JANHIT ABHIYAN v. UNION OF INDIA & Ors.
Case at a glance
- Decided
- 05 Aug 2020
- Bench
- S A BOBDE, R SUBHASH REDDY, B R GAVAI
Outcome
Allowed
transfer petitions are allowed and W
Provisions considered
- One Hundred and Third Amendment Act, 2019
- Constitution of India arts. 15, 15(6), 16, 19(1)(g), 19(6), 32, 46, 139A(1), 145(3)
- Right of Children to Free and Compulsory Education Act, 2009
- State Act, 1993
Judgment
1 : [2008] 4 SCR 1; I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu (2007) 2 SCC 1 : [2007] 1 SCR 706; Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors. (2018) 10 SCC 396 : [2018] 10 SCR 663; M. R. Balaji & Ors. v. State of Mysore [1963] Suppl. 1 SCR 439; Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (2012) 6 SCC 1 : [2012] 2 SCR 715; Voice (Consumer Care) Council v. State of Tamil Nadu (1996) 11 SCC 740 : [1996] 4 Suppl. SCR 647; His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (1973) 4 SCC 225 : [1973] Suppl. SCR 1– referred to. Case Law Reference [1992] 2 Suppl. SCR 454 [2008] 4 SCR 1 [2006] 7 Suppl. SCR 336 [2007] 1 SCR 706 [2018] 10 SCR 663 [1963] Suppl. 1 SCR 439 [2012] 2 SCR 715 [1996] 4 Suppl. SCR 647 [1973] Suppl. SCR 1 referred to referred to referred to referred to referred to referred to referred to referred to referred to Para 3 Para 4 Para 7 Para 7 Para 7 Para 9 Para 11 Para 11 Para 11 CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
55 of 2019. Under Article 32 Of The Constitution Of India With W.P.(C) No. 798, 212, 341, 73, 72, 76, 69, 80, 122, 106, 95, 222, 133, 178, 182, 249, 146, 168, 162, 331, 343, 419, 427, 446, 493, 854, 596, 732 Of 2019, T.P.(C) 357, 323, 539, 630, 341, 675 of 2019. K.K. Venugopal, A.G., R. Balasubramanian, Soumya Chakraborty, Gopal Sankaranarayanan, Dr. Rajeev Dhawan, Ms. Meenalkshi Arora, M.N. Rao, Sr. Advs., Ms. Deepali Dwivedi, Ms. Siddhi Padia, Satya Mitra, Shadan Farasat, Ms. Jahnavi Sindhu, Ms. Shruti Narayan, Mrs. Niranjana Singh, Ms. Shalini Kumar, Ms. Sangeeta Kumar, Dinesh P Rajbhar, Anzu. K. Varkey, Dr. K.S. Chauhan, P.K. Jayakrishnan, Ravi Prakash, Ajit Kumar Ekka, Chand Kiran, K.K.L. Gautam, Arundhati Chakroborty, A.K. Suman, P.S. Nerwal, Rahul Mohod, Sanjeev Malhotra, Akash Kakade, Swetab Kumar, Somanatha Padhan, Rahul Narayan, Prasanna S., Yadav Narender Singh, Ashutosh Yadav, Abhishek Singh, Jagdish Parshad, Roy Abraham, A.N. Rajan Babu, Ms.
