Holding

The 103rd Constitution Amendment is valid and does not violate the basic structure of the Constitution; reservation based on economic criteria is permissible, exclusion of backward classes is justified as compensatory discrimination, and the 50% ceiling is not breached as it applies only to existing reservations under Articles 15(4), 15(5), and 16(4).

Summary

The Constitution (One Hundred and Third Amendment) Act, 2019 amended Articles 15 and 16 of the Indian Constitution to empower the State to provide up to 10% reservation for 'economically weaker sections' (EWS) of citizens, excluding Scheduled Castes, Scheduled Tribes, and the non-creamy layer of Other Backward Classes. The amendment was challenged on three grounds: that reservation based solely on economic criteria violates the basic structure of the Constitution; that excluding socially and educationally backward classes from EWS benefits is discriminatory; and that the additional 10% reservation breaches the 50% ceiling on reservations established by previous Supreme Court decisions. By a 3:2 majority, the Supreme Court upheld the amendment. The majority held that reservation based on economic criteria does not violate any essential feature of the Constitution, as it is a valid affirmative action to address economic disadvantages. The exclusion of backward classes was justified as a form of compensatory discrimination necessary to balance existing reservations and avoid double benefits. The 50% ceiling was found not to be inflexible and in any case applies only to reservations under Articles 15(4), 15(5), and 16(4), not to the new EWS reservation. The minority opinion struck down the amendment, holding that the exclusion of backward classes from EWS benefits violates the equality code and the basic structure of the Constitution, particularly the principles of non-discrimination and fraternity. The minority also found Article 16(6) violative of equal opportunity in public employment. Consequently, the challenge to the 103rd Amendment failed, and its validity was upheld by the majority.

Issues considered

Whether the 103rd Constitution Amendment breaches the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?
Whether the 103rd Constitution Amendment breaches the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?
Whether the 103rd Constitution Amendment breaches the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be considered to be a part of the basic structure of the Constitution, and if so, can the 103rd Constitution Amendment be said to breach the basic structure of the Constitution?

Legislation cited

Constitution (Eighty-fifth Amendment) Act, 2001
Constitution (Eighty-first Amendment) Act, 2000
Constitution (Eighty-second Amendment) Act, 2000
Constitution (Ninety‑third Amendment) Act, 2005
Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 17, s. Article 21, s. Article 21A, s. Article 335, s. Article 368, s. Article 38, s. Article 39, s. Article 46
Constitution (One Hundred and Third Amendment) Act, 2019s. Section 2, s. Section 3
Constitution (Seventy-seventh Amendment) Act, 1995
Right of Children to Free and Compulsory Education Act, 2009s. Section 12

Subjects

Constitutional LawReservationEconomically Weaker SectionsBasic Structure DoctrineEquality CodeAffirmative ActionCaste DiscriminationJudicial ReviewCompensatory Discrimination50% CeilingExclusion of Backward ClassesFraternityNon-discriminationPublic EmploymentPrivate Unaided Institutions

Judgment

[2022] 14 S.C.R. 1 1

JANHIT ABHIYAN A
v.
UNION OF INDIA
(Writ Petition (Civil) No. 55 of 2019)
NOVEMBER 07, 2022 B
[UDAY UMESH LALIT, CJI, DINESH MAHESHWARI,
S. RAVINDRA BHAT, BELA M. TRIVEDI AND
J.B. PARDIWALA, JJ.]
Constitution (One Hundred and Third Amendment) Act, 2019
C
– Challenge to – Vide said amendment, Arts. 15 and 16 of the
Constitution were amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby,
the State was empowered, inter alia, to provide for a maximum of ten
per cent reservation for “the economically weaker sections” (EWS)
of citizens other than “the Scheduled Castes”, “the Scheduled D
Tribes” and the non-creamy layer of “the Other Backward Classes”
– The amendment did not mandate but enabled reservation for EWS
and prescribed a ceiling limit of ten per cent – Challenge to said
amendment essentially on three-fold grounds: first, that making of
special provisions including reservation in education and employment
E
on the basis of economic criteria is entirely impermissible and offends
the basic structure of the Constitution; second, that in any case,
exclusion of socially and educationally backward classes i.e., SCs,
STs and non-creamy layer OBCs from the benefit of the special
provisions for EWS is inexplicably discriminatory and destroys the
basic structure of the Constitution; and third, that providing for ten F
per cent additional reservation directly breaches the fifty per cent
ceiling of reservations already settled by decisions of Supreme Court
and hence, results in unacceptable abrogation of the Equality Code
which, again, destroys the basic structure of the Constitution –
Constitution (One Hundred and Third Amendment) Act, 2019 –
G
Validity of – Held (per 3:2 majority) (Majority opinion contained in
separate judgments rendered by Dinesh Maheshwari, Bela M.
Trivedi and J.B. Pardiwala, JJ.) : Valid – Held (per Dinesh
Maheshwari, J.): Reservation is an instrument of affirmative action
by the State so as to ensure all-inclusive march towards the goals of
H
1
2 SUPREME COURT REPORTS [2022] 14 S.C.R.

