; State of Kerala v. N.M. Thomas(1976) 2 SCC 310: [1976] 1 SCR 906; Indra Sawhneyv. Union of India 1992 Supp (3) SCC 217: [1992]F2 Suppl. SCR 454; Pramati Educational & CulturalTrust v. Union of India (2014) 8 SCC 1; Chebrolu LeelaPrasad Rao v. State of A.P. (2021) 11 SCC 401; JaishriLaxmanrao Patil v. State of Maharashtra (2021) 8 SCC1; Kesavananda Bharati v. State of Kerala (1973) 4 SCCG225: [1973] Supp SCR 1; Minerva Mills v. Union ofIndia (1980) 3 SCC 625: [1981] 1 SCR 206; IndiraNehru Gandhi v. Raj Narain 1975 Supp SCC 1: [1976]2 SCR 347; P. Sambamurthy v. State of A.P (1987) 1SCC 362: [1987] 1 SCR 879; Kihoto Hollohan v.Zachillhu 1992 Supp (2) SCC 651: [1992] 1 SCR 686;

L. Chandra Kumar v. Union of India (1997) 3 SCC 261:[1997] 2 SCR 1186 ; Raghunathrao Ganpatrao v.Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR 480; I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC1: [2007] 1 SCR 706; Waman Rao v. Union of India(1981) 2 SCC 362: [1981] 2 SCR 1; Indra Sawhney(2) v. Union of India (2000) 1 SCC 168: [1999] 5 Suppl.SCR 229; Indian Young Lawyers Association and Ors.v. State of Kerala and Ors. (2019) 11 SCC 1: [2018] 9SCR 561; Supreme Court Advocates on RecordAssociation (SCAORA) v. Union of India (2016) 5 SCC1: [2015] 13 SCR 1; Roop Chand Adlakha v. DelhiDevelopment Authority (1989) Supp (1) SCC 116:[1988] 3 Suppl. SCR 253; State of West Bengal v. AnwarAli Sarkar (1952) 1 SCC 1: [1952] SCR 284;Mohammad Shujat Ali and Ors. v. Union of India (1975)3 SCC 76: [1975] 1 SCR 449; Bhim Singhji v. Union ofIndia (1981) 1 SCC 166; M. Nagaraj v. Union of India(2006) 8 SCC 212: [2006] 7 Suppl. SCR 336; AshokKumar Thakur v. Union of India (2008) 6 SCC 1: [2008]4 SCR 1; K. Krishna Murthy v. Union of India (2010) 7SCC 202: [2010] 6 SCR 972; R.C. Poudyal v. Unionof India 1994 Supp (1) SCC 324: [1993] 1 SCR 891;Air India v. Nargesh Mirza (1981) SC 1829 : [1982] 1SCR 438; Vishaka v. State of Rajasthan (1997) 6 SCC241: [1997] 3 Suppl. SCR 404; Anuj Garg and Othersv. Hotel Association of India and Others, (2008) 3 SCC1: [2007] 12 SCR 991; National Legal ServicesAuthority v UOI and Others (2014) 5 SCC 438: [2014]5 SCR 119; Vineeta Sharma v. Rakesh Sharma & Others(2020) 9 SCC 1: [2020] 10 SCR 135; Secretary,Ministry of Defence v. Babita Puniya & Others (2020)7 SCC 469: [2020] 3 SCR 833; Lt. Col. Nitisha & Othersv. Union of India & Others, 2021 SCC OnLine SC 261;State of Karnataka v. Appa Balu Ingale (1995) Supp(4) SCC 469: [1992] 3 Suppl. SCR 284; Marri ChandraShekhar Rao v. Dean, Seth G.S. Medical College & Ors.(1990) 3 SCC 130: [1990] 2 SCR 843; Valsamma Paul& Ors. v. Cochin University & Ors. (1996) 3 SCC 545:

[1996] 1 SCR 128; Abhiram Singh and Ors. v. C.D.Commachen (2017) 2 SCC 629: [2017] 1 SCR 158;Saurabh Chaudri & Ors. v. Union of India & Ors.(2003) 11 SCC 146; [2003] Supp 5 SCR 152; S.R.Bommai v. Union of India (1994) 3 SCC 1: [1994]2 SCR 644 ; Vikas Sankhala & Ors. v. Vikas KumarAgarwal & Ors (2017) 1 SCC 350: [2016] 7 SCR 639;Samatha v. State of A.P. & Ors. (1997) 8 SCC 191:[1997] Supp 2 SCR 305; Indian Medical Association& Ors. v. Union of India & Ors. (2011) 7 SCC 179: [2011]6 SCR 599; Society for Unaided Private Schools ofRajasthan v. Union of India, (2012) 6 SCC 1: [2012]2 SCR 715; State of Jammu and Kashmir v. Triloki NathKhosa & Ors. (1974) 1 SCC 19: [1974] 1 SCR 771;Pattali Makkal Katchi v. A. Mayilerumperumal and Ors2022 SCC Online SC 386; Col. A.S. Iyer v. V.Balasubramanyam(1980) 1 SCC 634: [1980]1 SCR 1036 ; Lachhman Das v. State of Punjab [1963]2 SCR 353; National Legal Services Authority v. Unionof India & Ors. (2014) 5 SCC 438: [2014] 5 SCR 119;Charu Khurana v. Union of India (2015) 1 SCC 192:[2014] 12 SCR 259; State of West Bengal v. Anwar AliSarkar [1952] 1 SCR 284; Nandini Satpathy v. PL Dani[1978] 3 SCR 608; Jarnail Singh v. Lachhmi NarainGupta (2018) 10 SCC 396: [2018] 10 SCR 663; BKPavitra (II) v. Union of India (2019) 16 SCC 129: [2019]7 SCR 1086; T.M.A. Pai Foundation v. State ofKarnataka(2002) 8 SCC 481: [2002]3 Suppl. SCR 587; Delhi Transport Corpn. v. D.T.C.Mazdoor Congress 1991 Supp (1) SCC 600: [1990]1 Suppl. SCR 142; K.C. Vasant Kumar v. State ofKarnataka (1985) Supp SCC 714: [1985] Suppl.SCR 352; State of Gujarat v. Shri Ambika Mills (1974)4 SCC 656: [1974] 3 SCR 760; S. Seshachalam & Ors.v. Chairman Bar Council of TN (2014) 16 SCC 72:[2014] 12 SCR 465; R.K. Garg v. Union of India (1981)4 SCC 675: [1982] 1 SCR 947 and Prathvi Raj

Chauhan v. Union of India, (2020) 4 SCC 727: [2020]2 SCR 727 – referred to.

Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S.150 (1891) and Korematsu v. United States, 323 U.S.214 (1944) – referred to.

Case Law Reference

In the judgment of DINESH MAHESHWARI, J.

50SUPREME COURT REPORTS

[2022] 14 S.C.R.

JANHIT ABHIYAN v. UNION OF INDIA

52SUPREME COURT REPORTS

[2022] 14 S.C.R.

54SUPREME COURT REPORTS

[2022] 14 S.C.R.

[1952] 1 SCR 284referred toPara 124[1978] 3 SCR 608referred toPara 124[2018] 10 SCR 663referred toPara 130[2019] 7 SCR 1086referred toPara 130[2002] 3 Suppl. SCR 587referred toPara 134[1990] 1 Suppl. SCR 142referred toPara 140[1985] Suppl. SCR 352referred toPara 161[1974] 3 SCR 760referred toPara 163[2014] 12 SCR 465referred toPara 163[1982] 1 SCR 947referred toPara 163[1988] 3 Suppl. SCR 253referred toPara 164[2020] 2 SCR 727referred toPara 186

ORIGINAL/CIVIL APPELLATE JURISDICTION : Writ Petition(Civil) No. 55 of 2019.

Petition for challenging the validity of the Constitution(One Hundredand Third) Amendment Act.

With

T.C.(C) No. 8/2021, W.P.(C) Nos. 596, 446, 427, 331, 343, 798,732, 854 of 2019, T.C. (C) Nos. 12, 10, 9 of 2021, W.P.(C) Nos. 73, 72,76, 80, 222, 249, 341 of 2019, T.P.(C) Nos. 1245, 2715 of 2019, T.P.(C)No. 122/2020, SLP(C) No. 8699/2020, T.C.(C) Nos. 7, 11 of 2021, W.P.(C)Nos. 69, 122, 106, 95, 133, 178, 182, 146, 168, 212, 162, 419 of 2019,W.P.(C) No. 473/2020, W.P.(C) No. 493/2019.

K.K. Venugopal, AG, Tushar Mehta, SG, Sanjay Jain,Ms. Aishwarya Bhati, ASGs, Saurabh Mishra, Ajay Bansal AAGs., R.Bala Subramanian, Mahesh Jethmalani, Dr. K.S. Chauhan, ManinderSingh, Ms. Meenakshi Arora, Jayanth Muth Raj, Gopal Sankaranarayanan,P. Wilson, ADN Rao, Salman Khurshid, S. Niranjan Reddy, Prof. Ravivarma Kumar, Prof. (Dr.) Ravi Varma Kumar, Jaideep Gupta, Sr. Advs.,Yadav Narender Singh, Ajay Sharma, Gulab Chandra Yadav, Sudhir Singh,Varun Mishra, Abhishek Yadav, Ashutosh Yadav, Ms. Shraddha Deshmukh,Ankur Talwar, Kanu Agarwal, Ms. Chinmaee Chandra, Apoorva Kurup,

APadmesh Mishra, Ms. Sujatha Bagadhi, Amrish Kumar, Ms. VanshajaShukla, Digvijay Dam, Arvind Kumar Sharma, Aman Sharma, ManvendraSingh, L.N. Shivani, Ms. Shivika Mehra, Ms. Shagun Thakur, Ms.Poornima Singh, Ms. Shreya Jain, A.K. Sharma, Sajal Singhai, RajenderSingh Chaudhry, Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar Jha,Ms. Deepti Hooda, Ms. Sawati Singh, Sanjay Singh, Amit Kumar Chawla,BMs. Manju Jetley, Sunny Choudhary, Ms. Yashraj Singh Bundela(G.A.),Sandeep Sharma, Prof.(Dr.) K. Elumalai, Ajit Kumar Ekka, Ravi Prakash,Abhishek Chauhan, Ajit Kumar, Shuvodeep Roy, Arnav Singh Deo,Prabhash Bajaj, Ajay Sabharwal, Ms. Ashita Chawla, Raghav Tewari,Prasanna S., Rahul Narayan, Tushar Arora, Chandra Tanay Choubey,CGautam Bhatia, Ms. Malavika Jayanth, Ms. Ranji Ohri Lal, YaduinderLal, Himinder Lal, Senthil Jagadeesan, Ms. Jhanvi Dubey, Ms. IshitaChowdhury, Ms. Shivani Vij, Ms. Tanya Srivastava, Ms. Aditi Gupta,Vishnu Sharma, R. Nedumaran, Apoorv Malhotra, Ashutosh Dubey, AmitP. Shahi, Ms. Rajshri A. Dubey, D. Shiva Shankar, Ms. Agrimma Singla,Manish Dhingra, Ms. Ritambhara, H.B. Dubey, Ms. Asifa Rashid Mir,DMs. Aadya Mishra, Ms. Maria Kousar, Mrs. Naghma Imtiaz, ZanghamAhmed, Saif Naseem for M/s Equity Lex Associates, Mahfooz A. Nazki,Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy,K.V. Girish Chowdary, Ms. Rajeswari Mukherjee, Ms. Akhila Palem,Abhishek Sharma, Sahil Raveen, Jaimon Andrews, Piyo Harold Jaimon,Ameen Hassan, Ms. Aswathi M.K., Lal Pratap Singh, Shobhit Tiwari,EUmesh Pratap Singh, Vishal Singh, R. C. Kohli, Prashant Shukla, PraveenGaur, Sampriti Baksi, Suyash Srivastava, Baani Khanna, Shreya Mishra,Aaina Walia, Subodh S. Patil, Ms. Sampriti Bakshi, Suyash Srivastava,Ms. Baani Khanna, Karam Murugan, Ms. Shreya Mishra, Shankar Singh,Ms. Aaina Walia, Satyajeet Kumar, Ms. Sudhansu Palo, Ms. Ipsita Behura,FGautam Das, Raj Kumar Yadav, Sanjeev Kumar, Budhadev Palo, Ms.Padmaja Choudhury, Abhilash Kr. Tripathy, B. Jagannath Rao, DineshKumar Jha, Nirmal Kumar Ambastha, Ms. Ashmita Bisarya, DamodarSolanki, Ms. Manju Sharma Jetley, Prof.(Dr.) G. Mohan Gopal, ShishirPinaki, Muzaffar Khan, Vijendra Mishra, V. Ramchander Goud, Ms.Mallika Das, Ramakrishna, Kasoju Mahesh Acharya, D. Mahesh Babu,GDr. M.P. Raju, S.S. Nehra, P.I. Jose, Rajendra Verma, Subhash ChandraSagar, Hemant Sagar, Mahendra Singh, Manoj Swarup, Dr. K.S. Bhati,E.C. Viyasagar, Ms. Sharada Bai, Ms. Belle Ravivarma, Ms. SindhuAcharya, Ms. Priyanka Yavagal, Giridhar Gangothri, Ms. Shikha JaihindYadav, Vinayak Mohan, M. Vijaya Bhaskar, Murari Lal, R.S.M. Kalky,S.P. Singh, Randhir Singh, Sumit Kishore, Pratik R. Bombarde, ReepakHKansal, Aakarsh Kamra, Jitendra Kumar, Abhishek Kumar, D.D. Verma,Renjith B. Marar, Zulfiker Ali P. S, Satya Mitra, Purvish J. Malkan, AnkurMittal, P. A. Noor Muhamed, Shereef K.A., Rakesh Kumar, Sanjay Kr.Yadav, Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupama N.,W. Inmanuel Meitei, Haris Beeram, Mushtaq Satine, Usman Ghani Khan,Azhar Assees, Radha Shyam Jena, V.N. Raghupathy, Shadan Farasat,Ms. Hrishika Jain, Ujwala Uppaluri, Bharat Gupta, Shourya Dasgupta,Aman Naqvi, Dhruv Bhatnagar, Ms. Ujjwala Uppaluri, Sachin Patil, GeoJoseph, Risvi Muhammed, Durgesh Gupta, Kailas Bajirao Autade, NamitSaxena, Mrs.Niranjana Singh, Ms. Somyashree, Ms. Sarvshree, DineshP. Rajbhar, KasojuMahesh Chary, Ms. Anzu. K. Varkey, Himanshu Tyagi,Ayush Negi, Saurabh Kumar, Ms. Disha Mittal, Akash Kakade,Somanatha Padhan, Ashok Anand, Rakesh Kumar Singh, Miss SukhadaKakade, Swetab Kumar, Milind Singh, S. Gowthaman, Ms. M. Venmani,Abhisar Thakral, Deepak Vuttsya, Raunak Vuttsya, D. Venkata Krishna,M. Venmani, A.N.Rajan Babu, Roy Abraham, Ms. Reena Roy, Ms.Seema Jain, Akhil Abraham Roy, Ms. Rajni Ohri Lal, Arun Dagar, RahulNehra, Annam Venkatesh, Sanjay Parikh, Shashank Singh, AdilSharfuddin, Ms. Disha Wadekar, Anupam Chaudhary, Satwik Parikh,Mubarak Ali, Mohd. Asad Khan, V. K. Biju, Ms. Ria Sachthey, ChetanyaSingh, Amlendu Kumar Akhilesh Kumar Jha, Dr. Ranjeet Bharti, AbhayPratap Singh, Ms. Rubina Jawed, Parthsarithi M. Saraf, Kavitha K.T.,Subhash Chandran, N.P. Rakeshpaniker, Nishant RamakantraoKatneshwarkar, V. N. Raghupathy, Siddharath Dharmadhikari, AadityaA. Pande, Bharat Bagla, D.Kumanan, Sheikh Kalia, Ms. RacheethaChawala, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia, Ms. TushikaGoel, Ms. Savita Singh, K. V. Mohan, K.V. Balakrishnan, Rahul KumarSharma, Ms. Diya Kapur, Ms. Liz Mathew, Siddharth Nath, RaghavKumar, Aditya Lodha, Ms. Sonali Jain, Ms. Vasudha Jain, Ms. KhushbooHora, Ms. Deepanwita Priyanka, A. Karthik, Kaleeswaram Raj,Mohammed Sadique T.A., Mrs. Anu K. Joy, Alim Anvar, Ms. Thulasi K.Raj, V.K. Biju, Ms. Swathi H. Prasad, Ranjeet Bharti, K.K.L. Gautam,Ms. Saroj Bala, Ms. Vaishali Nariyala, Kaushal Jeet Kait, Kritagya KumarKait, Manoj Sharma, Rahul Mohod, Abhishek Gurawa, Ms. VasundharaRana, Aditya Agarwal, Vinod Kumar Agarwal, Sanjeev Malhotra, GauravYadava, Ms Veena Bansal, Sourav Jindal, Varun Thakur, Brajesh Pandey,Sudhir Singh, Varinder Kr. Sharma, Ms. Madhavi Khandelwal, ShashankPatro, Pawan Prakash Pathak, Ravi Chandran Iyar, Amol B.Karande,Rajsaheb Patil, Vikrant Yadav, A. Selvin Raja, A. Raja Mohammed, A.Mohammed Yusuff, Ms. V. Shahira Banu, S.A.S. Alandeen, Ms. Nikita

AKumari, Dr. Charu Mathur, Ms. Tanvi Dubey, Rahul Unnikrishnan, MalakBhatt, Sanjay Kumar Dubey, Sandeep S. Deshmukh, Raj Bahadur Yadav,Naresh Kumar, Advs. For the appearing parties.

Prakash Sharma, Adv. (in person), Mrinal Shashi ShekharChakravorty (Petitioner-in-person), Intervenor-in-person.

BThe following Judgments[#] and Order[*] of the Court were delivered:DINESH MAHESHWARI, J.

Contents[**]

GEd. Note

# There were four seperate judgments- one judgment each rendered by Hon’ble Mr.Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M. Trivedi, and, Hon’ble Mr.Justice J.B. Pardiwala; and judgment rendered by Hon’ble Mr. Justice S. RavindraBhat, for himself and on behalf of Shri Uday Umesh Lalit, Hon’ble the Chief Justice.

* Common order of the Court.

H** Pagination in the Contents is as per the Original judgment.

Preliminary and Brief Outline

1. In this batch of transferred cases, transfer petitions, writ petitionsand the petition for special leave to appeal, the challenge is to theConstitution (One Hundred and Third Amendment) Act, 2019[1], whichcame into effect on 14.01.2019, whereby the parliament has amendedArticles 15 and 16 of the Constitution of India by adding two new clausesviz., clause (6) to Article 15 with Explanation and clause (6) to Article16; and thereby, the State has been empowered, inter alia, to providefor maximum of ten per cent. reservation for “the economically weakersections”[2] of citizens other than “the Scheduled Castes”[3], “the ScheduledTribes”[4] and the non-creamy layer of “the Other Backward Classes”[5].At the outset, it needs to be stated that the amendment in question doesnot mandate but enables reservation for EWS and prescribes ceilinglimit of ten per cent.

2. In very brief outline of the forthcoming discussion, it couldbe noticed that the challenge to the amendment in question is premisedessentially on three-fold grounds: first, that making of specialprovisions including reservation in education and employment on thebasis of economic criteria is entirely impermissible and offends thebasic structure of the Constitution; second, that in any case, exclusionof socially and educationally backward classes[6] i.e., SCs, STs and non-creamy layer OBCs from the benefit of these special provisions forEWS is inexplicably discriminatory and destroys the basic structure ofthe Constitution; and third, that providing for ten per cent. additionalreservation directly breaches the fifty per cent. ceiling of reservationsalready settled by the decisions of this Court and hence, results inunacceptable abrogation of the Equality Code which, again, destroysthe basic structure of the Constitution. Per contra, it is maintainedon behalf of the sides opposing this challenge that the amendment inquestion, empowering the State to make special provisions for theeconomically weaker sections of citizens, is squarely within the fourcorners of the Constitution of India; rather making of such provisions isnecessary to achieve the Preambular goal of ‘JUSTICE, social,

1 Hereinafter also referred to as ‘the amendment in question’ or ‘the 103rd ConstitutionAmendment’ or simply ‘the 103[rd] Amendment’.

2 ‘EWS’, for short.

3 ‘SC’, for short.

4 ‘ST’, for short.

5 ‘OBC’, for short.

6 ‘SEBC’, for short.

Aeconomic and political’ in real sense of terms. It is also asserted thatthere is no discrimination in relation to the classes that are excludedfrom EWS for the simple reason that the existing special provisions ofaffirmative action in their relation continue to remain in operation. Asregards the breach of fifty per cent. ceiling of reservations, thecontention is that the said ceiling is not inflexible or inviolable and inBthe context of the object sought to be achieved, ten per cent. hasbeen provided as the maximum by way of the enabling provision.

3. With the foregoing outline, we may usefully take note of thereference made to the Constitution Bench for determination of thesubstantial questions of interpretation of the Constitution, as areCinvolved in these matters and the questions formulated whilecommencing the hearing.

The Referral and the Questions Formulated

4. By an order dated 05.08.2020, 3-Judge Bench of this CourtDtook note of the issues arising in these matters and referred the same fordetermination by Constitution Bench while observing, inter alia, asunder: -

“…..By virtue of the impugned amendments, very Constitution isamended by inserting new clauses in Articles 15 and 16 thereof,Ewhich empower the State to make reservations by way ofaffirmative action to the extent of 10% to economically weakersections. It is the case of the petitioners, that the very amendmentsrun contrary to the constitutional scheme, and no segment ofavailable seats/posts can be reserved, only on the basis of economiccriterion. As such, we are of the view that such questions doFconstitute substantial questions of law to be considered by Benchof five Judges. It is clear from the language of Article 145(3) ofthe Constitution and Order XXXVIII Rule 1(1) of the SupremeCourt Rules, 2013, the matters which involve substantial questionsof law as to interpretation of constitutional provisions they areGrequired to be heard Bench of five Judges. Whether the impugnedAmendment Act violates basic structure of the Constitution, byapplying the tests of ‘width’ and ‘identity’ with reference to equalityprovisions of the Constitution, is matter which constitutessubstantial question of law within the meaning of the provisionsas referred above. Further, on the plea of ceiling of 50% forHaffirmative action, it is the case of the respondent-Union of India

that though ordinarily 50% is the rule but same will not prevent toamend the Constitution itself in view of the existing specialcircumstances to uplift the members of the society belonging toeconomically weaker sections. Even such questions also constituteas substantial questions of law to be examined by Bench of fiveJudges….”

5. Pursuant to the order aforesaid, this batch of matters has beenreferred to this Constitution Bench for determination of the issues arisingfrom the challenge to the 103[rd] Amendment. On 08.09.2022, after perusingthe issues suggested by learned counsel for the respective parties, thisCourt noted, amongst others, the issues suggested by the learned AttorneyGeneral for India as follows: -

“(1) Whether the 103[rd] Constitution Amendment can be said tobreach the basic structure of the Constitution by permitting theState to make special provisions, including reservation, based oneconomic criteria?

(2) Whether the 103[rd] Constitution Amendment can be said tobreach the basic structure of the Constitution by permitting theState to make special provisions in relation to admission to privateunaided institutions?

(3) Whether the 103[rd] Constitution Amendment can be said tobreach the basic structure of the Constitution in excluding theSEBCs/OBCs/SCs/STs from the scope of EWS reservation?

(4) Whether the cap of 50% referred to in earlier decisions of theSupreme Court can be considered to be part of the basicstructure of the Constitution? if so, can the 103[rd] ConstitutionAmendment be said to breach the basic structure of theConstitution?”

5.1. Having taken note of the relevant facets of the matter, thisCourt found that the first three issues suggested by the learned AttorneyGeneral were the main issues arising in the matter while the other issueswere essentially in the nature of supplementing and substantiating thepropositions emerging from the said three issues. Accordingly, this Courtproceeded with the hearing with respect to the first three issues aforesaid,while leaving it open to the learned counsel appearing for the respectiveparties to advance their submissions touching upon other facets in aid ofthe said three issues.

A6. We have heard learned counsel for the petitioners, therespondents, and the interveners at substantial length and have alsopermitted them to submit written notes on their respective submissions.The principal and material submissions advanced in these matters couldbe usefully summarised, while avoiding unnecessary repetition of thesame line of arguments.B

Rival Submissions

In challenge to the amendment in question

7. Prof. (Dr.) G. Mohan Gopal led the arguments on the side ofthe petitioners challenging the amendment in question and also wrappedCup the submissions in rejoinder.

7.1. The learned counsel has, while extensively relying on theConstituent Assembly Debates, Preamble, and Article 38 of theConstitution which enjoins the State to secure and protect “a socialorder in which justice, social, economic and political shall informDthe institutions of the national life”, stressed that it was to ensure thissocial justice and the ethos of the Constitution that special provisionswere envisioned under Article 15(4) and reservations in employmentwere provided under Article 16(4). He argued that it was due to certainprimordial practices that section of population was marginalised andEwas deprived of material resources and educational opportunities. Thepeople in the lowest strand of social hierarchy were ostracised andstigmatised from public life and were deprived of basic liberties andequality. It was to address these historical inequalities that, as vehicleof positive discrimination, the socially oppressed sections were providedreservations and special provisions so as to give them voice inFadministration, access to resources such as education and publicemployment. Therefore, the idea of ensuring social equality and justicewas congenital feature of the Constitution shaping its basic structure.

7.2. The learned counsel has argued that this basic structure hasbeen violated by the amendment in question which seeks to empowerGthe privileged sections of society, who are neither socially and educationallybackward nor inadequately represented. He also submitted that theamendment in question has introduced those section of people aseconomically weaker who were never subjected to any discrimination,whether historically or otherwise; and were not backward, socially andeducationally. The learned counsel quoted Dr. B.R. Ambedkar, Mr. V.I.H

Muniswamy Pillai and Mr. Sardar Nagappa, from the ConstituentAssembly Debates, to support his contention that reservation should notbe used by the forward class as self-perpetuating mechanism deprivingthe disadvantaged. The equation of the victims of social discriminationwith those responsible for their victimisation, for the purpose of conferringbenefits, was contortion of the Constitution and no less than playing afraud on it. He relied on decisions of this Court in T. Devadasan v.Union of India and Anr.: (1964) 4 SCR 680, State of Kerala andAnr. v. N.M. Thomas and Ors.: (1976) 2 SCC 310[7] and IndraSawhney and Ors. v. Union of India and Ors.: 1992 Supp (3) SCC217[8] to submit that this Court has discerned reservations and specialprovisions as an effective affirmative action to mitigate inequalities andensure social justice and equality of opportunity. The learned counselhas further relied on the decision of this Court in M.R. Balaji and Ors.v. State of Mysore and Ors.: 1963 Supp (1) SCR 439[9], which heldthat latent or covert transgression of the Constitution by abusing anostensible power granted by it will amount to ‘fraud on the Constitution’.7.3. The learned counsel has further submitted that the non obstanteclause in Articles 15(6) and 16(6), while granting reservation to alreadyprivileged and adequately represented class of citizens, has vetoed thepre-requisite of being socially and educationally backward or inadequatelyrepresented, which was the kernel to philosophy of reservation. TheConstitution puts forth social ‘and’ educational backwardness and notsocial ‘or’ educational backwardness as criterion to determine positivediscrimination in favour of class. This foundation of social justice forhistorically marginalised and disadvantaged people is completelyobliterated by the amendment in question, which removes that criterion.He argued that backward class included those classes from the forwardclass that were socially and educationally backward, hence making themeligible for benefits of reservation. He exemplified this by stating thatthere were numerous communities, traditionally belonging to the so-called‘forward’ class, in several States and several of those are not professingany religion, but are recognised as OBC on the ground that theyare socially and educationally backward.

7.4. On the point of exclusion of SCs, STs and OBCs, the learnedcounsel has argued that the concept of Fraternity, as envisaged in the7 Hereinafter also referred to as ‘N.M. Thomas’.8 Hereinafter also referred to as ‘Indra Sawhney’.9 Hereinafter also referred to as ‘M.R. Balaji’.

AConstitution, informs Articles 15 and 17, giving shape to equality whileprohibiting discrimination and discriminatory practices prevalent in oursociety. Inclusion of forward class and exclusion of disadvantaged classfrom the protection and benefit of reservation violate the basic structureof the Constitution. Learned counsel has relied on the decision of thisCourt in Prathvi Raj Chauhan v. Union of India and Ors.: (2020)B4 SCC 727 to highlight the place and role of Fraternity in the scheme ofpolity and society. Further he has stated that such exclusion of SCs, STsand OBCs was primarily based on caste because it is indeed undisputedthat large chunk of population so excluded are also economicallybackward along with being socially and educationally backward. Hence,Che would submit that the basic principle of equality forming the basicstructure of the Constitution stands abrogated by excluding those whoare socially and educationally backward and also are part of systemicpoverty/labour under abject poverty.

7.5. The learned counsel has yet further argued that the purposeDof positive discrimination was to put an end to monopoly of certain classesand create an inclusive society so as to ensure equality of opportunity tothe marginalised sections. However, the amendment in question createsa perpetual monopoly by providing reservation to that section of populationwhose identification is imprecise and is based on their individual traitsmore so, when these classes have been enjoying and are still enjoyingEcontrol over resources and public employment.

7.6. Lastly, the learned counsel would submit that the amendmentin question is not based on economic condition, which is multi-dimensional,but on financial incapacity which is transient in nature, rewarding poorfinancial behaviours and is, therefore, not reliable criterion for givingFreservation. There are two wings of reservation - social and educationalbackwardness, which cover the people who are economically weakerbut not those who are financially incapable. Economic weakness goeshand-in-hand with social and educational backwardness. EWS isindividual-centric in contrast to Article 38(2) of the Constitution, whichGtalks about inter-group inequalities. Thus, the learned counsel hassubmitted that the 103rd Amendment deserves to be set aside, beingviolative of the principle of equality, which is the basic structure of theConstitution.

8. The learned senior counsel, Ms. Meenakshi Arora, elucidatingHon the twin objectives of Equality Code enshrined under Articles 14 to

17 of the Constitution as to the formal equality and substantive equality,has submitted that these provisions are to ensure that those sections ofsociety who have been kept out of any meaningful opportunity,participation in public life and decision making, on the grounds enumeratedunder Article 15(1), be uplifted through positive discrimination, givingflesh and blood to the Equality Code, and essentially enabling thesubstantive equality. Emphasizing on the efficiency in services as underArticle 335, she would submit that the positive discrimination has to beread alongwith other guardrails provided by the Constitution, ensuringidentification of the protected group by constitutionally sanctioned bodies.The absence of these guardrails and safeguards in the newly createdclass of EWS through the amendment in question strikes at the core ofthe Equality Code, violating the basic structure of Constitution.

8.1. Stressing further on the argument of social and educationalbackwardness and inadequacy in representation being the bedrock forgrant of reservations, the learned counsel has submitted that thecommunities, whom the amendment in question aims to protect, are dulyrepresented in all walks of life and hence, even from the angle of adequacyin representation, they are not eligible to avail benefit of reservationunder Articles 15 and 16. She has placed reliance on decisions of thisCourt in M.R. Balaji and Indra Sawhney to submit that it is social‘and’ educational backwardness and not social ‘or’ educationalbackwardness that is to be considered by the legislature to grant thebenefit of reservation. Furthermore, she has submitted that backwardnessis sine qua non and the lynchpin for special provision or reservation;and as stated by Dr. B.R. Ambedkar, backwardness was designed as aqualifying phrase to ensure that the ‘exception does not eat the rule’.

8.2. Moving on and while relying on the decisions of this Court inIndra Sawhney, N.M. Thomas, M.R. Balaji and B.K. Pavitra andOrs. v. Union of India and Ors.: (2019) 16 SCC 129, the learnedcounsel has submitted that the purpose of reservation was to enable thebackward classes to have level playing field with the forward class sothat they can participate in public life with them on an equal basis. Also,this Court has held that no one criterion such as caste could be the solebasis for grant of reservation. In the amendment in question, the economiccriteria is the sole basis for grant of reservation without considering theconcept of representation; and this prescription is not only against thejudicial pronouncements but also against the Preambular vision ofcasteless society, hitting the basic structure of the Constitution.

A8.3. The learned counsel has further contended that for classesthat are socially and educationally backward, there are constitutionallydevised commissions and guardrails to ensure that the benefits areextended only to the deserving sections, who are actually socially andeducationally backward but the amendment in question is bereft of anysuch guardrails or safeguards. The amendment is limited to those classesBthat are neither identifiable nor have any constitutionally devisedmechanism for their identification.

8.4. The learned counsel would further submit that economic statusis transient in nature and would keep on changing unlike the status ofbackwardness, which is based on age-old caste practices and oppressionsCthat are immutable. The newly protected class under the amendment inquestion lacks historic and continuing lack of adequate representationcaused by structural or institutional barriers, so as to be eligible for positivediscrimination. Further, the reservation is intended to be operative onlyuntil there is inadequacy in representation of those classes and not inDperpetuity. However, the present amendment prescribes essentially noend to reservation as there would always be people poorer than others.Since the need for reservation has been delinked from inadequacy ofrepresentation and the need to show backwardness, there is no naturalguardrail or end point to reservations connected with poverty. Thisconstitutes clear violation of the Equality Code and of the basic structureEof the Constitution.

8.5. In the alternative, the learned counsel has argued that even ifthis Court were to accept poverty and income as valid criteria for thegrant of reservation then too, the amendment to the extent of ‘otherthan the class mentioned in clause (4) [and (5)]’ should be severedFfrom Articles 15(6) and 16(6) so as to include the poor of all classeswithout any exclusion or discrimination.

9. Learned senior counsel, Mr. Sanjay Parikh, has reliedextensively on the Constituent Assembly Debates to contend that theAssembly was of the clear opinion that the word ‘backward’ shouldGprecede ‘class of people’. Therefore, despite being aware of the rampantpoverty in the country, the focus of reservations was predominantly onthe social stigma attached to the group. Reservation in public employmentwas given because the framers wanted the backward classes to shareState power and for that matter, they had to be provided equal opportunity.HThe Assembly intended to extend the benefits of affirmative action to

only those socially and educationally backward groups who had beenexcluded from mainstream national life due to historic injustice, stigmaand discrimination and thus, bringing in any other criteria, excluding thecommunities who have suffered such stigmatisation, would be blatantviolation of not only the Equality Code but also the very principles ofdemocracy (sharing of power being necessary to sustain democracy),both of which form part of the basic structure of the Constitution.

9.1. The learned counsel would submit that the criteria for‘backwardness’ was always ‘social’ in nature and ‘economic’backwardness was never accepted as the sole criteria. Placing relianceon the decision of this Court in Indra Sawhney, he has contended thatby the majority of 8:1, it was held that economic criteria cannot be thesole basis to grant reservation under Article 16. Drawing attention to thetheory of ‘Substantive Equality’ propounded by Prof. Sandra Fredman,the learned counsel has submitted that reservation solely on economiccriteria would violate the principles of substantive equality ingrained inthe Constitution, which was directed against identity-based historicmarginalisation.9.2. Learned counsel has further placed reliance on IndraSawhney to draw distinction between backward class and weakersections discussed under Articles 16(4) and 46, respectively. It has beenargued that the latter has no limitations and thus, Article 46 cannot bethe basis for providing reservation. He has also urged that exceedingfifty per cent. limit would violate the twin tests of width and identity, aspropounded by this Court in M. Nagaraj and Ors. v. Union of Indiaand Ors.: (2006) 8 SCC 212[10]and result in disturbance of equality;and that fifty per cent. limit cannot be breached under any circumstanceexcept if law is protected under the Ninth Schedule to the Constitution,which the amendment in question is not. He supported his argumentciting Indra Sawhney and Dr. Jaishri Laxmanrao Patil v. ChiefMinister and Ors.: (2021) 8 SCC 1[11], wherein it was held thatreservation under Article 16(4) should not exceed fifty per cent.

10. Traversing through the history of reservation policy since theyear 1872 and the decision of this Court in State of Madras v.Champakam Dorairajan: AIR 1951 SC 226[12], Prof. Ravivarma

10 Hereinafter also referred to as ‘M. Nagaraj’.

11 Hereinafter also referred to as ‘Dr. Jaishri Patil’.

12 Hereinafter also referred to as ‘Champakam’.

AKumar, learned senior counsel, has submitted that the ratio of decisionof this Court in Champakam, that classification on the basis of religion,race, caste, language or any of them was against the ethos of Constitution,has been followed unanimously and consistently by this Court in M.R.Balaji and Ashoka Kumar Thakur v. Union of India and Ors.: (2008)6 SCC 1[13]. However, the 103rd Amendment reinstates the communalBGovernment Order set aside in Champakam.

10.1. Elucidating further on formal and substantive equality, thelearned counsel has submitted that despite ensuring equal opportunity toall, it was still felt necessary to prohibit discrimination specifically on thegrounds of religion, race, caste, sex, place of birth so as to halt allCinequality and create more egalitarian society, protecting the interestsof every individual through Articles 15, 16, 17, 23, 24 and 35. In order tohighlight the intensity of caste-based discrimination in India, he exemplifiedthe prejudices and discriminations faced by Dr. B.R. Ambedkar andM.K. Gandhi and submitted that unless caste is destroyed in the country,Dequality cannot be attained in true sense of the term.

10.2. The learned counsel has further contended that the term“socially and educationally” backward has been employed in Article15(4) and the expressions employed are not “socially or educationally”or “socially or economically”. The intention behind this was to protectEthose classes of population who have been historically disadvantaged bybirth and not by loss of wealth or by accident. Further, the substantiveequality enshrined through Articles 15 and 16 not only makes the provisionsto bridge the gap but it also provides the means by which this gap can bebridged. Likewise, under Article 340, the first Backward ClassesCommission laid down 22 parameters for the identification of backwardFclass. The amendment in question does not have any such machineryemployed within its ambit for the identification of population who wouldfall under the EWS category. Relying upon the census report, he hassubmitted that the population who would fall under the EWS would bearound five per cent., and providing ten per cent. of reservation for suchGa small population, more so to the forward class, is manifestly arbitraryand fraud on the Constitution. Further, this positive discrimination is takingaway the rights from rest of the population.

10.3. The learned counsel has further argued that as per thegrounds of discrimination in Article 15, the Constitution has provided aH13 Hereinafter also referred to as ‘Ashoka Kumar Thakur’.

bridge for all the grounds but there, economic deprivation is not mentioned,which clarifies that it was not considered as basis for discrimination.Applying the principle of ejusdem generis to Article 46, he contendedthat the measures contemplated in the Statement of Objects and Reasonsof the amendment in question are in favour of SCs and STs and thoseweaker sections who are similarly circumstanced to SCs and STs; anddefinitely is not meant for those castes and sections which are at theother end of the pendulum in the society.

10.4. Relying on the decision of this Court in Indra Sawhney, thelearned counsel has posited that economic criteria cannot be the solebasis to provide reservation. He would further submit that class shouldbe homogenous, have common origin, and have the numerical strength.The EWS created by the amendment in question does not fulfill any ofthe criteria and hence, cannot be called class for any State action,particularly the affirmative action. He further emphasised on thisargument by intensively reading the opinion of Justice Sahai in IndraSawhney.

10.5. The learned counsel has further submitted that theamendment in question fails on all the anvils of Equality Code because,if poverty is the rationale behind it and it aims at providing jobs for thepoor by way of reservation then, the amendment fails to address as tohow the poverty of the forward class is different from that of the SCs,STs and OBCs. Hence, the amendment in question fails the twin test ofrationality and nexus, and violates the basic structure of Constitution.

11. Learned senior counsel, Mr. Salman Khurshid, has submittedthat in India, reservation formed special part of affirmative action. It iswithin the larger affirmative action circle that reservation finds its place.Drawing analogy with countries like U.S.A., Israel and Germany, thelearned counsel has submitted that indeed affirmative action can be ananswer, but it is not the only answer. There are, therefore, many waysof addressing the issue of economic disadvantage other than reservation,as has been done by these countries. He would further submit that thelimit for such reservation cannot exceed fifty per cent. except in caseswhere compelling reasons arise. Arguing on the Equality Code, learnedcounsel has relied on the classification laid down by this Court in E.P.Royappa v. State of Tamil Nadu and Anr.: (1974) 4 SCC 3, to submitthat the present amendment neither has any reasonable classificationnor such classification has any nexus with the object to be achieved,

Ahence is violative of Article 14. Entire list of reserved categories ofcitizens is caste-based and the amendment did not include any metric orindicator, ignoring the marginalisation criteria entirely while grantingreservation. He has also quoted the works of John Rawls to submit thateach person has the same indefeasible right over every claim.

B12. “One law for lion and ox is oppression”, Mr. P. Wilson,learned senior counsel, quoting William Blake, has contested theamendment in question on four grounds. First, granting reservation toupper caste is violation of the basic structure of Constitution as the basisof reservation must be rooted in identified past discrimination whichimpeded access to public administration and education opportunities.CRelying on the decision of this Court in Indra Sawhney and judgmentof the Gujarat High Court in Dayaram Khemkaran Verma v. State ofGujarat: 2016 SCC Online Guj 1821 wherein similar reservations onthe basis of economic criteria were quashed by this Court and the HighCourt respectively, he has submitted that economic criteria cannot beDthe sole basis for providing reservation, and the reservation cannot exceedfifty per cent. limit. Second, he submitted that reservation in the favourof forward class violates the basic structure of the Constitution and is,therefore, unconstitutional. Third, classification of EWS is neitherreasonable nor valid. The reason for providing reservation to SC, STand OBC communities was historical and perpetual discrimination andEstigmatisation. It was the structural barrier that kept them from themainstream. Reservation cannot be used as poverty alleviation scheme.Hence, such classification violates the Equality Code under Article14. Fourth, the amendment in question fails the width test laid down bythis Court in M. Nagaraj as there are no limitations or indicators thatFhave been devised to identify the people falling under the EWS. Whereas,for each category, be it SC, ST or OBC, the Constitution is overseeingthe reservation by virtue of Articles 366(24), 366(25), 338, 340, 341 etc.Hence, the amendment in question fails the guided power test.

13. Learned senior counsel, Mr. K.S. Chauhan, while placingGreliance on Constituent Assembly Debates and decision of this Court inKesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.:(1973) 4 SCC 225[14], has argued that the 103rd Amendment violatesthe basic structure of the Constitution as it changes the identity of theConstitution. He would again submit that providing reservation solely on

14 Hereinafter also referred to as ‘Kesavananda’.H

economic criteria is against the decision of this Court in Indra Sawhneyand also against the facet of democracy, as democracy ought to berepresentative. The learned counsel would argue that economic criteriais transient in nature whereas the inclusion of backward classes underArticle 16(4) was on the ground of historical exclusion. In our society,discrimination finds its root in caste, religion, race, etc. and not in economiccondition of person. The classification under Article 14 has to havereasonable nexus and intelligible differentia which the amendment inquestion, because of all the aforesaid reasons, fails to achieve. He hasalso submitted that indeed forward class must have faced somediscrimination, but the intensity of discrimination is not enough to justifyreservation. To support his submission, he has relied on the judgment ofthis Court in Madhav Rao Scindia Bahadur etc. v. Union of India:(1971) 1 SCC 85 wherein it was held that constitutional philosophy isthe obligation of the executive; if particular class is eligible foridentification in category and it is not identified as such, the constitutionalscheme will be destroyed; and if under the constitutional scheme, anobligation is given to wing and if that wing is not discharging the function,it is fraud on the Constitution.14. Learned counsel, Mr. Yadav Narender Singh, while referringto Sinho Commission Report, has submitted that the report, on the basisof which the amendment was enacted, itself stated that economic criteriawould not result in homogenous class. Learned counsel has argued thatin the absence of quantifiable data, one could not create class forwhich protective measures are to be taken. The said Report concludedthat if poverty is kept as base-line for reservation, then it should havein its ambit all, irrespective of their class, more so because the poor ofSCs, STs and OBCs are worse-off than those of general category. Hehas further argued that the condition precedent for protective clause isexistence of discrimination. Hence, protective action for class that isneither homogenous class nor is discriminated against, is violative ofthe basic structure of the Constitution. Learned counsel has relied uponthe decision of this Court in Indra Sawhney, to submit that economiccriteria cannot be the sole basis for classification. He has further argued,in the alternative, that even if reservation on grounds of economic criteriais to be given, EWS ought to include those who are living below thepoverty line (BPL).

15. Learned counsel, Mr. Shadan Farasat, while adding on to thesubmissions already advanced by the preceding counsel for petitioners,

Aposited that the originalist understanding of reservation is that it cansolely be granted as an anti-discriminatory measure and not as an anti-deprivation measure. Hence, the amendment in question cannot sustainitself, as it addresses the deprivation faced by an individual and notdiscrimination.

B15.1. The learned counsel would further argue that even if it isassumed that reservation can be granted as an anti-deprivation measure,still the amendment violates the Equality Code as it excludes the SCs,STs and OBCs, who are poorer than the poor of forward class, withoutany intelligible differentia and its nexus with the object sought to beachieved. Opposing the justification that these classes are alreadyCprotected by way of Articles 15(4) and 16(4), he has submitted that thepurpose of Articles 15(4) and 16(4) is to protect ‘group’ and to counterthe historical wrong/oppression done to them. Whereas, the amendmentin question deals with situational deprivation, mainly economic criteria,and is intended to protect an individual. Purposes and entities of both theDprotections being different, inclusion of SCs, STs and OBCs in one cannotmean their exclusion from the other.

15.2. The learned counsel has re-emphasised on the submissionsthat statistically, the backward class poor are worse off than forwardclass poor and their poverty is deeper, more intense and likely to beEstickier and persistent. He has relied on Sinho Commission Report, NITIAayog Multi-dimensional Poverty Index, along with other reports; andhas argued that the question before the Sinho Commission was whetherthere could be reservation for general category people not covered inany other category. The Report itself stated that the backward classpoor are poorer than the upper-class poor. He would underscore theFpoint that poverty is deeply linked to the caste of an individual and theperception surrounding that status.

15.3. The learned counsel has further submitted that grant ofreservation as measure of affirmative action is way for reparationand does not lead to economic upliftment. The object of economicGupliftment of deprived sections of society can be achieved through othermeasures of poverty alleviation but reservation is not the answer. Whilecontending that Articles 15(1) and 16(1) are part of the basic structureof Constitution and that it is only in furtherance of substantive equalitythat formal equality can be breached, he has submitted that exclusion onHthe basis of caste straightaway breaches formal equality. Further,exclusion of those who are arguably more impacted by this criterionviolates substantive equality too, hitting the Equality Code, and resultantlyviolating the basic structure of the Constitution.

15.4. In another line of arguments, the learned counsel has putforth the proposition that the words “other than” in Articles 15(6) and16(6) should be read as ”in addition to”, thereby including SCs, STs andOBCs within them and furthering the basic structure. He has placedreliance on the decision of this Court in State (NCT of Delhi) v. Unionof India and Anr.: (2018) 8 SCC 501 to submit that if two interpretationsare possible - one which destroys the basic structure and the other whichenhances it - then purposive approach enhancing the basic structure ofthe Constitution is to be taken and not the literal approach. He hasconcluded the submissions while quoting from the judgment of this Courtin K.C. Vasanth Kumar and Anr. v. State of Karnataka: 1985 SuppSCC 714[15] that lower the caste, the poorer are its members.

16. Learned counsel, Ms. Diya Kapoor, while stressing upon theEquality Code and it being part of the basic structure, has argued on twofacets. First, as to whether the inclusion of new class of reservationsolely on the basis of economic criteria was constitutionally permissible;and second, as to whether the exclusion of SCs, STs and OBCs fromthis newly created class, was constitutionally permissible. She mappedthe historical background of reservations for backward classes since1917 until the Constituent Assembly Debates, where Dr. B.R. Ambedkarand Mr. K.M. Munshi supported the use of the term ‘backward’ so as togrant special benefits to the classes qualifying that criterion and toneutralize the oppression faced by them. She would submit that suchclassification was based on long continuing historical oppression facedby these classes. Thus, to ensure their representation, reservations wereprovided as means to foster the equality and fraternity of the country,with various checks and safeguards.

16.1. The learned counsel has further argued that reservation isfor participation and representation and cannot be used for povertyalleviation. Reservation in public employment is to reverse discriminationand to equalize representation. Providing government jobs cannot pavea way for economic upliftment whereas, other ways of providing subsidiesetc., is kind of affirmative action to eliminate poverty. Indeed, poverty

15 Hereinafter also referred to as ‘Vasanth Kumar’.

Aalleviation is goal for the State to strive for as per Directive Principlesof State Policy[16] but, reservation is not way to alleviate poverty, as isevident from the statistics that despite decades of reservation in favourof SCs, STs and OBCs, they are still poor. Relying on the decision of thisCourt in Minerva Mills Ltd. and Ors. v. Union of India and Ors.:(1980) 3 SCC 625[17], she would submit that alleviation of poverty hasBto be done without trampling on Fundamental Rights. Welfare steps canbe taken under DPSP but it cannot be done under Article 15 unless therehas been discrimination on the grounds mentioned in Article 15(1), asotherwise, the character of Article 15 is changed and results in abrogatingthe Fundamental Rights. As iterated by this Court in Indra Sawhney,CArticle 16(4) has to be in consonance with and in furtherance to Article16(1). Similarly, Article 16(6) also has to be in furtherance of equality ofopportunity under Article 16(1). So, if Article 16(6) is violative of Article16(1), it cannot sustain itself in the scheme of the Constitution.16.2. Further relying upon 3-Judge bench decision of this Court inDIndra Sawhney v. Union of India: (2000) 1 SCC 168, the learnedcounsel has submitted that by providing reservation to forward class, theidentity of backward class is erased and therefore, such reservation isillegal, hitting at the roots of the Constitution. Moreover, if the forwardclass becomes backward, it can come under OBC so as to benefit fromreservation. She would reason that the 103rd Constitution AmendmentEis discriminatory to SCs and STs as the people falling in EWS areapproximately five per cent. and for these five per cent. of people tenper cent. of reservation is provided. The learned counsel would furthersubmit that the amendment in question is arbitrary too, for there is nomechanism/procedure laid down for it, as under Article 340, forFidentification of genuine EWS.

17. Learned counsel, Dr. M.P. Raju, has based his submission onthe ground that the amendment in question is caste-based reservationthat excludes the historically oppressed groups (SC/ST/OBC) from itscoverage and is thus, destructive to the aim of ‘casteless society’, whichGis the Preambular vision forming the basic structure of the Constitution.Learned counsel has submitted that this amendment has created twolevels of classification - first, between the classes already covered underArticles 15(4) and 16(4) (socially and educationally backward classes)

16 ‘DPSP’, for short.17 Hereinafter also referred to as ‘Minerva Mills’.H

and those who were not (forward class/non-reserved), which has resultedin caste-based classification; second, within the forward class betweenthose who were economically weaker and those who were not. Suchclassification, in his opinion, not only defeats the goal of casteless society,as envisaged by the Constituent Assembly, but also attempts to createvertical reservation inside vertical reservation, which is not permittedunder the Constitution.

17.1. The learned counsel has further submitted that, as held bythis Court in Indra Sawhney, if castelessness is an ideal of theConstitution, and if this ideal goes into the basic identity of the Constitution,then the constitutional amendment, even if passes the test of equality,violates the basic structure. He has also urged that the condition of‘adequate representation’ that controlled Article 16(4) is intentionallyexcluded from Articles 15(6) and 16(6). Reservation, once starts, has toend. It cannot be in perpetuity. He has further argued that the amendmentin question is violative of the Constitution inasmuch as grant of reservationto already sufficiently represented classes while excluding those whowere inadequately represented (SC/ST/OBC) offends not only theEquality Code but also the principle of Fraternity, as recognised in thePreamble to the Constitution. He has supported his contentions whilerelying upon decisions of this Court in T.M.A. Pai Foundation andOrs. v. State of Karnataka and Ors.: (2002) 8 SCC 481 and V.V.Giri v. D.S. Dora: (1960) 1 SCR 246.

18. Learned counsel, Mr. Kaleeswaram Raj, has based hissubmissions on modern jurisprudence citing academic scholarship[18] tosubmit that two things are to be considered while dealing withdiscrimination law. First, the immutability and second, it should constitutefundamental choice. Relativity of poverty is antithetical to immutability.He has further submitted that the 103rd Amendment in the context ofexclusion, made the forward communities as protected group and thebackward class as cognate group, which is impermissible. Theamendment in question strips off the right of backward class candidatesto contest the seats kept in open category, to which they are entitled to.The learned counsel has argued that this amendment fails the preferencetest by giving preferential treatment to forward class and taking it awayfrom backward class who are inadequately represented. He has further

18 ‘A Theory of Discrimination Law’ by Tarunabh Khaitan, Oxford University Press2015.

Asubmitted that the ‘living tree’ approach should be applied to interpretthe Constitution as per the changing circumstances of the society.

18.1. Learned counsel has also argued that Fundamental Rightsare individualistic in nature; and while relying on the decision of thisCourt in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of IndiaBand Ors.: (2017) 10 SCC 1, he would submit that the individual is thefocal point because it is only in the realization of individual rights, thatthe collective well-being of the group can be determined and hence, itremains baseless to say that collective rights have been provided to theSC/ST/OBC as group.

19. Learned counsel, Mr. Pratik Bombarde, has submitted thatthe amendment in question changes the identity of Fundamental Rightswhile omitting to take into account the crucial factor that socialbackwardness was ‘cause’ of economic backwardness and not its‘consequence’. While relying on the decision in Saurav Yadav andOrs. v. State of Uttar Pradesh and Ors.: (2021) 4 SCC 542 whichDheld that open category is open to all and horizontal and verticalreservations are methods of ensuring representation in public places, hehas argued that the right to equality of the persons belonging to SC, STand OBC communities is impacted by reducing their seats in opencategory. He would reiterate that rule of ejusdem generis shall applyEwhile reading Article 46. Lastly, he has submitted that confining eachsocial category to its extent of reservation would result in communalreservation, which, in turn, would result in breach of Equality Code andthereby, damage the basic structure of the Constitution.

20. Learned counsel, Mr. Akash Kakade referred to theFphraseology of the provisions under consideration and submitted thatwhile Articles 15(4) and 15(5) refer to socially and educationally backwardclasses, Article 16(4) is directed towards backwardness and inadequaterepresentation. According to him, the impugned provisions of Articles15(6) and 16(6) have left aside the key elements of “social backwardness”and “inadequate representation” while providing for EWS reservation.GThese provisions, therefore, are rather antithetical to the spirit of theexisting provisions. The learned counsel has again urged that Article 46should be read under the rule of ejusdem generis and by excluding SC,ST and OBC communities, the said rule is violated. According to thelearned counsel, keeping SC, ST and OBC communities outside of itsHscope and bringing in economically weaker sections within it was never

the idea of Article 46. He has also submitted that no constitutionallyrecognised commission has been set up for determination of the financialincapacity/capacity of candidate, as in the case of OBCs.

21. Learned senior counsel, Mr. Shekhar Naphade, has arguedthat there was no dimension of equality, other than what was rooted inArticles 14 to 16 of the Constitution. Relying on passages of judgmentsof A.N. Ray, C.J. and P. Jaganmohan Reddy, J. in Kesavananda, whichindicated that new dimensions of equality could be discerned havingregard to new challenges, he has submitted that those observations werenot endorsed by other judges. As result, the amendment cannot sustainitself on the ground that it gives shape to another facet or dimension ofequality. Learned counsel has further contended that economic criteriacannot be the sole criteria for the basis of classification, and if it is to betaken as sole criterion, Indra Sawhney has to be revisited, whichcannot be done by this Bench of 5 Judges.

22. Learned senior counsel, Mr. Jayant Muthuraj, in addition to thearguments already advanced, would submit that ten per cent. reservationin open category in favour of forward class reduces the availability ofseats in open category for other classes and communities, in particularthe persons belonging to the creamy layer category in SEBCs/OBCs.This, according to him, would damage the basic structure of theConstitution.

23. Learned senior counsel, Mr. Ravi K. Deshpande, and thelearned counsel, Mr. Sachin Patil, Mr. Shashank Ratnoo, Mr. VarunThakur, Mr. P.A. Noor Muhammad and Mr. A. Selvin Raja have alsomade their submissions as interveners. All of their submissions, whichare akin to the submissions already noticed above, need not be elaborated.However, in sum and substance, their additional submissions had beenthat the amendment in question, which states ‘not more than ten percent. of the total seats in each category’ has to be interpreted asproviding ten per cent. reservation for EWS in each category. One ofthe interveners provided the statistics as to the percentage of peopleworking in each category to submit that the exclusion of SCs, STs andOBCs is invalid as they are still inadequately represented in State services.Further they submitted that the current strength of Bench is notcompetent to overrule Indra Sawhney wherein it was explicitly heldthat reservation cannot be based solely on economic criteria. Yet further,discussing the power of Parliament under Article 368, it was posited that

Athe Parliament has the power to amend the Constitution by way of‘addition, variation or repeal’ and not by breaking down the basic structureof the Constitution.

In part challenge to the amendment in question

24. Learned senior counsel, Mr. Gopal Sankaranarayanan hasBtaken stance different than other petitioners, and has contended thatthe amendment in question is violative of basic structure of the Constitutiononly to the extent of the words ‘in addition to the existing reservationand’ which need to be severed and that the rest of the part, whichprovides classification on the economic criteria for extension of specialCprovisions for the advancement of economically weaker sectionsexcluding classes already covered under Articles 15(4) and 16(4), waspermissible.

24.1. The learned counsel has, otherwise, supported theamendment in question on two grounds. First, that the insertion of theDEconomically Weaker Sections is perfectly valid as class for theextension of special provisions for their advancement, admissions andfor reservations in posts. He has submitted that the classification on thebasis of economic criteria has been recognised in plethora of measuresintroduced by the State from providing housing, admission in schools orhospitals, to several statutes for their upliftment. Further, this Court inEM.R. Balaji, R. Chitralekha and Anr. v. State of Mysore and Ors.:(1964) 6 SCR 368 and Vasanth Kumar has accepted poverty as anindicator of backwardness, while considering reservation. It has beenargued that the present constitutional amendment has removed the basisof Indra Sawhney (bar on using economic criteria as sole determinativeFof backwardness); and in fact, such an amendment would further thegoal of economic justice, thus strengthening the basic structure of theConstitution. The learned counsel has supported his submission withreference to the decision in Waman Rao and Ors. v. Union of Indiaand Ors.: (1981) 2 SCC 362[19].

G24.2. Second, at divergence from other submissionsregarding exclusion of SC, ST and OBC communities, he has arguedthat such an exclusion is permissible as the exclusion is not of ‘castes’but of ‘classes’ who are already receiving the benefit of specialprovisions. Further, the SCs, STs and OBCs receive political reservations

H19 Hereinafter also referred to as ‘Waman Rao’.

as well without having any ceiling limits as such whereas, EWSreservation is capped at ten per cent. and is not extended to politicalreservation, thereby providing balance with sufficient guardrails andsafeguards. Therefore, this amendment was long due, stepping awayfrom caste-based reservation to provide reservation for that class ofpersons who had hitherto been overlooked.

24.3. Advancing his submission that the amendment in question,to the extent of ‘in addition to existing reservation’, is violative of thebasic structure of the Constitution, the learned counsel has given three-fold reasoning. First, the expression ‘in addition to’ cements reservation,perpetuating the existing reservations within the Constitution as apermanent feature which violates basic structure of the Constitution aslaid down in various decisions including those in Champakam, M.R.Balaji, Indra Sawhney, Ashoka Kumar Thakur v. State of Biharand Ors.: (1995) 5 SCC 403 and Subhash Chandra and Anr. v.Delhi Subordinate Services Selection Board and Ors.: (2009) 15SCC 458. Secondly, the amendment in question inserts enabling provision“in addition to”, making EWS reservation reliant on those of SCs, STsand/or OBCs, which effectively converts enabling provisions in Articles15(4), 15(5) and 16(4) into enabled provisions, inconsistent with the ethosand guiding principles of the Constitution. Lastly, on the extent ofreservation, he would submit that the amendment providing reservation“in addition to existing reservation” breaches the fifty per cent. ceilinglimit, which is now not only part of constitutional interpretation ofreservation provisions but is also part of basic structure of theConstitution. He has further emphasised that in more than 54 judgmentsof this Court in over 60 years, it has been repeatedly stated that fifty percent. ceiling limit must be maintained when reservations are activatedwhile interpreting Articles 15 and 16. This, as per his contention, lendsenough strength for fifty per cent. ceiling limit to be basic feature ofthe Constitution. In support of his submission on the extent of reservations,learned counsel has relied upon the decisions in Bhim Singhji v. Unionof India and Ors.: (1981) 1 SCC 166[20], M. Nagaraj and Dr. JaishriPatil.

In support of the amendment in question

25. Learned Attorney General for India, Mr. K.K. Venugopal,has posited that the 103[rd] Amendment does not violate the basic structure

20 Hereinafter also referred to as ‘Bhim Singhji’.

Aof the Constitution, rather fosters it. Second, the exclusion of those classesalready covered under Articles 15(4) and 16(4) from the proposedreservation did not breach the Equality Code. Third, the fifty per cent.limit is not sacrosanct rule. Lastly, the benefit to EWS with respect toadmission in private aided or unaided educational institutions does notviolate Article 14, as has been settled by this Court.B

25.1. While quoting from Bhim Singhji, the learned AttorneyGeneral has submitted that mere violation of Article 14 does not violatethe basic structure of the Constitution unless ‘the violation is shocking,unconscionable or unscrupulous travesty of the quintessence ofequal justice’. Relying on M. Nagaraj, he has submitted that aCconstitutional amendment can be struck down only when it changes theidentity of the Constitution. In support of his submissions, he has alsorelied on the decisions of this Court in Raghunathrao Ganpatrao v.Union of India: 1994 Supp (1) SCC 191[21], Ashoka Kumar Thakurand Minerva Mills.D25.2. Learned Attorney General has placed reliance on thedecision of this Court in M. Nagaraj, as to dynamic interpretation of theConstitution to strengthen its Preambular vision; and has submitted thatArticles 38 and 46 along with Preamble to the Constitution enjoin dutyon the State to eliminate social, economic and political inequalities and toEpromote justice. He has further argued that this Court has, over theyears, repeatedly recognised that it was desirable to use poverty as theonly basis for affirmative action and that it is poverty or economicdeprivation that results in social and educational backwardness. He hasrelied on the decisions of this Court in Vasanth Kumar and AshokaKumar Thakur to support his contention. He has further submitted thatFthe creation of new class fosters the vision of ‘Economic Justice’, as setout in the Preamble, hence strengthening the basic structure of theConstitution.

25.3. Learned Attorney General has further contended that theexclusion of already covered classes does not violate Equality Code asGthe EWS among the SC, ST and OBC communities are already enjoyingthe benefit of affirmative action in their favour by way of reservations ineducational institutions and public employment, seats in Legislature, etc.,to attain an equal status - socially and educationally. However, the EWSamong the classes not covered under any of provisions preceding Articles

H21 Hereinafter also referred to as ‘Raghunathrao’.

15(6) and 16(6) do not have any special provision made in their favourexcept for reservation by way of the present amendment. Further, thisten per cent. carved out for EWS is in addition to the existing reservationin favour of SEBCs; meaning thereby that it does not in any way affectthe reservation upto fifty per cent. for the SEBCs/OBCs/SCs/STs.

25.4. As to the extent of reservation, learned Attorney Generalhas submitted that the fifty per cent. cap as laid down in Indra Sawhneyis for the classes covered under Articles 15(4), 15(5) and 16(4). Therefore,extending the benefit of ten per cent. to these classes would exceed thereservation made for them beyond fifty per cent. and that would beviolative of Indra Sawhney. He has also contended that this fifty percent. rule could be breached in extraordinary situation, as held by IndraSawhney; and is, therefore, not an inviolable rule or part of the basicstructure of the Constitution.

25.5. On the question of private unaided educational institutions,learned Attorney General has relied on the decision in Society forUnaided Private Schools of Rajasthan v. Union of India and Anr.:(2012) 6 SCC 1 which upheld twenty-five per cent. reservation infavour of EWS under the Right of Children to Free and CompulsoryEducation Act, 2009, which was further affirmed the by 5-Judge Benchin Pramati Educational and Cultural Trust (Registered) and Ors. v.Union of India and Ors.: (2014) 8 SCC 1[22].

26. Learned Solicitor General of India, Mr. Tushar Mehta, hassubmitted that to set aside constitutional amendment, very high judicialthreshold is needed. He would submit that constitutional amendmentmay even touch upon the basic structure but unless it is shown that itfundamentally alters the basic structure or basic features of theConstitution, it cannot be struck down under judicial review. In supportof his contentions, learned Solicitor General has placed reliance on thesaid decisions in Raghunathrao, Bhim Singhji and Kesavananda asalso on the decision in Indira Nehru Gandhi v. Raj Narain and Anr.:1975 Supp SCC 1[23]. He has further argued that the amendment inquestion, instead of hitting or disturbing the basic structure, ratherstrengthens the Preambular vision of the Constitution i.e., of providingeconomic justice to its people along with social and political justice.

22 Hereinafter also referred to as ‘Pramati Trust’.

23 Hereinafter also referred to as ‘Indira Nehru Gandhi’.

A26.1. Learned Solicitor General has further argued that theexclusion of classes already covered under Articles 15(4) and 16(4)does not violate the Equality Code; and that from the time of the decisionin Champakam to the recent decision in Dr. Jaishri Patil, theunderstanding and concept of equality and reservation have changedand evolved with time, and the reservation itself has been treated as aBpart and parcel of the Equality Code that furthers substantive equality.The Constitution has recognised different zones of affirmative action,whereby it extends reservation and special provisions as to the needs ofeach section of the society. For instance, all SEBCs do not have anyreservation in Parliament, however, SCs and STs have been given aCsecured representation in Parliament. Learned Solicitor General has alsosubmitted that except for the open category, the SCs, STs and OBCsare not permitted to migrate to the other vertical reservations; and similarly,the Constitution has created another vertical zone for EWS category,which exists outside the fold of pre-existing reservations. Further, hewould submit that ten per cent. reservation in favour of EWS wouldDresult in miniscule delimitation of the available seats in favour of SC, STand OBC communities (SC: reduces from 65 per cent. to 55 per cent.;ST: reduces from 57.5 per cent. to 47.5 per cent.; and OBC: reducesfrom 77 per cent. to 67 per cent.).

26.2. On the question of fifty per cent. ceiling limit, learned SolicitorEGeneral has again submitted that this percentage could be exceeded inexceptional circumstances for, being neither fundamental tenet of theConstitution nor part of its basic structure. He lastly contended thatthe validity of constitutional amendment cannot be tested on possibleapprehensions or absence of guardrails.F

26.3. Mr. Kanu Agrawal, learned counsel, has supplemented thesubmissions of learned Solicitor General that the amendment in questionhas guardrails inbuilt in it by having the upper limit of reservation fixed atten per cent. unlike Articles 15(4), 15(5) and 16(4). He further submittedthat exclusion of other classes is inherent in the concept of reservationGand therefore, the exclusion of SC, ST and OBC communities alreadycovered under preceding provisions is not violative of Equality Code.Thus, the exclusion clause ‘other than’ is an “opportunity cost” whichdoes not violate the basic structure of the Constitution. Further, he hassubmitted that Pramati Trust is squarely applicable to Article 15(6) aswell as to making of special provisions in relation to admission to theHprivate unaided institutions.

27. Learned senior counsel, Mr. Mahesh Jethmalani, has submittedthat the amendment in question takes into account the changing conditionsof society as iterated in M. Nagaraj and hence, purposive interpretationof the Constitution has to be resorted to. He has further submitted that,as held in Dr. Jaishri Patil, there must be harmony between FundamentalRights and DPSP, which the amendment seeks to strike. Further, learnedcounsel would submit that the challenge in Indra Sawhney was to anOffice Memorandum and the view of the Court that economic criteriacannot be the sole basis ran contrary to its own view of excluding creamylayer from OBCs on economic basis. Further, Indra Sawhney testedthe Office Memorandum on the tenets of Article 16 alone. Here, theamendment in question, being constitutional amendment, has to betested on the threshold of violation of basic structure to an extent that itchanges the identity of the Constitution.28. Learned senior counsel, Mr. Niranjan Reddy, has submittedthat neither the entitlement to reservation nor exclusion therefrom ispart of the basic structure of the Constitution; and that reservations areenabling provisions, temporary in nature and do not hold within them thefeature of permanence, so as to form part of the basic structure of theConstitution. Indra Sawhney, staged 30 years ago, dealt with ‘schematicinterpretation’ of Articles 16(4) and 15(4). He further emphasized onthe balance to be maintained between the competing claims that keeps

on changing with the needs of the society. He based his argumentprincipally on the premise that economic criteria by itself can be adeterminative factor for backwardness. He has supported his contentionby quoting Indra Sawhney, which mentioned R. Chitralekha (supra),where occupation-cum-means test was employed so as to determinesocial backwardness. On the issue of exclusion of SCs, STs and OBCs,he has submitted that there is already an affirmative action in the formof reservation and special provisions operating in their favour. Their“opportunity quotient” including the reserved and open category exceedsfifty per cent. Hence, the ten per cent. in favour of EWS, in no wayviolates the Equality Code. According to the learned counsel, in fact,exclusion of SCs, STs and OBCs perfectly fits the constitutional schemeso as to avoid double benefit to them; and thus, exclusion is part ofreasonable classification.

29. Learned senior counsel, Ms. Vibha Dutta Makhija, hassubmitted that the ‘Living Tree’ approach has to be applied whileinterpreting the Constitution so as to further more inclusive and

Aprogressive society. Learned counsel has argued that right of the EWScategory arises from Article 21 of the Constitution, which provides forthe right of dignity; and poverty affects dignity. She has also emphasisedon various international obligations namely Universal Declaration ofHuman Rights and International Covenant on Economic, Social andCultural Rights, which the Constitution caters under Articles 46, 51(c)Band 253, so as to submit that it is the duty of the State to eradicatepoverty in order to ensure economic justice; and in that context too, theamendment in question becomes an empowering measure for those whoare in systemic poverty. She has further referred to the works ofeconomist Mr. Amartya Sen, to elucidate upon the concept and effect ofCpoverty.

29.1. Learned counsel has further argued that the Constitutiondoes not impede the Parliament to protect new section of people inorder to further the Preambular vision of economic justice, differentfrom the traditional approach of caste-based affirmative action. LearnedDcounsel has further exemplified, by referring to U.P. Constables, teachersand Shiksha-Mitra recruitments, that OBCs are already in good positionnow, earning seats in meritorious category as well as in reserved categoryand it is the EWS who are suffering and being deprived of the seats. Shelastly contended that the basis of classification in the amendment inquestion is ‘intersecting disadvantages’ if not ‘generationalEdisadvantages’; and there is no bar or violation of basic structure of theConstitution in addressing these intersecting disadvantages.

30. Learned counsel, Mr. V.K. Biju, on the basis of various reportsand statistical data, has argued that reservation on the basis of economiccriteria is the need of the hour and the stepping stone to achieve economicFand social justice, moving away from caste-based reservations, as alsovocalised by Dr. B.R. Ambedkar in Constituent Assembly Debates. Hehas further argued that even in Indra Sawhney, the Court took consciousnote that there may be group or class of people, who can qualify forbenefits of reservation irrespective of caste.GPoints for Determination31.Three major issues to be answered in these matters bythis Bench have been noticed at the outset. In order to answerthose issues and in view of the variety of submissions urged asalso the subject-matter, following principal points arise forHdetermination:

(a) As to whether reservation is an instrument for inclusion ofsocially and educationally backward classes to the mainstream ofsociety and, therefore, reservation structured singularly oneconomic criteria violates the basic structure of the Constitutionof India?

(b) As to whether the exclusion of classes covered under Articles15(4), 15(5) and 16(4) from getting benefit of reservation aseconomically weaker sections violates the Equality Code andthereby, the basic structure doctrine?

(c) As to whether reservation for economically weaker sectionsof citizens up to ten per cent. in addition to the existing reservationsresults in violation of basic structure on account of breaching theceiling limit of fifty per cent.?

31.1. All these points are essentially structured on three importantcomponents namely, (i) the general rule of equality enshrined in Article14 of the Constitution; (ii) the reservations enabled in Articles 15 and 16as exception to the general rule of equality; and (iii) the doctrine of basicstructure that defines and limits the power of the Parliament to amendthe Constitution.

Relevant Constitutional Provisions

32. Any process of determination of the points aforesaid wouldinvariably require an insight of the constitutional provisions. The relevantprovisions could be usefully reproduced as follows:

32.1. Preamble to the Constitution of India, in its present form,reads as under: -

“WE, THE PEOPLE OF INDIA, having solemnly resolvedto constitute India into SOVEREIGN SOCIALISTSECULAR DEMOCRATIC REPUBLIC and to secure to allits citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity;

and to promote among them all

AFRATERNITY assuring the dignity of the individual and theunity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixthday of November, 1949, do HEREBY ADOPT, ENACT ANDGIVE TO OURSELVES THIS CONSTITUTION.”

32.2. The underlying attribute of all the points and questions arisingin these matters is as to whether the 103[rd] Amendment violates the basicstructure of the Constitution. The discussion, therefore, revolves aroundthe power of the Parliament to amend the Constitution and for thispurpose, we need to have close look at the provisions contained inCArticle 368 of the Constitution.

32.2.1. Article 368, as originally adopted, read as under: -

“368. Procedure for amendment of the Constitution.-

An amendment of this Constitution may be initiated only byDthe introduction of Bill for the purpose in either House ofParliament, and when the Bill is passed in each House by majorityof the total membership of that House and by majority of notless than two-thirds of the members of that House present andvoting, it shall be presented to the President for his assent andupon such assent being given to the Bill, the Constitution shallEstand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any changein—

(a) article 54, article 55, article 73, article 162 or article 241,or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter Iof Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatureof not less than one-half of the States specified in Parts and Bof the First Schedule by resolution to that effect passed by those

Legislatures before the Bill making provision for such amendmentis presented to the President for assent.”

32.2.2. Article 368 has undergone several amendments, some ofwhich had been the subject matter of debates in this Court, including thecases of Kesavananda and Minerva Mills. Leaving aside other details,we may reproduce the relevant of the provisions now contained in Article368 as under: -

“368. Power of Parliament to amend the Constitution andprocedure therefor.—(1) Notwithstanding anything in thisConstitution, Parliament may in exercise of its constituent poweramend by way of addition, variation or repeal any provision of thisConstitution in accordance with the procedure laid down in thisarticle.

(2) An amendment of this Constitution may be initiated onlyby the introduction of Bill for the purpose in either House ofParliament, and when the Bill is passed in each House by majorityof the total membership of that House and by majority of notless than two-thirds of the members of that House present andvoting, it shall be presented to the President who shall give hisassent to the Bill and thereupon the Constitution shall standamended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any changein—

(a) article 54, article 55, article 73, article 162, article 241 orarticle 279-A, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter Iof Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatureof not less than one-half of the States by resolution to that effectpassed by those Legislatures before the Bill making provision forsuch amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment madeunder this article.

****** “[24]

32.2.3.After the amendments approved in Kesavananda, Article368 starts with non obstante clause and further to that, sub-Bclause (3) thereof re-emphasises that nothing in Article 13 wouldapply to any amendment made under Article 368. In this context, alook at Article 13 of the Constitution is apposite, which otherwisedeclares void every law which is inconsistent with or is in derogationof Fundamental Rights but, the inserted sub-clause (4) keeps itsCoperation away from the amendment made under Article 368.Article 13 reads as under: -

“13. Laws inconsistent with or in derogation of thefundamental rights.—(1) All laws in force in the territory ofIndia immediately before the commencement of this Constitution,Din so far as they are inconsistent with the provisions of this Part,shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away orabridges the rights conferred by this Part and any law made incontravention of this clause shall, to the extent of the contravention,be void.E

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule,regulation, notification, custom or usage having in the territory ofIndia the force of law;F

(b) “laws in force” includes laws passed or made by aLegislature or other competent authority in the territory of Indiabefore the commencement of this Constitution and not previously

24 Clauses (4) and (5) inserted by the Constitution (Forty-second Amendment) Act,1976 were declared invalid by this Court in Minerva Mills. They read as under: -G“(4) No amendment of this Constitution (including the provisions of Part III)made or purporting to have been made under this article whether before or afterthe commencement of Section 55 of the Constitution (Forty-second Amendment)Act, 1976 shall be called in question in any Court on any ground.(5) For the removal of doubts, it is hereby declared that there shall be no limitationwhatever on the constituent power of Parliament to amend by way of addition, variationHor repeal the provisions of this Constitution under this article.”

repealed, notwithstanding that any such law or any part thereofmay not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment ofthis Constitution made under article 368.”

32.3. By way of the amendment in question, sub-clause (6) andExplanation have been added to Article 15 and sub-clause (6) has beenadded to Article 16 of the Constitution of India. These two Articles, 15and 16, being the subject of the amendment in question and forming thecore of controversy before us, need closer look. For the purpose, it isrelevant to indicate at this stage itself that these Articles have undergoneseveral changes from time to time. For the purpose of the presentdiscussion, worthwhile it would be to take note of these Articles asoriginally adopted and as now existing after various amendments, includingthe 103[rd] Constitution Amendment[25]

25 As noticed, the provisions in question have been inserted to Articles 15 and 16 of theConstitution of India by way of the Constitution (One Hundred and Third Amendment)Act, 2019. This amendment was made after passing of the Constitution (One Hundredand Twenty-fourth Amendment) Bill, 2019 by the Parliament. The Statement of Objectsand Reasons for introduction of the said Bill read as under: -

“STATEMENT OF OBJECTS AND REASONS

At present, the economically weaker sections of citizens have largelyremained excluded from attending the higher educational institutions and publicemployment on account of their financial incapacity to compete with the personswho are economically more privileged. The benefits of existing reservationsunder clauses (4) and (5) of article 15 and clause (4) of article 16 are generallyunavailable to them unless they meet the specific criteria of social and educationalbackwardness.

2. The directive principles of State policy contained in article 46 of theConstitution enjoins that the State shall promote with special care theeducational and economic interests of the weaker sections of the people, and, inparticular, of the Scheduled Castes and the Scheduled Tribes, and shall protectthem from social injustice and all forms of exploitation.

3. Vide the Constitution (Ninety-third Amendment) Act, 2005, clause (5)was inserted in article 15 of the Constitution which enables the State to makespecial provision for the advancement of any socially and educationally backwardclasses of citizens, or for the Scheduled Castes or the Scheduled Tribes, inrelation to their admission in higher educational institutions. Similarly, clause(4) of article 16 of the Constitution enables the State to make special provisionfor the reservation of appointments or posts in favour of any backward class ofcitizens which, in the opinion of the State, is not adequately represented in theservices under the State.

A32.3.1. Articles 15 and 16, in their original form were as under:-

“15. Prohibition of discrimination on grounds of religion,race, caste, sex or place of birth. — (1) The State shall notdiscriminate against any citizen on grounds only of religion, race,caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste,sex, place of birth or any of them, be subject to any disability,liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places ofpublic entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and placesof public resort maintained wholly or partly out of State fundsor dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from makingany special provision for women and children.

16. Equality of opportunity in matters of publicemployment. —(1) There shall be equality of opportunity for allcitizens in matters relating to employment or appointment to anyoffice under the State.

(2) No citizen shall, on grounds only of religion, race, caste,sex, descent, place of birth, residence or any of them, be ineligiblefor, or discriminated against in respect of, any employment oroffice under the State.

4. However, economically weaker sections of citizens were not eligible forthe benefit of reservation. With view to fulfil the mandate of article 46, and toensure that economically weaker sections of citizens to get fair chance ofreceiving higher education and participation in employment in the services ofthe State, it has been decided to amend the Constitution of India.

