Janhit Abhiyan vs. Union of India, 2022: Case comment

Introduction

The Parliament amended the Constitution of India and brought about the One Hundred and Third (103^rd) Amendment in the Constitution on January 9^th, 2019[1], which was concerned with extending the reservation in the educational institutions and employment opportunities to Economically Weaker Sections of the society by amending Articles 15 and 16 of the Constitution and inserting 15(6) and 16(6)[2] respectively.

The amendment allowed the state to make special provisions for economically weaker sections of the society, both in educational institutions as well as employment opportunities, however, the issue has been a bone of contention since it received the assent of the President of India in 2019. As many as 20 petitions have been filed against the 103^rd amendment to the constitution, challenging its constitutionality.

Supreme Court, through a 5-judge constitutional bench, announced its verdict on the matter with a 3:2 split[3]. The case was majorly concerned with the issues relating to constitutionality and basic structure doctrine. This article would give an overview of the case, brief facts, the reasoning of the judgment of the Supreme Court, the arguments put up by both sides, and why this judgment is relevant in redefining the concept of reservation in India as a whole.

A brief outline of Janhit Abhiyan vs. Union of India

After the passing of the Constitution (One Hundred and Third Amendment) Act, 2019, several writ petitions, and special leave to appeal were filed in order to deem the said amendment as unconstitutional and a breach of the basic structure doctrine. By virtue of this amendment, the state became empowered to make special provision regarding reservation for the economically weaker section with an upper limit of 10% by virtue of addition of Articles 15(6) and 16(6) in the Constitution of India.

Thereby, the state has been empowered to give a 10% reservation to Economically Weaker Section of the society in the educational institutions and employment opportunities, in exclusion of Scheduled Castes (SCs), Scheduled Tribes (STs), and non-creamy layer Other Backward Class (OBCs).

Moreover, it must also be noted that the said reservation is merely enabling in nature rather than mandatory, i.e., it does not mandate the institutions to provide the 10% ceiling reservation to the EWS classes, but enable the state to make arrangements for the same.

Issues involved in Janhit Abhiyan vs. Union of India

The apex court essentially identifies 3 major issues to be dealt with while delivering its judgment:

1. Economic criteria cannot be the sole determinant in allowing reservation for a particular section of society, and thus it infringes the basic structure of the constitution.
2. Exclusion of Socially and Educationally Backward Classes (SEBCs), i.e., SCs, STs, and OBCs, from these special provision for EWS is inexplicably discriminatory in nature, and thus violates the basic structure of the constitution.
3. The defined 10% upper limit of reservation for the EWS directly breaches the 50% cap of reservation and hence directly goes against the ethos and jurisprudence of reservation as espoused by the constitution makers, as it violates the Equality Code[4], and thus, again, violates the basic structure of the constitution.

Arguments from the side of the petitioner

The petitioners included Janhit Abhiyan Akhil Bhartiya Kushwaha Mahasabha; Youth for Equality; SC/ST Agricultural Research and Education Employees Welfare Association; Peoples Party of India (Democratic)[5], represented by Rajeev Dhawan; Gopal Sankaranarayanan; MN Rao; Meenakshi Arora. The submissions from the side of petitioner were,

• The reservation granted by the Constitutient Assembly in 1949 to the backward class of the society was based on age-old discrimination suffered by these communities. The rationale behind such a measure was to give them an equal playing field and provide equal representation and address the historical inequalities suffered by the backward classes.

The petitioners further argue that the court must exercise purposive interpretation of reservation considering EWS, and revisit the purpose behind the reservation policy through the vision of the constitution makers and the constituent assembly debates.

