ORDER

Writ Petition(C)No.55 of 2019 etc.

1. 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.”

2. 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.

3. 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 [¹1992 Supp.(3) SCC 217]. 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 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.

4. 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 :

*      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 [²(2008) 6 SCC 1].

*      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 applicable to reservations made under Articles 15(4), 15(5) and 16(4) and does not apply to Article 15(6).

*      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).

5. With the aforesaid pleadings, it is pleaded that there is no merit in the petitions and they deserve dismissal by this Court.

6. 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.

7. 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 [³(2006) 8 SCC 212], in support of his argument that for examining amendments to equality provisions of the 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 [⁴(2007) 2 SCC 1] and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.⁵ [⁵(2018) 10 SCC 396], 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.

8. 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.

9. Sri Gopal Sankaranarayanan, learned senior counsel appearing for the petitioners in W.P.(C)No.73 of 2019 submitted that the fundamental balancing factor of the reservation policies has been the ceiling limit of 50%. It is submitted that it has been consistently held by this Court that if the reservations exceed such percentage the equality code of the Constitution would be breached. It is submitted by learned senior counsel that the ratio of 50% which is initially laid down in the judgment of this Court in the case of M.R. Balaji & Ors. v. State of Mysore⁶ [⁶(1963) Supp. 1 SCR 439] is finally approved in the judgment of this Court in the case of Indra Sawhney¹. By referring to the aforesaid judgments of this Court, it is submitted by learned senior counsel that the impugned Amendment Act breaches the 50% ceiling limit and runs contrary to the judgments of this Court as referred above. It is submitted that the petitioners have no quarrel with the introduction of reservation for economically weaker sections but at the same time the equality code of the Constitution ought to be strictly observed and breach of 50% ceiling limit should not be allowed. Learned senior counsel also submitted that as the questions involved in this batch of cases amount to substantial questions of law within the meaning of Article 145(3) of the Constitution, these cases need to be heard by a Bench of five Judges.

10. Ms. Meenakshi Arora, learned senior counsel appearing for the petitioners in W.P.(C)No.182 of 2019 has submitted that the impugned Amendment Act violates the basic structure doctrine and also crosses the limit of 50% which runs contrary to several judgments of this Court. 11. On the other hand, learned Attorney General for India – Sri K.K. Venugopal – by referring to Preamble of the Constitution and Article 46 of the Constitution of India, submitted that an affirmative action by making a provision for reservation can be made to the economically weaker sections of society. It is submitted that to secure justice to all citizens based on social, economic and political, as referred to in the Preamble, it is always open for the State to bring a constitutional amendment so as to promote such economically weaker sections, in relation to admissions to educational institutions and also in making appointments in public services. Learned Attorney General has submitted that a three-Judge Bench of this Court in the case of Society for Unaided Private Schools of Rajasthan v. Union of India & Anr.⁷ [⁷(2012) 6 SCC 1] has approved the classification based on economic criteria as provided under provisions of Right of Children to Free and Compulsory Education Act, 2009. He has further submitted that in view of the same the impugned Amendment Act cannot be said to be either illegal or in violation of the basic structure of the Constitution. It is submitted that as observed by this Court in the case of Indra Sawhney¹ while 50% shall be the rule but at the same time in a situation like this, which is an extraordinary situation, such limit can be exceeded. Learned Attorney General has brought to our notice certain observations made in the aforesaid judgment. Learned Attorney General, in support of his argument that such percentage can be exceeded, placed reliance on a judgment of this Court in the case of Voice (Consumer Care) Council v. State of Tamil Nadu⁸ [⁸(1996) 11 SCC 740]. In the State of Tamil Nadu, the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 was brought into force providing 69% reservation for BC, SC and ST. When the said Act was upheld by the High Court, matter is carried to the Supreme Court and this Court has passed interim order to create additional seats for general category candidates, with a view to remove the grievance of the general category candidates. The State of Tamil Nadu has filed application requesting for modification of the order dated 22.07.1996. This Court declined to modify such order and dismissed the interlocutory application. At the same time it is kept open to the State of Tamil Nadu to take steps for listing of the matters which have been referred to Constitution Bench. Further relying on the judgment of this Court in the case of Society of Unaided Private Schools for Rajasthan⁷, the learned Attorney General, has submitted that the questions raised by the petitioners can no more be considered as substantial questions of law for being referred to a Bench of five Judges. It is submitted that there is no basis for the plea of the petitioners that the impugned Amendment Act violates the basic structure doctrine. It is submitted by learned Attorney General that the basic structure comprises of many features like several pillars in a foundation some of which are enumerated in the opinions rendered by this Court in the case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr.⁹ [⁹(1973) 4 SCC 225]. It is submitted that the significance of these pillars is that if one of them is removed the entire edifice of the Constitution will fall. Hence, it is submitted that in judging the constitutional amendment, the question to be addressed is whether the said amendment would lead to a collapse of the edifice of the Constitution. It is submitted 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 as no such grounds exist to show that the identity of the Constitution has been altered by virtue of the impugned amendment, the plea of the petitioners that the impugned amendment is in violation of basic structure doctrine also has no legs to stand.