5. Accordingly, the Constitution (One Hundred and Twenty-fourthAmendment) Bill, 2019 provides for reservation for the economically weakersections of society in higher educational institutions, including privateinstitutions whether aided or unaided by the State other than the minorityeducational institutions referred to in article 30 of the constitution and alsoprovides for reservation for them in posts in initial appointment in servicesunder the State.

6. The Bill seeks to achieve the above objects.”

(3) Nothing in this article shall prevent Parliament from makingany law prescribing, in regard to class or classes of employmentor appointment to an office under any State specified in the FirstSchedule or any local or other authority within its territory, anyrequirement as to residence within that State prior to suchemployment or appointment.

(4) Nothing in this article shall prevent the State from makingany provision for the reservation of appointments or posts in favourof any backward class of citizens which, in the opinion of theState, is not adequately represented in the services under theState.”

32.3.2. These Articles 15 and 16, as now existing after variousamendments, including the amendment in question, read as under: -

“15. Prohibition of discrimination on grounds of religion,race, caste, sex or place of birth. —(1) The State shall notdiscriminate against any citizen on grounds only of religion, race,caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste,sex, place of birth or any of them, be subject to any disability,liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places ofpublic entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and placesof public resort maintained wholly or partly out of State fundsor dedicated to the use of general public.

(3) Nothing in this article shall prevent the State from makingany special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shallprevent the State from making any special provision for theadvancement of any socially and educationally backward classesof citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) ofarticle 19 shall prevent the State from making any special provision,by law, for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes or the

Scheduled Tribes in so far as such special provisions relate totheir admission to educational institutions including privateeducational institutions, whether aided or unaided by the State,other than the minority educational institutions referred to in clause(1) of article 30.

(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 anyeconomically weaker sections of citizens other thanthe classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of anyeconomically weaker sections of citizens other thanthe classes mentioned in clauses (4) and (5) in sofar as such special provisions relate to theiradmission to educational institutions includingprivate educational institutions, whether aided orunaided by the State, other than the minorityeducational institutions referred to in clause (1) ofarticle 30, which in the case of reservation wouldbe in addition to the existing reservations and subjectto maximum of ten per cent. of the total seats ineach category.

Explanation.—For the purposes of this article and article16, “economically weaker sections” shall be such as may benotified by the State from time to time on the basis of familyincome and other indicators of economic disadvantage.

16. Equality of opportunity in matters of publicemployment.— (1) There shall be equality of opportunity forall citizens in matters relating to employment or appointment toany office under the State.

(2) No citizen shall, on grounds only of religion, race, caste,sex, descent, place of birth, residence or any of them, be ineligiblefor, or discriminated against in respect of, any employment oroffice under the State.

(3) Nothing in this article shall prevent Parliament from makingany law prescribing, in regard to class or classes of employmentor appointment to an office under the Government of, or any localor other authority within, State or Union territory, any requirementas to residence within that State or Union territory prior to suchemployment or appointment.

(4) Nothing in this article shall prevent the State from makingany provision for the reservation of appointments or posts in favourof any backward class of citizens which, in the opinion of theState, is not adequately represented in the services under the State.

(4-A) Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion, withconsequential seniority, to any class or classes of posts in theservices under the State in favour of the Scheduled Castes andthe Scheduled Tribes which, in the opinion of the State, are notadequately represented in the services under the State.

(4-B) Nothing in this article shall prevent the State fromconsidering any unfilled vacancies of year which are reservedfor being filled up in that year in accordance with any provisionfor reservation made under clause (4) or clause (4-A) as separateclass of vacancies to be filled up in any succeeding year or yearsand such class of vacancies shall not be considered together withthe vacancies of the year in which they are being filled up fordetermining the ceiling of fifty per cent. reservation on total numberof vacancies of that year.

(5) Nothing in this article shall affect the operation of any lawwhich provides that the incumbent of an office in connection withthe affairs of any religious or denominational institution or anymember of the governing body thereof shall be person professinga particular religion or belonging to particular denomination.

(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 existingreservation and subject to maximum of ten per cent. of theposts in each category.”

32.3.3. Articles 14, 17 and 18, forming the integral part of EqualityCode along with the afore-mentioned Articles 15 and 16, could also betaken note of as under: -

“14. Equality before law.—The State shall not deny to any personequality before the law or the equal protection of the laws withinthe territory of India.

*** *** ***

17. Abolition of Untouchability.—”Untouchability” is abolishedand its practice in any form is forbidden. The enforcement of anydisability arising out of “Untouchability” shall be an offenceCpunishable in accordance with law.

18. Abolition of titles.—(1) No title, not being military oracademic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreignState.

(3) No person who is not citizen of India shall, while he holdsany office of profit or trust under the State, accept without theconsent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the StateEshall, without the consent of the President, accept any present,emolument, or office of any kind from or under any foreign State.”-

32.4. Various provisions in Part IV of the Constitution of Indialaying down Directive Principles of State Policy also require closelook, including Article 46, which has been referred to in the Statement ofFObjects and Reasons for the purpose of the amendment in question.Articles 38, 39 and 46 of the Constitution of India read as under: -

“38. State to secure social order for the promotion ofwelfare of the people. —(1) The State shall strive to promotethe welfare of the people by securing and protecting as effectivelyGas it may social order in which justice, social, economic andpolitical, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise theinequalities in income, and endeavour to eliminate inequalities instatus, facilities and opportunities, not only amongst individuals

but also amongst groups of people residing in different areas orengaged in different vocations.

39. Certain principles of policy to be followed by the State.—The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to anadequate means of livelihood;

(b) that the ownership and control of the material resources ofthe community are so distributed as best to subserve the commongood;

(c) that the operation of the economic system does not result inthe concentration of wealth and means of production to thecommon detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, andthe tender age of children are not abused and that citizens are notforced by economic necessity to enter avocations unsuited to theirage or strength;

(f) that children are given opportunities and facilities to develop ina healthy manner and in conditions of freedom and dignity andthat childhood and youth are protected against exploitation andagainst moral and material abandonment.

*** *** ***

46. Promotion of educational and economic interests ofScheduled Castes, Scheduled Tribes and other weakersections.—The State shall promote with special care theeducational and economic interests of the weaker sections of thepeople, and, in particular, of the Scheduled Castes and theScheduled Tribes, and shall protect them from social injustice andall forms of exploitation.”

Doctrine of Basic Structure and Constitutional Amendments

33. It is hardly matter of debate that the challenge herein is notto any executive order or even to an ordinary legislation. The challengeis to constitutional amendment. There has not been any question asregards fulfilment of all other requirements of Article 368 of theConstitution of India while making the amendment in question and insertion

Aof the relevant clauses to Articles 15 and 16. The challenge is foundedon, and in fact could only be founded on, the premise that the amendmentin question violates the basic structure of the Constitution in the mannerthat it destroys its identity. According to the principal part of challenge,the Equality Code, an essential feature of the Constitution, gets abrogatedbecause of reservation structured only on economic criteria and becauseBof exclusion of classes covered under Articles 15(4), 15(5) and 16(4)from its benefit. Therefore, the entire challenge is essentially required tobe examined on the anvil of the doctrine of basic structure.

33.1. In the aforesaid view of the matter, before entering into theconcepts relating to the equality as also the reservation, it shall be aptCand apposite to take into account all the vital elements of the doctrine ofbasic structure, as developed and hitherto applied to the constitutionalamendments; and the discernible principles which are to be applied tothe amendment in question.

34. The power to amend the Constitution availing under ArticleD368 has been significant area of the development of ConstitutionalLaw in our country. This power, recognised as constituent power, issubject to various safeguards which are intrinsic to Article 368, includingthe procedural safeguards. The political process from time to time thatresulted in various constitutional amendments, some of them radical inEnature, gave rise to several debates in this Court as regards the widthand amplitude as also the limitations of this amending power of theParliament. Thus, Article 368 and the power of the Parliament had beenthe subject-matter of various decisions, some of which being of far-reaching consequences. Before embarking upon survey of the relevantdecisions and the principles discernible therefrom, particularly after theFlocus classicus of Kesavananda and the later expositions (which hadtheir genesis in the nature of amendment and which were relatable tothe given set of facts and circumstances), it would be profitable to put aglance at few background aspects.

35. The doctrine of basic structure was not as such discussed inGthe Constituent Assembly while formulating the enabling provisions foramending the Constitution. Then, at the initial stages of ConstitutionalLaw development, the proposition of challenging an amendment to theConstitution, as mooted in the case of Sri Sankari Prasad Singh Deov. Union of India and Anr.: 1952 SCR 89 as also in Sajjan Singh v.HState of Rajasthan: (1965) 1 SCR 933 did not meet with approval of

this Court. However, first reference to the idea of ‘basic feature’ wasmade by Justice Mudholkar in Sajjan Singh (supra)[26]. Then, the ideathat certain Parts of the Constitution were unamendable was acceptedby the 11-Judge Bench in I.C. Golak Nath and Ors. v. State of Punjaband Anr.: (1967) 2 SCR 762. However, in Kesavananda, the 13-Judge Bench of this Court, while partially overruling Golak Nath by amajority of 7-6, held that though any part of the Constitution could beamended by the Parliament, its basic structure could not be damaged.

36. precursor to the developments aforesaid could be traced tothe year 1965 when German jurist, Prof. Dietrich Conrad (1932- 2001),gave lecture on ‘Implied Limitations of the Amending Power’ at theBanaras Hindu University wherein he, inter alia, asked: “Could theamending power be used to abolish the Constitution, andreintroduce, let’s say, the rule of Moghul emperor or the Crown ofEngland?”[27]

26 The learned Judge referred to the facts that the Constituent Assembly, consciouslyenacted written Constitution; created three organs of State; enacted federal structure;recognised certain rights as fundamental and provided for their enforcement; andprescribed forms of oath of Office which would require the Members of the UnionJudiciary and of the higher judiciary in the State, to uphold the Constitution; and aboveall, formulated solemn and dignified Preamble which, ‘appears to be an epitome of thebasic features of the Constitution’. The learned Judge, thereafter, posed the points toponder over thus:

“…..Can it not be said that these are indicia of the intention of the ConstituentAssembly to give permanency to the basic features of the Constitution?

It is also matter for consideration whether making change in basic featureof the Constitution can be regarded merely as an amendment or would it be, ineffect, rewriting part of the Constitution; and if the latter, would it be withinthe purview of Article 368?”

27 The contribution of Prof. Conrad in Origination and Development of doctrine ofbasic structure has been pertinently underscored in A.G. Noorani’s, ‘ConstitutionalQuestions and Citizens’ Rights, Oxford University Press (2006) in the first chaptertitled as “Sanctity of the Constitution: Dieter Conrad- The man behind the ‘basicstructure’ doctrine”, inter alia, in the following words: -

“There is, sadly, little acknowledgment in India of that debt we owe to adistinguished German jurist and scholar steeped in other disciplines beyond theconfines of law–Professor Dietrich Conrad, formerly Head of the LawDepartment, South Asia Institute of the University of Heidelberg, Germany.

In Golak Nath’s case, the doctrine of any implied limitations onParliament ’s power to amend the Constitution was not accepted. The majorityfelt that ‘there is considerable force in this argument’ but thought it unnecessary

ALater, he wrote an article titled ‘Limitations of AmendmentProcedures and the Constituent Power’ published in the Indian YearBook of International Affairs wherein he described the limits on theamending power as follows:-

“The functional limitations implied in the grant of amending powerBto Parliament may then be summarized thus: No amendment mayabrogate the constitution. No amendment may effect changeswhich amount to practical abrogation or total revision of the

to pronounce on it. ‘This question may arise for consideration only if Parliamentseeks to destroy the structure of the Constitution embodied in provisions otherCthan in Part III of the Constitution.’

The argument of implied limitations had been advanced at the Bar by M.K.Nambyar, one of India’s leading constitutional lawyers. Few people knew thenthat he owed the argument to Professor Conrad. In February 1965, while on avisit to India, Conrad delivered lecture on ‘Implied Limitations of the AmendingPower’ to the Law Faculty of the Banaras Hindu University. paper based onDthe subject was sent to Professor T.S. Rama Rao in Madras for his comments.Nambyar’s attention was drawn to this paper which he read before the SupremeCourt, though with little result.

Professor Conrad’s lecture, delivered in February 1965, showed remarkableperceptiveness besides deep learning. He observed:

‘Perhaps the position of the Supreme Court is influenced by the fact that ithas not so far been confronted with any extreme type of constitutional amendments.EIt is the duty of the jurist, though, to anticipate extreme cases of conflict, andsometimes only extreme tests reveal the true nature of legal concept. So, if forthe purpose of legal discussion I may propose some fictive amendment laws toyou, could it still be considered valid exercise of the amendment powerconferred by Article 368 if two-thirds majority changed Article 1 by dividingIndia into two States of Tamilnad and Hindustan proper?‘Could constitutional amendment abolish Article 21, to the effect thatFforthwith person could be deprived of his life or personal liberty withoutauthorization by law? Could the ruling party, if it sees its majority shrinking,amend Article 368 to the effect that the amending power rests with the Presidentacting on the advice of the Prime Minister? Could the amending power be usedto abolish the Constitution and reintroduce, let us say, the rule of Moghulemperor or of the Crown of England? I do not want, by posing such questions,to provoke easy answers. But I should like to acquaint you with the discussionGwhich took place on such questions among constitutional lawyers in Germanyin the Weimar period–discussion, seeming academic at first, but suddenlyillustrated by history in drastic and terrible manner.’

more detailed exposition of Professor Conrad’s views appeared after thejudgment in Golak Nath’s case (Limitation of Amendment Procedures and theConstituent Power, Indian Year Book of International Affairs, 1966–7, Madras,Hpp. 375–430).”

constitution. Even partial alterations are beyond the scope ofamendment if their repercussions on the organic context of thewhole are so deep and far reaching that the fundamental identityof the constitution is no longer apparent…...”[28]

36.1. Thus, even the origin of the submissions before this Courtleading to the expositions on the doctrine of basic structure could betraced to the thought-process stimulated by the thinkers like Prof. Conrad.However, as shall be unfolding hereafter, there had been voices of concernabout the exact nature and implication of this doctrine. For example,concern was expressed in the case of State of Karnataka v. Unionof India and Anr.: (1977) 4 SCC 608 in rather intriguing terms asfollows: -

“120. …In Kesavananda Bharati case this Court had not workedout the implications of the basic structure doctrine in all itsapplications. It could, therefore, be said, with utmost respect, thatit was perhaps left there in an amorphous state which could giverise to possible misunderstandings as to whether it is not toovaguely stated or too loosely and variously formulated withoutattempting basic uniformity of its meaning or implications…”

36.2. However, when the enquiry itself is into the effect ofamendment of the supreme and organic document, which is fundamentalto everything related to the country, the amorphous state of the doctrineof basic structure, obviously, leaves every option open for purposiveapproach, in tune with the dynamics of change while ensuring that thefundamental ethos remain unscathed[29].

37. It shall now be appropriate to delve bit deeper into some ofthe significant and important cases in which the doctrine of basic structurewas employed/applied in the context of constitutional amendment[30].

28 The Indian Year Book of International Affairs, 1966-7, at p. 420.

29 The acclaimed and honourable jurist O. Chinnappa Reddy would define thisjourney in these words: “Since there are no signposts signalling basic features of theConstitution, every attempt to discover basic feature becomes ‘voyage of discovery’.”[The Court and the Constitution of India: Summits and Shallows; Oxford UniversityPress 2008 – at p.54].

30 The extractions hereinbelow are of the relevant passages/paragraphs, whichmay not be in continuity but the disjoining signs after end of the passage/paragraphhave been generally avoided to maintain the continuity of discussion.

A37.1. In Kesavananda, this Court outlined the basic structuredoctrine of the Constitution. In fact, in Kesavananda, this Court, by 7-6 majority, went several steps ahead in asserting its power of judicialreview so as to scrutinize any amendment to see if it violated the basicstructure of the Constitution; and asserted its right to strike downamendments to the Constitution that were in violation of the fundamentalBarchitecture of the Constitution. Factually, the case was challenge tothe Kerala Land Reforms Act, 1963 which interfered with petitioner’srights to manage property under Article 26. Furthermore, the Twenty-fourth, Twenty-fifth and Twenty-ninth constitutional amendments werealso challenged. By Twenty-fourth Amendment, Articles 13 and 368Cwere amended to exclude constitutional amendments from the definitionof law under Article 13; the Twenty-fifth Amendment excluded judicialreview by providing that the law giving effect to principles specified inclause (b) or clause (c) of Article 39 could not be questioned by theCourt; and the Twenty-ninth Amendment put certain land reformenactments in the Ninth Schedule. The present discussion need not beDover-expanded with reference to the variety of opinions expressed therein.For the present purpose, few relevant opinions could be extracted asfollows: -

Sikri, C.J.

E“209…..In other words, the expression ‘Amendment of thisConstitution” does not include revision of the whole Constitution.If this is true — I say that the concession was rightly made —then which is that meaning of the word “Amendment” that ismost appropriate and fits in with the whole scheme of theConstitution. In my view that meaning would be appropriateFwhich would enable the country to achieve social andeconomic revolution without destroying the democraticstructure of the Constitution and the basic inalienable rightsguaranteed in Part III and without going outside thecontours delineated in the Preamble.

284. In view of the above reasons, necessary implication arisesthat there are implied limitations on the power of Parliament thatthe expression “amendment of this Constitution” has consequentlya limited meaning in our Constitution and not the meaningsuggested by the respondents.

395. It was said that if Parliament cannot increase its power ofamendment clause (d) of Section 3 of the 24th Amendment whichmakes Article 13 inapplicable to an amendment of the Constitutionwould be bad. I see no force in this contention. Article 13(2) asexisting previous to the 24th Amendment as interpreted by themajority in Golak Nath’s case (supra), prevented Legislaturesfrom taking away or abridging the rights conferred by Article 13.In other words, any law which abridged fundamental right evento small extent was liable to be struck down Article 368 canamend every article of the Constitution as long as the result iswithin the limits already laid down by me. The amendment ofArticle 13(2) does not go beyond the limits laid downbecause Parliament cannot even after the amendmentabrogate or authorise abrogation or the taking away offundamental rights. After the amendment now law whichhas the effect of merely abridging right while remainingwithin the limits laid down would not be liable to be struckdown.469. I have held that Article 368 does not enable Parliament toabrogate or take away fundamental rights. If this is so, it doesnot enable Parliament to do this by any means, includingthe device of Article 31-B and the Ninth Schedule. Thedevice of Article 31-B and the Ninth Schedule is bad in sofar as it protects Statutes even if they take away fundamentalrights. Therefore, it is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts ifthey take away fundamental rights.

Shelat, J. and Grover, J.

546. The meaning of the words “amendment of thisConstitution” as used in Article 368 must be such whichaccords with the true intention of the Constitution-makersas ascertainable from the historical background, thePreamble, the entire scheme of the Constitution, itsstructure and framework and the intrinsic evidence invarious articles including Article 368. It is neither possibleto give it narrow meaning nor can such wide meaningbe given which can enable the amending body to changesubstantially or entirely the structure and identity of the

Constitution. Even the concession of the learned Attorney-General and the Advocate-General of Maharashtra that the wholeConstitution cannot be abrogated or repealed and new onesubstituted supports the conclusion that the widest possible meaningcannot be given to it.

583. The entire discussion from the point of view of the meaningof the expression “amendment” as employed in Article 368 andthe limitations which arise by implications leads to the result thatthe amending power under Article 368 is neither narrownor unlimited. On the footing on which we have proceeded thevalidity of the 24th Amendment can be sustained if Article 368, asit originally stood and after the amendment, is read in the way wehave read it. The insertion of Articles 13(4) and 368(3) andthe other amendments made will not affect the result,namely, that the power in Article 368 is wide enough topermit amendment of each and every article of theConstitution by way of addition, variation or repeal so longas its basic elements are not abrogated or denuded of theiridentity.

Hegde, J. and Mukherjea, J.

666. On careful consideration of the various aspects of the case,Ewe are convinced that the Parliament has no power to abrogateor emasculate the basic elements or fundamental features of theConstitution such as the sovereignty of India, the democraticcharacter of our polity, the unity of the country, the essentialfeatures of the individual freedoms secured to the citizens. NorFhas the Parliament the power to revoke the mandate to build aWelfare State and egalitarian society. These limitations are onlyillustrative and not exhaustive. Despite these limitations,however, there can be no question that the amending poweris wide power and it reaches every Article and every partof the Constitution. That power can be used to reshape theGConstitution to fulfil the obligation imposed on the State. Itcan also be used to reshape the Constitution within thelimits mentioned earlier, to make it an effective instrumentfor social good. We are unable to agree with the contention thatin order to build Welfare State, it is necessary to destroy someof the human freedoms. That, at any rate is not the perspective of

our Constitution. Our Constitution envisages that the Stateshould without delay make available to all the citizens ofthis country the real benefits of those freedoms in ademocratic way.… Every encroachment on freedoms sets apattern for further encroachments. Our constitutional plan is toeradicate poverty without destruction of individual freedoms.

Khanna, J.

1416. Argument has then been advanced that if power beheld to be vested in Parliament under Article 368 to takeaway or abridge fundamental rights, the power would be,or in any case could be, so used as would result in repeal ofall provisions containing fundamental rights. India, it isurged, in such an event would be reduced to police statewherein all cherished values like freedom and liberty wouldbe non-existent. This argument, in my opinion, is essentiallyan argument of fear and distrust in the majority ofrepresentatives of the people. It is also based upon thebelief that the power under Article 368 by two-thirds of themembers present and voting in each House of Parliamentwould be abused or used extravagantly. I find it difficult todeny to the Parliament the power to amend the Constitutionso as to take away or abridge fundamental right by complyingwith the procedure of Article 368 because of any suchsupposed fear or possibility of the abuse of power. I may inthis context refer to the observations of Marshall, C.J., regardingthe possibility of the abuse of power of legislation and of taxationin the case of Providence Bank v. Alpheus Billings:

“This vital power may be abused; but the Constitution of theUnited States was not intended to furnish the corrective forevery abuse of power which may be committed by the StateGovernments. The interest, wisdom, and justice of therepresentative body, and its relations with its constituents furnishthe only security where there is no express contract againstunjust and excessive taxation, as well as against unwiselegislation generally.”

1535. In exercising the power of judicial review, the Courtscannot be oblivious of the practical needs of thegovernment. The door has to be left open for trial and error.

AConstitutional law like other mortal contrivances has to takesome chances. Opportunity must be allowed for vindicatingreasonable belief by experience. Judicial review is notintended to create what is sometimes called JudicialOligarchy, the Aristrocracy of the Robe, Covert Legislation,or Judge-made law. The proper forum to fight for the wiseBuse of the legislative authority is that of public opinion andlegislative assemblies. Such contest cannot be transferredto the judicial arena. That all constitutional interpretations havepolitical consequences should not obliterate the fact that the decisionhas to be arrived at in the calm and dispassionate atmosphere ofCthe court room, that judges in order to give legitimacy to theirdecision have to keep aloof from the din and controversy of politicsand that the fluctuating fortunes of rival political parties can havefor them only academic interest. Their primary duty is to upholdthe Constitution and the laws without fear or favour and in doingso, they cannot allow any political ideology or economic theory,Dwhich may have caught their fancy, to colour the decision. Thesobering reflection has always to be there that the Constitution ismeant not merely for people of their way of thinking but for peopleof fundamentally differing views. As observed by Justice Holmeswhile dealing with the Fourteenth Amendment to the U.S.EConstitution:

“The Fourteenth Amendment does not enact Mr. HerbertSpencer’s Social Statics…Some of these laws embodyconvictions or prejudices which judges are likely to share. Somemay not. But Constitution is not intended to embody aparticular economic theory, whether of paternalism and theorganic relation of the citizen to the State or of laissez faire. Itis made for people of fundamentally differing views, and theaccident of our finding certain opinions natural and familiar ornovel and even shocking ought not to conclude our judgmentupon the question whether statutes embodying them conflictwith the Constitution of the United States.”….”

(emphasis supplied)

37.2. In Indira Nehru Gandhi, using the doctrine of basicstructure, the Thirty-ninth Constitutional Amendment Act was struckHdown whereby the election of the President, the Vice President, the

Prime Minister and the Speaker of the Lok Sabha were put beyond thejudicial scrutiny. Such an amendment was held to be destroying the basicfeature of the Constitution.

37.3. In Minerva Mills, again, using the doctrine of basicstructure, clauses (4) and (5) of the Constitution (Forty-secondAmendment) Act, 1976 were struck down with the following, amongstother, observations: -

Chandrachud, C.J.

“56. The significance of the perception that Parts III and IVtogether constitute the core of commitment to social revolutionand they, together, are the conscience of the Constitution is to betraced to deep understanding of the scheme of the IndianConstitution. Granville Austin’s observation brings out the trueposition that Parts III and IV are like two wheels of chariot, oneno less important than the other. You snap one and the other willlose its efficacy. They are like twin formula for achieving thesocial revolution, which is the ideal which the visionary foundersof the Constitution set before themselves. In other words, theIndian Constitution is founded on the bedrock of the balancebetween Parts III and IV. To give absolute primacy to oneover the other is to disturb the harmony of the Constitution.This harmony and balance between fundamental rights anddirective principles is an essential feature of the basicstructure of the Constitution.

57. ….. The goals set out in Part IV have, therefore, to beachieved without the abrogation of the means provided forby Part III. It is in this sense that Parts III and IV togetherconstitute the core of our Constitution and combine to formits conscience. Anything that destroys the balance betweenthe two parts will ipso facto destroy an essential element ofthe basic structure of our Constitution.”

(emphasis supplied)

37.4. In Waman Rao, it was held that the First ConstitutionAmendment Act, that introduced Articles 31-A and 31-B, as well as theTwenty-fifth Amendment Act that introduced Article 31-C wereconstitutional, and did not damage any basic or essential features or thebasic structure of the Constitution. Herein, this Court examined the validity

Aof Article 31-A and Article 31-B of the Constitution of India with respectto the doctrine of basic structure introduced in Kesavananda andobserved that all the decisions made prior to the introduction of thedoctrine shall remain valid. The impact of this decision had been that allthe acts and regulations that were included under Ninth Schedule to theConstitution prior to the Kesavananda decision were to remain validBwhile further amendments to the Schedule could be challenged on thegrounds of violation of the doctrine of basic structure. The relevantobservations in this case read as under: -

Chandrachud, C.J.

C“14. … We would like to add that every case in which theprotection of fundamental right is withdrawn will notnecessarily result in damaging or destroying the basicstructure of the Constitution. The question as to whetherthe basic structure is damaged or destroyed in any givencase would depend upon which particular Article of Part IIIDis in issue and whether what is withdrawn is quintessentialto the basic structure of the Constitution.

29. The First Amendment is aimed at removing social andeconomic disparities in the agricultural sector. It may happen thatwhile existing inequalities are being removed, new inequalities mayEarise marginally and incidentally. Such marginal and incidentalinequalities cannot damage or destroy the basic structure of theConstitution. It is impossible for any government, howsoeverexpertly advised, socially oriented and prudently managed, toremove every economic disparity without causing some hardshipFor injustice to class of persons who also are entitled to equaltreatment under the law. Thus, the adoption of ‘family unit’ asthe unit of application for the revised ceilings may causeincidental hardship to minor children and to unmarrieddaughters. That cannot, in our opinion, furnish an argumentfor assailing the impugned laws on the ground that theyGviolate the guarantee of equality. It seems to us ironicalindeed that the laws providing for agricultural ceilingsshould be stigmatised as destroying the guarantee ofequality when their true object and intendment is to removeinequalities in the matter of agricultural holdings.

49. We propose to draw line, treating the decisionin Kesavananda Bharati as the landmark. Several Acts wereput in the Ninth Schedule prior to that decision on the suppositionthat the power of the Parliament to amend the Constitution waswide and untrammelled. The theory that the Parliament cannotexercise its amending power so as to damage or destroy the basicstructure of the Constitution, was propounded and accepted forthe first time in Kesavananda Bharati. This is one reason forupholding the laws incorporated into the Ninth Schedulebefore April 24, 1973, on which date the judgmentin Kesavananda Bharati was rendered. large number ofproperties must have changed hands and several new titlesmust have come into existence on the faith and belief thatthe laws included in the Ninth Schedule were not open tochallenge on the ground that they were violative of Articles14, 19 and 31. We will not be justified in upsetting settledclaims and titles and in introducing chaos and confusioninto the lawful affairs of fairly orderly society.

51. Thus, insofar as the validity of Article 31-B read with theNinth Schedule is concerned, we hold that all Acts and Regulationsincluded in the Ninth Schedule prior to April 24, 1973 will receivethe full protection of Article 31-B. Those laws and regulationswill not be open to challenge on the ground that they are inconsistentwith or take away or abridge any of the rights conferred by anyof the provisions of Part III of the Constitution. Acts andRegulations, which are or will be included in the Ninth Scheduleon or after April 24, 1973 will not receive the protection of Article

31-B for the plain reason that in the face of the judgmentin Kesavananda Bharati, there was no justification for makingadditions to the Ninth Schedule with view to conferring blanketprotection on the laws included therein. The variousconstitutional amendments, by which additions were madeto the Ninth Schedule on or after April 24, 1973, will bevalid only if they do not damage or destroy the basicstructure of the Constitution.

54. Apart from this, if we are right in upholding the validity ofArticle 31-A on its own merits, it must follow logically that theunamended Article 31-C is also valid. … Whatever we have saidin respect of the defined category of laws envisaged by Article

A31-A must hold good, perhaps with greater force, in respect oflaws passed for the purpose of giving effect to clauses (b) and(c) of Article 39. It is impossible to conceive that any law passedfor such purpose can at all violate Article 14 or Article 19. Article31 is now out of harm’s way. In fact, far from damaging thebasic structure of the Constitution, laws passed truly andBbona fide for giving effect to directive principles containedin clauses (b) and (c) of Article 39 will fortify that structure.We do hope that the Parliament will utilise to the maximumits potential to pass laws, genuinely and truly related to theprinciples contained in clauses (b) and (c) of Article 39. TheCchallenge made to the validity of the first part of theunamended Article 31-C therefore fails.”

(emphasis supplied)

37.5. In P. Sambhamurthy and Ors. v. State of Andhra Pradeshand Anr.: (1987) 1 SCC 362[31]this Court examined Article 371-DDinserted by the Constitution (Thirty-second Amendment) Act, 1973 andstruck down its clause (5) with proviso, as being violative of the basicstructure since it conferred power on the State Government to modifyor annul the final order of the Administrative Tribunal, which was againstthe concept of justice and principle of rule of law.

E37.6. In Kihoto Hollohan v. Zachillhu and Ors.: 1992 Supp(2) SCC 651, the constitutional validity of the Tenth Schedule to theConstitution introduced by the Constitution (Fifty-second Amendment)Act, 1985, was assailed. Though, the majority opinion did not find theentire amendment unconstitutional but the Court declared invalidFParagraph 7 of the Tenth Schedule to the Constitution, which excludedjudicial review of any matter connected with the disqualification of amember of House in terms of the provisions contained in that Schedule,essentially for want of ratification in accordance with the proviso toclause (2) of Article 368.

G37.7. In Raghunathrao, the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 which removed privy purses was broughtinto question, inter alia, on the ground that it violated the basic structureand essential features of the Constitution of India and was, therefore,outside the scope and ambit of the powers of the Parliament to amend

31 Hereinafter also referred to as ‘P. Sambhamurthy’.H

the Constitution. This Court denied interference while observing, interalia, as under: -

“96. Permanent retention of the privy purse and the privileges ofrights would be incompatible with the sovereign and republicanform of Government. Such retention will also be incompatiblewith the egalitarian form of our Constitution. That is the opinionof the Parliament which acted to repeal the aforesaid provisionsin exercise of its constituent power. The repudiation of the right toprivy purse privileges, dignities etc. by the deletion of Articles 291and 362, insertion of Article 363-A and amendment of clause (22)of Article 366 by which the recognition of the Rulers and paymentof privy purse are withdrawn cannot be said to have offendedArticle 14 or 19(g) [sic 19(1)(f)] and we do not find any logic insuch submission. No principle of justice, either economic,political or social is violated by the Twenty-sixthAmendment. Political justice relates to the principle of rightsof the people, i.e. right to universal suffrage, right todemocratic form of Government and right to participationin political affairs. Economic justice is enshrined in Article39 of the Constitution. Social justice is enshrined in Article38. Both are in the directive principles of the Constitution.None of these rights are abridged or modified by thisAmendment. We feel that this contention need not detainus any more and, therefore, we shall pass on to the next point indebate.

107. On deep consideration of the entire scheme andcontent of the Constitution, we do not see any force in theabove submissions. In the present case, there is no questionof change of identity on account of the Twenty-sixthAmendment. The removal of Articles 291 and 362 has notmade any change in the personality of the Constitutioneither in its scheme or in its basic features, or in its basicform or in its character. The question of identity will ariseonly when there is change in the form, character andcontent of the Constitution. In fact, in the present case, theidentity of the Constitution even on the tests proposed by the counselof the writ petitioners and interveners, remains the same andunchanged.”

(emphasis supplied)

A37.8. 7-Judge Bench of this Court in L. ChandraKumar v. Union of India and Ors.: (1997) 3 SCC 261[32] had theoccasion to examine the nature and extent of jurisdiction of the HighCourt under Articles 226/227; and it was held that power of judicialreview under Articles 226/227 and Article 32 of the Constitution is anintegral and essential feature of the Constitution, constitutingBits basic structure. The Constitution Bench held invalid the provisions ofclause 2(d) of Article 323-A and clause 3(d) of Article 323-B, insertedby the Constitution (Forty-second Amendment) Act, which excluded thejurisdiction of the High Court while observing as under: -

“99. In view of the reasoning adopted by us, we hold thatCclause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the HighCourts and the Supreme Court under Articles 226/227 and32 of the Constitution, are unconstitutional. Section 28 ofthe Act and the “exclusion of jurisdiction” clauses in allDother legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional.The jurisdiction conferred upon the High Courts underArticles 226/227 and upon the Supreme Court under Article32 of the Constitution is part of theinviolable basic structure of our Constitution. While thisEjurisdiction cannot be ousted, other courts and Tribunals mayperform supplemental role in discharging the powers conferredby Articles 226/227 and 32 of the Constitution…….”

(emphasis supplied)

F37.9. In M. Nagaraj, the Constitution Bench validated theConstitution (Seventy-seventh Amendment) Act, 1995 which insertedArticle 16(4-A); the Constitution (Eighty-first Amendment) Act, 2000which inserted Article 16(4-B); the Constitution (Eighty-secondAmendment) Act, 2000 which inserted proviso to Article 335; and theConstitution (Eighty-fifth Amendment) Act, 2001 which addedG“consequential seniority” for SC/STs under Article 16(4-B). The saidamendments were introduced essentially to nullify the effect of thedecision in Indra Sawhney wherein 9-Judge Bench had ruled thatreservation in appointments did not apply to promotions. Article 16(4-A)

32 Hereinafter also referred to as ‘L. Chandra Kumar’.H

enables the State to make any law regarding reservation in promotionfor SC/STs. Article 16(4-B) provides that reserved promotion posts forSC/STs that remain unfilled, can be carried forward to the subsequentyear. Article 16(4-B) also ensures that the ceiling on the reservationquota for these carried forward posts does not apply to subsequent years.Article 335 mandates that reservations have to be balanced with the‘maintenance of efficiency’. The amendment to Article 335 clarifiedthat the Article will not apply to the State relaxing evaluation standards‘in matters of promotion’. The Court held as under: -

“104. Applying the above tests to the present case, there isno violation of the basic structure by any of the impugnedamendments, including the Constitution (Eighty-second)Amendment Act, 2000. The constitutional limitation underArticle 335 is relaxed and not obliterated. As stated above,be it reservation or evaluation, excessiveness in eitherwould result in violation of the constitutional mandate. Thisexercise, however, will depend on the facts of each case.In our view, the field of exercise of the amending power isretained by the impugned amendments, as the impugnedamendments have introduced merely enabling provisionsbecause, as stated above, merit, efficiency, backwardnessand inadequacy cannot be identified and measured invacuum. Moreover, Article 16(4-A) and Article 16(4-B) fallin the pattern of Article 16(4) and as long as the parametersmentioned in those articles are complied with by the States,the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle ofequality under Article 16(4).

108. Applying the above tests to the proviso to Article 335 insertedby the Constitution (Eighty-second Amendment) Act, 2000 wefind that the said proviso has nexus with Articles 16(4-A) and16(4-B). Efficiency in administration is held to be constitutionallimitation on the discretion vested in the State to provide forreservation in public employment. Under the proviso to Article335, it is stated that nothing in Article 335 shall prevent the Stateto relax qualifying marks or standards of evaluation for reservationin promotion. This proviso is also confined only to members ofSCs and STs. This proviso is also conferring discretionary poweron the State to relax qualifying marks or standards of evaluation.

Therefore, the question before us is—whether the State could beempowered to relax qualifying marks or standards for reservationin matters of promotion. In our view, even after insertion of thisproviso, the limitation of overall efficiency in Article 335 is notobliterated. Reason is that “efficiency” is variable factor. It isfor the State concerned to decide in given case, whether theoverall efficiency of the system is affected by such relaxation. Ifthe relaxation is so excessive that it ceases to be qualifying marksthen certainly in given case, as in the past, the State is free notto relax such standards. In other cases, the State may evolve amechanism under which efficiency, equity and justice, all threevariables, could be accommodated. Moreover, Article 335 is to beread with Article 46 which provides that the State shall promotewith special care the educational and economic interests of theweaker sections of the people, and in particular, of the ScheduledCastes and Scheduled Tribes, and shall protect them from socialinjustice. Therefore, where the State finds compelling interests ofbackwardness and inadequacy, it may relax the qualifying marksfor SCs/STs. These compelling interests however have to beidentified by weighty and comparable data.

109. In conclusion, we reiterate that the object behind theimpugned constitutional amendments is to confer discretionon the State to make reservations for SCs/STs in promotionssubject to the circumstances and the constitutionallimitations indicated above.

Conclusion

121. The impugned constitutional amendments by which Articles16(4-A) and 16(4-B) have been inserted flow from Article 16(4).They do not alter the structure of Article 16(4). They retain thecontrolling factors or the compelling reasons, namely,backwardness and inadequacy of representation which enablesthe States to provide for reservation keeping in mind the overallefficiency of the State administration under Article 335. Theseimpugned amendments are confined only to SCs and STs. Theydo not obliterate any of the constitutional requirements, namely,ceiling limit of 50% (quantitative limitation), the concept of creamylayer (qualitative exclusion), the sub-classification between OBCson one hand and SCs and STs on the other hand as held in Indra

Sawhney, the concept of post-based roster with inbuilt conceptof replacement as held in R.K. Sabharwal.

124. Subject to the above, we uphold the constitutionalvalidity of the Constitution (Seventy-seventh Amendment)Act, 1995; the Constitution (Eighty-first Amendment) Act,2000; the Constitution (Eighty-second Amendment) Act,2000 and the Constitution (Eighty-fifth Amendment) Act,2001.”

(emphasis supplied)

37.10. In Ashoka Kumar Thakur, the provisions of Constitution(Ninety-third Amendment) Act, 2005 were under challenge, whichinserted clause (5) to Article 15 of the Constitution. This Court rejectedthe contention of violation of the basic structure while holding, interalia, as under: -

“118. Equality is multicoloured concept incapable of singledefinition as is also the fundamental right under Article 19(1)(g).The principle of equality is delicate, vulnerable andsupremely precious concept for our society. It is true thatit has embraced critical and essential component ofconstitutional identity. The larger principles of equality asstated in Articles 14, 15 and 16 may be understood as anelement of the “basic structure” of the Constitution andmay not be subject to amendment, although, theseprovisions, intended to configure these rights in particularway, may be changed within the constraints of the broaderprinciple. The variability of changing conditions maynecessitate the modifications in the structure and designof these rights, but the transient characters of formalarrangements must reflect the larger purpose and principlesthat are the continuous and unalterable thread ofconstitutional identity. It is not the introduction of significantand far-reaching change that is objectionable, rather it isthe content of this change insofar as it implicates thequestion of constitutional identity.

120. If any constitutional amendment is made whichmoderately abridges or alters the equality principle or theprinciples under Article 19(1)(g), it cannot be said that it

Aviolates the basic structure of the Constitution. If such aprinciple is (sic not) accepted, our Constitution would notbe able to adapt itself to the changing conditions of dynamichuman society. Therefore, the plea raised by the petitioners’counsel that the present Constitution (Ninety-thirdAmendment) Act, 2005 alters the basic structure of theBConstitution is of no force. Moreover, the interpretation ofthe Constitution shall not be in narrow pedantic way. Theobservations made by the Constitution Bench in Nagaraj case atp. 240 are relevant: (SCC para 19)

“19. The Constitution is not an ephemeral legal documentCembodying set of legal rules for the passing hour. It sets outprinciples for an expanding future and is intended to endurefor ages to come and consequently to be adapted to the variouscrises of human affairs. Therefore, purposive rather than astrict literal approach to the interpretation should be adopted.DA constitutional provision must be construed not in narrow

and constricted sense but in wide and liberal manner so as toanticipate and take account of changing conditions and purposesso that constitutional provision does not get fossilised butremains flexible enough to meet the newly emerging problemsand challenges.”

122. Therefore, we hold that the Ninety-third Amendmentto the Constitution does not violate the “basic structure”of the Constitution so far as it relates to aided educationalinstitutions. Question whether reservation could be made forSCs, STs or SEBCs in private unaided educational institutions onFthe basis of the Constitution (Ninety-third Amendment); or whetherreservation could be given in such institutions; or whether anysuch legislation would be violative of Article 19(1)(g) or Article14 of the Constitution; or whether the Constitution (Ninety-thirdAmendment) which enables the State Legislatures or ParliamentGto make such legislation are all questions to be decided in properlyconstituted lis between the affected parties and others who supportsuch legislation.”

(emphasis supplied)

37.11. In K. Krishna Murthy (Dr.) and Ors. v. Union of IndiaHand Anr.: (2010) 7 SCC 202, the Constitution (Seventy-third

Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment)Act, 1992 which had inserted Part IX and Part IX-A to the Constitutionthereby contemplating the powers, composition and functions of localself-government institutions i.e., the Panchayats (for rural areas) andMunicipalities (for urban areas) were in challenge. This Court rejectedthe challenge while holding that there was no damage to the basicstructure and concluded as follows: -

“82. In view of the above, our conclusions are:

(i) The nature and purpose of reservations in the contextof local self-government is considerably different from thatof higher education and public employment. In this sense,Article 243-D and Article 243-T form distinct andindependent constitutional basis for affirmative action andthe principles that have been evolved in relation to thereservation policies enabled by Articles 15(4) and 16(4)cannot be readily applied in the context of local self-government. Even when made, they need not be for periodcorresponding to the period of reservation for the purposes ofArticles 15(4) and 16(4), but can be much shorter.

(ii) Article 243-D(6) and Article 243-T(6) are constitutionally validsince they are in the nature of provisions which merely enable theState Legislatures to reserve seats and chairperson posts in favourof backward classes. Concerns about disproportionatereservations should be raised by way of specific challenges againstthe State legislations.

(iii) We are not in position to examine the claims aboutoverbreadth in the quantum of reservations provided for OBCsunder the impugned State legislations since there is nocontemporaneous empirical data. The onus is on the executive toconduct rigorous investigation into the patterns of backwardnessthat act as barriers to political participation which are indeed quitedifferent from the patterns of disadvantages in the matter of accessto education and employment. As we have considered and decidedonly the constitutional validity of Articles 243-D(6) and 243-T(6),it will be open to the petitioners or any aggrieved party to challengeany State legislation enacted in pursuance of the said constitutionalprovisions before the High Court. We are of the view that theidentification of “backward classes” under Article 243-D(6) and

AArticle 243-T(6) should be distinct from the identification of SEBCsfor the purpose of Article 15(4) and that of backward classes forthe purpose of Article 16(4).

(iv) The upper ceiling of 50% vertical reservations in favourof SCs/STs/OBCs should not be breached in the context ofBlocal self-government. Exceptions can only be made inorder to safeguard the interests of the Scheduled Tribes inthe matter of their representation in panchayats located inthe Scheduled Areas.

(v) The reservation of chairperson posts in the mannerCcontemplated by Articles 243-D(4) and 243-T(4) isconstitutionally valid. These chairperson posts cannot be equatedwith solitary posts in the context of public employment.”

(emphasis supplied)

37.12. In Pramati Trust, the validity of clause (5) of Article 15 ofDthe Constitution inserted by the Constitution (Ninety-third Amendment)Act, 2005 was again in question in reference to the private unaidededucational institutions (the aspect which was not under consideration inAshoka Kumar Thakur) as also the validity of Article 21-A of theConstitution inserted by the Constitution (Eighty-sixth Amendment) Act,E2002 with effect from 01.04.2010. This Court denied that there was anybasic structure violation while observing, inter alia, as under: -“38. We accordingly hold that none of the rights underArticles 14, 19(1)(g) and 21 of the Constitution have beenabrogated by clause (5) of Article 15 of the ConstitutionFand the view taken by Bhandari, J. in Ashoka Kumar Thakur v.Union of India that the imposition of reservation on unaidedinstitutions by the Ninety-third Amendment has abrogated Article19(1)(g), basic feature of the Constitution is not correct. Instead,we hold that the Constitution (Ninety-third Amendment) Act, 2005inserting clause (5) of Article 15 of the Constitution is valid.

51. In our considered opinion, therefore, by the Constitution(Eighty-sixth Amendment) Act, new power was madeavailable to the State under Article 21-A of the Constitutionto make law determining the manner in which it willprovide free and compulsory education to the children ofHthe age of six to fourteen years as this goal contemplated

in the directive principles in Article 45 before thisconstitutional amendment could not be achieved for fiftyyears. This additional power vested by the Constitution(Eighty-sixth Amendment) Act, 2002 in the State isindependent and different from the power of the State underclause (6) of Article 19 of the Constitution and has affectedthe voluntariness of the right under Article 19(1)(g) of theConstitution. By exercising this additional power, the Statecan by law impose admissions on private unaided schoolsand so long as the law made by the State in exercise of thispower under Article 21-A of the Constitution is for thepurpose of providing free and compulsory education to thechildren of the age of 6 to 14 years and so long as such lawforces admission of children of poorer, weaker and backwardsections of the society to small percentage of the seats inprivate educational institutions to achieve the constitutionalgoals of equality of opportunity and social justice set out inthe Preamble of the Constitution, such law would not bedestructive of the right of the private unaided educationalinstitutions under Article 19(1)(g) of the Constitution.

56. In the result, we hold that the Constitution (Ninety-thirdAmendment) Act, 2005 inserting clause (5) of Article 15 ofthe Constitution and the Constitution (Eighty-sixthAmendment) Act, 2002 inserting Article 21-A of theConstitution do not alter the basic structure or frameworkof the Constitution and are constitutionally valid. We alsohold that the 2009 Act is not ultra vires Article 19(1)(g) of theConstitution. We, however, hold that the 2009 Act insofar as itapplies to minority schools, aided or unaided, covered under clause(1) of Article 30 of the Constitution is ultra vires the Constitution.Accordingly, Writ Petition (C) No. 1081 of 2013 filed on behalf ofMuslim Minority Schools Managers’ Association is allowed andWrit Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106, 128,144-45, 160 and 136 of 2014 filed on behalf of non-minority privateunaided educational institutions are dismissed. All IAs standdisposed of. The parties, however, shall bear their own costs.”

(emphasis supplied)

A37.13. In Supreme Court Advocates-on-Record Association andAnr. v. Union of India: (2016) 5 SCC 1[33], the questions were pertainingto the constitutional validity of the Constitution (Ninety-ninth Amendment)Act, 2014 and that of the National Judicial Appointments CommissionAct, 2014. This Court held that the amendment violated the basic structureinasmuch as by altering the process of appointment of Judges to theBSupreme Court and the High Court, the amendment was striking at thevery basis of the independence of the judiciary, an essential feature ofthe Constitution. few passages from the majority opinions read asunder: -

Khehar, J.C

“308. Articles 124-A(1)(a) and (b) do not provide for anadequate representation in the matter to the judicialcomponent to ensure primacy of the judiciary in the matterof selection and appointment of Judges to the higherjudiciary, and therefore, the same are liable to be set asideDand struck down as being violative of the “basic structure”of the Constitution of India. Thus viewed, we are satisfiedthat the “basic structure” of the Constitution would beclearly violated if the process of selection of Judges to thehigher judiciary was to be conducted in the mannerEcontemplated through NJAC. The impugned constitutionalamendment being ultra vires the “basic structure” of theConstitution is liable to be set aside.

Lokur,J.

928. The 99th Constitution Amendment Act and the NJAC ActFnot only reduce the Chief Justice of India to number in NJACbut also convert the mandatory consultation between the Presidentand the Chief Justice of India to dumb charade with NJACacting as an intermediary. On earlier occasions, Parliamentenhanced its power through constitutional amendments, which wereGstruck down, inter alia, in Indira Nehru Gandhi and MinervaMills. The 99th Constitution Amendment Actunconstitutionally minimises the role of the Chief Justiceof India and the judiciary to vanishing point in theappointment of Judges. It also considerably downsizes the

33 Hereinafter also referred to as ‘NJAC Judgment’.H

role of the President. This effaces the basic structure ofthe independence of the judiciary by sufficiently alteringthe process of appointment of Judges to the Supreme Courtand the High Court, or at least alters it unconstitutionallythereby striking at the very basis of the independence ofthe judiciary.”

(emphasis supplied)

37.14. In his powerful dissent in the above-referred NJACJudgment, Justice Chelameswar surveyed vast variety of case lawrelating to the doctrine/theory of basic structure and thereafter, summedup the relevant propositions, inter alia, as follows: -

“1196. An analysis of the judgments of the abovementioned casescommencing from Kesavananda case yields the followingpropositions:

1196.1. Article 368 enables Parliament to amend any provisionof the Constitution.

1196.2. The power under Article 368 however does not enableParliament to destroy the basic structure of the Constitution.

1196.3. None of the cases referred to above specified or declaredwhat is the basic structure of the Constitution.

1196.4. The expressions “basic structure” and“basic features” convey different ideas though some of thelearned Judges used those expressions interchangeably.

1196.5. The basic structure of the Constitution is the sumtotal of the basic features of the Constitution.

1196.6. Some of the basic features identified so far by thisCourt are democracy, secularism, equality of status,independence of judiciary, judicial review and some of thefundamental rights.

1196.7. The abrogation of any one of the basic featuresresults normally in the destruction of the basic structure ofthe Constitution subject to some exceptions.

1196.8. As to when the abrogation of particular basicfeature can be said to destroy the basic structure of theConstitution depends upon the nature of the basic feature

120SUPREME COURT REPORTS

Asought to be amended and the context of the amendment.There is no universally applicable test vis-à-vis all the basicfeatures.”

(emphasis supplied)

37.15. Lastly, in the decision in Dr. Jaishri Patil to which one ofBus (S. Ravindra Bhat, J.) was party, this Court considered the validityof the Constitution (One Hundred and Second Amendment) Act, 2018which, inter alia, inserted Articles 366(26-C) and 342-A. As result ofthis amendment, the President alone, to the exclusion of all otherauthorities, is empowered to identify socially and educationally backwardCclasses and include them in list to be published under Article 342-A (1),which shall be deemed to include SEBCs in relation to each State andUnion territory for the purposes of the Constitution. The said amendmentwas challenged, inter alia, on the ground that the same was not ratifiedby at least half of the States and that it was striking at the federal structureof the Constitution. While rejecting the challenge, this Court held thatDthere was no breach of the basic structure of the Constitution. Some ofthe relevant questions formulated in that case and the opinions expressedcould be usefully reproduced as under: -

“7.4. (4) Whether the Constitution (One Hundred and Second)Amendment deprives the State Legislature of its power to enactEa legislation determining the socially and economically backwardclasses and conferring the benefits on the said community underits enabling power?

7.5. (5) Whether, States’ power to legislate in relation to “anybackward class” under Articles 15(4) and 16(4) is anyway abridgedFby Article 342-A read with Article 366(26-C) of the Constitutionof India?

7.6. (6) Whether Article 342-A of the Constitution abrogatesStates’ power to legislate or classify in respect of “any backwardclass of citizens” and thereby affects the federal policy/structureGof the Constitution of India?Bhat, J.

182. This Court is also of the opinion that the change broughtabout by the 102nd Amendment, especially Article 342-A is onlywith respect to the process of identification of SEBCs and theirH

list. Necessarily, the power to frame policies and legislation withregard to all other matters i.e. the welfare schemes for SEBCs,setting up of institutions, grants, scholarships, extent of reservationsand special provisions under Articles 15(4), 15(5) and 16(4) areentirely with the State Government in relation to its institutionsand its public services (including services under agencies andcorporations and companies controlled by the State Government).In other words, the extent of reservations, the kind of benefits,the quantum of scholarships, the number of schools which are tobe specially provided under Article 15(4) or any other beneficialor welfare scheme which is conceivable under Article 15(4) canall be achieved by the State through its legislative and executivepowers. This power would include making suggestions andcollecting data — if necessary, through statutory commissions,for making recommendations towards inclusion or exclusion ofcastes and communities to the President on the aid and advice ofthe Union Council of Ministers under Article 342-A. This willaccord with the spirit of the Constitution under Article 338-B andthe principle of cooperative federalism which guides theinterpretation of this Constitution.193. By these parameters, the alteration of the content ofthe State legislative power in an oblique and peripheralmanner would not constitute violation of the concept offederalism. It is only if the amendment takes away the veryessence of federalism or effectively divests the federal contentof the Constitution, and denudes the States of their effectivepower to legislate or frame executive policies (co-extensivewith legislative power) that the amendment would take awayan essential feature or violate the basic structure of theConstitution. Applying such benchmark, this Court is ofthe opinion that the power of identification of SEBCshitherto exercised by the States and now shifted to thedomain of the President (and for its modification, toParliament) by virtue of Article 342-A does not in anymanner violate the essential features or basic structure ofthe Constitution. The 102nd Amendment is also not contrary toor violative of proviso to Article 368(2) of the Constitution of India.As result, it is held that the writ petition is without merit; it isdismissed.

194.5. Re Point (5): Whether, States’ power to legislate in relationto “any backward class” under Articles 15(4) and 16(4) is anywayabridged by Article 342-A read with Article 366(26-C) of theConstitution of India? On these two interrelated points of reference,my conclusions are as follows:

194.5.5. The States’ power to make reservations, in favour ofparticular communities or castes, the quantum of reservations,the nature of benefits and the kind of reservations, and all othermatters falling within the ambit of Articles 15 and 16 — exceptwith respect to identification of SEBCs, remains undisturbed.

194.6. Re Point (6): Article 342-A of the Constitution bydenuding the States power to legislate or classify in respectof “any backward class of citizens” does not affect or damagethe federal polity and does not violate the basic structureof the Constitution of India.

DBhushan, J.

686. We do not find any merit in the challenge to theConstitution 102nd Amendment. The Constitution 102ndAmendment does not violate any basic feature of theConstitution. The argument of the learned counsel for theEpetitioner is that Article 368 has not been followed sincethe Constitution 102nd Amendment was not ratified by thenecessary majority of the State. Parliament never intendedto take the rights of the State regarding identification ofbackward classes, the Constitution 102nd Amendment wasnot covered by the proviso to Article 368 clause (2), hence,Fthe same did not require any ratification. The argument ofprocedural violation in passing the 102nd Constitutional Amendmentcannot also be accepted. We uphold the Constitution 102ndAmendment interpreted in the manner as above.”

(emphasis supplied)

38. comprehension of the foregoing makes one aspect morethan clear. It is that there is no, and there cannot be any, cut-and-driedformula or theorem which could supply ready-made answer to thequestion as to whether particular amendment to the Constitution violatesor affects the basic structure. The nature of amendment and the feature/Hs of the Constitution sought to be touched, altered, modulated, or changed

by the amendment would be the material factors for an appropriatedetermination of the question. As observed hereinbefore, amorphousstate of the doctrine of basic structure is rather pertinent in this quest, soas to keep in tune with the organic nature of the Constitution.

38.1. However, the observations foregoing are not to suggest asif the doctrine of basic structure is so open-ended that it would be readilyapplied to every constitutional amendment. Quite to the opposite, asexemplified by the decisions above-referred, this Court has applied thesame only against such hostile constitutional amendments which werefound to be striking at the very identity of the Constitution, like directabrogation of the features of judicial review (Kesavananda, MinervaMills and P. Sambhamurthy[34]); free and fair elections (Indira NehruGandhi); plenary jurisdiction of constitutional Courts (L. ChandraKumar); and independence of judiciary (NJAC Judgment). Most ofthe other attempts to question the constitutional amendments have metwith disapproval of this Court even when there had been departure fromthe existing constitutional provisions and scheme.

38.2. The reason for minimal interference by this Court in theconstitutional amendments is not far to seek. In our constitutional set-upof parliamentary democracy, even when the power of judicial review isan essential feature and thereby an immutable part of the basic structureof the Constitution, the power to amend the Constitution, vested in theParliament in terms of Article 368, is equally an inherent part of thebasic structure of the Constitution. Both these powers, of amending theConstitution (by Parliament) and of judicial review (by ConstitutionalCourt) are subject to their own limitations. The interplay of amendingpowers of the Parliament and judicial review by the Constitutional Courtover such exercise of amending powers may appear little bit complexbut ultimately leads towards strengthening the constitutional value ofseparation of powers. This synergy of separation is the strength of ourConstitution.

39. few material aspects related with this interlacing of theamending powers of the Parliament and operation of the doctrine ofbasic structure could be usefully condensed as follows:

34 In Kihoto Hollohan (supra), Paragraph 7 of the Tenth Schedule to the Constitution,though relating to the matter of exclusion of judicial review but was struck downessentially for the view of majority about want of ratification in accordance with theproviso to clause (2) of Article 368.

A39.1. The power to amend the Constitution essentially vests withthe Parliament and when high threshold and other procedural safeguardsare provided in Article 368, it would not be correct to assume that everyamendment to the Constitution could be challenged by theoreticalreference to the basic structure doctrine.B39.2. As exposited in Kesavananda, the amending power caneven be used by the Parliament to reshape the Constitution in order tofulfil the obligation imposed on the State, subject, of course, to the definedlimits of not damaging the basic structure of the Constitution.

39.3.Again, as put in Kesavananda, judicial review ofCconstitutional amendment is matter of great circumspection for thejudiciary where the Courts cannot be oblivious of the practical needs ofthe Government and door has to be left open even for ‘trial and error’,subject, again, to the limitations of not damaging the identity of theConstitution.

D39.4. The expressions “basic features” and “basic structure”convey different meaning, even though many times they have been usedinterchangeably. It could reasonably be said that basic structure of theConstitution is the sum total of its essential features.

39.5. As to when abrogation of any particular essential featureEwould lead to damaging the basic structure of Constitution would dependupon the nature of that feature as also the nature of amendment.

39.6. As regards Part-III of the Constitution, every case ofamendment of Fundamental Rights may not necessarily result in damagingor destroying the basic structure. The issue would always be as to whetherFwhat is sought to be withdrawn or altered is an inviolable part of thebasic structure.

39.7. Mere violation of the rule of equality does not violate thebasic structure of the Constitution unless the violation is shocking,unconscionable or unscrupulous travesty of the quintessence of equaljustice, as exposited in Bhim Singhji.G

39.8. If any constitutional amendment moderately abridges oralters the equality principles, it cannot be said to be violation of thebasic structure.

40. While keeping in view the principles foregoing, we may embarkupon the points arising for determination in this matter so as to answerthe root question as to whether the amendment in question violates thebasic structure of the Constitution?

41. As noticed, the principal part of challenge to the 103[rd]Amendment is premised on the ground that insertion of clause (6) toArticle 15 as also the parallel insertion of clause (6) to Article 16 abrogatesthe Equality Code, an essential feature of the Constitution of India; andthereby destroys the basic structure of the Constitution. In order todetermine as to whether the amendment in question destroys or violatesthe basic structure, we need to examine the doctrine of equality asenshrined in our Constitution; the concept of reservation by affirmativeaction as an exception to the general rule of equality; the economicdisability and affirmative action to deal with the same; the implicationsof economic criteria as the sole basis for affirmative action; theimplications of the exclusion of socially and educationally backwardclasses from the affirmative action for economically weaker sections;and the implication of the quantum of additional ten per cent. reservationfor EWS. These aspects may now be exmined in this very order asinfra.

Expanding Doctrine of ‘Equality’

42. It would be apt to begin this discussion with the followingwords of H. M. Seervai, jurist of great repute, as regards fundamentalsof the concepts of Liberty and Equality:

“Liberty and equality are words of passion and power. They werethe watchwords of the French Revolution; they inspired theunforgettable words of Abraham Lincoln’s Gettysburg Address;and the U.S. Congress gave them practical effect in the 13[th]Amendment, which abolished slavery, and in the 14[th] Amendment,which provided that “the State shall not deny to any person withinits jurisdiction…the equal protection of the laws.” Conscious ofthis history, our founding fathers not only put Liberty and Equalityin the Preamble to our Constitution but gave them practical effectin Art. 17 which abolished “Untouchability,” and in Art. 14 whichprovides that “the State shall not deny to any person equality before

126SUPREME COURT REPORTS

[2022] 14 S.C.R.

Athe law and the equal protection of the laws in the territory ofIndia”[35]-[36].

43. Articles 14 to 18 of the Constitution are to ensure the right toequality. The makers of our Constitution noticed the widespread socialand economic inequalities in the society that obtained ever since longBpast, often sanctioned by public policies, religion and other social normsand practices. Therefore, they enacted elaborate provisions for eradicationof inequalities and for establishing an egalitarian society. The firstexpression ‘equality before the law’ of Article 14 is taken from the all-time wisdom as also from English Common Law, implying absence ofany special privilege in any individual[37]; and the other expression ‘theCequal protection of the laws’, referable to the 14[th] Amendment to theU.S. Constitution, is constitutional pledge of protection or guarantee ofequal laws. Both these expressions occur in Article 7 of the UniversalDeclaration of Human Rights, 1948.

35 H.M. Seervai, ‘Constitutional Law of India, Critical Commentary’, 4th Edition,(1991-reprinted 1999) at p. 435.

36 The echoing words of Abraham Lincoln’s Gettysburg Address, as reproduced byH.M. Seervai read as follows: “Four score and seven years ago our fathers broughtforth on this continent new nation conceived in liberty and dedicated to the propositionthat all men are created equal. We are engaged in great civil war, testing whether thatEnation, or any nation so conceived and so dedicated, can long endure.”

37 In fact, total equality has been fundamental to the concept of Dharma, leaving noscope for discrimination on any ground. These aspects have been succinctly explainedby the acclaimed jurist M. Rama Jois in his classic work Legal and ConstitutionalHistory of India (N. M. Tripathi Private Ltd. 1984 – Volume I, at p. 582) in thefollowing amongst other expressions while reproducing from Rig Veda: -

“…The very expression Dharma is opposed to and inconsistent with any suchFsocial inequality. The relevant provisions of the Shruti (Vedas) leave no roomfor doubt that discrimination on the ground of birth or otherwise had no Vedicsanction; on the other hand such discrimination was plainly opposed to Vedicinjunction. Discrimination of any kind is, therefore, contrary to Dharma. It isreally Adharma.

Charter of equality (Samanata) is found incorporated in the Rigveda, the mostancient of the Vedas, and also in the Atharvaveda.GRigveda – Mandala-5, Sukta-60, Mantra-5:*********

Ajyestaso akanishtasa ete

Sam bhrataro va vridhuhu sowbhagaya.

No one is superior (ajyestasaha) or inferior (akanishtasaha). All are brothers(ete bhrataraha). All should strive for the interest of all and should progressHcollectively (sowbhagaya sam va vridhuhu)”.

44. In nutshell, the principle of equality can be stated thus: equalsmust be treated equally while unequals need to be treated differently,inasmuch as for the application of this principle in real life, we have todifferentiate between those who being equal, are grouped together, andthose who being different, are left out from the group. This is expressedas reasonable classification. Now, classification to be valid mustnecessarily satisfy two tests: first, the distinguishing rationale should bebased on just objective and secondly, the choice of differentiating oneset of persons from another should have reasonable nexus to the objectsought to be achieved. However, valid classification does not requiremathematical niceties and perfect equality; nor does it require identity oftreatment.[38] If there is similarity or uniformity within group, the lawwill not be condemned as discriminatory, even though due to somefortuitous circumstances arising out of particular situation, some includedin the class get an advantage over others left out, so long as they are notsingled out for special treatment. In spite of certain indefiniteness in theexpression ‘equality’, when the same is sought to be applied to particularcase or class of cases in the complex conditions of modern society,there is no denying the fact that the general principle of ‘equality’ formsthe basis of Democratic Government.[39]

45. Since the early 1970s, equality in Article 14 being dynamicconcept, has acquired new dimensions. In E. P. Royappa (supra), anew approach to this doctrine was propounded in the following words: -

“85. …Equality is dynamic concept with many aspects anddimensions and it cannot be “cribbed, cabined andconfined” within traditional and doctrinaire limits. From apositivistic point of view, equality is antithetic to arbitrariness. Infact equality and arbitrariness are sworn enemies; one belongs tothe rule of law in republic while the other, to the whim andcaprice of an absolute monarch. Where an act is arbitrary, it isimplicit in it that it is unequal both according to political logic andconstitutional law and is therefore violative of Article 14…”

(emphasis supplied)

38 “From the fact that people are very different, it follows that, if we treat them equally,the result must be inequality in their actual position, and that the only way to placethem in an equal position would be to treat them differently…”, said an Austrianeconomist Friedrich A. Hayek (1899-1992) in ‘The Constitution of Liberty’, 1960, theUniversity of Chicago, p. 87.

39 Dr. Alladi Krishnaswami Aiyar, ‘The Constitution and Fundamental Rights’, TheSrinivasa Sastri Institute of Politics, Mylapore, Madras (1955), at p. 28.

A45.1. In Maganlal Chhaganlal (P) Ltd. v. MunicipalCorporation of Greater Bombay and Ors.: (1974) 2 SCC 402, itwas observed: -

“33. …..Article 14 enunciates vital principle which lies at thecore of our republicanism and shines like beacon light pointingBtowards the goal of classless egalitarian socio-economic orderwhich we promised to build for ourselves when we made trystwith destiny on that fateful day when we adopted our Constitution.If we have to choose between fanatical devotion to this greatprinciple of equality and feeble allegiance to it, we wouldunhesitatingly prefer to err on the side of the former as againstCthe latter…”

46. Indian constitutional jurisprudence has consistently held theguarantee of equality to be substantive and not mere formalisticrequirement. Equality is at the nucleus of the unified goals of social andeconomic justice. In Minerva Mills it was observed: -D

“111. … the equality clause in the Constitution does notspeak of mere formal equality before the law but embodiesthe concept of real and substantive equality which strikesat inequalities arising on account of vast social and economicdifferentials and is consequently an essential ingredient ofEsocial and economic justice. The dynamic principle ofegalitarianism fertilises the concept of social and economic justice;it is one of its essential elements and there can be no real socialand economic justice where there is breach of the egalitarianprinciple…”

(emphasis supplied)

47. Thus, equality is feature fundamental to our Constitutionbut, in true sense of terms, equality envisaged by our Constitution as acomponent of social, economic and political justice is real and substantiveequality, which is to organically and dynamically operate against all formsGof inequalities. This process of striking at inequalities, by its very nature,calls for reasonable classifications so that equals are treated equallywhile unequals are treated differently and as per their requirements.

Affirmative Action by ‘Reservation’: Exception to theGeneral Rule of Equality

48. In the multifaceted social structure, ensuring substantive andreal equality, perforce, calls for consistent efforts to remove inequalities,wherever existing and in whatever form existing. Hence, the State istasked with affirmative action. And, one duly recognised form ofaffirmative action is by way of compensatory discrimination, whichhas the preliminary goal of curbing discrimination and the ultimate goalof its eradication so as to reach the destination of real and substantiveequality. This has led to what is known as reservation and quota systemin State activities.

49. Reservation and quota system was introduced in Malta muchbefore it was mentioned in India[40]. Reservation in India was introducedin the last decades of the 19[th] century at time when the Indian sub-continent was broadly divided, according to two main forms ofgovernance, into British India and about 600 Princely States. Some ofthe progressive States had modernised the society through the promotionof education and industry. For example, the Princely States of Mysore,Baroda and Kolhapur took considerable interest in the awakening andadvancement of deprived sections of society. Chhatrapati ShahujiMaharaj, the Ruler of Princely State of Kolhapur, is said to have beeninfluenced by the thoughts of egalitarian thinker Jyotirao Phule and issaid to have introduced affirmative action in 1902, reserving part ofadministrative posts for ‘depressed classes’.[41]

50. Leaving the historical perspective at that, for the purpose ofquestions at hand, we may, however, move on to the provisions in theConstitution of India and take note of their operation with reference tothe relevant decisions. The ‘doctrine of equality’, as collectivelyenshrined in Articles 14 to 18, happens to be the principal basis for thecreation of reasonable classification whereunder ‘affirmative action’,be it legislative or executive, is authorised to be undertaken. The

40 ‘Moments in History of Reservations’ by Bhagwan Das in Economic and PoliticalWeekly, 28.10.2000.

41 He is also credited to have presided over the first All India Conference of theDepressed Classes at Nagpur in the year 1920 where Dr. B. R. Ambedkar was amongthe main speakers and where it was resolved, among other things, to have truerepresentatives of the depressed classes in the legislature. [Vide: Dr. Sanjay Paswan,Dr. Pramanshi Jaideva, ‘Encyclopaedia of Dalits in India’,Kalpaz Publications, NewDelhi (2003)].

Aconstitutional Courts too, precedent by precedent, have constructivelycontributed to the evolution of what we may term as ‘reservationjurisprudence’.

51. The Constitution of India has about two dozen Articles providingfor compensatory or special treatment for disadvantaged citizens or forBprotecting them against discrimination. Part III specifies the FundamentalRights that are constitutionally guaranteed. Article 12 defines the ‘State’against whom these Fundamental Rights can be enforced. Article 13declares void all laws offending Fundamental Rights. Article 14,apparently considered to be one of the most important of the FundamentalRights, guarantees the right to equality and equal protection of the laws.CArticle 15 confers on the SEBCs/OBCs/SCs/STs the right to seekreservation in admission to educational institutions. It also provides forthe advancement of these classes. Similarly, Article 16 provides forreservation in the matter of public employment for Backward Classes.Both Articles 15 and 16, being citizenship-specific unlike Article 14, prohibitDdiscrimination broadly i.e., only on the grounds of, religion, race, caste,sex or place of birth. Part XVI of the Constitution, making ‘SpecialProvisions Relating to Certain Classes’, provides for reservation of seatsin legislatures for Scheduled Castes, Scheduled Tribes and so on.

52. Although several Articles are relevant as expressing the spiritEof the Constitution, three of them are predominantly germane i.e., Article14 as embodying the generic principle of equality (as genus) and Articles15 and 16, enacting the facets of general equality (as species), videN.M. Thomas.

52.1. It is evident that the normal process of development benefitsFonly that section of society which already possesses land, education,and social status/respect. For those who have none of these, or aredeprived of any of these, there was the task of making sure that they,who had been unable to enjoy these rights due to myriad reasons, weregiven special facilities, privileges and encouragement so that they couldparticipate as equals in the mainstream of socio-economic system, takingGthem to the path of Liberty and Justice and thereby promoting Fraternityamong all the citizens, assuring the dignity of the individual. Given theseobjectives, the Indian constitutional structure, unlike the U.S. Constitution,specifically provides for ‘compensatory discrimination’, vide VasanthKumar; and, in that context, reservation is the basic gateway to treadHthe path of all-around development.

52.2. Thus, Article 15 enacts the principle of equality before lawto specific situations. While it prohibits certain classifications, it expresslyrequires making of certain classifications which would impliedly be withinthe broad reach of Article 14. Clause (4) was added to Article 15 by theConstitution (First Amendment) Act, 1951, w.e.f. 18.06.1951 to nullifythe effects of the decision in Champakam. Article 16, which enactsanother facet of equality, prohibits discrimination in the matters relatingto employment or appointment to any office under the State on almostthe same grounds as in Article 15. Clauses (4) and (4-A) of Article 16carve out another exception to the rule of equality and enable the Stateto make provisions for reservations of appointment in favour of anybackward class of citizens. Such provisions include reservations or quotasthat can be made in the exercise of executive powers and even withoutany legislative support, vide Indra Sawhney. The twin objectives ofArticles 15 and 16 are to provide adequate protection to the disadvantagedand, through special measures, to raise their capabilities so that theywould, on their own, compete with the rest.

52.3. The reference to Scheduled Castes and Scheduled Tribes inArticles 15 and 16 takes us to Articles 341 and 342, which authorise thePresident to issue notified order in respect of each of the States/UnionTerritories specifying the castes, races or tribes which are to be regardedas Scheduled Castes and Scheduled Tribes. Articles 338 and 338-Arespectively provide for the establishment of National Commission forScheduled Castes and National Commission for Scheduled Tribes.Similarly, Article 338-B provides for the establishment of NationalCommission for Backward Classes. These constitutional bodies, interalia, have the duty to participate in and advice on the socio-economicdevelopment of the communities concerned. Article 342-A introducedby 102[nd] Constitutional Amendment w.e.f. 15.08.2018 authorises thePresident in consultation with the Governor of the State concerned tonotify socially and educationally backward classes (discussed and upheldin Dr. Jaishri Patil).

53. Reverting to Articles 15 and 16, it could at once be noticedthat the provisions concerning reservation were crafted carefully to bejust ‘enabling provisions’. They were worded to confer no more than adiscretionary power on the State. They did not cast duty on the Stateto the effect that it must set apart such and such proportion of seats ineducational institutions or of posts in government services by way of

Areservation[42].The provisions were written so as to obviate challengeto the steps that the State may take to raise the downtrodden. However,they were, as such, not to confer right on anyone.

54. As regards reservation as one of the measures of affirmativeaction, the extent thereof has been major area of debates and has ledBto various expositions, as shall be noticed in the later segments of thisjudgment. For the present purpose, of comprehending the ethos andcontours of this affirmative action, the following are the pertinentobservations of this Court in M. Nagaraj, essentially made in the contextof Article 16: -

C“102 …… Clauses (1) and (4) of Article 16 are restatementsof the principle of equality under Article 14. Clause (4) ofArticle 16 refers to affirmative action by way of reservation.Clause (4) of Article 16, however, states that the appropriateGovernment is free to provide for reservation in cases where it issatisfied on the basis of quantifiable data that Backward Class isDinadequately represented in the services. Therefore, in everycase where the State decides to provide for reservationthere must exist two circumstances, namely,“backwardness” and “inadequacy of representation”. Asstated above, equity, justice and efficiency are variable factors.EThese factors are context-specific. There is no fixed yardstick toidentify and measure these three factors, it will depend on thefacts and circumstances of each case. These are the limitationson the mode of the exercise of power by the State…….. If theState concerned fails to identify and measure backwardness,inadequacy and overall administrative efficiency then in that eventFthe provision for reservation would be invalid.…….Equality hastwo facets - “formal equality” and “proportional equality”.Proportional equality is equality “in fact” whereas formal equalityis equality “in law”. Formal equality exists in the rule of law. Inthe case of proportional equality the State is expected toGtake affirmative steps in favour of disadvantaged sectionsof the society within the framework of liberal democracy.Egalitarian equality is proportional equality.

42 Vide Chairman and Managing Director, Central Bank of India and Ors. v. CentralHBank of India SC/ST Employees Welfare Association and Ors.: (2015) 12 SCC 308.

104………… As stated above, be it reservation or evaluation,excessiveness in either would result in violation of the constitutionalmandate. This exercise, however, will depend on the facts of eachcase…..”

(emphasis supplied)

55. Thus, it could reasonably be summarised that for the socio-economic structure which the law in our democracy seeks to build up,the requirements of real and substantive equality call for affirmativeactions; and reservation is recognised as one such affirmative action,which is permissible under the Constitution; and its operation is definedby large number of decisions of this Court, running up to the detailedexpositions in Dr. Jaishri Patil.

56. However, it need be noticed that reservation, one of thepermissible affirmative actions enabled by the Constitution of India, isnevertheless an exception to the general rule of equality and hence,cannot be regarded as such an essential feature of the Constitution thatcannot be modulated; or whose modulation for valid reason, includingbenefit of any section other than the sections who are already availingits benefit, may damage the basic structure.

Economic Disabilities and Affirmative Action

57. After having traversed through the two fundamental aspects,Equality and Reservation, we may focus on the central point ofconsideration in these matters i.e., the economic disabilities andaffirmative action in that regard.

58. The social revolution was put at the top of the national agendaby the Constituent Assembly when it adopted Objectives Resolution. InKesavananda, it was observed: -

“646....By the Objectives Resolution adopted on January 22, 1947,the Constituent Assembly solemnly pledged itself to draw up forIndia’s future governance Constitution wherein “shall beguaranteed and secured to all the people of India justice, social,economic and political, equality of status, of opportunity and beforethe law; freedom of thought, expression, belief, faith, worship,vocation, association and action subject to law and public moralityand wherein adequate safeguard would be provided for minorities,backward and tribal areas and depressed and other backward

Aclasses”. The close association between political freedom andsocial justice has become common concept since the FrenchRevolution. Since the end of the First World War, it wasincreasingly recognised that peace in the world can be establishedonly if it is based on social justice. The most modern Constitutionscontain declaration of social and economic principles, whichBemphasise, among other things, the duty of the State to strive forsocial security and to provide work, education and proper conditionof employment for its citizens. In evolving the Fundamental Rightsand the Directive Principles, our founding fathers, in addition tothe experience gathered by them from the events that took placeCin other parts of the world, also drew largely on their experiencein the past. The Directive Principles and the Fundamental Rightsmainly proceed on the basis of Human Rights. Representativedemocracies will have no meaning without economic and socialjustice to the common man. This is universal experience.Freedom from foreign rule can be looked upon only as anDopportunity to bring about economic and social advancement. Afterall freedom is nothing else but chance to be better. It is thisliberty to do better that is the theme of the Directive Principles ofState Policy in Part IV of the Constitution.”