A an egalitarian society while counteracting inequalities; it is an
instrument not only for inclusion of socially and educationally
backward classes to the mainstream of society but, also for inclusion
of any class or section so disadvantaged as to be answering the
description of a weaker section – In this background, reservation
structured singularly on economic criteria does not violate any
B
essential feature of the Constitution and does not cause any damage
to the basic structure of the Constitution – Exclusion of the classes
covered by Arts.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
C discrimination, does not violate Equality Code and does not in any
manner cause damage to the basic structure of the Constitution –
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 and does not
cause any damage to the basic structure of the Constitution on
D
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
reservations envisaged by Arts.15(4), 15(5) and 16(4) of the
Constitution – The 103rd Constitution Amendment cannot be said to
breach the basic structure of the Constitution by permitting the State
E to make special provisions, including reservation, based on
economic criteria or by permitting the State to make special provisions
in relation to admission to private unaided institutions or in excluding
the SEBCs/OBCs/SCs/STs from the scope of EWS reservation – Held
(per Bela M. Trivedi, J.) (Concurring with Dinesh Maheshwari, J.):
The impugned amendment enabling the State to make special
F
provisions for the “economically weaker sections” of the citizens
other than the scheduled castes/schedules 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 advancement of the economically weaker sections of the
G citizens – Treating economically weaker sections of the citizens as a
separate class would be a reasonable classification, and cannot be
termed as an unreasonable or unjustifiable classification, much less
a betrayal of basic feature or violative of Art.14 – Just as equals
cannot be treated unequally, unequals also cannot be treated equally
– Treating unequals as equals would as well offend the doctrine of
H
JANHIT ABHIYAN v. UNION OF INDIA 3

equality enshrined in Arts.14 and 16 of the Constitution – The A
impugned amendment creates a separate class of “economically
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 Art.15(4), 15(5) and 16(4) – Therefore, their exclusion
B
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 – Such
amendment could certainly be not termed as shocking,
unconscionable or unscrupulous travesty of the quintessence of
equal justice – The limitations- substantive or procedural - imposed C
on the exercise of constituent power of the State under Art.368 could
not be said by any stretch of imagination, to have been disregarded
by the Parliament – Neither the procedural limitation i.e. the mode
of exercise of the amending power nor the substantive limitation i.e.
the restricted field has been disregarded, which otherwise would
D
invalidate the impugned amendment – What is visualised in the
Preamble and what is permissible both in Part-III and Part-IV of the
Constitution cannot be said to be violative of the basic structure or
basic feature of the Constitution – In absence of any obliteration of
any of the constitutional provisions or any alteration or destruction
in the existing structure of equality code or in the basic structure of E
the Constitution, neither the width test nor the identity test as
propounded in Kesavananda case can be said to have been violated
in the impugned Amendment – Accordingly, the challenge to the
constitutional validity of the 103rd Amendment fails, and the validity
thereof is upheld – However, there is a need to revisit the system of
F
reservation in the larger interest of the society as a whole, as a step
forward towards transformative constitutionalism – If a time limit is
prescribed, for the special provisions in respect of the reservations
and representations provided in Arts. 15 and 16 of the Constitution,
it could be a way forward leading to an egalitarian, casteless and
classless society – Held (per J.B. Pardiwala, J.) (Concurring with G
Dinesh Maheshwari, J.): Reservation is not an end but a means – a
means to secure social and economic justice – The longstanding
development and the spread of education have resulted in tapering
the gap between the classes to a considerable extent – As larger
percentages of backward class members attain acceptable standards
H
4 SUPREME COURT REPORTS [2022] 14 S.C.R.

