Economic Backwardness Can Be Temporary, Other Forms Of Backwardness Attached To Lineage : Supreme Court Says During EWS Case Hearing [Day 6]

The Supreme Court Constitution Bench, comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, on Thursday, continued hearings on the cases challenging the constitutional validity of reservation for Economically Weaker Sections. The arguments were commenced by Solicitor General of India, Tushar Mehta, who had provided a brief framework of his arguments in the last hearings. I. Constitutional Amendments can only be challenged on violation of basic structureSG Mehta commenced his arguments by submitting that constitutional amendments could be challenged only on the ground of violation of basic structure of the Constitution. He stated that while challenging statutory provision, it was permissible to state that a given provision violated an Article of the Constitution. However, he submitted that when the Parliament itself inserted a provision, the validity of such a provision could not be questioned unless the said provision shook the very identity of the Constitution. He added–"The Constitution is not a static formula which can never take care of aspirations of the nation. Who decides the aspirations of nation? The parliament. So if the parliament feels that without disturbing 15(4) or (5), some affirmative action is needed, your lordships won't intervene in it."In this context, SG Mehta also quoted Jaishri Laxmanrao Patil v. The Chief Minister And Ors. and stated–"Constitutional adjudication involves making choices, which necessarily means that lines have to be drawn, and at times re-drawn, depending on "the cauldron of change."He submitted that due to these new aspirations of people and the constant drawing and redrawing of lines, if one additional class was added without disturbing the existing classes, it could not be challenged. He stated that when the constitution is amended, the validity of amendment could only be tested upon whether the amendment changed the very basic structure of the constitution. He added that it was never permitted to argue that a constitutional amendment was impermissible because it was different than or not completely in tune with other provisions of the Constitution. He submitted–"While testing the insertion of a new clause, reliance cannot be placed on another clause unless you say that the edifice of the Constitution goes away by adding the new clause."While submitting that the Parliament's power to amend the constitution was a delegated and constituent power, he stated that, challenging a constitutional amendment needed an extremely high degree of threshold. He added–"Most petitioners have fallen into this fallacy. Indira Nehru Gandhi, Minerva Mill, Waman Rao, A.K. Roy, Kihoto, M Nagaraj and State NCT of Delhi v. UOI- all these judgements state a high degree of threshold is required. If 15(6), it's insertion, if it violates basic structure, the first exercise the petitioners should have undertaken is which is the basic structure which was violated? This would be my quintessential submission, that a constitutional amendment may even touch upon a basic structure, hypothetically, but unless it is shown that it alters the basic structure, it cannot be struck down."II. Identification of Basic StructureSG stated that in order to identify what constituted the basic structure, the principle guide was the Preamble of the Constitution. He stated–"Considering the preamble, the amendment not only not destroys the basic structure but it strengthens the Preamble by giving justice- economic justice which is a fundamental part of the Preamble. The amendment enhances the basic structure if Preamble is the base."While referring to the judgements of State of Madras v. Champakam Dorairajan, M. R. Balaji And Others v. State Of Mysore, Indra Sawhney v. Union of India and Jaishree Patil v. Chief Minister, he submitted that the Equality code was part of the basic structure. He added–"Equality code can suitably be legislatively touched upon if it doesn't destroy the basic structure. It's an elastic concept, not static."He stated that the exercise of constituent power may in certain cases be regarded as enhancing the basic structure, when it introduces new human rights and in that context, the 103rd amendment strengthened the basic structure by giving justice on economic principles. III. What constitutes violation of Basic StructureOn the point of what constituted a violation of the basic structure, SG Mehta quoted Justice Sikri from the Kesavananda Bharati v. State of Kerala and stated that–"It's like four legs of a chair. Unless you remove one leg and it stops being a chair, it's not to be struck down." He further referred to Minerva Mills v. Union of India and added–"It should completely change the identity, if they wish to scrutinise the constitutional amendment. Basic features aren't general constitutional rules but only those which are central to the constitution. Identifying basic features isn't by identifying best features but...

Economic Backwardness Can Be Temporary, Other Forms Of Backwardness Attached To Lineage : Supreme Court Says During EWS Case Hearing [Day 6]

Padmakshi Sharma

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