59. The Chief Architect of the Constitution Dr. B.R. Ambedkar,Eon 19.11.1948, had stressed in the Constituent Assembly that theConstitution was committed to the principle of ‘economic democracy’as compliment to political democracy. His words are worth quoting: -

“Sir, that is the reason why the language of the articles in Part IVis left in the manner in which this Drafting Committee thought itFbest to leave it….It is, therefore, no use saying that the directiveprinciples have no value. In my judgment, the directive principleshave great value, for they lay down that our ideal is economicdemocracy. Because we did not want merely parliamentaryform of Government to the instituted through the variousGmechanisms provided in the Constitution. without any direction asto what our economic ideal, as to what our social order ought tobe, we deliberately included the Directive Principles in ourConstitution. I think, if the friends who are agitated over thisquestion bear in mind what I have said just now that our object inframing this Constitution is really twofold:

(i) to lay down the form of political democracy, and (ii) to laydown that our ideal is economic democracy and also to prescribethat every Government whatever, it is in power, shall strive tobring about economic democracy, much of the misunderstandingunder which most members are labouring will disappear….”[43]

60. H.M. Seervai writes: -

“4.13 (a) The words “justice, liberty, equality and fraternity” arewords of passion and power – the last three were the watchwordsof the French Revolution. If they are to retain their power tomove men’s hearts and to stir them to action, the words must beused absolutely – as they are used in the preamble. But do theythrow any light on the provisions of the Constitution? The onlyone of the four objectives which is directly incorporated in anyArticle is “Justice, social, economic and political”, for Art. 38provides: “The State shall strive to promote the welfare of thepeople by securing and protecting as effectively as it may socialorder in which justice, social, economic and political, shallinform all the institutions of the national life.” (italics supplied)And Art. 39 amplifies the concept of justice by providing that theState shall in particular (that is, especially) direct its policytowards securing the objectives set out of Clauses (a) to (f) ofthat Article.”[44]

61. The Preamble to our Constitution sets the ideals and goalswhich the makers of the Constitution intended to achieve. Therefore, itis also regarded as ‘a key to open the mind of the makers’ of theConstitution which may show the general purposes for which severalprovisions in the Constitution are enacted. In Kesavananda, the Preambleis held to be part of the Constitution. Further, in State of Uttar Pradeshv. Dr. Dina Nath Shukla and Anr.: (1997) 9 SCC 662, the Preambleis held to be part of the Constitution and its basic structure. The Preambleindicates the intent of the makers of the Constitution ‘to secure to all itscitizens: JUSTICE, social, economic and political…’ In V.N. Shukla’sConstitution of India, the significance of the expressions occurring in thePreamble and their sequence has been highlighted in the followingwords: -

43 Constituent Assembly Debates, Vol VII, p. 494.

44 H.M. Seervai, ‘Constitutional Law of India, Critical Commentary’, 4th Edition,(1991-reprinted 1999) at p. 280.

A“….the Constitution makers sought to secure to citizens of Indiajustice- social, economic and political; liberty of thought, expression,belief, faith, and worship; equality of status and of opportunity,and to promote among the people of India, fraternity, assuring thedignity of the individual and the unity and integrity of the nation.Although the expressions “justice”, “liberty”, “equality”,B“fraternity” and “dignity of the individual” do not have fixedcontents and may not be easy to define, they are not withoutcontent or as mere platitudes. They are given content by theenacting provisions of the Constitution, particularly by Part III,the Fundamental Rights; Part IV, the Directive Principles of StateCPolicy; Part IVA, the Fundamental Duties; and Part XVI, SpecialProvisions Relating to Certain Classes. Special attention has beendrawn to the sequence of these values in the Preamble whichestablishes primacy of justice over freedom and equality and thisis what the Constitution does by making special provisions for theweaker and excluded sections of the society, women, childrenDand minorities.”[45]

61.1. The word ‘economic’ is employed more than thirty times inthe Constitution. The relevant provisions in which it prominently occursare: the Preamble and Article 38 (economic justice); Article 39-A (legalaid with neutrality of economic disability); Article 46 (promotion ofEeconomic interests of weaker sections), Articles 243-G and 243-W(economic development to be undertaken by local bodies).

62. Our jurisprudence supports making of provision for tacklingthe disadvantages arising because of adverse economic conditions. Infact, Article 38 of the Constitution, inter alia, provides for securingFeconomic justice and for striving to minimise the inequalities in incomeamongst individuals and groups of people. In Jolly George Vargheseand Anr. v. The Bank of Cochin: (1980) 2 SCC 360, adopting ofcoercive recovery proceedings in execution of decree, which wereimpinging upon liberty of judgment-debtor, was not countenanced byGthis Court; and in that context, decision of the Kerala High Courtrelying upon the Universal Declaration of Human Rights, 1948 wasreferred to. Article 22 of the Universal Declaration of Human Rights,1948, on which the said decision is based, providing for social security

reads as under: -

45 ‘V.N. Shukla’s Constitution of India’, Eastern Book Company, Lucknow, 13th EditionH(2017), pp. 4-5.

“Everyone, as member of society, has the right to social securityand is entitled to realization, through national effort and internationalco-operation and in accordance with the organization andresources of each State, of the economic, social and cultural rightsindispensable for his dignity and the free development of hispersonality.”

63. As noticed hereinbefore, in Minerva Mills, this Court distinctlypointed out that the equality clause in the Constitution does not speak ofmere formal equality but embodies the concept of real and substantiveequality, which strikes at inequalities arising on account of vast socialand economic differentials; and that the dynamic principle of egalitarianismfurthers the concept of social and economic justice.

63.1 few other observations of this Court, though made indifferent contexts but having bearing on the question of economicjustice as part of overall socio-economic justice, could also be usefullyindicated.

63.1.1. In Ahmedabad Municipal Corporation v. Nawab KhanGulab Khan and Ors.: (1997) 11 SCC 121 this Court said: -

“25.…It is to be remembered that the Preamble is the arch of theConstitution which accords to every citizen of India socio-economicand political justice, liberty, equality of opportunity and of status,fraternity, dignity of person in an integrated Bharat. Thefundamental rights and the directive principles and the Preamblebeing trinity of the Constitution, the right to residence and to settlein any part of the country is assured to every citizen. In secularsocialist democratic republic of Bharat hierarchical caste structure,antagonism towards diverse religious belief and faith and dialecticaldifference would be smoothened and the people would beintegrated with dignity of person only when social and economicdemocracy is established under the rule of law. The differencedue to cast, sect or religion pose grave threat to affinity, equalityand fraternity. Social democracy means way of life with dignityof person as normal social intercourse with liberty, equality andfraternity. The economic democracy implicits in itself that theinequalities in income and inequalities in opportunities and statusshould be minimised and as far as possible marginalised… “

A63.1.2.In People’s Union for Democratic Rights and Ors.v. Union of India and Ors.: (1982) 3 SCC 235, this Courtobserved: -

“2…..Large numbers of men, women and children who constitutethe bulk of our population are today living sub-human existenceBin conditions of abject poverty; utter grinding poverty has brokentheir back and sapped their moral fibre…….The only solution formaking civil and political rights meaningful to these large sectionsof society would be to remake the material conditions andrestructure the social and economic order so that they may beable to realise the economic, social and cultural rights. There isCindeed close relationship between civil and political rights on theone hand and economic, social and cultural rights on the other andthis relationship is so obvious that the International Human RightsConference in Teheran called by the General Assembly in 1968declared in final proclamation:

“Since human rights and fundamental freedoms are indivisible,the full realisation of civil and political rights without theenjoyment of economic, social and cultural rights is impossible.”

Of course, the task of restructuring the social and economic orderso that the social and economic rights become meaningful realityEfor the poor and lowly sections of the community is one whichlegitimately belongs to the legislature and the executive…The Stateor public authority…should be…interested in ensuring basic humanrights, constitutional as well as legal, to those who are in sociallyand economically disadvantaged position…..”

64. Thus, in almost all references to real and substantive equality,Fthe concept of economic justice has acquired equal focus alongside theprinciples of social justice.

65. In giving effect to the rule of equality enshrined in Article 14,the Courts have also been guided by the jurisprudence evolved by theU.S. Supreme Court in the light of the amendments made to theirGConstitution, which were founded on economic considerations.[46] This is46 It is pertinent to quote what an American Judge of Seventh Circuit, Court of Appeals,said about amendments to the American Constitution: “The takings clause of the FifthAmendment also seems founded on economic considerations – and so indeed does theFourth Amendment (and not just the exclusionary rule that has been grafted onto it bythe courts)”- Richard A. Posner, ‘The Constitution as an Economic Document’, 56HGeorge Washington Law Review 4 (1987).

to highlight that the economic backwardness of citizens can also be thesole ground for providing reservation by affirmative action. Any civilizedjurisdiction differentiates between haves and have-nots, in several walksof life and more particularly, for the purpose of differential treatment byway of affirmative action.

66. Poverty, the disadvantageous condition due to want of financialresources, is phenomenon which is complex in origin as well as in itsmanifestation. The 2001 explanation of poverty by the United NationsCommittee on Economic, Social and Cultural Rights says: -

“Persons living in poverty are confronted by the most severeobstacles – physical, economic, cultural and social - to accessingtheir rights and entitlements. Consequently, they experience manyinterrelated and mutually reinforcing deprivations – includingdangerous work conditions, unsafe housing, lack of nutritious food,unequal access to justice, lack of political power and limited accessto health care – that prevents them from realising their rights andperpetuate their poverty. Persons experiencing extreme povertylive in vicious cycle of powerlessness, stigmatization,discrimination, exclusion and material deprivation, which allmutually reinforce one another.”[47]67. The above-quoted expositions and explanations wouldcomprehensively inform anyone that if an egalitarian socio-economicorder is the goal so as to make the social and economic rights meaningfulreality, which indeed is the goal of our Constitution, the deprivationsarising from economic disadvantages, including those of discriminationand exclusion, need to be addressed to by the State; and for that matter,every affirmative action has the sanction of our Constitution, as noticeablefrom the frame of Preamble as also the text and texture of the provisionscontained in Part III and Part IV.

Whether Economic Criteria as Sole Basis for AffirmativeAction Violates Basic Structure

68. The principal ground of assailing the amendment in questionin this batch of matters is that even when the State could take all therelevant measures to deal with poverty and disadvantages arising

47 United Nations General Assembly, ‘Final draft of the guiding principles on extremepoverty and human rights, submitted by the Special Rapporteur on extreme poverty andhuman rights, Magdalena Sepulveda Carmona’, A/HRC/21/39, 18[th] July 2012.

Atherefrom, so far as the affirmative action of reservation is concerned,the same is envisaged by the Constitution only for socially and educationallybackward class of citizens; and economic disadvantage alone had neverbeen in contemplation for this action of reservation. We may examinethe sustainability of this line of arguments.

B69. The expression ‘economically weaker sections of citizens’is not matter of mere semantics but is an expression of hard realities.Poverty is not merely state of stagnation but is point of regression.Of course, mass poverty cannot be eliminated within short period andit is question of progress along time path. The United Nations GeneralAssembly, by its Resolution dated 25.09.2015, set forth seventeenCSustainable Development Goals and the first of them is to ‘End povertyin all its forms everywhere’. The 2030 agenda for SustainableDevelopment by one hundred and ninety-three countries of the UnitedNations General Assembly, including India, brought institutionalised focusin measuring and addressing poverty in all its forms, as expounded underDthe aforesaid Goal 1. The impact of this was also reflected in the workof the World Bank which is the custodian of the International PovertyLine Statistics[48]. In this backdrop, the insertion of enabling provisions,within the framework of the Constitution of India, to remedy the evileffects of poverty by way of reservation, is primarily to be regarded asa part of the frontal efforts to eradicate poverty ‘in all its formsEeverywhere’. The only question is as to whether providing for economiccriteria as the sole basis for reservation is violation of the basic structureof the Constitution.

70. In Kesavananda, building Welfare State is held to be one ofthe main objectives of the Constitution. In the Welfare State, public powerFbecomes an instrumentality for the achievement of purposes beyond theminimum objectives of domestic order and national defence. It is notenough that the society be secured against internal disorder and/orexternal aggression; society can be thus secured and well-ordered but,could be lacking in real and substantive justice for all. Equally, providingGfor affirmative action in relation to one particular segment or class mayoperate constructively in the direction of meeting with and removing theinequalities faced by that segment or class but, if another segment ofsociety suffers from inequalities because of one particular dominatingfactor like that of poverty, the question arises as to whether the said

H48 National Multidimensional Poverty Index, Baseline report, NITI Aayog (2021).

segment could be denied of the State support by way of affirmativeaction of reservation only because of the fact that that segment isotherwise not suffering from other disadvantages. The answer couldonly be in the negative for, in the State’s efforts of ensuring all-inclusivesocio-economic justice, there cannot be competition of claims foraffirmative action based on disadvantages in the manner that onedisadvantaged section would seek denial of affirmative action for anotherdisadvantaged section.

71. With the foregoing preliminary comments, reference could bemade to the pertinent and instructive expositions of this Court in fewof the relevant cases cited by the respective parties in support of theirrespective contentions as regards the economic criteria being the solebasis for affirmative action, on its permissibility or impermissibility.

71.1. In M.R. Balaji, an order dated 31.07.1962 by the State ofMysore, reserving total of sixty-eight per cent. seats in engineeringand medical colleges and other technical institutions for various backwardclasses was challenged, being violative of Article 15(4) of the Constitution.In the given context, it was observed by this Court as under:

P.B. Gajendragadkar, J.

“That takes us to the question about the extent of the specialprovision which it would be competent to the State to make underArt. 15(4). Article 15(4) authorises the State to make any specialprovision for the advancement of the Backward Classes of citizensor for the Scheduled Castes and Scheduled Tribes. The learnedAdvocate-General contends that this Article must be read in thelight of Art. 46, and he argues that Art. 15(4) has deliberately andwisely placed no limitation on the State in respect of the extent ofspecial provision that it should make. Art. 46 which contains adirective principle, provides that the State shall promote with specialcare the educational and economic interests of the weaker sectionsof the people, and in particular, of the Scheduled Castes and theScheduled Tribes and shall protect them from social injustice andall forms of exploitation. There can be no doubt that the objectof making special provision for the advancement of thecastes or communities, there specified, is to carry out thedirective principle enshrined in Art. 46. It is obvious thatunless the educational and economic interests of the weakersections of the people are promoted quickly and liberally,

Athe ideal of establishing social and economic equality willnot be attained, and so, there can be no doubt that Art.15(4) authorises the State to take adequate steps to achievethe object which it has in view. No one can dispute theproposition that political freedom and even fundamentalrights can have very little meaning or significance for theBBackward Classes and the Scheduled Castes and ScheduledTribes unless the backwardness and inequality from whichthey suffer are immediately redressed...

C…. In our country where social and economic conditionsdiffer from State to State, it would be idle to expect absoluteuniformity of approach; but in taking executive action toimplement the policy of Art. 15(4). It is necessary for theStates to remember that the policy which is intended to beimplemented is the policy which has been declared by Art.D46 and the preamble of the Constitution. It is for theattainment of social and economic justice that Art. 15(4) authorisesthe making of special provisions for the advancement of thecommunities there contemplated even if such provisions may beinconsistant with the fundamental rights guranteed under Art. 15Eor 29(2). The context, therefore, requires that the executive actiontaken by the State must be based on an objective approach, freefrom all extraneous pressures. The said action is intended todo social and economic justice and must be taken in amanner that justice is and should be done.”

(emphasis supplied)

71.2. Similarly, in R. Chitralekha (supra), this Court upheld anorder of the Government that defined ‘backwardness’ without anyreference to caste, using other criteria such as occupation, income andother economic factors. The Court ruled that while caste may be relevantGto determine backwardness, the mere exclusion of caste does not impairthe classification if it satisfies other tests. The relevant observations ofthis Court read as under: -

K. Subba Rao, J.

“The Constitution of India promises Justice, social, economic andHpolitical; and equality of status and of opportunity, among others.

Under Art. 46, one of the Articles in Part IV headed “DirectivePrinciples of State Policy”, the State shall promote with specialcare the educational and economic interests of the weakersections of the people, and, in particular, of the Scheduled Castesand the Scheduled Tribes, and shall protect them from socialinjustice and all forms of exploitation….”

71.3. Furthermore, in Janki Prasad Parimoo and Ors. v. Stateof J&K and Ors.: (1973) 1 SCC 420, the teachers in the SecondaryHigh School of the State, who comprised large portion of KashmiriPandits, found that in spite of their seniority, promotions to the gazettedposts in the service were being made on communal basis and not inaccordance with the Jammu and Kashmir Civil Services (Classification,Control and Appeals) Rules, 1969. In this matter, this Court held thatmere poverty cannot be consideration for the test of backwardnessfor the purpose of enabling reservations by observing as follows: -

D.G. Palekar, J.

“24. It is not merely the educational backwardness or the socialbackwardness which makes class of citizens backward; theclass identified as class as above must be both educationallyand socially backward. In India social and educationalbackwardness is further associated with economicbackwordness and it is observed in Balaji’s case(supra) referred to above that backwardness, socially andeducationally, is ultimately and primarily due to proverty.But if proverty is the exclusive test, very large proportion of thepopulation in India would have to be regarded as socially andeducationally backward, and if reservations are made only on theground of economic considerations, an untenable situation mayarise even in sectors which are recognised as socially andeducationally advanced there are large pockets of poverty. In thiscountry except for small percentage of the population the peopleare generally poor — some being more poor, others less poor.Therefore, when social investigator tries to identify socially andeducationally backward classes, he may do it with confidencethat they are bound to be poor. His chief concern is, therefore,to determine whether the class or group is socially andeducationally backward. Though the two words ‘socially’and ‘educationally’ are used cumulatively for the purpose

Aof describing the backward class, one may find that if classas whole is educationally advanced itis generally alsosocially advanced because of the reformative effect ofeducation on that class. The words “advanced” and “backward”are only relative terms — there being several layers or strata ofclasses, hovering between “advanced” and “backward”, and theBdifficult task is which class can be recognised out of these severallayers as been socially and educationally backward.”

71.4. In N.M. Thomas, provisions of the Kerala State andSubordinate Services Rules, 1958 were in question, where Rule 13Arequired every employee, to be promoted in subordinate services, toCclear test within two years of promotion, but it gave SC/ST candidatesan extension of two more years. Later, Rule 13AA was added that enabledthe State Government to grant more time to SC/ST candidates to passthe test for promotional posts apart from the initial four years. The mainissue was as to whether the said Rule 13-AA was offending ArticleD16(1) and 16(2) of the Constitution. In this regard, the followingobservations of this Court become relevant with emphasis on economiccriteria: -

A.N. Ray, C.J.

“44. Our Constitution aims at equality of status and opportunityEfor all citizens including those who are socially, economically andeducationally backward. The claims of members of backwardclasses require adequate representation in legislative and executivebodies. If members of scheduled castes and tribes, who are saidby this Court to be backward classes, can maintain minimumFnecessary requirement of administrative efficiency, not onlyrepresentation but also preference may be given to them to enforceequality and to eliminate inequality. Article 15(4) and 16(4) bringout the position of backward classes to merit equality. Specialprovisions are made for the advancement of backward classesand reservations of appointments and posts for them to secureGadequate representation. These provisions will bring out the contentof equality guaranteed by Articles 14, 15(1) and 16(1). The basicconcept equality is equality of opportunity for appointment.Preferential treatment for members of backward classeswith due regard to administrative efficiency alone can meanHequality of opportunity for all citizens. Equality under Article

16 could not have different content from equality underArticle 14. Equality of opportunity for unequals can onlymean aggravation of inequality. Equality of opportunityadmits discrimination with reason and prohibitsdiscrimination without reason. Discrimination with reasonsmeans rational classification for differential treatment havingnexus to the constitutionally permissible object.Preferential representation for the backward classes inservices with due regard to administrative efficiency ispermissible object and backward classes are rationalclassification recognised by our Constitution. Therefore,differential treatment in standards of selection are withinthe concept of equality.

K.K. Mathew, J.

64. It would follow that if we want to give equality ofopportunity for employment to the members of thescheduled castes and scheduled tribes, we will have to takenote of their social, educational and economic environment.Not only is the directive principle embodied in Article 46binding on the law-maker as ordinarily understood but itshould equally inform and illuminate the approach of theCourt when it makes decision as the Court also is ‘State’within the meaning of Article 12 and makes law even though“interstitially from the molar to the molecular”. I haveexplained at some length the reason why Court is ‘State’ underArticle 12 in my judgment in His Holiness Kesavananda BharatiSripadagalavaru v. State of Kerala.

67. Today, the political theory which acknowledges the obligationof Government under Part IV of the Constitution to provide jobs,medical care, old age pension, etc., extends to human rights andimposes an affirmative obligation to promote equality and liberty.The force of the idea of State with obligation to help the weakersections of its members seems to have increasing influence inconstitutional law. The idea finds expression in number ofcases in America involving social discrimination and alsoin the decisions requiring the State to offset the effects ofpoverty by providing counsel, transcript of appeal, expert

witnesses, etc. Today, the sense that Government hasaffirmative responsibility for elimination of inequalities,social, economic or otherwise, is one of the dominant forcesin constitutional law. While special concessions for theunderprivileged have been easily permitted, they have nottraditionally been required. Decisions in the areas of criminalprocedure, voting rights and education in America suggest thatthe traditional approach may not be completely adequate. In theseareas, the inquiry whether equality has been achieved no longerends with numerical equality; rather the equality clause has beenheld to require resort to standard of proportional equality whichrequires the State, in framing legislation, to take into account theprivate inequalities of wealth, of education and other circumstances.

78. I agree that Article 16(4) is capable of being interpretedas an exception to Article 16(1) if the equality of opportunityvisualized in Article 16(1) is sterile one, geared to theconcept of numerical equality which takes no account ofthe social, economic, educational background of themembers of scheduled castes and scheduled tribes. Ifequality of opportunity guaranteed under Article 16(1)means effective material equality, then Article 16(4) is notan exception to Article 16(1). It is only an emphatic way ofputting the extent to which equality of opportunity could be carriedviz., even upto the point of making reservation.

M.H. Beg, J.

93. When citizens are already employed in particular grade, asgovernment servants, considerations relating to the sources fromwhich they are drawn lose much of their importance. As publicservants of that grade they could, quite reasonably and logically,be said to belong to one class, at least for purposes of promotionGin public service for which there ought to be real “equality ofopportunity”, if we are to avoid heart burning or sense of injusticeor frustration in this class. Neither as members of this singleclass nor for purposes of the equality of opportunity whichis to be afforded to this class does the fact that some ofthem are also members of an economically and sociallyHbackward class continue to be material, or, strictly speaking,

even relevant. Their entry, into the same relevant class asothers must be deemed to indicate that they no longer sufferfrom the handicaps of backward class. For purposes ofgovernment service the source from which they are drawn shouldcease to matter. As government servants they would, strictlyspeaking, form only one class for purposes of promotion.

94. ….The specified and express mode of realization of theseobjects contained in Article 16(4), must exclude the possibility ofother methods which could be implied and read into Article 16(1)for securing them in this field, one could think of so many otherlegally permissible and possibly better, or, at least more direct,methods of removing socio-economic inequalities byappropriate legislative action in other fields left open andunoccupied for purposes of discrimination in favour of thebackward.

95. ….Article 16(4) was designed to reconcile the conflictingpulls of Article 16(1), representing the dynamics of justice,conceived of as equality in conditions under whichcandidates actually compete for posts in governmentservice, and of Articles 46 and 335, embodying the dutiesof the State to promote the interests of the economically,educationally, and socially backward so as to release themfrom the clutches of social injustice. These encroachmentson the field of Article 16(1) can only be permitted to theextent they are warranted by Article 16(4). To read broaderconcepts of social justice and equality into Article 16(1)itself may stultify this provision itself and make Article 16(4)otiose.

V.R. Krishna Iyer, J.

120. The domination of class generates, after long nightof sleep or stupor of the dominated, an angry awakeningand protestant resistance and this conflict between thesis,i.e. the status quo, and antithesis, i.e., the hunger for happyequality, propels new forces of synthesis, i.e., an equitableconstitutional order or just society. Our founding fathers,possessed of spiritual insight and influenced by thematerialist interpretation of history, forestalled such socialpressures and pre-empted such economic upsurges and

DEF

gave us trinity of commitments — justice: social,economic and political. The ‘equality articles’ are part of thisscheme. My proposition is, given two alternative understandingsof the relevant sub-articles [Article 16(1) and (2)], the Court mustso interpret the language as to remove that ugly ‘inferiority’complex which has done genetic damage to Indian polity andthereby suppress the malady and advance the remedy, informedby sociology and social anthropology. My touchstone is thatfunctional democracy postulates participation by all sections ofthe people and fair representation in administration is an index ofsuch participation.

126. … The Directive Principles of State Policy, fundamentalin the governance of the country, enjoin on the State thepromotion

with special care the educational and economic interestsof the weaker sections of the people, and, in particular,of the scheduled castes and the scheduled tribes, ... andprotect them from social injustice.

To neglect this obligation is to play truant with Article 46.Undoubtedly, economic interests of group — as also socialjustice to it — are tied up with its place in the servicesunder the State. Our history, unlike that of some other countries,has found zealous pursuit of government jobs as mark of sharein State power and economic position. Moreover, the biggest —and expanding, with considerable State undertakings, — employeris Government, Central and State, so much so appointments in thepublic services matter increasingly in the prosperity of backwardsegments. The scheduled castes and scheduled tribes haveearned special mention in Article 46 and other ‘weakersections’, in this context, means not every ‘backward class’but those dismally depressed categories comparableeconomically and educationally to scheduled castes andscheduled tribes. To widen the vent is to vitiate the equaltreatment which belongs to all citizens, many of whom arebelow the poverty line. Realism reveals that politicallypowerful castes may try to break into equality, using themasterkey of backwardness but, leaving aside Article 16(4),

the ramparts of Article 16(1) and (2) will resist such obliqueinfiltration.

S. Murtaza Fazal Ali, J.

166. Article 46 of the Constitution runs thus:

The State shall promote with special care the educational andeconomic 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 ofexploitation.

Properly analysed this article contains mandate on theState to take special care for the educational and economicinterests of the weaker sections of the people and asillustrations of the persons who constitute the weakersections the provision expressly mentions the scheduledcastes and the scheduled tribes.”

(emphasis supplied)

71.5. In M/s Shantistar Builders v. Narayan K. Totame andOrs.: (1990) 1 SCC 520, the Government of Maharashtra exemptedcertain excess land from the provisions of the Urban Land (Ceiling andRegulation) Act, 1976 for the purpose of constructing dwelling housesunder scheme for the weaker sections of the society on the conditionsspecified in the order. In the given context, this Court observed asfollows: -

Ranganath Misra, J.

“12. Members of the Scheduled Castes and ScheduledTribes have ordinarily been accepted as belonging to theweaker sections. Attempt to bring in the test of economicmeans has often been tried but no guideline has beenevolved. Undoubtedly, apart from the members of theScheduled Castes and Scheduled Tribes, there would bemillions of other citizens who would also belong to theweaker sections. The Constitution-makers intended allcitizens of India belonging to the weaker sections to bebenefited when Article 46 was incorporated in theConstitution. Parliament in adopting the same language in Section21 of the Act also intended people of all weaker sections to have

the advantage. It is, therefore, appropriate that the CentralGovernment should come forward with an appropriate guidelineto indicate who would be included within weaker sections of thesociety.”

(emphasis supplied)

71.6. In Indra Sawhney, the following observations were madein regard to the myriad features of backwardness including the economicbackwardness: -

S. Ratnavael Pandian, J.

“44. The word ‘backward’ is very wide bringing within itsfold the social backwardness, educational backwardness,economic backwardness, political backwardness and evenphysical backwardness.

D116. The composition and terms of reference of the SecondBackward Classes Commission show that the Commissionwas appointed to investigate the conditions of socially andeducationally backward classes within the territory of Indiabut not the socially, economically and educationallybackward classes. The earlier OM issued on August 13, 1990Ereads that with view to providing certain weightage to sociallyand educationally backward classes in the services of the Unionand their Public Undertakings, as recommended by theCommission, the orders are issued in the terms mentioned therein.The said OM also explains that “the SEBC would comprise in theFfirst phase the castes and communities which are common toboth the lists, in the report of the Commission and the StateGovernments’ list”. In addition it is said that list of such castes/communities is being issued separately. The subsequent amendedOM dated September 25, 1991 states that in order to enable the‘poorer sections’ of the SEBCs to receive the benefits ofGreservation on preferential basis and to provide reservation forother economically backward sections of the people not coveredby any of the existing schemes of reservation, the Governmenthave decided to amend the earlier Memorandum. Thus thisamended OM firstly speaks of the ‘poorer sections’ of theHSEBCs and secondly about the economically backwardsections of the people not covered by any of the existingschemes of reservation. However, both the OMs whilereferring to the SEBCs, do not include the ‘economicbackwardness’ of that class along with ‘social andeducational backwardness’. By the amended OM, theGovernment while providing reservation for the backwardsections of the people not covered by the existing schemesof reservation meant for SEBCs, classifies that section ofthe people as ‘economically backward’, that is to say thatthose backward sections of the people are to be identifiedonly by their economic backwardness and not by the test ofsocial and educational backwardness, evidently for thereason that they are all socially and educationally welladvanced.

117. Coming to Article 16(4) the words ‘backward class’ are usedwith wider connotation and without any qualification orexplanation. Therefore, it must be construed in the widerperspective. Though the OMs speak of social and educationalbackwardness of class, the primary consideration inidentifying class and in ascertaining the inadequaterepresentation of that class in the services under the Stateunder Article 16(4) is the social backwardness which resultsin educational backwardness, both of which culminate ineconomic backwardness. The degree of importance to beattached to social backwardness is much more than theimportance to be given to the educational backwardnessand the economic backwardness, because in identifying andclassifying section of people as backward class withinthe meaning of Article 16(4)for the reservation ofappointments or posts, the ‘social backwardness’ plays apredominant role.”

Sawant, J.

482. Economic backwardness is the bane of the majority ofthe people in this country. There are poor sections in allthe castes and communities. Poverty runs across allbarriers. The nature and degree of economic backwardnessand its causes and effects, however, vary from section tosection of the populace. Even the poor among the higher

Acastes are socially as superior to the lower castes as therich among the higher castes. Their economicbackwardness is not on account of social backwardness.The educational backwardness of some individuals amongthem may be on account of their poverty in which caseeconomic props alone may enable them to gain an equalBcapacity to compete with others. On the other hand, thosewho are socially backward such as the lower castes oroccupational groups, are also educationally backward onaccount of their social backwardness, their economicbackwardness being the consequence of both their socialCand educational backwardness. Their educationalbackwardness is not on account of their economicbackwardness alone. It is mainly on account of their socialbackwardness. Hence mere economic aid will not enablethem to compete with others and particularly with thosewho are socially advanced. Their social backwardness isDthe cause and not the consequence either of their economicor educational backwardness. It is necessary to bear thisvital distinction in mind to understand the true import ofthe expression “backward class of citizens” in Article 16(4).If it is mere educational backwardness or mere economicEbackwardness that was intended to be specially catered to,there was no need to make provision for reservation inemployment in the services under the State. That could betaken care of under Articles 15(4), 38 and 46. The provisionfor reservation in appointments under Article 16(4) is notaimed at economic upliftment or alleviation of poverty.FArticle 16(4) is specifically designed to give due share inthe State power to those who have remained out of it mainlyon account of their social and, therefore, educational andeconomic backwardness. The backwardness that iscontemplated by Article 16(4) is the backwardness which is bothGthe cause and the consequence of non-representation in theadministration of the country. All other kinds of backwardnessare irrelevant for the purpose of the said article. Further, thebackwardness has to be backwardness of the whole class andnot of some individuals belonging to the class, which individualsmay be economically or educationally backward, but the class to

which they belong may be socially forward and adequately oreven more than adequately represented in the services. Since thereservation under Article 16(4) is not for the individuals but to aclass which must be both backward and inadequately representedin the services, such individuals would not be beneficiaries ofreservation under Article 16(4). It is further difficult to come acrossa “class” (not individuals) which is socially and educationallyadvanced but is economically backward or which is not adequatelyrepresented in the services of the State on account of its economicbackwardness. Hence, mere economic or mere educationalbackwardness which is not the result of social backwardness,cannot be criterion of backwardness for Article 16(4).

492. While discussing Question No. I, it has been pointedout that so far as “backward classes” are concerned, clause(4) of Article 16 is exhaustive of reservations meant forthem. It has further been pointed out under Question No.II that the only “backward class” for which reservationsare provided under the said clause is the socially backwardclass whose educational and economic backwardness is onaccount of the social backwardness. class which is notsocially and educationally backward though economicallyor even educationally backward is not backward class forthe purposes of the said clause. What follows from these twoconclusions is that reservations in posts cannot be made in favourof any other class under the said clause. Further, the purpose ofkeeping reservations even in favour of the socially andeducationally backward classes under clause (4), is not to alleviatepoverty but to give it an adequate share in power.

B.P. Jeevan Reddy, J.

799. It follows from the discussion under Question No. 3that backward class cannot be determined only andexclusively with reference to economic criterion. It may bea consideration or basis along with and in addition to socialbackwardness, but it can never be the sole criterion. Thisis the view uniformly taken by this Court and we respectfullyagree with the same.*********

843. While dealing with Question No. 3(d), we held thatexclusion of ‘creamy layer’ must be on the basis of socialadvancement (such advancement as renders them misfitsin the backward classes) and not on the basis of mereeconomic criteria. At the same time, we held that incomeor the extent of property held by person can be taken asa measure of social advancement and on that basis ‘creamylayer’ of given caste/community/occupational group canbe excluded to arrive at true backward class. UnderQuestion No. 5, we held that it is not impermissible for the Stateto categorise backward classes into backward and more backwardon the basis of their relative social backwardness. We had alsogiven the illustration of two occupational groups, viz., goldsmithsand vaddes (traditional stone-cutters in Andhra Pradesh); bothare included within ‘other backward classes’. If these two groupsare lumped together and common reservation is made, thegoldsmiths would walk away with all the vacancies leaving nonefor vaddes. From the said point of view, it was observed, suchclassification among the designated backwards classes may indeedserve to help the more backward among them to get their due.But the question now is whether clause (i) of the OfficeMemorandum dated September 25, 1991 is sustainable in law.The said clause provides for preference in favour of “poorersections” of the backward classes over other members of thebackward classes. On first impression, it may appear thatbackward classes are classified into two sub-groups on the basisof economic criteria alone and preference provided in favour ofthe poorer sections of the backward classes. In our consideredopinion, however, such an interpretation would not be consistentwith context in which the said expression is used and the spiritunderlying the clause nor would it further the objective it seeks toachieve. The object of the clause is to provide preference infavour of more backward among the “socially and educationallybackward classes”. In other words, the expression ‘poorersections’ was meant to refer to those who are socially andeconomically more backward. The use of the word ‘poorer’, inthe context, is meant only as measure of social backwardness.(Of course, the Government is yet to notify which classes amongthe designated backward classes are more socially backward,i.e., ‘poorer sections’). Understood in this sense, the saidclassification is not and cannot be termed as invalid eitherconstitutionally speaking or in law. The next question that arisesis: what is the meaning and context of the expression ‘preference’?Having regard to the fact the backward classes are sought to bedivided into two sub-categories, viz., backward and morebackward, the expression ‘preference’ must be read down to meanan equitable apportionment of the vacancies reserved (forbackward classes) among them. The object evidently could nothave been to deprive the ‘backward’ altogether from benefit ofreservation, which could be the result if word ‘preference’ is readliterally — if the ‘more backward’ take away all the availablevacancies/posts reserved for OBCs, none would remain for‘backward’ among the OBCs. It is for this reason that we areinclined to read down the expression to mean an equitableapportionment. This, in our opinion, is the proper and reasonableway of understanding the expression ‘preference’ in the contextin which it occurs. By giving the above interpretation, we wouldbe effectuating the underlying purpose and the true intention behindthe clause.”

(emphasis supplied)

71.7. The relevant observations in M. Nagaraj would read asunder: -

S.H. Kapadia, J.

“120. At this stage, one aspect needs to be mentioned. Socialjustice is concerned with the distribution of benefits and burdens.The basis of distribution is the area of conflict between rights,needs and means. These three criteria can be put under twoconcepts of equality, namely, “formal equality” and “proportionalequality”. Formal equality means that law treats everyone equal.Concept of egalitarian equality is the concept of proportionalequality and it expects the States to take affirmative action infavour of disadvantaged sections of society within the frameworkof democratic polity. In Indra Sawhney all the Judges exceptPandian, J. held that the “means test” should be adopted to excludethe creamy layer from the protected group earmarked forreservation. In Indra Sawhney this Court has, therefore,accepted caste as determinant of backwardness and yet

Ait has struck balance with the principle of secularism whichis the basic feature of the Constitution by bringing in theconcept of creamy layer. Views have often been expressedin this Court that caste should not be the determinant ofbackwardness and that the economic criteria alone shouldbe the determinant of backwardness. As stated above, weBare bound by the decision in Indra Sawhney. The question asto the “determinant” of backwardness cannot be gone into by usin view of the binding decision. In addition to the aboverequirements this Court in Indra Sawhney has evolved numericalbenchmarks like ceiling limit of 50% based on post-specific rosterCcoupled with the concept of replacement to provide immunityagainst the charge of discrimination.”

(emphasis supplied)

72. On contextual reading, it could reasonably be culled out thatthe observations, wherever occurring in the decisions of this Court, toDthe effect that reservation cannot be availed only on economic criteria,were to convey the principle that to avail the benefit of this affirmativeaction under Articles 15(4) and/or 15(5) and/or 16(4), as the case maybe, the class concerned ought to be carrying some other disadvantagetoo and not the economic disadvantage alone. The said decisions cannotEbe read to mean that if any class or section other than those covered byArticles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantageonly due to economic conditions, the State can never take affirmativeaction qua that class or section.73. In view of the principles discernible from the decisions aforesaidFas also the background aspects, including the avowed objective of socio-economic justice in the Constitution, the observations of this Court in thepast decisions that reservations cannot be claimed only on the economiccriteria, apply only to class or classes covered by or seeking coverageunder Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court hasnot put blanket ban on providing reservation for other sections who areGdisadvantaged due to economic conditions.

74. On behalf of the petitioners, much emphasis has been laid onthe phraseology of Article 46 of the Constitution of India; and it has beensuggested that the measures contemplated therein are supposed to betaken in favour of SCs/STs and such other weaker sections who areH

“similarly circumstanced to SCs/STs”. The submission has been thatthis provision cannot be invoked for reservation in favour of anyeconomically weaker section that is not carrying other attributes whichcould place it at par with, or akin to, SCs/STs. This line of arguments ispremised on the passages occurring in the Statement of Objects andReasons for introduction of the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 in the Parliament which led to theConstitution (One Hundred and Third Amendment) Act, 2019 but, isbased on too narrow and unacceptably restricted reading of the text ofArticle 46 while totally missing on its texture; and suffers from at leastthree major shortcomings.

74.1. The first and the apparent shortcoming is that this line ofarguments not only goes off at tangent but also misses out the importantprinciple of “Distributive Justice”, which is bedrock of the provisionslike Article 46 as also Articles 38 and 39 of the Constitution of India. Theprinciple of distributive justice has been explained and put into effect bythis Court in the case of Lingappa Pochanna Appelwar v. State ofMaharashtra and Anr.: (1985) 1 SCC 479 thus: -

“16. …… Legislators, Judges and administrators are now familiarwith the concept of distributive justice. Our Constitution permitsand even directs the State to administer what may be termed‘distributive justice’. The concept of distributive justice inthe sphere of law-making connotes, inter alia, the removalof economic inequalities and rectifying the injustice resultingfrom dealings or transactions between unequals in society.Law should be used as an instrument of distributive justice toachieve fair division of wealth among the members of societybased upon the principle: “From each according to his capacity, toeach according to his needs”. Distributive justice comprehendsmore than achieving lessening of inequalities by differentialtaxation, giving debt relief or distribution of property owned byone to many who have none by imposing ceiling on holdings, bothagricultural and urban, or by direct regulation of contractualtransactions by forbidding certain transactions and, perhaps, byrequiring others. It also means that those who have been deprivedof their properties by unconscionable bargains should be restoredtheir property. All such laws may take the form of forcedredistribution of wealth as means of achieving fair division of

158SUPREME COURT REPORTS

[2022] 14 S.C.R.

Amaterial resources among the members of society or there maybe legislative control of unfair agreements.”

(emphasis supplied)

74.1.1. Of course, the aforesaid decision was rendered in thecontext of the Maharashtra Restoration of Lands to Scheduled TribesBAct, 1974, which provides for annulment of transfer of agricultural landfrom tribals to non-tribals and restoration of possession to tribals but, theprinciple stated therein, being related to scheme of the Constitution, makesit clear that the mandate of the Constitution to the State is to administerdistributive justice; and in the law-making process, the concept ofCdistributive justice connotes, inter alia, the removal of economicinequalities. There could be different methods of distributive justice; andit comprehends more than merely achieving the lessening of inequalitiesby tax or debt relief measures or by regulation of contractual transactionsor redistribution of wealth, etc. This discussion need not be expanded onall other means of distributive justice but, it is more than evident that theDphilosophy of distributive justice is of wide amplitude which, inter alia,reaches to the requirements of removing economic inequalities; and then,it is not confined to one class or few classes of the disadvantagedcitizens. In other words, the wide spectrum of distributive justice mandatespromotion of educational and economic interests of all the weakerEsections, in minimizing the inequalities in income as also providing adequatemeans of livelihood to the citizens. In this commitment, leaving one classof citizens to struggle because of inequalities in income and want ofadequate means of livelihood may not serve the ultimate goal of securingall-inclusive socio-economic justice.

F74.1.2. In fact, the argument that the State may adopt any povertyalleviation measure but cannot provide reservation for EWS by way ofaffirmative action proceeds on the assumption that the affirmative actionof reservation in our constitutional scheme is itself reserved only forSEBCs/OBCs/SCs/STs in view of the existing text of Articles 15(4),15(5) and 16(4) of the Constitution. Such an assumption is neither validGnor compatible with our constitutional scheme. This line of argument iswanting on the fundamental constitutional objectives, with the promiseof securing ‘JUSTICE, social, economic and political’ for ‘all’ thecitizens; and to promote FRATERNITY among them ‘all’. Thus viewed,the challenge to the amendment in question fails on the principle ofHdistributive justice.

74.2. Secondly, this argument concerning Article 46 crumbles downon the basic rules of interpretation of the text of constitutional provision.

74.2.1. It remains trite that Constitution, unlike other enactments,is intended to be an enduring instrument. The great generalities of theConstitution have content and significance that vary from age toage.[49] The Constitution is recognised as living organic thing to berequired to meet the current needs and requirements. Ergo, the provisionsof the Constitution cannot be put in straitjacket. This Court, in the caseof Association of Unified Tele Services Providers and Ors. v. Unionof India and Ors.: (2014) 6 SCC 110, with reference to previousdecision in the case of People’s Union for Civil Liberties (PUCL) andAnr. v. Union of India and Anr.: (2003) 4 SCC 399 has pithilyexplained the principles in the following terms (of course, in the contextof Article 149):-“43. The Constitution, as it is often said “is living organic thingand must be applied to meet the current needs and requirements”.The Constitution, therefore, is not bound to be understoodor accepted to the original understanding of theconstitutional economics. Parliamentary Debates, referred toby service providers may not be the sole criteria to be adopted bya court while examining the meaning and content of Article 149,since its content and significance has to vary from age to age.Fundamental rights enunciated in the Constitution itself,as held by this Court in People’s Union For CivilLiberties v. Union of India, have no fixed content, most ofthem are empty vessels into which each generation has topour its content in the light of its experience.”

(emphasis supplied)

74.2.2. Therefore, it cannot be said that the eclectic expression“other weaker sections” is not to be given widest possible meaning orthat this expression refers only to those weaker sections who are similarlycircumstanced to SCs and STs.

74.2.3. Though, the text and the order of expressions used in thebody of Article 46 have been repeatedly recounted on behalf of thepetitioners to emphasise on the arguments based on ejusdem generis

49 Benjamin N. Cardozo, ‘The Nature of the Judicial Process’, Yale University Press(1921), p. 17.

Aprinciple of interpretation but, as aforesaid, that principle does not fit inthe interpretation of an organic thing like the Constitution. This apart,when traversing through the principles of interpretation, it could also benoticed that in case of any doubt, the heading or sub-heading of provisioncould also be referred to as an internal aid in construing the provision,while not cutting down the wide application of clear words used in theBprovision.[50] What is interesting to notice is that in the heading of Article46, the chronology of the description of target groups for promotion ofeducational and economic interests is stated in reverse order than thecontents of the provision. The heading signifies ‘Promotion ofeducational and economic interests of Scheduled Castes, ScheduledCTribes and other weaker sections’ whereas the contents of the mainprovision are framed with the sentence ‘interest of the weaker sectionsof the people, and, in particular, of the Scheduled Castes and theScheduled Tribes’. simple reading of the heading together with thecontents would make it clear that the broader expression “other weakersections” in Article 46 is disjointed from the particular weaker sectionsD(Schedule Castes and Scheduled Tribe); and is not confined to only thosesections who are similarly circumstanced to SCs and STs.

74.3. Apart from the aforesaid two major shortcomings in theargument suggesting restricted operation of the measures contemplatedby Article 46, the other shortcoming rather knocks the bottom out of thisEargument when the same is examined in the context of constitutionalamendment. The fundamental flaw in this argument is that even if theStatement of Objects and Reasons for the amendment in question refersto Article 46, such reference is only to one part of DPSP to indicatethe constitutional objective which is sought to be addressed to, or fulfilled.

FHowever, the amendment in question could be correlated with any otherprovision of the Constitution, including the Preamble as well as Articles38 and 39. Moreover, it is not the requirement of our constitutional schemethat an amendment to the Constitution has to be based on some existingprovision in DPSP. In fact, an amendment to the Constitution (of course,

within the bounds of basic structure) could be made even without anyGcorresponding provision in DPSP.

75. In the aforesaid view of matter, there appears no reason toanalyse another unacceptable line of arguments adopted by the petitionersthat the amendment in question provides for compensatory discrimination

50 Vide M/s Frick India Ltd. v. Union of India and Ors. : (1990) 1 SCC 400.H

in favour of the so-called forward class/caste. Suffice it to observe thatthe amendment in question is essentially related to the requirements ofthose economically weaker sections who have hitherto not been giventhe benefit of such an affirmative action (particularly of reservation),which was accorded to the other class/classes of citizens namely, theSEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWSreservation from the standpoint of backward class versus forward classis not in accord with the very permissibility of compensatory discriminationtowards the goal of real and substantive justice for all.

76. There has been another ground of challenge that if at allreservation on economic criteria is to be given, keeping the SEBCs/OBCs/SCs/STs out of this affirmative action is directly at conflict withthe constitutional scheme and hits the Equality Code. This line of argumentsshall be dealt with in the next segment. Enough to say for the presentpurpose that the challenge to the amendment in question on the groundthat though the State could take all the relevant measures to deal withpoverty and the disadvantages arising therefrom but, the affirmativeaction of reservation is envisaged by the Constitution only for sociallyand educationally backward class of citizens; and economic disadvantagealone had never been in contemplation for this action of reservation, isrequired to be rejected. In any case, any legitimate effort of the Statetowards all-inclusive socio-economic justice, by way of affirmative actionof reservation in support of economically weaker sections of citizens,who had otherwise not been given the benefit of this affirmative action,cannot be lightly interfered with by the Court.

EWS Reservation Not Availing to Certain Classes: WhetherViolates Basic Structure

77. The discussion aforesaid takes us to the next major area ofdiscord in these matters where the aggrieved petitioners state that theexclusion of SEBCs/OBCs/SCs/STs from the benefit of EWS reservationviolates the basic framework of the Constitution. While entering intothis point for determination, worthwhile it would be to recapture thesalient features of the provisions introduced by the 103[rd] Amendment.

77.1. As noticed, the amendment in question introduces clause(6) to both the Articles, i.e., 15 and 16. Clause (6) of Article 15 startswith non obstante preposition, making it operative notwithstandinganything otherwise contained in other clauses of Article 15 or Article19(1)(g) or Article 29(2). Sub-clause (a) of clause (6) of Article 15 enables

Athe State to make any special provision for the advancement of anyeconomically weaker sections of citizens and sub-clause (b) thereofprovides for making maximum of ten per cent. reservation in the matterof admission to educational institutions, public or private, barring minorityeducational institutions. Similarly, clause (6) of Article 16 also starts witha non obstante preposition, making it operative notwithstanding anythingBotherwise contained in other clauses of that Article and enables the Stateto make any provision for the reservation of appointments or posts infavour of any economically weaker sections of citizens to maximumof ten per cent. As per the Explanation to clause (6) of Article 15,“economically weaker sections” for the purpose of both these ArticlesC15 and 16 shall be such as to be notified by the State from time to timeon the basis of family income and other indicators of economicdisadvantage. However, when both these clauses exclude from theirambit those classes who are already covered under Articles 15(4), 15(5)and 16(4), that is to say, the benefits under these amended provisions do

not avail to Scheduled Castes, Scheduled Tribes, and Other BackwardDClasses (Non-creamy layer), the ground of challenge is that keeping thesocially and educationally backward classes out of Articles 15(6) and16(6) is directly at conflict with the constitutional scheme and is ofinexplicably hostile discrimination. Rather, according to the petitioners,the classes covered by Articles 15(4), 15(5) and 16(4) are comprising ofEthe poorest of the poor and hence, keeping them out of the benefit ofEWS reservation is an exercise conceptionally at conflict with theconstitutional norms and principles.

77.2. At the first blush, the arguments made in this regard appearto be having some substance because it cannot be denied that the classesFcovered by Articles 15(4), 15(5) and 16(4) would also be comprising ofpoor persons within. However, little pause and closer look makes itclear that the grievance of the petitioners because of this exclusionremains entirely untenable and the challenge to the amendment in questionremains wholly unsustainable. As noticed infra, there is definite logicin this exclusion; rather, this exclusion is inevitable for the true operationGand effect of the scheme of EWS reservation.

78. It is true that in identifying the classes of persons for thepurpose of Articles 15(4), 15(5) and 16(4) of the Constitution i.e., OtherBackward Classes (Non-creamy layer), Scheduled Castes and ScheduledTribes, the social and educational backwardness predominantly figuresH

but then, it needs no great deal of research to demonstrate that thepoverty too is thickly associated with these factors.

78.1. In fact, poverty was recognised as the primary source ofsocial and educational backwardness in Vasanth Kumar, but in thefollowing words: -

“80.Class poverty, not individual poverty, is therefore theprimary test. Other ancillary tests are the way of life, the standardof living, the place in the social hierarchy, the habits and customs,etc. etc. Despite individual exceptions, it may be possibleand easy to identify social backwardness with reference tocaste, with reference to residence, with reference tooccupation or some other dominant feature. Notwithstandingour antipathy to caste and sub-regionalism, these are factsof life which cannot be wished away. If they reflect povertywhich is the primary source of social and educationalbackwardness, they must be recognised for what they arealong with other less primary sources. There is and there canbe nothing wrong in recognising poverty wherever it is reflectedas an identifiable group phenomena whether you see it as castegroup, sub-regional group, or occupational group or some otherclass. Once the relevant factors are taken into consideration, howand where to draw the line is question for each State to considersince the economic and social conditions differ from area to area.Once the relevant conditions are taken into consideration and thebackwardness of class of people is determined, it will not be forthe Court to interfere in the matter. But, lest there be anymisunderstanding, judicial review will not stand excluded.”

(emphasis supplied)

78.2. Though, the principal factor in the observations aforesaid isclass poverty which is indicated to be different than individual povertybut, it cannot be denied that poverty is material factor taken intoconsideration along with caste, residence, occupation or other dominantfeature while recognising any particular class/caste’s entitlement to theaffirmative action by way of reservation enabled in terms of Articles15(4), 15(5) and 16(4). In that scenario, if the Parliament has consideredit proper not to extend those classes covered by the existing clauses ofArticles 15(4), 15(5) and 16(4) another benefit in terms of affirmativeaction of reservation carved out for other economically weaker sections,

Athere is no reason to question this judgment of the Parliament. Obviously,for the reason that those classes are already provided with affirmativeaction in terms of reservation, in the wisdom of the Parliament, therewas no need to extend them or any of their constituents yet anotherbenefit in the affirmative action of reservation carved out for othereconomically weaker sections.B

78.3. Moreover, the benefit of reservation avails to the excludedclasses/castes under the existing clauses of Articles 15 and 16; and bythe amendment in question, the quota earmarked for them is not depletedin any manner.C79. The amendment in question makes reasonable classificationbetween “economically weaker sections” and other weaker sections,who are already mentioned in Articles 15(4), 15(5) and 16(4) of theConstitution and are entitled to avail the benefits of reservation thereunder.The moment there is vertical reservation, exclusion is the vital requisiteto provide benefit to the target group. In fact, the affirmative action ofDreservation for particular target group, to achieve its desired results,has to be carved out by exclusion of others. The same principle hasbeen applied for the affirmative action of reservation qua the groups ofSEBCs, OBCs, SCs, and STs. Each of them takes reservation in theirvertical column in exclusion of others. But for this exclusion, the purportedEaffirmative action for particular class or group would be congenitallydeformative and shall fail at its inception. Therefore, the claim of anyparticular class or section against its exclusion from the affirmative actionof reservation in favour of EWS has to be rejected.80. In fact, it follows as necessary corollary to the discussion inFthe preceding segments of this judgment that looking to the purpose andthe objective of the present affirmative action, that is, reservation for thebenefit of economically weaker sections, the other classes, who arealready availing the benefit of affirmative action of reservation by virtueof Articles 15(4), 15(5) and 16(4), are required to be kept out of thebenefits of EWS reservation in Articles 15(6) and 16(6). It could easilyGbe seen that but for this exclusion, the entire balance of the generalprinciples of equality and compensatory discrimination would be disturbed,with extra or excessive advantage being given to the classes alreadyavailing the benefit under Articles 15(4), 15(5) and 16(4). In other words,sans such exclusion, reservation by way of the amendment in questionHwould only lead to an incongruous and constitutionally invalid situation.

81. Putting it in other words, the classes who are already therecipient of, and beneficiary of, compensatory discrimination by virtueof Articles 15(4), 15(5) and 16(4), cannot justifiably raise the grievancethat in another set of compensatory discrimination for another class,they have been excluded. It gets, perforce, reiterated that thecompensatory discrimination, by its very nature, would be structured asexclusionary in order to achieve its objectives. Rather, if the classes forwhom affirmative action is already in place are not excluded, the presentexercise itself would be of unjustified discrimination.

82. Even slightly different angle of approach would also lead tothe same result. The case sought to be made out on behalf of the classor classes already availing the benefit of Articles 15(4), 15(5) and 16(4)is that their exclusion from EWS reservation is of inexplicablediscrimination. What this argument misses out is that in relation to theprinciples of formal equality, both the reservations, whether under thepre-existing provisions or under the newly inserted provisions, are ofcompensatory discrimination which is permissible for being anaffirmative action; and is to be contra-distinguished from directdiscrimination, which is not permissible.

82.1. According to the petitioners, it is case of their directdiscrimination when they have been excluded from EWS reservation.The problem with this argument is that EWS reservation itself is anotherform of compensatory discrimination, which is meant for serving thecause of such weaker sections who have hitherto not been given anyState support by way of reservation. SEBCs/OBCs/SCs/STs are havingthe existing compensatory discrimination in their favour wherein thepresently supported EWS are also excluded alongwith all other excludedclasses/persons. As necessary corollary, when EWS is to be givensupport by way of compensatory discrimination, that could only be givenby exclusion of others, and more particularly by exclusion of those whoare availing the benefit of the existing compensatory discrimination inexclusion of all others. Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory discriminationof the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation. As said above, compensatory discrimination,wherever applied, is exclusionary in character and could acquire its worthand substance only by way of exclusion of others. Such differentiationcannot be said to be legally impermissible; rather it is inevitable. When

Athat be so, clamour against exclusion in the present matters could onlybe rejected as baseless.

83. The fact that exclusion is innate in compensatory discriminationcould further be exemplified by the fact that in Indra Sawhney, thisCourt excluded the creamy layer of OBCs from the benefit of reservation.BIn the complex set-up of formal equality on one hand (which debarsdiscrimination altogether) and real and substantive equality on the other(which permits compensatory discrimination so as to upset thedisadvantages), exclusion is as indispensable as the compensatorydiscrimination itself is.

C83.1. In fact, ‘creamy layer’ principle itself was applied to makea true compact of socially and educationally backward class. Two featuresstrikingly come to fore with creamy layer principle. One is that to makea real compact of socially and educationally backward class, economicfactors play an equally important role; and then, the exclusionary principleapplies therein too. These two features, when applied to the presentDcase, make it clear that the use of economic criteria is not contra-indicatedfor the exercise of reservation, rather it is imperative; and second, tomake the exercise of compensatory discrimination meaningful so as toachieve its desired result, exclusion of every other class/person from thetarget group is inevitable. Thus viewed, the amendment in questionEremains unexceptionable in the accepted principles of constitutional lawpresently in operation.

84. Yet further, in Indra Sawhney, in the context of the questionas to whether Article 16(4) is exhaustive of the concept of reservation infavour of backward classes, Jeevan Reddy, J. made the following,Famongst other, observations: -

“743. .…In our opinion, therefore, where the State finds itnecessary — for the purpose of giving full effect to the provisionof reservation to provide certain exemptions, concessions orpreferences to members of backward classes, it can extend theGsame under clause (4) itself. In other words, all supplemental andancillary provisions to ensure full availment of provisions forreservation can be provided as part of concept of reservationitself. Similarly, in given situation, the State may think that in thecase of particular backward class it is not necessary to providereservation of appointments/posts and that it would be sufficient

if certain preference or concession is provided in their favour.This can be done under clause (4) itself. In this sense, clause (4)of Article 16 is exhaustive of the special provisions that can bemade in favour of “the backward class of citizens”. BackwardClasses having been classified by the Constitution itself asa class deserving special treatment and the Constitutionhaving itself specified the nature of special treatment, itshould be presumed that no further classification or specialtreatment is permissible in their favour apart from oroutside of clause (4) of Article 16.”

(emphasis supplied)

84.1. The above observations make it absolutely clear that so faras the classes availing the benefit of compensatory discrimination in theform of reservation under Article 16(4) are concerned, no furtherclassification or special treatment is to be given to them. fortiori, theycannot make claim to intrude into other compensatory discriminationin favour of another deserving group.

85. Having said so, even if it be assumed for the sake of argumentthat the amendment in question alters the existing equality principles, it isnot of abrogation or annulment of the existing rights but could only betreated to be of moderate abridgment thereof for valid purpose. Thusviewed, it cannot be said that the amendment in question leads to such aviolation of the rule of equality which is shocking or is unscrupuloustravesty of quintessence of equal justice.

86. Viewed from any angle, the amendment in question cannot bedeclared invalid as being violative of the basic structure of the Constitutionof India.

87. Though the discussion and the observations foregoing aresufficient to conclude this segment but, before moving on to the otherpoint, it could be usefully observed that in the ultimate analysis, thequestions as to how all the requirements of socio-economic justice areto be balanced in our constitutional scheme and, for that purpose, whetherany constitutional amendment is to be made or not, are essentially in thedomain of the Parliament. Any constitutional amendment cannot bedisturbed by the Court only for its second guess as to the desirability ofa particular provision or by way of synthesis of advantages ordisadvantages flowing from an amendment. In this context and in the

Acontext of the amendment in question, reference to the following wordsof P.B. Gajendragadkar, the former Chief Justice of India, shall beapposite: -

“Modern liberalism draws its inspiration from progressive andcomprehensive ethical philosophy. Its main postulate is thatBindividual life should show preference for social obligation. Theroot and basic motive of this ethical approach is the passion forthe relief of human suffering and misery. In the pursuit of thisideal, liberalism does not hesitate to embark upon newer and newersocio-economic experiments. These experiments represent in asense an adventurous voyage of discovery in unknown ethicalCregions, prepared to take the risks but determined to win theultimate prize of socio-economic justice.”[51]

87.1. Even if the provisions in question are said to be of experiment,the Parliament is entitled to do any such experiment towards the avowedobjective of socio-economic justice. Such an action (or say, experiment)Dof the Parliament by way of constitutional amendment can be challengedonly on the doctrine of basic structure and not otherwise.

88. Thus, the exclusion of other groups and classes from the tenper cent. reservation earmarked for EWS does not make themconstitutionally aggrieved parties to invoke the general doctrine of equalityEfor assailing the amendment in question. In other words, their grievancecannot be said to be legal grievance so as to be agitated before theCourt.

89. One of the submissions that the words “other than” in Articles15(6) and 16(6) of the Constitution of India should be read as “in additionFto”, so as to include SCs/STs/OBCs within EWS has also been notedonly for rejection for the simple reason that the suggested constructionis plainly against the direct meaning of the exclusionary expression “otherthan” as employed in, and for the purpose of, the said Articles 15(6) and16(6). If there is any doubt yet, the official Hindi translation of theGamendment in question, as published in the Gazette of India, Extraordinary,Part II, Section 1A dated 17.07.2019 would remove any misconceptionwhere the exclusionary Hindi expression ^^fHkUu** (bhinn) has beenemployed in relation to the expression “other than”. No further commentappears requisite in this regard.H51 ‘Law, Liberty and Social Justice’, Asia Publishing House, Bombay (1965), p. 120.

Breach of Fifty Per Cent. Ceiling of Reservations and BasicStructure

90. long deal of arguments by the learned counsel challengingthe amendment in question had also been against the prescription of tenper cent. reservation for EWS on the ground that it exceeds the ceilinglimit of fifty per cent. laid down by this Court in the consistent series ofcases. Apart that this argument is not precisely in conformity with thelaw declared by this Court, it runs counter to the other argument that thisEWS reservation is invalid because of exclusions. If at all the cap offifty per cent. is the final and inviolable rule, the classes already standingin the enabled bracket of fifty per cent. cannot justifiably claim theirshare in the extra ten per cent., which is meant for separate class andsection, i.e., economically weaker section.

91. Moreover, the argument regarding the cap of fifty per cent. isbased on all those decisions by this Court which were rendered withreference to the reservations existing before the advent of the amendmentin question. The fifty per cent. ceiling proposition would obviously beapplied only to those reservations which were in place before theamendment in question. No decision of this Court could be read to meanthat even if the Parliament finds the necessity of another affirmativeaction by the State in the form of reservation for section or class inneed, it could never be provided. As noticed hereinbelow, the decisionsof this Court are rather to the contrary and provide that flexibility withinwhich the Parliament has acted for putting in place the amendment inquestion.

92. In the above backdrop, the relevant decisions of this Court inregard to this fifty per cent. ceiling limit could be referred but, whilereiterating that these decisions are applicable essentially to the class/classes who are to avail the benefits envisaged by Articles 15(4), 15(5)and 16(4) of the Constitution of India.

92.1. In M.R. Balaji, the Constitution Bench of this Court, whileconsidering whether sixty per cent. reservation in engineering and medicalcolleges and other technical institutions was appropriate, observed asunder: -

“…It is because the interests of the society at large would beserved by promoting the advancement of the weaker elements inthe society that Art. 15(4) authorises special provision to be made.

ABut if provision which is in the nature of an exception completelyexcludes the rest of the society, that clearly is outside the scopeof Art. 15(4)….

....Speaking generally and in broad way, special provisionBshould be less than 50%; how much less than 50% would dependupon the relevant prevailing circumstances in each case…”

92.2. In T. Devadasan (supra), constitutionality of carry forwardrule was challenged on the ground that it violated fifty per cent. limit.The majority relied upon M.R. Balaji and observed that the ratio of theCsaid decision pertaining to Article 15(4) equally applied to the case athand pertaining to Article 16(4); and held that reservation of more thanhalf of the vacancies was invalid. The Court struck down the carryforward rule by holding that 16(4) was proviso to 16(1), in the followingwords: -

“……In the case before us 45 vacancies have actually been filledout of which 29 have gone to members of the Scheduled Castesand Tribes on the basis of reservation permitted by the carryforward rule. This comes to 64.4% of reservation. Such being theresult of the operation of the carry forward rule we must, on theEbasis of the decision in Balaji’s case hold that the rule is bad…..

……Further, this Court has already held that cl. (4) of Art. 16 isby way of proviso or an exception to cl. (1). proviso or anexception cannot be so interpreted as to nullify or destroy themain provision. To hold that unlimited reservation of appointmentsFcould be made under cl. (4) would in effect efface the guaranteecontained in cl. (1) or at best make it illusory….”

92.3. As noticed, the case of N.M. Thomas arose in the contextof constitutionality of the rules contained in the Kerala State andSubordinate Services Rules, 1958, by which the State Government wasempowered to grant exemption to SC/ST candidates from passingGqualifying test for departmental exam. In that case, two learned judgesopined about the rule of ceiling limit thus: -

Fazal Ali, J.

“191…….. As to what would be suitable reservation withinHpermissible limits will depend upon the facts and

circumstances of each case and no hard and fast rule canbe laid down, nor can this matter be reduced to amathematical formula so as to be adhered to in all cases.Decided cases of this Court have no doubt laid down that thepercentage of reservation should not exceed 50%. As I read theauthorities, this is, however, rule of caution and does not exhaustall categories. Suppose for instance State has large number ofbackward classes of citizens which constitute 80% of thepopulation and the Government, in order to give them properrepresentation, reserves 80% of the jobs for them, can it be saidthat the percentage of reservation is bad and violates thepermissible limits of clause (4) of Article 16?..........

Krishna Iyer, J.

143…....I agree with my learned Brother Fazal Ali, J. in theview that the arithmetical limit of 50% in any one year setby some earlier rulings cannot perhaps be pressed too far.Overall representation in department does not depend onrecruitment in particular year, but the total strength of cadre.I agree with his construction of Article 16(4) and his view aboutthe ‘carry forward’ rule.”

(emphasis supplied)

92.3.1. The other learned Judges did not specifically deal with thefifty per cent. rule but the majority judges agreed that Article 16(4) wasnot an exception to 16(1).

92.4. In Akhil Bharatiya Soshit Karamchari Sangh (Railway)v. Union of India and Ors.: (1981) 1 SCC 246, several concessionsand exemptions granted by the Railway Board in favour of SCs/STscame to be challenged. Therein, the opinions as regards percentage ofreservation came to be expressed as under: -

Chinnappa Reddy, J.

“135… There is no fixed ceiling to reservation or preferentialtreatment in favour of the Scheduled Castes and Scheduled Tribesthough generally reservation may not be far in excess of fifty percent. There is no rigidity about the fifty per cent rule whichis only convenient guide-line laid down by judges. Everycase must be decided with reference to the present practical results

yielded by the application of the particular rule of preferentialtreatment and not with reference to hypothetical results whichthe application of the rule may yield in the future. Judged in thelight of this discussion I am unable to find anything illegal orunconstitutional in anyone of the impugned orders and circulars….

BKrishna Iyer, J.

88.…....All that we need say is that the Railway Board shall takecare to issue instructions to see that in no year shall SC & STcandidates be actually appointed to substantially more than 50 percent of the promotional posts. Some excess will not affect asCmathematical precision is difficult in human affairs, butsubstantial excess will void the selection. Subject to this rideror condition that the ‘carry forward’ rule shall not result, in anygiven year, in the selection or appointments of SC & ST candidatesconsiderably in excess of 50 per cent, we uphold Annexure ‘I’.”

(emphasis supplied)

92.4.1. Thus, in effect, while Chinnappa Reddy, J. held that therecan be no ceiling limit on reservation, Krishna Iyer, J. held that reservationin substantial excess of fifty per cent. cannot be sustained.

92.5. In Vasanth Kumar, two learned Judges stated slightlyEdifferent conclusions as regards this ceiling limit of fifty per cent. andthe effect of the decision in N.M. Thomas as follows: -

Chinnappa Reddy, J.

“57. ……The percentage of reservations is not matterupon which court may pronounce with no material at hand.For court to say that reservations should not exceed 40per cent 50 per cent or 60 per cent, would be arbitrary andthe Constitution does not permit us to be arbitrary. Thoughin the Balaji case, the Court thought that generally and in broadway special provision should be less than 50 per cent, and howmuch less than 50 per cent would depend upon the relevantprevailing circumstances in each case, the Court confessed: “Inthis matter again, we are reluctant to say definitely what wouldbe proper provision to make.” All that the Court would finallysay was that in the circumstances of the case before them, areservation of 68 per cent was inconsistent with Article 15(4) of

the Constitution. We are not prepared to read Balaji asarbitrarily laying down 50 per cent as the outer limit ofreservation……….

58. We must repeat here, what we have said earlier, that there isno scientific statistical data or evidence of expert administratorswho have made any study of the problem to support the opinionthat reservation in excess of 50 per cent may impair efficiency. Itis rule of thumb and rules of the thumb are not for judges to laydown to solve complicated sociological and administrativeproblems. Sometimes, it is obliquely suggested that excessivereservation is indulged in as mere vote-catching device. Perhapsso, perhaps not. One can only say “out of evil cometh good” andquicker the redemption of the oppressed classes, so much thebetter for the nation. Our observations are not intended to showthe door to genuine efficiency. Efficiency must be guiding factorbut not smokescreen. All that court may legitimately sayis that reservation may not be excessive. It may not be soexcessive as to be oppressive; it may not be so high as tolead to necessary presumption of unfair exclusion ofeveryone else.

Venkataramiah, J.

149. After carefully going through all the seven opinions in theabove case, it is difficult to hold that the settled view of thisCourt that the reservation under Article 15(4) or Article16(4) could not be more than 50% has been unsettled by amajority on the Bench which decided this case. I do notpropose to pursue this point further in this case because ifreservation is made only in favour of those backward castes orclasses which are comparable to the Scheduled Castes andScheduled Tribes, it may not exceed 50% (including 18% reservedfor the Scheduled Castes and Scheduled Tribes and 15% reservedfor “special group”) in view of the total population of suchbackward classes in the State of Karnataka……..”.

(emphasis supplied)

92.6. In Indra Sawhney, Jeevan Reddy, J., speaking for themajority, though made it clear that reservation contemplated by Article16(4) should not exceed fifty per cent., yet left that small window open

Awhere some relaxation to the strict rule may become imperative in viewof the extraordinary situations inherent in the great diversity of our country.As an example, it was pointed out that the population inhabiting farflungand remote areas might, on account of their being out of the mainstreamof national life and in view of the conditions peculiar to them, need to betreated in different way. However, caveat was put that specialBcase has to be made out and extreme caution has to be exercised in thisregard. The relevant observations read as under: -“809. From the above discussion, the irresistible conclusion thatfollows is that the reservations contemplated in clause (4) of Article16 should not exceed 50%.C810. While 50% shall be the rule, it is necessary not to putout of consideration certain extraordinary situationsinherent in the great diversity of this country and the people.It might happen that in farflung and remote areas thepopulation inhabiting those areas might, on account of theirDbeing out of the mainstream of national life and in view ofconditions peculiar to and characteristical to them, need tobe treated in different way, some relaxation in this strictrule may become imperative. In doing so, extreme cautionis to be exercised and special case made out.”

E(emphasis supplied)92.6.1. Pandian, J. also opined that no maximum percentage ofreservation can be fixed in the following words:

(emphasis supplied)

“189. I fully share the above views of Fazal Ali, Krishna Iyer,FChinnappa Reddy, JJ holding that no maximum percentage ofreservation can be justifiably fixed under Articles 15(4) and/or16(4) of the Constitution.”

92.6.2. P.B. Sawant, J. also echoed that fifty per cent. ordinaryceiling can be breached but would be required to be seen in the factsand circumstances of every case in the following words: -G

“518. To summarise, the question may be answered thus. Thereis no legal infirmity in keeping the reservations under clause (4)alone or under clause (4) and clause (1) of Article 16 together,exceeding 50%. However, validity of the extent of excess ofreservations over 50% would depend upon the facts and

circumstances of each case including the field in which and thegrade or level of administration for which the reservation is kept.Although, further, legally and theoretically the excess ofreservations over 50% may be justified, it would ordinarily bewise and nothing much would be lost, if the intentions of theFramers of the Constitution and the observations of Dr Ambedkar,on the subject in particular, are kept in mind. The reservationsshould further be kept category and gradewise at appropriatepercentages and for practical purposes the extent of reservationsshould be calculated category and gradewise.”

92.7. In M. Nagaraj, while interpreting Article 16 (4-A) and (4-B) and while considering the extent of reservation, the expression “ceilinglimit” came to be employed by this Court while underscoring the conceptof “proportional equality”. Paragraph 102 of the said decision, whichhad been reproduced hereinabove in the discussion pertaining toreservation, could be usefully re-extracted alongwith other relevantpassages as under: -

“102 …… Clauses (1) and (4) of Article 16 are restatements ofthe principle of equality under Article 14. Clause (4) of Article 16refers to affirmative action by way of reservation. Clause (4) ofArticle 16, however, states that the appropriate Government isfree to provide for reservation in cases where it is satisfied on thebasis of quantifiable data that Backward Class is inadequatelyrepresented in the services. Therefore, in every case where theState decides to provide for reservation there must exist twocircumstances, namely, “backwardness” and “inadequacy ofrepresentation”. As stated above, equity, justice and efficiencyare variable factors. These factors are context-specific. There isno fixed yardstick to identify and measure these three factors, itwill depend on the facts and circumstances of each case. Theseare the limitations on the mode of the exercise of power by theState…….. If the State concerned fails to identify and measurebackwardness, inadequacy and overall administrative efficiencythen in that event the provision for reservation would beinvalid.…….Equality has two facets - “formal equality” and“proportional equality”. Proportional equality is equality “in fact”whereas formal equality is equality “in law”. Formal equality existsin the rule of law. In the case of proportional equality the

AState is expected to take affirmative steps in favour ofdisadvantaged sections of the society within the frameworkof liberal democracy. Egalitarian equality is proportionalequality.

104…..As stated above, be it reservation or evaluation,excessiveness in either would result in violation of theconstitutional mandate. This exercise, however, will dependon the facts of each case…..

*********

Conclusion

121. The impugned constitutional amendments by which Articles16(4-A) and 16(4-B) have been inserted flow from Article 16(4).They do not alter the structure of Article 16(4). They retain theDcontrolling factors or the compelling reasons, namely,backwardness and inadequacy of representation which enablesthe States to provide for reservation keeping in mind the overallefficiency of the State administration under Article 335. Theseimpugned amendments are confined only to SCs and STs. Theydo not obliterate any of the constitutional requirements, namely,Eceiling limit of 50% (quantitative limitation), the concept of creamylayer (qualitative exclusion), the sub-classification between OBCson one hand and SCs and STS on the other hand as held in IndraSawhney, the concept of post-based roster with inbuilt conceptof replacement as held in R.K. Sabharwal.

122. We reiterate that the ceiling limit of 50%, the conceptof creamy layer and the compelling reasons, namely,backwardness, inadequacy of representation and overalladministrative efficiency are all constitutional requirementswithout which the structure of equality of opportunity inArticle 16 would collapse.”

(emphasis supplied)

92.8. In K. Krishna Murthy (supra), as noticed, this Court rejectedthe challenge to the Constitution (Seventy-third Amendment) Act, 1992and the Constitution (Seventy-fourth Amendment) Act, 1992 which hadHinserted Part IX and Part IX-A to the Constitution thereby contemplating

the powers, composition and functions of the Panchayats (for rural areas)and Municipalities (for urban areas). In the present context, the passagereferring to the ceiling aspect of reservation in regard to local self-government could be re-extracted as under: -

“82......(iv) The upper ceiling of 50% vertical reservations in favourof SCs/STs/OBCs should not be breached in the context of localself-government. Exceptions can only be made in order tosafeguard the interests of the Scheduled Tribes in the matter oftheir representation in panchayats located in the ScheduledAreas…...”

92.9. In Dr. Jaishri Patil, Bhat, J. after analysis of Indra Sawhneysaid as follows: -

“10. careful reading of the judgments in Indra Sawhney v.Union of India, clarifies that seven out of nine Judges concurredthat there exists quantitative limit on reservation-spelt out at50%. In the opinion of four Judges, therefore, per the judgment ofB.P. Jeevan Reddy, J., this limit could be exceeded underextraordinary circumstances and in conditions for which separatejustification has to be forthcoming by the State or the agencyconcerned. However, there is unanimity in the conclusion byall seven Judges that an outer limit for reservation should be 50%.Undoubtedly, the other two Judges, Ratnavel Pandian and P.B.Sawant, JJ. indicated that there is no general rule of 50% limit onreservation. In these circumstances, given the general commonagreement about the existence of an outer limit i.e. 50%, thepetitioner’s argument about the incoherence or uncertainty aboutthe existence of the rule or that there were contrary observationswith respect to absence of any ceiling limit in other judgments(the dissenting judgments of K. Subba Rao, in T. Devadasan v.Union of India, the judgments of S.M. Fazal Ali and Krishnalyer, JJ. in State of Kerala v. N.M. Thomas and the judgment ofChinnappa Reddy, J. in K.C. Vasanth Kumar v. State ofKarnataka) is not an argument compelling review orreconsideration of Indra Sawhney rule.”

92.9.1. In the said decision, Bhushan, J. observed as under: -

“442. The above constitutional amendment makes it very clearthat ceiling of 50% “has now received constitutional recognition”.

CDEF

178SUPREME COURT REPORTS

ACeiling of 50% is ceiling which was approved by this Court inIndra Sawhney case, thus, the constitutional amendment in factrecognises the 50% ceiling which was approved in Indra Sawhneycase and on the basis of above constitutional amendment, no casehas been made out to revisit Indra Sawhney.”

B93. Thus, having examined the permissible limits of affirmativeaction in light of the possible harm of preferential treatment qua otherinnocent class of competitors, i.e., general merit candidates, this Courthas expressed the desirability of fifty per cent. as the ceiling limit forreservation in education and public employment but, as observedhereinbefore, all such observations are required to be read essentially inCthe context of the reservation obtaining under Articles 15(4), 15(5) and16(4) or other areas of affirmative action like that in relation to localself-government [the case of K. Krishna Murthy (supra)] and cannotbe overstretched to the reservation provided for entirely different class,consisting of the economically weaker sections.D

94. Moreover, as noticed, this ceiling limit, though held attached tothe constitutional requirements, has not been held to be inflexible andinviolable for all times to come. Reasons for this are not far to seek. Asmentioned hereinbefore, reservation by affirmative action is not havingtrappings of any such essential feature of the Constitution, collectivelyEenumerated by Kesavananda and successive decisions, that itsmodulation with reference to any particular compelling reason orrequirement could damage the basic structure of the Constitution.

95. In another view of the matter, the prescription of ceiling limitof fifty per cent., being apparently for the benefit of general meritFcandidates, does not provide any justified cause to the candidates standingin the bracket of already available reservation to raise any grievanceabout extra ten per cent. reservation for the benefit of another sectionof society in need of affirmative action. In any case, there is no questionof violation of any such basic feature of the Constitution that the entirestructure of equality of opportunity in Article 16 would collapse by thisGEWS reservation.

Other Factors and General Summation

96. There have been several suggestions during the course ofarguments that while the existing reservations are class-specific, theimpugned reservation is person-specific and even the eligibility factor,H

that is of ‘economic weakness’, is itself uncertain, fortuitous and mutable.All these submissions have only been noted to be rejected in the contextof the limited permissible challenge to the amendment in question on thedoctrine of basic structure. None of these submissions make out caseof violation of any such essential feature of the Constitution that leads todestroying the basic structure.

97. It may, however, be observed that as per the Explanation toArticle 15(6), the reservations in relation to economically weaker sectionswould avail to such sections/persons as may be notified by the Statefrom time to time on the basis of family income and other indicators ofeconomic disadvantage. The question as to whether any particular sectionor person falls in or is entitled to stand within the class of ‘economicallyweaker sections of citizens’ may be question to be determined withreference to the parameters laid down and indicators taken intoconsideration by the State. Coupled with this, even the extent ofreservation provided therein may also be question to be determinedwith reference to the relevant analysis of the material data justifying aparticular percentage. In other words, the question as to whether anyparticular classification as economically weaker section is based onrelevant data and factors as also the extent of reservation for that sectioncould be the matters of consideration as and when arising but, for theseand akin grounds, the constitutional amendment, moderately expandingthe enabling power of the State, cannot be questioned.

98. The fact that ‘representation’ alone is not the purpose ofenabling provisions of Article 16 could be directly seen from clause (4-B) of Article 16, inserted later and upheld by this Court ensuring thatceiling on reservation quota to carried forward posts does not apply tosubsequent years. Interestingly, clause (5) of Article 16, protecting theoperation of any law in relation to any incumbent of an office inconnection with the affairs of any religious or denominational institutionas regards eligibility, operates in an entirely different field but finds mentionin Article 16 for being an exception to the general rule of equality ofopportunity. Viewed as whole, it is difficult to say that permissibledeviation from the rule of equality in the matters of employment is havingthe objective of representation alone.

98.1. Moreover, even if it be assumed that the existing provisionsconcerning reservation are correlated with ‘representation’, such acorrelation would only remain confined to the classes availing benefit

Aunder Article 16(4); and it cannot be said that for any other deservingsection or class reservation could be provided only for the purpose ofrepresentation. As repeatedly noticed, the real and substantive equalitytakes myriad shapes, depending on the requirements. Therefore,questioning clause (6) of Article 16 only on the ground of it being notrepresentation-oriented, does not appear to be sustainable argumentBvis-a-vis the doctrine of basic structure.99. few other pertinent features of consideration herein mayalso be usefully indicated.99.1. As noticed, our country is and has been participant inCvarious International Conventions having co-relation with the questionspertaining to economic disabilities. Kesavananda has referred to adecision rendered by Lord Denning in Corocraft v. Pan AmericanAirways: 1969 (1) All ER 82 that, ‘…it is the duty of these courts toconstrue our legislation so as to be in conformity with internationallaw and not in conflict with it.’ In R. D. Upadhyay v. State of AndhraDPradesh and Ors.: (2007) 15 SCC 337, 3-Judge Bench affirmedthe earlier decisions upholding the enforceability of InternationalConventions when they elucidate and effectuate the Fundamental Rightsand that such conventions may also be read as part of domestic law aslong as there is no inconsistency between them. Thus understood, itEhardly needs elaboration that the laws (including constitutionalamendments) enacted, inter alia, for giving effect to InternationalConventions, have to be broadly construed and cannot be struck downfor askance.