A of education and employment, they should be removed from the
backward categories so that the attention can be paid toward those
classes which genuinely need help – In such circumstances, it is
very much necessary to take into review the method of identification
and the ways of determination of backward classes, and also,
ascertain whether the criteria adopted or applied for the
B
classification of backward is relevant for today’s conditions –
Reservation should not continue for an indefinite period of time so
as to become a vested interest – The impugned amendment is valid
and in no manner alters the basic structure of the Constitution –
Held (per S. Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and
C himself) (Minority opinion): The States’ compelling interest to fulfil
the objectives set out in the Directive Principles, through special
provisions on the basis of economic criteria, is legitimate – That
reservation or special provisions have so far been provided in favour
of historically disadvantaged communities, cannot be the basis for
contending that other disadvantaged groups who have not been
D
able to progress due to the ill effects of abject poverty, should remain
so and the special provisions should not be made by way of affirmative
action or even reservation on their behalf – Therefore, special
provisions based on objective economic criteria (for the purpose of
Art.15), is per se not violative of the basic structure – However, the
E framework in which it has been introduced by the impugned
amendment – by excluding backward classes -– is violative of the
basic structure – 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 – Insertion of
F
Art.15(6) and 16(6) is struck down, and is held to be violative of the
equality code, particularly the principle of non-discrimination and
non-exclusion which forms an inextricable part of the basic structure
of the Constitution – ss.2 and 3 of the Constitution (One Hundred
and Third Amendment) Act, 2019 which inserted clause (6) in Art.15
G and clause (6) in Art.16, respectively, are unconstitutional and void
on the ground that they are violative of the basic structure of the
Constitution – Constitution of India – Arts. 15 and 16.
Doctrines/Principles – Doctrine of basic structure – Vide
Constitution (One Hundred and Third Amendment) Act, 2019, Arts.
H 15 and 16 of the Constitution was amended by adding two new
JANHIT ABHIYAN v. UNION OF INDIA 5

clauses viz., clause (6) to Art.15 with Explanation and clause (6) to A
Art.16; and thereby, the State was empowered, inter alia, to provide
for a maximum of ten per cent reservation for “the economically
weaker sections” (EWS) of citizens other than “the Scheduled
Castes”, “the Scheduled Tribes” and the non-creamy layer of “the
Other Backward Classes” – The amendment did not mandate but
B
enabled reservation for EWS and prescribed a ceiling limit of ten
per cent – Whether the doctrine of basic structure could be invoked
for laying a challenge to the 103rd Amendment – Held (per Dinesh
Maheshwari, J.): No – Using the doctrine of basic structure as a
sword against the amendment in question and thereby to stultify State’s
effort to do economic justice as ordained by the Preamble and DPSP C
and, inter alia, enshrined in Articles 38, 39 and 46 of the Constitution
cannot be countenanced – Provisions contained in Arts. 15 and 16
of the Constitution, providing for reservation by way of affirmative
action, being of exception to the general rule of equality, cannot be
treated as a basic feature – Moreover, even if reservation is one of
D
the features of the Constitution, it being in the nature of enabling
provision only, cannot be regarded as an essential feature of that
nature whose modulation for the sake of other valid affirmative
action would damage the basic structure of the Constitution –
Constitution (One Hundred and Third Amendment) Act, 2019.
Constitution of India – Art.368 – Power to amend the E
Constitution availing under Art.368 – Held (Per Dinesh
Maheshwari, J.): Is recognized as a constituent power and is subject
to various safeguards intrinsic to Art.368, including the procedural
safeguards.
Constitution of India – Art.368 – Doctrine of Basic Structure F
and Constitutional Amendments – Discussed – Held (Per Dinesh
Maheshwari, J.): The power to amend the Constitution essentially
vests with the Parliament and when a high threshold and other
procedural safeguards are provided in Art.368, it would not be
correct to assume that every amendment to the Constitution could G
be challenged by theoretical reference to the basic structure doctrine
– As exposited in Kesavananda case, the amending power can even
be used by the Parliament to reshape the Constitution in order to
fulfil the obligation imposed on the State, subject, of course, to the
defined limits of not damaging the basic structure of the Constitution
H
6 SUPREME COURT REPORTS [2022] 14 S.C.R.

A – Again, as put in Kesavananda case, judicial review of constitutional
amendment is a matter of great circumspection for the judiciary where
the Courts cannot be oblivious of the practical needs of the
Government and door has to be left open even for ‘trial and error’,
subject, again, to the limitations of not damaging the identity of the
Constitution – The expressions “basic features” and “basic
B
structure” convey different meaning, even though many times they
have been used interchangeably – Basic structure of the Constitution
is the sum total of its essential features – As to when abrogation of
any particular essential feature would lead to damaging the basic
structure of Constitution would depend upon the nature of that
C feature as also the nature of amendment – As regards Part-III of the
Constitution, every case of amendment of Fundamental Rights may
not necessarily result in damaging or destroying the basic structure
– The issue would always be as to whether what is sought to be
withdrawn or altered is an inviolable part of the basic structure –
Mere violation of the rule of equality does not violate the basic
D
structure of the Constitution unless the violation is shocking,
unconscionable or unscrupulous travesty of the quintessence of
equal justice – If any constitutional amendment moderately abridges
or alters the equality principles, it cannot be said to be a violation
of the basic structure.
E Doctrines / Principles – Doctrine of equality – Reasonable
classification – Discussed – Held (Per Dinesh Maheshwari, J.):
Equals must be treated equally while unequals need to be treated
differently – A classification to be valid must necessarily satisfy two
tests: first, the distinguishing rationale should be based on a just
F objective and secondly, the choice of differentiating one set of
persons from another should have a reasonable nexus to the object
sought to be achieved – However, a valid classification does not
require mathematical niceties and perfect equality; nor does it require
identity of treatment – If there is similarity or uniformity within a
group, the law will not be condemned as discriminatory, even though
G due to some fortuitous circumstances arising out of a particular
situation, some included in the class get an advantage over others
left out, so long as they are not singled out for special treatment – In
spite of certain indefiniteness in the expression ‘equality’, when the
same is sought to be applied to a particular case or class of cases in
H
JANHIT ABHIYAN v. UNION OF INDIA 7

