‘103rd Amendment can’t be said to breach Constitution structure’

NEW DELHI: The Supreme Court on Monday, with a 3:2 majority, upheld the constitutional validity of the 103rd Constitution amendment providing 10 per cent reservation to economically weaker sections (EWS) persons in admissions and government jobs.

A five-judge bench, headed by Chief Justice U.U. Lalit and comprising Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J.B. Pardiwala, heard a batch of petitions by NGO Janhit Abhiyan and others challenging the EWS quota.

In a 3:2 majority, Justices Maheshwari, Trivedi, and Pardiwala - while writing three separate judgments -- upheld the EWS quota, while Justice Bhat, along with Chief Justice Lalit, dissented.

Authoring a 155-page judgment, Justice Maheshwari said: "The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria."

Dismissing the petitions challenging the EWS quota, he said: "The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation."

Justice Maheshwari said reservation structured singularly on economic criteria does not violate any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution.

"Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution."

He added that reservation for economically weaker sections of citizens up to 10 per cent in addition to the existing reservations does not result in violation of any essential feature of the Constitution and does not cause any damage to its basic structure on account of breach of the ceiling limit of 50 per cent.

"Because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution," he held.

Authoring a 24-page separate judgment, Justice Trivedi said: "Treating economically weaker sections of the citizens as a separate class would be a reasonable classification, and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14. As laid down by this Court, just as equals cannot be treated unequally, unequals also cannot be treated equally. Treating unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution."

Upholding the validity of EWS quota, she said the sum and substance is that the limitations - substantive or procedural - imposed on the exercise of constituent power of the state under Article 368 could not be said by any stretch of imagination, to have been disregarded by the Parliament.

"The impugned amendment creates a separate class of aeconomically weaker sections of the citizens from the general/unreserved class, without affecting the special rights of reservations provided to the Scheduled Caste/Scheduled Tribe and backward class of citizens covered under Article 15(4), 15(5) and 16(4). Therefore, their exclusion from the newly created class for the benefit of the 'economically weaker sections of the citizens' in the impugned amendment cannot be said to be discriminatory or violative of the equality code," she said.

Justice Trivedi said the amendment enabling the state to make special provisions for the "economically weaker sections" of the citizens other than the scheduled castes/scheduled tribes and socially and educationally backward classes of citizens, is required to be treated as an affirmative action on the part of the Parliament for the benefit and for the advancement of the economically weaker sections of the citizens.

In a 117-judgment, Justice Pardiwala said: "The new concept of economic criteria introduced by the impugned amendment for affirmative action may go a long way in eradicating caste-based reservation. It may be perceived as a first step in the process of doing away with caste-based reservation."