• On the other hand, the 103^rd amendment aims to extend the reservation to a class of people which was never marginalised or discriminated against, and hence such an amendment defeats the very rationale of the reservation policy.
• It was further submitted that constitution endorses the concept of social ‘and’ educational backwardness, rather than social ‘or’ educational backwardness, which tells us that the social and educational criteria are not mutually exclusive of each other, and both needs to be fulfilled in order to claim reservation by a certain class of people.
• Moreover, EWS is perpetuating the monopoly of certain section of society as they were never historically oppressed as opposed to those who were. This is also leading to an individual centric reservation which goes against the very nature of reservation as the purpose of reservation was to remove the inter-group inequalities among the classes of society.
• In essence the said amendment extends the benefit of reservation not to the economically weaker but financially incapable class of society and hence the furthers the individual-centric idea of reservation which is problematic to the very nature of democracy.
• Furthermore, the identification of backward class is possible according to the benchmarks and guardrails provided by the constitution, however, the same is very difficult in order to identify the EWS, as the financial capability and incapability is very transient in nature. Moreover, reservation cannot be a measure of poverty alleviation.
• The petitioners also contended that economic criteria cannot be the sole basis of granting reservation as the same has been established by the Indra Sawhney judgment and consequently in the Mandal Commission report, and hence this 5-judge bench is not capable of implying otherwise as the concerned judgment was made by a 9-judge constitutional bench.
• It was also argued that the 103^rd amendment would never put an end to the reservation as, although it is possible that the backward classes may be put at par with the forward ones, however, people would always be poor, which goes against the ethos and purpose of reservation, as espoused by B.R. Ambedkar.
• Exceeding 50% limit would violate the Equality Code, because the people from the backward class would not be able to claim the seats in the open category, for the people belonging from the creamy layer SEBCs, which would damage the basic structure of the constitution.
• The amendment also fails to justify as to how the poverty of forward class is different than that of the backward class. The reports of Sinho Commission, NITI Ayog Multi-dimensional Poverty Index[6], etc. clearly points out that the backward class poor are poorer than the upper-class poor, and hence their exclusion from the EWS quota directly discriminates between the forward and backward class of people.
• It is further destructive of the aim of caste-less society, and hence EWS reservation goes against the preambular vision. It creates a vertical reservation inside of vertical reservation.

Arguments from the side of the respondent

The respondents included the Union of India; the Ministry of Social Justice & Empowerment; The State of Maharashtra; the Ministry of Personnel, Public Grievances and Pensions represented by Attorney General KK Venugopal[7]; Solicitor General Tushar Mehta. The submissions from the side of Respondent were,

• The ethos of reservation makes distinction between classes and not castes and hence such an amendment is based on the reasoning of providing the special benefit to the backward class which is backward by the virtue of economic inequality, thus furthering the rationale of reservation and strengthening the preambular vision of economic justice. The amendment is a step towards furthering a caste-less society which was the vision of the constitution makers.
• Learned Attorney General of India, Mr. K.K. Venugopal, contends that the said amendment vitalizes the basic structure of the constitution rather than breaking it. An amendment to the constitution may be struck down only when it is capable of changing the identity of the constitution.
• The respondents argue that one must dynamically interpret the constitution in order to strengthen the preambular vision of the constitution. One must look into Articles 38 and 46 of the DPSPs which renders a duty on the state to eliminate social, political and economic differences and to promote justice.
• The classification based on economic criteria alone is justified. The Supreme Court has considered poverty as an indicator of backwardness, while considering reservation in several cases, such as, M.R. Balaji[8], R Chitralekha vs. State of Mysore[9], Vasanth Kumar[10].
• It is further argued that it is poverty that leads one to social and educational backwardness and the said amendment tries to cure such a discrepancy by creating a class of people which are in fact social ‘and’ educationally backward due to the economic inequality faced by them in the society, therefore, the Parliament is in the right to create such an enabling provision which minimises the economic inequality in the society.

The amendment is furthering the goal of economic justice, thus strengthening the basic structure and preambular goal of the constitution.

• On the question of 10% ceiling limit for EWS reservation, the respondents argue that such a limit in no way infringes the rights of SCs/STs/OBCs/SEBCs as this 10% is in addition to the reservation already available to the backward class and hence makes no difference against their favour. Exclusion of SCs/STs/non-creamy layer OBCs is justified as they are already receiving the benefit of special provisions.
• Regarding the issue of breach of 50% limit and violation of Equality Code, the respondents argue that such a limit is not inextricable and can be breached in extraordinary circumstances. Moreover, had the amendment been extending this 10% reservation towards the SEBCs/SCs/STs/OBCs, that would have been the violation of the Indra Sawhney judgment, which is not the case in the present scenario.
• The amendment furthers substantive equality to the needs of each section of society, and extending the benefit of reservation to the EWS champions the ethos of reservation.
• The amendment also strikes a harmony between the Fundamental Rights and DPSPs, as iterated in M Nagraj vs. UOI[11], by balancing out the right against discrimination and states duty to enhance equality to each section of the society by enlarging the bracket of beneficiaries of reservation.

Judgment in Janhit Abhiyan vs. Union of India

The Supreme Court, through a 3:2 majority upheld the constitutionality of the 103^rd Amendment to the constitution on the questions of,

• The basic structure of the constitution,
• Discrimination due to the exclusion of SCs/STs/OBCs/SEBCs in the 10% quota of EWS reservation,
• Economic criterion as the sole criteria to provide reservation under Articles 15(6) and 16(6) of the constitution,
• Application of 10% EWS reservation on private unaided educational institutions.