the complex conditions of a modern society, there is no denying the A
fact that the general principle of ‘equality’ forms the basis of a
Democratic Government – Democracy – Constitution of India –
Arts. 14 to 18.
Reservation – Affirmative Action by ‘Reservation’: Exception
to the General Rule of Equality – Affirmative action by way of B
compensatory discrimination – Held (Per Dinesh Maheshwari, J.):
In a multifaceted social structure, ensuring substantive and real
equality, perforce, calls for consistent efforts to remove inequalities,
wherever existing and in whatever form existing – Hence, the State
is tasked with affirmative action – And, one duly recognised form of
affirmative action is by way of compensatory discrimination, which C
has the preliminary goal of curbing discrimination and the ultimate
goal of its eradication so as to reach the destination of real and
substantive equality – This has led to what is known as reservation
and quota system in State activities – The ‘doctrine of equality’, as
collectively enshrined in Arts.14 to 18, happens to be the principal D
basis for the creation of a reasonable classification whereunder
‘affirmative action’, be it legislative or executive, is authorised to
be undertaken – The constitutional Courts too, precedent by
precedent, have constructively contributed to evolution of what may
be termed as ‘reservation jurisprudence’ – Reservation
jurisprudence – Constitution of India – Arts. 14 to 18. E

Reservation – For economically weaker sections – Economic
Disabilities and Affirmative Action – Held (Per Dinesh Maheshwari,
J.): The expression ‘economically weaker sections of citizens’ is not
a matter of mere semantics but is an expression of hard realities –
Poverty is not merely a state of stagnation but is a point of regression F
– Providing for affirmative action in relation to one particular
segment or class may operate constructively in the direction of
meeting with and removing the inequalities faced by that segment or
class but, if another segment of society suffers from inequalities
because of one particular dominating factor like that of poverty, G
the said segment could not be denied of the State support by way of
affirmative action of reservation only because of the fact that that
segment is otherwise not suffering from other disadvantages – In
the State’s efforts of ensuring all-inclusive socio-economic justice,
there cannot be competition of claims for affirmative action based
H
8 SUPREME COURT REPORTS [2022] 14 S.C.R.

A on disadvantages in the manner that one disadvantaged section
would seek denial of affirmative action for another disadvantaged
section – Justice – Socio-economic justice.
Doctrines /Principles – Principle of “Distributive Justice” –
Discussed – Mandate of the Constitution – Held (Per Dinesh
B Maheshwari, J.): Principle of “Distributive Justice” is a bedrock of
the provisions like Art.46 as also Arts. 38 and 39 of the Constitution
– The mandate of the Constitution to the State is to administer
distributive justice; and in the law-making process, the concept of
distributive justice connotes, inter alia, the removal of economic
inequalities – There could be different methods of distributive justice
C – The philosophy of distributive justice is of wide amplitude which,
inter alia, reaches to the requirements of removing economic
inequalities; and then, it is not confined to one class or a few classes
of the disadvantaged citizens – The wide spectrum of distributive
justice mandates promotion of educational and economic interests
D of all the weaker sections, in minimizing the inequalities in income
as also providing adequate means of livelihood to the citizens – In
this commitment, leaving one class of citizens to struggle because of
inequalities in income and want of adequate means of livelihood
may not serve the ultimate goal of securing all-inclusive socio-
economic justice – Constitution of India – Art.46, 38 and 39 – Words
E and Phrases – “Distributive Justice”.
Constitution of India – Doctrine of Basic Structure and
Constitutional Amendments – Held (Per Dinesh Maheshwari, J.):
There is no, and there cannot be any, cut-and-dried formula or a
theorem which could supply a ready-made answer to the question
F as to whether a particular amendment to the Constitution violates
or affects the basic structure – The nature of amendment and the
feature/s of the Constitution sought to be touched, altered,
modulated, or changed by the amendment would be the material
factors for an appropriate determination of the question – Doctrine
G of basic structure cannot be readily applied to every constitutional
amendment – Supreme Court has applied the same only against such
hostile constitutional amendments which were found to be striking
at the very identity of the Constitution, like direct abrogation of the
features of judicial review (Kesavananda, Minerva Mills and P.
Sambhamurthy cases); free and fair elections (Indira Nehru Gandhi
H
JANHIT ABHIYAN v. UNION OF INDIA 9