99.2. Apart from the principles relating to judicial restraint andFcircumspection in the matters of challenge to constitutional amendment,as stated by Khanna, J. in Kesavananda (reproduced hereinbefore),what Justice Cardozo of U.S. Supreme Court said about thejudicial process in the matters of challenge to constitutionality is alsoinstructive: -

G“… The restraining power of the judiciary does not manifest itschief worth in the few cases in which the legislature has gonebeyond the lines that mark the limits of discretion. Rather shallwe find its chief worth in making vocal and audible the ideals thatmight otherwise be silenced, in giving them continuity of life andof expression, in guiding and directing choice within the limitsH

where choice ranges. This function should preserve to the courtsthe power that now belongs to them, if only the power is exercisedwith insight into social values, and with suppleness of adaptationto changing social needs.”[52]

99.3. It would also be worthwhile to quote the words of famousAmerican jurist Thomas M. Cooley thus: -

“The rule of law upon this subject appears to be, that, exceptwhere the constitution has imposed limits upon the legislativepower, it must be considered as practically absolute, whether itoperate according to natural justice or not in any particular case.The courts are not the guardians of the rights of the people of theState, unless those rights are secured by some constitutionalprovision which comes within the judicial cognizance. The remedyfor unwise or oppressive legislation, within constitutional bounds,is by an appeal to the justice and patriotism of the representativesof the people. If this fail, the people in their sovereign capacitycan correct the evil; but courts cannot assume their rights. Thejudiciary can only arrest the execution of statute when it conflictswith the constitution. It cannot run race of opinions upon pointsof right, reason, and expediency with the law-making power. Anylegislative act which does not encroach upon the powersapportioned to the other departments of the government, beingprima facie valid, must be enforced, unless restrictions upon thelegislative power can be pointed out in the constitution, and thecase shown to come within them.”[53]

100. The above-mentioned norms of circumspection had beenthe guiding factors in examining the challenge to the amendment inquestion, with this Court being conscious that the Parliament, whilstenacting amendments to the Constitution, exercises constituent power,as distinguished from ordinary legislative power. Same as that theParliament is not at liberty to destroy the basic structure of theConstitution, the Constitutional Court is also not at liberty to declareconstitutional amendments void because of their perceived injustice orimpolicy or where they appear to the Court to be violating fundamental

52 Benjamin N. Cardozo, ‘The Nature of the Judicial Process’, Yale University Press(1921), p. 94.

53 T.M. Cooley, ‘A Treatise on the Constitutional Limitations’, Hindustan Law BookCompany (2005), p 168.

Aprinciples of governance, unless such principles are placed beyondlegislative encroachment by the Constitution itself. As noticed fromKesavananda, the power to amend the Constitution can be used toreshape the Constitution to fulfil the obligation imposed on the State.Starting from the insertion of clause (4) to Article 15 by the Constitution(First Amendment) Act, 1951; moving on to the insertion of clause (4-A)Bto Article 16 by the Constitution (Seventy-seventh Amendment) Act,1995 to the insertion of clause (4-B) to Article 16 by the Constitution(Eighty-first Amendment) Act, 2000 and further amendment of the saidclause (4-A) by the Constitution (Eighty-fifth Amendment) Act, 2001;yet further with the insertion of clause (5) to Article 15 by the ConstitutionC(Ninety-third Amendment) Act, 2005; and lately with insertion of Articles366(26-C) and 342-A by the Constitution (One Hundred andSecond Amendment) Act, 2018, the Parliament has indeed brought aboutcertain modulations, within the framework of the Constitution of India,to cater to the requirements of the citizenry with real and substantive

justice in view. In the same vein, if the Parliament has considered it fit toDmake provisions in furtherance of the objectives of socio-economic justiceby the amendment in question for economically weaker sections, theamendment cannot be condemned as being violative of any of the basicfeatures of the Constitution and thereby damaging the basic structure.

101. In the ultimate analysis, it is beyond doubt that using theEdoctrine of basic structure as sword against the amendment in questionand thereby to stultify State’s effort to do economic justice as ordainedby the Preamble and DPSP and, inter alia, enshrined in Articles 38, 39and 46, cannot be countenanced. This is essentially for the reason thatthe provisions contained in Articles 15 and 16 of the Constitution ofFIndia, providing for reservation by way of affirmative action, being ofexception to the general rule of equality, cannot be treated as basicfeature. Moreover, even if reservation is one of the features of theConstitution, it being in the nature of enabling provision only, cannot beregarded as an essential feature of that nature whose modulation for the

sake of other valid affirmative action would damage the basic structureGof the Constitution. Therefore, the doctrine of basic structure cannot beinvoked for laying challenge to the 103[rd] Amendment. In this view ofthe matter, the other contentions and submissions need not be dilatedherein.

Conclusions

102. For what has been discussed and held hereinabove, the pointsformulated in paragraph 31 are answered as follows: -

a. Reservation is an instrument of affirmative action by the Stateso as to ensure all-inclusive march towards the goals of an egalitariansociety while counteracting inequalities; it is an instrument not only forinclusion of socially and educationally backward classes to the mainstreamof society but, also for inclusion of any class or section so disadvantagedas to be answering the description of weaker section. In this background,reservation structured singularly on economic criteria does not violateany essential feature of the Constitution of India and does not cause anydamage to the basic structure of the Constitution of India.

b. Exclusion of the classes covered by Articles 15(4), 15(5) and16(4) from getting the benefit of reservation as economically weakersections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate EqualityCode and does not in any manner cause damage to the basic structureof the Constitution of India.

c. Reservation for economically weaker sections of citizens upto ten per cent. in addition to the existing reservations does not result inviolation of any essential feature of the Constitution of India and doesnot cause any damage to the basic structure of the Constitution of Indiaon account of breach of the ceiling limit of fifty per cent. because, thatceiling limit itself is not inflexible and in any case, applies only to thereservations envisaged by Articles 15(4), 15(5) and 16(4) of theConstitution of India.

103. Not much of the contentions have been urged in relation tothe impact of the amendment in question on admissions to private unaidedinstitutions. However, it could at once be clarified that what has beenobserved hereinabove in relation to the principal part of challenge to theamendment in question, read with the decision of this Court in PramatiTrust, the answer to the issue framed in that regard would also be againstthe challenge.

104. Accordingly, and in view of the above, the answers to theissues formulated in these matters are as follows:

1. The 103[rd] Constitution Amendment cannot be said to breachthe basic structure of the Constitution by permitting the State to makespecial provisions, including reservation, based on economic criteria.

2. The 103[rd] Constitution Amendment cannot be said to breachthe basic structure of the Constitution by permitting the State to makeBspecial provisions in relation to admission to private unaided institutions.

3. The 103[rd] Constitution Amendment cannot be said to breachthe basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation.

105.Consequently, the transferred cases, transfer petitions, writCpetitions and the petition for special leave to appeal forming the part ofthis batch of matters are dismissed.

Acknowledgments

106.While closing on this reference, sincere thanks andDcompliments deserve to be placed on record for the learned counsel forthe respective parties, their associates, and their researchers as also allthe constructive contributors, whose erudite and scholarly presentationof respective view-points has rendered invaluable assistance to this Courtin shaping the formulations herein.

EBELA M. TRIVEDI, J.

1. I have had the benefit of perusing the opinion of my learnedBrother Dinesh Maheshwari, J. and I am in respectful agreement withhim. However, having regard to the importance of the constitutional issuesinvolved, I deem it appropriate to pen down my few views, in addition toFhis opinion.

2. For the sake of brevity, the divergent and irreconcilablesubmissions made by the Learned Counsels for the parties and thepropositions of law laid down by this Court from time to time on theissues involved, are not repeated, the same having already been narratedGin the opinion of my learned Brother.

3. Since the advent of the Constitution, there is constant churningprocess going on to keep alive the spirit of its Preamble and to achievethe goal of establishing Welfare State, adhering to the inherent elementsof the Constitutional morality and Constitutional legality. As resultthereof about 105 amendments have been made so far, in the Constitution.H

We have been called upon to examine the constitutional validity of theConstitution (One hundred and third Amendment) Act, 2019.

4. For ready reference, the impugned 103[rd] Amendment alongwith the Statement of Objects and Reasons is reproduced:-

“MINISTRY OF LAW AND JUSTICE

(Legislative Department)

New Delhi, the 12th January, 2019/Pausha 22, 1940

(Saka)

The following Act of Parliament received the assent of thePresident on the 12th January, 2019, and is hereby published forgeneral information:—

THE CONSTITUTION (ONE HUNDRED AND THIRDAMENDMENT) ACT, 2019

[12th January, 2019.]

An Act further to amend the Constitution of India.BE it enacted by Parliament in the Sixty-ninth Year of the Republicof India as follows:—

Short title and commencement.

1.(1) This Act may be called the Constitution (One Hundredand Third Amendment) Act, 2019.

(2) It shall come into force on such date as the CentralGovernment may, by notification in the Official Gazette,appoint.

Amendment of article 15.

2.In article 15 of the Constitution, after clause (5), the followingclause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause(1) of article 19 or clause (2) of article 29 shall prevent theState from making,—

(a) any special provision for the advancement of anyeconomically weaker sections of citizens other than theclasses mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of anyeconomically weaker sections of citizens other than theclasses mentioned in clauses (4) and (5) in so

far as such special provisions relate to their admission toeducational institutions including private educationalinstitutions, whether aided or unaided by the State, otherthan the minority educational institutions referred to in clause(1) of article 30, which in the case of reservation would bein 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 andarticle 16, “economically weaker sections” shall be such asmay be notified by the State from time to time on the basisof family income and other indicators of economicdisadvantage.’.

Amendment of article 16.

3.In article 16 of the Constitution, after clause (5), the followingclause shall be inserted, namely:—

“(6) Nothing in this article shall prevent the State frommaking any provision for the reservation of appointmentsor posts in favour of any economically weaker sections ofcitizens other than the classes mentioned in clause (4), inaddition to the existing reservation and subject to maximumof ten per cent. of the posts in each category.”.

DR . G. NARAYANA RAJU,Secretary to the Govt. of India.”

“STATEMENT OF OBJECTS AND REASONS

At present, the economically weaker sections of citizens havelargely remained excluded from attending the higher educationalinstitutions and public employment on account of their financialincapacity to compete with the persons who are economicallymore privileged. The benefits of existing reservations under clauses(4) and (5) of article 15 and clause (4) of article 16 are generally

unavailable to them unless they meet the specific criteria of socialand educational backwardness.

2. The directive principles of State policy contained inarticle 46 of the Constitution enjoins that the State shall promotewith special care the educational and economic interests of theweaker sections of the people, and, in particular, of the ScheduledCastes and the Scheduled Tribes, and shall protect them fromsocial injustice and all forms of exploitation.

3. Vide the Constitution (Ninety-third Amendment) Act,2005, clause (5) was inserted in article 15 of the Constitution whichenables the State to make special provision for the advancementof any socially and educationally backward classes of citizens, orfor the Scheduled Castes or the Scheduled Tribes, in relation totheir admission in higher educational institutions. Similarly, clause(4) of article 16 of the Constitution enables the State to makespecial provision for the reservation of appointments or posts infavour of any backward class of citizens which, in the opinion ofthe State, is not adequately represented in the services under theState.

4. However, economically weaker sections of citizenswere not eligible for the benefit of reservation. With view tofulfil the mandate of article 46, and to ensure that economicallyweaker sections of citizens to get fair chance of receiving highereducation and participation in employment in the services of theState, it has been decided to amend the Constitution of India.

5. Accordingly, the Constitution (One Hundred andTwenty-fourth Amendment) Bill, 2019 provides for reservationfor the economically weaker sections of society in highereducational institutions, including private institutions whether aidedor unaided by the State other than the minority educationalinstitutions referred to in article 30 of the constitution and alsoprovides for reservation for them in posts in initial appointment inservices under the State.

6. The Bill seeks to achieve the above objects.

NEW DELHI;

The 7th January, 2019. THAAWARCHAND GEHLOT”

A5. The legal and constitutional history of India depicted throughthe erudite, scholarly and authoritative opinions pronounced by this Courtin the past, has always been very educative and interesting. The widespectrum and perspectives of the contours of the Constitution of Indialaid down therein, have actually worked at the fulcrum and have guidedus as laser beam in the interpretation of the Constitutional provisions.BThe sole fountainhead of the constituent power conferred upon theParliament to amend the provisions of the Constitution is Article 368thereof. It is very well-established proposition of law that it is theConstitution and not the constituent power which is supreme. TheConstitution which reflects the hopes and aspirations of people, alsoCprovides for the framework of the different organs of the State viz. theExecutive, the Legislature and the Judiciary. The Judiciary is entrustedwith the responsibility of upholding the supremacy of the Constitution.That does not mean that such power of judicial review makes the judiciarysupreme. The Constitution itself has created system of checks andbalances by which the powers are so distributed that none of the threeDorgans it sets up, can become so predominant as to disable the othersfrom exercising and discharging powers and functions entrusted to them.[1]Yet the power of judicial review is provided expressly in our Constitutionby means of Articles 226 and 32, which is one of the features uponwhich hinges the system of checks and balances. This power is ofEparamount importance in federal Constitution like ours and is the heartand core of the democracy.6. It is axiomatic that the Parliament has been conferred upon theconstituent power to amend by way of addition, variation or repeal anyprovision of the Constitution under Article 368 of the Constitution, andFthe same is required to be exercised in accordance with the procedurelaid down in the said Article. The Constitution is said to be livingdocument or work in progress only because of the plenary power toamend is conferred upon the Parliament under the said provision. Ofcourse, as laid down in plethora of judgments, the said power is subject

to the constraints of the basic structure theory. Deriving inspiration fromGthe Preamble and the whole scheme of the Constitution, the majority inKesavananda Bharati case held that every provision of the Constitutioncan be amended so long as the basic foundation and structure of theConstitution remains the same.Some of the basic features of the

constitutional structure carved out by the Court in the said judgmentwere, the supremacy of the Constitution, Republican and democraticform of government, separation of powers, judicial review, sovereigntyand the integrity of the nation, Federal Character of Government etc. Amultitude of features have been acknowledged as the basic features invarious subsequent judicial pronouncements. Accordingly, any amendmentmade by the Parliament is open to the judicial review and is liable to beinterfered with by the Court on the ground that it affects one or the otherbasic feature of the Constitution.

7. In case of Kihoto Hollohan vs. Zachillhu & Ors.[2] the Courtexplaining the limitations imposed on the constituent power observedthat the limitations imposed are substantive limitations and procedurallimitations. Substantive limitations are those which restrict the field ofexercise of the amending power and exclude some areas from its ambit.Therefore, violation of the basic structure of the Constitution would be asubstantive limitation restricting the field of exercise of the amendingpower under Article 368 of the Constitution. Procedural limitations arethose which impose restrictions with regard to the mode of exercise ofthe amending power. Both these limitations touch and affect theconstituent power itself, the disregard of which invalidates its exercise.In Kesavananda Bharati[3] Case, it has been observed that whileexamining the width of the constituent power, it is essential to see itslimits, the maximum and the minimum; the entire ambit and the magnitudeof it. It has been further observed that Parliament could under Article368 amend Article 13 and also the fundamental rights; and that the powerof amendment under Article 368 is wide, but it is not wide enough tototally abrogate any of the fundamental rights or other essential elementsof the basic structure of the Constitution and destroy its identity[4].

8. In the light of afore-stated legal position, let us examine whetherthe impugned amendment has disregarded any of the limitations -substantive or procedural. The gravamen of the submissions made bythe learned counsels for the petitioners is that the Equality clause asinterpreted in catena of decisions is the most important and indispensablefeature of the Constitution, and the destruction thereof will amount tochanging the basic structure of the Constitution. The bone of contentionraised by them is that the exclusionary clauses contained in Articles

2 (1992) Suppl. 2 SCC 651

3 Ibid (Para-524-525)

4 Ibid (Para-1162)

A15(6) and 16(6) keeping out the backward classes and SCs/STs fromhaving the benefits of the economic reservation, are discriminatory innature and violate the equality code and in turn the basic structure of theConstitution.

9. At the outset, very relevant and apt observations made byBKrishna Iyer, J. in Maharao Sahib Shri Bhim Singhji vs. Union ofIndia & Ors.[5], with regard to the breach of equality code, deservereference.

“Every breach of equality cannot spell disaster as lethal violationof basic structure. Peripheral inequality is inevitable when large scaleCequalization processes are put into action. If all the judges of the SupremeCourt in solemn session sit and deliberate for half year to produce alegislation for reducing glaring economic inequality their genius will letthem down if the essay is to avoid even peripheral inequalities. Everylarge cause claims some martyr, as sociologists will know. Therefore,what is betrayal of the basic feature is not mere violation of ArticleD14 but shocking, unconscionable or unscrupulous travesty of thequintessence of equal justice. If legislation does go that far, it shakesthe democratic foundation and must suffer the death penalty.”

10. In an another interesting opinion by Justice Mathew in IndiraNehru Gandhi Vs. Raj Narain[6], it was observed that: -E“334. Equality is multi-coloured concept incapable of singledefinition. It is notion of many shades and connotations. Thepreamble of the Constitution guarantees equality of status and ofopportunity. They are nebulous concepts. And I am not surewhether they can provide solid foundation to rear basicFstructure. I think the types of equality which our democraticrepublic guarantees are all subsumed under specific articles ofthe Constitution like Articles 14, 15, 16, 17, 25 etc. and there is noother principle of equality which is an essential feature of ourdemocratic polity.”

G11. The seven-judge Bench of this Court in State of Kerala &Anr. vs. N.M. Thomas & Ors.[7], stated that Article 16(1) is only part ofcomprehensive scheme to ensure equality in all spheres and is an instanceof larger concept of equality of law. Article 16(4) cannot be viewed as

5 (1981) 1 SCC 1666 (1975) Suppl. SCC 1H7 (1976) 2 SCC 310

an exception to Article 16(1), but only as something which logicallyemanates from Article 16(1).

12. In Waman Rao & Ors. Vs. Union of India & Ors.[8], it wasobserved that every case in which the protection of fundamental rightis withdrawn will not necessarily result in damaging or destroying thebasic structure of the Constitution. The question as to whether the basicstructure is damaged or destroyed in any given case would depend uponwhich particular Article of Part III is in issue and whether what iswithdrawn is quintessential to the basic structure of the Constitution.

13. The case of M. Nagraj & others Vs. Union of India[9],classifies equality into two parts - “Formal equality” and “Proportionalequality”. Proportional equality is equality “in fact”, whereas Formalequality is equality “in law”.Formal equality exists in the rule of law. Incase of Proportional equality, the State is expected to take affirmativesteps in favour of disadvantaged sections of the society within theframework of liberal democracy. Egalitarian equality is proportionalequality. The Constitution Bench in the said case was called upon toexamine the constitutional validity of Article 16(4A) and 16(4B) as wellas the 77[th], 82[nd] and 85[th] amendments of the Constitution. Whileunanimously upholding the validity of the said Amendments, it wasobserved that-“118. The constitutional principle of equality is inherent in the ruleof law. However, its reach is limited because its primary concernis not with the content of the law but with its enforcement andapplication. The rule of law is satisfied when laws are applied orenforced equally, that is, even-handedly, free of bias and withoutirrational distinction. The concept of equality allows differentialtreatment but it prevents distinctions that are not properly justified.Justification needs each case to be decided on case-to-case basis.”14. In State of Gujarat and Another vs. & The Ashok Mills Co.Ltd. Ahmedabad and Another[10], it was observed: -

“53. The equal protection of the laws is pledge of the protectionof equal laws. But laws may classify. And the very idea ofclassification is that of inequality. In tackling this paradox, theCourt has neither abandoned the demand for equality nor denied

8 (1981) 2 SCC 362

9 (2006) 8 SCC 212

10 (1974) 4 SCC 656

Athe legislative right to classify. It has taken middle course. It hasresolved the contradictory demands of legislative specializationand constitutional generality by doctrine of reasonableclassification.

54. reasonable classification is one which includes all who areBsimilarly situated and none who are not. The question then is: what doesthe phrase ‘similarly situated’ mean? The answer to the question is thatwe must look beyond the classification to the purpose of the law. Areasonable classification is one which includes all persons who aresimilarly situated with respect to the purpose of the law. The purpose ofa law may be either the elimination of public mischief or the achievementCof some positive public good.”

15. What is discernible from the above cited decisions is that theconcept of equality allows differential treatment but it prevents distinctionsthat are not properly justified. Equality is violated if it rests on unreasonableclassification. reasonable classification is permissible, which includesDall who are similarly situated, and none who are not. Discrimination isthe essence of classification. Those who are similarly circumscribed areentitled to an equal treatment. Classification has to be founded onsubstantial differences which distinguish persons grouped together fromthose left out of the groups, and such differential attributes must bear aEjust and rational relation to the object sought to be achieved.

16. The Preamble, the Part III-Fundamental Rights and the PartIV-Directive Principles of State Policy- the Trinity are the conscienceof the Constitution. The Preamble visualises to remove economicinequalities and to secure to all citizens of India, Justice - Social, EconomicFand Political, which is the sum total of the aspirations incorporated inPart IV. Economic empowerment to the weaker sections of the societyis the fundamental requirement for ensuring equality of status and topromote fraternity assuring dignity as visualised by the framers of ourConstitution. And therefore any positive discrimination in favour of theweak or disadvantaged class of people by means of valid classificationGhas been treated as an affirmative action on the part of the State. ThePreamble to the Constitution and the Directive Principles of the StatePolicy give positive mandate to the State and the State is obliged toremove inequalities and backwardness from the society.

17. As observed in Ashok Kumar Thakur[11], while consideringthe constitutionality of social justice legislation, it is worthwhile to notethe objectives which have been incorporated by the Constitution makersin the Preamble of the Constitution and how they are sought to be securedby enacting Fundamental Rights in Part-III and Directive Principles ofState Policy in Part-IV of the Constitution. The Fundamental Rightsrepresent the civil and political rights and the Directive Principles embodysocial and economic rights. Together they are intended to carry out theobjectives set out in the Preamble to the Constitution. Article 46 enjoinsupon the State to promote with special care the educational and economicinterests of the weaker sections of the people and to protect them fromsocial injustice and all forms of exploitation. The theory of reasonableclassification is implicit and inherent in the concept of equality. Equalityof opportunity would also mean fair opportunity not only to one sectionor the other but to all sections by removing the handicaps if particularsection of the society suffers from the same.

18. Justice Krishna Iyer in N.M. Thomas[12] has beautifullyexplained what is “social engineering”

“119. Social engineering — which is law in action — must adoptnew strategies to liquidate encrusted group injustices or surrendersociety to traumatic tensions. Equilibrium, in human terms, emergesfrom release of the handicapped and the primitive from persistentsocial disadvantage, by determined, creative and canny legalmanoeuvres of the State, not by hortative declaration of aridequality. “To discriminate positively in favour of the weak maysometimes be promotion of genuine equality before the law” asAnthony Lester argued in his talk in the B.B.C. in 1970 in theseries: What is wrong with the law [ Published in book form —Edited by Micheel Zander — BBC, 1970 — quoted in Mod LawRev Vol 33, Sept 1970, pp. 579, 580] . “One law for the Lion andOx is oppression”. Or, indeed, as was said of another age byAnatole France:

“The law in its majestic equality forbids the rich as well as thepoor to sleep under bridges, to beg in the streets and to stealbread. “

11 Ibid. (2008) 6 SCC 1

12 Ibid (1976) 2 SCC 310

A19. As transpiring from the Statements of Objects and Reasonsfor introducing the Bill to the impugned amendment, the Parliament hastaken note that the economically weaker sections of the citizens havelargely remained excluded from attaining the higher educational institutionsand public employment on account of their financial incapacity to competewith the persons who are economically more privileged. The benefits ofBexisting reservations under Clauses(4) and (5) of Article 15 and Clause(4)of Article 16 are generally unavailable to them unless they meet with thespecific criteria of social and educational backwardness. It has beenfurther stated that vide the Constitution (Ninety-third Amendment) Act,2005, Clause(5) was inserted in Article 15 of the Constitution whichCenables the State to make special provision for the advancement of anysocial and educational backwardness of citizens, or for the ScheduledCastes or the Scheduled Tribes, in relation to their admission in highereducational institutions. Similarly, Clause(4) of Article 16 of theConstitution enables the State to make special provision for the reservationof appointments or posts in favour of any backward class of citizensDwhich in the opinion of the State, is not adequately represented in theservices under the State. However, economically weaker sections ofcitizens were not eligible for the benefit of reservation. Therefore, witha view to fulfil the ideals lying behind Article 46, and to ensure thateconomically weaker sections of citizens to get fair chance of receivingEhigher education and participation in employment in the services of theState, it was decided to amend the Constitution of India.20. As well settled, it must be presumed that the legislatureunderstands and appreciates the needs of its own people. Its laws aredirected to the problems made manifest by experience, and itsFdiscriminations are based on adequate norms. Therefore, the constitutionalamendment could not be struck down as discriminatory if the state offacts are reasonably conceived to justify it. In the instant case, theLegislature being aware of the exclusion of economically weaker sectionsof citizens from having the benefits of reservations provided to the SCs/STs and SEBCs citizens in Clauses(4) and (5) of Article 15 and Clause(4)Gof Article 16, has come out with the impugned amendment empoweringthe State to make special provision for the advancement of the“economically weaker sections” of citizens other than the classesmentioned in Clauses(4) and (5) of Article 15 and further to make specialprovision for the reservation of appointments or posts in favour of theH

economically weaker sections of the citizens other than the classesmentioned in Clause(4) of Article 16. The impugned amendment enablingthe State to make special provisions for the “economically weakersections” of the citizens other than the scheduled castes/schedules tribesand socially and educationally backward classes of citizens, is requiredto be treated as an affirmative action on the part of the Parliament forthe benefit and for the advancement of the economically weaker sectionsof the citizens. Treating economically weaker sections of the citizens asa separate class would be reasonable classification, and could not betermed as an unreasonable or unjustifiable classification, much less abetrayal of basic feature or violative of Article 14. As laid down by thisCourt, just as equals cannot be treated unequally, unequals also cannotbe treated equally. Treating unequals as equals would as well offend thedoctrine of equality enshrined in Articles 14 and 16 of the Constitution.

21. The Scheduled Castes/Scheduled Tribes and the backwardclass for whom the special provisions have already been provided inArticle 15(4), 15(5) and 16(4) form separate category as distinguishedfrom the general or unreserved category. They cannot be treated at parwith the citizens belonging to the general or unreserved category. Theimpugned amendment creates separate class of “economically weakersections of the citizens” from the general/unreserved class, withoutaffecting the special rights of reservations provided to the ScheduledCaste/Scheduled Tribe and backward class of citizens covered underArticle 15(4), 15(5) and 16(4). Therefore, their exclusion from the newlycreated class for the benefit of the “economically weaker sections ofthe citizens” in the impugned amendment cannot be said to bediscriminatory or violative of the equality code. Such amendment couldcertainly be not termed as shocking, unconscionable or unscrupuloustravesty of the quintessence of equal justice as sought to be submittedby the Learned Counsels for the petitioners.

22. The sum and substance is that the limitations – substantive orprocedural – imposed on the exercise of constituent power of the Stateunder Article 368 could not be said by any stretch of imagination, tohave been disregarded by the Parliament. Neither the procedural limitationi.e. the mode of exercise of the amending power has been disregardednor the substantive limitation i.e. the restricted field has been disregarded,which otherwise would invalidate the impugned amendment. What isvisualised in the Preamble and what is permissible both in Part-III and

APart-IV of the Constitution could not be said to be violative of the basicstructure or basic feature of the Constitution. In absence of any obliterationof any of the constitutional provisions and in absence of any alteration ordestruction in the existing structure of equality code or in the basicstructure of the Constitution, neither the width test nor the identity testas propounded in Kesavananda could be said to have been violated inBthe impugned Amendment. Accordingly, the challenge to the constitutionalvalidity of the 103[rd] Amendment fails, and the validity thereof is upheld.23. Before parting, let me say something on the time span of thereservation policy.C24. It is said that no document can be perfect and no ideals can befully achieved. But does that mean we should have no ideals? No vision?Sardar Patel had said [13] - “But in the long run, it would be in the interestof all to forget that there is anything like majority or minority in thiscountry; that in India there is only one community…”

D25. Can we not move towards an ideal envisaged by the framersof our Constitution to have an egalitarian, casteless and classless society?Though difficult, it is an achievable ideal. Our Constitution which is aliving and organic document continuously shapes the lives of citizens inparticular and societies in general.

E26. At this juncture, some of the very apt observations made bythe Constitution Bench in K.C. Vasanth Kumar[14]are worth noting-

Per D.A. Desai, J.

“30. Let me conclude. If economic criterion for compensatorydiscrimination or affirmative action is accepted, it would strikeFat the root cause of social and educational backwardness, andsimultaneously take vital step in the direction of destructionof caste structure which in turn would advance the secularcharacter of the Nation. This approach seeks to translate intoreality the twin constitutional goals: one, to strike at theperpetuation of the caste stratification of the Indian Society soGas to arrest regressive movement and to take firm steptowards establishing casteless society; and two, toprogressively eliminate poverty by giving an opportunity to the

13 CAD Vol. VIII P.272, 25 May 194914 (1985) Suppl. SCC 714H

disadvantaged sections of the society to raise their positionand be part of the mainstream of life which means eradicationof poverty.

31. Let me make abundantly clear that this approach does notdeal with reservation in favour of Scheduled Castes andScheduled Tribes. Thousands of years of discrimination andexploitation cannot be wiped out in one generation. But evenhere economic criterion is worth applying by refusing preferredtreatment to those amongst them who have already benefitedby it and improved their position. And finally reservation musthave time span otherwise concessions tend to become vestedinterests.”

Per E.S. Venkataramiah, J.

“150. At this stage it should be made clear that if on freshdetermination some castes or communities have to go out ofthe list of backward classes prepared for Article 15(4) andArticle 16(4), the Government may still pursue the policy ofamelioration of weaker sections of the population amongst themin accordance with the Directive Principle contained in Article46 of the Constitution. “

In the said judgment, Chief Justice Y.V. Chandrachud, as he thenwas, had proposed thus:-

“2. I would state my opinion in the shape of the followingpropositions:

(1) The reservation in favour of Scheduled Castes and ScheduledTribes must continue as at present, there is, without the applicationof means test, for further period not exceeding fifteen years.Another fifteen years will make it fifty years after the advent ofthe Constitution, period reasonably long for the upper crust ofthe oppressed classes to overcome the baneful effects of socialoppression, isolation and humiliation.

(2) The means test, that is to say, the test of economicbackwardness ought to be made applicable even to the ScheduledCastes and Scheduled Tribes after the period mentioned in (1)above. It is essential that the privileged section of the

Aunderprivileged society should not be permitted to monopolisepreferential benefits for an indefinite period of time.

(3) Insofar as the other backward classes are concerned, twotests should be conjunctively applied for identifying them for thepurpose of reservations in employment and education: One, thatBthey should be comparable to the Scheduled Castes and ScheduledTribes in the matter of their backwardness; and two, that theyshould satisfy the means test such as State Government maylay down in the context of prevailing economic conditions.

(4) The policy of reservations in employment, education andClegislative institutions should be reviewed every five years or so.That will at once afford an opportunity (i) to the State to rectifydistortions arising out of particular facets of the reservation policyand (ii) to the people, both backward and non-backward, to ventilatetheir views in public debate on the practical impact of the policyof reservations.”D27. The concern for continuing the reservation as an affirmativeaction only for limited period was also expressed by this Court in “AshokKumar Thakur vs. Union of India”[15]

“666. Caste has divided this country for ages. It has hamperedEits growth. To have casteless society will be realisation of anoble dream. To start with, the effect of reservation may appearto perpetuate caste. The immediate effect of caste-basedreservation has been rather unfortunate. In the pre-reservationera people wanted to get rid of the backward tag—either socialor economical. But post reservation, there is tendency evenFamong those who are considered as “forward”, to seek the“backward” tag, in the hope of enjoying the benefits ofreservations. When more and more people aspire for“backwardness” instead of “forwardness” the country itselfstagnates. Be that as it may. Reservation as an affirmative actionGis required only for limited period to bring forward the sociallyand educationally backward classes by giving them gentlesupportive push. But if there is no review after reasonable periodand if reservation is continued, the country will become castedivided society permanently. Instead of developing united society

H15 (2008) 6 SCC 1

with diversity, we will end up as fractured society foreversuspicious of each other. While affirmative discrimination is roadto equality, care should be taken that the road does not become arut in which the vehicle of progress gets entrenched and stuck.Any provision for reservation is temporary crutch. Such crutchby unnecessary prolonged use, should not become permanentliability. It is significant that the Constitution does not specificallyprescribe casteless society nor tries to abolish caste. But bybarring discrimination in the name of caste and by providing foraffirmative action Constitution seeks to remove the difference instatus on the basis of caste. When the differences in status amongcastes are removed, all castes will become equal. That will be abeginning for casteless egalitarian society.”28. What was envisioned by the framers of the Constitution, whatwas proposed by the Constitution Bench in 1985 and what was soughtto be achieved on the completion of fifty years of the advent of theConstitution, i.e. that the policy of reservation must have time span,has still not been achieved even till this day, i.e. till the completion ofseventy-five years of our Independence. It cannot be gainsaid that theage-old caste system in India was responsible for the origination of thereservation system in the country. It was introduced to correct thehistorical injustice faced by the persons belonging to the scheduled castesand scheduled tribes and other backward classes, and to provide them alevel playing field to compete with the persons belonging to the forward-classes. However, at the end of seventyfive years of our independence,we need to revisit the system of reservation in the larger interest of thesociety as whole, as step forward towards transformativeconstitutionalism.

29. Be it noted that as per Article 334 of the Constitution, theprovisions of the Constitution relating to the reservation of seats for theSCs and the STs in the House of the People and in the LegislativeAssemblies of the States would cease to have effect on the expirationof period of eighty years from the commencement of the Constitution.The representation of Anglo-Indian community in the House of theParliament and in the Legislative Assemblies of the States by nomination,has already ceased by virtue of the 104[th] Amendment w.e.f. 25.01.2020.Therefore, similar time limit if prescribed, for the special provisions in

Arespect of the reservations and representations provided in Article 15and Article 16 of the Constitution, it could be way forward leading toan egalitarian, casteless and classless society.

J.B. PARDIWALA, J. :1. I have had the benefit of carefully considering the lucid andBerudite judgment delivered by my learned Brother Justice Ravindra Bhattaking the view that Sections 2 and 3 resply of the Constitution (OneHundred and Third Amendment) Act, 2019 which inserted clause (6) inArticle 15 and clause (6) in Article 16 respectively are unconstitutionaland void on the ground that they destroyed and are violative of the basicCstructure of the Constitution. My esteemed Brother Justice Bhat hastaken the view that the State’s compelling interest to fulfil the objectiveset out in the Directive Principles, through special provisions on the basisof economic criteria, is legitimate; that reservation or special provisionshave so far been provided in favour of historically disadvantagedcommunities cannot be the basis of contending that the otherDdisadvantaged groups who have not been able to progress due to the illeffects of abject poverty should remain so and the special provisionsshould not be made by way of affirmative action or even reservation ontheir behalf. My learned esteemed Brother Justice Bhat has concludedthat therefore the special provisions based on objective economic criteria,Eis per se not violative of the basic structure. However, my esteemedBrother Justice Bhat thought fit to declare clause (6) of Article 15 asunconstitutional essentially on the ground that the exclusion clause thereinand the classification could be termed as arbitrary resulting in hostilediscrimination of the poorest sections of the society who are socially andeducationally backward and/or subjected to caste discrimination.F

2. In so far as clause (6) of Article 16 is concerned, my esteemedBrother Justice Bhat struck it down on two counts – first, the same isviolative of the equality code particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of thebasic structure of the Constitution and, secondly, although the “economicGcriteria” per se is permissible in relation to access of public goods (underArticle 15), yet the same is not true for Article 16 as the goal of which isempowerment through representation of the community.3. On the other hand, my esteemed Brother Justice DineshMaheshwari, in his separate judgment, has taken the view that clauseH

(6) in Article 15 and clause (6) in Article 16 do not violate the basicstructure of the Constitution in any manner and are valid.

4. Having gone through both the sets of judgments, I regret myinability to agree with my esteemed Brother Justice Bhat that clause (6)in Article 15 and clause (6) in Article 16 are unconstitutional and void.Whereas, I agree with the final decision taken by my esteemed BrotherJustice Dinesh Maheshwari that the impugned amendment is valid, Iwould like to assign my own reasons as I have looked into the entireissue from slightly different angle.

5. “The Judgment of this Court in His Holiness KeshvanandaBharati Sripadagalvaru and others v. State of Kerala and another,AIR 1973 SC 1461, which introduced the concept of Basic Structurein our constitutional jurisprudence is the spontaneous response ofan activist Court after working with our Constitution for about 25years. This Court felt that in the absence of such stance by theconstitutional Court there are clear tendencies that the tumultuoustides of democratic majoritarianism of our country may engulf theconstitutional values of our nascent democracy. The judgement inKesavananda Bharti (supra) is possibly an “auxiliary precautionagainst possible tidal wave in the vast ocean of Indiandemocracy”. …….. But we must have clear perception of what theBasic Structure is. It is hazardous to define what is the Basic Structureof the Constitution as what is basic does not remain static for alltime to come…..”

[See : J&K National Panthers Party v. TheUnion of India & Ors, (2011) 1 SCC 228]

6. The idea of equality is the heart and soul of the IndianConstitution. India achieved independence on the 15[th] of August, 1947after long political struggle in which number of patriots laid downtheir lives and countless suffered to secure self-government and to throwoff the foreign yoke. But self-government was not an end in itself. Itwas means to an end. They struggled and suffered not merely to beruled by their chosen representatives in the place of foreign rulers, but toachieve the basic human rights and freedom and to secure social,economic and political justice so as to build up welfare State fromwhich poverty, ignorance and disease may be banished and to lay thefoundation of strong and independent country which may commandrespect in the world.

A7. Constituent Assembly was formed to draw up Constitutionwhich was ultimately adopted on the 26[th] January, 1950. The aspirationsof the people are reflected in the Preamble of the Constitution whichreads thus:-

“WE, THE PEOPLE OF INDIA, having solemnly resolvedBto constitute India into SOVEREIGN, SOCIALIST,SECULAR DEMOCRATIC REPUBLIC and to secure to allits citizens:

JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith and worship;CEQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual andthe unity and integrity of the Nation;DIN OUR CONSTITUENT ASSEMBLY this twenty-sixth dayof November, 1949, do HEREBY ADOPT, ENACT ANDGIVE TO OURSELVES THIS CONSTITUTION.”

8. The Preamble of our Constitution promises equality, which isexplained in detail in Articles 14 and 15 resply as enshrined in Part III ofEthe Constitution. Equality, as contemplated under our constitutional system,is ‘among equal and similarly situated’. Equality in general cannot beuniversally applied and is subject to the condition and restriction as speltout in the Constitution itself. The Preamble to the Constitution referredto above does not grant any power but it gives the direction and purposeFto the Constitution. It outlines the objective of the whole Constitution.The Preamble contains the fundamentals of the Constitution. It servesseveral important purposes, as for example: -(1) It contains the enacting clause which brings the Constitutioninto force.G(2) It declares the great rights and freedoms which the PeopleofIndiaintended to secure to all its citizens.

(3) It declares the basic type of Government and polity which issought to be established in the country.

(4) It throws light on the source of the Constitution, viz.Hthe People of India.

9. Articles 14, 15 and 16 resply deal with the various facets ofthe right to equality. Article 14 provides for equality before law andprohibits the State from denying to any person, equality before law orequal protection of laws. Article 15 provides for prohibition ofdiscrimination against any citizen on grounds only of religion, race, caste,sex or place of birth or any of them, but permits special provisions beingmade for women and children or for the advancement of any sociallyand educationally backward classes of citizens or for the ScheduledCastes and Scheduled Tribes. Article 16 guarantees equality of opportunityin matters of public employment to the citizens of India.

10. These three Articles form part of the same Constitutionalcode of guarantees and, in the sense, supplement to each other. Article14 on the one hand, and Articles 15 and 16 resply on the other, havefrequently been described as being the genesis and the speciesrespectively.

11. I propose to look into the constitutional validity of theConstitution (103[rd ]Amendment) Act, 2019 in the first instance, as if thereis nothing like Articles 15(6) and 16(6) resply in the Constitution. It wouldbe profitable to look into the various relevant provisions (Articles) of theConstitution of India:-

“14. Equality before law. The State shall not deny to any personequality before the law or the equal protection of the lawswithin the territory of India.

15. Prohibition of discrimination on grounds of religion, race,caste, sex or place of birth. (1) The State shall not discriminateagainst any citizen on grounds only of religion, race, caste,sex, place of birth or any of them.

(2) No citizen shall, on ground only of religion, race, caste,sex, place of birth or any of them, be subject to any disability,liability, restriction or condition with regard to%

(a) access to shops, public restaurants, hotels and places ofpublic entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and placesof public resort maintained wholly or partly out of State fundsor dedicated to the use of general public.

(3) Nothing in this article shall prevent the State frommaking any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29shall prevent the State from making any special provisionfor the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castesand the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of the clause(1) of article 19 shall prevent the State from making anyspecial provision, by law, for the advancement of anysocially and educationally backward classes of citizensor for the Scheduled Castes or the Scheduled Tribes in sofar as such special provisions relate to their admission toeducational institutions including private educationalinstitutions, whether aided or unaided by the State, otherthan the minority educational institutions referred to inclause (1) of article 30.

(6) Nothing in this article or sub-clause (g) of clause (1)of article 19 or clause (2) of article 29 shall prevent theState from making,%

(a) any special provision for the advancement of anyeconomically weaker sections of citizens other than theclasses mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of anyeconomically weaker sections of citizens other than theclasses mentioned in clauses (4) and (5) in so far as suchspecial provisions relate to their admission to educationalinstitutions including private educational institutions,whether aided or unaided by the State, other than theminority educational institutions referred to in clause (1)of article 30, which in the case of reservation would be inaddition 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 article16, “economically weaker sections” shall be such as maybe notified by the State from time to time on the basis of

family income and other indicators of economicdisadvantage.

16. Equality of opportunity in matters of publicemployment. - (1) There shall be equality of opportunityfor all citizens in matters relating to employment orappointment to any office under the

State.

(2) No citizen shall, on grounds only of religion, race, caste,sex, descent, place of birth, residence or any of them, beineligible for, or discriminated against in respect of, anyemployment or office under the State.

(3) Nothing in this article shall prevent Parliament frommaking any law prescribing, in regard to class or classesof employment or appointment to an office under theGovernment of, or any local or other authority within, aState or Union territory, any requirement as to residencewithin that State or Union territory prior to suchemployment or appointment.

(4) Nothing in this article shall prevent the State frommaking any provision for the reservation of appointmentsor posts in favour of any backward class of citizens which,in the opinion of the State, is not adequately representedin the services under the State.

(4A) Nothing in this article shall prevent the State frommaking any provision for reservation in matters ofpromotion, with consequential seniority, to any class orclasses of posts in the services under the State in favour ofthe Scheduled Castes and the Scheduled Tribes which, inthe opinion of the State, are not adequately represented inthe services under the State.

(4B) Nothing in this article shall prevent the State fromconsidering any unfilled vacancies of year which arereserved for being filled up in that year in accordancewith any provision for reservation made under clause (4)or clause (4A) as separate class of vacancies to be filledup in any succeeding year or years and such class of

vacancies shall not be considered together with thevacancies of the year in which they are being filled up fordetermining the ceiling of fifty per cent. reservation ontotal number of vacancies of that year.

(5) Nothing in this article shall affect the operation of anylaw which provides that the incumbent of an office inconnection with the affairs of any religious ordenominational institution or any member of the governingbody thereof shall be person professing particularreligion or belonging to particular denomination.

(6) Nothing in this article shall prevent the State frommaking any provision for the reservation of appointmentsor posts in favour of any economically weaker sections ofcitizens other than the classes mentioned in clause (4), inaddition to the existing reservation and subject to amaximum of ten per cent. of the posts in each category.

21-A. Right to education. - The State shall provide freeand compulsory education to all children of the age of sixto fourteen years in such manner as the State may, by law,determine.

25. Freedom of conscience and free profession, practiceand propagation of religion. - (1) Subject to public order,morality and health and to the other provision of this Part,all persons are equally entitled to freedom of conscienceand the right freely to profess, practice and propagatereligion.

(2) Nothing in this article shall affect the operation of anyexisting law or prevent the State from making any law%

(a) regulating or restricting any economic, financial,political or other secular activity which may be associatedwith religious practice;

(b) providing for social welfare and reform or the throwingopen of Hindu religious institutions of public characterto all classes and sections of Hindus.

Explanation I.%The wearing and carrying of kirpans shallbe deemed to be included in the profession of the Sikhreligion.

Explanation II.%In sub-clause (b) of clause (2), thereference to Hindus shall be construed as including areference to Hindu religious institutions shall be construedaccordingly.

26. Freedom to manage religious affairs. - Subject topublic order, morality and health, every religiousdenomination or any section thereof shall have the right%

(a) to establish and maintain institutions for religious andcharitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property;and

(d) to administer such property in accordance with law.

29. Protection of interests of minorities. - (1) Any sectionof the citizens residing in the territory of India or any partthereof having distinct language, script or culture of itsown shall have the right to conserve the same.

(2) No citizen shall be denied admission into anyeducational institution maintained by the State or receivingaid out of State funds on grounds only of religion, race,caste, language or any of them.

30. Right of minorities to establish and administereducational institutions. - (1) All minorities, whether basedon religion or language, shall have the right to establishand administer educational institutions of their choice.

(1A) In making any law providing for the compulsoryacquisition of any property of an educational institutionestablished and administered by minority, referred to inclause (1), the State shall ensure that the amount fixed byor determined under such law for the acquisition of such

property is such as would not restrict or abrogate the rightguaranteed under that clause.

(2) The State shall not, in granting aid to educationalinstitutions, discriminate against any educational institutionon the ground that it is under the management of minority,Bwhether based on religion or language.

46. Promotion of educational and economic interests ofScheduled Castes, Scheduled Tribes and other weakersections. - The State shall promote with special care theCeducational and economic interests of the weaker sectionsof the people, and, in particular, of the Scheduled Castesand the Scheduled Tribes, and shall protect them from socialinjustice and all forms of exploitation.”

12. The Constitution of India was framed by the ConstituentDAssembly after long drawn debates. Many of the Members of theConstituent Assembly themselves were actively and directly involved inthe struggle for freedom. They, therefore, brought in framing theConstitution their experience of movement for liberation from the colonialrule. The Constitution was framed at time when the memories ofEviolation of human and fundamental rights at the hands of colonial rulerswere fresh. So was fresh in the mind of the people the Nazi excessesduring the time of Second World War. Declaration of separate chapterof fundamental rights with special focus on equality and personalliberties was thus inevitable. The framers of the Constitution, thus,dedicated whole chapter (Part III) for fundamental rights. While doingFso, important provisions were made in Part IV pertaining to the DirectivePrinciples of State Policy, making detailed provisions laying down aroad-map for bringing about peaceful social revolution throughConstitutional means and for the Governments to bear in mind thoseprinciples while framing future governmental policies. Article 37 containedGin Part IV provides that the provisions contained in that Part shall not beenforceable by any court, but it makes it clear that the principles laiddown therein are nevertheless fundamental in the governance of thecountry and it shall be the duty of the State to apply those principles inmaking laws. Interplay of fundamental rights and directive principles ofstate policy has occupied the minds of this Court on several occasions.

13. Article 15, as originally framed, did not contain clauses (4)and (5). Clause (4) in fact was introduced through the First ConstitutionAmendment in the year 1951. This was necessitated due to judicialpronouncement of the Supreme Court in the case of The State of Madrasv. Sm. Champakam Dorairajan & Another, AIR 1951 SC 226 : (1951)SCR 525.

14. In Article 15, there are two words of very wide import – (1)“discrimination” and (2) “only”. The expression “discriminate against”,according to the Oxford Dictionary means, “to make an adversedistinction with regard to; to distinguish favourably from others”. Thetrue purport of the word “discrimination” has been very well explainedby this Court in Constitution Bench decision of five Judges in KathiRaning Rawat v. State of Saurashtra, reported in AIR 1952 SC123: -

“7. All legislative differentiation is not necessarilydiscriminatory. In fact, the word “discrimination” does notoccur in Art. 14. The expression “discriminate against” isused in Art. 15(1) and Art. 16(2), and it means, according tothe Oxford Dictionary, “to make an adverse distinction withregard to; to distinguish unfavourably from others”.Discrimination thus involves an element of unfavourable biasand it is in that sense that the expression has to be understoodin this context. If such bias is disclosed and is based on anyof the grounds mentioned in Arts. 15 and 16, it may well bethat the statute will, without more, incur condemnation asviolating specific constitutional prohibition unless it is savedby one or other of the provisos to those articles. But the positionunder Art. 14 is different….”

15. The principle has been consistently followed in subsequentdecisions. Reference may be made, in this respect, in the case ofAshutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.

16. very important decision on the significance of the word “only”(as used in Article 29(2) also relating to fundamental rights) is that of theFull Bench in Srimathi Champakam Dorairajan and Another v. TheState of Madras, reported in AIR 1951 Madras 120. In that case theMadras Government, finding that there were not sufficient vacanciesfor admission of students to Medical College, issued circular making,

Awhat it considered, an equitable division of the vacancies available amongthe various classes of citizens of the State. Out of every 14 seats, 6were to be filled by non-Brahmin Hindus, 2 to backward Hinducommunities, 2 to Brahmins, 2 to Harijans, 1 to Anglo-Indians and IndianChristians and 1 to Muslims. The circular was challenged by variouspersons on the ground that it decided admission to persons only on theBground of religion or caste. It was sought to support the circular on theground that the denial was not only on the ground of religion or caste,but as matter of public policy based upon the provisions of Article 46together with the paucity of the vacancies. It was held that muchsignificance could not be attached to the word ‘only’ because evenCreading the Article without that word, the result would be the same. Itwas further held that the circular was bad because it infringed the clearand unambiguous terms of Article 15(1) since it discriminated againstcitizens only on the ground of religion, race, caste, sex, place of birth orany of them. The judgment states:-

D“15…..”Discriminate against” means “make an adversedistinction with regard to”; “distinguish unfavourably fromothers” (Oxford Dictionary). What the article says is that noperson of particular religion or caste shall be treatedunfavourably when compared with persons of otherreligions and castes merely on the ground that they belong toEa particular religion or caste. Now what does the CommunalG.O. purport to do? It says that limited number of seatsonly are allotted to persons of particular caste, namelyBrahmins. The qualifications which would enable candidateto secure one of those seats would necessarily be higher thanFthe qualifications which would enable person of anothercaste or religion, say, Harijan or Muslim to secureadmission…..”

It was, therefore, held that the Communal G.O. was void.

17. This decision was upheld by the Supreme Court on appeal inGThe State of Madras v. Sm. Champakam Dorairajan & another(supra). Their Lordships say:-

“11.It is argued that the petitioners are not deniedadmission only because they are Brahmins but for varietyof reasons, e.g. (a) they are Brahmins, (b) Brahmins have anHallotment of only two seats out of 14 and (c) the two seats

have already been filled up by more meritorious Brahmincandidates. This may be true so far as these two seats reservedfor the Brahmins are concerned but this line of argument canhave no force when we come to consider the seats reservedfor candidates of other communities, for so far as those seatsare concerned, the petitioners are denied admission into anyof them not on any ground other than the sole ground of theirbeing Brahmins and not being members of the community forwhom those reservations have been made. The classificationin the Communal G.O. proceeds on the basis of religion, raceand caste. In our view, the classification made in the CommunalG.O. is opposed to the Constitution and constitutes clearviolation of the fundamental rights guaranteed to the citizenunder Art. 29(2)…..”18. In view of the aforesaid, the Parliament intervened & introducedclause (4) to Article 15 which provided that if any action was taken bythe State to make special provisions for the advancement of thecommunities specified therein, that could not be challenged on the groundthat it contravened Article 15(1). In other words, specific exceptionwas made to the provisions of Article 15(1) in regard to the backwardcommunities mentioned in Article 15(4). This amendment also showshow progressive democratic legislature does not hesitate even to amendthe Constitution with view to harmonise the fundamental rights of theindividual citizen with the claims of social good.

19. Thus, the decisions of this Court in Champakam Dorairajan(supra) and Kathi Raning Rawat (supra) establish the proposition that,while classification is permissible, it cannot be based on any of the factorsmentioned in the Articles 15 and 16 resply. So far as this proposition oflaw is concerned, it still holds good even after the pronouncement of thisCourt in the case of Indra Sawhney and Others v. Union of Indiaand Others reported in 1992 Supp (3) SCC 217 : AIR 1993 SC 477.

20. Article 16 of the Constitution guarantees equality of opportunityin matters of public employment to all the citizens. Article 16(1) providesthat there shall be equality of opportunity for all citizens in matters relatingto employment or appointment to any office under the State. Clause (2)of Article 16 further amplifies this equality of opportunity in publicemployment, by providing that no citizen shall, on grounds only of religion,race, caste, sex, descent, place of birth, residence or any of them, be

Aineligible for, or discriminated against in respect of, any employment oroffice under the State. Clause (4) of Article 16 reads thus:

“(4) Nothing in this article shall prevent the State frommaking any provision for the reservation of appointmentsor posts in favour of any backward class of citizens which,Bin the opinion of the State, is not adequately represented inthe services under the State.”

21. Article 21 pertains to protection of life and personal libertyand provides that no person shall be deprived of his life or personalliberty except according to the procedure established by law. ThisCimportant guarantee, though seemingly plain, has been interpreted bythis Court as to include variety of rights which would form part of rightto life and personal liberty, without enjoyment of which the rights, likethe right to life and personal liberty would be meaningless and nugatory.Right to education has been recognised as one of the facets of Article21 long before it was codified as one of the fundamental rights separatelyDguaranteed under Article 21-A of the Constitution.

22. The Constitution of India was amended by the Eighty-sixthAmendment Act, 2002, to include the right to education as fundamentalright under Article 21-A providing that “the State shall provide free andcompulsory education to all children of the age of six to fourteen yearsEin such manner as the State may, by law, determine.”

23. Article 29 guarantees protection of interests of minorities andreads as under:-

“29. Protection of interests of minorities. - (1) Any sectionFof the citizens residing in the territory of India or any partthereof having distinct language, script or culture of itsown shall have the right to conserve the same.

(2) No citizen shall be denied admission into anyeducational institution maintained by the State or receivingaid out of State funds on grounds only of religion, race,Gcaste, language or any of them.”

24. Article 30 pertains to the right of minorities to establish andadminister educational institutions. Clause (1) thereof provides that allminorities, whether based on religion or language, shall have the rightto establish and administer educational institutions of their choice.H

25. Article 46 contained in Part IV provides that the State shallpromote with special care the educational and economic interests ofthe weaker sections of the people, and, in particular, of the ScheduledCastes and the Scheduled Tribes, and shall protect them from socialinjustice and all forms of exploitation.

26. The Constitution of India places immense importance on thefundamental rights for which separate chapter was dedicated whileframing the Constitution itself. The fact that Article 32 guaranteeingthe right to move the Supreme Court for appropriate proceedings for theenforcement of rights conferred in Part III itself is contained in thefundamental rights and thus made fundamental right, is strongindication that such rights were considered sacrosanct. However, ithas always been recognised while framing the Constitution as well aswhile interpreting the same that no right of citizen can be absolute andevery right would have reasonable restriction. Article 19, for example,while guaranteeing various individual freedoms to citizens contains variousclauses limiting enjoyment of such rights under specified conditions.Likewise, though Article 14 in plain terms provides that the State shallnot deny to any person equality before the law or the equal protection ofthe laws, since the earliest days of interpretation of the Constitution, ithas been recognised that this does not imply that there shall be one lawwhich must apply to every person and that every law framed mustcorrespondingly cover every person. In legal terminology, it means thoughArticle 14 prohibits class legislation, the same does not preventreasonable classification. It is, of course, true that for the classificationto be valid and to pass the test of reasonableness twin tests laid downby this Court, time and again, must be fulfilled. Such tests are that theclassification must be founded on an intelligible differentia whichdistinguishes persons or things that are grouped together from othersleft out of the group and that the differentia must have rational relationto the object sought to be achieved by the statute in question.

27. Article 14 guarantees equality in very wide terms and isworded in negative term preventing the State from denying any personequality before law or the equal protection of the laws within the territoryof India. Article 15(1), on the other hand, prevents the State fromdiscriminating against any citizen on grounds only of religion, race,caste, sex, place of birth or any of them. Clause (2) of the Articlefurther provides that no citizen shall, on grounds only of religion, race,

Acaste, sex, place of birth or any of them, be subject to any disability,liability, restriction or condition with regard to access to shops, publicrestaurants, use of wells, tanks, bathing ghats, etc. of public resortmaintained wholly or partly out of State funds or dedicated to the use ofgeneral public. Article 16, in turn, pertains to equality of opportunity inmatters of public employment. Clause (1) of Article 16, as already noted,Bguarantees equality of opportunity to all citizens in matters of employmentor appointment to any office under the State. Clause (2) thereof, furtheramplifies that no citizen shall, on grounds only of religion, race, caste,sex, descent, place of birth, residence or any of them, be ineligible for ordiscriminated against in respect of, any employment or office under theCState.28. Thus, Articles 14, 15 and 16 resply are all different facets ofconcept of equality. In different forms, such Articles guarantee equalityof opportunity and equal treatment to all the citizens while specificallymandating that the State shall not discriminate against the citizens onlyDon the grounds of religion, race, caste, sex, descent, place of birth orany of them. Like Article 14, neither Article 15(1) nor Article 16(1)prohibits reasonable classification. In other words, the clauses of Articles15 and 16 respectively guaranteeing non-discrimination on the groundsonly of religion, race, caste, sex, place of birth or equality of opportunityfor all citizens in matters of public employment prohibit hostileEdiscrimination, but not reasonable classification. As in Article 14, aswell in Article 15(1), if it is demonstrated that special treatment is metedout to class of citizens, not only on the ground of religion, race, caste,sex, place of birth or any of them, but due to some special reasons andcircumstances, the enquiry would be, does such classification stand

Fthe test of reasonableness and in the process, it would be the duty of thecourt to examine whether such classification fulfills the above notedtwin conditions, namely, it must be founded on an intelligible differentiawhich distinguishes persons or things that are grouped together fromothers left out of the group and that the differentia must have rationalrelation to the object sought to be achieved by the statute in question.G(See :- Adam B. Chaki v. Government of India, Writ Petition (PIL)No. 20 of 2011 (Guj).)

29. In the case of Mohammad Shujat Ali and others v. Unionof India and others, AIR 1974 SC 1631, Constitution Bench of thisCourt in the context of concept of equality flowing from Articles 14 andH

16 resply of the Constitution observed that Article 16 is an instance orincident of guarantee of equality enshrined in Article 14. It gives effectto the doctrine of equality in the spheres of public employment. Theconstitutional code of equality and equal opportunity, however, does notmean that the same laws must be applicable to all persons. It was heldand observed as under:-

“23. Now we proceed to consider the challenge based oninfraction of Articles 14 and 16 of the Constitution. Article14 ensures to every person equality before law and equalprotection of the laws and Article 16 lays down that thereshall be equality of opportunity for all citizens in mattersrelating to employment or appointment to any office underthe State. Article16isonlyaninstanceorincidentoftheguaranteeofequalityenshrinedinArticle14 : It giveseffect to the doctrine of equality in the spheres of publicemployment. The concept of equal opportunity to be foundin Article 16 permeates the whole spectrum of anindividual’s employment from appointment throughpromotion and termination to the payment of gratuity andpension and gives expression to the ideal of equality ofopportunity which is one of the great socio-economicobjectives set out in the Preamble of the Constitution. Theconstitutional code of equality and equal opportunity,however, does not mean that the same laws must beapplicable to allpersons.ItdoesnotcompeltheStateto“”runallitslawsinthechannelsofgenerallegislation.Itrecognisesthathavingregardtodifferencesand disparitieswhich exist amongmen and things, they cannot all betreated alike by the application of the same laws.“Torecognise marked differences that exist in fact is living law;to disregard practical differences and concentrate on someabstract identities is lifeless logic.” Morey v. Doud, 354U.S. 457, p. 473. The Legislature must necessarily, if it isto be effective at all in solving the manifold problems whichcontinually come before it, enact special legislation directedtowards specific ends and limited in its application tospecial classes of persons or things. “Indeed, the greaterpart of all legislation is special, either in the extent to

which it operates, or the objects sought to be attained byit.” (1889) 134 US 594.

24. We thus arrive at the point at which the demand forequality confronts the right to classify. For it is theclassification which determines the range of personsaffected by the special burden or benefit of law whichdoes not apply to all persons. This brings out paradox.The equal protection of the laws is “pledge of theprotection of equal laws.” But laws may classify. And, aspointed out by Justice Brewer, “the very idea ofclassification is that of inequality’’. The court has tackledthis paradox over the years and in doing so, it has neitherabandoned the demand for equality nor denied thelegislative right to classify. It has adopted middle courseof realistic reconciliation. It has resolved the contradictorydemands of legislative specialization and constitutionalgenerality by doctrine of reasonable classification. Thisdoctrine recognises that the legislature may classify forthe purpose of legislation but requires that the classificationmust be reasonable. It should ensure that persons or thingssimilarly situated are all similarly treated. The measure ofreasonableness of classification is the degree of itssuccess in treating similarly those similarly situated. “TheEqual Protection of the Laws’’, 37 California Law Review,341.

25.But the question is : what does this ambiguous andcrucial phrase“similarly situated’’ mean? Where are we tolook for the test of similarityofsituationwhichdeterminesthereasonablenessofaclassification?Theinescapableansweristhatwemustlookbeyondtheclassification tothepurposeofthelaw. reasonable classification is onewhich includes all persons or things similarly situated withrespect to the purpose of the law. There should be nodiscrimination between one person or thing and another,if as regards the subject-matter of the legislation theirposition is substantially the same. This is sometimesepigrammatically described by saying that what theconstitutional code of equality and equal opportunity

requires is that among equals, the law should be equaland that like should be treated alike. Butthebasicprincipleunderlying the doctrine is that the legislature should havetherighttoclassifyandimposedspecialburdensuponorgrantspecialbenefitstopersonsorthingsgroupedtogetherundertheclassification,so long as theclassification is of persons or things similarly situated withrespect to the purpose of the legislation, so that all personsor thingssimilarlysituatedaretreatedalikebylaw. Thetest which has been evolved for this purpose is % and thistest has been consistently applied by this Court in alldecided cases since the commencement of the Constitution% that the classification must be founded on an intelligibledifferentia which distinguishes certain persons or thingsthat are grouped together from others and that differentiamust have rational relation to the object sought to beachieved by the legislation.” [Emphasis supplied]

30. While doing so, note of caution was sounded that thefundamental guarantee is of equal protection of the laws and the doctrineof classification is only subsidiary rule evolved by the courts to give apractical content to that guarantee by accommodating it with the practicalneeds of the society and it should not be allowed to submerge and drownthe precious guarantee of equality.

31. In the case of State of Kerala and Another v. N.M. Thomasand Others, (1976) 2 SCC 310, Mathew, J. observed that Articles 16(1)and 16(2) resply of the Constitution do not prohibit prescription of areasonable classification for appointment or for promotion. Any provisionas to qualification for employment or appointment to an office reasonablyfixed and applicable to all would be consistent with the doctrine of equalityof opportunity under Article 16(1). It was observed that classification isreasonable if it includes all persons who are similarly situated with respectto the purpose of the law.32. In the case of Indra Sawhney (supra), B.P. Jeevan Reddy, J.in his majority opinion, observed in para 733 that Article 16(1) is facetof Article 14. Just as Article 14 permits reasonable classification sodoes Article 16(1).

A33. In judgment of the Constitution Bench of this Court, in thecase of E.P. Royappa v. State of Tamil Nadu and Another, AIR 1974SC 555, Bhagwati, J. in the context of co-relation between Article 14and Article l6 of the Constitution observed as under: -

“85. The last two grounds of challenge may be taken uptogether for consideration. Though we have formulatedthe third ground of challenge as distinct and separateground it is really in substance and effect merely an aspectof the second ground based on violation of Arts. 14 and16. Article 16 embodies the fundamental guarantee thatthere shall be equality of opportunity for all citizens inmatters relating to employment or appointment to any officeunder the State. Though enacted as distinct andindependent fundamental right because of its greatimportance as principle ensuring equality of opportunityin public employment which is so vital to the building up ofthe new classless egalitarian society envisaged in theConstitution, Art. 16 is only an instance of the applicationof the concept of equality enshrined in Article 14. In otherwords, Art. 14 is the genus while Art. 16 is species. Article16 gives effect to the doctrine of equality in all mattersrelating to public employment. The basic principle which,therefore, informs both Arts. 14 and 16 is equality andinhibition against discrimination. Now, what is the contentand reach of this great equalising principle? It is foundingfaith, to use the words of Bose, J., “a way of life’’, and itmust not be subjected to narrow pedantic orlexicographic approach. We cannot countenance anyattempt to truncate its all embracing scope and meaning,for to do so would be to violate its activist magnitude.Equality is dynamic concept with many aspects anddimensions and it cannot be “cribbed, cabined andconfined’’ within traditional and doctrinaire limits. From apositivistic point of view, equality is antithetic toarbitrariness. In fact equality and arbitrariness are swornenemies; one belongs to the rule of law in republic whilethe other, to the whim and caprice of an absolute monarch.Where an act is arbitrary, it is implicit in it that it is unequalboth according to political logic and constitutional law and

is therefore violative of Article 14, and if it affects anymatter relating to public employment, it is also violative ofArt. 16. Articles 14 and 16 strike at arbitrariness in Stateaction and ensure fairness and equality of treatment. Theyrequire that State action must be based on valid relevantprinciples applicable alike to all similarly situate and itmust not be guided by any extraneous or irrelevantconsiderations because that would be denial of equality.Where the operative reason for State action, asdistinguished from motive inducing from the antechamberof the mind, is not legitimate and relevant but is extraneousand outside the area of permissible considerations, it wouldamount to mala fide exercise of power and that is hit byArts. 14 and 16. Mala fide exercise of power andarbitrariness are different lethal radiations emanating fromthe same vice: in fact the latter comprehends the former.Both are inhibited by Arts. 14 and 16.”

34. Similar observations were made also in the context ofco-relation between Articles 14 and 16 resply in the case ofGovt. of Andhra Pradesh v. P.B. Vijaykumar and another, AIR1995 SC 1648. It was observed thus:

“6. This argument ignores Article 15(3). The interrelationbetween Articles 14, 15 and 16 has been considered in anumber of cases by this Court. Art. 15 deals with everykind of State action in relation to the citizens of this country.Every sphere of activity of the State is controlled by Article15(1). There is, therefore, no reason to exclude from theambit of Article 15(1) employment under the State. At thesame time Article 15(3) permits special provisions forwomen. Both Arts. 15(1) and 15(3) go together. In additionto Art. 15(1) Art. 16(1), however, places certain additionalprohibitions in respect of specific area of State activityviz. employment under the State. These are in addition tothe grounds of prohibition enumerated under Article 15(1)which are also included under Article 16(2). There are,however, certain specific provisions in connection withemployment under the State under Article 16. Article 16(3)permits the State to prescribe requirement of residence

within the State or Union Territory by parliamentarylegislation; while Article 16(4) permits reservation of postsin favour of backward classes. Article 16(5) permits lawwhich may require person to profess particular religionor may require him to belong to particular religiousdenomination, if he is the incumbent of an office inconnection with the affairs of the religious ordenominational institution. Therefore, the prohibitionagainst discrimination of the grounds set out in Article 16(2)in respect of any employment or office under the State isqualified by clauses 3,4 and 5 of Article 16. Therefore, indealing with employment under the State, it has to bear inmind both Articles 15 and 16 % the former being moregeneral provision and the latter, more specific provision.Since Article 16 does not touch upon any special provisionfor women being made by the State, it cannot in any mannerderogate from the power conferred upon the State in thisconnection under Article 15(3). This power conferred byArticle 15(3) is wide enough to cover the entire range ofState activity including employment under the State.”

35. In the case of State of Kerala v. N.M. Thomas (supra),A.N. Ray, CJ also advanced this theory, observing that there is nodenial of equality of opportunity unless the person who complains ofdiscrimination is equally situated with the person or persons who arealleged to have been favoured. Article 16(1) does not bar reasonableclassification. It was observed as under:-

“27. There is no denial of equality of opportunity unlessthe person who complains of discrimination is equallysituated with the person or persons who are alleged tohave been favoured. Article 16(1) does not bar areasonable classification of employees or reasonable testsfor their selection (State of Mysore v. V. P. Narasing Rao(1968) 1 SCR 407 : AIR 1968 SC 349 : (1968) 2 LLJ120).

28.This equality of opportunity need not be confusedwith absolute equality. Article 16(1) does not prohibit theprescription of reasonable rules for selection to anyemployment or appointment to any office. In regard to

employment, like other terms and conditions associated withand incidental to it, the promotion to selection post isalso included in the matters relating to employment andeven in regard to such promotion to selection post allthat Article 16(1) guarantees is equality of opportunity toall citizens. Articles 16(1) and (2) give effect to equalitybefore law guaranteed by Article 14 and to the prohibitionof discrimination guaranteed by Article 15(1). Promotionto selection post is covered by Article 16(1) and (2).

30. Under Article 16(1) equality of opportunity ofemployment means equality as between members of thesame class of employees and not equality between membersof separate, independent class. The Roadside StationMasters and Guards are recruited separately, trainedseparately and have separate avenues of promotion. TheStation Masters claimed equality of opportunity forpromotion vis-a-vis the guards on the ground that they wereentitled to equality of opportunity. It was said the conceptof equality can have no existence except with reference tomatters which are common as between individuals, betweenwhom equality is predicated. The Roadside Station Mastersand Guards were recruited separately. Therefore, the twoform distinct and separate classes and there is no scopefor predicating equality or inequality of opportunity inmatters of promotion. (See All India Station Masters andAssistant Station Masters’ Association v. General Manager,Central Railway (1960) 2 SCR 311 : AIR 1960 SC 384).The present case is not to create separate avenues ofpromotion for these persons.

31. The rule of parity is the equal treatment of equals inequal circumstances. The rule of differentiation is enactinglaws differentiating between different persons or things indifferent circumstances. The circumstances which governone set of persons or objects may not necessarily be thesame as those governing another set of persons or objectsso that the question of unequal treatment does not reallyarise between persons governed by different conditions

Aand different sets of circumstances. The principle of equalitydoes not mean that every law must have universalapplication for all persons who are not by nature,attainment or circumstances in the same position and thevarying needs of different classes of persons require specialtreatment. The Legislature understands and appreciates theBneed of its own people, that its laws are directed to problemsmade manifest by experience and that its discriminationsare based upon adequate grounds. The rule ofclassification is not natural and logical corollary of therule of equality, but the rule of differentiation is inherentCin the concept of equality. Equality means parity oftreatment under parity of conditions. Equality does notconnote absolute equality. classification in order to beconstitutional must rest upon distinctions that aresubstantial and not merely illusory. The test is whether ithas reasonable basis free from artificiality andDarbitrariness embracing all and omitting none naturallyfalling into that category.”

36. Education, by now, which is well recognised through judicialpronouncements and outside, is perhaps the most fundamental requirementof development. Without access to quality basic education, it would beEimpossible in the modern world to expect any individual, race, class orcommunity to make any real advancement. While recognising the roleof education to achieve development and to provide equality ofopportunity, the Courts have also recognised that the State has animportant role, in fact an obligation, to provide quality basic education to

Fall the citizens. Long before the Constitution was amended by introductionof Article 21-A, providing for free and compulsory education to childrenbetween age of 6 and 14 years, this Court had been expanding this principlethrough purposive interpretation and meaningful construction of guaranteeto life and liberty enshrined under Article 21 of the Constitution. In case

of Mohini Jain (Miss) v. State of Karnataka and Others, (1992) 3GSCC 666, this Court observed as under: -

“9.The directive principles which are fundamental in thegovernance ofthe country cannot be isolated from thefundamental rights guaranteedunderPart III.Theseprincipleshavetobereadintothefundamentalrights.Both

aresupplementarytoeachother.TheStateisunderaconstitutionalmandatetocreateconditionsinwhichthefundamentalrightsguaranteedtotheindividualsunderPartIIIcouldbeenjoyedbyall.Withoutmaking“righttoeducation”underArticle41oftheConstitutionarealitythefundamentalrightsunderChapterIIIshall remainbeyond the reach of large majority which is illiterate.

12. “Right to life” is the compendious expression for allthose rights which the Courts must enforce because theyare basic to the dignified enjoyment of life. It extends tothe full range of conduct which the individual is free topursue. The right to education flows directly from right tolife. The right to life under Article 21 and the dignity of anindividual cannot be assured unless it is accompanied bythe right to education. The State Government is under anobligation to make endeavour to provide educationalfacilities at all levels to its citizens.

13. The fundamental rights guaranteed under Part III ofthe Constitution of India including the right to freedom ofspeech and expression and other rights under Article 19cannot be appreciated and fully enjoyed unless citizenis educated and is conscious of his individualistic dignity.

14. The “right to education”, therefore, is concomitant tothe fundamental rights enshrined under Part III of theConstitution. The State is under constitutional mandateto provide educational institutions at all levels for thebenefit of the citizens. The educational institutions mustfunction to the best advantage of the citizens. Opportunitytoacquire educationcannotbeconfinedtotherichersectionofthesociety.Increasingdemandformedicaleducationhasledto the opening of large number of medicalcolleges by private persons,groupsandtrustswiththepermissionandrecognitionofStateGovernments. TheKarnataka State has permitted the opening of several newmedical colleges under various private bodies andorganisations. These institutions are charging capitation

CDE

fee as consideration for admission. Capitation fee isnothing but price for selling education. The concept of‘teaching shops’ is contrary to the constitutional schemeand is wholly abhorrent to the Indian culture and heritage.As far back as December 1980 the Indian MedicalAssociation in its 56th All India Medical Conference heldat Cuttack on December 28-30, 1980 passed the followingresolutions:

“The 56th All India Medical Conference views with greatconcern the attitude of State Governments particularly theState Government of Karnataka in permitting the openingof new medical colleges under various bodies andorganisations in utter disregard to the recommendationsof Medical Council of India and urges upon the authoritiesand the Government of Karnataka not to permit the openingof any new medical college, by private bodies.

It further condemns the policy of admission on thebasis of capitation fees. This commercialisation ofmedical education endangers the lowering ofstandards of medical education and encourages badpractice.””[Emphasis supplied]

37. In the case of Unni Krishnan, J.P. and Others v. State ofAndhra Pradesh and Others, (1993) 1 SCC 645, the decision in thecase of Mohini Jain (supra) came up for consideration before largerBench of this Court. While not approving the judgment in toto, the aboveconcept was further expanded and refined. It was observed as under: -

“168. In Brown v. Board of Education [98 L Ed 873 : 347US 483 (1954)] Earl Warren, C. J., speaking for the U.S.Supreme Court emphasised the right to education in thefollowing words:

“Today, education is perhaps the mostimportant function of State and local governments.... It is required in the performance of our most basicresponsibilities, even service in the armed forces. Itis the very foundation of good citizenship. Today itis the principal instrument in awakening the child tocultural values, in preparing him for later

professional training, and in helping him to adjustnormally to his environment. In these days, it isdoubtful any child may reasonably be expected tosucceed in life if he is denied the opportunity of aneducation.”

169. In Wisconsin v. Yoder [32 L Ed 2d 15 : 406 US 205(1971)] the court recognised that:

“Providing public schools ranks at the veryapex of the function of State.”

The said fact has also been affirmed by eminenteducationists of modern India like Dr Radhakrishnan, J.P. Naik, Dr Kothari and others.

170. It is argued by some of the counsel for the petitionersthat Article 21 is negative in character and that it merelydeclares that no person shall be deprived of his life orpersonal liberty except according to the procedureestablished by law. Since the State is not depriving therespondents’-students of their right to education, Article21 is not attracted, it is submitted. If and when the Statemakes law taking away the right to education, wouldArticle 21 be attracted, according to them. This argument,in our opinion, is really born of confusion; at any rate, itis designed to confuse the issue. The first question iswhether the right to life guaranteed by Article 21 doestake in the right to education or not. It is then that thesecond question arises whether the State is taking awaythat right. The mere fact that the State is not taking awaythe right as at present does not mean that right to educationis not included within the right to life. The content of theright is not determined by perception of threat. The contentof right to life is not to be determined on the basis ofexistence or absence of threat of deprivation. The effectof holding that right to education is implicit in the right tolife is that the State cannot deprive the citizen of his rightto education except in accordance with the procedureprescribed by law.

171. In the above state of law, it would not be correct tocontend that Mohini Jain [Mohini Jain v. State ofKarnataka, (1992) 3 SCC 666] was wrong insofar as itdeclared that “the right to education flows directly fromright to life”. But the question is what is the content of thisright? How much and what level of education is necessaryto make the life meaningful? Does it mean that every citizenof this country can call upon the State to provide himeducation of his choice? In other words, whether the citizensof this country can demand that the State provide adequatenumber of medical colleges, engineering colleges and othereducational institutions to satisfy all their educationalneeds? Mohini Jain [Mohini Jain v. State of Karnataka,(1992) 3 SCC 666] seems to say, yes. With respect, we cannotagree with such broad proposition. The right to educationwhich is implicit in the right to life and personal libertyguaranteed by Article 21 must be construed in the light ofthe directive principles in Part IV of the Constitution. Sofar as the right to education is concerned, there are severalarticles in Part IV which expressly speak of it. Article 41says that the “State shall, within the limits of its economiccapacity and development, make effective provision forsecuring the right to work, to education and to publicassistance in cases of unemployment, old age, sicknessand disablement, and in other cases of undeserved want”.Article 45 says that “the State shall endeavour to provide,within period of ten years from the commencement ofthis Constitution, for free and compulsory education forall children until they complete the age of fourteen years”.Article 46 commands that “the State shall promote withspecial care the educational and economic interests of theweaker sections of the people, and, in particular, of theScheduled Castes and the Scheduled Tribes, and shallprotect them from social injustice and all forms ofexploitation”. Education means knowledge % and“knowledge itself is power”. As rightly observed by JohnAdams, “the preservation of means of knowledge amongthe lowest ranks is of more importance to the public thanall the property of all the rich men in the country”.

