No Double Benefits: SC Holds Exclusion Of Other Special Communities From EWS Quota Is Reasonable

The Supreme Court has upheld the validity of the 103rd Constitutional Amendment, by which a 10% reservation for the Economically Weaker Sections (EWS) was introduced in education and public employment. It was a 3:2 majority, with Justice Dinesh Maheshwari, Justice Bela Trivedi, and Justice JB Pardiwala forming the majority. Justice S Ravindra Bhat wrote a dissenting judgment, which was concurred with by CJI Uday Umesh Lalit.

The reasoning presented by each judge has been summarised below.

Justice Dinesh Maheshwari:
He observed that reservation is an instrument of affirmative action by the State to ensure an all-inclusive march towards the goals of an egalitarian society, and in light of the same, he was of the opinion that reservation is "an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society but, also for inclusion of any class or section so disadvantaged as to be answering the description of a weaker section." On this foundation, he held that reservation structured singularly on economic criteria does not violate any essential feature of the Constitution and does not cause any damage to its basic structure.

In furtherance of the same, it was held that "Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of nondiscrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India."

Justice Bela M Trivedi:
The reasoning given by Justice Maheshwari was concurred with by Justice Trivedi.

She observed that "The sum and substance is that the limitations – substantive or procedural – imposed on the exercise of constituent power of the State under Article 368 could not be said by any stretch of imagination, to have been disregarded by the Parliament. Neither the procedural limitation i.e. the mode of exercise of the amending power has been disregarded nor the substantive limitation i.e. the restricted field has been disregarded, which otherwise would invalidate the impugned amendment. What is visualised in the Preamble and what is permissible both in Part-III and Part-IV of the Constitution could not be said to be violative of the basic structure or basic feature of the Constitution. In absence of any obliteration of any of the constitutional provisions and in absence of any alteration or destruction in the existing structure of equality code or in the basic structure of the Constitution, neither the width test nor the identity test as propounded in Kesavananda could be said to have been violated in the impugned Amendment. Accordingly, the challenge to the constitutional validity of the 103rd Amendment fails, and the validity thereof is upheld."

Justice Trivedi also made observations regarding the time span of the reservation policy. She urged for movement towards an egalitarian, casteless and classless society, as envisaged by the framers of the Indian Constitution. In that context, it was said that "It cannot be gainsaid that the age-old caste system in India was responsible for the origination of the reservation system in the country. It was introduced to correct the historical injustice faced by the persons belonging to the scheduled castes and scheduled tribes and other backward classes, and to provide them a level playing field to compete with the persons belonging to the forward classes. However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism."

Her suggestion for achieving this ideal society was to prescribe a time limit for the special provisions, much like what was done by the 104th Amendment, which had a time limit on the representation of Anglo-Indian community in the House of the Parliament and in the Legislative Assemblies of the States by nomination.

Justice JB Pardiwala:
It was held that reservation is not an end, but a means. After a detailed analysis of the demographic and social scenario of the country, Justice Pardiwala observed that "The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation. It may be perceived as a first step in the process of doing away with caste-based reservation." and made the observation that reservation should not continue for an indefinite period of time.

Justice S Ravindra Bhat for himself and on behalf of CJI Uday Umesh Lalit:
Rendering a dissenting opinion, Justice Bhat expressed that the majority had sanctioned an avowedly exclusionary and discriminatory principle. It was observed that excluding backward classes is violative of the basic structure, as the identifier for the new criteria is based on the deprivation faced by individuals, which renders the individual's community irrelevant. In a similar context, Justice Bhat expressed that "Reservation is designed as a powerful tool to enable equal access and equal opportunity. Introducing the economic basis for reservation – as a new criterion, is permissible. Yet, the "othering" of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability. The exclusionary clause operates in an utterly arbitrary manner."

The dissenting judgment clarified that "While this reasoning is sufficient to conclude that Article 16(6) is liable to be struck down, there are additional reasons (elaborated in 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 public goods (under Article 15), the same is not true for Article 16, the goal of which is empowerment, through representation of the community."

In light of the same, Justice Bhat held that the 103rd Constitutional Amendment is unconstitutional and void on the ground that it is violative of the basic structure of the Constitution. This opinion was concurred with by Chief Justice Uday Umesh Lalit.

Cause Title: Janhit Abhiyan v. Union of India

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