case); plenary jurisdiction of constitutional Courts (L. Chandra A
Kumar case); and independence of judiciary (NJAC Judgment case)
– Most of the other attempts to question the constitutional amendments
have met with disapproval of the Court even when there had been
departure from the existing constitutional provisions and scheme.
Constitution of India – Interplay of amending powers of the B
Parliament and judicial review by the Constitutional Court over such
exercise of amending powers – Reason for minimal interference by
Supreme Court in the constitutional amendments – Held (Per Dinesh
Maheshwari, J.): In our constitutional set-up of parliamentary
democracy, even when the power of judicial review is an essential
feature and thereby an immutable part of the basic structure of the C
Constitution, the power to amend the Constitution, vested in the
Parliament in terms of Art.368, is equally an inherent part of the
basic structure of the Constitution – Both these powers, of amending
the Constitution (by Parliament) and of judicial review (by
Constitutional Court) are subject to their own limitations. D
Reservation – Compensatory discrimination – Exclusion of
Socially and Educationally Backward Classes (SEBCs) / Other
Backward Classes (OBCs) / Scheduled Castes (SCs)/ Scheduled
Tribes (STs) from Economically Weaker Sections (EWS) reservation
– Held (Per Dinesh Maheshwari, J.): Compensatory discrimination, E
wherever applied, is exclusionary in character and could acquire
its worth and substance only by way of exclusion of others – Such
differentiation cannot be said to be legally impermissible; rather it
is inevitable – Exclusion of Socially and Educationally Backward
Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled
Castes (SCs)/ Scheduled Tribes (STs) from Economically Weaker F
Sections (EWS) reservation is compensatory discrimination of the
same species as is exclusion of general EWS from SEBCs/OBCs/
SCs/STs reservation.
Reservation – Reservation by affirmative action – Held (Per
Dinesh Maheshwari, J.): Economic backwardness of citizens can G
also be the sole ground for providing reservation by affirmative
action.
Equality – Indian constitutional jurisprudence – Equality
clause in the Constitution – Held (Per Dinesh Maheshwari, J.):
H
10 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Guarantee of equality is substantive and not a mere formalistic
requirement – Equality is at the nucleus of the unified goals of social
and economic justice.
Reservation – Exception to the general rule of equality – Held
(Per Dinesh Maheshwari, J.): For the socio-economic structure which
B the law in our democracy seeks to build up, the requirements of real
and substantive equality call for affirmative action – Reservation is
recognised as one such affirmative action, which is permissible under
the Constitution; and its operation is defined by a large number of
decisions of this Court, running up to the detailed expositions in Dr.
Jaishri Patil case – However, reservation is nevertheless an exception
C to the general rule of equality and hence, cannot be regarded as
such an essential feature of the Constitution that cannot be
modulated.
Constitution of India – Art.46 – Phraseology of Art. 46 –
Expression “other weaker sections” in Art.46 – Meaning of – Held
D (Per Dinesh Maheshwari, J.): The broader expression “other weaker
sections” in Art.46 is disjointed from the particular weaker sections
(Scheduled Castes and Scheduled Tribe); and is not confined to
only those sections who are similarly circumstanced to SCs and STs
– It cannot be said that the expression “other weaker sections” is
E not to be given widest possible meaning or that this expression refers
only to those weaker sections who are similarly circumstanced to
SCs and STs – Reservation.
Constitution of India – Amendment to – Scope for judicial
review –Held (per Bela Trivedi, J.): Any amendment made by the
F Parliament is open to judicial review and is liable to be interfered
with by the Court on the ground that it affects one or the other basic
feature of the Constitution.
Constitution of India – Amendment to – Challenge to, on
ground of being discriminatory – Held (per Bela Trivedi, J.): A
G Constitutional amendment cannot be struck down as discriminatory
if the state of facts are reasonably conceived to justify it.
Constitution of India – Interpretation of – Distinction from
interpretation of statutes – Held (per J.B. Pardiwala, J.): If there is
an apparent or real conflict between two provisions of the
Constitution, it is to be resolved by applying the principle of
H
JANHIT ABHIYAN v. UNION OF INDIA 11