(Dissertation on Canon and Feudal Law, 1765) It is thisconcern which seems to underlie Article 46. It is the tyrantsand bad rulers who are afraid of spread of education andknowledge among the deprived classes. Witness Hitlerrailing against universal education. He said: “Universaleducation is the most corroding and disintegrating poisonthat liberalism has ever invented for its own destruction.”(Rauschning, The Voice of Destruction: Hitler speaks.) Atrue democracy is one where education is universal, wherepeople understand what is good for them and the nationand know how to govern themselves. The three Articles45, 46 and 41 are designed to achieve the said goal amongothers. It is in the light of these Articles that the contentand parameters of the right to education have to bedetermined. Right to education, understood in the contextof Articles 45 and 41, means: (a) every child/citizen ofthis country has right to free education until he completesthe age of fourteen years, and (b) after child/citizencompletes 14 years, his right to education is circumscribedby the limits of the economic capacity of the State and itsdevelopment. We may deal with both these limbs separately.172. Right to free education for all children until theycomplete the age of fourteen years (Art.45). It is noteworthythat among the several articles in Part IV, only Article 45speaks of time-limit; no other article does. Has it nosignificance? Is it mere pious wish, even after 44 yearsof the Constitution? Can the State flout the said directioneven after 44 years on the ground that the article merelycalls upon it to “endeavour to provide” the same and onthe further ground that the said article is not enforceableby virtue of the declaration in Article 37. Does not thepassage of 44 years % more than four times the periodstipulated in Article 45 % convert the obligation createdby the article into an enforceable right? In this context, wefeel constrained to say that allocation of available fundsto different sectors of education in India discloses aninversion of priorities indicated by the Constitution. TheConstitution contemplated crash programme being

ABC

undertaken by the State to achieve the goal set out inArticle 45. It is relevant to notice that Article 45 does notspeak of the “limits of its economic capacity anddevelopment” as does Article 41, which inter alia speaksof right to education. What has actually happened is %more money is spent and more attention is directed to highereducation than to % and at the cost of % primaryeducation. (By primary education, we mean the education,which normal child receives by the time he completes 14years of age.) Neglected more so are the rural sectors,and the weaker sections of the society referred to in Article46. We clarify, we are not seeking to lay down the prioritiesfor the government % we are only emphasising theconstitutional policy as disclosed by Articles 45, 46 and41. Surely the wisdom of these constitutional provisions isbeyond question. This inversion of priorities has beencommented upon adversely by both the educationists andeconomists.

173. Gunnar Myrdal, the noted economist and sociologist,a recognised authority on South Asia, in his book ‘AsianDrama’ (Abridged Edition % published in 1972) makesthese perceptive observations at page 335:

“But there is another and more valid criticism tomake. Although the declared purpose was to givepriority to the increase of elementary schooling inorder to raise the rate of literacy in the population,what has actually happened is that secondaryschooling has been rising much faster and tertiaryschooling has increased still more rapidly. There isa fairly general tendency for planned targets ofincreased primary schooling not to be reached,whereas targets are over-reached, sometimessubstantially, as regards increases in secondary and,particularly, tertiary schooling. This has all happenedin spite of the fact that secondary schooling seemsto be three to five times more expensive than primaryschooling, and schooling at the tertiary level five toseven times more expensive than at the secondarylevel.

What we see functioning here is the distortion ofdevelopment from planned targets under the influenceof the pressure from parents and pupils in the upperstrata who everywhere are politically powerful. Evenmore remarkable is the fact that this tendency todistortion from the point of view of the planningobjectives is more accentuated in the poorestcountries, Pakistan, India, Burma and Indonesia,which started out with far fewer children in primaryschools and which should therefore have the strongestreasons to carry out the programme of giving primaryschooling the highest priority. It is generally thepoorest countries that are spending least, evenrelatively, on primary education, and that arepermitting the largest distortions from the plannedtargets in favour of secondary and tertiaryeducation.”174.In his other book Challenge of World Poverty(published in 1970, Chapter 6 ‘Education’) he discusseselaborately the reasons for and the consequences of neglectof basic education in this country. He quotes J.P. Naik,(the renowned educationist, whose Report of the EducationCommission, 1966 is still considered to be the mostauthoritative study of the education scene in India) assaying “Educational development … is benefitting the‘haves’ more than the ‘have nots’. This is negation ofsocial justice and ‘planning’ proper” % and ourConstitution speaks repeatedly of social justice [Preambleand Article 38(1)]. As late as 1985, the Ministry ofEducation had this to say in para 3.74 of its publicationChallenge of Education % Policy Perspective. It is statedthere:

“3.74. Considering the constitutional imperativeregarding the universalisation of elementaryeducation it was to be expected that the share ofthis sector would be protected from attribution (sic).Facts, however, point in the opposite direction. Froma share of 56 per cent in the First Plan, it declined to35 per cent in the Second Plan, to 34 per cent in

the Third Plan, to 30 per cent in the Fourth Plan. Itstarted going up again only in the Fifth Plan, whenit was at the level of 32 per cent, increasing in SixthPlan to 36 per cent, still 20 per cent below the FirstPlan level. On the other hand, between the First andthe Sixth Five Year Plans, the share of universityeducation went up from 9 per cent to 16 per cent.”

175. Be that as it may, we must say that at least now theState should honour the command of Article 45. It must bemade reality % at least now. Indeed, the NationalEducation Policy 1986 says that the promise of Article 45will be redeemed before the end of this century. Be that as

it may, we hold that child (citizen) has fundamentalright to free education up to the age of 14 years.”

38. The decision of this Court in the case of Unni Krishnan(supra) was later on overruled in larger Bench decision in the case ofDT.M.A. Pai Foundation and Others v. State of Karnataka and Others,(2002) 8 SCC 481, but on different point.

39. In the case of Society for Unaided Private Schools ofRajasthan v. Union of India and Another, (2012) 6 SCC 1, this Courtconsidered the validity of the Right of Children to Free and CompulsoryEducation Act, 2009 insofar as it made the provisions therein applicableto unaided non-minority schools. S.H. Kapadia, CJ, speaking for themajority, observed as under:

“27. At the outset, it may be stated, that fundamental rightshave two aspects%they act as fetters on plenary legislativepowers and, secondly, they provide conditions for fullerdevelopment of our people including their individualdignity. Right to live in Article 21 covers access toeducation. But unaffordability defeats that access. Itdefeats the State’s endeavour to provide free andcompulsory education for all children of the specified age.To provide for free and compulsory education in Article45 is not the same thing as to provide free and compulsoryeducation. The word “for” in Article 45 is preposition.The word “education” was read into Article 21 by the

judgments of this Court. However, Article 21 merelydeclared “education” to fall within the contours of rightto live.

28. To provide for right to access education, Article 21-Awas enacted to give effect to Article 45 of the Constitution.Under Article 21-A, right is given to the State to provideby law “free and compulsory education”. Article 21-Acontemplates making of law by the State. Thus, Article21-A contemplates right to education flowing from the lawto be made which is the 2009 Act, which is child-centricand not institution-centric. Thus, as stated, Article 21-Aprovides that the State shall provide free and compulsoryeducation to all children of the specified age in such manneras the State may, by law, determine. The manner in whichthis obligation will be discharged by the State has beenleft to the State to determine by law. The 2009 Act is thusenacted in terms of Article 21-A. It has been enactedprimarily to remove all barriers (including financialbarriers) which impede access to education.”

40. I am conscious of the fact that the economically weakersections of the citizens are not declared as socially and economicallybackward classes (SEBCs) for the purpose of Article 15(4) of theConstitution. However, for the purpose of judging the validity of theimpugned amendment, this, in my view, would not be of any consequence.One should take notice of the fact that Article 16(4) of the Constitutionrefers to backward class of citizens, which in the opinion of the State, isnot adequately represented in the services under the State. In such acase, it is provided that nothing in that Article shall prevent the Statefrom making any provision for the reservation of appointments or postsin favour of such backward classes of the citizens. On the other hand,Article 15(4) refers to socially and educationally backward classes ofcitizens along with the Scheduled Castes or the Scheduled Tribes andprovides that nothing in that Article or Article 29(2) shall prevent theState from making any special provision for the advancement of suchclasses. Article 16(4) pertains to backward class of citizens for thepurpose of making reservation in public employment. Article 15(4), onthe other hand, refers to socially and educationally backward classes forthe purpose of making any special provision by the State for the

Aadvancement of such classes. While affirmative action implied in Article16(4) is restricted to reservation in employment, Article 15(4) has widercanvass and reach by virtue of the pronounced purpose of making specialprovision.

41. Such distinction between the two provisions was noticed byBthis Court in the case of Indra Sawhney (supra) wherein Reddy, J.speaking for the majority, observed as under:

“(c) Whether the backwardness in Article 16(4) shouldbe both social and educational?

786. The other aspect to be considered is whether thebackwardness contemplated in Article 16(4) is socialbackwardness or educational backwardness or whether itis both social and educational backwardness. Since thedecision in Balaji (M.R. Balaji v. State of Mysore, 1963Supp 1 SCR 439: AIR 1963 SC 649) it has been assumedthat the backward class of citizens contemplated by Article16(4) is the same as the socially and educationally backwardclasses, Scheduled Castes and Scheduled Tribes mentionedin Article 15(4). Though Article 15(4) came into existencelater in 1951 and Article 16(4) does not contain thequalifying words “socially and educationally” precedingthe words “backward class of citizens” the same meaningcame to be attached to them. Indeed, it was stated in JankiPrasad Parimoo (Janki Prasad Parimoo v. State of J & K,(1973) 1 SCC 420: 1973 SCC (L&S) 217: (1973) 3 SCR236) (Palekar, J speaking for the Constitution Bench) that:

“Article 15(4) speaks about ‘socially andeducationally backward classes of citizens’ whileArticle 16(4) speaks only of ‘any backward classcitizens’. However, it is now settled that theexpression ‘backward class of citizens’ in Article16(4) means the same thing as the expression ‘anysocially and educationally backward class of citizens’in Article 15(4). In order to qualify for being calleda ‘backward class citizen’ he must be member of asocially and educationally backward class. It is socialand educational backwardness of class which is

material for the purposes of both Articles 15(4) and16(4).”

787. It is true that no decision earlier to it specificallysaid so, yet such an impression gained currency and it isthat impression which finds expression in the aboveobservation. In our respectful opinion, however, the saidassumption has no basis. Clause (4) of Article 16 doesnot contain the qualifying words “socially andeducationally” as does clause (4) of Article 15. It may beremembered that Article 340 (which has remainedunamended) does employ the expression ‘socially andeducationally backward classes’ and yet that expressiondoes not find place in Article 16(4). The reason is obvious:“backward class of citizens” in Article 16(4)takesinScheduledTribes,ScheduledCastesandallotherbackwardclassesofcitizensincludingthesociallyandeducationallybackwardclasses. Thus, certain classes which may notqualify for Article 15(4) mayqualifyforArticle16(4).TheymaynotqualifyforArticle15(4)buttheymay qualify asbackward class of citizens for the purposes of Article 16(4).It isequallyrelevanttonoticethatArticle340doesnotexpresslyrefertoservices or to reservations in servicesunder the State, though it may bethat the Commissionappointed thereunder may recommend reservationinappointments/postsintheservicesoftheStateasoneofthestepsfor removing the difficulties under which SEBCsare labouring and forimprovingtheirconditions.Thus,SEBCs referredto in Article 340is onlyoneofthecategoriesforwhomArticle16(4)wasenacted:Article16(4)applies to much larger class than the onecontemplated by Article 340. Itwould, thus, be not correctto say that ‘backward class of citizens’ in Article16(4)arethesameasthesociallyand educationally backwardclassesin Article 15(4). Sayingsowouldmean andimplyreadinga limitation intoabeneficialprovisionlikeArticle16(4).Moreover,whenspeakingof reservationinappointments/postsintheStateservices%whichmaymean,

234SUPREME COURT REPORTS

[2022] 14 S.C.R.

at any level whatsoever% insisting uponeducational backwardness may not be quiteappropriate.” (Emphasis supplied)

42. Despite such legal distinction drawn by this Court betweenthe “backward classes” referred to in Article 16(4) and “socially andBeducationally backward classes” referred to in Article 15(4) of theConstitution, in the practice which has developed over period of time,such distinction has been virtually obliterated. It is an undisputed positionthat the State has been categorising various classes and communities associally and educationally backward classes (SEBCs) often referred toin popular term as the Other Backward Classes or OBCs. Such list isCcommon for both the benefits envisaged under Article 16(4) of theConstitution as well as Article 15(4). In other words, it is this very listof SEBCs which is utilised by the State organs for the purpose of grantingreservation in public employment in terms of Article 16(4) of theConstitution. This very classification of the SEBC status also qualifiesDthe member of the community to reservation in education includingprofessional courses which would flow from the provisions made in Article15(4) of the Constitution.

43. Though previously Articles 15(4) and 16(4) resply were seenas exception of the equality enshrined in the Articles 15(1) and 16(1)Erespectively, this understanding of the constitutional provisions underwenta major change in the decision in N.M. Thomas (supra). Mathew J,observed as under:-

“78. I agree that Article 16(4) is capable of beinginterpreted as an exception to Article 16(1) if the equalityFof opportunity visualized in Article 16(1) is sterile one,geared to the concept of numerical equality which takesno account of the social, economic, educationalbackground of the members of scheduled castes andscheduled tribes. If equality of opportunity guaranteedunder Article 16(1) means effective material equality, thenGArticle 16(4) is not an exception to Article 16(1). It is onlyan emphatic way of putting the extent to which equality ofopportunity could be carried viz., even upto the point ofmaking reservation.”

44. This change in the approach was noticed and amplified by thisCourt in the larger Bench judgment in the case of Indra Sawhney (supra).It was observed as under: -

“741. In Balaji [M.R. Balaji v. State of Mysore,1963 Supp1 SCR 439 : AIR 1963 SC 649] it was held — “there is nodoubt that Article 15(4) has to be read as proviso or anexception to Articles 15(1) and 29(2)”. It was observedthat Article 15(4) was inserted by the First Amendment inthe light of the decision in Champakam [ State of Madrasv. Smt Champakam Dorairajan, 1951 SCR 525 : AIR 1951SC 226], with view to remove the defect pointed out bythis court namely, the absence of provision in Article 15corresponding to clause (4) of Article 16.Following Balaji [M.R. Balaji v. State of Mysore, 1963Supp 1 SCR 439 : AIR 1963 SC 649] it was held by anotherConstitution Bench (by majority) in Devadasan [T.Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964SC 179 : (1965) 2 LLJ 560] — “further this Court hasalready held that clause (4) of Article 16 is by way of aproviso or an exception to clause (1)”. Subba Rao, J,however, opined in his dissenting opinion that Article 16(4)is not an exception to Article 16(1) but that it is only anemphatic way of stating the principle inherent in the mainprovision itself. Be that as it may, since the decisionin Devadasan [T. Devadasan v. Union of India, (1964) 4SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] , it wasassumed by this Court that Article 16(4) is an exception toArticle 16(1). This view, however, received severe setbackfrom the majority decision in State of Kerala v. N.M.Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227 : (1976)1 SCR 906]. Though the minority (H.R. Khanna and A.C.Gupta, JJ) stuck to the view that Article 16(4) is anexception, the majority (Ray, CJ, Mathew, Krishna Iyerand Fazal Ali, JJ) held that Article 16(4) is not an exceptionto Article 16(1) but that it was merely an emphatic way ofstating principle implicit in Article 16(1). (Beg, J took aslightly different view which it is not necessary to mentionhere.) The said four learned Judges — whose views have

been referred to in para 713 — held that Article 16(1) beinga facet of the doctrine of equality enshrined in Article 14permits reasonable classification just as Article 14 does.In our respectful opinion, the view taken by the majorityin Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227 :(1976) 1 SCR 906] is the correct one. We too believe thatArticle 16(1) does permit reasonable classification forensuring attainment of the equality of opportunity assuredby it. For assuring equality of opportunity, it may well benecessary in certain situations to treat unequally situatedpersons unequally. Not doing so, would perpetuate andaccentuate inequality. Article 16(4) is an instance of suchclassification, put in to place the matter beyondcontroversy. The “backward class of citizens” areclassified as separate category deserving specialtreatment in the nature of reservation of appointments/postsin the services of the State. Accordingly, we hold that clause(4) of Article 16 is not exception to clause (1) of Article16. It is an instance of classification implicit in andpermitted by clause (1). The speech of Dr Ambedkar duringthe debate on draft Article 10(3) [corresponding to Article16(4)] in the Constituent Assembly — referred to in para693 — shows that substantial number of members of theConstituent Assembly insisted upon “provision (being)made for the entry of certain communities which have sofar been outside the administration”, and that draft clause(3) was put in in recognition and acceptance of the saiddemand. It is provision which must be read along withand in harmony with clause (1). Indeed, even without clause(4), it would have been permissible for the State to haveevolved such classification and made provision forreservation of appointments/posts in their favour. Clause(4) merely puts the matter beyond any doubt in specificterms.

742. Regarding the view expressed in Balaji [ M.R. Balajiv. State of Mysore, 1963 Supp 1 SCR 439 : AIR 1963 SC649] and Devadasan [T. Devadasan v. Union of India,(1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560],

it must be remembered that at that time it was not yetrecognised by this Court that Article 16(1) being facetof Article 14 does implicitly permit classification. Once thisfeature was recognised the theory of clause (4) being anexception to clause (1) became untenable. It had to beaccepted that clause (4) is an instance of classificationinherent8 in clause (1). Now, just as Article 16(1) is facetor an elaboration of the principle underlying Article 14,clause (2) of Article 16 is also an elaboration of facet ofclause (1). If clause (4) is an exception to clause (1) thenit is equally an exception to clause (2). Question then arises,in what respect if clause (4) an exception to clause (2), if‘class’ does not means ‘caste’. Neither clause (1) norclause (2) speak of class. Does the contention mean thatclause (1) does not permit classification and thereforeclause (4) is an exception to it. Thus, from any point ofview, the contention of the petitioners has no merit.”

45. In that context, this Court answered the question whetherArticle 16(4) is exhaustive of the very concept of reservation. It washeld that though Article 16(4) is exhaustive for reservation in favour ofbackward classes and no further special treatment is permissible in theirfavour outside of Article 16(4), Article 16(4) itself is not exhaustive ofthe concept of reservation. It was held that Article 16(1) itself, of course,in very exceptional situations and not for all and sundry reasons permitsreservations. The contention that Article 16(1) permits preferentialtreatment and not reservation was thus rejected.46. According to the Constitutional scheme, the right to educationforms part of the right to life under Article 21 and the right to educationis incorporated separately and in clear terms as an independentfundamental right in the form of Article 21-A. That Article is couched inthe language which is mandatory insofar as the State is obliged to providefree and compulsory education to all children of the age of 6 to 14years. The matter of free and compulsory primary education has beenperceived to be so important even at the time of drafting of the Constitutionthat Articles 45 and 46 resply were incorporated in Part IV of theConstitution to lay the principles fundamental in the governance of thecountry and they were made the duty of the State to apply thoseprinciples in making laws by virtue of Article 37. Now that right to

Aeducation is not only declared as fundamental right of every child, butthe State has been obliged to provide free and compulsory education, noauthority which is the State within the definition contained in Article 12could legitimately renege on the constitutional covenant. The phrase“free and compulsory education” in Article 21-A clearly makes itobligatory on the State to not only provide necessary funds and facilitiesBfor free, but also compulsory education. Thus, the State is under anobligation to apply the provisions contained in Articles 45 and 46 resplyto provide childhood care and primary education and promote with specialcare the educational and economic interests of the weaker sections ofthe people and protect them from social injustice. (See : Adam B.CChaki (supra))CONSTITUTIONAL VALIDITY OF CLAUSE (5) INARTICLE 15

47. The constitutional validity of clause (5) in Article 15 of theConstitution introduced by the Constitution (93[rd] Amendment) Act, 2005Dwas made the subject matter of challenge before this Court in PramatiEducational and Cultural Trust (Registered) and Others v. Unionof India and Others, (2014) 8 SCC 1.

48. The constitutional validity of clause (5) in Article 15 wasessentially challenged on the ground that the same is violative of ArticleE19(1)(g) of the Constitution, inasmuch as it compels the private educationalinstitutions to give up share of the available seats to the candidateschosen by the State and such appropriation of seats would not be aregulatory measure and not reasonable restriction on the rightunder Article 19(1)(g) of the Constitution within the meaning of ArticleF19(6) of the Constitution. It was further argued that clause (5) of Article15 of the Constitution, as its very language, indicates would not apply tothe minority educational institutions referred to in clause (1) of Article30 of the Constitution. It was argued that thus it violated Article 14 because the aided minority institutions and unaided minority institutionscannot be treated alike. It was also argued that clause (5) of ArticleG15 of the Constitution is discriminatory and violative of the equality clausein Article 14 of the Constitution, which is basic feature of theConstitution.

49. On the other hand, while defending clause (5) of Article 15 ofthe Constitution, it was argued on behalf of the Union of India that clauseH

(5) of Article 15 of the Constitution is only an enabling provisionempowering the State to make special provision, by law, for theadvancement of socially and educationally backward classes of citizensor for the Scheduled Castes and the Scheduled Tribes insofar as suchspecial provisions relate to their admission to educational institutionsincluding the private educational institutions. It was also argued that Article15(5) is consistent with the socialistic goals set out in the Preamble andthe Directive Principles in Part IV and to ensure the march and progressof the weaker sections resulting in progress to socialistic democraticState establishing the egalitarian ethos/egalitarian equality which is themandate of the Constitution and has also been recognised by this Courtin the case of M. Nagaraj and Others v. Union of India and Others,(2006) 8 SCC 212 : AIR 2007 SC 71. It was argued that this Court inM.R. Balaji and Others v. State of Mysore (1963) Supp 1 SCR 439,disagreed with the judgment in the State of Madras v. Sm. ChampakamDorairajan (supra) and upheld that Article 46 of the Constitution chargesthe State with promoting with special care the educational and economicinterests of the weaker sections of the society. The underlying logicbehind the judgment in M.R. Balaji (supra) has logically flown from themandate of Article 15(4), Article 16(4), Article 38, Article 45 and Article46 resply and that Article 15(5) is only continuation of that process.Much emphasis was laid on the fact that when the elementary educationhas been made fundamental right, in order to make that objective moremeaningful, it was also necessary for the State to ensure that even inhigher education, there must be affirmative equality by providing chancesor opportunities to the socially and educationally backward classes.

50. The Constitution Bench, in Pramati Educational andCultural Trust (supra), after due consideration of the rival contentionscanvassed on either side and while upholding the validity of clause (5) ofArticle 15 of the Constitution, held as under:

“29. We may now examine whether the Ninety-third Amendmentsatisfies the width test. plain reading of clause (5) of Article15 would show that the power of State to make law canonly be exercised where it is necessary for advancement ofsocially and educationally backward classes of citizens orfor the Scheduled Castes and Scheduled Tribes and not forany other purpose. Thus, if law is made by the State only toappease class of citizen which is not socially or

educationally backward or which is not Scheduled Casteor Scheduled Tribe, such law will be beyond the powers ofthe State under clause (5) of Article 15 of the Constitution. Aplain reading of clause (5) of Article 15 of the Constitutionwill further show that such law has to be limited to making aspecial provision relating to admission to private educationalinstitutions, whether aided or unaided, by the State. Hence, ifthe State makes law which is not related to admission ineducational institutions and relates to some other aspectsaffecting the autonomy and rights of private educationalinstitutions as defined by this Court in T.M.A. Pai Foundation[T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC481], such law would not be within the power of the Stateunder clause (5) of Article 15 of the Constitution. In otherwords, power in clause (5) of Article 15 of the Constitution isa guided power to be exercised for the limited purposes statedin the clause and as and when law is made by the State inpurported exercise of the power under clause (5) of Article15 of the Constitution, the Court will have to examine andfind out whether it is for the purposes of advancement of anysocially and educationally backward classes of citizens orfor the Scheduled Castes and the Scheduled Tribes andwhether the law is confined to admission of such socially andeducationally backward classes of citizens or for theScheduled Castes and the Scheduled Tribes to privateeducational institutions, whether aided or unaided, and ifthe Court finds that the power has not been exercised for thepurposes mentioned in clause (5) of Article 15 of theConstitution, the Court will have to declare the law as ultravires Article 19(1)(g) of the Constitution. In our opinion,therefore, the width of the power vested on the State underclause (5) of Article 15 of the Constitution by theconstitutional amendment is not such as to destroy the rightunder Article 19(1)(g) of the Constitution.

30. We may now examine the contention of Mr Nariman thatclause (5) of Article 15 of the Constitution fails to make adistinction between aided and unaided educationalinstitutions and treats both aided and unaided alike in the

matter of making special provisions for admission of sociallyand educationally backward classes of citizens or for theScheduled Castes and Scheduled Tribes. The distinctionbetween private aided educational institution and privateunaided educational institution is that private educationalinstitutions receive aid from the State, whereas private unaidededucational institutions do not receive aid from the State. Asand when law is made by the State under clause (5) of Article15 of the Constitution, such law would have to be examinedwhether it has taken into account the fact that private unaidededucational institutions are not aided by the State and hasmade provisions in the law to ensure that private unaidededucational institutions are compensated for the admissionsmade in such private unaided educational institutions fromamongst socially and educationally backward classes ofcitizens or the Scheduled Castes and the Scheduled Tribes.In our view, therefore, law made under clause (5) of Article15 of the Constitution by the State on the ground that it treatsprivate aided educational institutions and private unaidededucational institutions alike is not immune from challengeunder Article 14 of the Constitution. Clause (5) of Article 15 ofthe Constitution only states that nothing in Article 15 or Article19(1)(g) will prevent the State to make special provision, bylaw, for admission of socially and educationally backwardclasses of citizens or for the Scheduled Castes and theScheduled Tribes to educational institutions including privateeducational institutions, whether aided or unaided by theState. Clause (5) of Article 15 of the Constitution does notsay that such law will not comply with the other requirementsof equality as provided in Article 14 of the Constitution.Hence, we do not find any merit in the submission of the MrNariman that clause (5) of Article 15 of the Constitution thatinsofar as it treats unaided private educational institutionsand aided private educational institutions alike it is violativeof Article 14 of the Constitution.

31. We may now deal with the contention of Mr Divan thatclause (5) of Article 15 of the Constitution is violativeof Article 14 of the Constitution as it excludes from its purview

ABC

DEF

the minority institutions referred to in clause (1) of Article30 of the Constitution and the contention of Mr Nariman thatclause (5) of Article 15 excludes both unaided minorityinstitutions and aided minority institutions alike and is thusviolative of Article 14 of the Constitution.

34. Clause (5) of Article 15 of the Constitution enables theState to make special provision, by law, for the advancementof socially and educationally backward classes of citizens orfor the Scheduled Castes and Scheduled Tribes. Suchadmissions of socially and educationally backward classesof citizens or for the Scheduled Castes and the ScheduledTribes who may belong to communities other than the minoritycommunity which has established the institution, may affectthe right of the minority educational institutions referred toin clause (1) of Article 30 of the Constitution. In other words,the minority character of the minority educational institutionsreferred to in clause (1) of Article 30 of the Constitution,whether aided or unaided, may be affected by admissions ofsocially and educationally backward classes of citizens orthe Scheduled Castes and the Scheduled Tribes and it is forthis reason that minority institutions, aided or unaided, arekept outside the enabling power of the State under clause (5)of Article 15 with view to protect the minority institutionsfrom law made by the majority. As has been held by theConstitution Bench of this Court in Ashoka Kumar Thakur v.Union of India [(2008) 6 SCC 1], the minority educationalinstitutions, by themselves, are separate class and their rightsare protected under Article 30 of the Constitution, and,therefore, the exclusion of minority educational institutionsfrom Article 15(5) is not violative of Article 14 of theConstitution.

35. We may now consider the contention of Mr Divan thatclause (5) of Article 15 of the Constitution is violative ofsecularism insofar as it excludes religious minority institutionsreferred to in Article 30(1) of the Constitution from the purviewof clause (5) of Article 15 of the Constitution. In M. Ismail

Faruqui v. Union of India [(1994) 6 SCC 360], this Courthas held that: (SCC p. 403, para 37)

“37. ... The Preamble of the Constitution read inparticular with Articles 15 to 28 emphasises this aspectand indicates that … the concept of secularism embodiedin the constitutional scheme [is] creed adopted by theIndian people….”

Hence, secularism is no doubt basic feature of theConstitution, but we fail to appreciate how clause (5) of Article15 of the Constitution which excludes religious minorityinstitutions in clause (1) of Article 30 of the Constitution is inany way violative of the concept of secularism. On the otherhand, this Court has held in T.M.A. Pai Foundation [T.M.A.Pai Foundation v. State of Karnataka, (2002) 8 SCC 481)]that the essence of secularism in India is the recognition andpreservation of the different types of people, with diverselanguages and different beliefs and Articles 29 and 30 seekto preserve such differences and at the same time unite thepeople of India to form one strong nation (see para 161 ofthe majority judgment of Kirpal, C.J., in T.M.A. PaiFoundation (T.M.A. Pai Foundation v. State of Karnataka,(2002) 8 SCC 481) at p. 587 of SCC). In our consideredopinion, therefore, by excluding the minority institutionsreferred to in clause (1) of Article 30 of the Constitution, thesecular character of India is maintained and not destroyed.

37. Educational institutions in India such as KendriyaVidyalayas, Indian Institute of Technology, All India Instituteof Medical Sciences and Government Medical Colleges admitstudents in seats reserved for backward classes of citizensand for the Scheduled Castes and the Scheduled Tribes andyet these government institutions have produced excellentstudents who have grown up to be good administrators,academicians, scientists, engineers, doctors and the like.Moreover, the contention that excellence will be compromisedby admission from amongst the backward classes of citizensand the Scheduled Castes and the Scheduled Tribes in private

Aeducational institutions is contrary to the Preamble of theConstitution which promises to secure to all citizens “fraternityassuring the dignity of the individual and the unity andintegrity of the nation”. The goals of fraternity, unity andintegrity of the nation cannot be achieved unless the backwardclasses of citizens and the Scheduled Castes and theBScheduled Tribes, who for historical factors, have notadvanced are integrated into the mainstream of the nation.We, therefore, find no merit in the submission of Mr Narimanthat clause (5) of Article 15 of the Constitution violates theright under Article 21 of the Constitution.

C38. We accordingly hold that none of the rights under Articles14, 19(1)(g) and 21 of the Constitution have been abrogatedby clause (5) of Article 15 of the Constitution and the viewtaken by Bhandari, J. in Ashoka Kumar Thakur v. Union ofIndia [(2008) 6 SCC 1] that the imposition of reservation onDunaided institutions by the Ninety-third Amendment hasabrogated Article 19(1)(g), basic feature of the Constitution-is not correct. Instead, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting clause (5) of Article15 of the Constitution is valid.”

[Emphasis supplied]

51. Thus, if Article 15(5) of the Constitution has been found to beconsistent with the socialistic goals set out in the Preamble and theDirective Principles in Part IV and to ensure the march and progress ofthe weaker sections resulting in progress to Socialistic Democratic Stateestablishing the egalitarian ethos/egalitarian equality which is the mandateFof the Constitution and has also been approved in M. Nagaraj (supra),then clause (6) in Article 15 of the Constitution could also be said to beconsistent with the socialistic goals set out in the Preamble and theDirective Principles in Part IV. Article 15(6), brought in by way of theConstitution (103[rd] Amendment) Act, 2019, which provides for identicalGreservation for the economically weaker sections of the citizens in privateunaided educational institutions. The Constitution Bench in PramatiEducational and Cultural Trust (supra) was not impressed with thechallenge to Article 15(5) on the ground of breach of basic structure sofar as it relates to the unaided private educational institutions.

52. Taking the aforesaid view of the matter, the Constitution Benchof this Court, in the case of Pramati Educational and Cultural Trust(supra), held that the Constitution (93[rd] Amendment) Act, 2005 insertingclause (5) of Article 15 of the Constitution could not be said to havealtered the basic structure or framework of the Constitution and isconstitutionally valid.

53. In view of the aforesaid, Article 15(6), which is the subjectmatter of challenge and which provides for reservation for the “EWSother than the SC, ST and OBC-NCL” in private unaided educationalinstitutions, cannot be said to be altering the basic structure. It isconstitutionally valid. However, the question whether the exclusion clauseis violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms inextricable part of thebasic structure of the Constitution, shall be answered by me little later.

54. Let us remember the observations made by Mathew, J. inthe case of N.M. Thomas (supra), as under:

“73.ThereisnoreasonwhythisCourtshouldnotalsorequiretheStatetoadopta standard of proportionalequalitywhichtakesaccountofthedifferingconditionsandcircumstancesofaclassofcitizenswhenever thoseconditions and circumstances stand in the way of theirequalaccesstotheenjoymentofbasicrightsorclaims.”

(Emphasis supplied)

55. It has been held by this Court in the case of Dalmia Cement(Bharat) Ltd. and Another v. Union of India and Others, (1996) 10SCC 104, that with view to establish an egalitarian social order, thetrinity, the Preamble, the Fundamental Rights in Part III and the DirectivePrinciples of State Policy in Part IV of the Constitution delineated thesocial economic justice. The word “justice” envisioned in the Preambleis used in broad spectrum to harmonise the individual right with thegeneral welfare of the society. The Constitution is the supreme law.The purpose of law is realization of justice whose content and scopevary depending on the prevailing social environment. Every social andeconomic change causes change in the law. In democracy governedby the rule of law, it is not possible to change the legal basis of social andeconomic life of the community without bringing about any correspondingchange in the law. In Dalmia Cement (Bharat) Ltd. (supra), this

ACourt further observed that social justice is not simple or single idea ofa society but is an essential part of complex social change to relieve thepoor, etc. from the handicaps, penury, to ward them off from distressand to make their lives livable for the greater good of the society atlarge. Therefore, social and economic justice in the context of our IndianConstitution must, be understood in comprehensive sense to removeBevery inequality and to provide equal opportunity to all citizens in socialas well as economic activities and in every part of life. Economic justicemeans abolition of those economic conditions which ultimately result inthe inequality of economic values between men leading towardsbackwardness.C

56. In the case on hand, it was vociferously argued that theindividuals belonging to the economical weaker sections may not form aclass and they may be weaker as individual only. Secondly, their weaknessmay not be the result of the past social and educational backwardnessor discrimination. The basis of such argument is the observation ofDSawant, J. in Indra Sawhney (supra). All the learned counsel whilecriticising the impugned amendment kept reminding this Court time andagain that the Constitution has never recognised economic criteria as amode of reservation. Reservation in employment, etc. is only meant forthe socially oppressed class. Economically weaker sections of the citizensmay be financially handicapped or poor but still socially, they can be saidEto be much advanced and cannot be compared with the socially oppressedclass like the SCs/STs. Thus, the reservation for the weaker sections ofthe citizens has destroyed or rather abridged the basic structure of theConstitution. I shall deal with this argument of abridgement of the basicstructure little later. But, I would definitely like to say something asFregards the economic criteria for the purpose of reservation.

57. In this country with population of around 1.41 billion, theeconomic backwardness is not confined only to those who are coveredby Article 15(4) or Article 16(4) of the Constitution. In country whereonly small percentage of the population is above the poverty line, toGdeny opportunities of higher education (which secures employment) andemployment is to deny to those who are qualified and deserving what isor at least should be their due.

58. When the 42nd Constitutional Amendment was on the anvil,there was suggestion of inclusion of “right to work” which carries withHit the natural corollary of assured employment as fundamental right.

This, understandably, could not be done in political system which isbased on mixed economy. The natural effect of reservation is to closethe door of betterment or even employment to even portion ofeconomically weak section of community. This all the more emphasisesthe urgent necessity of eliminating or at least substantially reducing thecauses which have contributed to the creation of socially andeducationally backward section of the community, thus, creating situationwhen the need of reservation would be no more. Then alone the promiseof equality for all would become reality. And, it is to be rememberedthat right of equality is the “Cornerstone of the Constitution” (per Khanna,J.). Chandrachud, J. says: “it is right which more than any other is abasic postulate of our Constitution”. Mathew, J. describes it as the “mostfundamental postulate of republicanism”. [See : Padmraj Samarendrav. the State of Bihar, Patna High Court, Special Bench, 1978 SCCOnLine Pat 64 : 1979 PLJR 258 : AIR 1979 Pat 266 at page 267]

59. In the aforesaid context, it would further be useful again toextract the observation of Iyer, J., in N. M. Thomas (supra) whoconcurring with A. N. Ray, CJ, observed:

“149. ….no caste, however seemingly backward, orclaiming to be derelict, can be allowed to breach the dykesof equality of opportunity guaranteed to all citizens. Tothem the answer is that, save in rare cases of ‘chill penuryrepressing their noble rage’, equality is equality — nothingless and nothing else. The heady upper berth occupantsfrom ‘backward’ classes do double injury. They beguilethe broad community into believing that backwardness isbeing banished. They rob the need-based bulk of thebackward of the ‘office’ advantages the nation, byclassification, reserves or proffers. Theconstitutional dharma, however, is not an unendingdeification of ‘backwardness’ and showering ‘classified’homage, regardless of advancement registered, butprogressive exercising of the social evil and gradualwithdrawal of artificial crutches. Here the Court has to beobjective, resisting mawkish politics…..”

60. Also, the note of caution sounded by this Court in the Stateof Jammu & Kashmir v. Triloki Nath Khosaand others, AIR 1974SC 1, reads as follows:

EFG

“56......let us not evolve, through imperceptible extensions,a theory of classification which may subvert, perhapssubmerge, the precious guarantee of equality. The eminentspirit of an ideal society is equality and so we must not beleft to ask in wonderment: what after all is the operationalresidue of equality and equal opportunity?”

61. In Ram Singh and Others v. Union of India, (2015) 4 SCC697, this Court, while considering challenge to the notification publishedin the Gazette of India dated 04.03.2014 by which the Jat Communitycame to be included in the Central List of Backward Classes for theStates of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh,NCT of Delhi, Bharatpur and Dholpur districts of Rajasthan, Uttar Pradeshand Uttarakhand, observed very emphatically as under:-

“54. Past decisions of this Court in M.R. Balaji v. State ofMysore [AIR 1963 SC 649 : 1963 Supp (1) SCR 439]and Janki Prasad Parimoo v. State of J&K [(1973) 1 SCC420 : 1973 SCC (L&S) 217] had conflated the twoexpressions used in Articles 15(4) and 16(4) and read themsynonymously. It is in Indra Sawhney case [IndraSawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992SCC (L&S) Supp 1 : (1992) 22 ATC 385] that this Courtheld that the terms “backward class” and “socially andeducationally backward classes” are not equivalent andfurther that in Article 16(4) the backwardness contemplatedis mainly social. The above interpretation of backwardnessin Indra Sawhney [Indra Sawhney v. Union of India, 1992Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22ATC 385] would be binding on numerically smallerBenches. We may, therefore, understand social class asan identifiable section of society which may be internallyhomogeneous (based on caste or occupation) orheterogeneous (based on disability or gender e.g.transgender). Backwardness is manifestation caused bythe presence of several independent circumstances whichmay be social, cultural, economic, educational or evenpolitical. Owing to historical conditions, particularly inHindu society, recognition of backwardness has beenassociated with caste. Though caste may be prominent

and distinguishing factor for easy determination ofbackwardness of social group, this Court has beenroutinely discouraging the identification of group asbackward solely on the basis of caste. Article 16(4) asalso Article 15(4) lay the foundation for affirmative actionby the State to reach out to the most deserving. Socialgroups who would be most deserving must necessarily bea matter of continuous evolution. New practices, methodsand yardsticks have to be continuously evolved movingaway from caste centric definition of backwardness. Thisalone can enable recognition of newly emerging groups insociety which would require palliative action. Therecognition of the third gender as socially andeducationally backward class of citizens entitled toaffirmative action of the State under the Constitutionin National Legal Services Authority v. Union ofIndia [(2014) 5 SCC 438] is too significant development-to be ignored. In fact it is pathfinder, if not pathbreaker. It is an important reminder to the State of the highdegree of vigilance it must exercise to discover emergingforms of backwardness. The State, therefore, cannot blinditself to the existence of other forms and instances ofbackwardness. An affirmative action policy that keeps inmind only historical injustice would certainly result in underprotection of the most deserving backward class of citizens,which is constitutionally mandated. It is the identificationof these new emerging groups that must engage the attentionof the State and the constitutional power and duty must beconcentrated to discover such groups rather than to enablegroups of citizens to recover “lost ground” in claimingpreference and benefits on the basis of historicalprejudice.”

[Emphasis supplied]

62. In State of Kerala v. R. Jacob Mathew and others, AIR1964 Kerala 316, Chief Justice M.S. Menon observed as follows:

“9.In these regions of human life and values the clear-cutdistinctions of cause and effect merge into each other.Social backwardness contributes to educational

backwardness; educational backwardness perpetuatessocial backwardness; and both are often no more than theinevitable corollaries of the extremes of poverty and the”deadening weight of custom and tradition…..

[Emphasis supplied]

63. In M.R. Balaji (supra), Gajendrakadkar J. said that:

“…..Social backwardness is on the ultimate analysis theresult of poverty, to very large extent. The classes ofcitizens who are deplorably poor automatically becomesocially backward….

…..However, we may observe that if any State adopts sucha measure, it may afford relief to and assist the advancementof the Backward Classes in the State, becausebackwardness, social and educational, is ultimately andprimarily due to poverty…..”

[Emphasis supplied]

ECONOMIC CRITERIA FOR THE AFFIRMATIVEACTION UNDER THE CONSTITUTION

64. What is so principally, so fundamentally wrong in singling outan economic criterion for reservation? Is it that they do not belong to ahomogenous group? Is it cast in stone that they (beneficiaries ofreservation) should belong to homogenous group? Why cannot economiccriterion be ground for the State’s affirmative action?

65. The aforesaid are the few questions which were put by thisBench to the learned counsel appearing for the respective petitioners.One common reply to the aforesaid questions was that the reservation isonly meant for the persons falling within Article 15(4) and Article 16(4)of the Constitution and that there are other affirmative actions whichGcan address the problem of economy, but not necessarily reservation.

66. Economic criteria can be relevant factor for affirmativeaction under the Constitution. In N.M. Thomas (supra), the constitutionalvalidity of Rule 13AA giving further exemption of two years to themembers belonging to the Scheduled Tribes and Scheduled Castes inthe service from passing the tests referred to in Rule 13 or Rule 13A,

was questioned. The High Court struck down the rule. Allowing theState appeal, this Court held that:

“67. Today, the political theory which acknowledges theobligation of Government under Part IV of the Constitutionto provide jobs, medical care, old age pension, etc., extendsto human rights and imposes an affirmative obligation topromote equality and liberty. The force of the idea of aState with obligation to help the weaker sections of itsmembers seems to have increasing influence inconstitutional law.The idea finds expression in numberof cases in America involving social discrimination andalso in the decisions requiring the State to offset the effectsof poverty by providing counsel, transcript of appeal,expert witnesses, etc. Today, the sense that Governmenthas affirmative responsibility for elimination of inequalities,social, economic or otherwise, is one of the dominant forcesin constitutional law.While special concessions for theunderprivileged have been easily permitted, they have nottraditionally been required. Decisions in the areas ofcriminal procedure, voting rights and education in Americasuggest that the traditional approach may not be completelyadequate. In these areas, the inquiry whether equality hasbeen achieved no longer ends with numerical equality ;rather the equality clause has been held to require resortto standard of proportional equality which requires theState, in framing legislation, to take into account the privateinequalities of wealth, of education and othercircumstances. [See “Developments—Equal Protection”,82 Harv L R 1165]

68.The idea of compensatory State action to makepeople who are really unequal in their wealth, educationor social environment, equal, in specified areas, wasdeveloped by the Supreme Court of the United States.Rousseau has said :

It is precisely because the force of circumstancestends to destroy equality that force of legislation mustalways tend to maintain it. [Contract Social ii, 11.]

69.In Griffin v. Illinois [351 US 12.] an indigentdefendant was unable to take advantage of the one appealof right granted by Illinois law because he could not affordto buy the necessary transcript. Such transcripts were madeavailable to all defendants on payment of similar fee ;but in practice only non-indigents were able to purchasethe transcript and take the appeal. The Court said that

there can be no equal justice where the kind of trial mangets depends on the amount of money he has

and held that the Illinois procedure violated the equalprotection clause.

The State did not have to make appellate review availableat all; but if it did, it could not do so in way whichoperated to deny access to review to defendants solelybecause of their indigency. similar theory underlies therequirement that counsel be provided for indigents onappeal. In Douglas v. California [372 US 353] the caseinvolved the California procedure which guaranteed oneappeal of right for criminal defendants convicted at trial.In the case of indigents the appellate Court checked overthe record to see whether it would be of advantage to thedefendant or helpful to the appellate Court to have counselappointed for the appeal. negative answer meant thatthe indigent had to appeal pro se if at all. The Court heldthat this procedure denied defendant the equal protectionof the laws. Even though the State was pursuing anotherwise legitimate objective of providing counsel onlyfor non-frivolous claims, it had created situation in whichthe well-to-do could always have lawyer — even forfrivolous appeals — whereas the indigent could not.

71. Though in one sense Justice Harlan is correct, whenone comes to think of the real effect of his view, one isinclined to think that the opinion failed to recognise thatthere are several ways of looking at equality, and treatingpeople equally in one respect always results in unequaltreatment in some other respects.For Mr. Justice Harlan,

the only type of equality that mattered was numerical equalityin the terms upon which transcripts were offered todefendants. The majority, on the other hand, took viewwhich would bring about equality in fact, requiring similaravailability to all of criminal appeals in Griffin’s case(supra) and counsel-attended criminal appeals in Douglascase (supra). To achieve this result, the Legislature had toresort to proportional standard of equality. These casesare remarkable in that they show that the kind of equalitywhich is considered important in the particular context andhence of the respect inwhich it is necessary totreat people equally. [See “Developments—EqualProtection”, 82 Harv LR 1165.]

158. It is no doubt true that Article 16(1) provides forequality of opportunity for all citizens in the services underthe State. It is, however, well-settled that the doctrinecontained in Article 16 is hard and reeling reality, aconcrete and constructive concept and not rigid rule oran empty formula. It is also equally well-settled by severalauthorities of this Court that Article 16 is merely an incidentof Article 14, Article 14 being the genus is of universalapplication whereas Article 16 is the species and seeks toobtain equality of opportunity in the services under theState. The theory of reasonable classification is implicitand inherent in the concept of equality for there can hardlybe any country where all the citizens would be equal in allrespects. Equality of opportunity would naturally mean fair opportunity not only to one section or the other but toall sections by removing the handicaps if particular sectionof the society suffers from the same. It has never beendisputed in judicial pronouncements by this Court as alsoof the various High Courts that Article 14 permitsreasonable classification. But what Article 14 or Article16 forbid is hostile discrimination and not reasonableclassification. In other words, the idea of classification isimplicit in the concept of equality because equality meansequality to all and not merely to the advanced and educated

sections of the society. It follows, therefore, that in order toprovide equality of opportunity to all citizens of our country,every class of citizens must have sense of equalparticipation in building up an egalitarian society, wherethere is peace and plenty, where there is complete economicfreedom and there is no pestilence or poverty, nodiscrimination and oppression, where there is equalopportunity to education, to work, to earn their livelihoodso that the goal of social justice is achieved…..

230.Scheduled castes and scheduled tribes are castesand tribes specified by the President under Articles 341and 342 of the Constitution to be known as such for thepurposes of the Constitution. It is accepted that generallyspeaking these castes and tribes are backward ineducational and economic fields. It is claimed that theexpression “scheduled castes” does not refer to any casteof the Hindu society but connotes backward class ofcitizens. look at Article 341 however will show that theexpression means number of existing social castes listedin schedule ; castes do not cease to be castes being putin schedule though backwardness has come to beassociated with them. Article 46 requires the State topromote the economic interests of the weaker sections ofthe people and, in particular, of the scheduled castes andthe scheduled tribes. The special reference to the scheduledcastes and the scheduled tribes does not suggest that theState should promote the economic interests of these castesand tribes at the expense of other “weaker sections of thepeople”. I do not find anything reasonable in denying tosome lower division clerks the same opportunity forpromotion as others have because they do not belong to aparticular caste or tribe. Scheduled castes and scheduledtribes no doubt constitute well-defined class, but aclassification valid for one purpose may not be so foranother ; in the context of Article 16(1) the sub-class madeby Rule 13AA within the same class of employees amountsto, in my opinion, discrimination only on grounds of raceand caste which is forbidden by clause (2) of Article 16….

231. All I have said above relates to the scope of Article16(1) only, because Counsel for the appellant has builthis case on this provision alone. Clause (4) of Article 16permits reservation of appointments on posts in favour ofbackward classes of citizens notwithstanding Article 16(1); I agree with the views expressed by Khanna, J. on Article16(4) which comes in for consideration incidentally in thiscase. The appalling poverty and backwardness of largesections of the people must move the State machinery to doeverything in its power to better their condition but dolingout unequal favours to members of the clerical staff doesnot seem to be step in that direction : tilting at the windmilltaking it to be monster serves no useful purpose.”

[Emphasis supplied]

67. On the issue of economic criteria as an affirmative actionunder the Constitution, there is no difference of opinion amongstus. My esteemed Brother Justice Bhat, in his dissentingjudgment has beautifully observed that the economicemancipation is facet of economic justice which the Preambleas well as Articles 38 and 46 resply promise to all Indians. It isintrinsically linked with distributive justice – ensuring fair shareof the material resources, and share of the progress of thesociety as whole, to each individual. My esteemed BrotherJustice Bhat has rightly observed that the break from the past– which was rooted on elimination of caste-based socialdiscrimination, in affirmative action – to now include affirmativeaction based on deprivation, through impugned amendment,does not alter, destroy or damage the basic structure of theConstitution. On the contrary, it adds new dimension to theconstitutional project of uplifting the poorest segments of thesociety.

68. The following is discernable from the aforesaid: -

(1) When substantive equality is the avowed constitutionalmandate, the State is obliged to provide level playing field(M. Nagaraj (supra) para 47).

(2) The test for such reasonable classification is not necessarily,or much less exclusively, the social backwardness test ofArticle 15(4) and Article 16(4) resply.

(3) Article 16(4) [and Article 15(4)] provision is rooted ashistorical reasons of exclusion from service. The provisionwas thus fulcrummed on the Constituent Assembly’s clearintent (expressed through Dr. B.R. Ambedkar’s speech) toredress the specific wrong.

(4) Indra Sawhney (supra) was limited to then existing Article16 and construed the meaning of “socially” backward classesfor the purpose of Article 16(4).

(5) Indra Sawhney (supra) was thus undertaking “schematicinterpretation” of the Article 16(4) [subsequently held equallyapplicable for Article 15(4)].

(6) The Special “schematic interpretation” based on the originalintent doctrine led the amendment of the Constitution andintroduction of Article 16(4A) [77[th] Amendment], Article16(4B) [81[st] Amendment] and Article 15(5) [91[st]Amendment] all of which have been upheld by this Court.

(7) The recuring feature of such constitutional progression isthe Parliament’s freedom and liberty from the “original intent”doctrine. It is the same theme that enables the Parliamentto constantly innovate and improvise to better attend to theDirective Principles’ mandate of Articles 38 & 46 resply orof the equality code itself.

69. The march from the past is also discernible from the judicialapproach. If adequate representation in services of under-representedclass was the sole purpose of Article 16(4), any person from that classFwould be representative of that class. When Indra Sawhney (supra)read the necessity of excluding Creamy Layer from the ‘backward class’in Article 16(4) – it took note of the events 42 years post the adoption ofthe Constitution. It is 30 years since the seminal judgment of IndraSawhney. Time enough for the Parliament to feel the necessity ofattending to another section of deprived classes.

70. Therefore, the 103[rd] Constitutional Amendment signifies theParliament’s intention to expand affirmative action to hitherto untouchedgroups – who suffer from similar disadvantages as the OBCs competingfor opportunities. If economic advance can be accepted to negate certainsocial disadvantages for the OBCs [Creamy Layer concept] the converse

would be equally relevant. At least for considering the competingdisadvantages of Economically Weaker Sections. Economic capacityhas been upheld as valid basis for classification by this Court in variousother contexts. It has also been implored to be considered as relevantfacet of the ‘Equality Code’ provisions. The 103[rd] Amendment offers abasis not frowned upon by Article 15(1) or 16(2) for providing populationgeneric and caste/religion/community neutral criteria. It also harmonizeswith the eventual constitutional goal of casteless society. IndraSawhney (supra) holds that the Chitralekha (supra) propoundedoccupation-cum-means test can be basis of social backwardness evenfor the purposes of Article 16(4). Article 15(6)(b) Explanation definingEWS could be said to be fully compliant with this norm.

CONSTITUTION (103RDAMENDMENT) ACT, 2019

71. Let me now look into the Constitution (103[rd] Amendment)Act, 2019 which came into effect on 14[th] of January, 2019 amendingArticles 15 and 16 resply of the Constitution by adding new clauseswhich empower the State to provide maximum of 10% reservation forthe “weaker sections” (EWS) of citizens other thanthe Scheduled Castes(SCs), Scheduled Tribes (STs) and Non- Creamy Layer of the OtherBackward Classes (OBCs-NCL).

72. The Constitution (124[th] Amendment) Bill, 2019 reads thus:

“THE CONSTITUTION (ONE HUNDRED AND TWENTY-FOURTH AMENDMENT) BILL, 2019

BILL

further to amend the Constitution of India.

BE it enacted by Parliament in the Sixty-ninth Year of theRepublic of India as follows:—

1. (1) This Act may be called the Constitution (One Hundredand Twenty-fourth Amendment) Act, 2019.

(2) It shall come into force on such date as the CentralGovernment may, by notification in the Official Gazette,appoint.

2. In article 15 of the Constitution, after clause (5), thefollowing clause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause(1) of article 19 or clause (2) of article 29 shallprevent the State from making,—

(a)any special provision for the advancementof any economically weaker sections of citizensother than the classes mentioned in clauses (4)and (5); and

(b) any special provision for the advancementof any economically weaker sections of citizensother than the classes mentioned in clauses (4)and (5) in so far as such special provisionsrelate to their admission to educationalinstitutions including private educationalinstitutions, whether aided or unaided by theState, other than the minority educationalinstitutions referred to in clause (1) of article30, which in the case of reservation would bein addition to the existing reservations andsubject to maximum of ten per cent. of thetotal seats in each category.

Explanation.—For the purposes of this articleand article 16, “economically weakersections” shall be such as may be notified bythe State from time to time on the basis of familyincome and other indicators of economicdisadvantage.’.

3. In article 16 of the Constitution, after clause (5),the following clause shall be inserted, namely:—

“(6) Nothing in this article shall prevent theState from making any provision for thereservation of appointments or posts in favourof any economically weaker sections ofcitizens other than the classes mentioned inclause (4), in addition to the existingreservation and subject to maximum of tenper cent. of the posts in each category.”.

The Statement of Objects and Reasons reads thus:-

“STATEMENT OF OBJECTS AND REASONS

At present, the economically weaker sections of citizenshave largely remained excluded from attending the highereducational institutions and public employment on accountof their financial incapacity to compete with the personswho are economically more privileged. The benefits ofexisting reservations under clauses (4) and (5) of article15 and clause (4) of article 16 are generally unavailableto them unless they meet the specific criteria of social andeducational backwardness.

2. The directive principles of State policy contained inarticle 46 of the Constitution enjoins that the State shallpromote with special care the educational and economicinterests of the weaker sections of the people, and, inparticular, of the Scheduled Castes and the ScheduledTribes, and shall protect them from social injustice and allforms of exploitation.

3. Vide the Constitution (Ninety-third Amendment) Act,2005, clause (5) was inserted in article 15 of theConstitution which enables the State to make specialprovision for the advancement of any socially andeducationally backward classes of citizens, or for theScheduled Castes or the Scheduled Tribes, in relation totheir admission in higher educational institutions. Similarly,clause (4) of article 16 of the Constitution enables the Stateto make special provision for the reservation ofappointments or posts in favour of any backward class ofcitizens which, in the opinion of the State, is not adequatelyrepresented in the services under the State.

4. However, economically weaker sections of citizens werenot eligible for the benefit of reservation. With view tofulfil the mandate of article 46, and to ensure thateconomically weaker sections of citizens to get fairchance of receiving higher education and participation inemployment in the services of the State, it has been decidedto amend the Constitution of India.

A5. Accordingly, the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 provides for reservation forthe economically weaker sections of society in highereducational institutions, including private institutionswhether aided or unaided by the State other than theminority educational institutions referred to in article 30Bof the constitution and also provides for reservation forthem in posts in initial appointment in services under theState.

6. The Bill seeks to achieve the above objects.”C73. Thus, from the Objects and Reasons as aforesaid it is evidentthat the entire edifice of the impugned amendment is to fulfil the mandateof Article 46 of the Constitution. What was looked into by the Parliamentwas the fact that the economically weaker sections of citizens were noteligible for the benefit of reservations. However, with view to fulfilthe mandate of Article 46 and to ensure that economically weakerDsections of the citizens get fair chance of being imparted highereducation and participation in employment in the services of the State,the Constitution (103[rd] Amendment) Act was brought into force.74. The reservation for the new category will be in addition to theexisting scheme of 15%, 7.50% and 27% resply reservations for the SC,EST and OBC-NCL, thus, bringing the total reservation to 59.50%. An‘Explanation’ appended to Article 15 states that the EWS shall be suchas may be notified by the State from time to time based on the familyincome and other indicators of economic disadvantage. In its OfficeMemorandum F. No. 20013/01/2018-BC-II dated January 17, 2019, theFMinistry of Social Justice and Empowerment, Government of India hasstipulated that only persons whose families have gross annual incomeless than Rs.8 lakhs, or agricultural land less than 5 acres, or residentialflat less than 1,000 sq. ft., or residential plot less than 100 sq. yards inthe notified Municipalities, or residential plot less than 200 sq. yards inthe areas other than the notified Municipalities, are to be identified asGEWS for the benefit of reservation.

75. What is exactly happening after the impugned amendment?Or to put it in other words, what is the effect of it?

(1)The total reservation is now to the extent of 59.50%.The hue and cry is that the same is in excess of theH

ceiling of 50% fixed by this Court in Indra Sawhney(supra).

(2)It excludes the Scheduled Castes (SCs), the ScheduleTribes (STs) and the Non-Creamy Layer of OtherBackward Classes (OBCs-NCL). The hue and cry isthat the same has abridged the equality code. In otherBwords, the exclusion is violative of Articles 14, 15 and16 resply of the Constitution.

(3)Reservation of 10% of the vacancies among the opencompetition candidates means exclusion of those abovethe demarcating line from those 10% seats. In otherwords, the competition will now be within 40%. Thehue and cry in this regard is that it is not permissible todebar citizen from being considered for appointmentto an office under the State solely on the basis of hisincome or property-holding.

76. In the aforesaid context, by and large, all the learned counselwho argued that the impugned judgment is unconstitutional strenuouslyurged before the Constitution Bench to take the view that Article 46 ofthe Constitution could not have been made the edifice for the impugnedamendment. It was vociferously argued that Article 46 should beinterpreted on the principle of ejusdem generis. To put in other words,it was vociferously submitted that the words “weaker sections” used inArticle 46 should be read to mean only the Scheduled Castes or theScheduled Tribes.

77. Article 46 reads as under:-

“46.—Promotion of educational and economic interests ofScheduled Castes, Scheduled Tribes and other weakersections.-The State shall promote with special care theeducational and economic interests of the weaker sectionsof the people, and, in particular, of the Scheduled Castesand the Scheduled Tribes, and shall protect them from socialinjustice and all forms of exploitation.”

78. I found something very interesting to read in regard to Article46 from the decision of this Court in the case of M/s Shantistar Buildersv. Narayan Khimalal Totame and Others, (1990) 1 SCC 520, wherein

Aa Bench of three Judges speaking through Ranganath Misra, J.observed: -

“11. …. ‘Weaker sections’ have, however, not been definedeither in the Constitution or in the Act itself. An attemptwas made in the Constituent Assembly to provide aBdefinition but was given up. Attempts have thereafter beenmade from time to time to provide such definition but on

account of controversies which arise once the exercise isundertaken, there has been no success. suggestion forintroducing economic criterion for explaining the term was-made in the approach to the Seventh Five Year Plan (1985C1990) brought out by the Planning Commission andapproved by the National Development Council and theUnion Government. lot of controversy was raised inParliament and the attempt was dropped. In the absenceof definition perhaps proper guideline could beDindicated but no serious attention has been devoted to thisaspect.12. Members of the Scheduled Castes and Scheduled Tribeshave ordinarily been accepted as belonging to the weakersections. Attempt to bring in the test of economic meansEhas often been tried but no guideline has been evolved.Undoubtedly, apart from the members of the ScheduledCastes and Scheduled Tribes, there would be millions ofother citizens who would also belong to the weaker sections.The Constitution-makers intended all citizens of Indiabelonging to the weaker sections to be benefited when ArticleF46 was incorporated in the Constitution.…..”

[Emphasis supplied]

79. I am of the view that the words “weaker sections” used inArticle 46 cannot be read to mean only the Scheduled Castes or theGScheduled Tribes nor the same can be interpreted on the principle ofejusdem generis, as argued. The expression refers to all weaker sectionsand in particular the Scheduled Castes and the Scheduled Tribes.Inasmuch as, if we confine the meaning of the expression “weakersections” only to the Scheduled Castes or the Scheduled Tribes or thelikes, namely backward class, then it will expose the weaker sections ofHcitizens, other than the Scheduled Castes and the Scheduled Tribes and

backward class people to exploitation without any protection from it.Sandro Galea, Dean and Robert A. Knox Professor, Boston UniversitySchool of Public Health has defined Economic Justice as “a set of moralprinciples for building economic institutions, the ultimate goal ofwhich is to create an opportunity for each person to create asufficient material foundation upon which to have dignified,productive, and creative life beyond economics.” Therefore, aneconomic justice argument focuses on the need to ensurethat everyone has access to the material resources that createopportunities, in order to live life unencumbered by pressingeconomic concerns.” Social welfare or welfare of the State is the onusof the State itself. Thus, Part IV has been given the status and expressionin the Constitution which lays down the constitutional policy that theState must strive for, if the country is to develop as welfare State. Theweaker section of the people is the lowliest class of people (poorest ofthe poor), economically and educationally weak who have been givenconstitutional protection. Their welfare is paramount as can be readfrom the conjoint reading of Articles 21 and 46 resply of the Constitution.

80. Speaking the constitutional position in this regard, this Court inN.M. Thomas (supra) observed as under: -

“126. ….. The Preamble to the Constitution silhouettes a‘justice-oriented’ community. The Directive Principles ofState Policy, fundamental in the governance of the country,enjoin on the State the promotion with special care theeducational and economic interests of the weaker sectionsof the people, and, in particular, of the scheduled castesand the scheduled tribes, . . . and protect them from socialinjustice.

To neglect this obligation is to play truant with Article 46.Undoubtedly, economic interests of group — as alsosocial justice to it — are tied up with its place in the servicesunder the State. …”

81. Article 21encompasses the right to live with dignity. Theright to live with dignity is not an ordinary expression. It has seriousmeaning attached to it. In the words of the Allahabad High Court (AbdulMoin, J.), “our society is an amalgamation of various classes of people.Some are wealthy. Some are not wealthy. Some lead life of penance

Awith pleasure. Some lead life of penance due to their fortune. OurConstitution endorses welfare of all classes.” This is why Article 21 hasbeen given wide connotation and expression by the courts, particularly,by this Court to give effect to the constitutional policy of welfare state.The decision of this Court in Unni Krishnan (supra) is an authority onthis aspect where the Court confirmed that right to education is implicitBunder Article 21 and proceeded to identify the content and parametersof this right to be achieved by Articles 41, 45, and 46 resply in relation toeducation. Understood in this context, Article 46 gives not only solemnprotection to the weaker sections of the people at par with the ScheduledCastes and the Scheduled Tribes but speaks of special care to be takenCby the State of this section of people. Further, the expression “educationaland economic interests” in Article 46 concludes the whole legal positionin relation to Article 46 to mean that the State must endeavour to dowelfare especially of this section of people. The endeavour of the Stateto give the weaker section of the people life of dignity is the link betweenArticles 46 and 21 resply. The conjoint reading of both the provisionsDputs constitutional obligation on the State to achieve the goal of welfareof the weaker sections of the people by all means. Article 46 is notbased on social test but on the means test. It speaks of “educational andeconomic interests” of “weaker sections”. The expression “weakersections” and their “economic interests” are correlative and denote theEmeans status of the people who are to be taken care of. Although, thephrase “economic interests” is not to be read alone but in consonancewith the expression “educational” used in Article 46; yet to confuse Article46 with the “social status” would be to put strain and nullify otherwisethe pure object of Article 46. The distinction can be explained with theaid of Article 15(4). Article 15(4) gives impetus to the social andFeducational “advancement” of Backward Classes or the ScheduledCastes and Scheduled Tribes. It is an enabling provision for the State tomake special provisions for the socially and educationally backwardclasses of citizens or for the Scheduled Castes or the Scheduled Tribes.The emphasis here is on the upliftment of three constitutionally earmarkedGclasses i.e., Scheduled Castes, Scheduled Tribes and Backward classes.However, Article 46 is wide in expression. The object of welfareunder Article 46 is towards those educationally and economically weak.In fact, this Court has laid down inM.R. Balaji (supra) that, “in takingexecutive action to implement the policy of Art. 15(4), it is necessaryfor the States to remember that the policy which is intended to beH

implemented is the policy which has been declared by Article 46 andthe preamble of the Constitution.” Reference in this context may also bemade to Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.[See : Atish Kumar v. Union of India, Writ (C) No. 14955 of 2019,High Court of Judicature at Allahabad, Lucknow Bench].

82. Thus, it is evident from the aforesaid that there can bereservation for certain weaker sections other than the SCs/STs andsocially and educationally backward classes. The impugned amendmentis meant for weaker sections of the society who are economically weakand cannot afford to impart education to their children or are unable tosecure employment in the services of the State.

83. Thus, in view of my aforesaid discussion, I am not impressedwith the submission canvassed on behalf of the writ applicants that Article46 of the Constitution cannot be brought in aid to defend the constitutionalvalidity of the impugned amendment.

INTERPRETATION OF THE CONSTITUTION

84. There are certain important differences in the theory ofinterpretation of Constitution contrasted with the theory of interpretationof statutes. These differences arise from the very nature and quality ofa Constitution. It would be pertinent over here to make brief referenceto these differences. Although the validity of statute can be assailed onthe ground that it is ultra vires (beyond the powers), yet the Legislaturewhich enacted it, the validity of the Constitution cannot be assailed onany ground whatsoever.

85. The framing of the Constitution of State is capital politicalfact and not juridical act. No court or other authority in the State underthe Constitution can, therefore, determine the primordial question whetherthe Constitution has been lawfully framed according to any standards.Even if Constitution is framed under violence, rebellion or coercion, itstands outside the whole area of law, jurisprudence and justiciability.The basic principle of constitutional jurisprudence is that the Constitutionis the supreme law of the land, even supreme above the law and itselfgoverning all other laws. [Mukharji ‘The New Jurisprudence” p. 103].But this principle is not applicable to an amendment of the Constitution.The Constitution can be amended only in accordance with the provisionsthereof by the authority empowered to do so in accordance with the

Aprocedure laid down therein. The validity of constitutional amendmentcan, therefore, be challenged on the ground that it is ultra vires.

86. The interpretation of Constitution involves more than apassing interest concerning the actual litigants and being pronouncementof the Courts on the government and administration, has more generalBand far-reaching consequence. Chief Justice Marshall of the AmericanSupreme Court, therefore warned in Mcculloch v. Maryland, 4Wheaton 316, “We must never forget that it is Constitution we areexpounding”. The policy of particular state is more easily discernibleand interpreted than the policy of Constitution, which is charter forgovernment and administration of whole nation and country. It isCthat policy consideration which makes the statutory interpretation differentfrom the interpretation of the Constitution. [Mukharji ‘The NewJurisprudence’, p. 105]. More foresight in the nature of judicialstatesmanship, therefore, is required in interpreting Constitution thanin construing statute. The Constitution is not to be construed in anyDnarrow pedantic sense [Per Lord Wright in James v. Commonwealthof Australia, (1936) A.C. 578, 614] and broad liberal spirit shouldinspire those whose duty it is to interpret it, for Constitution, whichprovides for the government of country, is living and organic thing,which of all instruments has the greatest claim to be construed ut resmagis valeat quam pereat (it is better for thing to have effect than toEbe made void).[Per Gwyer C.J. in Central Provinces Case, (1939) F.C. R. 18 at p. 37]. But this does not mean that Court is free to stretchfor pervert the language of Constitution in the interests of any legal orconstitutional theory, or even for the purpose of supplying omissions orfor the purpose of correcting supposed errors. [ibid]F87. If there is an apparent or real conflict between two provisionsof the Constitution, it is to be resolved by applying the principle ofharmonious construction. [Seervai ‘Constitutional Law of India’ pp.25-27 (Vol.I)] Since it is impossible to make clear-cut distinction betweenmutually exclusive legislative powers, it is well settled that in case ofGconflict, Central Law would prevail over State Law, for otherwise anabsurd situation would arise if two inconsistent laws, each of equal validity,could exist side by side within the same territory. [Salmond‘Jurisprudence’, p.32]

88. Stone J. of the American Supreme Court in United States v.HPatrick B. Classic [1941 SCC OnLine US SC 112 : 313 US 299 (1941)]

expressed the important principle of constitutional interpretation in theseterms: -

“….in determining whether provision of the Constitutionapplies to new subject matter, it is of little significancethat it is one with which the framers were not familiar. Forin setting up an enduring framework of government theyundertook to carry out for the indefinite future and in allthe vicissitudes of the changing affairs of men, thosefundamental purposes which the instrument itself discloses.Hence we read its words, not as we read legislative codeswhich are subject to continuous revision with the changingcourse of events, but as the revelation of the great purposeswhich were intended to be achieved by the Constitution asa continuing instrument of government. Cf. Davidson v.New Orleans, 96 U.S. 97, 24 L.Ed. 616; Brown v. Walker,161 U.S. 591, 595, 16 S.Ct. 644, 646, 40 L.Ed. 819;Robertson v. Baldwin, 165 U.S. 275, 281, 282, 17 S.Ct.326, 328, 329, 41 L.Ed. 715. If we remember that ‘it is aConstitution we are expounding’, we cannot rightly prefer,of the possible meanings of its words, that which will defeatrather than effectuate the Constitutional purpose.”

89. This has been sometimes called as ‘flexible’ or ‘progressive’interpretation of the Constitution which Dr. Wynes refers to as thedoctrine of ‘generic interpretation’.

90. The rules of the interpretation of the Constitution have to takeinto consideration the problems of government, structure of State,dynamism in operation, caution about checks and balances, not ordinarilycalled for in the interpretation of statutes. [Mukharji ‘The NewJurisprudence’, p. 106]

91. Although Constitution is not to be fettered by the past history,yet it is relevant for properly interpreting the Constitution. This Courtaccepted the logic that the Indian Constitution was not written on a‘blank slate’ and because the Government of India Act, 1935 providedthe basic fabric for the Indian Constitution, it was invoked to interpretthe Constitution in the light of the provisions of the Act. [M.P.V.Sundararamier & Co. v. State of A.P. and Others, 1958 SCR 1422 :AIR 1958 SC 468]

A92. The principle of ejusdem generis, rule of statutoryinterpretation, has been applied to the Indian Constitution by this Courtin the State of West Bengal v. Shaik Serajuddin Batley, 1954 SCR378. The statutory rule of interpretation expressed “Expressio uniusest exclusion alterius” (the express mention of one person or thing isthe exclusion of another) is not strictly applicable to constitutionalBinterpretation. [Mukharji ‘The New Jurisprudence’, p. 110]

93. It is the fundamental principle of construction that there isalways presumption in favour of the constitutionality of an enactmentand the burden is upon him who attacks it to show that there has been aclear transgression of the Constitution vide Shri Ram Krishna DalmiaCv. Shri Justice S.R. Tendolkar and Others, 1959 SCR 279 : AIR 1958SC 538. [Reference : Law, Judges and Justice by S.M.N. Raina, FirstEdn.]

94. In the case of R.C. Poudyal v. Union of India and Others,1994 Supp (1) SCC 324, this Court at p. 385, para 124 held as under:D

“124. …. In the interpretation of constitutional document,“words are but the framework of concepts and conceptsmay change more than words themselves”. The significanceof the change of the concepts themselves is vital and theconstitutional issues are not solved by mere appeal toEthe meaning of the words without an acceptance of theline of their growth. It is aptly said that “the intention of aConstitution is rather to outline principles than to engravedetails”.”

95. In the case of Kihoto Hollohan v. Zachillhu and Others,F1992 Supp (2) SCC 651, this Court at p. 676, para 27 held as under:

“27. constitutional document outlines only broad andgeneral principles meant to endure and be capable offlexible application to changing circumstances — adistinction which differentiates statute from CharterGunder which all statutes are made. …”

96. In the case of M. Nagaraj and Others v. Union of Indiaand Others, (2006) 8 SCC 212, this Court at p. 240 & p. 241, para 19held as under:

“19. The Constitution is not an ephemeral legal documentembodying set of legal rules for the passing hour. It setsout principles for an expanding future and is intended toendure for ages to come and consequently to be adaptedto the various crises of human affairs. Therefore, apurposive rather than strict literal approach to theinterpretation should be adopted. constitutional provisionmust be construed not in narrow and constricted sensebut in wide and liberal manner so as to anticipate andtake account of changing conditions and purposes so thata constitutional provision does not get fossilised butremains flexible enough to meet the newly emergingproblems and challenges.” [Emphasis supplied]

DOCTRINE OF BASIC STRUCTURE

97.“Amend as you may even the solemn document whichthe founding fathers have committed to your care, forDyou know best the needs of your generation. But theConstitution is precious heritage; therefore, you cannotdestroy its identity.” [Minerva Mills Ltd. and Ors. v.Union of India and others, AIR 1980 SC 1789]

98. The doctrine of Basic Structure includes general features ofthe broad democracy, supremacy of the Constitution, rule of law,separation of powers, judicial review, freedom and dignity of the individual,unity and integrity of the nation, free and fair education, federalism andsecularism. The Basic Structure Doctrine admits to identify philosophyupon which Constitution is based. Constitution stands on certainfundamental principles which are its structural pillars and if those pillarsare demolished or damaged, the whole constitutional edifice may falldown. The metaphor of living Constitution is usually used in itsinterpretive meaning i.e., that the language of the document should evolvethrough judicial decisions according to the changing environment ofsociety. Constitution’s amendment process provides another mechanismfor such evolution, as ‘built-in provision for growth’. Prima facie, theview that Constitution must develop over period of time supports abroad use of the amendment power. Nevertheless, even if we conceiveof the Constitution as living tree, which must evolve with the nation’sgrowth and develop with its philosophical and cultural advancement, ithas certain roots that cannot be uprooted through the growth process. In

Aother words, the metaphor of living tree captures the idea of certainconstraints: ‘trees, after all, are rooted, in ways that other living organismsare not’. These roots are the basic principles of given Constitution.[Reference : “Unconstitutional Constitutional Amendments : Study ofthe Nature and Limits of Constitutional Amendment Powers”, YanivRoznai, Thesis, February, 2014]B

99. In the words of Carl Friedrich, German mathematician andphysicist:

“A constitution is living system. But just as in living,organic system, such as the human body, various organsCdevelop and decay, yet the basic structure or patternremains the same with each of the organs having its properfunctions, so also in constitutional system the basicinstitutional pattern remains even though the differentcomponent parts may undergo significant alterations. Forit is the characteristic of system that it perishes whenDone of its essential component parts is destroyed.”

100. Therefore, it is not merely matter of which principles aremore fundamental than the others. It is not an exercise of ‘ranging overthe constitutional scheme to pick out elements that might arguably bemore fundamental in the hierarchy of values’, William Harris correctlyEclaimed, adding that: ‘a Constitutional provision would be fundamentalonly in terms of some articulated political theory that makes sense of thewhole Constitution’. The idea of hierarchy of norms within thefoundational structuralism is to examine whether constitutional principleor institution is so basic to the constitutional order that changing it – andFlooking at the whole constitution - would be to change the entireconstitutional identity.

101. Gary Jacobsohn, Professor of Constitutional and ComparativeLaw in the Department of Government and Professor of Law at theUniversity of Texas at Austin, argues that constitutional identity is neverGa static thing, as it emerges from the interplay of inevitably disharmonicelements. But changes to the constitutional identity, ‘however significant,rarely culminate in wholesale transformation of the constitution’. Thisis because nation usually aims to remain faithful to ‘basic structure’,which comprises its constitutional identity. ‘It is changeable’, Gary writes,‘but resistant to its own destruction’.H

102. Yaniv Roznai in his thesis referred to above, has referred toWater Murphy who argues:

“Thus an “amendment” corrects or modifies the systemwithout fundamentally changing its nature: An“amendment” operates within the theoretical parametersof the existing Constitution. proposal to transform acentral aspect of the compact to create another kind ofsystem – for example, to change constitutional democracyinto an authoritarian state … – would not be an amendmentat all, but re-creation of both the covenant and its people.That deed would lie outside the authority of any set ofgovernmental bodies, for all are creatures of the people’sagreement.”

103. In other words, constitutional changes should not betantamount to constitutional metamorphosis. Conversely, one should notconfuse constitutional preservation with constitutional stagnation. AsJoseph Raz writes:

“The law of the constitution lies as much in the interpretivedecisions of the courts as in the original document thatthey interpret … But … it is the same constitution. It is stillthe constitution adopted two hundred years ago, just as aperson who lives in an eighteenth-century house lives in ahouse built two hundred years ago. His house had beenrepaired, added to, and changed many times since. But itis still the same house and so is the constitution. personmay, of course, object to redecorating the house or tochanging its windows, saying that it would not be the same.In that sense it is true that an old constitution is not thesame as new constitution, just as an old person is not thesame as the same person when young. Sameness in thatsense is not the sameness of identity … It is the samenessof all the intrinsic properties of the object. … The point ofmy coda is to warn against confusing change with loss ofidentity and against the spurious arguments it breeds.Dispelling errors is all that general theory of theconstitution can aspire to achieve.”

ASTANDARD OF REVIEW

104. While considering the appropriate standards of review of theconstitutional amendments vis-à-vis unamenable principles, Yaniv Roznaihas suggested three different levels of standards:

1. Minimal Effect Standard:

105. The first option is the Minimal Effect Standard. This is themost stringent standard of the judicial review of amendments. Accordingto this standard, any violation or infringement of an unamendable principleis prohibited no matter how severe the intensity of the infringement is,including amendments that have only minimal effect on the protectedCprinciples. On the one hand, one may claim that the importance of theprotected unamendable principles – as pillars of the constitution –necessitates the most stringent protection. If the aim of unamendabilityis to provide for hermetic protection of certain set of values orinstitutions, then any violation of these principles ought to give rise toDgrounds for judicial intervention. On the other hand, such standardwould not only bestow great power to the courts, but also would placewide – perhaps too wide – restrictions on the ability to amend theconstitution. The theory of unamendability should not be construed as asevere barrier to change. It should be construed as mechanism enablingconstitutional progress, permitting certain flexibility by allowingEconstitutional amendments, while simultaneously shielding certain corefeatures of the constitution from amendment, thereby preserving theconstitutional identity.

2. Disproportionate Violation Standard:

F106. The intermediate standard of review is the DisproportionateViolation Standard. It is an examination of the proportionality of theviolation. The principle of proportionality is nowadays becoming an almostuniversal doctrine in constitutional adjudication. Proportionality generallyrequires that violation of constitutional right has ‘proper purpose;’that there is rational connection between the violation and that purpose;Gthat the law is narrowly tailored to achieve that purpose; and that therequirements of the proportionality stricto (balancing) test are met. Adisproportionate violation of constitutional right would be consideredunconstitutional and thus void. This standard emphasises the balancingof conflicting interests.

3. Fundamental Abandonment Standard:

107. Fundamental Abandonment Standard is the lowest level ofscrutiny. According to this standard, only an extraordinary infringementof unamendable principles, one that changes and ‘fundamentallyabandons’ them, would allow judicial annulment of constitutionalamendments. This seems to be the approach taken by the GermanConstitutional Court.

108. One of the initial references to doctrine of basic featuresand its permanency was in Sajjan Singh v. State of Rajasthan, AIR1965 SC 845, observed, that the Constitution “formulated solemn anddignified preamble which appears to be an epitome of the basic featuresof the Constitution. Can it not be said that these are indicia of the intentionof the Constituent Assembly to give permanency to the basic featuresof the Constitution?”

