Summary
By a 3:2 majority, the Constitution Bench upheld the 103rd Amendment, which inserted Articles 15(6) and 16(6) enabling up to 10% reservation for economically weaker sections. Maheshwari, Trivedi and Pardiwala JJ. held that reservation based solely on economic criteria, including in private unaided institutions, does not damage the basic structure. They held that excluding SCs, STs and non-creamy-layer OBCs, who already have their own reservations, is a permissible feature of compensatory discrimination. They also held that the 50% ceiling is not inflexible and governs only Article 15(4), 15(5) and 16(4) reservations. Bhat J., for himself and Lalit CJ, dissented. He accepted economic criteria under Article 15 but struck both clauses down because the exclusion offends non-discrimination.
Issues
- Whether the Constitution (One Hundred and Third Amendment) Act, 2019 violates the basic structure by permitting special provisions, including reservation, based solely on economic criteria, including for admission to private unaided institutions.
- Whether excluding the classes covered by Articles 15(4), 15(5) and 16(4) from EWS reservation, and adding up to 10% beyond existing reservations, violates the Equality Code and the basic structure.
Provisions considered
- Articles 15(6) and 16(6), with Explanation, Constitution of IndiaUpheld by majority as enabling provisions for up to 10% EWS reservation for citizens other than classes in Articles 15(4), 15(5) and 16(4), notified on family income and other indicators of economic disadvantage. (¶¶ 77.1, 97, 102, 104)
- Article 368, Constitution of IndiaA constitutional amendment can be struck down only if it destroys the Constitution's identity; a moderate abridgment of equality is not such a violation. (¶¶ 38, 39, 85, 101)
- Article 46, Constitution of India'Other weaker sections' is not confined to those similarly circumstanced to SCs and STs, and the amendment also rests on the Preamble and Articles 38 and 39. (¶¶ 74, 74.1, 74.2, 74.3)
- Articles 14, 15(4), 15(5) and 16(4), Constitution of IndiaReservation is an exception to the general rule of equality and enabling in nature, not itself an essential feature whose modulation damages the basic structure. (¶¶ 53, 56, 79, 101)
Held
- Reservation is an instrument for including any disadvantaged section answering the description of a weaker section, not only socially and educationally backward classes; earlier rulings that reservation cannot rest on economic criteria alone concerned classes under Articles 15(4), 15(5) and 16(4), so reservation structured solely on economic criteria does not violate the basic structure. (¶¶ 68, 70, 72, 73, 76, 102)
- Excluding SCs, STs and non-creamy-layer OBCs, who already receive reservation, is a reasonable classification inherent in compensatory discrimination and akin to exclusion of the creamy layer; their quotas are not depleted, and 'other than' cannot be read as 'in addition to'. (¶¶ 78.2, 78.3, 79, 80, 82, 83, 88, 89)
- The 50% ceiling is not inflexible and applies to reservations under Articles 15(4), 15(5) and 16(4); an additional 10% for a separate class does not breach any essential feature, and following Pramati Trust the EWS provision for private unaided institutions is equally valid. (¶¶ 90, 91, 93, 94, 95, 102, 103, 104)
- Trivedi J. and Pardiwala J. concurred, holding EWS a reasonable separate class under Article 46 and the exclusion permissible under-inclusion to avoid double benefit, and both urged that reservation be reviewed and not continue indefinitely.
- Bhat J. (for himself and Lalit CJ), dissenting, held economic criteria permissible under Article 15, but found the exclusion of the classes covered by Articles 15(4) and 16(4), who include many of the poorest, to be hostile discrimination that violates the non-discrimination principle; he would strike down Articles 15(6) and 16(6), adding that Article 16(6) is also flawed because Article 16 aims at representation, and left the 50% question open.
Result
By majority, the challenge to the Constitution (One Hundred and Third Amendment) Act, 2019 fails; Writ Petition (Civil) No. 55 of 2019 and connected writ petitions, transferred cases, transfer petitions and SLP disposed of, the minority view of Bhat J. (with Lalit CJ) not prevailing.