harmonious construction – The rules of the interpretation of the A
Constitution have to take into consideration the problems of
government, structure of a State, dynamism in operation, caution
about checks and balances, not ordinarily called for in the
interpretation of statutes.
Constitution of India – Amendment of – Scope and limitations B
– Held (per J.B. Pardiwala, J.): Since the power to amend the
Constitution is a derivative power, the exercise of such power to
amend the Constitution is subject to two limitations, namely, the
doctrine of Basic Structure and lack of legislative competence – If
an amendment is to be struck down under the ‘basic structure’
formulation, the central principle of these inter-related provisions C
should be at threat – A mere violation of one of the enabling
provisions would not be of much consequence under the doctrine of
Basic Structure as long as such violation does not infringe upon the
central thesis of equality – Redress for marginal encroachment
cannot be found under the ‘Basic Structure Doctrine’ – Doctrines/ D
Principles – Doctrine of ‘Basic Structure’.
Constitution (One Hundred and Third Amendment) Act, 2019
– Challenge to – Vide said amendment, Arts. 15 and 16 of the
Constitution was amended by adding two new clauses viz., clause
(6) to Art.15 with Explanation and clause (6) to Art.16; and thereby, E
the State was empowered, inter alia, to provide for a maximum of ten
per cent reservation for “the economically weaker sections” (EWS)
of citizens other than “the Scheduled Castes”, “the Scheduled
Tribes” and the non-creamy layer of “the Other Backward Classes”
– Held (per J.B. Pardiwala, J.): The new concept of economic
criteria introduced by the impugned amendment for affirmative action F
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.
Doctrines/ Principles – Doctrine of basic structure – Enabling
provision – Effect of – Held (per Ravindra Bhat, J. (for Uday Umesh G
Lalit, CJI and himself): It is inaccurate to say that provisions that
enable, exercise of power, would not violate the basic structure of
the Constitution – The court’s inquiry therefore, cannot stop at the
threshold, when an enabling provision is enacted – Its potential for
H
12 SUPREME COURT REPORTS [2022] 14 S.C.R.

A violating the basic structure of the Constitution is precisely the power
it confers, on the legislature, or the executive.
Constitution of India – Judicial review of constitutional
amendments – Scope – Held (per Ravindra Bhat, J. (for Uday Umesh
Lalit, CJI and himself): Appropriate test or standard of judicial
B review of constitutional amendments is not the same as in the case
of ordinary laws – In constitutional amendment judicial review, the
court would consider the history of the provision amended, or the
way the new provision impacts the identity, or character, or nature
of the Constitution.
C Constitution of India – Fraternity – Relevance of – Held (per
Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and himself): People
cannot be assured of Justice, Liberty or Equality, unless Fraternity
in one form or another, to some degree, is felt by individuals at each
level of our social order, and economic system – Weakening fraternity
therefore undermines justice, liberty, and equality – The value of
D fraternity is as much a part of the equality code, and its facets –
equality of opportunity, the principle of non-discrimination and the
non-exclusionary principle, as it inextricably binds them with the
concepts of liberty and freedom.
Words and Phrases – “basic features” and “basic structure”
E – Meaning of – Held (per Dinesh Maheshwari, J.): Basic structure
of the Constitution is the sum total of its essential features.
Words and Phrases – Words “other than” in Arts. 15(6) and
16(6) of the Constitution – If to be read as “in addition to”, so as to
include SCs/STs/OBCs within Economically Weaker Sections (EWS)
F – Held (per Dinesh Maheshwari, J.): 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 Arts.
15(6) and 16(6) – Constitution of India – Arts. 15(6) and 16(6).
Words and Phrases – “compensatory discrimination” and
G “reservation jurisprudence” – Discussed (per Dinesh Maheshwari,
J.).
Words and Phrases – “economically weaker sections of
citizens” – Meaning of – Discussed (per Dinesh Maheshwari, J.).

H
JANHIT ABHIYAN v. UNION OF INDIA 13

Equality – Real and substantive equality – Economic justice A
vis-à-vis social justice – Discussed (per Dinesh Maheshwari, J.).
In the instant writ petitions and other proceedings the
following three questions came up for consideration:-
Question 1: Whether the 103 rd Constitution Amendment
can be said to breach the basic structure of the Constitution by B
permitting the State to make special provisions, including
reservation, based on economic criteria?
Question 2: Whether the 103rd Constitution Amendment
can be said to breach the basic structure of the Constitution by
permitting the State to make special provisions in relation to C
admission to private unaided institutions?
Question 3: Whether the 103 rd Constitution Amendment
can be said to breach the basic structure of the Constitution in
excluding the SEBCs/OBCs/SCs/STs from the scope of EWS
reservation? D
Disposing of the Writ petitions and other proceedings, the
Court
HELD:
Per COURT (3:2 majority) E
In view of the decision rendered by the majority consisting
of Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice
Bela M. Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, the
challenge raised to 103 rd Amendment to the Constitution fails
and the decision rendered by Hon’ble Mr. Justice S. Ravindra F
Bhat remains in minority. [Para 2]
Per DINESH MAHESHWARI, J.
HELD: 1. The power to amend the Constitution availing
under Article 368 has been a significant area of the development
of Constitutional Law in our country. This power, recognised as a G
constituent power, is subject to various safeguards which are
intrinsic to Article 368, including the procedural safeguards. [Para
34][96-D-E]

