[EWS Quota] Why Supreme Court's Minority Judgment Did Not Read Down 103rd Constitutional Amendment ?
The Constitution Bench of the Supreme Court by 3:2 majority upheld the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment.
Justice S Ravindra Bhat, with whom Chief Justice of India Uday Umesh Lalit joined, authored a dissenting opinion to strike it down. According to the minority view, the amendment – by excluding backward classes – is violative of the basic structure.
Constitution (103rd Amendment) Act, 2019
The amendment inserted Clause (6) to Article 15 which reads as follows:
(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
Clause (6) inserted to Article 16 reads thus:
"(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 reservation and subject to a maximum of ten per cent. of the posts in each category.
Plea To Read Down "Other Than" As "In Addition To" Rejected
Some of the petitioners had contended that amendment could be sustained, if the phrase "other than" was read down, in such a manner so as to read as "in addition to" or in a manner that negates the exclusionary element.
Addressing this submission, Justice Bhat noted that the doctrine of reading down is to be used sparingly, and in limited circumstances. The act of reading down a provision, must be undertaken only if doing so, can keep the operation of the statute "within the purpose of the Act and constitutionally valid, the judge observed.
The judge also referred to the observations made in Minerva Mills case that the principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. It was noted in the said judgment that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intended
"The intention of Parliament while exercising constituent power occupies a much higher threshold or operates in a higher plane, when compared to legislative intent of ordinary law, the latter being subject to different grounds of judicial scrutiny. Therefore, attractive as it may be – it is my considered opinion that the plea to read down the exclusion, is untenable because the intention of the Parliament in exercise of its constituent power is clear and unambiguous", Justice Bhat observed.
Thus the minority opined that 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. For these reasons, 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 nondiscrimination and non-exclusion which forms an inextricable part of the basic structure of the Constitution, it was observed.
Majority Judgment Also Rejects This Construction
The majority judgment by Justice Dinesh Maheshwari also rejected this construction of 'other than'. The judge observed that the suggested construction is plainly against the direct meaning of the exclusionary expression "other than" as employed in, and for the purpose of, the said Articles 15(6) and 16(6). The judge also referred to the official Hindi translation of the amendment and observed that same 'would remove any misconception where the exclusionary Hindi expression "भिन्न" (bhinn) has been employed in relation to the expression "other than"'.
According to the Justice Maheshwari, the 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 nondiscrimination and compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India.
Janhit Abhiyan vs Union Of India | 2022 LiveLaw (SC) 922 | WP(C) 55 OF 2019 | 7 Nov 2022 | Justices CJI U U Lalit, Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J B Pardiwala
[From Majority Judgment by Dinesh Maheshwari J [ Bela M. Trivedi J and J B Pardiwala J concurring ]
Constitution of India, 1950 ; Articles 14, 15, 16 - Constitution (103rd Amendment) Act, 2019 - Constitution validity of EWS Quota upheld - Reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India - 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 of India. (Para 102)
Constitution of India, 1950 ; Articles 14, 15, 16 - Reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations does not result in violation of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of fifty 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 of India. (Para 102)
Constitution (103rd Amendment) Act, 2019 - The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by (1) permitting the State to make special provisions, including reservation, based on economic criteria (2) permitting the State to make special provisions in relation to admission to private unaided institutions (3) in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation. (Para 104)