109. The doctrine actually came to be in the seminal case ofKesavananda Bharati (supra), where the Supreme Court emphasisingon the essence of the basic structure held that “every provision of theConstitution can be amended provided in the result the basic foundationand structure of the Constitution remains the same.” The concept ofbasic structure, as such gives coherence and durability to Constitution,for it has certain intrinsic force in it.

110. Inspired by the doctrine of Basic Structure enshrined inArticles 1 to 19 of the German Constitution, 1949 (“The Basic Law forthe Federal Republic of Germany’), where these principles are based onthe premise that democracy is not only parliamentary form ofgovernment but also is philosophy of life based on the appreciation ofthe dignity, the value and the inalienable rights of each individual humanbeing; such as that of right to life and physical integrity; equality beforelaw; rights to personal honour and privacy; occupational freedom;inviolability of the home; right to property and inheritance. The essenceof basic rights could, under no circumstance, be affected.

111. Article 20 of the Federal Republic of Germany provides thatGermany is Democratic and Social Federal State. State authority isderived from the people through elections. All Germans have right toresist anyone seeking to abolish the constitutional order, if no other remedyis available.

A112. Article 79 of the Federal Republic of Germany lays down theprocedure to amend the Basic Law by supplementing particularprovision or expressly amending the same. However, amendments tothe Basic Law affecting the principles laid down in Articles 1 and 20 oraffecting the division of federation i.e. participation of Centre and Statein the legislative process are inadmissible.B

113. The provisions under the German Constitution deal with rights,which are not mere values, rather, they are justiciable and capable ofinterpretation. Thus, those values impose positive duty on the State toensure their attainment as far as practicable. The State must facilitatethe rights, liberties and freedoms of the individuals.C

114. In India, the doctrine of Basic Structure is judicial innovation,and it continues to evolve via judicial pronouncements of this Court. Thecontours of the expression have been looked into by the Court from timeto time, and several constitutional features have been identified as thebasic structure of the Constitution; but there is not an exhaustive definitionDor list of what constitutes the ‘basic structure’ of the Constitution - theCourt decides from case to case if constitutional feature can be regardedas basic or not.115. Kesavananda Bharati (supra) was heard by Full Benchof this Court consisting of 13 Judges. majority of Judges held that theEview taken in C. Golak Nath and Others v. State of Punjab andAnother, 1967 AIR 1643 : (1967) 2 SCR 762, that the word “law” inArticle 13 included constitutional amendment, could not be upheld.The said decision was, therefore, overruled. But the Court was sharplysplit on the question whether the word “amendment” in Article 368 as itFstood before its amendment by the 24[th] Amendment included the powerto alter the basic feature or to repeal the Constitution itself.

116. Six Judges led by Sikri CJ were of the view that the Constitutioncould not be amended so as to abrogate or emasculate the basic featuresof the Constitution some of which were characterized by Sikri, CJ asunder: -G

“(1)Supremacy of the Constitution;

(2)Republican and Democratic forms ofGovernment;

(3)Secular character of the Constitution;H

(4)Separation of powers between the legislature, theexecutive and the judiciary;

(5)The Federal character of the Constitution.”

117. It was further held that fundamental rights could not beabrogated though reasonable abridgment of fundamental rights could beaffected in public interest. According to this view, Parliament would beable to adjust fundamental rights in order to secure what the DirectivePrinciples directed to be accomplished while maintaining the freedomand dignity of the citizens. Khanna, J. took more liberal view in regardto the power of amendment of the Parliament. He agreed with the above-mentioned six Judges that the power of amendment is not unlimited andmade the following pertinent observations in Paragraph 1437:

“1437. ….The word “amendment” postulates that the oldConstitution survives without loss of its identity despite thechange and continues even though it has been subjected toalternations. ………………. The words “amendment of theconstitution” with all their wide sweep and amplitude cannothave the effect of destroying or abrogating the basicstructure or framework of the constitution….”

118. He was, however, of the view that subject to the retention ofthe basic structure or framework of the Constitution, the power ofamendment is plenary and includes within itself the power to amend thevarious articles of the Constitution, including those relating to fundamentalrights as well as those which may be said to relate to essential features.He was also of the view that the right to property does not pertain tobasic structure or framework of the Constitution (vide Paragraph 1550).In short, the decision of the majority may be stated as under : -

(1) Golak Nath case [AIR 1967 SC 1643 : (1967) 2 SCR762 : (1967) 2 SCJ 486] is overruled;

(2) Article 368 does not enable Parliament to alter the basicstructure or framework of the Constitution;

(3) The Constitution (Twenty-fourth Amendment) Act, 1971,is valid;

(4) Section 2(a) and 2(b) of the Constitution (Twenty-fifthAmendment) Act, 1971 is valid;

(5) The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971, is valid. The second part,namely, “and no law containing declaration that it is forgiving effect to such policy shall be called in question inany court on the ground that it does not give effect to suchpolicy” is invalid;

(6) The Constitution (Twenty-ninth Amendment) Act, 1971is valid.

119. Other six Judges led by Ray J. (as he then was) held thatthe power to amend was wide and unlimited and included the power toCadd, alter or repeal any provision of the Constitution. They, therefore,upheld all the Constitutional amendments.

120. Seven judges against six thought that the basic structure ofthe Constitution cannot be altered under the amending power althoughthere was no agreement among themselves about the meaning andcontent of the so-called basic structure.D

121. Sikri, CJ, observed:

“The expression “amendment of this Constitution” does notenable Parliament to abrogate or take away fundamentalrights or to completely change the fundamental featuresEof the Constitution so as to destroy its identity. Within theselimits Parliament can amend every article.”[Kesavananda Bharati, at p. 1565.]

122. Shelat and Grover, JJ., said on the scope of amending powerunder Article 368 as follows:F

“Though the power to amend cannot be narrowly construedand extends to all the articles it is not unlimited so as toinclude the power to abrogate or change the identity ofthe Constitution or its basic features;” [KesavanandaBharati, at p. 1609-10.]

123. Hegde and Mukherjea, JJ., expressed the same opinion. They

said:

“Though the power to amend the Constitution under Article368 is very wide power, it does not yet include the powerto destroy or emasculate the basic elements or the

fundamental features of the Constitution.” [KesavanandaBharati, at p. 1648.]

124. Reddy, J. was of the same opinion. Khanna, J. held that theamending power of Parliament is very wide under Article 368, but healso imposed certain limitations on the amending power in the name ofbasic structure of the Constitution. He said:

“….it is permissible under the power of amendment to effectchanges, howsoever important, and to adapt the system tothe requirements of changing conditions, it is not permissibleto touch the foundation or to alter the basic institutionalpattern. The words “amendment of the constitution” withall their wide sweep and amplitude cannot have the effectof destroying or abrogating the basic structure orframework of the constitution…..” [Kesavananda Bharati,at p. 1860.]

He further said that:

“…..Subject to the retention of the basic structure orframework of the Constitution, the power of amendment isplenary and would include within itself the power to amendthe various articles of the Constitution. … The power ofamendment would also include within itself the power toadd, alter or repeal the various articles.”

[Kesavananda Bharati, at p. 1903-04.]

125. Thus, it is very clear that the sense in which Khanna, J., usesthe expression ‘basic structure or framework of the Constitution’ is verydifferent from the sense in which six judges led by Sikri, CJ., use theexpression ‘essential features or basic features’ of the Constitution.Fundamental rights can be abrogated by the use of the amending poweraccording to Khanna, J., but not so according to six judges led by Sikri,C.J.

126. Ray, J. rejected the idea of any implied limitations on theamending power and thought that the power to amend is wide andunlimited. He said that:

“….There can be or is no distinction between essential andinessential features of the Constitution to raise any

Aimpediment to amendment of alleged essential features….”[Kesavananda Bharati at p. 1718]

127. The aforesaid opinion was also shared by Palekar, Mathew,Beg, Dwivedi and Chandrachud, JJ.

128. Thus, if Kesavananda Bharati (supra) is to be read closelyBand carefully, it says that there are no limitations on the exercise ofArticle 368 (which is constituent power), yet it is subject to the ‘BasicStructure Doctrine’. The origin of the ‘Doctrine of Basic Features’ liesin the fear of an apprehension of constitutional collapse, and anxietywhich is exceptional in the life of Constitution. The ‘Basic StructureCDoctrine’ was meant for special use in times when constitutionalamendments threatened the fundamental structure of the Constitution.The special stature anticipates careful use of the doctrine so as toensure that its unique place is preserved. Vital as the doctrine was, evenmore important was to exercise some restraint and to ensure itsmeaningful use. The ‘Basic Structure Doctrine’ has been taken recourseDto over and over again with little concern about its restrained use.Professor Satya Prateek, former Assistant Professor, O.P. JindalGlobal University, in one of his essays titled ‘Today’s Promise, Tomorrow’sConstitution : ‘Basic Structure’, Constitutional Transformations And TheFuture Of Political Progress In India’ has very rightly stated that theEdoctrine has been extensively used in affecting policy decisions and itsindifferent use is the root cause of the resentment that has brewed againstit. Over period of time, it has been used less for constitutional gate–keeping in times of crisis and more for decisively influencing the coursewhich State policy might take in future. The repeated use of the doctrineof Basic Structure may impair the doctrine itself and it is likely that theFidea of constitutional essentialism might not get the respect it deservesfrom the political institutions. Prof. Satya Prateek has beautifully explainedstating that the ‘Basic Structure Doctrine’ is indeed special, it is powerfultool we have for constitutional preservation but its special character aswell as its authority is severely threatened in culture of unresponsiveGuse.

129. According to the widely accepted principles of constitutionalinterpretation, the provisions of constitution should be construed in thewidest possible manner. Constitutional law is the basic law. It is meantfor people of different opinions. It should be workable by people of differentHideologies and at different times. Since it provides framework for the

organisation and working of State in society which keeps on changing,it is couched in elastic terms and, therefore, it has to be interpretedbroadly. No generation has right to bind the future generations by itsown beliefs and values. Each generation has to choose for itself theways of life and social organisation. Constitution should be so adaptablethat each generation may be able to make use of it to realise its aspirationsand ideals. An amending clause is specifically provided to adapt theConstitution according to the needs of the society and the times. In viewof this, no implied limitation can be imposed on the amending power. Todo so would be to defeat the very purpose of it. The Constitution-makershad before them the Constitutions of the United States, Australia, Canada,Ireland, South Africa and Germany which they were constantly referringto while discussing and drafting the amending provisions. In all theseConstitutions the word ‘amendment’ is used in the widest possible sense.Therefore, our Constitution-makers may be presumed to have used thisword in the same broad sense in the absence of any express limitations.[B.N. Rau, Table of Amending Process, Constitutional Precedents,1[st] Series (1947) cf. Hari Chand, Amending Process in the IndianConstitution 96 (1972).]

130. Dwivedi, J., in Kesavanand Bharati (supra) said about thescope of amending power as follows:

“Article 368 is shaped by the philosophy that everygeneration should be free to adapt the Constitution to thesocial, economic and political conditions of its time. Mostof the Constitution-makers were freedom-fighters. It isdifficult to believe that those who had fought for freedomto change the social and political organisation of theirtime would deny the identical freedom to their descendantsto change the social, economic and political organisationof their times. The denial of power to make radical changesin the Constitution to the future generation would invitethe danger of extra constitutional changes of theConstitution.

“The State without the means of some change is withoutmeans of its conservation. Without such means it might evenrisk the loss of that part of the Constitution which it wishedthe most religiously to preserve.” [Burke, Recollections on

Athe Revolution in France and other Writings. OxfordUniversity Press, 1958 Reprint, p. 23.]”

131. The whole Constitution is basic law. It is not easy to distinguishwhich part is more basic than the other as there is no objective test todistinguish. [Ray, J., in Kesavananda Bharati (supra) at p. 1675, 1682B& 1684.] Since, there are no objective criteria to distinguish, there arebound to be subjective preferences and choices in deciding whatconstitutes this so-called basic structure. Even, if it were possible todistinguish essential features from non-essential features, it is not possibleto assert that the essential features are necessarily eternal and immutable.[ Mathew, J., Kesavananda Bharati (supra) at p. 1947.] Judging fromCpast history one may doubt if any feature of law and society isunchangeable. What was considered fundamental by one society at onetime was abandoned later as an outmoded impediment.132. Fundamental rights, no doubt, are very important and constitutethe bed-rock of civilization. But society keeps on changing with theDchanges in the socio-economic conditions. The limits of these rights mayneed constant re-definition. Even their essential content may undergo aradical transformation. To enable necessary adjustments in the legalrelationships and to bring them in harmony with social realities, anamending power is provided in all Constitutions. The easier the mode ofEamendment, the more flexible the Constitution is. In the absence of someamending provision, Constitution will fail to contain the social changesand is bound to break down. It is necessary safety valve to allowradical changes through constitutional processes. If the necessarychanges cannot be brought through constitutional means, revolutionbecomes necessity. Thus, an unlimited amending power and simpleFprocedure of amendment is an effective means to bring about socialrevolution through law. The British Constitution offers very goodexample of flexible Constitution with an easy procedure of simplemajority vote to bring about any changes in law including constitutionallaw. Perhaps, this aspect of constitutional law and strong democraticGtraditions in Britain prompted even Marx to say that probably Britain isthe only country where revolution may be brought about through peacefuland democratic means. [Friedrich Engels (ed.) Karl Marx, Capital,(1952. 50 Britannic Great Book Series] Thus, to have wide amendingpower and easy procedure of amendment is not to undervaluefundamental rights, nor is it an invitation to abolish them but is meansH

to preserve them through necessary adaptations in harmony with thechanged social realities. Stability of fundamental rights lies not in theabsence of legal power to remove them but in the social and politicalsupport for them. [Reference : Phantom of Basic Structure of theConstitution, Source : Journal of the Indian Law Institute, April-June1974, Vol. 16]

133. Mr. N. Palkhivala has summed up the effect of the majorityjudgment in his book titled “Our Constitution Defaced and Defiled” inthe following words:

“Parliament cannot, in the exercise of its amending power,alter the basic structure or framework of the constitution.For instance, it cannot abolish the sovereignty of India orthe free democratic character of the republic; nor can itimpair the integrity and unity of India or abolish the States.(The principle that the basic structure or framework of theConstitution cannot be altered gives wider scope to theamending power than the principle that none of the essentialfeatures of the Constitution can be damaged or destroyed.)The Court’s jurisdiction cannot be ousted as is sought to bedone by Article 31C. If the Court’s jurisdiction were ousted,any of the States could pass laws which might lead to thedismemberment of India.”

134. Thus, Kesavananda Bharati (supra) struck balancebetween the rights of the individuals and the powers of the State tocurtail those rights. It found suitable via-media between the two rivalphilosophies – one favouring the complete sanctity of fundamental rightswhile the other supporting the complete flexibility of the Constitution.[Reference: Law, Judges and Justice – by Justice S.M.N. Raina].

135. In Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR1975 SC 2299, the Court, expanding the scope of the basic structure,held that there were four unamendable features which formed part ofthe basic structure, namely, “(i) India is sovereign democratic republic;(ii) Equality of status and opportunity shall be secured to all its citizens;(iii) The State shall have no religion of its own and all persons shall beequally entitled to freedom of conscience and the right freely to profess,practise and propagate religion and (iv) The nation shall be governed bya government of laws, not of men.” These, according to them, were

A“the pillars of our constitutional philosophy, the pillars, therefore, of thebasic structure of the Constitution.”

136. The Court also noted that the principle of free and fairelections is an essential postulate of democracy, and which, in turn, is apart of the basic structure of the Constitution. That democracy was anBessential feature forming part of the basic structure. In this case, theCourt struck down clause (4) of Article 329-A which provided for specialprovision as to elections to Parliament in the case of Prime Minister andSpeaker, on the ground that it damaged the democratic structure of theConstitution. That the said clause (4) had taken away the power ofjudicial review of the courts as it abolished the forum without providingCfor another forum for going into the dispute relating to the validity ofelection of the Prime Minister. It extinguished the right and the remedyto challenge the validity of such an election. The complaints ofimproprieties, malpractices and unfair means have to be dealt with asthe principle of free and fair elections in democracy is basic featureDof the Constitution, and thus, clause (4) was declared to be impermissiblepiece of constitutional amendment.

137. However, the Court in this case also observed that “theconcept of basic structure, as brooding omnipresence in the sky, apartfrom specific provisions of the Constitution, is too vague and indefiniteEto provide yardstick to determine the validity of an ordinary law.”

138. In Minerva Mills Ltd. (supra), discussing the standard to beapplied to what qualifies as the basic structure, this Court held that “….thefeatures or elements which constitute the basic structure orframework of the Constitution or which, if damaged or destroyed,Fwould rob the Constitution of its identity so that it would cease to bethe existing Constitution but would become different Constitution.… Therefore, in every case where the question arises as to whethera particular feature of the Constitution is part of its basic structure,it would have to be determined on consideration of various factorssuch as the place of the particular feature in the scheme of theGConstitution, its object and purpose and the consequence of itsdenial on the integrity of the Constitution as fundamental instrumentof country’s governance…..”. The Court further held that“Fundamental rights occupy unique place in the lives of civilisedsocieties and have been variously described in our Judgments asH“transcendental”, “inalienable” and “primordial”…..they constitute

the ark of the Constitution”. … “….To destroy the guarantees givenby Part III in order purportedly to achieve the goals of Part IV isplainly to subvert the Constitution by destroying its basic structure”.

139. In S.R. Bommai and others etc. etc. v. Union of Indiaand others etc. etc., AIR 1994 SC 1918, expanding the list of basicfeatures, this Court held that secularism was an essential feature of theConstitution and part of its basic structure. In this case, this Courtexplained the concept of basic structure of the Constitution, while dealingwith the issue of exercise of the power by the Central Governmentunder Article 356 of the Constitution.

140. In M. Nagraj (supra), the Constitution Bench of this Courtdealing with the issue of basic structure observed that “axioms likesecularism, democracy, reasonableness, social justice, etc. are overarchingprinciples which provide linking factor for principles of fundamental rightslike Articles 14, 19 and 21. These principles are beyond the amendingpower of Parliament. They pervade all enacted laws and they stand atthe pinnacle of the hierarchy of constitutional values”. Such rights haveto be respected and cannot be taken away.

141. The framers of the Constitution have built wall around thefundamental rights, which has to remain forever, limiting the ability ofthe majority to intrude upon them. That wall is part of basic structure.[See : I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu, AIR 2007SC 861; See also Kesavananda Bharati (supra)].

142. Thus, “for constitutional principle to qualify as an essentialfeature, it must be established that the said principle is part of theconstitutional law binding on the legislature. Only thereafter, the secondstep is to be taken, namely, whether the principle is so fundamental as tobind even the amending power of Parliament i.e. to form part of thebasic structure.” [M. Nagaraj (supra)]

143. When an issue is raised regarding the basic structure, thequestion does arise as to whether the amendment alters the structure ofthe constitutional provisions. “The criterion for determining the validityof law is the competence of the law-making authority. The competenceof the law-making authority would depend on the ambit of the legislativepower, and the limitations imposed thereon as also the limitations on themode of exercise of the power.” [M. Nagaraj (supra)]

CDE

A144. The aforesaid structure is built on the basic foundation, i.e.,the dignity and freedom of the individual. This is of supreme importance.This cannot be destroyed by any form of amendment. Parliament cannotexpand its power of amendment under Article 368 so as to confer onitself the power to repeal, abrogate the Constitution or damage,emasculate or destroy any of the fundamental rights or essential elementsBof the basic structure of the Constitution or of destroying the identity ofthe Constitution.

145. In I.R. Coelho (dead) by L.R.s (supra), Nine Judge Benchof this Court laid down the concrete criteria for basic structure principle,observing:C

“123. … Since power to amend the Constitution is notunlimited,if changes brought about by amendments destroythe identity of the constitution, such amendments would bevoid.….

137. ….every improper enhancement of its own power byParliament, be it clause 4 of Article 329-A or clauses 4and 5 of Article 368 or Section 4 of 42nd Amendment havebeen held to be incompatible with the doctrine of basicEstructure doctrine as they introduced new elements whichaltered the identity of the Constitution, or deleted theexisting elements from the Constitution by which the verycore of the Constitution is discarded…..”[Emphasis added]

F146. Articles 14, 19 and 21 resply represent the fundamental valuesand form the basis of rule of law, which is basic feature of theConstitution. For instance, Parliament, in exercise of its amending powerunder Article 368, can make additions in the three legislative lists containedin the Seventh Schedule of the Constitution, but it cannot abrogate all thelists as that would abrogate the federal structure, which is one of theGbasic features of the Constitution.

147. To qualify to be basic structure it must be “terrestrialconcept having its habitat within the four corners of the Constitution.”What constitutes basic structure is not like “a twinkling star up abovethe Constitution.” It does not consist of any abstract ideals to be foundHoutside the provisions of the Constitution. The Preamble no doubt

enumerates great concepts embodying the ideological aspirations of thepeople but these concepts are particularised and their essential featuresdelineated in the various provisions of the Constitution. It is these specificprovisions in the body of the Constitution which determine the type ofdemocracy which the founders of that instrument established; the qualityand nature of justice, political, social and economic which they aimed torealise, the content of liberty of thought and expression which theyentrenched in that document and the scope of equality of status and ofopportunity which they enshrined in it. These specific provisions enactedin the Constitution alone can determine the basic structure of theConstitution. These specific provisions, either separately or in combination,determine the content of the great concepts set out in the Preamble. It isimpossible to spin out any concrete concept of basic structure out of thegossamer concepts set out in the Preamble. The specific provisions ofthe Constitution form the yarn from which the basic structure has to bewoven.

148. In Supreme Court Advocates-on-Record Association andanother v. Union of India, AIR 2016 SC 117, this Court held that thereare declared limitations on the amending power conferred on Parliamentwhich cannot be breached. Breach of single provision of theConstitution is sufficient to render the entire legislation ultra vires theConstitution. The Court held that the basic structure of the Constitutionincludes supremacy of the Constitution, the republican and democraticform of Government, the federal character of distribution of powers,secularism, separation of powers between the Legislatures, Executiveand the Judiciary, and independence of the Judiciary.

149. In Kuldip Nayar v. Union of India & Ors., AIR 2006 SC3127, this Court, while dealing with the question of political party systemvis-à-vis democracy observed that “parliamentary democracy and multi-party system are an inherent part of the basic structure of IndianConstitution. It is the political parties that set up candidates at an electionwho are predominantly elected as Members of the State Legislatures.”Further, the Court, placing reliance on Kesavananda Bharati (supra)observed that “….a Parliamentary Democracy like ours functions onthe basis of the party system. The mechanics of operation of the partysystem as well as the system of Cabinet Government are such that thepeople as whole can have little control in the matter of detailed law-making”.

A150. In Kihoto Hollohan v. Zachillhu (supra), the Court felt thatthe existence of the Tenth Schedule of the Constitution further strengthensthe importance of the political parties in our democratic set-up. Rejectingthe argument that the political party is not democratic entirety, and thatWhip issued under the Tenth Schedule is unconstitutional, the Courtreiterated that the Parliament was empowered to provide that theBMembers are expected to act in accordance with the ideologies of theirrespective political parties and not against it. Thus, ‘Basic’ means thebase of thing on which it stands and on the failure of which it falls.Hence, the essence of the ‘basic structure of the Constitution’ lies insuch of its features, which if amended would amend the very identity ofCthe Constitution itself, ceasing its current existence. It, as noted aboveis, not “vague concept” or “abstract ideals found to be outside theprovisions of the Constitution”. Therefore, the meaning/extent of ‘basicstructure’ needs to be construed in view of the specific provision(s)under consideration, its object and purpose, and the consequences of itsdenial on the integrity of the Constitution as fundamental instrument ofDgovernance of the country. [Reference : paragraphs 108 to 114,paragraphs 135 to 150 from - Doctrine of Basic Structure : Contoursby Dr. Justice B.S. Chauhan Former Judge, Supreme Court of India;dated 16 September, 2018]

151. In the case on hand, the entire debate on the constitutionalEvalidity of the 103[rd] Constitution Amendment has proceeded on thedoctrine of Basic Structure. If there is one decision of this Court whichexplains the doctrine of Basic Structure and its reach and effects in themost lucid and simple manner, the same is the case of Glanrock EstatePrivate Limited v. State of Tamil Nadu, (2010) 10 SCC 96. In the saidFcase, Bench of three Judges examined the constitutional validity of theConstitution (34[th] Amendment) Act, 1974 by which the Gudalur JanmamEstates (Abolition and Conversion into Ryotwari) Act, 1969 stood insertedin the Ninth Schedule to the Constitution as Item 80. It was argued onbehalf of the petitioner therein that the inclusion of Janmam Act in theNinth Schedule amounted to direct negation and abrogation of judicialGreview. It was argued that the Constitution (34[th] Amendment) Act, 1974destroyed the basic feature of the Constitution, namely, judicial review.

152. S.H. Kapadia, CJ, speaking for the Bench, in the GlanrockEstate (supra), has explained certain concepts like the egalitarian equality,overarching principles and reading of Article 21 with Article 14.H

153. The learned Judge explained that in applying the above threeprinciples, one has to go by the degree of abrogation as well as thedegree of elevation of an ordinary principle of equality to the level ofoverarching principles. The learned Judge reminded that the case wasnot one wherein the challenge was to any ordinary law of the land. TheCourt said that the challenge was to the constitutional amendment. In arigid Constitution (Article 368) power to amend the Constitution is aderivative power, which is an aspect of the constituent power.154. In the case on hand also, the challenge is to the exercise ofderivative power of the Parliament in the matter of 103[rd] ConstitutionAmendment. Since the power to amend the Constitution is derivativepower, the exercise of such power to amend the Constitution is subjectto two limitations, namely, the doctrine of Basic Structure and lack oflegislative competence. The doctrine of Basic Structure is brought in asa window to keep the power of judicial review intact as abrogation ofsuch power would result in violation of basic structure. When wespeak of discrimination or arbitrary classification, the same constitutesviolation of Article 14 of the Constitution. This Court laid stress to keepin mind that the distinction between constitutional law and ordinary lawin rigid Constitution like ours. The said distinction proceeds on theassumption that ordinary law can be challenged on the touchstone of theConstitution. Therefore, when an ordinary law seeks to make aclassification without any rational basis and without any nexus with theobject sought to be achieved, such ordinary law could be challenged onthe touchstone of Article 14 of the Constitution. However, when it comesto the validity of constitutional amendment, one has to examine thevalidity of such amendment by asking the question as to whether suchan amendment violates any overarching principle in the Constitution.What is overarching principle? Concepts like secularism, democracy,separation of powers, power of judicial review fall outside the scope ofamendatory powers of the Parliament under Article 368. If any ofthese were to be deleted, it would require changes to be made not onlyin Part III of the Constitution but also in Article 245 and the three Listsof the Constitution resulting in the change of the very structure orframework of the Constitution. When an impugned Act creates aclassification without any rational basis and having no nexus with theobjects sought to be achieved, the principle of equality before law isviolated undoubtedly. Such an Act can be declared to be violativeof Article 14. Such violation does not require re-writing of

Athe Constitution. This would be case of violation of ordinary principleof equality before law. Similarly, “egalitarian equality” is much widerconcept. It is an overarching principle. The term “egalitarianism” hasdistinct definition that all people should be treated as equal and have thesame political, economic, social and civil rights or have social philosophyadvocating the removal of economic inequalities among the people,Beconomic egalitarianism or the decentralisation of power.

155. For the purpose of explaining “egalitarian equality” as anoverarching principle, this Court in Glanrock Estate (supra) gave anillustration of the acquisition of forests. This Court observed thus:

C“26. … This would be case of violation of ordinaryprinciple of equality before law.

27. Similarly, “egalitarian equality” is much widerconcept. It is an overarching principle. Take the case ofacquisition of forests. Forests in India are an importantpart of environment. They constitute national asset. Invarious judgments of this Court delivered by the ForestBench of this Court in T.N. GodavarmanThirumulpad v. Union of India (Writ Petition No. 202 of1995), it has been held that “inter-generational equity” ispart of Article 21 of the Constitution.

28. What is inter-generational equity? The presentgeneration is answerable to the next generation by givingto the next generation good environment. We areanswerable to the next generation and if deforestationtakes place rampantly then inter-generational equity wouldstand violated.

29. The doctrine of sustainable development also formspart of Article 21 of the Constitution. The “precautionaryprinciple” and the “polluter pays principle” flow from thecore value in Article 21.

30. The important point to be noted is that in this case weare concerned with vesting of forests in the State. Whenwe talk about inter-generational equity and sustainabledevelopment, we are elevating an ordinary principle ofequality to the level of overarching principle. Equality

doctrine has various facets. It is in this sense that in I.R.Coelho case [(2007) 2 SCC 1] this Court has read Article21 with Article 14. The above example indicates that whenit comes to preservation of forests as well as environmentvis-à-vis development, one has to look at the constitutionalamendment not from the point of view of formal equalityor equality enshrined in Article 14 but on much widerplatform of an egalitarian equality which includes theconcept of “inclusive growth”. It is in that sense that thisCourt has used the expression Article 21 read with Article14 in I.R. Coelho case [(2007) 2 SCC 1]. Therefore, it isonly that breach of the principle of equality which is ofthe character of destroying the basic framework of theConstitution which will not be protected by Article 31-B. Ifevery breach of Article 14, however, egregious, is held tobe unprotected by Article 31-B, there would be no purposein protection by Article 31-B.

31. The question can be looked at from yet another angle.Can Parliament increase its amending power by amendmentof Article 368 so as to confer on itself the unlimited powerof amendment and destroy and damage the fundamentalsof the Constitution? The answer is obvious. Article 368does not vest such power in Parliament. It cannot lift alllimitations/restrictions placed on the amending power orfree the amending power from all limitations. This is theeffect of the decision in Kesavananda Bharati [(1973) 4SCC 225]. …”

156. This Court, in the aforesaid context, said that the point to benoted, therefore, is that when constitutional law is challenged, one has toapply the “effect test” to find out the degree of abrogation. This is the“degree test” which has been referred to earlier. If one finds that theconstitutional amendment seeks to abrogate core values/overarchingprinciples like secularism, egalitarian equality, etc. and which wouldwarrant re-writing of the Constitution, then such constitutional law wouldcertainly violate the basic structure. In other words, such overarchingprinciples would fall outside the amendatory power under Article 368 inthe sense that the said power cannot be exercised even by the Parliamentto abrogate such overarching principles. The Court proceeded to quote

Athe observations made by Mathew, J. in Indira Nehru Gandhi (supra),that equality is feature of rule of law and not vice-versa. The expression“rule of law” describes society in which Government must act inaccordance with law. society governed by law is the foundation ofpersonal liberty. It is also the foundation of economic development sinceinvestment will not take place in country where rights are not respected. BThe Court said that it is in that sense that the expression “Rule of Law”constitutes an overarching principle embodied in Article 21, one aspectof which is equality.157. As stated above, the amending power under Article 368 ofthe Constitution is derivative power. The doctrine of Basic StructureCprovides touchstone on which the validity of the ConstitutionalAmendment Act could be judged. While applying this doctrine, one neednot go by the content of “right” but by the test of justifiability underwhich one has to see the scope and the object of the ConstitutionalAmendment. The doctrine of Classification under Article 14 has severalDfacets. Equality is comparative concept. This Court proceeded toobserve something very important. It said that “a person is treatedunequally only if that person is treated worse than others, and thoseothers (the comparison group) must be those who are “similarlysituated” to the complainant.”

E158. The pivotal or seminal question that falls for my considerationis whether the “similarly situated test” is attracted in the present case soas to say that the egalitarian equality as an overarching principle is violatedand has thereby rendered clause (6) of Article 15 and clause (6) ofArticle 16 invalid as they exclude the SCs, STs and OBCs.

F159. In Glanrock Estate (supra), K.S. Panicker Radhakrishnan,J., concurring with S.H. Kapadia, CJ, thought fit to supplement thereasonings by his separate order. Radhakrishnan, J. observed thus:

“79. Right to equality before law, right to equality ofopportunity in matters of public employment, right toGprotection of life and personal liberty, right againstexploitation, right to freedom of religion, etc. are allfundamental rights guaranteed under Part III of theConstitution and common thread running through all thearticles in Part III of the Constitution have commonidentity committed to an overarching principle which is the

basic structure of the Constitution. Rule of law is oftensaid as closely interrelated principle and when interpretedas principle of law, it envisages separation of powers,judicial review, restriction on the absolute and arbitrarypowers, equality, liberty, etc. Separation of powers is anintegral part of rule of law which guarantees independenceof judiciary which is fundamental principle viewed as asafeguard against arbitrary exercise of powers, legislativeand constitutional.

80. Doctrine of absolute or unqualified parliamentarysovereignty is antithesis to rule of law. Doctrine ofparliamentary sovereignty may, at times, make rule of lawand separation of powers subservient to the wish of themajority in Parliament. Parliamentary supremacy cannotbe held unqualified so as to undo the basic structure. Basicstructure doctrine is, in effect, constitutional limitationagainst parliamentary autocracy. Let us, however, be clearthat the principles of equality inherent in the rule of lawdo not averse to the imposition of special burdens, grantspecial benefits and privileges to secure to all citizensjustice, social and economic, and for implementing thedirective principles of State policy for establishing an”egalitarian society.

[Emphasis supplied]

160. Thus, the word “amendment” postulates that the oldConstitution survives without loss of its identity despite the change andcontinues even though it has been subjected to alteration. As result ofthe amendment, the old Constitution cannot be destroyed and done awaywith; it is retained though in the amended form. What then is meant bythe retention of the old Constitution? It means the retention of the basicstructure or framework of the Constitution. Although it is permissibleunder the power of amendment to effect changes, howsoever important,and to adapt the system to the requirements of changing conditions, yetit is not permissible to touch the foundation or to alter the basic institutionalpattern. The words “amendment of the Constitution” with all their widesweep and amplitude cannot have the effect of destroying or abrogatingthe basic structure or framework of the Constitution. It would not becompetent under the garb of amendment, for instance, to change the

Ademocratic government into dictatorship or hereditary monarchy, norwould it be permissible to abolish the Lok Sabha and the Rajya Sabha.

161. Justice H.R. Khanna in one of his lectures delivered at theDelhi Study Group in New Delhi, stated something which is worth takingnote of:

“Criticism has been levelled against the concept of basicstructure that it creates uncertainty in vital matter likethe power to amend the Constitution. It is urged that unlessthat concept is put in precise cut and dry form, thoseamending the Constitution would always remain uncertainwhether the constitutional amendment, even though passedby the requisite majority, would be upheld by the courts.In this respect it may be stated that the majority decisionof this Court in Kesavananda Bharati case containssufficient indication by giving illustrations as to what wouldconstitute basic structure of the Constitution. It is neverdesirable in constitutional matters to put either theprovisions or basic propositions in cut and dry form, nor isit proper in such matters to try to be exhaustive for onceyou do that you forget vital fact of life that in humanaffairs there can arise variety of situations and that it isbeyond any human ingenuity to pierce through the visageof time and to contrive for all types of contingencies. It isfor that reason that the provision of Constitution arecouched in general terms because that fact gives theprovisions flexibility, helps them to grow and enables themto adapt themselves to new situations. Rigidity is one thingwhich the provisions of Constitution must shun for suchrigidity can result in the break-down of the Constitution insituations where what is needed is resilience and flexibilityrather than brittleness and rigidity. Absence of formalexactitude or want of fixity of meaning is not unusual oreven regrettable attribute of constitutional provision. Noris it desirable in such matters to freeze concept at somefixed stage of thought or time. The US Constitution wasframed about 200 years ago. It was designed for countrywhich at that time was primarily agricultural and consistedof small number of States. The fact that the said

Constitution has stood the test of time and has provedeffective for the most industrialized country consisting ofa very large number of States is primarily due to the factthat the provisions of its Constitution are couched in generallanguage. As mentioned by great master the generalitiesof US Constitution have helped it to grow and adapt itsprovisions to the varying situations. Although one cannever prevent the challenge to any provision, howeverimmaculately drafted, there can be not much doubt aboutthe validity of most of the provisions.”

[Emphasis supplied]

162. Thus, what is important from the aforesaid is that it is neverdesirable in constitutional matters to put either the provisions or basicpropositions in cut and dry form nor is it proper in such matters to try tobe exhaustive for once you do that you forget vital fact of life that inhuman affairs there can arise variety of situations and that it is beyondany human ingenuity to pierce through the visage of time and to contrivefor all types of contingencies. The amending power cannot be construedin narrow and pedantic manner. It cannot be said that no part of PartIII can be abridged. What is violative of the basic structure is thewithdrawal of the props on which the edifice stands, will alter the identityof the Constitution. [See : Kesavananda Bharati (supra)]. Only if aright is so abridged that it tends to affect the basic structure or essentialcontent of the right and reduces the right only to name, will beabridgement or ceases to be an abridgement.163. If the economic criteria based on the economic indicatorwhich distinguishes between one individual and another is relevant forthe purpose of classification and grant of benefit of reservation underclause (6) of Article 15 as held by my esteemed Brother Justice Bhat,then merely because the SCs/STs/OBCs are excluded from the same,by itself, will not make the classification arbitrary and the amendmentviolative of the basic structure of the Constitution. This is where with allhumility at my command I beg to differ with my esteemed Brother JusticeBhat for whom I have utmost and profound respect.

164. Article 14 has two clear facets which are invalid. One isover- classification and the other is under-classification, which isotherwise, over-inclusiveness or under-inclusiveness. The judicial reviewof over-classification should be undertaken very strictly. In the cases of

Aunder-classification when the complaint is either by those who are leftout or those who are in i.e. that the statute has roped him in, but asimilarly situated person has been left out, it would be under-inclusiveness.It is to say that you ought to have brought him in to make the classificationreasonable. It is in such cases that the courts have said that ‘who shouldbe brought in’ should be left to the wisdom of the legislature because it isBessentially stage where there should be an element of practicability.Therefore, the cases of under-inclusion can be reviewed in little liberalmanner. The under-inclusion argument should not be very readilyaccepted by the courts because the stage could be experimental. Forinstance, in the case on hand, the argument in the context of 103[rd]CConstitution Amendment is that SCs, STs and OBCs have been left out,the Court would say that it is under-inclusiveness. The Legislature doesnot have to bring any and everybody to make it reasonable. The case onhand is not one of active exclusion. The SCs, STs and OBCs who havebeen left out at the first instance are telling the Court that they ought tohave been included. In such circumstances, the test would be very strict,Dnot that it would be impervious to review. Had they been included inclause (6) of Article 15 & clause (6) of Article 16 resply at any point oftime and thereafter, excluded, it would be legitimate for them to arguethat having treated them as one, they cannot be excluded in an arbitrarymanner.E165. This Court in the State of Gujarat and Another v. ShriAmbika Mills Ltd. Ahmedabad and Another, (1974) 4 SCC 656, hasexplained the concept of under-inclusiveness. I quote the relevantobservations: -

“54. reasonable classification is one which includes allFwho are similarly situated and none who are not. Thequestion then is : what does the phrase ‘similarly situated’mean? The answer to the question is that we must lookbeyond the classification to the purpose of the law. Areasonable classification is one which includes all personsGwho are similarly situated with respect to the purpose ofthe law. The purpose of law may be either the eliminationof public mischief or the achievement of some positivepublic good.

55. classification is under-inclusive when all who areHincluded in the class are tainted with the mischief but there

are others also tainted whom the classification does notinclude. In other words, classification is bad as under-inclusive when State benefits or burdens persons in amanner that furthers legitimate purpose but does notconfer the same benefit or place the same burden on otherswho are similarly situated. classification is over-inclusivewhen it includes not only those who are similarly situatedwith respect to the purpose but others who are not sosituated as well. In other words, this type of classificationimposes burden upon wider range of individuals thanare included in the class of those attended with mischief atwhich the law aims. Herod ordering the death of all malechildren born on particular day because one of themwould some day bring about his downfall employed sucha classification.56. The first question, therefore, is, whether the exclusionof establishments carrying on business or trade andemploying less than 50 persons makes the classificationunder-inclusive, when it is seen that all factories employing10 or 20 persons, as the case may be, have been includedand that the purpose of the law is to get in unpaidaccumulations for the welfare of the labour. Since theclassification does not include all who are similarly situatedwith respect to the purpose of the law, the classificationmight appear, at first blush, to be unreasonable. But theCourt has recognized the very real difficulties under whichlegislatures operate — difficulties arising out of both thenature of the legislative process and of the society whichlegislation attempts perennially to re-shape — and it hasrefused to strike down indiscriminately all legislationembodying classificatory inequality here underconsideration. Mr. Justice Holmes, in urging tolerance ofunder-inclusive classifications, stated that such legislationshould not be disturbed by the Court unless it can clearlysee that there is no fair reason for the law which wouldnot require with equal force its extension to those whom itleaves untouched. [Missouri, K & T Rly v. May, 194 US267, 269] What, then, are the fair reasons for non-

extension? What should court do when it is faced with alaw making an under-inclusive classification in areasrelating to economic and tax matters? Should it, by itsjudgment, force the legislature to choose between inactionor perfection?”

[Emphasis supplied]B

166. Ambica Mills (supra) justified under-inclusiveness on thegrounds of recognition of degrees of harm, administrative convenience,and legislative experimentation. Reference was made to Justice OliverWendell Holmes’s observation in Missouri, K & T Rly v. May, 194 US267 (1904), 269, that “legislation should not be disturbed by the CourtCunless it can clearly see that there is no fair reason for the law whichwould not require with equal force its extension to those whom it leavesuntouched”, to state that the judiciary must exercise self-restraint insuch cases.

167. The equality code in Article 14 of the Indian ConstitutionDprescribes substantive and not formal equality. It is now settled positionthat classification per se is not discriminatory and violative of Article 14.Article 14 only forbids class legislation and not reasonable classification.A classification is reasonable, when the following twin tests as laid downby S.R. Das, J., in The State of West Bengal v. Anwar Ali Sarkar,E1952 SCR 284, are fulfilled:

(i) The classification must be based on an intelligible differentiawhich distinguishes persons or things that are grouped, from others leftout of the group; and

(ii) The differentia must have rational relationship to the objectFsought to be achieved by the statute.

168. Das J. in Anwar Ali Sarkar (supra) held that there must besome yardstick to differentiate the class included and the others excludedfrom the group. The differentia used for the classification in theamendment is to promote or uplift the economically weaker sections ofGcitizens who are otherwise not covered under Article 15(4) and Article16(4) of the Constitution. This is keeping in mind the Directive Principlesof State Policy as embodied under Article 46 of the Constitution.Therefore, there is yardstick used for constituting the class for thepurpose of the amendment. To put it in other words, the insertion of theeconomically weaker sections is perfectly valid as class for theH

extension of special provision for their advancement for admission andfor reservation in posts.

169. The broad egalitarian principle of social and economic justicefor all is implicit in every Directive Principle and, therefore, law designedto promote directive principle, even if it comes into conflict with theformalistic and doctrinaire of equality before the law, would most certainlyadvance the broader egalitarian principles and desirable constitutionalgoal of social and economic justice for all. [See : Sanjeev CokeManufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147]

170. Article 14 of the Constitution of India corresponds to the lastportion of Section 1 of the 14[th] Amendment of the American Constitution,except that our Article 14 has also adopted the English doctrine of Ruleof law by the addition of the words “equality before the law”. However,the addition of these extra words does not make any substantial differencein its practical application. The, meaning, scope and effect of Article14 of the Constitution of India have been discussed and laid down bythis Court in the case of Charanjit Lal Chowdhury v. The Union ofIndia and others, AIR 1951 SC 41.

171. It could be said that this Court in S. Seshachalam and Othersv. Chairman, Bar Council of Tamil Nadu and Others reported in(2014) 16 SCC 72, has taken the view that the reasonable classificationto prevent double benefits under the equality code is permissible. ThisCourt observed thus:

“28. The various welfare fund schemes are in actualityintended for the benefit of those who are in the greatestneed of them. The lawyers, straight after their enrolment,who join the legal profession with high hopes andexpectations and dedicate their whole lives to theprofessions are the real deservers. Lawyers who enrolthemselves after their retirement from government servicesand continue to receive pension and other terminal benefits,who basically join this field in search of greener pasturesin the evening of their lives cannot and should not beequated with those who have devoted their whole lives tothe profession. For these retired persons, some amount offinancial stability is ensured in view of the pension andterminal benefits and making them eligible for lump sum

298SUPREME COURT REPORTS

[2022] 14 S.C.R.

Awelfare fund under the Act would actually amount to doublebenefits. Therefore, in our considered view, theclassification of lawyers into these two categories is areasonable classification having nexus with the object ofthe Act.

B29. Furthermore, it is also to be noted that in view of theirbeing placed differently than the class of lawyers who chosethis profession as the sole means of their livelihood, it canreasonably be discerned that the retired persons form aseparate class. As noticed earlier, the object of the Act is toprovide for the constitution of Welfare Fund for the benefitCof advocates on cessation of practice. As per Section 3(2)(d)

any grant made by the Government to the welfare fund isone of the sources of the Advocates’ Welfare Fund. Theretired employees are already in receipt of pension fromthe Government or other employer and to make them getDanother retiral benefit from the Advocates’ Welfare Fundwould amount to double benefit and they are rightlyexcluded from the benefit of the lump sum amount of the”welfare fund.

[Emphasis supplied]

E172. One of the arguments of Mr. Gopal Sankaranarayanan, thelearned senior counsel who appeared for the petitioner in Writ Petition(Civil) No. 73 of 2019 that has appealed to me is that the SC/ST/OBCsreceived political reservation as well as under the Constitution and thereare no ceiling limits to the extent of reservation which each of the groupscan receive. On the other hand, the EWS reservation is kept at 10% andFis not extended to the political reservation, thereby providing balance.Indisputably, the exclusion in Articles 15(6) and 16(6) resply from thebenefits of EWS measures is only of the “classes mentioned” in theArticles 15(4), 15(5) and 16(4) of the Constitution. The contention thatthe exclusion of these groups is discriminatory overlooks the fact that byGexclusion of the creamy layer, the lower economic strata of the SC/STand OBCs are already represented in the classes covered by the Articles15(4), 15(5) and 16(4) resply. The sketch below would make it moreclear.

173. Let me go back to Kathi Raning Rawat (supra). I havereferred to Kathi Raning Rawat (supra) in para 14 of my judgment.Let me reiterate the observations made in Kathi Raning Rawat (supra)which I have incorporated in para 14. I quote once again:

“7.All legislative differentiation isn o tnecessarily discriminatory. In fact, the word“discrimination” does not occur in Art. 14. The expression“discriminate against” is used in Art. 15(1) and Art. 16(2),and it means, according to the Oxford Dictionary, “to makean adverse distinction with regard to; to distinguishunfavourably from others”. Discrimination thus involvesan element of unfavourable bias and it is in that sensethat the expression has to be understood in this context. Ifsuch bias is disclosed and is based on any of the groundsmentioned in Arts. 15 and 16, it may well be that the statutewill, without more, incur condemnation as violating aspecific constitutional prohibition unless it is saved by oneor other of the provisos to those articles. But the positionunder Art. 14 is different….”

174. Article 15, just like Article 16, is facet of the right to equality.That right as interpreted in the context of Article 14 is not the right touniform or identical treatment. It is right to be treated equally amongequals. Unequal treatment of equals is as much violation of that right as

ABC

Aequal treatment of unequals. Every difference of treatment is notinconsistent with that right just as every identical treatment is notconsistent with it. For determining the consistency of such treatmentwith the right to equality from time to time different tests such asreasonable classification, suspect classification, or classification lying inbetween the two, etc. have been devised and applied. But they have notBalways been able to provide satisfactory explanation, particularly whenit comes to affirmative action or positive equality. An all comprehensiveand satisfactory test in this regard has been provided by Ronald Dworkin,an American philosopher and scholar of United States ConstitutionalLaw, in his distinction between the right to equal treatment and the rightCto treatment as an equal. According to Ronald Dworkin, the latter is thefundamental right, while the former is only derivative right. The rightto treatment as an equal consists in equal respect and concern, while theright to equal treatment consists in identical treatment. But identicaltreatment is neither possible nor consistent with the right to equality.Therefore, what the right to equality requires is equal concern. As longDas that concern exists, the difference of treatment is consistent with theright to equality. Not every difference of treatment is per se inconsistentwith the right to equality. Only that difference of treatment which isbased on lack of equal concern is inconsistent with that right. To illustrate,different treatment on the basis of race, religion or caste is not, in itself,Ebad so long as equal concern or respect is shown to every race, religionor caste. It becomes vulnerable only when it is based on disrespect,contempt or prejudice to race, religion or caste. Article 15 prohibitsonly such and not every difference of treatment based on religion, race,caste, sex, place of birth or any of them. This is very much obvious fromthe expression “discriminate against” in Article 15 of the Constitution.FThe State is not prohibited from treating people differently on the basisof religion, race, caste, sex or place of birth; it is prohibited fromdiscriminating against them on these grounds. Discrimination results onlywhen religion, race, caste, sex or place of birth or any of them is madethe basis of disrespect, contempt or prejudice for difference in treatment.GIn other words, if difference in treatment on any of these grounds is notbased on any disrespect, contempt or prejudice, it is not discriminatoryand, therefore, not against Article 15(1). The same is true for Article29(2).

175. Articles 15(1) and 29(2) resply while thus prohibitingdiscrimination or prejudicial or contemptuous difference of treatment onthe grounds mentioned in those Articles, Article 15(4) sanctions “specialprovisions for the advancement of any socially and educationallybackward classes ... or for the Scheduled Castes and the ScheduledTribes”. Could it be said or argued that any provision for the advancementof any socially and educationally backward class or for SCs and STscan be termed or characterised as the one based on any prejudice,contempt or insult to any forward class? If the answer is in the negative,then why any provision for the advancement of any economically weakersection of the society excluding SCs and STs should be termed orcharacterised as the one based on any prejudice, contempt or insult toany backward class? The aforesaid would equally apply to Article 16 ofthe Constitution. [Reference : “Are Articles 15(4) and 16(4)Fundamental Rights” by Prof. Mahenendra P. Singh, Professor of Law,Delhi University]

176. M. Patanjali Sastri, CJ in Kathi Raning Rawat (supra)explained:

“7.All legislative differentiation isn o tnecessarily discriminatory. In fact, the word“discrimination” does not occur in Art. 14. The expression“discriminate against” is used in Art. 15(1) and Art. 16(2),and it means, according to the Oxford Dictionary, “to makean adverse distinction with regard to; to distinguishunfavourably from others”. Discrimination thus involvesan element of unfavourable bias and it is in that sensethat the expression has to be understood in this context. Ifsuch bias is disclosed and is based on any of the groundsmentioned in Arts. 15 and 16, it may well be that the statutewill, without more, incur condemnation as violating aspecific constitutional prohibition unless it is saved by oneor other of the provisos to those articles. But the positionunder Art. 14 is different. Equal protection claims underthat article are examined with the presumption that the Stateaction is reasonable and justified. This presumption ofconstitutionality stems from the wide power of classificationwhich the legislature must, of necessity, possess in makinglaws operating differently as regards different groups ofpersons in order to give effect to its policies.… ”

EFGH

A177. Fazal Ali, J. in his concurring judgment Kathi Raning Rawat(supra) explained the concept in the following words:

“19. I think that distinction should be drawn between“discrimination without reason” and ‘’discrimination withreason”. The whole doctrine of classification is based onBthis distinction and on the well-known fact that thecircumstances which govern one set of persons or objects,may not necessarily be the same as those governing anotherset of persons or objects, so that the question of unequaltreatment does not really arise as between personsgoverned by different conditions and different sets ofCcircumstances….”

178. In the State of Madhya Pradesh v. Narmada BachaoAndolan and Another, (2011) 7 SCC 639, this Court observed quotingKathi Raning Rawat (supra):

D“73. Discrimination means an unjust, an unfair action infavour of one and against another. It involves an elementof intentional and purposeful differentiation and furtheran element of unfavourable bias; an unfair classification.Discrimination under Article 14 of the Constitution mustbe conscious and not accidental discrimination that arisesEfrom oversight which the State is ready to rectify. [Vide KathiRaning Rawat v. State of Saurashtra [AIR 1952 SC 123 :1952 Cri LJ 805], and Video Electronics (P) Ltd. v. Stateof Punjab [(1990) 3 SCC 87 : 1990 SCC (Tax) 327 : AIR1990 SC 820].”

F179. Let me also refer to speech of the President of the SupremeCourt of the United States on “Equality and Human Rights”, OxfordEquality Lecture 2018, Lady Hale dated 29[th] October, 2018. The speechstarts stating: -

“Equality sounds simple concept but the reality is veryGcomplicated. Is it about where you start – with equalopportunities - or where you end up – with equal outcomes- or something in between – like level playing field?”

180. Let me now refer to some relevant parts of the speech:

“There must be other people in an ‘analogous situation’Hor ‘similarly situated’ who are treated more favourably than

the complainant. In ordinary discrimination cases, nowunder the Equality Act 2010, the equivalent requirement,that the circumstances of the comparator must be the sameor not materially different from those of the complainant,can generate lot of argument. How different is different?I usually give the illustration of Shamoon v Chief Constableof the Royal Ulster Constabulary [2003] UKHL 11, [2003]ICR 337: the House of Lords held that the situation of asenior female police officer was not the same as thesituation of male officers who had been treated morefavourably, because there had been complaints against herfrom subordinates and not against them. This begs thequestion of whether the complaints themselves stemmed fromdiscriminatory attitudes towards senior police officers. Abetter illustration now might be Hewage v Grampian HealthBoard [2012] UKSC 37, 2013 SC (UKSC) 54, where anAsian female consultant in orthodontics complained ofbullying and harassment by her managers and the morefavourable treatment given to white male consultants who’dmade similar complaints. The Health Board tried hard toargue that their situations were different because of minordifferences between them – but we did not agree.

These arguments arise because under the Equality Act it isnot generally defence to direct discrimination that thedifference in treatment is justified. It is tempting, therefore,where court or tribunal thinks that there might have beena justification to find that the cases are not the same. Thisis not problem under article 14 where both direct andindirect discrimination can be justified if it is aproportionate means of achieving legitimate aim. So theapproach to comparability ought to be more relaxed, asindeed it is. As Lord Nicholls put it in R (Carson) v Secretaryof State for Work and Pensions [2005] UKHL17, [2006]1 AC 173, para 3:

“ . . . the essential question for the court is whetherthe alleged discrimination, that is, the difference intreatment of which complaint is made, can withstandscrutiny. Sometimes the answer to this question will

be plain. There may be such an obvious, relevantdifference between the claimant and those with whomhe seeks to compare himself that their situationscannot be regarded as analogous. Sometimes, wherethe position is not so clear, different approach iscalled for. Then the court’s scrutiny may best bedirected at considering whether the differentiationhas legitimate aim and whether the means chosento achieve the aim is appropriate and notdisproportionate in its adverse impact.”

Thus in most cases it comes down to justification. There isa link here with status. Discrimination on some grounds ismore difficult to justify than discrimination on others. In R(RJM) v Secretary of State for Work and Pensions [2008]UKHL 63, [2009] 1 AC 311, Lord Walker produced theilluminating idea that personal characteristics are ‘morelike series of concentric circles’ (para 5). The inner circleis innate, largely immutable, and closely connected withpersonality: gender, sexual orientation, colour, race,disability. Next come nationality, language, religion andpolitics, which may be innate or acquired, but are all-important to personality and reflect important valuesprotected by the European Convention. Outside those areacquired characteristics, more concerned with what peopledo or with what happens to them than with who they are,such as military status, residence, or past employment. Heput street homelessness into that category: ‘The moreperipheral or debateable any suggested personalcharacteristic is, the less likely it is to come within the mostsensitive area where discrimination is particularly difficultto justify’ (para 5). So denying disability premium to streethomeless was justified. Strasbourg has also put immigrationstatus into this category (Bah v United Kingdom (2011) 31BHRC 609).

But there is also link with the subject matter.Discrimination in some areas is easier – much easier – tojustify than in others. Generally speaking, we addressjustification in four questions: is there legitimate aim; is

there rational connection between the means and the aim;could the aim be achieved by measure which would intrudeless upon the fundamental right in question; and has afair balance been struck between the end and the means?But the test to be applied in striking that balance does differaccording to the subject-matter.

This brings me to the most fraught area of all – welfarebenefits. Welfare benefits do more than try to ensure levelplaying field on which all start equal and then make oflife what they can. Welfare benefits are trying to dosomething to redress inequality of results: to lift people outof absolute poverty; to redress some of the disadvantagesuffered by children growing up in poverty; to makereasonable adjustments to cater for disability. They are notof course trying to achieve absolute equality – just toprevent the worst effects of gross socio-economicinequalities.”

181. Keeping in view the aforesaid, let me now refer to some of theobservations made by this Court in Ashoka Kumar Thakur (supra):

“114. survey of the conclusions reached by the learnedJudges in Kesavananda Bharati case [KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225] clearly showsthat the power of amendment was very wide and even thefundamental rights could be amended or altered. It is alsoimportant to note that the decision in Berubari Union andExchange of Enclaves, Reference under Article 143(1) ofthe Constitution of India, In re [AIR 1960 SC 845 : (1960)3 SCR 250] to the effect that the Preamble to theConstitution was not part of the Constitution wasdisapproved in Kesavananda Bharati case [KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225 ] and it washeld that it is part of the Constitution and the Preambleto the Constitution is of extreme importance and theConstitution should be read and interpreted in the light ofthe grand and noble visions envisaged in the Preamble. Aclose analysis of the opinions in Kesavananda Bharaticase [Kesavananda Bharati v. State of Kerala, (1973) 4SCC 225] shows that all the provisions of the Constitution,

including the fundamental rights, could be amended oraltered and the only limitation placed is that the basicstructure of the Constitution shall not be altered. Thejudgment in Kesavananda Bharati case [KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225 ] clearlyindicates what is the basic structure of the Constitution. Itis not any single idea or principle like equality or any otherconstitutional principles that are subject to variation, butthe principles of equality cannot be completely taken awayso as to leave the citizens in this country in state oflawlessness. But the facets of the principle of equality couldalways be altered especially to carry out the directiveprinciples of the State policy envisaged in Part IV of theConstitution….”

115. The basic structure of the Constitution is to be takenas larger principle on which the Constitution itself isframed and some of the illustrations given as to whatconstitutes the basic structure of the Constitution wouldshow that they are not confined to the alteration ormodification of any of the fundamental rights alone or anyof the provisions of the Constitution. Of course, if any ofthe basic rights enshrined in the Constitution are completelytaken out, it may be argued that it amounts to alteration ofthe basic structure of the Constitution. For example, thefederal character of the Constitution is considered to bethe basic structure of the Constitution. There are largenumber of provisions in the Constitution dealing with thefederal character of the Constitution. If any one of theprovisions is altered or modified, that does not amount tothe alteration of the basic structure of the Constitution.Various fundamental rights are given in the Constitutiondealing with various aspects of human life. TheConstitution itself sets out principles for an expandingfuture and is obligated to endure for future ages to comeand consequently it has to be adapted to the variouschanges that may take place in human affairs.

116. … as regards constitutional amendments, if anychallenge is made on the basis of basic structure, it has tobe examined based on the basic features of the Constitution.

117. It may be noticed that the majority in KesavanandaBharati case [Kesavananda Bharati v. State of Kerala,(1973) 4 SCC 225] did not hold that all facets of Article14 or any of the fundamental rights would form part ofthe basic structure of the Constitution….

118. Equality is multicoloured concept incapable of asingle definition as is also the fundamental right underArticle 19(1)(g). The principle of equality is delicate,vulnerable and supremely precious concept for our society.It is true that it has embraced critical and essentialcomponent of constitutional identity. The larger principlesof equality as stated in Articles 14, 15 and 16 may beunderstood as an element of the “basic structure” of theConstitution and may not be subject to amendment,although, these provisions, intended to configure theserights in particular way, may be changed within theconstraints of the broader principle. The variability ofchanging conditions may necessitate the modifications inthe structure and design of these rights, but the transientcharacters of formal arrangements must reflect the largerpurpose and principles that are the continuous andunalterable thread of constitutional identity. It is not theintroduction of significant and far-reaching change thatis objectionable, rather it is the content of this changeinsofar as it implicates the question of constitutionalidentity.

119. The observations made by Mathew, J. in Indira NehruGandhi v. Raj Narain [1975 Supp SCC 1 : AIR 1975 SC2299 : (1976) 2 SCR 347] are significant in this regard[Ed.: Quoted and paraphrased in Minerva MillsLtd. v. Union of India, (1980) 3 SCC 625, p. 673, para83.] :

“83. … ‘To be basic structure it must be terrestrialconcept having its habitat within the four corners ofthe Constitution.’ (Indira Nehru case [1975 Supp SCC1 : AIR 1975 SC 2299 : (1976) 2 SCR 347] , SCC p.137, para 341)

BCDE

What constitutes basic structure is not like ‘atwinkling star up above the Constitution’. It does notconsist of any abstract ideals to be found outsidethe provisions of the Constitution. The Preamble nodoubt enumerates great concepts embodying theideological aspirations of the people but theseconcepts are particularised and their essentialfeatures delineated in the various provisions of theConstitution. It is these specific provisions in the bodyof the Constitution which determine the type ofdemocracy which the founders of that instrumentestablished; the quality and nature of justice,political, social and economic which they aimed torealise, the content of liberty of thought andexpression which they entrenched in that documentand the scope of equality of status and of opportunitywhich they enshrined in it. These specific provisionsenacted in the Constitution alone can determine thebasic structure of the Constitution. These specificprovisions, either separately or in combination,determine the content of the great concepts set outin the Preamble. It is impossible to spin out anyconcrete concept of basic structure out of thegossamer concepts set out in the Preamble. Thespecific provisions of the Constitution are the stufffrom which the basic structure has to be woven.(Indira Nehru case [Indira Nehru Gandhi v. RajNarain, 1975 Supp SCC 1 : AIR 1975 SC 2299 :(1976) 2 SCR 347] , SCC p. 138, para 345)”

121. It has been held in many decisions that when aconstitutional provision is interpreted, the cardinal rule isto look to the Preamble to the Constitution as the guidingstar and the directive principles of State policy as the “bookof interpretation”. The Preamble embodies the hopes andaspirations of the people and directive principles set outthe proximate grounds in the governance of this country.

373. Affirmative action is employed to eliminate substantivesocial and economic inequality by providing opportunitiesto those who may not otherwise gain admission oremployment. Articles 14, 15 and 16 allow for affirmativeaction. To promote Article 14 egalitarian equality, the Statemay classify citizens into groups, giving preferentialtreatment to one over another. When it classifies, the Statemust keep those who are unequal out of the same batch toachieve constitutional goal of egalitarian society.”

182. I am of the view as Prof. Satya Prateek rightly puts that theenabling provisions, varying enforcement mechanisms and the Stateopinion on backwardness, reservation, adequate representation etc., inany circumstances cannot be recognised as the fundamental or basicstructure of the Constitution. By their very nature, they are bound tochange, with time, location and circumstances. On the other hand, thefundamental tenets or the core principles of the Constitution arefoundational – they are at the core of its existence. They are seminal tothe Constitution’s functioning. The Constitution retains its existence onthese foundations as they preserve the Constitution in its essence. Thisis not to mark out the possibilities of structural adjustments in thefoundations with time. The foundations may shift, fundamental valuesmay assume different meaning with time but they would still remain tobe integral to the constitutional core of principles, the core on which theConstitution would be legitimately sustained. (Reference: VirendraKumar, Basic Structure of the Indian Constitution: Doctrine ofConstitutionally Controlled Governance, 49:3, Journal of the Indian LawInstitute, 365, 385 (2007))

183. Prof. Virendra Kumar believes that there is differencebetween the fundamental rights and the values that structure suchfundamental rights. He views the values to have an overarching influenceand says that it is totally possible to hold that violation of the fundamentalrights in certain situations, may not infringe the fundamental values intheir backdrop. (Reference –Essay by Satya Prateek).

184. The ad hoc policies of the State directed towards achievinga larger, fundamental standard of equality, cannot by itself becomefundamental. Fundamental would only be the principle and not the waythese principles are sought to be realised. Such mechanisms whichfacilitate ‘equality of opportunity in public employment’ as guaranteed

Aunder Article 16 of the Constitution are ad hoc arrangements. Theycould be suitably modified with passage of time or even be done awaywith for more suitable, convenient and efficient reservation policy,largely dependent on the State’s own understanding of the best way topursue the constitutional ends.B185. This Court in Ajit Singh and Others v. State of Punjab andOthers reported as (1999) 7 SCC 209 (5-Judge Bench) after quotingwith approval the law laid down in its previous judgments in M.R. Balaji(supra) and C.A. Rajendran v. Union of India & Others reported as(1968) 1 SCR 721 : AIR 1968 SC 507 ruled that there is no duty on theGovernment to provide reservation. The Court held that both ArticlesC16(4) and 16(4A) resply do not confer any fundamental rights nor dothey impose any constitutional duties but are only in the nature of enablingprovision vesting discretion in the State to consider providing reservationif the circumstances mentioned in those articles so warranted.186. Each one of these Constitutional provisions that areDcategorised as rights under Part III has intrinsic value content. Many ofthese rights are part of the mechanism geared towards realising acommon constitutional principle. For example, Articles 14, 15 and 16resply of the Constitution are committed to the common principle ofequality. Reasonably then, if an amendment is to be struck down underEthe ‘basic structure’ formulation, the central principle of these inter-related provisions should be at threat. mere violation of one of theseenabling provisions would not be of much consequence under the doctrineof Basic Structure as long as such violation does not infringe upon thecentral thesis of equality. Redress for marginal encroachment cannot befound under the ‘Basic Structure Doctrine’. In considering the effect ofFan amendment on the constitutional core, it is important to keep in mindthe widest ramifications of the amendment. It is imperative to contemplateand consider every way in which the ‘basic structure’ of the Constitutionmight be threatened through the impugned amendment. The amendmentwould stand as constitutional only after satisfactory understanding asGto its effect on the constitutional core is reached by the courts. To sustainitself, the amendment should not violate such core in the widestinterpretation given to it. (Reference : Prof. Satya Prateek’s essay)

187. The new concept of economic criteria introduced by theimpugned amendment for affirmative action may go long way inHeradicating caste-based reservation. It may be perceived as first step

in the process of doing away with caste-based reservation. In the wordsof Nani A. Palkhivala, “……The basic structure of the Constitutionenvisages cohesive, unified, casteless society. By breathing newlife into casteism the judgment (Mandal-Indra Sawhney) fracturesthe nation and disregards the basic structure of the Constitution.The decision would revitalize casteism, cleave the nation into two –forward and backward – and open up new vistas for internecineconflicts and fissiparous forces, and make backwardness vestedinterest. It will undo whatever has been achieved since independencetowards creating unified, integrated nation. The majority judgment(Mandal) will revive casteism which the Constitution emphaticallyintended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivilegedwould now become the privileged…..”

188. Baba Saheb Ambedkar recognised fraternity as necessaryprinciple for the survival of Indian democracy. He defined fraternity asthe ‘common brotherhood of all Indians’. In his revolutionary, yetundelivered speech titled ‘Annihilation of Caste’, he described fraternityas the ‘essential attitude of respect and reverence towards fellowmen’.

189. Let me remind one and all of what this Court observed almostfive decades back in Minor A. Peeriakaruppan v. State of Tamil Naduand Others [(1971) 1 SCC 38 : AIR 1971 SC 2303]:

“29. …. But all the same the Government should not proceedon the basis that once class is considered as backwardclass it should continue to be backward class for all times.Such an approach would defeat the very purpose of thereservation because once class reaches stage ofprogress which some modern writers call as take off stagethen competition is necessary for their future progress. TheGovernment should always keep under review the questionof reservation of seats and only the classes which are reallysocially and educationally backward should be allowedto have the benefit of reservation. Reservation of seatsshould not be allowed to become vested interest.….”

[Emphasis supplied]

190. Thus, reservation is not an end but means – means tosecure social and economic justice. Reservation should not be allowed

Ato become vested interest. Real solution, however, lies in eliminatingthe causes that have led to the social, educational and economicbackwardness of the weaker sections of the community. This exerciseof eliminating the causes started immediately after the Independencei.e., almost seven decades back and it still continues. The longstandingdevelopment and the spread of education have resulted in tapering theBgap between the classes to considerable extent. As larger percentagesof backward class members attain acceptable standards of educationand employment, they should be removed from the backward categoriesso that the attention can be paid toward those classes which genuinelyneed help. In such circumstances, it is very much necessary to take intoCreview the method of identification and the ways of determination ofbackward classes, and also, ascertain whether the criteria adopted orapplied for the classification of backward is relevant for today’s conditions.The idea of Baba Saheb Ambedkar was to bring social harmony byintroducing reservation for only ten years. However, it has continuedpast seven decades. Reservation should not continue for an indefiniteDperiod of time so as to become vested interest.191. In the result, I hold that the impugned amendment is validand in no manner alters the basic structure of the Constitution.

192. I am of the view that all the petitions challenging the impugnedEamendment should fail.

S. RAVINDRA BHAT, J.

Table of Contents*

I.Context and history of reservations .....................................4FII.Dealing with the basic structure ..................................10

A.Important cases on the doctrine.........................................10

B.Test for determining basic structure.............................14

III.Re Question 3: analyzing the exclusionary clause “other than”Gand whether it offends the basic structure.......................................22

A.Historical analysis of the Equality Code..............................24

(i)Article 15........................................................................24

H* Ed. Note: Pagination in the Contents is as per the Original Judgment.

2. At the outset, I must state that I am in agreement that theaddition, or insertion of the ‘economic criteria’ for affirmative action inaid of the section of population who face deprivation due to poverty, inFfurtherance of Article 46, does not per se stray from the Constitutionalprinciples, so as to alter, violate, or destroy its basic structure. As long asthe State addresses deprivation resulting from discriminatory socialpractices which have kept the largest number of our populace in themargins, and continues its ameliorative policies and laws, the introductionGof such deprivation-based affirmative action, is consistent withconstitutional goals. What, however, needs further scrutiny, (which thisopinion proposes to address presently) is whether the manner ofimplementing – i.e., the implicit exclusion of those covered under Art.15(4) and 16(4) [Scheduled Castes (“SC”), Scheduled Tribes (“ST”),and socially and educationally backward classes (“SEBC”)], cumulatively

[S. RAVINDRA BHAT, J.]

referred to as ‘backward classes’] violates, or damages the basicstructure or essential features of the Constitution.

3. Therefore, I will first address the point of my disagreement –Question 3 [Part III] followed by discussion on Question 1 [Part IV];I have also separately considered economic criteria vis-a-vis Article 16,specifically [Part V]. I have given my additional reasoning on Question2 [Part VI]. Since all three questions framed by this court, entail anexamination under the doctrine of basic structure, I find it necessary tolay out the contours of this doctrine, the standard of review for identifyingthe essential feature or principle, and for application of the doctrine itself[Part II].

I. Context and history of reservations

4. Given that it has been exhaustively recounted in the judgmentof Justice Dinesh Maheshwari - it is unnecessary for the purpose of thisopinion to retrace the history of how affirmative action and reservationsin India have been worked out; I have briefly outlined what is relevant tomy analysis.

5. Aside from the allusion to Maharaja Chhatrapati Shahuji’sreservation of 50% (in 1902), the kind of affirmative action one seestoday, can be traced to the 1931 census which separately determinedthe “depressed classes”. Premised on this, the Government of India(Scheduled Castes) Order, 1936[1] enlisted large number ofcommunities which faced the brunt of caste stigma and other sociallyevil practices. Parallelly, in several princely states disparate efforts weremade to ameliorate the lot of such communities and castes, that hadbeen discriminated against and marginalised for centuries. This historyinforms large part of the Constituent Assembly debates, during which,member after member, reiterated the fledgling nation’s determinationnot only to ensure equality before law, and equal protection of the law,but travelling beyond that, to ensuring substantive equality of opportunityand access to public places, goods, employment, etc.

6. One of the first cases that this court decided was State ofMadras v. Champakam Dorairajan[2], where this court held to beunconstitutional, communal reservation which fixed quotas for different

1 Government of India (Scheduled Castes) Order, 1936 <https://socialjustice.gov.in/writereaddata/UploadFile/GOI-SC-ORDER-1936.pdf>.

2 State of Madras v. Champakam Dorairajan, 1951 SCC 351, (hereinafter, “ ChampakamDorairajan“).

Acommunities and castes – this led to insertion of Article 15(4) by theConstitution (First Amendment) Act. The next important case was M.R.Balaji v. State of Mysore[3] where this court held that reservations cannotbe solely based on caste, and rather would have to satisfy the test ofsocial and educational backwardness, as per the (then) text of theConstitution. It was held that the result of poverty, to large extent, wasBthat the poor class of citizens automatically became socially backward.They did not enjoy status in society and were therefore, forced to takea backward seat. Other decisions followed the law declared in M.R.Balaji – In T. Devadasan v. Union of India[4], too, rule enabling carryingforward of SC vacancies which resulted in almost 2/3[rd] of the vacanciesCbeing earmarked for SC candidates, was adversely commented uponand held to be unconstitutional. The majority remarked importantly thatthe reason for backwardness of SC/ST communities was due to“historical causes” and that the “purpose of Article 16(4) is to ensurethat such people, because of their backwardness should not beunduly handicapped in the matter of securing employment in theDservices of the State”. Reservations is therefore “in favour ofbackward classes who are not adequately represented in the servicesunder the State”. The court also said that rule for reservation andposts for such backward classes “cannot be said to have violatedArticle 14”, as advanced classes cannot be considered for appointmentEto such posts because “they may be equally or even more meritoriousthan the members of the backward classes”.

7. However, in an illuminating dissenting, Subba Rao, J, highlightedthe linkages between Articles 14, 15 and 16, stressing on the fact thatArticle 16(4) was facet of Article 16(1):F“26. Article 14 lays down the general rule of equality. Article16 is an instance of the application of the general rule withspecial reference to opportunity of appointments under theState. It says that there shall be equality of opportunity for allcitizens in matters relating to employment or appointment toGany office under the State. If it stood alone, all the backwardcommunities would go to the wall in society of uneven basicsocial structure; the said rule of equality would remain only

3 M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”),See para 21.4H T. Devadasan v. Union of India (1964) 4 SCR 680 (hereinafter, “T. Devadasan”).

an utopian conception unless practical content was givento it. Its strict enforcement brings about the very situation itseeks to avoid. To make my point clear, take the illustrationof horse race. Two horses are set down to run race—oneis first class race horse and the other an ordinary one.Both are made to run from the same starting point. Thoughtheoretically they are given equal opportunity to run the racein practice the ordinary horse is not given an equalopportunity to compete with the race horse. Indeed that isdenied to it. So handicap may be given either in the natureof extra weight or start from longer distance. By doingso, what would otherwise have been farce of competitionwould be made real one. The same difficulty had confrontedthe makers of the Constitution at the time it was made.Centuries of calculated oppression and habitual submissionreduced considerable section of our community to life ofserfdom. It would be well nigh impossible to raise theirstandards if the doctrine of equal opportunity was strictlyenforced in their case. They would not have any chance ifthey were made to enter the open field of competition withoutadventitious aids till such time when they could stand on theirown legs. That is why the makers of the Constitutionintroduced clause (4) in Art. 16. The expression “nothing inthis article” is legislative device to express its intention in amost emphatic way that the power conferred thereunder isnot limited in any way by the main provision but falls outsideit. It has not really carved out an exception, but has preserveda power untrammelled by the other provisions of the Article.”

8. majority of the 7-judge bench in State of Kerala v. N.M.Thomas[5], accepted this dissenting view of K. Subba Rao, J. (in T.Devadasan). In N.M. Thomas, rule exempting SC candidates fromqualifying in departmental examination for longer duration than others,was upheld by the Supreme Court. The court noted that:

(i)The basic content of Articles 14, 15(1) and 16(1)constituted code in that Articles 15(4) and 16(4) wasto enable equality of opportunity for class which wouldotherwise have been excluded from appointment. Hence,

5 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 (hereinafter “N.M. Thomas”)

DEF

318SUPREME COURT REPORTS

[2022] 14 S.C.R.

Aany preferential rule for backward classes, could not beunconstitutional;

(ii)Article 16(1) permits classification and Article 16(4) isnot an exception to Article 16(1);

(iii)A classification is reasonable if it includes all personsBwho are similarly situated with respect to the purpose[6];

(iv)Article 16(1) sets out positive aspect of equality ofopportunity in matters of public employment and Article16(2) negatively prohibits discrimination on theenumerated grounds in the area covered by Article 16(1);

(v)But for Article 16(4), 16(1) would have preventedpreferential treatment for reservations for backwardclasses of citizens.

It was held that Article 16(4) was introduced to reconcile ArticleD16(1) [representing the dynamics of ‘justice’ conceived as ‘equality’, inconditions under which candidates actually competing for posts in theGovernment] and Articles 46 and 335 embodying the duties of the Stateso as to protect them from the inequities of social injustice. Theseencroachments in the field of Article 16(1) can only be permitted if theyare warranted under Article 16(4).

9. The most authoritative decision on the point of reservationswas the nine-Judge ruling in Indra Sawhney v. Union of India[7]. Thecourt also had the occasion to consider the validity of an officememorandum which introduced 27% quota in favour of other backwardclasses in relation to Central Government posts and services. The verdictFwas not unanimous one. There were six opinions. The broadestsummary of those opinions:

(i)the reference to backward classes of citizens withinArticle 16(4) refers to social and educationalbackwardness;

(ii)Article 16(4) is facet and part of Article 16(1), andnot an exception to the latter. The judgment of JeevanReddy, J explains the ruling in N.M. Thomas on thispoint approvingly at paragraph 713 (SCC p. 672-674);

6 para 83 per Mathew, J.

H7 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, (hereinafter, “IndraSawhney”).

(iii)Caste alone cannot be the determining factor to decideAsocial and educational backwardness and that castecan be and can often be social class in India;

(iv)The economic criterion alone for determiningbackwardness of classes or groups is impermissible,because the indicators are social and educationalBbackwardness having regard to the express terms ofArticles 15(4) and 16(4);

(v)There can be sub-classification amongst backwardclasses of citizens for the purpose of ensuring that mostvulnerable groups benefit;

(vi)There can be no reservations in promotions under Article16(4); and

(vii)The “creamy layer” or more affluent sections of otherbackward classes had to be identified by the state toensure that the most deprived sections were not keptDout. Such categories could not claim the benefit ofreservation.

10. M. Nagaraj v. Union of India[8], Ashok Kumar Thakur v.Union of India[9], K. Krishna Murthy v. Union of India[10], PramatiEducational & Cultural Trust v. Union of India[11], Chebrolu LeelaPrasad Rao v. State of A.P[12], and Jaishri Laxmanrao Patil v. State ofMaharashtra[13], are the other significant decisions, rendered byConstitution Benches, after Indra Sawhney on this. In M. Nagaraj, thecourt negatived challenge to Article 16(4-A and B) introduced by aConstitutional amendment on the ground that it violated the basic structureprinciple. The court held that though facets of equality were part of thebasic structure, the provision Article 16(4A) permitting reservations in

8 M. Nagaraj v. Union of India, (2006) 8 SCC 212, (hereinafter, “M. Nagaraj”).9 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (hereinafter, “Ashok KumarThakur”).

10 K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, (hereinafter as “K. KrishnaMurthy”).

11 Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1, (“Pramati”).12 Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401, (“Chebrolu LeelaPrasad”).

13 Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1, (hereinafter,“Jaishri Laxmanrao Patil”).

Apromotion for SC/STs did not violate the basic structure. The amendmentin fact, restored the situation which existed due to prior court rulings thatsuch reservations in promotion were permissible. The court also heldthat the “catch-up rule”[14] was not an rule of equality, or constitutionalprinciple that could not be overborne.[15] The court, in M. Nagaraj,discussed the principles underlying the basic structure doctrine, as wellBas the applicable tests to determine it (which I have referred to in thefollowing section).

II. Dealing with the basic structure

11. I agree with the judgment of Justice Dinesh Maheshwari in itsCtracing of the doctrine of basic structure, and its journey, through pastprecedents spanning nearly five decades. I will however, record fewadditional conclusions based upon my reading.