H
14 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 2. The expressions “basic features” and “basic structure”
convey different meaning, even though many times they have been
used interchangeably. It could reasonably be said that basic
structure of the Constitution is the sum total of its essential
features. As to when abrogation of any particular essential feature
would lead to damaging the basic structure of Constitution would
B
depend upon the nature of that feature as also the nature of
amendment. [Paras 39.4, 39.5][124-D-E]
3. In a nutshell, the principle of equality can be stated thus:
equals must be treated equally while unequals need to be treated
differently, inasmuch as for the application of this principle in real
C life, one has to differentiate between those who being equal, are
grouped together, and those who being different, are left out from
the group. This is expressed as reasonable classification. Now, a
classification to be valid must necessarily satisfy two tests: first,
the distinguishing rationale should be based on a just objective
D and secondly, the choice of differentiating one set of persons from
another should have a reasonable nexus to the object sought to
be achieved. However, a valid classification does not require
mathematical niceties and perfect equality; nor does it require
identity of treatment. If there is similarity or uniformity within a
group, the law will not be condemned as discriminatory, even
E though due to some fortuitous circumstances arising out of a
particular situation, some included in the class get an advantage
over others left out, so long as they are not singled out for special
treatment. In spite of certain indefiniteness in the expression
‘equality’, when the same is sought to be applied to a particular
F case or class of cases in the complex conditions of a modern
society, there is no denying the fact that the general principle of
‘equality’ forms the basis of a Democratic Government. [Para
44][127-A-D]
4. In the multifaceted social structure, ensuring substantive
G and real equality, perforce, calls for consistent efforts to remove
inequalities, wherever existing and in whatever form existing.
Hence, the State is tasked with affirmative action. And, one duly
recognised form of affirmative action is by way of compensatory
discrimination, which has the preliminary goal of curbing

H
JANHIT ABHIYAN v. UNION OF INDIA 15

discrimination and the ultimate goal of its eradication so as to A
reach the destination of real and substantive equality. This has
led to what is known as reservation and quota system in State
activities. [Para 48][129-A-C]
5. The ‘doctrine of equality’, as collectively enshrined in
Articles 14 to 18, happens to be the principal basis for the creation B
of a reasonable classification whereunder ‘affirmative action’, be
it legislative or executive, is authorised to be undertaken. The
constitutional Courts too, precedent by precedent, have
constructively contributed to the evolution of what one may term
as ‘reservation jurisprudence’. However, reservation, one of the
permissible affirmative actions enabled by the Constitution of C
India, is nevertheless an exception to the general rule of equality
and hence, cannot be regarded as such an essential feature of the
Constitution that cannot be modulated; or whose modulation for
a valid reason, including benefit of any section other than the
sections who are already availing its benefit, may damage the basic D
structure. [Paras 50, 56][129-F-G; 130-A; 133-D]
6. In almost all references to real and substantive equality,
the concept of economic justice has acquired equal focus alongside
the principles of social justice. In giving effect to the rule of equality
enshrined in Article 14, the Courts have also been guided by the E
jurisprudence evolved by the U.S. Supreme Court in the light of
the amendments made to their Constitution, which were founded
on economic considerations. This is to highlight that the economic
backwardness of citizens can also be the sole ground for providing
reservation by affirmative action. Any civilized jurisdiction
differentiates between haves and have-nots, in several walks of F
life and more particularly, for the purpose of differential treatment
by way of affirmative action. If an egalitarian socio-economic order
is the goal so as to make the social and economic rights a
meaningful reality, which indeed is the goal of our Constitution,
the deprivations arising from economic disadvantages, including G
those of discrimination and exclusion, need to be addressed to by
the State; and for that matter, every affirmative action has the
sanction of our Constitution, as noticeable from the frame of