12. We have heard learned senior counsel for the petitioners and the learned Attorney General for India for the Union of India.

13. Learned senior counsel for the petitioners at first instance argued by seeking reference to a larger Bench of five Judges by placing reliance on Article 145(3) of the Constitution and Order XXXVIII of the Supreme Court Rules, 2013, which is opposed by learned Attorney General appearing for the Union of India on the ground that in view of the decisions relied on by him no reference need be made.

14. Although we have heard learned senior counsels for the petitioners and learned Attorney General appearing for the Union of India, on the issue of reference, as well as on merits of the matter, as we are in agreement with the submissions made by the learned counsels appearing for the petitioners that these matters involve substantial questions of law, as such, they are required to be heard by a Bench of five Judges in view of the provision under Article 145(3) of the Constitution of India and Order XXXVIII of the Supreme Court Rules, 2013, we are not entering into the merits of the matter on the validity of impugned Amendment Act.

15. To refer the matter to a Bench of five Judges, we deem it appropriate to refer to the provision under Article 145(3) as well as Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013. The said relevant provisions read as under :

“145. Rules of Court, etc.-(1) … … …

(2) … … …

(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”

Similarly, Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013 reads as under :

“1(1). Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges, and, during vacation, by a Vacation Judge sitting singly.”

16. In view of the aforesaid provisions, it is clear that for the purpose of deciding any case involving a substantial question of law as to interpretation of the Constitution it is to be heard by a Bench of five Judges. Thus it is to be examined whether the question raised in the writ petitions will involve a substantial question of law or not. It is the case of the petitioners that the impugned amendments violate the basic structure of the Constitution mainly on the ground that the existing provisions of the Constitution empower to provide affirmative action only in favour of socially backward classes. It is for the first time that by the impugned amendments in the Constitution itself the new clauses are incorporated enabling the State to provide affirmative action by way of reservation to the extent of 10% in educational institutions and for appointment in services to economically weaker sections of society. The main plank of the argument from the side of the petitioners is that the economic criteria alone cannot be the basis to determine backwardness. In support of the same, learned counsels for the petitioners strongly rely on nine-Judge Bench judgment of this Court in the case of Indra Sawhney¹. Thus it is pleaded that the impugned amendments run contrary to the above said judgment. It is also the case of the petitioners that exceeding the ceiling cap of 50% is also in violation of the very same judgment of this Court. Though learned Attorney General appearing for the Union of India has strongly relied on the judgment of this Court in the case of Society for Unaided Private Schools of Rajasthan⁷ where the provisions of Right of Children to Free and Compulsory Education Act, 2009 are upheld. By virtue of the impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections. It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges. Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges as per Article 145(3) of the Constitution read with Order XXXVIII Rule 1(1) of the Supreme Court of Rules, 2013.

T.P.(C)Nos.341 of 2019; 323 of 2019; 357 of 2019;

539 of 2019; 630 of 2019; and 675 of 2019

17. These transfer petitions are filed by and/or on behalf of Union of India, under Article 139A(1) of the Constitution of India read with Order XLI Rules 1 to 5 of the Supreme Court Rules, 2013 seeking transfer of writ petitions filed before various High Courts to this Court. Writ Petition involving the very same question, i.e., challenge to the validity of The Constitution (One Hundred and Third Amendment) Act, 2019 has been filed before this Court in W.P.(C)No.55 of 2019 titled, ‘Janhit Abhiyan v. Union of India & Ors.’ and this Court, by order dated 25.01.2019, has already issued notice in such writ petition. It is submitted by learned Attorney General that, as the very same amendment is subject matter of challenge in the writ petitions pending before various High Courts and to avoid conflicting findings by different High Courts, such writ petitions are required to be transferred to this Court. As much as this Court has already issued notice in a writ petition wherein validity of very same Amendment Act is questioned before this Court, we deem it appropriate that these transfer petitions are fit to be allowed. Accordingly, transfer petitions are allowed and W.P.(C)|No.1475/2019 titled as ‘R.S. Bharati v. Union of India’; W.P.(C)No.2099/2019 titled as ‘Desiya Makkal Sakthi Katchi v. Principal Secretary & Ors.’; W.P.(C)No.1629/2019 titled as ‘Kali Poongundran v. Union of India & Ors.’; W.P.No.3209/2019 titled as ‘A.S.A. Umar Farooq v. Union of India & Ors.’ pending before High Court of Madras; W.P.(C)No.884/2019 titled as ‘Telangana State Backward Classes Welfare Association & Anr. v. Union of India & Ors.’ Pending before the High Court for the State of Telangana; and C.W.P.No.3220/2019 titled as ‘Rakesh Dhundhara v. Union of India & Ors.’ pending before the High Court of Punjab and Haryana at Chandigarh are ordered to be transferred to this Court for being listed along with W.P.(C)No.55 of 2019 etc. Registry to take necessary steps by requesting the concerned High Courts to transmit the record of the abovementioned writ petitions.

All the matters

18. For the aforesaid reasons, we allow the transfer petitions and refer this batch of cases, including the cases covered by transfer applications, to a Bench of five Judges. Registry to place the matter before Hon’ble the Chief Justice, for obtaining appropriate orders in this regard.

Petitions allowed.

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