Basic structure of the Constitution

The Supreme Court referred to various previous judgments, such as Kesavananda Bharti vs. State of Kerala[12], etc., in order to understand and revisit the doctrine of basic structure of the constitution. It was held that an amendment is capable of violating the basic structure if it changes the form, character and content of the Constitution.

The court highlighted that the provisions for providing reservation to the weaker section by way of affirmative action do not form a part of basic feature of the constitution, as it is merely enabling in nature.

The court also quotes the intention of the drafters of the constitution in order to justify such a reasoning, that reservation was never meant to be permanent in the Indian society and was included just as a measure to include the weaker sections to the forefront of the society and provide them equal opportunity.

Reservation is an enabling provision, which allows the state to make arrangements for the upliftment of the weaker section of society. This, in court’s view, does not carry the weightage of violating the basic structure.

Moreover, if the Parliament is making some provisions in furtherance of socio-economic justice to the society, such an initiative could not be termed to be damaging the basic structure of the Constitution, and hence settles this issue that the said amendment is not a violation of the basic structure of the constitution.

Exclusion of SCs/STs/OBCs/SEBCs from the ambit of 10% quota of EWS Reservation

The court in its majority decision opines that the exclusion of other classes in the EWS Reservation is not an abrogation of basic structure and the fundamental rights of the weaker section of society.

The court’s reasoning is established on the fact that the SCs/STs/OBCs/SEBCs are already getting the benefit of affirmative action under the Articles 15(4), 15(5), 16(4), and have a certain quota earmarked for them in their favour.

Moreover, the court stresses on the fact that the EWS Reservation does not impact the benefit already accorded to the Socially and Educationally Backward Classes, as it does not encroach upon their ambit of quota provided to them.

The court furthers its reasoning by assuming that even if for the sake of the argument, it be assumed that the equality is violated by such a reservation, it shall be treated as a minor abridgment of the right and that too for justified and reasonable causes and hence does not amount to violation of basic structure and fundamental rights of the weaker sections.

Economic criteria as the sole criterion of deciding for reservation

The Constitution of India strives to provide an ‘economic democracy’ that aims at achieving economic, social and political justice.[13] The concept of economic justice furthers the goal of distributive justice[14] in Indian society as envisioned by the framers of the constitution.

The court analyses the importance of economic justice by interpreting the constitution holistically.

The court cites the landmark judgments of M.R. Balaji[15], R. Chitralekha[16], M. Nagraj v. UOI, etc. in order to highlight that the Supreme Court has previously opined that poverty is an indicator of backwardness while considering reservation. The state is empowered to make provisions for the economically disadvantaged section of the society under Articles 38 and 46 of Part IV of the Constitution.

The court further points out that the constitution sanctions every such affirmative action of the government which aims at furthering the goal of establishing an egalitarian society and furthering the socio-economic order which is one of the prime objectives of our constitution[17].

The court strikes a difference between substantive and formalistic equality, through which the court infers that the Constitution espouses equality in the true sense and substance and not merely as a formality.

In providing equality in the truest sense, the court must look forward to cover all the backward classes of the society, including those that are struggling with economic restraints and must need the help of the state in order to break the shackles and disabilities caused due to economic factors.

The court is of the opinion that restricting affirmative action to SCs/STs/OBCs/SEBCs would defeat the purpose and miss the texture of the concept of substantive justice as espoused in the constitution.

Moreover, the reservation cannot be availed solely on economic criteria under Articles 15(4), 15(5), 16(4), but it must not restrict the state to make special provision for the economically backward classes which furthers the preambular goal of the constitution.

The court does not put a blanket ban on providing reservation to economically weaker section. the court tends to give widest interpretation to the term ‘other weaker sections’ in order to realise the goal of distributive justice.

The court also stresses on the application of dynamic interpretation of constitution in order to realise the goals as espoused by the makers of the constitution and upholding its relevance in letter and spirit.

Breach of 50% ceiling of reservation

The petitioners challenged the amendment on the ground that it violates the 50% limit of reservation and hence violates the equality code. This was challenged with regard to the judgment of Indra Sawhney vs. UOI[18].

The court however, took the stance and quoted Indra Sawhney to establish that the 50% reservation is not inviolable. The limit could be breached in extraordinary situations. Moreover, since the 103^rd amendment merely enacts an enabling provision for providing reservation to the economically weaker section, such a contention becomes unacceptable.

The basis of this 50% ceiling limit is that reservation should not be such that it adversely affects another section of society[19]. Keeping that in mind, if the state makes a law in order to realise substantive equality for any weaker section of society, it has the assent of the constitution to do so, in furtherance of fulfilling the preambular goal of equality.

Application of EWS reservation in a private institution

The court settled this question by referring to the case of Pramati Trust[20], where the court held that the amendment shall be applicable to all the private educational institutions (aided and unaided), subject to the Articles 29 and 30 of the Constitution.

