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Constitutional validity of 103rd Amendment – Referred to Five Judge Bench: SC



Janhit Abhiyan Vs. Union of India & Ors. WRIT PETITION (C) NO.55 OF 2019, 5th August, 2020.

The Bench comprising of Hon’ble CJI.S.A. BOBDE, Hon’ble Justice R. SUBHASH REDDY and Hon’ble Justice B.R. GAVAI passed the order.

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., in support of his argument that for examining amendments to equality provisions of the 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. Nagaraj which is approved in the case of I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors., 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.

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 Sawhney, 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.

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(2012) 6 SCC 1 has approved the classification based on economic criteria as provided under provisions of Right of Children to Free and Compulsory Education Act, 2009. He 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 Sawhney 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 Nadu(1996) 11 SCC 740. 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 Rajasthan, 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 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.. 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 the edifice of the Constitution.

The court analysed a few aspects

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.

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, the court 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. Writ Petition involving the very same question, i.e., challenge to the validity of The Constitution (One Hundred and Third Amendment) Act, 2019 has 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, the court 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 above mentioned writ petitions.

For the aforesaid reasons, the court 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.

View/ Download the Order: Janhit Abhiyan Versus Union of India & Ors.

WRIT PETITION (C) NO.55 OF 2019
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Karthik K.P (School of Law, SASTRA Deemed to be University)


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