A. Important cases on the doctrine

12. The court’s polyvocal majority in Kesavananda Bharati v.DState of Kerala[16], did not offer unanimity on the key elements of theconstitution, or the values underlying it, as essential features. Whathowever, the judges constituting the majority were clear, was that thepower of amendment needed regulation, or control, through the basicstructure doctrine. For the purpose of brevity – and compactness, itEwould be sufficient to notice the analysis and summary[17] of the majority

14 So described, in view of the previous decisions of the court, which had declared thatsenior employees in cadre, overlooked for promotion on account of quotas in promotionin favour of SC/STs were entitled to “catch up” their seniority in the lower cadre, whenthey were promoted. This was to balance their equities, or off-set the disadvantagethey were placed in due to reservations in promotions, which enabled junior officials ina cadre to steal march and secure promotions earlier.F15 The court stated that

15 The court stated that “As stated hereinabove, the concept of the ‘catch-up’ rule and‘consequential seniority’ are not constitutional requirements. They are not implicit inclauses (1) and (4) of Article 16.They are not constitutional limitations. They areconcepts derived from service jurisprudence. They are not constitutional principles.”16 Kesavananda Bharati v. State of Kerala,(1973) 4 SCC 225; 1973 Supp SCR 1(hereinafter, “Kesavananda Bharti”).G17 Salient aspects are that: Sikri, CJ stated that the “fundamental importance of thefreedom of the individual has to be preserved for all times to come and that it could notbe amended out of existence” and enumerated some of the essential features - supremacyof the constitution, republican and democratic form of Government, secular characterof the Constitution; separation of powers between the Legislature, the executive andthe judiciary, and the federal character of the Constitution. Shelat and Grover, JJ tooindicated that the Preamble contained the key to the basic structure, which rested on aH

in Kesavananda Bharati, made by the majority opinion of Chandrachud,CJ, in Minerva Mills v. Union of India[18](paragraph 7-11, SCC).

13. In Indira Nehru Gandhi v. Raj Narain[19], this court invalidatedprovisions of the 39[th] Constitutional Amendment (which resulted in takingaway the court’s adjudicatory powers and vesting it in tribunal, whichwas to decide legality of elections of four specified functionaries), asviolative of the basic structure doctrine – specifically the principle ofrule of law, and the doctrine of separation of powers. Chandrachud, J. inhis judgment made pertinent observations about what constitutes thebasic structure, and how equality is an integral part of it. Speaking aboutthe basic structure, he said:

“664. I consider it beyond the pale of reasonable controversythat if there be any unamendable features of the Constitutionon the score that they form part of the basic structure of theConstitution, they are that: (i) India is sovereign democraticrepublic; (ii) Equality of status and opportunity shall besecured to all its citizens; (iii) The State shall have no religionof its own and all persons shall be equally entitled to freedomof conscience and the right freely to profess, practice andpropagate religion and that (iv) the nation shall be governedby Government of laws, not of men. These, in my opinion,are the pillars of our constitutional philosophy, the pillars,therefore, of the basic structure of the Constitution.”

691. […] The theory of basic structure is woven out of theconspectus of the Constitution and the amending power issubjected to it because it is constituent power. “The powerto amend the fundamental instrument cannot carry with it the

harmony between Parts III and IV and that the amendments could not result in“changing the identity of the Constitution.” Hegde and Mukherjea, JJ stated similarlythat the basic structure was “delineated in the preamble and the Parliament has nopower to abrogate or emasculate those basic elements or fundamental features”. Reddy,J draws analogy from the Preamble to say that the features “are justice, freedom ofexpression and equality of status and opportunity”. Khanna, J emphasises survival ofthe Constitution “without loss of its identity”.

18 Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, (hereinafter as “MinervaMills”)

19 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. (“Indira Gandhi”).

Apower to destroy its essential features — this, in brief, is thearch of the theory of basic structure. It is wholly out of placein matters relating to the validity of ordinary laws made underthe Constitution.”

14. K. K Mathew, J. made general observations with regard toBthe fact that the basic structure should be rooted in some provisions ofthe Constitution and also importantly, flagged the equality code as one ofthe basic features of the Constitution.

15. This court’s decision in Minerva Mills marks watershedmoment in the journey of the basic structure doctrine. The court had toCdecide on the validity of Sections 4 and 55 of the 42[nd] Amendment Act[20]which sought to nullify the basic structure doctrine itself, by amendingArticle 368[21] ; and amendment to Article 31C which sought to immunizeall laws which declared that they were made to advance all or any of theprovisions of Part IV of the Constitution. The court reiterated the basicstructure doctrine, and held that the amendment to Article 368, whichDsought to fetter the court’s inquiry into the validity of constitutionalamendments, violated the basic structure. By majority decision of 4:1,the court held that the amendment to Article 31C too violated the basicstructure.

16. Judicial review was the value, which the court held to beEviolated in other decisions as well – such as in P. Sambamurthy v. Stateof A.P[22], Kihoto Hollohan v. Zachillhu[ 23], in L. Chandra Kumar v.Union of India[24]. In the latter, it was held that judicial review, throughArticles 32 and 226 are part of the basic structure of the Constitution.

F20 Constitution (Forty-second Amendment) Act 1976.21 Introducing two clauses (4) and (5), which read as follows :“(4) No amendment of this Constitution (including the provisions of Part III) made orpurporting to have been made under this article whether before or after thecommencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976shall be called in question in any court on any ground.(5) For the removal of doubts, it is hereby declared that there shall be no limitationGwhatever on the constituent power of Parliament to amend by way of addition, variationor repeal the provisions of this Constitution under this article”

22 P. Sambamurthy v. State of A.P., (1987) 1 SCC 362, (hereinafter as “P. Sambamurthy”).23 Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, (hereinafter “KihotoHollohan”).

24 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, (hereinafter “L. ChandraHKumar”).

Thus, here, for the first time, specific provisions were held to be part ofthe basic structure. Raghunathrao Ganpatrao v. Union of India[25]held that the deletion of provisions – held to be an “integral” part of theconstitution (by the judgment of 11-judge bench, when the basicstructure doctrine was not recognized), did not violate the basic structure,or lead to loss of its identity. The majority judgment in Kihoto Hollohonis narrowly premised[26]; it severed part of the offending portion of the52[nd] Amendment, to the extent it excluded judicial review, since its deletionwas procedurally unsustainable, given the text of Article 368, whichrequires that such amendments need ratification by the legislatures ofone half of the total states forming the Union.

17. Next, in M. Nagaraj, this court tersely stated that the standardto be applied in evaluating whether an amendment has also modified theoverarching principles, that inform each and every fundamental rightand link them, is to find whether due to such change we have completelydifferent Constitution. In particular, after summarising various opinionsin Kesavananda Bharati, the court observed that “[t]he basic structurejurisprudence is preoccupation with constitutional identity.” Theobject of which is “continuity” within which “continuity of identity,changes are admissible”. The court, however refused to strike downArticle 16(4B) [which had sought to overrule decisions of this court, tothe effect that when reservations are resorted to in promotions, leadingto accelerated promotions, the non-reserved category of employees, upontheir promotions should be permitted to retain or “catch up” their previousseniority]. The court made certain general observations which arerelevant, and are extracted below:

“102 ... Applying the “width test”, we do not find obliterationof any of the constitutional limitations. Applying the test of“identity”, we do not find any alteration in the existingstructure of the equality code. As stated above, none of theaxioms like secularism, federalism, etc. which are overarchingprinciples have been violated by the impugned constitutionalamendments. Equality has two facets— “formal equality” and

25 Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191, (hereinafter“Raghunathrao Ganpatrao”).

26 The minority opinion of Verma, J. (see para 181-182) struck down the provision onthe ground that it violated the rule of law, which is basic feature of theConstitution.[26]The majority judgment, by Venkatachaliah, J also struck down theoffending provision, but for different reasons (procedural lapses).

A“proportional equality”. Proportional equality is equality “infact” whereas formal equality is equality “in law”. Formalequality exists in the rule of law. In the case of proportionalequality the State is expected to take affirmative steps in favourof disadvantaged sections of the society within the frameworkof liberal democracy. Egalitarian equality is proportionalBequality.

18. The other decisions in I.R. Coelho and Pramati, too dealtwith facets of basic structure. I shall be discussing I.R. Coelho and M.Nagaraj, later, more elaborately, when dealing with the equality code,and its facets being intrinsic to the basic structure of the Constitution.C

B. Test for determining basic structure

19. It was remarked in Indira Gandhi that:

“661.…The subject-matter of constitutional amendments is aquestion of high policy and Courts are concerned with theDimplementation of laws, not with the wisdom of the policyunderlying them….”[27]

It is axiomatic that constitutional provision cannot be construedin the same manner as legislative enactment, delegated legislation, orexecutive measure. All those can be subjected to judicial review on distinctEheads such as legislative competence, constitutional limitations (such asin Part III or Part XI of the Constitution), ultra vires the parent enactmentor constitutional limitation (delegated legislation), illegality, conflict withprovisions of the constitution, Wednesbury unreasonableness, unfairprocedure, proportionality, or other grounds of administrative law reviewF(executive action).

20. Logically, then, the applicable standard of review ofconstitutional amendments should be higher – also because the procedureadopted to amend, under Article 368, is special, and requires two-thirdmajority in favour of any proposed amendment, with the super-addedprovision in case of amendments to certain enumerated provisions, ofGresolutions approving the amendment by majority of the legislatures ofall states as well. This exercise of constituent power, therefore, cannotbe subjected to the same standard of review, as in the case of legislative

or executive actions. The clearest enunciation of this was in Chandrachud,J’s opinion in Indira Gandhi:

“691. […] Ordinary laws have to answer two tests for theirvalidity: (1) The law must be within the legislative competenceof the legislature as defined and specified in Chapter I, PartXI of the Constitution, and (2) it must not offend against theprovisions of Articles 13(1) and (2) of the Constitution. ‘Basicstructure’, by the majority judgment, is not part of thefundamental rights nor indeed provision of the Constitution.… ‘The power to amend the fundamental instrument cannotcarry with it the power to destroy its essential features’—this,in brief, is the arch of the theory of basic structure. It is whollyout of place in matters relating to the validity of ordinarylaws made under the Constitution.”

At another place, the same learned judge (Chandrachud, J)observed that:

“663. […] For determining whether particular feature ofthe Constitution is part of its basic structure, one has perforceto examine in each individual case the place of the particularfeature in the scheme of our Constitution, its object andpurpose, and the consequences of its denial on the integrityof the Constitution as fundamental instrument of country’sgovernance…”[28]

“692. […] There is no paradox, because certain limitationsoperate upon the higher power for the reason that it is ahigher power. constitutional amendment has to be passedby special majority and certain such amendments have tobe ratified by the legislatures of not less than one-half of theStates as provided by Article 368(2). An ordinary legislationcan be passed by simple majority. The two powers, thoughspecies of the same genus, operate in different fields and aretherefore subject to different limitations.”[29]

28 Indira Gandhi, para 663.

29 Indira Gandhi, para 692.

21. In M. Nagaraj upon review of previous authorities, this courtindicated the methodology of determining whether constitutionalamendment violates the basic structure:

“24. The point which is important to be noted is thatprinciples of federalism, secularism, reasonableness andsocialism, etc. are beyond the words of particular provision.They are systematic and structural principles underlying andconnecting various provisions of the Constitution. They givecoherence to the Constitution. They make the Constitution anorganic whole. They are part of constitutional law even ifthey are not expressly stated in the form of rules.

25. For constitutional principle to qualify as an essentialfeature, it must be established that the said principle is partof the constitutional law binding on the legislature. Onlythereafter, is the second step to be taken, namely, whether theprinciple is so fundamental as to bind even the amendingpower of Parliament i.e. to form part of the basic structure.The basic structure concept accordingly limits the amendingpower of Parliament. To sum up : in order to qualify as anessential feature, principle is to be first established as partof the constitutional law and as such binding on thelegislature. Only then, can it be examined whether it is sofundamental as to bind even the amending power ofParliament i.e. to form part of the basic structure of theConstitution. This is the standard of judicial review ofconstitutional amendments in the context of the doctrine ofbasic structure.

26. […] secularism is the principle which is the overarchingprinciple of several rights and values under the IndianConstitution. Therefore, axioms like secularism, democracy,reasonableness, social justice, etc. are overarching principleswhich provide linking factor for principle of fundamentalrights like Articles 14, 19 and 21. These principles are beyondthe amending power of Parliament. They pervade all enactedlaws and they stand at the pinnacle of the hierarchy ofconstitutional values. For example, under the Germanconstitutional law, human dignity under Article 1 is inviolable.It is the duty of the State not only to protect the human dignity

but to facilitate it by taking positive steps in that direction.No exact definition of human dignity exists. It refers to theintrinsic value of every human being, which is to be respected.It cannot be taken away. It cannot give (sic be given). It simplyis. Every human being has dignity by virtue of his existence.The constitutional courts in Germany, therefore, see humandignity as fundamental principle within the system of thebasic rights. This is how the doctrine of basic structure standsevolved under the German Constitution and by interpretationgiven to the concept by the constitutional courts.

27. Under the Indian Constitution, the word “federalism”does not exist in the Preamble. However, its principle (not inthe strict sense as in USA) is delineated over variousprovisions of the Constitution. In particular, one finds thisconcept in separation of powers under Articles 245 and 246read with the three lists in the Seventh Schedule to theConstitution.

28. To conclude, the theory of basic structure is based onthe concept of constitutional identity. The basic structurejurisprudence is preoccupation with constitutional identity.In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC225] it has been observed that “one cannot legally use theConstitution to destroy itself”. It is further observed “thepersonality of the Constitution must remain unchanged”.Therefore, this Court in Kesavananda Bharati [(1973) 4 SCC225] while propounding the theory of basic structure, hasrelied upon the doctrine of constitutional identity. The word“amendment” postulates that the old Constitution surviveswithout loss of its identity despite the change and it continueseven though it has been subjected to alteration. This is theconstant theme of the opinions in the majority decisionin Kesavananda Bharati [(1973) 4 SCC 225] . To destroy itsidentity is to abrogate the basic structure of the Constitution.This is the principle of constitutional sovereignty. Secularismin India has acted as balance between socio-economicreforms which limits religious options and communaldevelopments. The main object behind the theory of the

328SUPREME COURT REPORTS

Aconstitutional identity is continuity and within that continuityof identity, changes are admissible depending upon thesituation and circumstances of the day.”

(emphasis supplied)

Thus, the test of “identity” which some of the judges inBKesavananda Bharati indicated, as of the core of the basic structuredoctrine, was re-stated, and elaborated upon in M. Nagaraj as theconcept or doctrine of ‘constitutional identity’. The standard of review,it was held was that firstly, the essential feature must be constitutionallaw principle, which is binding on the legislature and secondly, the analysisCis whether such principle is so fundamental that it must restrict eventhe Parliament’s amending power (see paragraph 25, extracted above).

22. This court has, in applying the test, followed the historicalapproach in conducting substantive basic structure review. This methodwas indicated by Chandrachud, J in Waman Rao v. Union of India[30].DIn this case, Articles 31-A, 31-B, and 31-C which had been introducedto advance the land reform programmes were challenged as violationsof the basic structure of the Constitution. Chandrachud, J observed thatthe “questions have historical slant and content: and history canfurnish safe and certain clue to their answer”. After consideringthe history of the newly inserted provision (by the first Amendment Act,E1951) it was held that

“24. …Looking back over the past thirty years of constitutionalhistory of our country, we as lawyers and Judges, mustendorse the claim made … that if Article 31-A were notenacted, some of the main purposes of the Constitution wouldFhave been delayed and eventually defeated and that by the1[st] Amendment, the constitutional edifice was not impairedbut strengthened.”

23. An independent justification for the amendments was ofimplementing the constitutional purposes as outlined in Article 39(b) andG(c), i.e., “that the ownership and control of the material resourcesof the community are so distributed as best to subserve the commongood”. The historical approach was also apparent, when this courtconsidered the amendments which deleted Articles 291 and 362 of the

H30 Waman Rao v. Union of India, (1981) 2 SCC 362, (hereinafter, “Waman Rao”).

Constitution in Raghunathrao Ganpatrao, as well as in KihotoHollohon.

24. Likewise, in R.C. Poudyal v. Union of India[31], where thiscourt, speaking through three different judgments (one of them adissenting judgment, by L.M. Sharma, CJ) used history of the amendment,and contrasted it with the history of the provisions of the Constitution.The impugned provision, Article 371F(f) enabled representation ofmembers of the Buddhist Monasteries, in the Sikkim Legislature. Thedissenting view held that the provisions for reservation in state assembly,based upon religion, violated the basic structure of the Constitution. Themajority judgment upheld the amendment, as necessary because ofhistorical continuity, and the need to assimilate Sikkimese society withinthe republic. However, the majority at the same time, also stated thatsuch conclusion might not have been the same, if such reservationwere introduced elsewhere:

“128. […] These adjustments and accommodations reflect apolitical expediencies for the maintenance of socialequilibrium. The political and social maturity and of economicdevelopment might in course of time enable the people ofSikkim to transcend and submerge these ethnic apprehensionsand imbalances and might in future — one hopes sooner —usher-in more egalitarian dispensation. Indeed, theimpugned provisions, in their very nature, contemplate andprovide for transitional phase in the political evolution ofSikkim and are thereby essentially transitional in character.

129. It is true that the reservation of seats of the kind and theextent brought about by the impugned provisions may not, ifapplied to the existing States of the Union, pass theConstitutional muster”. But in relation to new territoryadmitted to the Union, the terms and conditions are not suchas to fall outside the permissible constitutional limits.Historical considerations and compulsions do justify inequality and special treatment...”

(emphasis supplied)

25. Judicial review of legislation on the touchstone of their validityvis-à-vis fundamental rights, is an analogy closest to constitutional31 R. C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, (hereinafter “R.C. Poudyal”).

Aamendment review, on the ground of its conformity to the basic structure.It is an entirely different kind of review that “imposes substantive limitson the scope of constitutional amendment. However, these limits orbasic features are identified as constitutional principles which aredistinct from the constitutional provisions which embody theseprinciples”[ 32]. Drawing from the remarks in Minerva Mills and IndiraBGandhi. Dr. Krishnaswamy notes in his work that this form of basicstructure review has to account for the distinction between

“ordinary democratic law making and higher level democraticlaw making, it must rightly identify the different limits on thesetwo forms of law making. Only an independent model of basicCstructure review which ensures that constitutional amendmentsdo not destroy core constitutional principles can fulfil thisrequirement.”[33]

26. It also needs to be noticed that when the court conducts aconstitutional amendment validity review, to consider if it violates theDbasic structure, apart from the standard, the discussion is rooted in thelexicology of judicial review, developed from the jurisprudence of pastprecedents. In other words, the difference in standard which this courtadopts does not result in difference in the approach, to consider if theamendment violates the basic structure. In judicial review, of legislation,Ewhich violates the provisions of the constitution, the court considers thelaw, its impact on the fundamental right, its object and its reasonablenessor proportionality. In basic structure review, likewise, the subject ofscrutiny is the amendment, its content, its impact on the overarchingvalue or principle, which is part of the basic structure, and whether thatimpact destroys or violates the identity of the Constitution. Illustratively,Fin Kihoto Hollohon, the court dealt with the constitutionality ofamendments, introducing the X[th] Schedule to the Constitution andconsidered past cases, interpreting the Constitution to see if the newlyadded provisions accorded with the existing Constitution. In R.C.Poudyal, the court upheld reservation in favour of Buddhist monasteries,Gand explained that it was for continuity. The court drew upon the equality

32 Dr. Sudhir Krishnaswamy, ‘3 Applying Basic Structure Review: The Limits of StateAction and the Standard of Review’, Democracy and Constitutionalism in India - AStudy of the Basic Structure doctrine, Oxford University Press (2009).33 Ibid., p. 88.

jurisprudence. The minority and dissenting views also relied heavily uponpast judicial precedents to underscore the importance of prohibition againstreligion-based discrimination and reservation not necessarily dealing withthe validity of constitutional amendments alone, but to bring out the ideaof judicial review. The same goes for the five judge decision in SupremeCourt Advocates on Record Association (SCAORA) v. Union ofIndia[34] in which the value of an independent judiciary, and what it isexpected to achieve in democracy was underlined, by reference topast cases which did not deal with constitutionality of amendments.Hence, even while judicial review of constitutional amendments carrieswith it standard higher than judicial review of law or executive action,and uses particular methodology or test to discern whether theamendment changes or damages the basic structure, the court at thesame time, draws upon past precedents its exercise of judicial review,and the resulting interpretation of the Constitution, as it exists.

27. This idea – of distinct category of judicial review, whichdeals with constitutional amendment review, was also voiced in M.Nagaraj.[35]In basic structure review parlance, the legitimate role of thecourt is to evaluate whether, in the given case, the “identity” of theConstitution is affected so as to violate the basic structure and to applythe “direct impact” test (as propounded in I.R. Coelho).

28. It is evident that at different points in time, different valuesthat underlie the Constitution and are manifested - either directly in theform of express provisions, or what can be inferred as basic“overarching” principles (Nagaraj) or what impacts the identity(Kesavananda Bharati, Raghunathrao Ganpatrao, M. Nagaraj, andI.R. Coelho) or takes away the “essence” of certain core principles,

34 (2016) 5 SCC 1

35 “103. The criterion for determining the validity of law is the competence of the law-making authority. The competence of the law-making authority would depend on theambit of the legislative power, and the limitations imposed thereon as also the limitationson the mode of exercise of the power. Though the amending power in the Constitution isin the nature of constituent power and differs in content from the legislative power, thelimitations imposed on the constituent power may be substantive as well as procedural.Substantive limitations are those which restrict the field of the exercise of the amendingpower. Procedural limitations on the other hand are those which impose restrictionswith regard to the mode of exercise of the amending power. Both these limitations touchand affect the constituent power itself, disregard of which invalidates its exercise.”(See Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] .)

Athrough amendment were examined. Raghunathrao Ganpatraoechoed the idea of identity, and the idea of “basic form or in itscharacter” of the Constitution. I.R. Coelho went on to say that “itcannot be held that essence of the principle behind Article 14 is notpart of the basic structure” and also that “doctrine of basic structurecontemplates that there are certain parts or aspects of theBConstitution including Article 15, Article 21 read with Article 14and 19 which constitute the core values” – which, if allowed to bealtered, would change the “nature” of the Constitution. The court alsostated that “in judging the validity of constitutional amendment wehave to be guided by the impact test”.C

29. It is therefore clear that the appropriate test or standard ofjudicial review of constitutional amendments is not the same as in thecase of ordinary laws; the test is whether the amendment challengeddestroys, abrogates, or damages the “identity”, or “nature” or“character” or “personality” of the Constitution, by directly impactingDone or some of the “overarching principles” which inform its expressprovisions. Further in constitutional amendment judicial review, the courtwould consider the history of the provision amended, or the way thenew provision impacts the identity, or character, or nature of theConstitution.E30. The standard of judicial review of constitutional amendments,draws upon distinct terminologies – identity, personality, nature andcharacter to see if the constitutional identity undergoes fundamentalchange, as to alter the Constitution into something it can never be. Or,differently put, the test is whether the impact of the amendment is tochange the Constitution, into something it could never be considered toFbe. Each of the terms, i.e. identity, nature, personality, character, and soon, are methods of expressing the idea that some part of the Constitution,either through its express provisions, or its general scheme, and yettranscending those provisions, are embedded as overarching principles,which cannot be destroyed or damaged.G31. Having laid out the test of basic structure assessment in theparagraphs above, I will now apply this standard of review to the impugnedamendment in the following sections.

III. Re Question 3: analyzing the exclusionary clause “otherthan” and whether it offends the basic structureH

32. The insertion of clause (6) in Article 15 and 16, introduces anew class i.e., “economically weaker sections” which are defined to be“other than” the classes covered in Article 15(4) [i.e., other than sociallyand educationally backward classes including Scheduled Castes andScheduled Tribes, which coincides with “backward class of citizens”covered in Article 16(4)]. The plain interpretation of this new expression,read along with the Statement of Objects and Reasons brings home theidea that this allusion to “special provision” - including reservations, ismeant only for the newly created classandexcludes the classes describedunder Article 15(4) and 16(4). This is the base on which the petitioners’mount their challenge, contending that the exclusion falls foul of theequality code and amounts to violation of basic structure.

33. The Union’s position was that objections to the exclusion ofSC/ST/OBC communities could not be countenanced; at any rate, suchexclusion did not reach to the level of damaging the basic structure ofthe Constitution. It was contended that the mechanism of reservationitself per se, carries within it the idea of exclusion. Consequently, the“set apart” by way of reservation for SC/ST/OBC collectively to thetune of 50% by itself, implies that others are kept apart and cannotquestion such reservation for the weaker sections of society (as settledin Indra Sawhney). It was submitted that the exclusion of all categoriesexcept the target groups [i.e, exclusion of SC/ST/OBC and the generalcategory who do not fulfil the economic criteria] was not discriminatory,let alone violative of the basic structure of the Constitution.

34. Clearly there is no dispute, in the manner that the phrase “otherthan” appearing in Articles 15(6) and 16(6), is to be read – either on theside of the petitioners, or the respondents. That exclusion is implicit, isagreed upon – the point of divergence is only on whether such an exclusionis permissible or not. To examine this, it is necessary to trace the historyof the provisions that constitute the Equality Code and its content, andthe cases that have interpreted them, in order to cull out the principle(s),relevant for basic structure assessment. For this, I will firstly trace thehistory of the provisions that constitute the Equality Code, secondlydiscuss the content of this Code; thirdly, how this Equality Code is initself, part of the basic structure; and lastly how the impugnedamendment violates the basic structure on the ground of exclusion.

334SUPREME COURT REPORTS

AA. Historical analysis of the Equality Code

(i) Article 15

35. The original draft Constitution contained provision thatcomprehensively encompassed the idea of non-discrimination, in draftArticle 9, which later emerged as Article 15. This article, and moreBspecifically Article 15(2), prohibited discrimination in various spheresand commended that access be made available to range of facilities,spaces, and resources on non-discriminatory basis.

36. The history and evolution of this Article as it stands today, isrevealing. The Motilal Nehru Report 1928[36], had recommended, in theCdemand for self-rule charter of governance and basic human rights.The relevant provision, Clause 4 (v), (vi), (xiii) and (xiv) read as follows:

(v) All citizens in the Commonwealth of India have the rightto free elementary education without any distinction ofcaste or creed in the matter of admission into anyDeducational institutions, maintained or aided by thestate, and such right shall be enforceable as soon asdue arrangements shall have been made by competentauthority. Provided that adequate provisions shall bemade by the State for imparting public instruction inEprimary schools to the children of members of minoritiesof considerable strength in the population through themedium of their own language and in such script as invogue among them.Explanation:- This provision will not prevent the StateFfrom making the teaching of the language of theCommonwealth obligatory in the said schools.

(vi) All citizens are equal be for the law and possess equalcivic rights.

**********************G

(xiii) No person shall by reason of his religion, caste orcreed be prejudiced in any way in regard to public

36 Motilal Nehru Report, 1928 <https://www.constitutionofindia.net/historical_Hconstitutions/nehru_report__motilal_nehru_1928__1st%20January%201928>

employment, office of power or honour and the exerciseof any’ trade or calling.

(xiv) All citizens have an equal right of access to, and useof, public roads, public wells and all other places ofpublic resort.”

37. Similarly, the historic Poona Pact[37] contained the seeds ofwhat are now Articles 15 and 16:

“…8. There shall be no disabilities attached to any one onthe ground of his being member of the Depressed Classesin regard to any election to local bodies or appointment tothe public services. Every endeavour shall be made to securea fair representation of the Depressed Classes in these respects,subject to such educational qualifications as may be laiddown for appointment to the Public Services.

9. In every province out of the educational grant an adequatesum shall be ear-marked for providing educational facilitiesto the members of Depressed Classes,”

38. Dr. Ambedkar[38] and Sh. K.M. Munshi[39], had drafted twoversions, on similar lines. These two drafts were discussed by the Sub-Committee on Fundamental Rights and an amended form, was includedin their draft report:

37 Poona Pact, Agreed to by Leaders of Caste-Hindus and of Dalits, at Poona on 24-1932<https://www.constitutionofindia.net/historical_constitutions/poona_pact_1932__b_r_ambedkar_and_m_k_gandhi__24th%20September%201932>38 Art. II(1)(4) in Dr. B. R. Ambedkar’s draft, available in B. Shiva Rao, ‘The Framingof India’s Constitution: Select Documents’, vol. II, 4(ii)(d), p. 86:

“Whoever denies to any person, except for reasons by law applicable topersons of all classes and regardless of their social status, the full enjoymentof any of the accommodations, advantages, facilities, privileges of inns,educational institutions, roads, paths, streets, tanks, wells, and other wateringplaces, public conveyances on land, air or water, theatres, or other places ofpublic amusement, resort or convenience, where they are dedicated to ormaintained or licensed for the use of the public, shall be guilty of an offence”.39 Art. III (1), (3), (4)(b) in K.M. Munshi’s draft available in B. Shiva Rao,‘The Framingof India’s Constitution: Select Documents’, vol. II, 4(ii)(b), p. 74-75.

“All persons irrespective of religion, race, colour, caste, language, or sex areequal before the law and are entitled to the same rights and are subject to thesame duties.

A(1)All persons within the Union shall be equal beforethe law. No personal shall be denied the equal protectionof the laws within the territories of the Union. Thereshall be no discrimination against any person on groundsof religion, race, caste, language or sex.

BIn particular –

(a)There shall be no discrimination against any personon any of the grounds aforesaid in regard to the use ofwells, tanks, roads, schools and places of public resortmaintained wholly or partly out of public funds orCdedicated to the use of the general public.[40]

39. After discussions, the Advisory Committee recommended thatthe non-discrimination provision would be an independent clauseprotectinga ‘citizen’, and the ground of ‘language’ was dropped. Members of theMinority Sub-Committee, then considered this clause and made furtherDrecommendations – including, that education and schools should not bewithin the purview of this provision. four-member sub-committeeincluding Dr. Ambedkar was constituted and tasked to draw specificprovision in this regard. This resulted in general provision which readsas follows: “the State shall make no discrimination against any citizenson grounds of religion, race, caste or sex”, but it was clarified thatEwith regard to access to trading establishments, restaurants, etc., ‘sex’would not be prohibited ground. This too, did not pass muster andtherefore, the re-drafted clause[41] had general principle prohibiting

Women citizens are the equal of men citizens in all spheres of political, economic,social and cultural life and are entitled to the same civil rights and are subjectto the same civil duties unless where exception is made in such rights or dutiesFby the law of the Union on account of sex.***

All persons shall have the right to the enjoyment of equal facilities in publicplaces subject only to such laws as impose limitations on all persons,irrespective of religion, race, colour, caste or language.”

40 Draft report, Annexure, clause 4 available in B. Shiva Rao, ‘The Framing of India’sGConstitution: Select Documents’, vol. II, 4(iv), p. 138.41 “(1) The State shall make no discrimination against any citizen on the grounds ofreligion, race, caste or sex.

(2) There shall be no discrimination against any citizen on any ground of religion, race,caste, or sex in regard to –

(a) Access to trading establishments including public restaurants and hotels;(b) The use of wells, tanks, roads, and places of public resort maintainedHwholly or partly out of public funds or dedicated to the use of the general public:

discrimination, with separate articulation within the provision whichallowed for separate amenities for the benefit of women and children.With minor changes, this was included as clause 11 in the DraftConstitution of October 1947, and was later accepted by the DraftingCommittee without change, as Article 9. The debates in the ConstituentAssembly leading to the framing of Articles 15(1) and 15(2) clearly pointto the overarching idea of non-discrimination as one of the basic facetsof equality [which is reflected clearly in the jurisprudence of this court;elaborated more in Part III (A)].

40. Laws or executive action that further discrimination, directlyor indirectly, on proscribed grounds, have also been recognised asviolative of the right to equality, and consequently have been struck down,routinely by this court[42].

(ii) Article 16

41. As far as Article 16 goes, the idea behind that provision wasto achieve the goal of equal opportunity (as appearing in the Preamble)in matters of public employment. The difference between Articles 15(1)and 16(1) is that the former applies generally and prohibits the Statefrom discriminating on enumerated grounds in diverse activities – includingaccess to educational institutions, amenities, and other public goods, whichare to be made available without regard to caste, religion, or sex, etc.Article 16(1) is positive right declaring that all are equal in terms ofopportunity for public employment. Article 16(2) goes on to enumerategrounds such as caste, race, religion, caste, sex, descent, place of birthand residence [few of which are different from the proscribed groundunder Article 15(1)] as grounds on which the state cannot discriminate.Article 16(3) empowers Parliament (to the exclusion of State legislatures)

Provided that nothing contained in this clause shall prevent separate provision beingmade for women and children”.

Advisory Committee Proceedings, April 21-22, 1947; and Interim Report of the AdvisoryCommittee, Annexure. Select Documents, vol. II, 6(iv) and 7(i), p. 221, 253, 254-4, 29642 Air India v. Nargesh Mirza (1981) SC 1829, 1982 SCR (1) 438; Vishaka v. State ofRajasthan (1997) 6 SCC 241: 1997 SCC (Cri) 932; Anuj Garg and Others v. HotelAssociation of India and Others, (2008) 3 SCC 1; National Legal Services Authority vUOI and Others (2014) 5 SCC 438; Indian Young Lawyers Association and Ors. v.State of Kerala and Ors. (2019) 11 SCC 1; Vineeta Sharma v. Rakesh Sharma &Others, (2020) 9 SCC 1; Secretary, Ministry of Defence v. Babita Puniya & Others(2020) 7 SCC 469; Lt. Col. Nitisha & Others v. Union of India & Others, 2021 SCCOnLine SC 261.

Ato enact law, prescribing requirements as to residence within State orUnion Territory, for class or classes of employment or appointment tolocal or other authorities, within State or Union Territory. TheConstitution makers did not wish to arm the State legislature with thepower of prescribing local residential qualifications for employment withinthe State or local authorities and preferred to entrust that power with theBParliament which were expected to lay down principles of generalapplication in that regard. Article 16(4) is the only provision in the originalConstitution which enabled reservation – in favour of any backwardclass of citizens that were not adequately represented in the servicesunder the State.C42. In this context, in that part of the debate dealing with “backwardclasses” in draft Article 10(1)- in the Constituent Assembly Debates,Dr. Ambedkar spoke about the three points of view which recommendedreconciliation to workable proposition: firstly, that every individualqualified for particular post should be free to apply and compete for it;Dsecondly, that the fullest operation of the first rule would mean that thereought to be no reservation for any class or community at all; and thethird significant point that though theoretically, equality of opportunityshould be available to all, at the same time, some provision should bemade for entry of certain community “which have so far been outsideEthe administration”[43].43. Proposing Article 10(3), Dr. Ambedkar stated that Article 10(1)(precursor to Article 16(4) and 16(1) respectively) is “genericprinciple”:

“At the same time, as I said, we had to reconcile this formulaFwith the demand made by certain communities that theadministration which has now—for historical reasons—beencontrolled by one community or few communities, thatsituation should disappear and that the others also must havean opportunity of getting into the public services.”

GDr. Ambedkar then went on to say that reservation should operateideally for minority of posts and that the identifying principle for positivediscrimination would be use of “qualifying phrase such asbackward”[44] in whose favour an exception could be made without whichthe exception could ultimately eat up the rule.

43 Constituent Assembly Debates, Vol. 7, 30th November 1948, 7.63.205.H44 Ibid.

44. The idea or dominant theme behind the entire scheme of Article16, right through Article 16(4) - isequality of opportunityin matters ofpublic employment. At the same time, the Constitution framers realisedthat substantive equalitywould not be achieved unless allowance weremade through some special provision ensuring representation of the mostbackward class of citizens who were hitherto, on account of castepractices, or such constraints, barred from public employment. Therefore,the idea of Section 16(4) essentially is to enable representation, thecontrolling factor being adequacy of representation. That apart, the othercontrol which the Constitution envisioned was the identification ofbackward classes of citizens through entrenched provisions that set upinstitutions which were to function in an objective manner based on certainnorms – Articles 340, 341 and 342, which relate to Identification of SC/ST/BC- and the newly added Article 342A.

(iii) Article 17

45. The anxiety of the Constitution framers in outlawinguntouchability in all forms (without any reference to religion orcommunity), resulted in its express manifestation as Article 17, whereinthe expression “untouchability” was left undefined. The debates of theAssembly suggest that this was intentional. B. Shiva Rao’s treatise[45]discloses that proceedings of the Sub-Committee on Fundamental Rights,which undertook the task of preparing the draft provisions on fundamentalrights suggested clause enabling for the abolition of “untouchability”-this was Clause 4(a) of Article III of K.M. Munshi’s draft of fundamentalrights:

“Untouchability is abolished and the practice thereof ispunishable by the law of the Union.”

And similarly, Article 11(1) of Dr Ambedkar’s draft provided that:

“any privilege or disability arising out of rank, birth, person,family, religion or religious usage and custom is abolished.”

46. Considerable deliberations took place since there was unanimityamong all sections of representatives in the Constituent Assembly thatthe practice of untouchability (in all its forms) had to be outlawed. TheAssembly bestowed its attention to the minutiae of what constitutes

45 B. Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at p. 202.

Auntouchability, whether its forms of practice in the Hindu religion alonequalified for prohibition, or also inter-communally, etc. Dr. Ambedkar,K.M. Munshi, Sardar Patel, and B.N. Rau, participated in all thesedeliberations. Shiva Rao observes that the Committee came to the generalconclusion that “the purpose of the clause was toabolish untouchability in all its forms—whether it was untouchabilityBwithin community or between various communities”[46]. Attemptsmade to amend the article were deemed unnecessary due to the carefuland extensive deliberations, and the unanimity amongst members; therewas actually no change in the draft, which survived to become part ofthe Constitution:C“Untouchability” is abolished and its practice in any form isforbidden. The enforcement of any disability arising out of“untouchability” shall be an offence punishable inaccordance with law.”47. The result was an all-encompassing provision which ArticleD17 is as it stands, outlawing untouchability in all its forms - by the State,individuals, and other entities. The reach and sweep of this provision –like Article 15(2) is wide; it is truly horizontal in its application.

48. Given that the case law relating to Article 15 and 16 hassubstantially been covered in the judgment of Justice Dinesh Maheshwari,EI have not reiterated the same. However, it is my considered opinion,that due weightage was not given to Article 17, which as argued bysome of the petitioners, is also part of the Equality Code; I have includedsome judgments which underscore the importance of this injunction andits continued need.F49. The social evil - of untouchability and its baleful effect ofuntouchability based discrimination was recounted by this court, in Stateof Karnataka v. Appa Balu Ingale[47] :

“21. Thus it could be concluded that untouchability hasgrown as an integral facet of socio-religious practices beingGobserved for over centuries; keeping the Dalits away fromthe mainstream of the society on diverse grounds, be it ofreligious, customary, unfounded beliefs of pollution etc. It isan attitude and way of behaviour of the general public of the

46 Ibid.H47 1995 Supp (4) SCC 469

Indian social order towards Dalits. Though it has grown asan integral part of caste system, it became an institution byitself and it enforces disabilities, restrictions, conditions andprohibitions on Dalits for access to and the use of places ofpublic resort, public means, roads, temples, water sources,tanks, bathing ghats, etc., entry into educational institutionsor pursuits of avocation or profession which are open to alland by reason of birth they suffer from social stigma.Untouchability and birth as Scheduled Caste are thusintertwined root causes. Untouchability, therefore, is foundedupon prejudicial hatred towards Dalits as an independentinstitution. It is an attitude to regard Dalits as pollutants,inferiors and outcastes. It is not founded on mens rea. Thepractice of untouchability in any form is, therefore, crimeagainst the Constitution. The Act also protects civil rights ofDalits. The abolition of untouchability is the arch of theConstitution to make its preamble meaningful and to integratethe Dalits in the national mainstream.”

50. The criterion for determining communities or castes as scheduledcastes has been recognized as those who suffered on accountof the practice of untouchability, and its pernicious effects, inMarri Chandra Shekhar Rao v. Dean, Seth G.S. MedicalCollege & Ors.[48]:

“9. It appears that Scheduled Castes and ScheduledTribes in some States had to suffer the socialdisadvantages and did not have the facilities fordevelopment and growth. It is, therefore, necessary inorder to make them equal in those areas where they haveso suffered and are in the state of underdevelopment tohave reservations or protection in their favour so thatthey can compete on equal terms with the moreadvantageous or developed Sections of the community.Extreme social and economic backwardness arising outof traditional practices of untouchability is normallyconsidered as criterion for including community inthe list of Scheduled Castes and Scheduled Tribes….”

A51. That SC communities are victims of the practise ofuntouchability, and the equality code was meant to provide themopportunities, and eliminate discrimination, was narrated in the earlierdecision in Valsamma Paul & Ors. V. Cochin University & Ors[49]:

“7. […] The practice of untouchability, which hadBgrown for centuries, denuded social and economic statusand cultural life of the Dalits and the programmesevolved under Articles 14 15(2) 15(4) and 16(4) aimedto bring Dalits into national mainstream by providingequalitarian facilities and opportunities. They aredesignated as “Scheduled Castes” by definition underCArticle 366(24) and “Scheduled Tribes” under Article366(25) read with Articles 341 and 342 respectively.The constitutional philosophy, policy and goal are toremove handicaps, disabilities, suffering restrictions ordisadvantages to which Dalits/ Tribes are subjected, toDbring them into the national mainstream by providing

facilities and opportunities for them…”

52. In Abhiram Singh and Ors. v. C.D. Commachen[50] this courtagain revisited the “central theme” of elimination of discrimination ofSCs:

“118. […] The Constitution is not oblivious to the historyof discrimination against and the deprivation inflictedupon large segments of the population based on religion,caste and language. Religion, caste and language areas much symbol of social discrimination imposed onFlarge segments of our society on the basis of immutablecharacteristics as they are of social mobilisation toanswer centuries of injustice. They are part of thecentral theme of the Constitution to produce just socialorder...”

G53. The Constitution Bench ruling in Indian Young Lawyers Assn.(Sabarimala Temple) v. State of Kerala[51] took note of the fact that theevil of untouchability, which kept out large swathes of Indian population

49 (1996) 3 SCC 54550 (2017) 2 SCC 629H51 (2019) 11 SCC 1

in the thrall of caste-based exclusion, was sought to be dismantled, andreal equality was sought to be achieved:

“386. The rights guaranteed under Part III of theConstitution have the common thread of individualdignity running through them. There is degree ofoverlap in the Articles of the Constitution whichrecognise fundamental human freedoms and they mustbe construed in the widest sense possible. To say thenthat the inclusion of an Article in the Constitutionrestricts the wide ambit of the rights guaranteed, cannotbe sustained. Article 17 was introduced by the Framersto incorporate specific provision in regard tountouchability. The introduction of Article 17 reflectsthe transformative role and vision of the Constitution.It brings focus upon centuries of discrimination in thesocial structure and posits the role of the Constitutionto bring justice to the oppressed and marginalised. Thepenumbra of particular Article in Part III which dealswith specific facet of freedom may exist elsewhere inPart III. That is because all freedoms share aninseparable connect. They exist together and it is in theirco-existence that the vision of dignity, liberty andequality is realised. As noted in Puttaswamy [K.S.Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10SCC 1], “the Constituent Assembly thought it fit thatsome aspects of liberty require more emphaticdeclaration so as to restrict the authority of the State toabridge or curtail them…”

54. The centrality of Article 17 and the constitutional resolve toeliminate untouchability in all forms to any debate on equality involvingSC/ST communities is undeniable. Other provisions such as Article 15(2), Article 23 and 24 also contain links to Article 17, because theconstitution aimed not merely at outlawing untouchability, but ensuringaccess to public amenities and also guaranteeing that the stigma of castediscrimination should not result in exploitation.

(iv) Other provisions in the Constitution

55. Apart from Article 16, the other provisions which expresslytalked of reservations are not in regard to public employment but are in

Arespect of elective offices – Articles 330 and 332 – both of which enabledreservation in favour of SCs and STs in proportion to their population inthe concerned States legislative or Parliamentary constituencies.

56. The other provisions which expressly forbid and injunct thestate from practising discrimination are Article 29(2) and Article 325.BArticle 29 (2) enacts that

“No citizen shall be denied admission into anyeducational institution maintained by the State orreceiving aid out of State funds on grounds only ofreligion, race, caste, language or any of them.”

CArticle 325 reads as follows:

“325. No person to be ineligible for inclusion in, or toclaim to be included in special, electoral roll ongrounds of religion, race, caste or sex: There shall beone general electoral roll for every territorialDconstituency for election to either House of Parliamentor to the House or either House of the Legislature of aState and no person shall be ineligible for inclusion inany such roll or claim to be included in any specialelectoral roll for any such constituency on grounds onlyEof religion, race, caste, sex or any of them.”

B. Content of Equality Code

57. The equality code (Articles 14, 15, 16, and 17), so referred toin various previous decisions of this court) does not merely visualize abland statement of equality before law and equal protection of law butFalso contains specific injunctions against state from discriminating onproscribed grounds [such as caste, race, sex, place of birth, religion, orany of them, in Article 15; and caste, sex, religion, place of residence,descent, place of birth, or any of them, in Article 16]. The engraining ofthese specific heads – enjoining the State not to discriminate on suchspecific heads, such as caste, religion or sex is therefore, as much partGof equality code, as the principle of equality enacted in general terms, inArticle 14. The inclusion of Article 17 – as an unequivocal injunction,against untouchability, of any form, enjoins the state to forbear castediscrimination, overtly, or through classification, and looms large as apart of the equality code and indeed the entire framework of theHConstitution.

58. Joseph Raz described this dimension as “the ideal of personalautonomy is the vision of people controlling, to some degree, theirown destiny, fashioning it through successive decisions throughout”their lives.[52] Dr. Ambedkar put the issue very poignantly, saying thatsystematic caste discrimination was akin to slavery, since such subjugation“means state of society in which some men are forced to accept”[53]from others the purposes which control their conduct. In castebased hierarchal societies, which discriminated against significantsegment of society, the extent of deprivation – of choice was such thatthose born into those castes or communities were not part of thecommunity and were termed “outcastes”. This exclusion was specificallytargeted against, and sought to be eliminated,by the Constitution.It isinconceivable that the deletion of caste (as long as Indian society believesin and practices the caste system) as proscribed ground through aconstitutional amendment would stand scrutiny. This example is given toillustrate that the value of proscribing caste discrimination is rootedin the express provision of the Constitution, as part of the equalitycode. Equally, one cannot visualize an amendment which promotes oreven permits discrimination of other proscribed grounds, such as gender,descent, or religion. All this would per se violate equality - both textually,as well as the principle of equality, which the Constitution propounds.The rationale for enacting these as proscribed grounds either underArticle 15 or 16 (or both) was that the framers of the Constitution wereaware that courts could use these markers to determine when reasonableclassification is permissible. Thus, for instance, if the proscribed groundof ‘gender’ was absent, it could have been argued that gender is basisfor an intelligible differentia, in given case. To ensure that suchclassifications and arguments were ruled out, these proscribed groundswere included as specific injunctions against the State. The provisions,and the code, therefore, are not only about the grand declaratory sweepof equality: but equally about the absolute prohibition against exclusionfrom participation in specified, enumerated activities, through entrenchedprovisions.

59. closer look at Article 15, especially Article 15(2), wouldfurther show that likewise most of the proscribed grounds in Article15(1) were engrafted to ensure that access to public resources – in

52 Joseph Raz, The Morality of Freedom (OUP, 1986), p. 369.

53 Dr. B.R. Ambedkar, Annihilation of Caste (1939).

DEF

Asome cases not even maintained by the state, but available to the publicgenerally, could not be barred. This provision too was made to right ahistorical wrong, i.e., denial of access to the most deprived sections ofsociety of the most basic resources, such as water, food, etc. Theinjunction against untouchability under Article 17, ensuring that suchpractice is outlawed is strengthened by taking away the subject matterBfrom state domain and placing it as an exclusive legislative head to theParliament through Article 35. In similar vein, Articles 23 and 24 (althoughseemingly unconnected with the issue of equality), enact very specialrights – which are enforceable against both the State agencies and others.Through these articles, the forms of discrimination, i.e., exploitation,Ctrafficking, and forced labour (which was resorted to against the mostdeprived classes of society described as SCs and STs) was sought to beoutlawed.60. The elaborate design of the Constitution makers, who went togreat lengths to carefully articulate provisions, such that all forms ofDdiscrimination were eliminated- was to ensure that there was no scopefor discrimination of the kind that the society had caused in its mostvirulent form in the past, before the dawn of the republic. These, togetherwith the affirmative action provisions - initially confined to Articles 15(3)and 16(4), and later expanded to Article 15(4) and 15(5) - was toguarantee that not only facial discrimination was outlawed but also thatEthe existing inequalities were ultimately eliminated. To ensure the latter,only one segment, i.e., socially and educationally backward classes wereconceived as the target group, i.e., or its beneficiaries. Therefore, in thisCourt’s opinion, the basic framework of the constitution or the idea andidentity of equality was that:F

(i)There ought to be no discrimination in any form, for anyreason whatsoever on the proscribed grounds, includingin matters of public employment;

(ii)That the provision for affirmative action was an intrinsicpart of the framework and value of equality, i.e., toGensure that the equality of classes hitherto discriminatedand ostracized, was eventually redressed.

61. This was recognized in Jaishri Laxmanrao Patil as “theobligation or duty to equalize those sections of the population” on the

States’ part.[54] Likewise, the observations of Sahai, J. in Indra Sawhneycharacterize Article 15(4) and 16(4) as ‘obligations’.

C. Equality Code is part of the basic structure

62. That the principle of equality is the most important indispensablefeature of the Constitution and destruction thereof will amount to changingthe basic structure of the Constitution has been held in numerous cases.That it is an inextricable part of the basic structure, is clearly enunciatedin Kesavananda Bharati (para 1159, SCC), Minerva Mills (para 19),Raghunath Ganpatrao (para 142), R. C. Poudyal (para 54), IndraSawhney (para 260-261), Indra Sawhney (2) v. Union of India[55] (para64-65), M. Nagaraj (para 31-32) and I.R. Coelho (para 105), amongothers.

63. In Indira Gandhi, Y.V. Chandrachud, J. identified “equalityof status and opportunity” to all its citizens, as an unamendable basicfeature of the Constitution. In the same case, K. K. Mathew, J. identifiedspecific provisions of the Constitution, relating to the equality principle,as part of the basic structure:

“334. Equality is multi-coloured concept incapable ofa single definition. It is notion of many shades andconnotations. The preamble of the Constitutionguarantees equality of status and of opportunity. Theyare nebulous concepts. And I am not sure whether theycan provide solid foundation to rear basic structure.I think the types of equality which our democraticrepublic guarantees are all subsumed under specificarticles of the Constitution like Articles 14, 15, 16, 17,25 etc., and there is no other principle of equality whichis an essential feature of our democratic polity.”

64. In five-judge bench decision, through his concurring opinion,S.B. Sinha, J stated, in Saurabh Chaudri & Ors. v. Union of India &Ors.[56]That:

“82. Article 14 of the Constitution of India prohibits

discrimination in any form. Discrimination at its worst

54 See paragraph 23-24, SCC.

55 (2000) 1 SCC 168

56 (2003) 11 SCC 146; 2003 (Supp 5) SCR 152

348SUPREME COURT REPORTS

form would be violative of the basic and essential featureof the Constitution. It is trite that even the fundamentalrights of citizen must conform to the basic feature ofthe Constitution. Preamble of the Constitution in nouncertain terms lays emphasis on equality.”

B65. nine-judge bench of this court, in S.R. Bommai v. Union ofIndia[57], though not dealing with constitutional amendment, opined that“these fundamental rights enshrined in Articles 15, 16, and 25 to30 leave no manner of doubt that they form part of the basicstructure of the Constitution….”. Again, in M. Nagaraj, it was opinedthat “…the principle which emerges is that “equality” is the essenceCof democracy and, accordingly basic feature of the Constitution.”

66. I.R. Coelho v. State of Tamil Nadu[58] is the next importantdecision, of note, by nine-judge bench decision. The court, undoubtedlywas not concerned with the direct impact of an amendment on Article14 or equality, but with the effect of an overarching immunizing provisionDsuch as Article 31-B. It was unanimously held, that:

“109. It cannot be held that essence of the principlebehind Article 14 is not part of the basic structure. Infact, essence or principle of the right or nature ofviolation is more important than the equality in theEabstract or formal sense. The majority opinionin Kesavananda Bharati case [(1973) 4 SCC 225]clearly is that the principles behind fundamental rightsare part of the basic structure of the Constitution. It isnecessary to always bear in mind that fundamentalFrights have been considered to be heart and soul of theConstitution. Rather these rights have been furtherdefined and redefined through various trials havingregard to various experiences and some attempts toinvade and nullify these rights. The fundamental rightsare deeply interconnected. Each supports andGstrengthens the work of the others. The Constitution isa living document, its interpretation may change as thetime and circumstances change to keep pace with it.

57 S.R. Bommai v. Union of India, (1994) 3 SCC 1, (hereinafter “S.R. Bommai”).58 (2007) 2 SCC 1H

This is the ratio of the decision in Indira Gandhicase [1975 Supp SCC 1].

141. The doctrine of basic structure contemplates thatthere are certain parts or aspects of the Constitutionincluding Article 15, Article 21 read with Article 14 and19 which constitute the core values which if allowed tobe abrogated would change completely the nature ofthe Constitution. Exclusion of fundamental rights wouldresult in nullification of the basic structure doctrine,the object of which is to protect basic features of theConstitution as indicated by the synoptic view of therights in Part III.

142. There is also difference between the ‘rights test’and the ‘essence of right test’. Both form part ofapplication of the basic structure doctrine. When in acontrolled Constitution conferring limited power ofamendment, an entire Chapter is made inapplicable, ‘theessence of the right’ test as applied in M. Nagaraj’scase (supra) will have no applicability. In such asituation, to judge the validity of the law, it is ‘right test’which is more appropriate. We may also note that inMinerva Mills and Indira Gandhi’s cases, eliminationof Part III in its entirety was not in issue. We areconsidering the situation where entire equality code,freedom code and right to move court under Part IIIare all nullified by exercise of power to grantimmunization at will by the Parliament which, in ourview, is incompatible with the implied limitation of thepower of the Parliament. In such case, it is the rightstest that is appropriate and is to be applied…”67. Observations in the cases referred to above, therefore, haveoutlined that certain provisions of the equality code – rather the ideas –and principles intrinsic to Articles 14 and 15, and the rights in Articles 19and 21, are part of the basic structure of the Constitution.

DEF

A68. Speaking of the general right to equality, this court in VikasSankhala & Ors. v. Vikas Kumar Agarwal & Ors[59]stated that

“65. Going by the scheme of the Constitution, it is morethan obvious that the framers had kept in mind socialand economic conditions of the marginalized SectionBof the society, and in particular, those who werebackward and discriminated against for centuries.Chapters on ‘Fundamental Rights’ as well as ‘DirectivePrinciples of State Policies’ eloquently bear out thechallenges of overcoming poverty, discrimination andinequality, promoting equal access to group qualityCeducation, health and housing, untouchability andexploitation of weaker section. In making suchprovisions with purpose of eradicating the aforesaidills with which marginalized Section of Indian societywas suffering (in fact, even now continue to suffer inDgreat measure), we, the people gave us the Constitutionwhich is transformative in nature…”

It was also held that

“67. […] when our Constitution envisages equal respectand concern for each individual in the society and theEattainment of the goal requires special attention to bepaid to some, that ought to be done. Giving of desiredconcessions to the reserved category persons, thus,ensures equality as levelling process. Atjurisprudential level, whether reservation policies areFdefended on compensatory principles, utilitarianprinciples or on the principle of distributive justice, factremains that the very ethos of such policies is to bringout equality, by taking affirmative action…”

69. In Samatha v. State of A.P. & Ors.[60] this court underlined theGunity of directive principles and fundamental rights, and the deep, intrinsicconnection between equality, liberty, and fraternity:

“72. […] Fundamental Rights and Directive Principlesof the Constitution have fused in them as fundamental

59 Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350.H60 Samatha v. State of A.P., (1997) 8 SCC 191; 1997 (Supp 2) SCR 305

human rights as indivisible and interdependent. TheConstitution has charged the State to provide facilitiesand opportunities among the people and groups ofpeople to remove social and economic inequality andto improve equality of status. Article 39(b) enjoins theState to direct its policy towards securing distributionof the ownership and control of the material resourcesof the community as best to subserve the common good.The founding fathers with hind sight, engrafted withprognosis, not only inalienable human rights as part ofthe Constitution but also charged the State as its policyto remove obstacles, disabilities and inequalities forhuman development and positive actions to provideopportunities and facilities to develop human dignityand equality of status and of opportunity for social andeconomic democracy. Economic and social equality isa facet of liberty without which meaningful life wouldbe hollow and mirage.”

70. In similar manner, Indian Medical Association & Ors. v.Union of India & Ors.[61] underscored the centrality of equality and theegalitarian principle, of the Constitution:

“165. It is now well settled principle of ourconstitutional jurisprudence that Article 14 does notmerely aspire to provide for our citizens mere formalequality, but also equality of status and of opportunity.The goals of the nation-state are the securing for all ofits citizens fraternity assuring the dignity of theindividual and the unity of the nation. While Justice –social, economic and political is mentioned in onlyArticle 38, it was also recognized that there can be nojustice without equality of status and of opportunity (SeeM. Nagaraj). As recognized by Babasaheb Ambedkar,at the moment that –ur Constitution just set sail, thatwhile the first rule of the ship, in the form of formalequality, was guaranteed, inequality in terms of accessto social and economic resources was rampant and ona massive scale, and that so long as they individually,

ABC

and the social groups they were part of, continue tonot access to social and economic resources that affordsthem dignity, they would always be on the margins ofthe ship, with the ever present danger of falling off thatship and thereby never partaking of the promised goalsof that ship. Babasaheb Ambedkar with great foresightremarked that unless such more fundamentalinequalities, that foster conditions of injustice, and limitliberty of thought and of conscience, are eradicated atthe earliest, the ship itself would be torn apart.

168. An important and particular aspect of ourConstitution that should always be kept in mind is thatvarious aspects of social justice, and an egalitariansocial order, were also inscribed, not as exceptions tothe formal content of equality but as intrinsic, vital andnecessary components of the basic equality code itself.To the extent there was to be conflict, on account ofscarcity, it was certainly envisaged that the State wouldstep in to ensure an equitable distribution in mannerthat would be conducive to common good; nevertheless,if the state was to transgress beyond certain limit,whereby the formal content of equality was likely to bedrastically abridged or truncated, the power of judicialreview was to curtail it…”

71. Therefore, the design of the Constitution, which by theFPreamble, promises justice – social, economic, and political, liberty ofthought and expression, equality, and fraternity; and the various provisionswhich manifest it (Articles 14-18, 19, 20-21, 23-24, 29, 38-39, 41 and 46)– articulate an organic and unbreakable bond between these concepts,which are guarantees. The idea of the twin assurance of non-discrimination and equality of opportunity, is to oblige the state to ensureGthat meaningful equality is given to all. Similarly, the fraternal principlebinds both the state and the citizen, as without fraternity, libertydegenerates to individualistic indulgence. Without dignity, equality andliberty, are rendered hollow. This inviolable bond, therefore, is part of thecore foundation of our republic. Freedom from colonial rule was withHthe agenda of creating democratic republic, reflecting the unique genesis

of its nation, holding the people with diverse languages, cultures, religionswith common bond of egalitarianism, fraternity, and liberties, assuringdignity to all – the State and the citizens were to ensure that these werepreserved, at all times, for each individual.

72. This principle of equality – non-discrimination or non-exclusion,never had occasion to be considered in past decisions that examinedamendments to the Constitution which dealt with different facets ofequality – such as the ceiling on land holding (Waman Rao, Bhim Singhjiv. Union of India[62]) or omission of princely privileges (RaghunathGanpatrao). Thus the court did not adjudicate upon the non-discriminatory or non-exclusionary principle. In each case, the facet ofequality alleged to have been violated by constitutional amendment,limited or affected property. In other words, the focus of every instancewhere an amendment was struck down (barring those in L. ChandraKumar, P. Sambamurthy, Indira Gandhi, and Kihoto Hollohan) weredefining of excess property in the hands of the “haves” and the morefortunate, in possession of land exceeding ceilings (agrarian or otherwise),and dismantling of princely privileges deemed antithetical to republicanismand thereby promoting republicanism and equality. The court’s caveat –be it in Kesavananda Bharati, Waman Rao or Bhim Singhji – wereonly to the extent that oversight, to ensure that the contents of the lawsadhered to the directive principles and were not mask or veneer toextinguish liberties enshrined in Articles 14 and 19, and were to beretained.

73. The effort of the State in each of these instances, was tocreate new avenues by expropriation of wealth, assets, and propertiesfrom the ‘haves’ and ensure distributive justice in furtherance of theobjectives under Article 38 [particularly clause (2); and also Article 39(particularly clause (b)] – that of minimising inequalities, and distributionof ownership and control of material resources, respectively. Thus, 263entries out of the total of 284 entries in the IX[th] Schedule of theConstitution, are legislations relating to land reforms, land ceilings, andother agrarian reforms acts, of the States and Union Territories.

74. In the other class of amendments where the constitutionalethos was promoted [introduction of Article 21A, and Article 15(5) (tofacilitate Article 21A)], this court’s decisions (in Pramati and Society

62 Bhim Singhji v. Union of India, (1981) 1 SCC 166, (hereinafter as “Bhim Singhji”).

Afor Unaided Schools of Rajasthan v. Union of India[63]respectively)are telling, because these provisions did not practice discrimination inthe sharing of new benefits or rights, and were inclusive. The courtnaturally upheld them. The only challenge dealing with equality – in M.Nagaraj, failed because the right to “catch up rule” was derivativeprinciple evolved by the court, in the context of the larger canvas thatBthere was no right to promotion [Article 16(4) did not carry within it theright to promotion – formulation in Indra Sawhney, which holds goodeven as on date, for all classes save the SCs and STs]. This court heldthat such rule did not negate the “essence” of equality or its “egalitarian”facet.C75. In juxtaposition to all this, for the first time, the constituentpower has been invoked to practice exclusion of victims of social injustice,who are also amongst the poorest in this country, which stands in starkcontradiction of the principle of egalitarianism and social justice for all.The earlier amendments were aimed at ensuring egalitarianism and socialDjustice in an inherently unequal society, where the largest mass of peoplewere impoverished, denied access to education, and other basic needs.76. In every case, which implicates the right to equality, when theCourt is asked to adjudge upon the validity of Constitutional amendment,invariably what the Court focuses its gaze upon, is what is facet ofEequality. The debates which led to the framing of the Constitution, areemphatic that the equalizing principle is foundational tenet “an articleof faith” upon which our democratic republic rests. Equality - both as aprinciple, an idea, and as provision is “so mixed” as to make it impossibleto extricate the form from the substance, the idea from its expression.Likewise, equality - of protection before the law, of opportunity - as aFright not to be discriminated against on grounds enumerated in Articles15(1) and 16(1) are engrained principles, nay, entrenched entitlements.The question which this court therefore addresses, in every case whichcomplains of infractions of the essential features of the Constitution is -has that principle been undermined or the core idea (of equality) beenGdistorted.

77. The bedrock value which enlivens Articles 14, 15, 16, 17, 18,29(2), and 325, therefore, is the principle of non-discrimination.Alongside the generic principle of equality, captured by Article 14, is the

63 Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1,H(hereinafter as “Society for Unaided Schools of Rajasthan”).

idea that certain segments of society which had been historicallystigmatised and discriminated on account of the caste identity of itsmembers, should be the beneficiaries of protective discrimination to enablethem proper access to public goods, facilities, spaces, and representationin public employment. The idea of equality, therefore, is tethered to anotherinseparable facet, i.e., non-discrimination,that there cannot be anyexclusion by the state in these vital spheres of human activity. Thisprinciple of non-discrimination is what emerges from the history of theprovisions (outlined previously), and the precedents of this court. Further,the manner in which these provisions have been interpreted reiteratethat integral to that non-discriminatory facet, is the idea of positivediscrimination in favour of hitherto discriminated communities(“Harijans”, as termed in N.M. Thomas, or SC/STs). Consequently, theirresistible conclusion is that non-discrimination – especially theimportance of the injunction not to excludeor discriminate against SC/ST communities[by reason of the express provisions in Articles 17 and15] constitutes the essence of equality: that principle is the core valuethat transcends the provisions themselves; thiscan be said to be part ofthe basic structure.

D. Impact/effect of the phrase “other than” in theimpugned amendment

(i) Test of reasonable classification

78. At the outset, it is acknowledged that the doctrine of reasonableclassification is not per se part of the basic structure; it is however, amethod evolved by this court to breathe life into and provide content tothe right to equality under Article 14 – the latter being part of the basicstructure. The contention made by those supporting the amendment –that treating the SC, ST and OBC as distinct class from those who arenot covered under Article 15(4) and 16(4) is reasonable classification,necessitates further scrutiny.

79. It was the submission of the learned Attorney General andSolicitor General, that SC/ST/OBC communities who have thus farenjoyed and will continue to enjoy special provision and reservation madein their favour (Articles 15(4) and 16(4)) constitute homogenous class,the members of whose communities are beneficiaries of existingreservation [which also includes the poorer members among their group],whereas the beneficiaries of the new EWS reservation, were those whodid not enjoy such benefits. Consequently, there was no deprivation of

Aopportunity within the quota/silo set apart for the former category. Thatfurther opportunities are being denied to them on account of the creationof the 10% quota, marginally affects them[64]. Such adverse effect, itwas argued, could not be characterized as shocking breach of theequality code or that it affected the identity of the Constitution. It wassubmitted furthermore, that even in the existing reservation, the SC/ST/BOBC candidate belonging to such category, could compete in the quotaset apart for their caste or class and not of the quota of each other.Thus, the SC candidates cannot compete in the quota set apart for SC orOBC. This, it was urged is reasonable classification by which unequalsare not treated equally. This characterization of the classification, andCjustification for the impugned amendment, found favour in the judgmentsby Dinesh Maheshwari, Bela Trivedi, and J.B. Pardiwala, JJ. Irespectfully disagree with this conclusion.

80. I am of the opinion that the application of the doctrineclassification differentiating the poorest segments of the society, as oneDsegment (i.e., the forward classes) not being beneficiaries ofreservation, and the other, the poorest, who are subjected to additionaldisabilities due to caste stigmatization or social barrier based discrimination– the latter being justifiably kept out of the new reservation benefit, isan exercise in deluding ourselves that those getting social and educationalbackwardness based reservations are somehow more fortunate. ThisEclassification is plainly contrary to the essence of equal opportunity. Ifthis Constitution means anything, it is that the Code of Articles 15(1),15(2), 15(4), 16(1), 16(2), and 16(4) are one indivisible whole. Thiscourt has reiterated time and again that Articles 16(1) and 16(4) arefacets of the same equality principle. That we need Article 15(4) andF16(4) to achieve equality of opportunity guaranteed to all in Articles15(1) and 16(1) cannot now be undermined, through this reasoning, tohold that the theory of classification permits exclusion on this very basis.

81. In State of West Bengal v. Anwar Ali Sarkar[65], one of theearliest decisions to utilize the classification principle held (per Mahajan,GJ), that:64 By way of example, it was submitted that in Central Universities and Central servicesso far, the OBC communities could compete in 27% of the seats reserved for them andin addition also participated as open category candidates. The total available for themis 77% and with the introduction of the EWS category along with the exclusion class,the number has been reduced to 67% - which was argued as only margically affectingthem, at best.H65 State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1; 1952 SCR 284.

“64. […] The classification permissible, however, mustbe based on some real and substantial distinctionbearing just and reasonable relation to the objectssought to be attained and cannot be made arbitrarilyand without any substantial basis. Classification thusmeans segregation in classes which have systematicrelation, usually found in common properties andcharacteristics. It postulates rational basis and doesnot mean herding together of certain persons and classesarbitrarily. Thus the legislature may fix the age at whichpersons shall be deemed competent to contract betweenthemselves, but no one will claim that competency tocontract can be made to depend upon the stature orcolour of the hair. “Such classification for such apurpose would be arbitrary and piece of legislativedespotism.”

Per SR Das, J:

“85. It is now well established that while Article 14 isdesigned to prevent person or class of persons frombeing singled out from others similarly situated for thepurpose of being specially subjected to discriminatingand hostile legislation, it does not insist on an “abstractsymmetry” in the sense that every piece of legislationmust have universal application. All persons are not,by nature, attainment or circumstances, equal and thevarying needs of different classes of persons oftenrequire separate treatment and, therefore, the protectingclause has been construed as guarantee againstdiscrimination amongst equals only and not as takingaway from the State the power to classify persons forthe purpose of legislation. This classification may beon different bases. It may be geographical or accordingto objects or occupations or the like. Mere classification,however, is not enough to get over the inhibition of theArticle. The classification must not be arbitrary but mustbe rational, that is to say, it must not only be based onsome qualities or characteristics which are to be foundin all the persons grouped together and not in others

who are left out but those qualities or characteristicsmust have reasonable relation to the object of thelegislation…”

82. This court, in the State of Jammu and Kashmir v. TrilokiNath Khosa & Ors.[66]that classification,

“31. […] is fraught with the danger that it may produceartificial inequalities and therefore, the right to classifyis hedged in with salient restraints, or else, theguarantee of equality will be submerged in class-legislation masquerading as laws meant to govern wellCmarked classes characterized by different and distinctattainments. Classification, therefore, must be trulyfounded on substantial differences which distinguishpersons grouped together from those left out of thegroup and such differential attributes must bear justand rational relation to the object sought to beDachieved.”

(emphasis supplied)

83. Again, in Mohammad Shujat Ali and Ors. v. Union of India[67]this court observed that the “doctrine of classification should not beEcarried to point where instead of being useful servant, it becomesa dangerous master”.

84. The basis of classification in the impugned amendment, enactedin furtherance of Article 46 – is economic deprivation. Applying thatcriterion, it is either income, or landholding, or value of assets or theFextent of resources controlled, which are classifiers. The social origins,or identities of the target group are thus irrelevant. That there is somebasis for classification, whether relevant or irrelevant, which is sufficientto differentiate between members of an otherwise homogenous group,is no justification. This was highlighted most recently by this court inPattali Makkal Katchi v. A. Mayilerumperumal and Ors[68]:

“79. Discrimination is the essence of classification.Equality is violated if it rests on unreasonable basis.The concept of equality has an inherent limitation arising

66 State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19.

67 Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76.

68 Pattali Makkal Katchi v. A. Mayilerumperumal and Ors, 2022 SCC Online SC 386.

from the very nature of the constitutional guarantee.Those who are similarly circumstanced are entitled toan equal treatment. Equality is amongst equals.Classification is, therefore, to be founded on substantialdifferences which distinguish persons grouped togetherfrom those left out of the groups and such differentialattributes must bear just and rational relation to theobject sought to be achieved. Our Constitution aims atequality of status and opportunity for all citizensincluding those who are socially, economically andeducationally backward. Articles 15(4) and 16(4) bringout the position of backward classes to merit equality.Special provisions are made for the advancement ofbackward classes and reservation of appointments andposts for them to secure adequate representation. Theseprovisions are intended to bring out the content ofequality guaranteed by Articles 14, 15(1) and 16(1).However, it is to be noted that equality under Articles15 and 16 could not have different content fromequality under Article 14 [State of Kerala v. N.MThomas (1976) 2 SCC 310]. Differentia which is thebasis of classification must be sound and must havereasonable relation to the object of the legislation. Ifthe object itself is discriminatory, then explanation thatclassification is reasonable having rational relation tothe object sought to be achieved is immaterial[Subramanian Swamy v. Director, Central Bureau ofInvestigation (2014) 8 SCC 682].”

(emphasis supplied)

85. Krishna Iyer, J, speaking in Col. A.S. Iyer v. V.Balasubramanyam[69] put the matter even more pithily:

“57. […] equality clauses in our constitutional ethic havean equalizing message and egalitarian meaning whichcannot be subverted by discovering classificationbetween groups and perpetuating the inferior-superiorcomplex by neo-doctrine…”

DEF

A86. Classification, it is said, is subsidiary rule, to give practicalshape to the principle of equality. However, as emphasized by K. SubbaRao, J. in Lachhman Das v. State of Punjab[70]:

“47. […] Overemphasis on the doctrine of classificationor an anxious and sustained attempt to discover someBbasic for classification may gradually and imperceptiblydeprive the Article of its glorious content. That processwould inevitably end in substituting the doctrine ofclassification for the doctrine of equality; thefundamental right to equality before the law and theequal protection of the laws may be replaced by theCdoctrine of classification.”

87. The economic criteria, based on economic indicators, whichdistinguish between one individual and another, would be relevant forthe purpose of classification, and grant of reservation benefit. The Union’sconcern that SC/ST/OBCs are beneficiaries of other reservations, whichDset apart the poorest among them, from the poorest amongst othercommunities which do not fall within Articles 15(4) and 16(4), cannot bea distinguishing factor, as to either constitute an intelligible differentiabetween the two, nor is there any rational nexus between that distinctionand the object of the amendment, which is to eliminate poverty andEfurther the goal of equity and economic justice.88. There is considerable body of past judgments enunciatingthe principle that any exclusionary basis, should be rational, and non-discriminatory. In National Legal Services Authority v. Union of India& Ors.[71] This court frowned upon the discrimination faced by transgenderFpersons and held all practices which excluded their participation to bediscriminatory. The court explained how treatment of equals and unequalsas equals, is violative of the basic structure. Crucially, the court observedthat:

“61. Article 14 of the Constitution of India states thatGthe State shall not deny to “any person” equality beforethe law or the equal protection of the laws within theterritory of India. Equality includes the full and equalenjoyment of all rights and freedom. Right to equality

70 Lachhman Dass v. State of Punjab, (1963) 2 SCR 353; [1963] 2 SCR 353.

H71 National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[S. RAVINDRA BHAT, J.]

has been declared as the basic feature of the Constitutionand treatment of equals as unequals or unequals asequals will be violative of the basic structure of theConstitution. Article 14 of the Constitution also ensuresequal protection and hence positive obligation on theState to ensure equal protection of laws by bringing innecessary social and economic changes, so thateveryone including TGs may enjoy equal protection oflaws and nobody is denied such protection…”

89. The salience of the non-exclusionary precept as facets ofnon-discrimination (equality), liberty and dignity, was ruled in IndianYoung Lawyers Association & Ors. v. The State of Kerala & Ors.[72]where it was emphasized that

“300. […] this Court will be guided by the pursuit touphold the values of the Constitution, based in dignity,liberty and equality. In constitutional order ofpriorities, these are values on which the edifice of theConstitution stands. They infuse our constitutional orderwith vision for the future-of just, equal and dignifiedsociety. Intrinsic to these values is the anti-exclusionprinciple. Exclusion is destructive of dignity.”

90. Similarly, in Charu Khurana v. Union of India[73] this courtheld that discrimination against women artistes in the cinema industryviolated equality. It was held that dignity was an integral part of person’sidentity:

“33. […] Be it stated, dignity is the quintessential qualityof personality and human frames always desires tolive in the mansion of dignity, for it is highly cherishedvalue. Clause (j) has to be understood in the backdropthat India is welfare State and, therefore, it is the dutyof the State to promote justice, to provide equalopportunity to see that all citizens and they are notdeprived of by reasons of economic disparity…”

91. Can the fact that SC/ST and OBC communities are coveredby reservations to promote their equality, to ensure that centuries old

72 Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.

73 Charu Khurana v. Union of India, (2015) 1 SCC 192.

Adisadvantages and barriers faced by them (which are still in place, and isnecessary to ensure their equal participation) be ground for areasonable classification? In my opinion, that cannot be the basis ofclassification. None of the materials placed on the record contain anysuggestion that the SC/ST/OBC categories should be excluded from thepoverty or economic criteria-based reservation, on the justification thatBexisting reservation policies have yielded such significant results, that amajority of them have risen above the circumstances which resulted in,or exacerbate, their marginalization and poverty. There is nothing tosuggest, how, keeping out those who qualify for the benefit of thiseconomic-criteria reservation, but belong to this large segment constitutingC82% of the country’s population (SC, ST and OBC together), will advancethe object of economically weaker sections of society.92. As an aside, it may also be noted that according to the figuresavailable, 45 districts are fully declared, and 64, partially declared, asFifth Schedule areas, out of 766 districts in the country. Majority of theDpopulation of these areas are inhabited by members of scheduled tribes.According to the Sinho Committee, 48.4% of all Scheduled Tribes are inthe BPL (below poverty line) zone. This is 4.25 crores of the population.In this manner, the exclusion operates additionally, in geographicalmanner, too, denying the poorest tribals, living in these areas, the benefitof reservation meant for the poor.E

93. The reservations in favour of the poorest members of society,is not identity-based, or on past discrimination of the community concernedwhich shackled them within the confines of their caste (and whatmembers of that caste could do). It is based on persistent economicdeprivation, or poverty. The identifying characteristic is, therefore,Fentirely new. It has no connection with social or educationalbackwardness. The social or educational backwardness of thecommunities to which beneficiaries of the impugned amendments belong,are irrelevant. Therefore, caste or community is not the identifyingcriteria or classifier. In such eventuality, the wall of separation, so toGsay by which the exclusion clause (“other than”) keeps out the sociallyand educationally backward classes, particularly SC/STs operates todiscriminate them, because overwhelming numbers of the poorest arefrom amongst them.

(ii) Individual – as the beneficiary

94. Further, in the case of economic deprivation, what is to beseen is that poverty – or its acute ill effects are equally felt by all,irrespective of which silos they are in. Thus, at an individual level, atribal girl facing economic hardship, is as equally deprived of meaningfulopportunity as non-tribal, “non-backward”/forward class girl is. Thecharacterization of existing reservations to SCs/STs/OBCs, as benefitsor privileges, which disentitle them from accessing this new resource,of reservations based on economic deprivation, though they fall withinthe latter description, because “they are loaded with such benefits” (ascontended by the respondents), with respect belittles their plight.

95. The problem with the“silo” argument furthered by the Union,is that it not only fails to locate the individual within collective, reducingher visibility in the debate and robbing her of voice, but also furtherignores the potentiality of each individual to excel, and cross the barriersof these very “silos”. The polarity between “collective” rights andentitlements and “individual” is artificial. At the end of it all, theConstitution has to mean, and provide something, for the commonindividual/person; it has to provide the greatest good to all, not merelysections or collectives.Therefore, the view that the collective is theconstitutive element, from whose prism the individual is viewed, diminishesthe role and the focal point of inquiry, away from the individual, therebyaffording convenient way of placing people in different “silos”.

96. This court’s understanding, in the past too, has been that equalityof opportunity is individual – likewise, the benefit of reservation too ismade on the basis of the community’s social and educationalbackwardness, or they being victims of the practice of untouchability:yet the individuals are recipients. In M. Nagaraj, therefore, it was heldthat

“…the concept of “equality of opportunity” in publicemployment concerns an individual, whether thatindividual belongs to the general category or BackwardClass. The conflicting claim of individual right UnderArticle 16(1) and the preferential treatment given to aBackward Class has to be balanced. Both the claimshave particular object to be achieved. The questionis of optimisation of these conflicting interests andclaims.”

A97. The object of reservations is to benefit the individual, in thecase of enabling access to public goods such as education, whereas inthe case of elective office or even public office, though the individual isthe recipient of the reservation, the community is expected to benefit,due to its representation through her. This was emphasized by this courtin K. Krishna Murthy in the following words:B

“55. It must be kept in mind that there is also an inherentdifference between the nature of benefits that accruefrom access to education and employment on one handand political representation at the grassroots level onthe other hand. While access to higher education andCpublic employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries,participation in local-self government is intended as amore immediate measure of empowerment for thecommunity that the elected representative belongs to.”