Reena Roy, Ms. Seema Jain, Himinder Lal, Dr. M.P. Raju, S.S. Nehra, Rajendra Verma, Vikrant Nehra, R.K. Gupta, Senthil Jagadeesan, Ms. Aishwarya Kane, Ms. Gayatri Verma, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Ms. Mrinal Kanwar, Sudhansu Palo, Gautam Das, Sanjeev Kumar, A. Subba Rao, K.L.D.S. Vinober, Damodar Solanki, Ms. Manju Jetley, Nirmal Kumar Ambastha, Namit Saxena, Panshul Chandra, M. Vijaya Bhaskar, Murari Lal, Sunil Kumar, R.S.M. Kalky, Sandeep Malik, D. Mahesh Babu, Ms. Suchitra Hrangkhawl, T.V. Bhaskar Reddy, Vangala Eswaraiah, Ganesan Subbian, Santosh Krishnan, Zulfiker Ali P. S, Faisal M Aboobaker, Ms. Lakshmi Sree Puthenpurackal, Reepak Kansal, Prateelk Bombarde, Jitendra Kumar, Preetam Shah, Yadunandan Bansal, Suman Shekhar Jha, Dr. Ashutosh Garg, Rakesh Kumar, Milind P singh, Rahul Mohod, Raju Sankar, Manoj Sonkar, Ramesh Kumar Kejariwal, Ms. Archana Singh, Ms. M. Venmani, Thomas Franklin Caesar, S. Gowthaman, Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Radha Shyam Jena, P.A. Noor Muhamad, A Mohamed Yusuff, Abdul Shukoor M., K.P. Mohamad Shareef, Sheik Moulali Basha, Abdul Rahiman, Shereef K.A., M.P. Abdul Laheef, Saipan Shaikh, Ansar Ul Haq, S.A.S. Alaudeen, Ankur Talwar, Kanu Agarwal, Chinmayee Chandra, Ms.
Shraddha Deshmukh, Shantnu Sharma, Raj Bahadur, R.R. Rajesh, Mrs. Anil Katiyar, Nalin Kohli, Aditya Gaggar, Kailas Bajirao A., Sheetal Patil, Yogesh Anirrao, Mool Singh, Sachin Patil, V.K. Biju, Saji George, Abhay Pratap Singh, Ms. Divya Shukla, Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Gaurav Sharma, Prateek Bhatia, Ohawal Mohan, Prassana Mohan, Shobhit Tiwari, Umesh Pratap Singh, Ms. Vivya Nagpal, ParasanNarayan Sharma, Shavik Tiwari, R.C. Kohli, Lal Pratap singh, Ram Singh, Umesh Pratap Singh, Kaleeswaram Raj, Ms. Romsha Raj, Mohammed Sadique T.A., K.V. Mohan, K.V. Balakrishnan, Rahul Kumar Sharma, A.P. Mayee, A. Selvin Raja, Aditya Gaggar, Subodh S Patil, Ms. Diya Kapur, Aman Shukla, Ms.Veera Mathul, Ms. Liz Mathew, Pradeep Aggarwal, Arjun Aggarwal, Abhist Vikram Singh, Advs. for the appearing parties. JANHIT ABHIYAN v. UNION OF INDIA & ORS. 161 Petitioner-in-person. Intervenor-in-person. The following Order of the Court was passed:
O R D E R Writ Petition(C) No. 55 of 2019 etc.
In this batch of writ petitions, petitioners have challenged the constitutional validity of, The Constitution (One Hundred and Third Amendment) Act, 2019 [for short, ‘the Amendment Act’]. By the aforesaid amendment, Articles 15 and 16 of the Constitution of India were amended by inserting clause (6), after clause (5), in Article 15 and by inserting clause (6) after clause (5), in Article 16. The newly inserted Articles 15(6) and 16(6) read as under : “15(6). Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making, - (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.-For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. 16(6). Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.”
By virtue of Article 15(6) of the Constitution, States are empowered to make a special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) and to make a special provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, in addition to existing reservations and subject to a maximum of ten per cent of the total seats in each category. Similarly, Article 16(6) empowers the State to make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.
The above said impugned constitutional amendments are questioned in this batch of cases mainly on the ground that the impugned amendments are ultra vires as they alter the basic structure of the Constitution of India. Further, it is also the case of the petitioners that the impugned amendments run contrary to the dictum in the majority judgment, in the case of Indra Sawhney & Ors. V. Union of India & Ors.1. It is the case of the petitioners that a backward class cannot be determined only and exclusively with reference to economic criterion. Petitioners have also pleaded that the reservation of ten per cent of vacancies, in available vacancies/posts, in open competition on the basis of economic criterion will exclude all other classes of those above the demarcating line of such ten per cent seats. It is further pleaded that reservation in unaided institutions violates the fundamental right under under Article 19(1)(g) of the Constitution. It is their case that the State cannot insist on private educational institutions which receive no aid from the State to implement the State policy on reservation for granting admission on lesser percentage of marks, i.e., on any criterion except merit.
