‘Identifier for 10% Quota for EWS is economic deprivation; Social or educational backwardness irrelevant’: Key takeaways from Dissenting opinion 

Supreme Court: In a big decision, the 5-judge Constitution bench of UU Lalit, CJ and Dinesh Maheshwari, S. Ravindra Bhat, Bela M Trivedi, JB Pardiwala, JJ has upheld the constitutional validity the Constitution (One Hundred and Third Amendment) Act, 2019, which provides for 10 percent reservation in appointments to posts under the State and in admissions to educational institutions to economically weaker sections (‘EWS’) of citizens. While Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala, JJ wrote separate but concurrent opinions forming majority, S. Ravindra Bhat, J wrote the minority opinion for himself and U.U. Lalit, CJ.

While there was no disagreement on Question number 1 that the addition, or insertion of the ‘economic criteria’ for affirmative action in aid of the section of population who face deprivation due to poverty, in furtherance of Article 46, does not per se stray from the Constitutional principles, so as to alter, violate, or destroy its basic structure, Bhat, J, writing for himself and Lalit, CJ, expressed inability to concur with the views expressed by the majority opinion on the validity of the 103rd Amendment on Question No. 3, as,

“for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion. In my considered opinion, the amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the basic structure.”

This report covers the key takeaways from the minority opinion that has held that Sections 2 and 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 are violative of the basic structure of the Constitution.

Read the key takeaways from the majority ruling here.

Constitutionality of 10% Quota for EWS upheld in 3:2 verdict: Key takeaways from Majority Ruling including suggestion for prescribing time limit for reservation

The 103^rd Constitution Amendment

The Constitution (One Hundred and Third Amendment) Act, 2019 [103^rd Constitution Amendment] , which came into effect on 14.01.2019, to amend Articles 15 and 16 of the Constitution of India by adding two new clauses viz., clause (6) to Article 15 with Explanation and clause (6) to Article 16; and thereby, empowering the State, inter alia, to provide for a maximum of 10% reservation for “the economically weaker sections” of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes”. The amendment in question does not mandate but enables reservation for EWS and prescribes a ceiling limit of 10%.

Grounds for Challenge

• Making of special provisions including reservation in education and employment on the basis of economic criteria is entirely impermissible and offends the basic structure of the Constitution;
• In any case, exclusion of socially and educationally backward classes i.e., SCs, STs and non-creamy layer OBCs from the benefit of these special provisions for EWS is inexplicably discriminatory and destroys the basic structure of the Constitution; and
• Providing for 10% additional reservation directly breaches the 50% ceiling of reservations already settled by the decisions of the Supreme Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution.

Opposition submissions

• The amendment in question, empowering the State to make special provisions for the economically weaker sections of citizens, is squarely within the four corners of the Constitution of India; rather making of such provisions is necessary to achieve the Preambular goal of ‘JUSTICE, social, economic and political’ in real sense of terms.
• There is no discrimination in relation to the classes that are excluded from EWS for the simple reason that the existing special provisions of affirmative action in their relation continue to remain in operation. As regards the breach of 50% ceiling of reservations, the contention is that the said ceiling is not inflexible or inviolable and in the context of the object sought to be achieved, 10% has been provided as the maximum by way of the enabling provision.

Dissenting Opinion – Per S. Ravindra Bhat, J for himself and UU Lalit, CJ

Question 1: Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?

The states’ compelling interest to fulfil the objectives set out in the Directive Principles, through special provisions on the basis of economic criteria, is legitimate. That reservation or special provisions have so far been provided in favour of historically disadvantaged communities, cannot be the basis for contending that other disadvantaged groups who have not been able to progress due to the ill effects of abject poverty, should remain so and the special provisions should not be made by way of affirmative action or even reservation on their behalf. Therefore, special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structure.

“The break from the past – which was rooted on elimination of caste-based social discrimination, in affirmative action – to now include affirmative action based on deprivation, through the impugned amendment, therefore, does not alter, destroy or damage the basic structure of the Constitution. It adds a new dimension to the Constitutional project of uplifting the poorest segments of society.”

Question 2: Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

No disagreement on the majority opinion that unaided private educational institutions would be bound under Article 15(6) to provide for EWS reservations. However, given that the analysis under Question 3 on ‘exclusion’ leads to the conclusion that the Amendment is violative of the basic structure, the question herein has been rendered moot.

Question 3: Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?

The framework in which it has been introduced by the impugned amendment – by excluding backward classes – is violative of the basic structure. The identifier for the new criteria-is based on deprivation faced by individuals. Therefore, which community the individual belongs to is irrelevant.

An individual who is a target of the new 10% reservation may be a member of any community or class. The state does not – and perhaps justly so – will not look into her background. Yet in the same breath, the state is saying that members of certain communities who may be equally or desperately poor (for the purposes of classification identification) but will otherwise be beneficiaries of reservation of a different kind, would not be able to access this new benefit, since they belong to those communities.

“This dichotomy of on the one hand, using a neutral identifier entirely based on economic status and at the same time, for the purpose of exclusion, using social status, i.e., the castes or socially deprived members, on the ground that they are beneficiaries of reservations (under Article 15(4) and 16(4)) is entirely offensive to the Equality Code.”

The reservations in favour of the poorest members of society is based on persistent economic deprivation, or poverty. The identifying characteristic is, therefore, entirely new. It has no connection with social or educational backwardness. The social or educational backwardness of the communities to which beneficiaries of the impugned amendments belong, are irrelevant. Therefore, caste or community is not the identifying criteria or classifier

“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 as,

Firstly, it “others” those subjected to socially questionable, and outlawed practices – though they are amongst the poorest sections of society.

Secondly, for the purpose of the new reservations, the exclusion operates against the socially disadvantaged classes and castes, absolutely, by confining them within 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 a reservation benefit based only on economic deprivation.

The net effect of the entire exclusionary principle is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible. The exclusion is not based on deprivation but social origin or identity. This strikes at the essence of the non-discriminatory rule. Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens – and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of non-discrimination.

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.

Hence, the impugned amendment and the classification it creates, is arbitrary, and results in hostile discrimination of the poorest sections of the society that are socially and educationally backward, and/or subjected to caste discrimination. The insertion of Article 15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the principle of non-discrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution.

[Janhit Abhiyan v. Union of India, 2022 SCC OnLine SC 1540, decided on 07.11.2022]

Appearances by: Mr. K.K. Venugopal, Attorney General for India, Mr. 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. Gopal Sankaranarayanan, Mr. Mahesh Jethmalani, Mr. Niranjan Reddy, Ms. Vibha Makhija, senior advocates; and Prof (Dr) G. Mohan Gopal, Mr. Yadav Narender Singh, Mr. Shadan Farasat, Ms. Diya Kapur, Dr. M. P. Raju, Mr. Kaleeswaram Raj, Mr. Pratik R. Bombarde, Mr. Akash Kakade, Mr. Kanu Agrawal, Mr. V.K. Biju