This goal of empowerment through ‘representation’, is notapplicable in the case of reservations on the basis of economic criteria –which as the petitioners laboriously contended, is transient, temporary,and rather than discernible ‘group’, is an individualistic characteristic.This distinction on the question of Article 16(6), is elaborated on furtherEin Part V.

98. Apart from the fact that reservations are made for or in favourof collectives, which are the building blocks of society such as castes,they are meant to benefit individuals. Castes are merely convenientmethod of identifying the backward communities whose members arebeneficiaries. The fact remains that it is citizens who are meant to benefitFfrom it. The entire jurisprudence, or even the text of Articles 15 and 16,bear out this aspect. To say, therefore, that collectively communitiesidentified as Scheduled Castes and Scheduled Tribe, are beneficiariesand that is reason enough to exclude those castes/tribes from the benefitof new resources (created by the state through the amendment) thoughGundisputedly substantial number of members of these historicallymarginalised communities and castes also fulfil the eligibility criteria thatentitles one as deserving of the new resource, is nothing butdiscrimination at an individual level. This undermines the very basis ofthe promise of equal opportunity and equality of status which theHConstitution makers so painstakingly and carefully conceived of as

guarantee for all, particularly the members of the most discriminatedand deprived sections of the community, i.e., the SC and ST communities.In these circumstances it is cold comfort, therefore, for the person whootherwise fulfils all the characteristics of an identifier such as poverty –which is not based on social identity, but on deprivation – to be told thatshe is poor, as desperately poor or even more so than members of othercommunities (who were not entitled to the reparative reservations underArticle 15(4) and 16(4)), yet she is being kept out because she belongsto scheduled caste or scheduled tribe.

(iii) Violation of the basic structure

99. Poverty debilitates all sections of society. In the case ofmembers of communities which faced continual discrimination – of themost venial form, poverty afflicts in the most aggravated form. Theexclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation ofthe non-discrimination principle, facet that is entwined in the EqualityCode, and thus reaches to the level of offending or damaging the veryidentity of the Constitution. To use the terminology in I.R. Coelho, theimpact of this amendment on the equality code which is manifested inits non-discriminatory or non-exclusionary form, leads it to radicallydamage the identity of the Constitution. The promise of the Constitutionthat no one will be discriminated on the ground of caste-based practicesand untouchability (which is the basis of identification of such backwardclass of citizens as scheduled castes), is plainly offended. Therefore, theexclusionary clauses in articles 15(6) and Articles 16(6) damage andviolate the basic structure of the Constitution.

100. The characterisation of including the poor (i.e., those whoqualify for the economic eligibility) among those covered under Articles15(4) and 16(4), in the new reservations under Articles 15(6) and 16(6),as bestowing “double benefit” is incorrect. What is described as ‘benefits’for those covered under Articles 15(4) and 16(4) by the Union, cannotbe understood to be free pass, but as reparative and compensatorymechanism meant to level the field – where they are unequal due totheir social stigmatisation. This exclusion violates the non-discriminationand the non-exclusionary facet of the equality code, which thereby violatesthe basic structure of the Constitution.

101. The impugned amendment creates paths, gateways, andopportunities to the poorest segments of our society, enabling them multiple

Aaccess points to spaces they were unable to go to, places and positionsthey were unable to fill, and opportunities they could not hope, ever toordinarily use, due to their destitution, economic deprivation, and penury.These: destitution, economic deprivation, poverty, are markers, orintelligible differentia, forming the basis of the classification on whichthe impugned amendment is entirely premised. To that extent, theBamendment is constitutionally indefeasible. However, by excluding largesection of equally poor and destitute individuals – based on their socialbackwardness and legally acknowledged caste stigmatization – fromthe benefit of the new opportunities created for the poor, the amendmentpractices constitutionally prohibited forms of discrimination. TheCoverarching principles underlying Articles 15(1), 15(2), and Articles 16(1),16(2) is that caste based or community-based exclusion (i.e., the practiceof discrimination), is impermissible. Whichever way one would look at it,the Constitution is intolerant towards untouchability in all its forms andmanifestations which are articulated in Articles 15(1), (2), Articles 16,17, 23 and 24. It equally prohibits exclusion based on past discriminatoryDpractices. The exclusion made through the “other than” exclusionaryclause, negates those principles and strikes at the heart of the equalitycode (specifically the non-discriminatory principle) which is part of thecore of the Constitution.

IV.Re Question No. 1: permissibility of specialEprovisions (including reservation) based oneconomic criteria

102. At the outset, it is clarified that I am in agreement with theother members of this bench, that ‘economic criteria’ for the purpose ofArticle 15 is permissible and have provided my additional reasoning andFanalysis in this section; however, I diverge with regards to Article 16 forthe purpose of reservations in appointment to public employment, whichis elaborated in Part V.

A. Judicial observations on economic criteria

G103. Repeated decisions of this court have iterated that castealone could not be the criteria for determining social and educationalbackwardness. M.R. Balaji was the first to articulate this proposition.This was accepted in later decisions. The Union and other respondentsin the present challenge, relied on Article 46 and certain other provisions

of Part IV of the Constitution. The text of Article 46 is extracted againfor reference:

“46. The State shall promote with special care theeducational and economic interests of the weakersections of the people and, in particular, of theScheduled Castes and the Scheduled Tribes, and shallprotect them from social injustice and all forms ofexploitation.”

104. This court, in both N.M. Thomas and Indra Sawhneypropounded the idea that preferential treatment based on classification,to further affirmative action, could be traced to Articles 15(1) and 16(1).However, it was emphasized that on the question of reservation forsocially and educationally backward classes, scheduled castes andscheduled tribes, the field was occupied by Articles 15(4) and 16(4). Atthe same time, their location did not prevent the State from makingclassification for other groups. The question of whether the economiccriterion alone could be the basis of such reservation was squarelyaddressed in Indra Sawhney. The court held that such reservation basedsolely on the application of the economic criterion was not justified.B.P. Jeevan Reddy, J. who authored the majority judgement on this aspect,observed that the office memorandum in question did not recite theconcerned provision, and then proceeded to reason why it wasunsustainable:

“845. …Evidently, this classification among categoryoutside clause (4) of Article 16 is not and cannot berelated to clause (4) of Article 16. If at all, it is relatableto clause (1). Even so, we find it difficult to sustain.Reservation of 10% of the vacancies among opencompetition candidates on the basis of income/property-holding means exclusion of those above the demarcatingline from those 10% seats. The question is whether thisis constitutionally permissible? We think not. It may notbe permissible to debar citizen from being consideredfor appointment to an office under the State solely onthe basis of his income or property-holding. Since theemployment under the State is really conceived to servethe people (that it may also be source of livelihood issecondary) no such bar can be created. Any such bar

would be inconsistent with the guarantee of equalopportunity held out by clause (1) of Article 16. On thisground alone, the said clause in the Office Memorandumdated May 25, 1991 fails and is accordingly declaredas such.”

B105. It is quite evident that the economic criterion as the basis forreservations, was not upheld on account of the existing structure andphraseology in Articles 15(1) and 16(1). There is nothing in the judgmentin Indra Sawhney suggestive of this court’s omnibus disapproval of theidea of rooting affirmative action (including reservation) on the basis ofeconomic criteria. Nor did this court comment (or could have commented)Con possible future amendment to the Constitution, introducing theeconomic criteria as the basis for reservation or special provisions.

106. One of the questions considered in Indra Sawhney waswhether reservations contemplated could be confined to what existed,in the form of Articles 15 and 16. This court, having regard to the existingDstructure of those provisions, answered the question as follows:

“744. The aspect next to be considered is whether clause(4) is exhaustive of the very concept of reservations?In other words, the question is whether any reservationscan be provided outside clause (4) i.e., under clause(1) of Article 16. There are two views on this aspect. Ona fuller consideration of the matter, we are of the opinionthat clause (4) is not, and cannot be held to be,exhaustive of the concept of reservations; it is exhaustiveof reservations in favour of backward classes alone.Merely because, one form of classification is stated asa specific clause, it does not follow that the very conceptand power of classification implicit in clause (1) isexhausted thereby. To say so would not be correct inprinciple. But, at the same time, one thing is clear. It isin very exceptional situations, — and not for all andsundry reasons — that any further reservations, ofwhatever kind, should be provided under clause (1). Insuch cases, the State has to satisfy, if called upon, thatmaking such provision was necessary (in public

[S. RAVINDRA BHAT, J.]

interest) to redress specific situation. The verypresence of clause (4) should act as damper upon thepropensity to create further classes deserving specialtreatment. The reason for saying so is very simple. Ifreservations are made both under clause (4) as well asunder clause (1), the vacancies available for freecompetition as well as reserved categories would be acorrespondingly whittled down and that is not areasonable thing to do.”

107. It is apparent that the court was considering the issue throughthe prism of the provisions as they existed. The court did not – andcorrectly, could not have visualized what may be become necessity,perhaps even compelling one in the future, of the need to bridge theever-widening gap between the affluent and comfortable on the onehand, and the desperately poor, on the other. The need to ensure thatthose suffering the adverse effects of abject poverty – illiteracy, marginalincome, little or no access to basic amenities such as shelter, hygiene,nutrition, or crucially, education (which has transformational value) –are given modicum of access to achieve basic goals which the Preambleassures, and Part IV provisions directs the State to achieve, therefore, isanother dimension which Parliament thought appropriate to achieve, whileintroducing the economic criteria. Therefore, the judgment in IndraSawhney, howsoever authoritative, cannot be considered as the last word,when considering the introduction of the new criteria for affirmativeaction. That judgment is authoritative, for its determination of what ispermissible, and what should be the constitutional method of implementing,backwardness-based affirmative action. However, it cannot beconsidered as exhaustive of new criteria, which may be brought aboutby constitutional amendments (thus, removing the basis of the judgmentitself). Therefore, to say that Indra Sawhney or any other judgmentdoes not permit reservations or affirmative action, based on economiccriteria, alone, is incorrect. That judgment cannot restrain Parliamentfrom introducing constitutional amendments that enact such criteria, asthe basis of reservation benefits, or other special provisions. Further,existing criteria for reservations, cannot be the only way in which thestate is permitted to achieve social and economic justice goals: those

Acriteria must be followed, but cannot preclude the introduction of newcriteria, or new methods, through amendment to the Constitution.

B. State’s obligations under Directive Principles to fulfilmandate of substantive equality

108. perusal of the Directive Principles of State Policy, revealsBthe State’s obligations, as intended by the Constituent Assembly. TheState, through Article 38(1), is obligated to establish social order topromote welfare of people by extending to them justice – social, economicand political. It also has the responsibility of minimising income inequalitiesand the elimination of inequalities in status, facilities and opportunities,Cby virtue of Article 38(2) specifically. Article 39 not only postulates theright to an adequate means of livelihood, and redistribution of materialresources for common good, it further directs the State to ensure thatthere is no concentration of wealth and means of production in hands ofthe few, to the common detriment. Articles 38 and 39 read with Articles41, 42, 43, 45, 46, 47 and 48, holistically, contribute to economic justice.D

109. Social justice implies removing all inequalities and affordingequal opportunities to citizens in social as well as in economic affairs.[74]Directive Principles of State Policy, through Articles 38, 39, 41 and 43,mandate the state to establish an “economically just” social order.The Preambular aims of justice (economic, social and political), andEequality of status and opportunity, find articulation in both Part III andPart IV of the Constitution. Till now, the State pursued the goal of achievingequality of status and opportunity, substantively, by employing someform of protective discrimination, to eliminate past discrimination, whichhad set up barriers to the most marginalised sections of society, therebyFdenying them access to resources and public employment. Thestructuring of enabling provisions [Articles 15(4) and 16(4)] is such thatthe target group were only those who fell within the description of classesthat suffered social and educational backwardness. These included themost disadvantaged among the disadvantaged and oppressed, i.e.,scheduled castes and scheduled tribes. The inclusion of any other peopleGtherefore, could not be contemplated in the context of the Constitution,as well as its text, as it stood.

110. The aim of creating uniform, egalitarian, casteless societyis to be seen as paramount objective. Reservation was deemed as one

74 Gokulesh Sharma, Human rights and Social Justice Fundamental Rights vis-à-visHDirective Principles, Deep and Deep Publication Ltd (1997).

of the principal means of achieving that goal. Such measures haveworked, and their retention underlines that as nation, we have miles togo, before we are anywhere near the promise we have given ontoourselves. In this journey, if it is discerned that alongside these hithertooppressed communities, who were hostilely treated on account of theircaste status, there are alsoa substantial number of people, who have notprogressed due to their economic deprivation; the state is duty bound totake remedial measures to address their plight.

C. Flexibility of constitutional amendments to enablesubstantive equality

111. Constitutions being charters of governance, carry within themdelineation of powers, of various branches of government, and numerousconstituent units, at the same time, guaranteeing liberties, assuring equality.To be vibrant and relevant, they are to be sufficiently flexible to allowexperimentation. This experimentation is vital, to enable the assimilationof felt needs of the society – for change: in view of developments ininterpretation, efficacy of provisions of the charter, unmet or newaspirations, etc. The need to ensure that the fruits of progress reach all,especially the poor, who are marginalized, is an important constitutionalobligation, which finds voice in several provisions of the DirectivePrinciples of State Policy. The existence, or rather, the express recognitionof discrimination which prevented large segments of the population,access to institutions, or participation in public affairs and offices cannot,therefore, imply the preclusion of recognition of any other criteria, forproviding means to other disadvantaged groups, based on other factors.In this case, the factor, or basis chosen, is economic deprivation.

112. In Kihoto Hollohan this court noted that Constitution“outlines only broad and general principles meant to endure andbe capable of flexible application to changing circumstances – adistinction which differentiates statue from Charter under whichall statutes are made.”. This court quoted from Cooley on‘Constitutional Limitations’[75] that an amendment, to the constitution,upon its adoption becomes part thereof; as much so as if it had beenoriginally incorporated in the Constitution and “it is to be construedaccordingly” .

A113. Constitutions are meant to endure; they outline the broadcontours of governance of the society which creates them. Modernconstitutions typically delineate power: legislative, executive and judicialand, depending upon the genius of the individual society, set up systemsof checks and balances to limit the zones of operation of each branch.Where the Constitution governs large territory, comprising of provincialBor constituent units, the delineation of legislative power is also indicated.Furthermore, in every Constitution, limitations on state power, in the formof Bill of Rights (by whatever name called) are engrafted to safeguardindividual liberties and ensure that there is equality in all spheres ofactivity. Constitutions also indicate the manner of their amendment:Cessentially regarding the special procedures needed for the purpose, andin some instances, the limitation upon the amending power, in regard tocertain subjects, which are deemed beyond the pale of that power.

114. The rationale for such amending power is that no matterhow exhaustive constitution is, how deeply its framers have deliberated,Dit may possibly not provide for all situations. There may be need to re-align legislative heads, in the light of subsequent changes dictated bysocial or political consensus, or compromise. Societies are constantly, ina state of flux. In the words of Thomas Jefferson, considered to be theFounding Father of the United States:

E“I am not an advocate for frequent changes in lawsand Constitutions. But laws and institutions must gohand in hand with the progress of the human mind. Asthat becomes more developed, more enlightened, as newdiscoveries are made, new truths discovered andmanners and opinions change, with the change ofFcircumstances, institutions must advance also to keeppace with the times. We might as well require man towear still the coat which fitted him when boy ascivilized society to remain ever under the regimen oftheir barbarous ancestors.”[76]

G115. The opinion of Khanna, J, too recognizes this aspect, inKesavananda Bharati. He said that constitutions provide

“1437. […] for the framework of the different organs ofthe State viz. the executive, the legislature and the

H76 In letter to Samuel Kerceval on July 12, 1816.

judiciary. Constitution also reflects the hopes andaspirations of people. Besides laying down the normsfor the functioning of different organs constitutionencompasses within itself the broad indications as tohow the nation is to march forward in times to come…”

Commenting that it cannot be regarded as “a mere legaldocument” the learned judge further noted that the

“1437. […] Constitution must of necessity be the vehicleof the life of nation. It has also to be borne in mindthat Constitution is not gate but road. Beneath thedrafting of Constitution is the awareness that thingsdo not stand still but move on, that life of progressivenation, as of an individual, is not static and stagnantbut dynamic and dashful. Constitution must thereforecontain ample provision for experiment and trial in thetask of administration…”

116. Such being the case, the concerns which emerge fromchanging time, are usually met within the framework of flexibleconstitutional document. However, occasionally, that document needs tobe re-examined, and if necessary, amended to accommodate thechallenges that are unmet and beyond the contemplation of thatfoundational charter.

117. It is axiomatic that the wisdom of legislation is not withinthe domain of the courts. Speaking of constitutional amendments, Sikri,CJ., in Kesavananda Bharati observed:

“288. It is of course for Parliament to decide whetheran amendment is necessary. The Courts will not beconcerned with the wisdom of the amendment.”

118. Shelat and Grover, JJ. stated the same idea, and added that itis the consequences of the provision, having regard to the width of thepower, which properly falls for judicial consideration:

“532. It is difficult to accede to the submission on behalfof the respondents that while considering theconsequences with reference to the width of anamending power contained in Constitution anyquestion of its abuse is involved. It is not for the courts

374SUPREME COURT REPORTS

Ato enter into the wisdom or policy of particularprovision in Constitution or statute. That is for theConstitution-makers or for the Parliament or thelegislature. But that the real consequences can be takeninto account while judging the width of the power iswell settled. The court cannot ignore the consequencesBto which particular construction can lead whileascertaining the limits of the provisions granting thepower.”[77]

119. Whether the circumstances justified the move, or that somemeasure was better than what was conceived and enacted is not whatCcan be gone into by the courts. This is even more so, in the case ofconstitutional amendments, where the facts which impelled theParliament to draw upon its extraordinary power, constituent power,no less, and amend the Constitution, are not matters of examination ordeep consideration. Therefore, whether there is objective material toDjustify the economic criteria, or the sufficiency of it, are not relevant forthe court to examine, while considering the validity of this constitutionalamendment. Equally Parliament’s motive (or of legislative body), inenacting the legislative measure, or constitutional amendment, is anirrelevant factor. What the court can certainly consider is, the purposewhich the amendment seeks to achieve, which is often discernible fromEthe processes leading up to the passing of such an amendment, thediscussions that arise, etc.

D. Purpose that the amendment seeks to achieve throughintroduction of economic criteria

F120. The above discussion is conclusive on the question ofrelevance of materials to justify constitutional amendments. Nevertheless,since arguments were addressed by the petitioners and Union on this, itwould be appropriate to deal with them. The materials relied on, in theform of the Sinho Commission Report (2010), the Statement of Objectsof the Bill when it was introduced, together with the parliamentary debatesG(brief as they are) before it fructified into the Amendment, are indicativeof what Parliament wished to achieve, through the amendment.

77 In Kihoto Hollohon too, the court adverted to Parliamentary wisdom, which resultsin an amendment, that cannot be questioned in by the court.

121. The respondent-Union relied heavily upon the NITI AayogReport on National Multidimensional Poverty Index (published in 2021).The issue of mapping poverty has consistently engaged the attention ofthe State - earlier, poverty was mapped using the “the poverty line”,which has now given way to the “multi-dimensional” approach. By thislatter methodology, various indicators are considered to look at holisticpicture of deprivation. The NITI Aayog Report considered – as poor, anindividual spending less than ¹ 47 day in cities as against one spendingless than ¹ 32 day in villages. The National Multidimensional PovertyIndex (“NMPI”) based itself on three facets – education, health, andstandard of living – each having weightage of one-third, in the index.Each of these are further based on 12 sections – nutrition, child andadolescent mortality, antenatal care, years of schooling, school attendance,cooking fuel, sanitation, drinking water, electricity, housing, assets, andbank accounts.

122. There were deprived people by each of these criteria thoughsome of them may not have been multidimensionally poor in 2015-16.The highest number of the deprived were identified on the indicators ofcooking fuel (58.5%) and sanitation (52%). In other words, more thanhalf the population were poor on these two facets, in terms of the report.Housing had deprivation proportion of 45.6% of the population during2015-16, followed by nutrition (37.6%), maternal health (22.6%), drinkingwater (14.6 %), assets (14%), years of schooling (13.9%), electricity(12.2%), bank account (9.7%), school attendance (6.4%) and child andadolescent mortality (2.7%).[78]

123. The Sinho Commission was set up to examine the conditionof economically backward classes and suggested measures – includingthe feasibility of reservations – to improve their lot. The Report, published

78 The NMPI assists in estimation of poverty at the level of the states and all the over700 districts across the 12 indicators, capturing multitude of deprivations and indicator-wise contribution to poverty. Thus, in terms of NMPI, 51.91% population of Bihar ispoor, followed by 42.16% in Jharkhand, 37.79% in Uttar Pradesh, with MadhyaPradesh (36.65%) as fourth in the index, and Meghalaya (32.67%) is at fifth place.Kerala, Goa, and Sikkim have the lowest percentage of population who aremultidimensionally poor at 0.71%, 3.76% and 3.82%, respectively. Amongst UnionTerritories (UTs), Dadra and Nagar Haveli (27.36%), Jammu & Kashmir, and Ladakh(12.58%), Daman and Diu (6.82%) and Chandigarh (5.97%), are emerged as the poorestUTs. The proportion of poor in Puducherry at 1.72% is the lowest among the UTs,followed by Lakshadweep at 1.82%, Andaman & Nicobar Islands at 4.30% and Delhiat 4.79%.

Ain July 2010, was based on the census of 2001, and later surveys, whereinthe Commission took note of various factors such as employment,education, nutrition levels, housing, access to resources, etc. The statistics(NSSO 2004-05) which this Report is based on, disclosed that in all, 31.7crore people were below the poverty line (“BPL”), of which thescheduled caste population was 7.74 crores (i.e., 38% of total scheduledBcastes), scheduled tribe population was 4.25 crores (48.4% of totalscheduled tribes), 13.86 crores of OBC population (which was 33.1%of total OBCs), and 5.85 crores of General Category (18.2% of totalgeneral category).

E. Conclusion on permissibility of economic criteria per seC

124. Economic emancipation is facet of economic justice whichthe Preamble, as well as Articles 38 and 46 promise to all Indians. It isintrinsically linked with distributive justice – ensuring fair share of thematerial resources, and share of the progress of society as whole, toeach individual. Without economic emancipation, liberty – indeed equality,D”[79]are mere platitudes, empty promises tied to “ropes of sand. Thebreak from the past – which was rooted on elimination of caste-basedsocial discrimination, in affirmative action – to now include affirmativeaction based on deprivation, through the impugned amendment,therefore, does not alter, destroy or damage the basic structure of theEConstitution. It adds new dimension to the Constitutional project ofuplifting the poorest segments of society.

V. Consideration of Article 16(6)

125. It is important to note that there are crucial supplementaryreasons, why the reservation benefits introduced through Article 16(6)Fare to be examined from another point of view – apart from the point ofexclusion.

126. The issue of providing reservations in public employment,was debated four times, by the Constituent Assembly, (30.11.1948,09.12.1948, 23.08.1949 and 14.10.1949) which considered Draft ArticleG10(3). Several speakers emphasized that reservations in favour ofbackward classes of citizens was necessary to empower them and givevoice to them in the administration of the country. The speech, by H.V.Kamath, on the content of what is now Article 16(4), is illustrative:79 Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150 (1891), quoted in State ofWest Bengal v. Anwar Ali Sarkar 1952 (1) SCR 284 and Nandini Satpathy v. PL DaniH1978 (3) SCR 608.

“This is not more directive principle of state policy;this is in Chapter III, on Fundamental Rights. When thisis guaranteed to them, no backward class of citizensneed be apprehensive. If there is no representation forthem in the services they can take the Government totask on that account. I think this would be an adequatesafeguard for them so far as their share in the servicesis concerned. I hope that this article 10 guarantees thatright to them, and so they need have no dispute orquarrel with the article before the House today.”

127. This aspect, of representation, was highlighted in Indra

Sawhney:

“694. […] the objective behind Clause (4) of Article16 was the sharing of State power. The State powerwhich was almost exclusively onopolized by the uppercastes i.e., few communities, was now sought to bemade broad-based. The backward communities whowere till then kept out of apparatus of power, were soughtto be inducted there into and since that was notpracticable in the normal course, special provisionwas made to effectuate the said objective. In short, theobjective behind Article 16 (4) is empowerment of thedeprived backward communities – to give them sharein the administrative apparatus and in the governanceof the community”

The majority judgment again stated:

“788. […] It is well known fact that till independencethe administrative apparatus was manned almostexclusively by members of the ‘upper’ castes. TheShudras, the Scheduled Castes and the Scheduled Tribesand other similar backward social groups amongMuslims and Christians had practically no entry intothe administrative apparatus. It was this imbalancewhich was sought to be redressed by providing forreservations in favour of such backward classes. In thissense Dr. Rajiv Dhawan may be right when he says thatthe object of Article 16 (4) was “empowerment” of the

backward classes. The idea was to enable them to sharethe state power. We are, accordingly, of the opinion thatthe backwardness contemplated by Article 16 (4) ismainly social backwardness. It would not be correct tosay that the backwardness under Article 16 (4) shouldbe both social and educational…”

128. In M. Nagaraj, too, the idea of reservations under Article16(4) being provided, to enable representation, was underlined:

“55. […] in The General Manager, Southern Railwayand another v. Rangachari Gajendragadkar, J. givingCthe majority judgment said that reservation under Article16 (4) is intended merely to give adequate representationto backward communities. It cannot be used for creatingmonopolies or for unduly or illegitimately disturbingthe legitimate interests of other employees. reasonablebalance must be struck between the claims of backwardDclasses and claims of other employees as well as therequirement of efficiency of administration.”

129. It is clear, from the above discussion, that equality ofopportunity in public employment – specific facet of the equality code– is guarantee to each citizen. The equally forthright prohibition inEArticle 16(2), enjoining discrimination on various grounds, including caste,is to reinforce the absoluteness of equality of opportunity, that it cannotbe denied. The only departure through Article 16(4) is to give voice tohitherto unrepresented classes, discriminated against on the proscribedgrounds. This link - between providing equal opportunity, andFrepresentation through reservations, was the only exception, permittedby the Constitution, to further equality in public employment.

130. The impugned amendment snaps the link between the ideaof providing reservation for backward classes to ensure theirempowerment and representation (who were, before the enactment ofGArticle 16(4), absent from public employment). The entire philosophy ofArticle 16 is to ensure barrier-free equal opportunity in regard to publicemployment. Article 16(4) – as stated previously enables citizensbelonging to backward classes access to public employment with thesuperadded condition that this is to ensure their “adequaterepresentation”. Important decisions of this court: Indra Sawhney,

M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta[80] and BK Pavitra(II) v. Union of India[81] have time and again emphasized that reservationsunder Article 16 are conditioned upon periodic adequate representationreview.

131. The introduction of reservations for economically weakersections of the society is not premised on their lack of representation(unlike backward classes); the absence of this condition implies thatpersons who benefit from the EWS reservations can, and in all probabilitydo belong to classes or castes, which are “forward” and are representedin public service, adequately. This additional reservation, by which asection of the population who are not socially backward, and whosecommunities are represented in public employment – violates the equalityof opportunity which the Preamble assures, and Article 16(1) guarantees.132. The impugned amendment results in treating those coveredby reservations under Article 16(4) with standard that is more exactingand stringent than those covered by Article 16(6). For instance, if thepoorest citizens among certain community or that entire community, isunrepresented, and the quota set apart for the concerned group (SC) asa whole is filled, the requirement of “representation” is deemed fulfilled,i.e., notwithstanding that the specific community has not been representedin public employment, no citizen belonging to it, would be entitled toclaim reservation. However, in the case of non-SC/ST/OBCs, whetherthe individual belongs to community which is represented or not, isentirely irrelevant. This vital dimension of need to be represented, tobe heard in the decision-making process, has been entirely discardedby the impugned amendment in clause (6) of Article 16. Within theamended Article 16, therefore, lie two standards: representation as arelevant factor (for SC, ST and OBC under Article 16(4)), andrepresentation as an irrelevant factor (for Article 16(6)).

133. Therefore, for the reasons already covered in Question 3,and as set out separately above, the introduction of this reservation inpublic employment violates the right to equal opportunity, in addition tothe non-discriminatory facet of equality, both of which are part of theequality code and the basic structure.

80 Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.

81 BK Pavitra (II) v. Union of India, (2019) 16 SCC 129.

DEF

AVI. Re: Question 2: special provisions based on economiccriteria, in relation to admission to private unaided institutions

134. The eleven-judge bench ruling in T.M.A. Pai Foundation v.State of Karnataka[82]has recognized that Article 19(1)(g) of theConstitution embraces the right to establish private educational institutionsBas an avocation. The insertion of Article 21A, and later Article 15(5)added new dimension. These amendments are to be viewed as society’sresolve that all institutions – public and private – have to join in thenational endeavour to promote education at all levels. Education in thiscontext is to be seen as “material resource” of the society, meant tobenefit all its segments.C

135. The Right of Children to Free and Compulsory EducationAct, 2009 by Section 12(a) in fact introduces an all-encompassing quotawhich is inclusive, under the broad rubric of “economically weakersections of the society”.[83] Parliament had this model, and was alsoaware that this Court had upheld it in Society for Unaided PrivateDSchools of Rajasthan and further that Article 15(5) too was upheld inPramati.

136. Unaided private institutions, including those impartingprofessional education, cannot be seen as standing out of the nationalmainstream. As held in the aforementioned judgments, reservations inEprivate institutions is not per se violative of the basic structure. Thus,reservations as concept cannot be ruled out in private institutions whereeducation is imparted. They may not be State or State instrumentalities,yet the value that they add, is part of the national effort to develop skilland disseminate knowledge. These institutions therefore also constituteFmaterial resources of the community in which the State has vital interest,and are not merely bodies set up to further private objective of theirfounders, unlike in case of the shareholders of company. Such institutionsare seen as part of the State’s endeavour to bring educational levels ofthe country up, and foster fraternity, as held in Pramati:

G“37. […] The goals of fraternity, unity and integrity ofthe nation cannot be achieved unless the backward

82 (2002) 8 SCC 481.

83 Section 12. Extent of school’s responsibility for free and compulsory education.— (1)For the purposes of this Act, school: (a) specified in sub-clause (i) of clause (n) ofSection 2 shall provide free and compulsory elementary education to all children admittedHtherein.

classes of citizens and the Scheduled Castes and theScheduled Tribes, who for historical factors, have notadvanced are integrated into the mainstream of thenation…”

137. Further, in Indian Medical Association on reservation ofseats under Article 15(5) in Army College of Medical Sciences (ACMS),the court held:

“74. At this stage we wish to make necessary and aprimordially important observation that has troubled usright throughout this case. The primordial premise ofthe arguments by unaided educational institutions inclaiming an ability to choose students of their ownchoice, in case after case before this Court, was on theground that imposition of reservations by the State wouldimpede their right to choose the most meritorious on thebasis of marks secured in an objective test. It wouldappear that, having unhorsed the right of the State toimpose reservations in favour of deprived segments ofthe population, even though such reservations wouldbe necessary to achieve the constitutionally mandatedgoals of social justice and an egalitarian order, unaidedinstitutions are now seeking to determine their owndelimited “sources” of students to the exclusion ofeverybody else.

75. The fine distinctions made…that an allocation whenmade by the State is reservation, as opposed toallocations made by private educational institutions inselecting source do not relate to the fundamental issuehere: when the State delimits, and excludes some studentswho have secured more marks, to achieve goals ofnational importance, it is sought to be projected ascontrary to constitutional values, and impermissiblyreducing national welfare by allowing those with lessermarks to be selected into professional colleges; and atthe same time, such delimitation by privateeducational institution, is supposedly permissible underour Constitution, and we are not then to ask whathappens to that very same national interest and welfare

in selecting only those students who have secured thehighest marks in common entrance test. We arereminded of the story of the camel that sought to protectitself from the desert cold, and just wanted to poke itshead into the tent. It appears that the camel is now readyto fully enter the tent, in the desert, and kick the originalinhabitant out altogether.

76. In any case we examine these propositions below,as we are unable to convince ourselves that this Courtwould have advocated such an illogical position,particularly given our history of exclusion of people,on various invidious grounds, from portals of educationand knowledge. Surely, inasmuch as this Constitutionhas been brought into force, as constitutive document—of this nation, on the promise of justicesocial,—economic and political, and equalityof status andopportunity, for all citizens so that they could live withdignity and fraternal relations amongst groups of them,it would be surprising that this Court would haveunhorsed the State to exclude anyone even though itwould lead to greater social good, because markssecured in an entrance test were sacrosanct, and yet

-give the right to nonminority private educationalinstitutions to do the same. The knots of legal formalism,and abandonment of the values that the Constitutionseeks to protect, may lead to such result. We cannotbelieve that this Court would have arrived at such aninterpretation of our Constitution, and in fact below wefind that it has not.

(emphasis supplied)

138. No better articulation than the aforementioned is warrantedto hold the EWS reservation equally applicable to unaided privateinstitutions. However, given that my analysis under question 3 on‘exclusion’ holds the Amendment to be violative of the basic structure,the question herein has been rendered moot.

VII. Addressing other related challenges to, andjustifications of the impugned Amendment

A. Possibility of reading down the exclusion

139. An argument made by some of the petitioners, was that theamendment could be sustained, if the phrase “other than” was readdown, in such manner so as to read as “in addition to” or in mannerthat negates the exclusionary element, which offends the basicstructure.

140. The doctrine of reading down, has been employed by thiscourt, in the past, in numerous cases; however, in each instance, it hasbeen clarified that it is to be used sparingly, and in limited circumstances.Additionally, it is clear from the jurisprudence of this court that the act ofreading down provision, must be undertaken only if doing so, can keepthe operation of the statute “within the purpose of the Actandconstitutionally valid”[84]. In Delhi Transport Corporation v. DTCMazdoor Congress[85]Sawant, J recounted the position on this doctrinesuccinctly:

“255. It is thus clear that the doctrine of reading downor of recasting the statute can be applied in limitedsituations. It is essentially used, firstly, for saving astatute from being struck down on account of itsunconstitutionality. It is an extension of the principlethat when two interpretations are possible — onerendering it constitutional and the other making itunconstitutional, the former should be preferred. Theunconstitutionality may spring from either theincompetence of the legislature to enact the statute orfrom its violation of any of the provisions of theConstitution. The second situation which summons itsaid is where the provisions of the statute are vague andambiguous and it is possible to gather the intentions ofthe legislature from the subject of the statute, the contextin which the provision occurs and the purpose for whichit is made. However, when the provision is cast in

84 Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600, para326.

85 1991 Supp (1) SCC 600

definite and unambiguous language and its intention isclear, it is not permissible either to mend or bend it evenif such recasting is in accord with good reason andconscience. In such circumstances, it is not possible forthe court to remake the statute. Its only duty is to strikeit down and leave it to the legislature if it so desires, toamend it….”

141. Therefore, when the intention is clear, and the textunambiguous, the warning against employing this device of reading down,has been consistent. In Minerva Mills, this court was faced with thepossibility of reading down to uphold constitutional amendment, whichwas rejected as follows:

64. […] The device of reading down is not to be resortedto in order to save the susceptibilities of the law-makers,nor indeed to imagine law of one’s liking to have beenpassed. One must at least take the Parliament at its wordwhen, especially, it undertakes constitutionalamendment…

65. […] If the Parliament has manifested clearEintention to exercise an unlimited power, it isimpermissible to read down the amplitude of that powerso as to make it limited. The principle of reading downcannot be invoked or applied in opposition to the clearintention of the legislature. We suppose that in thehistory of the constitutional law, no constitutionalFamendment has ever been read down to mean the exactopposite of what it says and intends…”

142. The intention of Parliament while exercising constituentpower occupies much higher threshold or operates in higher plane,when compared to legislative intent of ordinary law, the latter being subjectto different grounds of judicial scrutiny. Therefore, attractive as it maybe – it is my considered opinion that the plea to read down the exclusion,is untenable because the intention of the Parliament in exercise of itsconstituent power is clear and unambiguous.

B. Absence of ‘guardrails’ to deny economic criteria per se

143. The petitioners submitted that the Constitution has enacted“guardrails” to control reservations based on social and educationalbackwardness in the form of (1) mandating institutions; (2) taskinginstitutions with evolving principles for identification of backward classes,SC/STs; and (3) periodically reviewing lists of SC/STs and OBCs. Thesearguments-of lack of “guardrails” to counter economic criteria, per se,are in my opinion, insubstantial. As elaborated in Part V, I have acceptedthe contention that the guardrail of ‘adequate representation’ in Article16, prohibits introduction of reservation based on economic criteria forthe purpose of public employment. The other arguments on absence ofguardrails, are dealt with presently.

144. The explanation to Article 15(6) enlists the broadest criteriaof what constitutes “economically weaker sections” (“shall be such asmay be notified by the State from time to time on the basis of familyincome and other indicators of economic disadvantages”), uponwhich legislation and executive policy can be built (and subject tosubsequent challenge or scrutiny, if such situation arises). The indicatorsof economic deprivation, enacted through the explanation are income, orsuch other criteria, including other traits which may be relevant. For thepurpose of evolving economic criteria as separate or new basis foraffirmative action, the indication of the broadest guideline of income,and other relevant criteria, are sufficient. The extent of income, relativeto income earning capacity, having regard to the state in question, orareas in states, or extent of assets, are matters of detail which can befactored into the policies of the state or the Union, having regard to thefelt necessities of the time, or circumstances.

145. As far as the existence of institutional guarantees in the formof commissions or bodies, such as National Scheduled Caste andScheduled Tribe Commissions, Backward Class Commissions, etc., whichspecific provisions (i.e., Articles 338, 338A, 338B, 340) of the Constitutionprovide for are concerned, it is for the Union, or the states as the casemay be, to create these permanent bodies through appropriate legislation.In fact, the judgement of this court in Indra Sawhney had suggestedthe creation of permanent body to determine OBCs which led to thesetting up of the National Backward Class commission through separateParliamentary enactment. Therefore, the absence of any such provisionenabling the setting up of permanent institution per se cannot lead this

Acourt to conclude that the basic structure or essential features of theConstitution are violated.

C. Basic structure doctrine as discernible concept

146. Having perused the other opinions authored by members ofthis bench, I am compelled to record my disagreement, and caution,Brelating to certain observations on the basic structure doctrine. In themyriad challenges based on basic structure, the ones that succeeded,have been based on violation of constitutional principles, such as judicialreview (Indira Gandhi, Minerva Mills, L. Chandra Kumar and P.Sambamurty) independence of the judiciary (SCAORA case); rule ofClaw, democracy and separation of powers (Indira Gandhi). To say thatthis court thwarted policies, or more seriously, that it dictated policy, isparlous, and tends to undermine the foundations of judicial functioning.[86]In each instance when the court intervened and held an amendment tobe violative of the basic structure, the rule of law triumphed. For instance,in Kesavananda Bharati itself, the court only held unconstitutional theDpart of provision that upheld declaration in law (whether made byParliament or the State) which stated that its objectives were to promoteArticles 38 and 39, thus excluding judicial scrutiny to discern whetherthe law actually promoted any value of those directive principles. Suchwide and untrammelled power, to override Articles 14 and 19, were notEleft unchecked. On the other hand, the court upheld, in RaghunathraoGanpatrao, deletion of two provisions, which an eleven judge benchhad previously held to be “integral” to the formation of the nation, andthe Constitution.

147. Furthermore, the basic structure is not as fluid as is made outFto be; the contours of what it constitutes have emerged, broadly speaking,through various decisions. Can the value of democracy, be so nebulous,“amorphous” or transient, that it can be undermined by succeedinggenerations, as is suggested? Can the rule of law become rule by law,which is the essence of autocracy and authoritarianism? Can the Orwellianconcept of an oligarchic equality be ever conceived as the essentialGprinciple of equality? Can liberty be subjected to indefinite incarcerationwithout trial or charges and yet remain of the same content, as to meanwhat it means under Articles 21 and the Preamble? The answer has tobe resounding negative in each of the cases. The basic structure may

86 J.B. Pardiwala, J cites with approval certain academic material in paragraph 124 ofHhis draft opinion.

not be defined concept; it is however not indecipherable. The valueswhich the court set out to guard, by the framing of that doctrine, areeternal to every democracy, every free society: liberty, equality, fraternity,social and economic justice.

148. The members of this bench, constituting the majority, haverelied on the test of validity of constitutional amendment evolved inBhim Singhji. I find it pertinent to highlight that in this decision the onlyreference to the said test was by Krishna Iyer J.[87] who himself did notindicate how Section 27 of the impugned Act (which was inserted as anenactment in the IX[th] Schedule), amounted to “shockinglyunconscionable or unscrupulous travesty of quintessence of equaljustice”. Similarly, the common judgment of Chandrachud J., andBhagwati J., also was silent on this aspect. Tulzapurkar J., judgmentinvalidated not only Section 27 but several other provisions of the Actalso. In these circumstances, the observations of Krishna Iyer J., as tobe the high threshold of violation of Article 14 in the context of insertionsof an enactment in the Ninth Schedule i.e. “shocking, unconscionableor unscrupulous travesty of the quintessence of equal justice”, haslimited application.149. It is noteworthy that this judgment was taken into account bythe unanimous decision of nine-judge bench in I.R. Coelho where theappropriate test to determine whether insertion of an enactment into theNinth Schedule, was finally settled. The court not only took note ofKesavananda Bharati, Minerva Mills and Bhim Singhji but alsoWaman Rao and held that the appropriate test would be the “impact” onthe right and also whether the “identity of the constitution” is changedby way of the amendment or the enactment which is inserted through anamendment. That aspect has been discussed in an earlier portion of thisjudgment. I.R. Coelho is also an authority that Article 14 and 15 principlesunderlying them are integral parts of the basic structure of theConstitution. In these circumstances, the test indicated by Krishna Iyer,J. has been altered, to different one, by I.R. Coelho.

D. Whether an enabling provision can violate the basicstructure

150. The Union and other respondents had submitted that thenewly introduced provisions, through the impugned amendment, are

87 Bhim Singhji, paragraph 20.

Amerely enabling, and confer power upon the state, to make specialprovisions and reservations, based on the economic criterion – thus, cannotviolate the basic structure. This view has also been accepted in theopinion authored by Justice J.B. Pardiwala. I am of the considered opinionthat the argument that the provisions are enabling and therefore, do notviolate the basic structure (of the Constitution) is not substantial.B

151. Previous decisions of this court have invalidated ConstitutionalAmendments, even when containing merely enabling provisions. In L.Chandra Kumar, the provisions in question were, inter alia, Articles323A (2) (d) and 323B (3) (d), which read as follows:

“Article 323A (1) Parliament may, by law, provide forthe adjudication or trial by administrative tribunals ofdisputes and complaints with respect to recruitment andconditions of service of persons appointed to publicservices and posts in connection with the affairs of theUnion or of any State or of any local or other authoritywithin the territory of India or under the control of theGovernment of India or of any corporation owned orcontrolled by the Government.

-(147) law made under clause (1) may

(d) exclude the jurisdiction of all courts, except thejurisdiction of the Supreme Court under article 136,with respect to the disputes or complaints referred to inclause (1);*******************************

Article 323B (1) The appropriate Legislature may, bylaw, provide for the adjudication or trial by tribunalsof any disputes, complaints, or offences with respect toall or any of the matters specified in clause (2) withrespect to which such Legislature has power to makelaws.

(2) The matters referred to in clause (1) are thefollowing, namely:-

-(3) law made under clause (1) may

(a) provide for the establishment of hierarchy oftribunals;

(b) specify the jurisdiction, powers (including the powerto punish for contempt) and authority which may beexercised by each of the said tribunals;

I provide for the procedure (including provisions as tolimitation and rules of evidence) to be followed by thesaid tribunals;

(d) exclude the jurisdiction of all courts, except thejurisdiction of the Supreme Court under article 136,with respect to all or any of the matters falling withinthe jurisdiction of the said tribunals…”

*******************************

152. The court did not merely hold that the legal provisions, whichenabled exclusion of jurisdiction of courts, violated any provision of theconstitution. It proceeded to hold that the provision which enabled theenactment of law, that excluded jurisdiction of courts, moreparticularly the High Courts, and thus, shut out judicial review, violatedand destroyed the basic structure of the Constitution.

153. By the Constitution (Thirty Second Amendment) Act, 1973,Article 371D was introduced, which inter alia, enabled the President toset up Administrative Tribunals, in relation to areas in Andhra Pradesh.Article 371D(5) was the subject matter of challenge before this court inP. Sambamurthy. Article 371D(3) and (5) read as follow:

“The President may, by order, provide for theConstitution of an Administrative Tribunal for the Stateof Andhra Pradesh to exercise such jurisdiction, powersand authority including any jurisdiction, power andauthority which immediately before the commencementof the Constitution (Thirty-Second Amendment) Act,1973, was exercisable by any Court (other than theSupreme Court) or by any Tribunal or other authorityas may be specified in the order with respect to thefollowing matters, namely:-

(5) The order of the Administrative Tribunal finally dis-posing of any case shall become effective upon itsconfirmation by the State Government or on the expiryof three months from the date on which the order is made.whichever is earlier;

Provided that the State Government may. by special ordermade in writing for reasons to be specified therein,modify or annul any order of the Administrative Tribunalbefore it becomes effective and in such case, the orderof the Administrative Tribunal shall have effect only insuch modified form or be of no effect, as the case may“e.”

154. This court held that the power under Article 371D(5), perse, and not merely the exercise of it, was shockingly subversive of therule of law:

“4. […] this power of modifying or annulling an orderof the Administrative Tribunal conferred on the StateGovernment under the proviso to Clause (5) is violativeof the rule of law which is clearly basic and essentialfeature of the Constitution. It is basic principle of therule of law that the exercise of power by the executiveor any other authority must not only be conditioned bythe Constitution but must also be in accordance withlaw and the power of judicial review is conferred bythe Constitution with view to ensuring that the law isobserved and there is compliance with the requirementof law on the part of the executive and other authorities.It is through the power of judicial review conferred onan independent institutional authority such as the HighCourt that the rule of law is maintained and every organof the State is kept within the limits of the law. Now ifthe exercise of the power of judicial review can be setat naught by the State Government by over-tiding thedecision given against it, it would sound the death/knellof the rule of law. The rule of law would cease to have

any meaning, because then it would be open to the StateGovernment to defy the law and yet get away with it...”

155. Likewise, in R.C. Poudyal, the controversy was with respectto reservations made in favour of religious sect, i.e., the BuddhistSangha. The provision which enabled this reservation, was in Article371F (f) which inter alia, reads as follows:

“371F. Special provisions with respect to the State ofSikkim

Notwithstanding anything in this Constitution,

(a) the Legislative Assembly of the State of Sikkim shallconsist of not less than thirty members;

(f) Parliament may, for the purpose of protecting therights and interests of the different sections of thepopulation of Sikkim make provision for the number ofseats in the Legislative Assembly of the State of Sikkimwhich may be filled by candidates belonging to suchsections and for the delimitation of the assemblyconstituencies from which candidates belonging to suchsections alone may stand for election to the LegislativeAssembly of the State of Sikkim;…”

156. The majority opinion upheld the amendment, and theprovision- not because it was an enabling provision, but that it dealt withinclusion of new territory, and ensured historical continuity, of state,with its past traditions, and was part of the compact through which itentered the Union. At the same time, the majority opinion, tellingly statedthat

“129. It is true that the reservation of seats of the kindand the extent brought about by the impugned provisionsmay not, if applied to the existing States of the Union,pass the Constitutional muster. But in relation to newterritory admitted to the Union, the terms and conditionsare not such as to fall outside the permissibleconstitutional limits. Historical considerations and

CDE

Acompulsions do justify in equality and special.Treatment...”

Chief Justice L.M. Sharma, who wrote dissenting opinion, heldthat the provision which enabled reservation on the basis of religion, wasviolative of the basic structure of the constitution.[88]

157. It is therefore, inaccurate to say that provisions that enable,exercise of power, would not violate the basic structure of the Constitution.The enabling provision in question’s basic premise, its potential to overbearthe constitutional ethos, or overcome particular value, would be inissue. The court’s inquiry therefore, cannot stop at the threshold, whenCan enabling provision is enacted. Its potential for violating the basicstructure of the Constitution is precisely the power it confers, on thelegislature, or the executive. To borrow powerful simile from dissentingopinion in decision of the United States Supreme Court, that upheldbroad use of emergency power, to incarcerate thousands of US citizens,such enabling powers, if left alone, can “lie(s) about like loadedDweapon”[89]with its potential to destroy core constitutional values.

158. In S.R. Bommai, although the validity of Constitutionalamendment was not in issue, the nine-judge Bench made certain crucialobservations, with respect to use of power, under Article 356 of theConstitution. The court stated that

“96. […] The Constitution is essentially politicaldocument and provisions such as Article 356 have apotentiality to unsettle and subvert the entireconstitutional scheme. The exercise of powers vestedunder such provisions needs, therefore, to beFcircumscribed to maintain the fundamental constitutionalbalance lest the Constitution is defaced and destroyed.This can be achieved even without bending much lessbreaking the normal rules of interpretation, if theinterpretation is alive to the other equally importantGprovisions of the Constitution and its bearing on them.Democracy and federalism are the essential features ofour Constitution and are part of its basic structure. Any

88 Paragraph 50 and 54 (SCC).

89 Korematsu v. United States, 323 U.S. 214 (1944).

interpretation that we may place on Article 356 must,therefore help to preserve and not subvert theirfabric…”

159. Therefore, the fact that impugned amendments haveintroduced provisions which are merely enabling, does not protect itfrom basic structure scrutiny. To view newly added provision as only“enabling” can be an oversimplification in constitutional parlance. Thecourt’s concern is not with the conferment of power per se, but with thewidth of it, lack of constitutional control, and the direct impact it canhave on principles constituting the basic structure.

E. Parallel with exclusion of creamy layer

160. Another assumption that the exclusion of the creamy layercan somehow be equated to, the exclusion that the impugned amendmentperpetrates, necessitates correction. As discussed previously, theConstituent Assembly debates plainly show that Article 16(4) was includedwith the intention of permitting representation and diversity. The otherparameter was that without such provision, the rule of equality ofopportunity [mandated by Article 16(1)] would not admit of positivediscrimination. Therefore, the idea of positive or compensatorydiscrimination was intrinsic to the idea of equal opportunity – factrecognised and acknowledged as late as in M. Nagaraj. The idea thatArticle 16(4) really is meant to ensure representation is also borne outtextually, since the State is enjoined to ensure that “adequaterepresentation” is given to members of the backward classes. Thesesections of society were hitherto barred access to public offices anddenied opportunity to representation in public affairs. If one keeps this inmind, the matrix operating for reservation under Article 16(4) is onepermitting diversity, representation, and eliminating discrimination.

161. The idea of introducing creamy layer, gained momentum forthe first time in K.C. Vasant Kumar v. State of Karnataka[90]and wasrecognised as compulsion which the State had to adopt in carrying outthe exercise of identifying socially and educational backward classes.The rationale for identification and consequent exclusion of creamy layeramongst the backward class is that there exists segment or sectionamong the backward classes who have gained reservations and haveadvanced socially and educationally. The criteria adopted by the States

DEF

Ahas been the level of advancement – reflected in the economic andsocial status of such segments of society. Thus, if in the application ofsuch criteria, it is found that amongst the OBCs, sections have movedforward and gained affluence, they are to be treated as advanced sectionsof society. In other words, moving out of the grouping as backwardclasses are deemed to be “forward”. Constitutionally speaking, IndraBSawhney is an authority on this issue, i.e., that identification of creamylayer among the OBCs is as such duty of the State to ensure thatmeaningful opportunities are given to the really backward. The corollaryis therefore, the caste status of those who form part of creamy layerbecomes irrelevant; and hence, they are not entitled to reservation underC15(4) or 16(4). Keeping all this in mind, the fact that some amongst theOBCs (creamy layer) do not enjoy the benefit of reservation (under15(4) and 16(4)) does not lend justification for excluding those who areentitled to reservations under 15(4) and 16(4), due to their caste or social/educational backwardness, for benefit under Articles 15(6) – which is areservation based on different criterion, despite them being equally, orDeven more deprived than those who belong to the forward caste.

F. Other justifications for the classification

162. I am unable to agree with the characterisation of theclassification in the impugned amendment as accepted by DineshEMaheshwari, Bela Trivedi, and J.B. Pardiwala, JJ), for reasons set outin Part III (D). I shall in this section, respond to specific conclusionsarrived at by the judges that constitute the majority.

(i) Reasonable classification to prevent double benefits

163. The allusion to over-classification and under classification,Fas the bases for exclusion in the context of the doctrine of classificationgoverning Article 14, cannot be denied as matter of law. However, tosay that the non-inclusion of SC/ST and OBC communities - though thelargest segments of the poor are from amongst them, is mere reasonableunder- inclusion, cannot be accepted - especially in the context of aGconstitutional amendment. Reliance has been placed on State of Gujaratv. Shri Ambika Mills[91]and S. Seshachalam & Ors. v. Chairman BarCouncil of TN[92]. In Ambica Mills, the court upheld the legislative

91 State of Gujarat v. Shri Ambika Mills (1974) 4 SCC 656 (hereinafter, “AmbikaMills”).92 S. Seshachalam & Ors. v. Chairman Bar Council of TN (2014) 16 SCC 72 (hereinafter,H“Seshachalam”).

measure, which excluded establishment or persons, on the ground thatthe state’s policies to cover establishments, having regard to the objects,was not defeated, and the classification, not fatal, because it left outsome classes of establishments having regard to their size. InSeshachalam, the exclusion from payment of lump sum amount, underan Advocate’s welfare scheme, of lawyers receiving pension from theirerstwhile employers, was held to not offend Article 14. Each of thesecases are not apt instances, for the purposes of this case. The use of theterm “double benefit” is discernible in the latter case. If one considersthat if pension was being introduced for professionals for the first time,who had no other means of livelihood, when they gave up their avocation,the exclusion of those who had their full run of employment, enjoyedpension from their erstwhile employer, and then joined the legalprofession, was justifiable, given that the State was assuming burdenfor the first time, and keeping apart resources for that purpose. Thisclassification was justified also on the basis of the principle in R.K. Gargv. Union of India[93], that in matters concerning economic policy, thestate has wider latitude.

164. It is worth recollecting that Mathew, J. in Ambica Millscautioned that one has to look beyond the classification. Else, the mindboggles at the classification, resulting in its justification. As recognisedin some of the earliest decisions, the rule of classification is not the rightto equality (just as the rights are fundamental, not the restrictions). Iwish to highlight at this juncture, what was said in Roop Chand Adlakhav. Delhi Development Authority[94] - “To overdo classification is toundo equality.”

(ii) Scope of Article 46

165.In my considered opinion, it would be wrong tocharacterize that the classification made for upliftment of SC/STs forwhom special mention is made, is “classification” for the purpose ofupliftment of economically weaker sections, under Article 46, whichpermits later classification that excludes them.If anything, the intentof Article 46 is to ensure upliftment of all poor sections: the mention ofSC/STs is to remind the state that especially those classes should not beleft out.But ironically, that is exactly the result achieved by their exclusion.

93 (1981) 4 SCC 675

94 1989 Supp (1) SCC 116

166. There can be no debate that Article 46 is an injunction to theState to take all steps to ameliorate the lot of economically weaker sectionsof the society. That this injunction was not confined to only SCs/STs hasbeen widely accepted. In Indra Sawhney this aspect was recognizedand elaborated, by PB Sawant, J. who stated that economic backwardnessmay not be the result of social backwardness:

“481. […] The concept of “weaker sections” in Article46 has no such limitation. In the first instance, theindividuals belonging to the weaker sections may notfrom class and they may be weaker as individualsonly. Secondly, their weakness may not be the result ofpast social and educational backwardness ordiscrimination. Thirdly, even if they belong to anidentifiable class but that class is represented in theservices of the State adequately, as individuals formingweaker section, they may be entitled to the benefits ofthe measures taken under Article 46, but not to thereservations under Article 16(4). Thus, not only theconcept of “weaker sections” under Article 46 isdifferent from that of the “backward class” of citizensin Article 16(4), but the purpose of the two is alsodifferent. One is for the limited purpose of thereservation and hence suffers from limitations, while theother is for all purposes under Article 46, whichpurposes are other than reservation under Article 16(4).While those entitled to benefits under Article 16(4) mayalso be entitled to avail of the measures taken underArticle 46, the converse is not true. If this is borne inmind, the reasons why mere poverty or economicconsideration cannot be criterion for identifyingbackward classes of citizens under Article 16(4) wouldbe more clear. To the consideration of that aspect wemay now turn.

576. Economic backwardness is the bane of the majorityof the people in this country. There are poor sections inall the castes and communities. Poverty runs across allbarriers. The nature and degree of economic

backwardness and its causes and effects, however, varyfrom section to section of the populace. Even the pooramong the higher castes are socially as superior to thelower castes as the rich among the higher castes. Theireconomic backwardness is not on account of socialbackwardness. The educational backwardness of someindividuals among them may be on account of theirpoverty in which case economic props alone may enablethem to gain an equal capacity to compete with others.On the other hand, those who are socially backwardsuch as the lower castes or occupational groups, arealso educationally backward on account of their socialbackwardness, their economic backwardness being theconsequence of both their social and educationalbackwardness. Their educational backwardness is noton account of their economic backwardness alone. It ismainly on account of their social backwardness. Hencemere economic aid will not enable them to compete withothers and particularly with those who are sociallyadvanced. Their social backwardness is the cause andnot the consequence either of their economic oreducational backwardness. It is necessary to bear thisvital distinction in mind to understand the true importof the expression “backward class of citizens” in Article16(4).”

167. Therefore, that Article 46 covers wider canvass, and includespeople who are poor, and whose poverty is not the result of socialbackwardness, has been recognized always. To now say that the mentionof SC/STs in Article 46, and provision of reservations for them, is sufficientto distinguish them as separate class, within Article 46, ignoring therationale for continued reservations in their favour, (i.e., due to socialexclusion) is to ignore important legal realities:

(a) That Article 46 comprehends all economically weaker sectionsof people, including SC/STs and OBC;

(b) The mention of SC/STs in Article 46 is reminder to the statenever to ignore them from the reckoning whenever measure towardseconomic emancipation under Article 46 is introduced by the State.

A(c) Article 46 existed from the beginning, and has been resortedto for providing all manner of measures to assist the poorest segmentsof society, irrespective of whether they are SCs/STs OBCs, such asscholarships, freeships, amenities, and concessions.

(iii) EWS as ‘compensatory’ measureB

168. The characterisation of reservations for economically weakersections of the population (EWS) as compensatory and on par with theexisting reservations under Articles 15(4) and 16(4), in my respectfulopinion, is without basis. The endeavour of the Constitution makers wasto ensure that past discriminatory practices which had, so to say, eatenCthe vitals of the Indian society and distorted it to such an extent thatwhen the republic was created, an equal society was merely an illusion,which compelled them to enact special provisions such as Article 16(4)– and later Article 15(4), to ensure equality. It was not compensatorybut also reparatory. They continue to compensate, definitionally and inreality, because even as on date, the acknowledged position is thatDreservations are necessary for SCs/STs and OBCs who are not part ofthe creamy layer. On the other hand, the EWS category, was consciouslynot made beneficiaries of reservations at the time of the framing of theConstitution, because perhaps the framers felt that the enacted provisions(including the soon to be added Articles 31A and 31B) and the slew ofEeconomic reforms which were enacted were sufficient to removeeconomic disparities. That hope however, did not materialise. Economicdisparities (unconnected with social and educational backwardness)continued – and perhaps were even exacerbated to such an extent thatas of now almost 25% of the population continue to live in abject poverty.Indra Sawhney acknowledged that measures taken for their purposeFwould only result in “poverty alleviation”.

169. Therefore, to conclude that reservations for EWS based uponthe economic criteria is on par with reservations which the Constitutionmandated, and envisioned as pledge to create an equal society, isconstitutionally unsound. The amendment which introduces newGreservations does not “compensate”: unlike the protective andcompensatory reservations for socially and educationally backwardclasses (and SC/STs) who were discriminated systemically and whoneeded the “push” which is sought to be addressed by reservations, theeconomically weaker sections who are conceived to be the targets (i.e.,Hforward classes) were never consciously discriminated against. Nor is it

anyone’s case, that they faced social and other barriers which made itimpossible for them to advance.

170. I am also of the opinion that the observations made in IndraSawhney - especially in paragraph 743 (SCC Reports) with respect toother kinds of reservations, has to be read in the context of the observationsin N.M.Thomas and by the majority of judges in Indra Sawhney itself,which is that Article 16(1) permits classification and that the category ofreservations in accord with the than existing provisions of the Constitution,favouring backward classes were stood exhausted by reason of Article16(4). Illustratively therefore, the reservations in favour of sections(such as persons with disabilities, transgenders etc.) would be coveredby the affirmative content of Article 16(1). It is in that sense that theobservations made in Indra Sawhney have to be understood rather thanthe court foreseeing an amendment to the Constitution which permittedan entirely new section of the persons not based on social grouping, buton an economic criterion as target or recipients of reservations.Therefore, these two categories of reservations cannot be compared.171. I cannot persuade myself to be sanguine about the fact thatthe poorest of the poor do not comprise large sections of the backwardclasses and even larger segments of the SCs/STs. The SinhoCommission Report itself is testimony to this fact, that amongst theentire population of STs, 48% are the poorest; amongst the entirepopulation of Scheduled Castes 38% are the poorest and amongst theOBC’s no less than 33% are the poorest.

172. The fact that different forms of discrimination and evenuntouchability still persists in society, impelled parliament as late as 2015to amend the Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act 1989, by Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Amendment Act 2015. The statement of Objectand Reasons to the amendment, inter alia reads as follows:

“2. Despite the deterrent provisions made in the Act,atrocities against the members of the Scheduled Castesand Scheduled Tribes continue at disturbing level.Adequate justice also remains difficult for majorityof the victims and the witnesses, as they face hurdlesvirtually at every stage of the legal process. Theimplementation of the Act suffers due to (a) procedural

hurdles such as non registration of cases; (b)procedural delays in investigation, arrests and filing ofcharge-sheets; and (c) delays in trial and low convictionrate.

3. It is also observed that certain forms of atrocities,Bknown to be occurring in recent years, are not coveredby the Act. Several offences under the Indian PenalCode, other than those already covered under section3(2) (v) of the Act, are also committed frequently againstthe members of the Scheduled Castes and the ScheduledTribes on the ground that the victim was member of aCScheduled Caste and Scheduled Tribe. It is also felt thatthe public accountability provisions under the Act needto be outlined in greater detail and strengthened.”

173. The amendment enlarged and added the definition of certainterms, and extended to discrimination on the grounds of economic boycott,Dsocial boycott and even changed the provision dealing with presumptionas to the offence making it more stringent.

174. It is also worth noting that according to the National CrimeRecord Bureau Report titled – “Crime in India 2021”[95]:

Ea) The total population of Scheduled Castes in entire country(according to 2011 census) – 2013.8 lakhs, i.e., 20.13 crores.

b) Total crimes against Scheduled Castes in 2019 was 45961 and2020 it was 50291 and in 2021, 50900. Of this about 20% constitutedcrimes against Scheduled Caste and Scheduled Tribes (Prevention ofFAtrocities) Act, 1989.

c) As per same report, the total population of Scheduled Tribes inthe entire country (based on 2011 census report) is 1042.8 lakhs, i.e.,10.42 crores.

d) The total crime reported and registered against ScheduledGTribes in 2019 was 7570; increased to 8272 in 2020, and 8802 in 2021.

e) Bulk of the crimes reported against Scheduled Tribes wereoffences under Indian Penal Code, with much smaller proportion ofoffences under the Scheduled Caste and Scheduled Tribes (Preventionof Atrocities) Act, 1989.H95 Source: https://ncrb.gov.in/en/node/3721

This data is demonstrative, that crime against those marginalizedand stigmatized by caste, continue till this date. These legal developmentsand statistics belie the perception that such classes which can benefitfrom compensatory discrimination can be rightfully excluded from thebenefit of reservations for the poor. That view, in my opinion isindefensible, and ignores stark realities.

175. If such explanations for the differentiations, or exclusionsare to be accepted, then this court will be paving the way for futurediscriminations, through constitutional amendments, based onconstitutionally proscribed grounds. Even through the presentamendments, especially Article 15(6)(a), it is possible to createcorporations, and policies (not merely reservations) which can result inbenefits to specific target groups and communities in forward castes,which may far exceed the allocations for those covered by Articles 15(4)and 16(4). When challenged, excessive budgetary allocations cansuccessfully be justified on the ground of classification, i.e. that thosewho receive reservation and benefits under Articles 15(4) and 16(4) aredifferent. Likewise preferential treatment, of communities, based ondescent may well be sanctioned through later constitutional amendments,that may also be justified as different basis, class apart from others.These possibilities cannot be ruled out, because what begins as seeminglyinnocuous alteration, may result in the “emasculation” and ultimateannihilation of the grand principle of equality.

G. The breach of the 50% cap – note of caution

176. In view of my conclusions as recorded in this opinion – thatthe impugned amendment is violative of the basic structure of theConstitution, I find that there is no need for specific finding on the 50%cap, or its breach of the basic structure; however I deem it necessary tosound note of caution, on the consequence of upholding the reservation,thereby, breaching the 50% limit.

177. It is pertinent to note that the breach of the 50% limit is theprincipal ground of attack, of the 76[th] Constitutional Amendment 1994which inserted as Entry 257A – the Tamil Nadu Backward Classes,Scheduled Castes and Scheduled Tribes (Reservation of Seats inEducational Institutions and of Appointments or Posts in the Servicesunder the State) Act, 1993 in the IX[th] Schedule. The validity of thatenactment - and whether the inclusion by the constitutional amendment,

Aviolates basic structure, is directly in issue in batch of cases pendingbefore this court. The view of the members of this bench constitutingthe majority - that creation of another class which can be recipient ofup to 10% of the reservation, over and above 50%, which is permittedunder Articles 15(4) or 16(4), in my considered opinion, therefore, has adirect bearing on the likely outcome in the challenge in that proceeding.BI would therefore sound this cautionary note since this judgment maywell seal the fate of the pending litigation - without the benefit of hearingin those proceedings.

178. The last reason why I find myself unpersuaded to agree withthe opinion that the impugned amendments by creating different kindCof criteria, have to be viewed separately and that Indra Sawhney wasconfined to reservations in Articles 15(4) and 16 (4) is because permittingthe breach of the 50% rule as it were through this reasoning, becomes agateway for further infractions whereby which in fact would result incompartmentalization; the rule of reservation could dealt well becomeDrule of equality or the right to equality, could then easily be reduced toright to reservation - leading us back to the days of ChampakamDorairajan. In this regard, the observations of Ambedkar have to bekept in mind that the reservations are to be seen temporary and”[96]exceptional or else they would “eat up the rule of equality.

E179. In view of the above discussion, and given my conclusion onthe validity of the impugned amendment, I would respectfully prefer tokeep the question of violation of 50% rule open.

VIII. Conclusion

180. In the light of the above discussion, it is held that the principlesFof non-discrimination, non-exclusion and equality of opportunity to all ismanifested in the Constitution through the equality code, which is part ofits basic structure. Their link with fraternity, which the Preamble assuresis intrinsic to “dignity of the individual and unity and integrity of thenation”, is inseparable. The framers of our constitution recognised thatGthere can be no justice without equality of status, and that bereft offraternity, even equality would be an illusion as existing divisions and“narrow domestic walls”[97] would fragment society.

96 Constituent Assembly Debates, Vol. 7, 30th November 1948, 7.63.205.97 Rabindranath Tagore, ‘Where the Mind is Without Fear’, Gitanjali (1910).H

A. The principles of non-discrimination and fraternity in theconstitutional ethos

181. The fraternal principle is deeply embedded to this nation’sethos and culture. The specific provisions which form part of the EqualityCode, are inextricably intertwined with fraternity as well. It is fraternity– and no other idea, which acknowledges that ultimately, all individualsare human beings, born through the same natural process, subjected tothe same physical limitations, and finally leave this world at an unknowntime, but are sure to leave. Fraternity as concept awakens humans tothe reality that despite our apparent or superficial differences – ethnic,religion, caste, gender, origin or economic status – the institutions wecreate need our collective cooperation and individual commitment. Everysocial order invariably contains individuals with differences – be itgrounded in ethnicity, wealth, talent, or realisation of one’s abilities; thediversities abound. The idea of fraternity is to awaken the consciousnessof each member of society that the human institutions which they create,the ideas they seek to develop, and the progress they wish to achieve,cannot be in isolation – by separation – but with cooperation and harmony.

182. Ours is nation of multi-dimensional diversity. TheConstitution forges unity, and instructs people of this country about itssocial goals, and the means to achieve it. By it, We the People, ”solemnlyresolve to … secure to all its citizens … Justice, Liberty and Equality,and to promote … Fraternity”. It reinforces national unity re-emphasising the idea of oneness as people of India, first and foremost,regardless of our regional, linguistic, religious, ethnic, economic, etc.,diversities. In this context, fraternity is brotherhood. It focuses on concernfor others, and respect for and acceptance of differences of caste, gender,ethnicity, economic status, religion, etc. People cannot be assured ofJustice, Liberty or Equality, unless Fraternity in one form or another, tosome degree, is felt by individuals at each level of our social order, andeconomic system.

183. It is essential that for the unity of this great nation, that we allrecognize that fraternity is the integrator, and unifier, which needs activepropagation and practise, in tune with our preambular resolve to preserveour Republic. Therefore, divisiveness of any form: in the polity, socialhierarchy, religion, origin, or regional destroys fraternity and underminesunity. Divisiveness tends to polarize people and is likely to foster distrust.Weakening fraternity therefore undermines justice, liberty, and equality.

A184. On this, I want to highlight the words of two social reformers,which demonstrate that the principle of fraternity and the ideas and valuesconnected to it, are not new, but in fact, transcend time. SwamiVivekananda’s message, in his address at the World Parliament ofReligions, in Chicago, on 11[th] September, 1893 had the theme ofuniversal brotherhood of all, and that differences in religion, the exclusionBof one of another, would fade. He evocatively said that:

“If anybody dreams of the exclusive survival of his ownreligion and the destruction of others, I pity him fromthe bottom of my heart, and point out to him that uponthe banner of every religion will soon be written, in spiteCof resistance, ‘Help and not fight’, ‘Assimilation andnot Destruction’, ‘Harmony and Peace and notdissension’.”

Sri Aurobindo too, was conscious of the need for fraternity. In aspeech delivered in Howrah, on 27 June, 1909, he presciently said:D

“Again, there is fraternity. It is the last term of the gospel.It is the most difficult to achieve, still it is thing towardswhich all religions call and human aspirations rise.There is discord in life, but mankind yearns for peaceand love. This the reason why the gospels which preachEbrotherhood spread quickly and excite passionateattachment. This was the reason of the rapid spread ofChristianity. This was the reason of Buddhism’s spreadin this country and throughout Asia. This is the essenceof humanitarianism, the modern gospel of love forFmankind. None of us have achieved our ideals, buthuman society has always attempted an imperfect andlimited fulfilment of them. It is the nature, the dharma ofhumanity that it should be unwilling to stand alone. Everyman seeks the brotherhood of his fellow and we canonly live by fraternity with others. Through all itsGdifferences and discords humanity is striving to becomeone.”

185. Thus, one-ness, inclusiveness, humanism and the idea thatnot only are all equal, and should have equal opportunities, and the contentof each one’s rights be no different from the other, but also that all standHtogether, and for each other, is powerful precept. This precept suffuses

every provision of Part III of the Constitution, especially Articles 14-18,38-39 and 46.

186. This intrinsic value of fraternity, its intricate connection withjustice, liberty, and equality, assuring the dignity of the individual aresteeped in the constitutional jurisprudence of this nation. The constitutiondoes not merely bind the institutions it creates and regulate their action,confer rights on individuals, but it is also “pact between people” and isa charter given on to themselves defining their conduct with each other.[98]In my opinion, this value of fraternity is as much part of the equalitycode, and its facets – equality of opportunity, the principle of non-discrimination and the non-exclusionary principle, as it inextricably bindsthem with the concepts of liberty and freedom. Building upon the simileused by Chandrachud, J of the basic structure of the Constitution being“woven out of the conspectus of the Constitution” - equality andjustice are the warp and weft of the constitutional fabric: with liberty,fraternity, and dignity, lending it richness in colour.

187. The exclusionary clause (in the impugned amendment) thatkeeps out from the benefits of economic reservation, backward classesand SC/STs therefore, strikes death knell to the equality and fraternalprinciple which permeates the equality code and non-discriminationprinciple.

188. The concepts which our Constitution fosters, and the principlesit engenders – equality, fraternity, egalitarianism, dignity, and justice (atindividual and social levels) are all inclusive, all encompassing. Theequality code in its majestic formulation (Article 14, 15, 16 and 17)promotes inclusiveness. Even provisions enabling reservations foster socialjustice and equality, to ensure inclusiveness and participation of all sectionsof society. These provisions assure representation, diversity, andempowerment. Conversely, exclusion, with all its negative connotation –is not constitutional principle and finds no place in our constitutionalethos. Therefore, to admit now, that exclusion of people based on theirbackwardness, rooted in social practice, is permissible, destroys theconstitutional ethos of fraternity, non-discrimination, and non-exclusion.

B. Summary of findings in Questions 1-3

189. On Question 1, it is held that the states’ compelling interestto fulfil the objectives set out in the Directive Principles, through special

98 Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727.

Aprovisions on the basis of economic criteria, is legitimate. That reservationor special provisions have so far been provided in favour of historicallydisadvantaged communities, cannot be the basis for contending that otherdisadvantaged groups who have not been able to progress due to the illeffects of abject poverty, should remain so and the special provisionsshould not be made by way of affirmative action or even reservation onBtheir behalf. Therefore, special provisions based on objective economiccriteria (for the purpose of Article 15), is per se not violative of the basicstructure.

190. However, in answer to Question 3, I have highlighted thatthe framework in which it has been introduced by the impugnedCamendment – by excluding backward classes -– is violative of thebasic structure. The identifier for the new criteria-is based on deprivationfaced by individuals. Therefore, which community the individual belongsto is irrelevant. An individual who is target of the new 10% reservationmay be member of any community or class. The state does not – andDperhaps justly so - will not look into her background. Yet in the samebreath, the state is saying that members of certain communities whomay be equally or desperately poor (for the purposes of classificationidentification) but will otherwise be beneficiaries of reservation of adifferent kind, would not be able to access this new benefit, since theybelong to those communities. This dichotomy of on the one hand, using aEneutral identifier entirely based on economic status and at the sametime, for the purpose of exclusion, using social status, i.e., the castes orsocially deprived members, on the ground that they are beneficiaries ofreservations (under Article 15(4) and 16(4)) is entirely offensive to theEquality Code.F

191. universally acknowledged truth is that reservations havebeen conceived and quotas created, through provision in the Constitution,only to offset fundamental, deep rooted generations of wrongsperpetrated on entire communities and castes. Reservation is designedas powerful tool to enable equal accessand equal opportunity.GIntroducing the economic basis for reservation – as new criterion, ispermissible. Yet, the “othering” of socially and educationallydisadvantaged classes – including SCs/ STs/ OBCs by excludingthemfrom this new reservation on the ground that they enjoy pre-existingbenefits, is to heap fresh injustice based on past disability. Theexclusionary clause operates in an utterly arbitrary manner. Firstly, itH“others” those subjected to socially questionable, and outlawed practices– though they are amongst the poorest sections of society. Secondly, forthe purpose of the new reservations, the exclusion operates against thesocially disadvantaged classes and castes, absolutely, by confining themwithin their allocated reservation quotas (15% for SCs, 7.5% for STs,etc.). Thirdly, it denies the chance of mobility from the reserved quota(based on past discrimination) to reservation benefit based onlyoneconomic deprivation. The net effect of the entire exclusionary principleis Orwellian, (so to say)[99] which is that all the poorest are entitled to beconsidered, regardless of their caste or class, yet only those who belongto forward classes or castes, would be considered, and those from sociallydisadvantaged classes for SC/STs would be ineligible. Within the narrativeof the classification jurisprudence, the differentia (or marker)distinguishing one person from another is deprivation alone. The exclusion,however, is notbased on deprivation but social origin or identity. Thisstrikes at the essence of the non-discriminatory rule. Therefore, the totaland absolute exclusion of constitutionally recognised backward classesof citizens - and more acutely, SC and ST communities, is nothing butdiscrimination which reaches to the level of undermining, and destroyingthe equality code, and particularly the principle of non-discrimination.

192. Therefore, on question 3, it is clear that the impugnedamendment and the classification it creates, is arbitrary, and results inhostile discrimination of the poorest sections of the society that are sociallyand educationally backward, and/or subjected to caste discrimination.For these reasons, the insertion of Article 15(6) and 16(6) is struck down,is held to be violative of the equality code, particularly the principle ofnon-discrimination and non-exclusion which forms an inextricablepart of the basic structure of the Constitution.

193. While this reasoning is sufficient to conclude that Article16(6) is liable to be struck down, there are additional reasons (elaboratedin Part V), due to which this court is compelled to clarify that while the‘economic criteria’ per se is permissible in relation to access of publicgoods (under Article 15), the same is not true for Article 16, the goal ofwhich is empowerment, through representation of the community.

99 George Orwell, Animal Farm where idea of equality is explained allegorically, throughthe example of society comprising of animals who have seized control, by one of themsaying that the rule ‘All animals are equal’ reads that ‘All animals are equal but someanimals are more equal than others’.ps://ncrb.gov.in/en/node/3721

A194. On the point of Question 2, this court is in agreement thatunaided private educational institutions would be bound under Article15(6) to provide for EWS reservations. However, given that the analysisunder Question 3 on ‘exclusion’ leads to the conclusion that theAmendment is violative of the basic structure, the question herein hasbeen rendered moot.B

195. For the above reasons, it is hereby declared that Sections 2and 3 of the Constitution (One Hundred and Third Amendment) Act,2019 which inserted clause (6) in Article 15 and clause (6) in Article 16,respectively, are unconstitutional and void on the ground that they areviolative of the basic structure of the Constitution.C

196. The writ petitions and other proceedings are consequently,disposed of, in the above terms. There shall be no order as to costs.

197. It would be in order to place my gratitude and appreciationfor the valuable assistance rendered by all counsels who appeared andDmade submissions during the course of the hearings, i.e., K.K. Venugopal,Attorney General for India, Tushar Mehta, Solicitor General of India,Ms. Meenakshi Arora, Mr. Sanjay Parikh, Prof. Ravi Verma Kumar,Mr. Salman Khurshid, Mr. P. Wilson, Dr. K. S. Chauhan, Mr. GopalSankaranarayanan, Mr. Mahesh Jethmalani, Mr. Niranjan Reddy, Ms.Vibha Makhija, senior advocates; and Prof (Dr) G. Mohan Gopal, Mr.EYadav Narender Singh, Mr. Shadan Farasat, Ms. Diya Kapur, Dr. M. P.Raju, Mr. Kaleeswaram Raj, Mr. Pratik R. Bombarde, Mr. AkashKakade, Mr. Kanu Agrawal, Mr. V.K. Biju, advocates; and all the othercounsels that assisted them.

1. These matters have been disposed of today by pronouncementof four separate judgments rendered by Hon’ble Mr. Justice DineshMaheshwari, Hon’ble Mr. Justice S. Ravindra Bhat, for himself and onbehalf of the Hon’ble the Chief Justice; Hon’ble Ms. Justice Bela M.GTrivedi; and, Hon’ble Mr. Justice J.B. Pardiwala.

2. In view of the decision rendered by the majority consisting ofHon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M.

H* Ed. Note: Common Order of the Court.

Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, the challenge raised to103[rd] Amendment to the Constitution fails and the decision rendered byHon’ble Mr. Justice S. Ravindra Bhat remains in minority.

3. Consequently, the Writ Petitions and other proceedings standdisposed of.

Bibhuti Bhushan Bose

Writ petitions andother proceedings disposed of.

(Assisted by : Mahendra Yadav, LCRA)