Dissenting opinions of CJI UU Lalit and J. Ravindra Bhat

CJI UU Lalit and J Ravindra Bhat collectively held that the 103^rd amendment is violative of the basic structure of the constitution on the following grounds:

That the exclusion of SCs/STs/OBCs/SEBCs is completely against the equality code which is essential to the nature of the constitution. It is believed that such an exclusion is a furtherance of discrimination against the historically disadvantaged and deprived communities. The 10% reservation disallows such communities to not compete outside their allocated reservation quotas, which is arbitrary in nature.

However, there seems to be no disagreement with regard to providing reservation through Article 15 solely on the basis of economic criteria. The court realises that through dynamic interpretation[21] one may include the economically weaker section as a part of the backward class which is not able to afford the benefit of education and hence get forever stuck in the vicious cycle of poverty.

However, the dissenting judges believe that such a reservation is not allowed under Article 16 of the constitution, which talk about equality of opportunity in employment. The rationale behind this provision is to provide representation to the historically disadvantaged and weaker section of society, thus giving reservation on the sole basis of economic criteria would be against the ethos of the constitution which aims to provide equal representation to all the classes of society.

Conclusion

After understanding and analysing the nuances of the 103^rd amendment to the constitution, which introduces reservation to the economically weaker sections of the society under Articles 15(6) and 16(6), one may be able to deduce that India is still suffering from rampant poverty and needs strong measures to extend the social and economic benefit to every strata of society. State must ensure social mobility in order to lessen the chasm between the rich and poor so that a homogenous society may be created.

Supreme Court has interpreted the amendment in such a manner that it may fulfil the preambular goal of rendering economic justice to all. Parallelly, the dissenting opinion of CJI UU Lalit and J Ravindra Bhat signifies the historical essence of reservation as a reparation to those invariably discriminated by virtue of their caste.

One may understand that this judgment showcases both the aspects of backwardness in the society, be it social or economic, however, they must not be understood in isolation as they are heavily co-dependent on each other, and must be factored together for the larger interest of society.

References:

[1] THE CONSTITUTION (ONE HUNDRED AND THIRD AMENDMENT) ACT, 2019

[2] Constitution of India, 1950

[3] Janhit Abhiyan v. Union of India 2022 SCC OnLine SC 1540.

[4] Motilal Nehru Report, 1928

[5] scobserver.in

[6] The NMPI assists in estimation of poverty at the level of the states and all the over 700 districts across the 12 indicators, capturing multitude of deprivations and indicator-wise contribution to poverty. Thus, in terms of NMPI, 51.91% population of Bihar is poor, followed by 42.16% in Jharkhand, 37.79% in Uttar Pradesh, with Madhya Pradesh (36.65%) as fourth in the index, and Meghalaya (32.67%) is at fifth place. Kerala, Goa, and Sikkim have the lowest percentage of population who are multidimensionally poor at 0.71%, 3.76% and 3.82%, respectively. Amongst Union Territories (UTs), Dadra and Nagar Haveli (27.36%), Jammu & Kashmir, and Ladakh (12.58%), Daman and Diu (6.82%) and Chandigarh (5.97%), are emerged as the poorest UTs. The proportion of poor in Puducherry at 1.72% is the lowest among the UTs, followed by Lakshadweep at 1.82%, Andaman & Nicobar Islands at 4.30% and Delhi at 4.79%

[7] scobserver.in

[8] M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”), See para 21

[9] R. Chitralekha v. State of Mysore & Ors, 1964 AIR 1823

[10]K .C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714

[11] M. Nagaraj v. Union of India, (2006) 8 SCC 212

[12] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

[13] Constituent Assembly Debates, Vol VII, p. 494

[14] Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479

[15] M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”), See para 21

[16] R. Chitralekha v. State of Mysore & Ors, 1964 AIR 1823

[17] He is also credited to have presided over the first All India Conference of the Depressed Classes at Nagpur in the year 1920 where Dr. B. R. Ambedkar was among the main speakers and where it was resolved, among other things, to have true representatives of the depressed classes in the legislature. [Vide : Dr. Sanjay Paswan, Dr. Pramanshi Jaideva, ‘Encyclopaedia of Dalits in India’, Kalpaz Publications, New Delhi (2003)]

[18] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217,

[19] State of Kerala v. N.M. Thomas, (1976) 2 SCC 310

[20] Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1, (“Pramati”)

[21] M. Nagaraj v. Union of India, (2006) 8 SCC 212

This article has been authored by Ojaswini Gupta, a student at Dharmashastra National Law University, Jabalpur.