JANHIT ABHIYAN versus UNION OF INDIA & ORS.
[2020] 7 S.C.R. 158, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Issues
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JANHIT ABHIYAN
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 55 of 2019)
AUGUST 05, 2020
[S. A. BOBDE, CJI, R. SUBHASH REDDY AND
B. R. GAVAI, JJ.]
Constitution of India:
Art. 143 r/w. Order XXXVIII of Supreme Court Rules, 2013 –
Writ Petition – Challenging Constitution (One Hundred and Third
Amendment) Act, 2019 – Whereby Arts. 15 and 16 were amended by
inserting Clause (6) in the provisions – The newly inserted clause
empowered the State to make provision for reservation to the extent
of 10% in favour of economically weaker sections for admission in
educational institutions and for appointment in service – The
Constitutional amendment was challenged on the grounds that it
was ultra vires as it altered the basic structure of the Constitution;
that it ran contrary to the dictum in *Indra Sawhney case etc. –
Held: The questions involved and raised in the present case involve
substantial question of law as to interpretation of the Constitution
– As such they are required to be heard by a Constitution Bench of
five Judges in view of provisions in Art. 145(3) of the Constitution
and order XXXVIII of Supreme Court Rules.
M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8
SCC 212 : [2006] 7 Suppl. SCR 336 – referred to.
Arts. 15(6) and 16(6) [As inserted by Constitution (One
Hundred and Third Amendment) Act, 2019] – State empowered to
make provision for reservation, to the extent of 10% in favour of
economically
weaker sections, for admission in educational
institutions and for appointment in service – Whether the amendment
is ultra vires the Constitution – Matter referred to Constitution Bench
of Five Judges for determining the question.
*Indra Sawhney & Ors. v. Union of India & Ors. (1992)
Supp. 3 SCC 217 : [1992] 2 Suppl. SCR 454; Ashoka
Kumar Thakur v. Union of India & Ors. (2008) 6 SCC
[2020] 7 S.C.R. 158
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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
referred to
Para 3
[2008] 4 SCR 1
referred to
Para 4
[2006] 7 Suppl. SCR 336
referred to
Para 7
[2007] 1 SCR 706
referred to
Para 7
[2018] 10 SCR 663
referred to
Para 7
[1963] Suppl. 1 SCR 439
referred to
Para 9
[2012] 2 SCR 715
referred to
Para 11
[1996] 4 Suppl. SCR 647
referred to
Para 11
[1973] Suppl. SCR 1
referred to
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,
JANHIT ABHIYAN v. UNION OF INDIA & ORS.
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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.
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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.
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
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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. 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.
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:
1 1992 Supp.(3) SCC 217
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•
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
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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
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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, in support of his
argument that for examining amendments to equality provisions of the
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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.
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
4 (2007) 2 SCC 1
5 (2018) 10 SCC 396
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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 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 has approved
the classification based on economic criteria as provided under provisions
of Right of Children to Free and Compulsory Education Act, 2009. He
6 (1963) Supp. 1 SCR 439
7 (2012) 6 SCC 1
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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. 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.
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
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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:
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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
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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
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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.
Kalpana K. Tripathy
Matters referred to five Judges Bench.