The counter affidavit is filed on behalf of respondent-Union of India. In the counter affidavit filed by the Under Secretary to the Ministry of Social Justice and Empowerment, the following averments are made: H 1 1992 Supp. (3) SCC 217 JANHIT ABHIYAN v. UNION OF INDIA & ORS. 163 • While denying various allegations made by the petitioners, it is stated that, the Amendment Act was necessitated to benefit the economically weaker sections of the society who are not covered within the existing schemes of reservation, which as per statistics, constitute a considerably large segment of Indian population. In order to do justice across all the weaker sections of the society, it was considered imperative that the Constitution be appropriately amended to enable the State to extend various benefits, including reservations in educational institutions and public employment, to the economically weaker sections of the society, who are not covered by existing schemes of reservation to enable them equal opportunity to get access to educational institutions and also in employment. • Subsequent to the decision of this Court in the case of Indra Sawhney1, the Government appointed an Expert Committee to recommend the criteria for exclusion of advanced sections of Socially and Educationally Backward Classes, i.e., the creamy layer.
The said Committee made certain recommendations for exclusion of creamy layer and the Government, by accepting the same, has issued Office Memorandum dated 08.09.1993 on the exclusion criteria. Thereafter a Commission for Economically Backward Classes, chaired by Maj. Gen. (Retd.) S.R. Sinho, was constituted to suggest the criteria for identification of Economically Backward Classes (EBC) as well as to recommend welfare measures and quantum of reservation in education and Government employment to the extent as appropriate. In its report dated 02.07.2010, the Commission recommended that all BPL (Below Poverty Line) families among general category as notified from time to time and also all families whose annual income from all sources is below the taxable limit should be identified as EBCs. In view of the report submitted by Sinho Commission, it was deemed necessary that a constitutional amendment be brought in to promote social equality by providing opportunity in higher education and employment to those who have been excluded by virtue of their economic status. • While referring to the duty of the State as per directive under Article 46 of the Constitution and in view of the recommendations made by the Committee, The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019 was introduced and same was passed in the Lok Sabha on 08.01.2019 and on 09.01.2019.
By referring to the Statement of Objects and Reasons of the Bill, it is stated that to ensure economically weaker sections of citizens get a fair chance of receiving higher education and participation in employment in the service of the State, the said amendments were brought. • While denying the allegation of the petitioners that the impugned amendments alter the basic structure of the Constitution, it is pleaded that, to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered. It is stated that a mere amendment to an Article of the Constitution, even if embodying a basic feature, will not necessarily lead to a violation of basic feature involved. By stating that the said newly inserted provisions, namely, Articles 15(6) and 16(6) are enabling provisions for advancement of economically weaker sections and such provisions are in fact in conformity with the principle of reservation and affirmative action which are the touchstone of protection of equality of citizens and also the basis under Articles 15(1); 15(2); 16(1) and 16(2). • It is pleaded further that the economic criterion can be a relevant criterion for affirmative action under the Constitution.
Reference is made in the counter affidavit, to the decision of this Court in the case of Ashoka Kumar Thakur v. Union of India & Ors.2. • While answering the allegation of the petitioners, that economic backwardness cannot be the sole criterion for identifying backward class, it is pleaded that the ratio decided by this Court in the case of Indra Sawhney1 cannot be applied to judge the validity of impugned amendments. It is stated that in the case of Indra Sawhney1 memoranda issued by the Government of India were under challenge and as much as the present challenge relates to the constitutional amendment, said ratio decided cannot be applied. It is also pleaded in the counter affidavit that the limit of 50% of reservation is only H 2 (2008) 6 SCC 1 JANHIT ABHIYAN v. UNION OF INDIA & ORS. 165 applicable to reservations made under Articles 15(4), 15(5) and 16(4) and does not apply to Article 15(6).
A • While answering the allegation of the petitioners that imposing reservation in unaided institutions is manifestly arbitrary and illegal, it is pleaded that the impugned amendments do not violate Article 19(1)(g) read with Article 19(6) of the Constitution as the State is entitled to make any law imposing reasonable restrictions on the exercise of right in Article 19(1)(g).
With the aforesaid pleadings, it is pleaded that there is no merit in the petitions and they deserve dismissal by this Court.
We have heard Sri Rajeev Dhawan, learned senior counsel; Sri M.N. Rao, learned senior counsel; Sri Gopal Sankaranarayanan, learned senior counsel; and Ms. Meenakshi Arora, learned senior counsel for the petitioners and Sri K.K. Venugopal, learned Attorney General for India appearing for Union of India.
Sri Rajeev Dhawan, learned senior counsel appearing for the petitioner in W.P.(C)No.122 of 2019 while referring to ‘Rules of Court etc.’ under Article 145(3) of the Constitution, has submitted that as the case involves a substantial question of law as to interpretation of the constitutional amendment, the present batch of cases need to be heard by a Constitution Bench of five Judges. Learned senior counsel also placed reliance on Order XXXVIII of the Supreme Court Rules, 2013 and submitted that as much as it is the case of the petitioners that the impugned Amendment Act violates the basic structure doctrine with particular reference to right to equality, as such, it constitutes a substantial question of law within the meaning as referred above. It is submitted that having regard to grounds on which the impugned amendments are questioned, a substantial question of law, namely, whether the Constitution (One Hundred and Third Amendment) Act, 2019 violates the basis structure of the Constitution, insofar as it relates to the equality provisions of the Constitution and matters relating thereto, is to be decided.
It is submitted that by applying the tests of ‘width’ and ‘identity’ of equality provisions, the impugned amendments are to be judged. Learned senior counsel has placed reliance on the judgment of this Court in the case of M. Nagaraj & Ors. V. Union of India & Ors.3, in support of his argument that for examining amendments to equality provisions of the 3 (2006) 8 SCC 212 Constitution, such a matter is to be heard by a Constitution Bench. On the validity of the impugned Amendment Act, learned senior counsel has submitted that by applying the tests of ‘width’ and ‘identity’ formulated by this Court in the case of M. Nagaraj3 which is approved in the case of I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu4 and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.5, the impugned amendments affect the ‘width’ and ‘identify’ of equality provisions, as such same is fit to be declared as unconstitutional.
It is submitted that by applying the above said tests, if the impugned amendments are examined, the impugned Articles are in violation of the basic structure of the Constitution. Further, it is submitted that the impugned Amendment Act violates the rule of 50% quota for affirmative action and reservation as enunciated by this Court in the case of Indra Sawnhey1. Further, it is submitted by learned senior counsel that the two-fold test for testing the validity of fundamental right under the basic structure doctrine is to consider whether (a) identity and (b) width of fundamental right is affected or not. It is submitted that if identity of the right is distorted or taken away, such action will be in violation of basic structure.
Sri M.N. Rao, learned senior counsel appearing for the petitioners in W.P.(C)No.95 of 2019, by referring to various articles in the draft Constitution prepared by the constitutional adviser and by referring to debates of Constituent Assembly and by placing reliance on observations made by this Court in the judgment in the case of Indra Sawhney1, has submitted that the educational backwardness of backward classes is on account of their social backwardness. It is submitted that the social backwardness is the cause and not the consequence of either of their economic or educational backwardness. It is submitted that the reason for providing reservation under Articles 15(4) and 16(4) by carving out an exception to the equality clause is to confine the benefits only to persons answering the description of backward classes. It is further submitted that the economic criterion by itself will not identify the backward class. Finally it is submitted by learned senior counsel that if economically weaker sections are brought within the purview of backward classes, it will destroy the ratio legis, the very reason or foundation of law to carve out the exceptions to the equality clause.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: transfer petitions are allowed and W
Which statutory provisions did this judgment involve?
One Hundred and Third Amendment Act, 2019; Constitution of India — arts. 15, 15(6), 16, 19(1)(g), 19(6), 32, 46, 139A(1), 145(3); Right of Children to Free and Compulsory Education Act, 2009; State Act, 1993.
Which court decided this case, and when?
Supreme Court of India, on 05 Aug 2020. The bench was S A BOBDE, R SUBHASH REDDY, B R GAVAI.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.