H
16 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Preamble as also the text and texture of the provisions contained
in Part III and Part IV. [Paras 64, 65, 67][138-F, G; 139-A, E-F]
7. The expression ‘economically weaker sections of citizens’
is not a matter of mere semantics but is an expression of hard
realities. Poverty is not merely a state of stagnation but is a point
B of regression. Of course, mass poverty cannot be eliminated within
a short period and it is a question of progress along a time path.
In Kesavananda case, building a Welfare State is held to be one of
the main objectives of the Constitution. In the Welfare State, public
power becomes an instrumentality for the achievement of
purposes beyond the minimum objectives of domestic order and
C national defence. It is not enough that the society be secured
against internal disorder and/or external aggression; a society
can be thus secured and well-ordered but, could be lacking in
real and substantive justice for all. Equally, providing for
affirmative action in relation to one particular segment or class
D may operate constructively in the direction of meeting with and
removing the inequalities faced by that segment or class but, if
another segment of society suffers from inequalities because of
one particular dominating factor like that of poverty, the question
arises as to whether the said segment could be denied of the
State support by way of affirmative action of reservation only
E because of the fact that that segment is otherwise not suffering
from other disadvantages. The answer could only be in the
negative for, in the State’s efforts of ensuring all-inclusive socio-
economic justice, there cannot be competition of claims for
affirmative action based on disadvantages in the manner that one
F disadvantaged section would seek denial of affirmative action for
another disadvantaged section. [Paras 69, 70][140-B, F-H; 141-
A-B]
8. On a contextual reading, it could reasonably be culled
out that the observations, wherever occurring in the decisions of
G this Court, to the effect that reservation cannot be availed only
on economic criteria, were to convey the principle that to avail
the benefit of this affirmative action under Articles 15(4) and/or
15(5) and/or 16(4), as the case may be, the class concerned ought
to be carrying some other disadvantage too and not the economic
disadvantage alone. The said decisions cannot be read to mean
H
JANHIT ABHIYAN v. UNION OF INDIA 17

that if any class or section other than those covered by Articles A
15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only
due to economic conditions, the State can never take affirmative
action qua that class or section. In view of the principles discernible
from the decisions as also the background aspects, including the
avowed objective of socio-economic justice in the Constitution,
B
the observations of this Court in the past decisions that
reservations cannot be claimed only on the economic criteria,
apply only to class or classes covered by or seeking coverage
under Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court
has not put a blanket ban on providing reservation for other
sections who are disadvantaged due to economic conditions. C
[Paras 72, 73][156-D-G]
9. The mandate of the Constitution to the State is to
administer distributive justice; and in the law-making process,
the concept of distributive justice connotes, inter alia, the removal
of economic inequalities. There could be different methods of D
distributive justice; and it comprehends more than merely
achieving the lessening of inequalities by tax or debt relief
measures or by regulation of contractual transactions or
redistribution of wealth, etc. It is more than evident that the
philosophy of distributive justice is of wide amplitude which, inter
alia, reaches to the requirements of removing economic E
inequalities; and then, it is not confined to one class or a few
classes of the disadvantaged citizens. In other words, the wide
spectrum of distributive justice mandates promotion of educational
and economic interests of all the weaker sections, in minimizing
the inequalities in income as also providing adequate means of F
livelihood to the citizens. In this commitment, leaving one class
of citizens to struggle because of inequalities in income and want
of adequate means of livelihood may not serve the ultimate goal
of securing all-inclusive socio-economic justice. In fact, the
argument that the State may adopt any poverty alleviation measure
but cannot provide reservation for EWS by way of affirmative action G
proceeds on the assumption that the affirmative action of
reservation in our constitutional scheme is itself reserved only
for SEBCs/OBCs/SCs/STs in view of the existing text of Articles

H
18 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 15(4), 15(5) and 16(4) of the Constitution. Such an assumption is
neither valid nor compatible with our constitutional scheme. This
line of argument is wanting on the fundamental constitutional
objectives, with the promise of securing ‘JUSTICE, social,
economic and political’ for ‘all’ the citizens; and to promote
FRATERNITY among them ‘all’. Thus viewed, the challenge to
B
the amendment in question fails on the principle of distributive
justice. [Paras 74.1.1, 74.1.2]P158-B-H]
10. Though, the text and the order of expressions used in
the body of Article 46 have been repeatedly recounted on behalf
of the petitioners to emphasise on the arguments based on
C ejusdem generis principle of interpretation but, as aforesaid, that
principle does not fit in the interpretation of an organic thing like
the Constitution. This apart, when traversing through the
principles of interpretation, it could also be noticed that in case of
any doubt, the heading or sub-heading of a provision could also
D be referred to as an internal aid in construing the provision, while
not cutting down the wide application of clear words used in the
provision. What is interesting to notice is that in the heading of
Article 46, the chronology of the description of target groups for
promotion of educational and economic interests is stated in
reverse order than the contents of the provision. The heading
E signifies ‘Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker sections’
whereas the contents of the main provision are framed with the
sentence ‘interest of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes’. A
F simple reading of the heading together with the contents would
make it clear that the broader expression “other weaker sections”
in Article 46 is disjointed from the particular weaker sections
(Schedule Castes and Scheduled Tribe); and is not confined to
only those sections who are similarly circumstanced to SCs and
STs. [Para 74.2.3][159-G-H; 160-A-D]
G
11. The amendment in question could be correlated with
any other provision of the Constitution, including the Preamble
as well as Articles 38 and 39. Moreover, it is not the requirement

H
JANHIT ABHIYAN v. UNION OF INDIA 19

of our constitutional scheme that an amendment to the Constitution A
has to be based on some existing provision in DPSP. In fact, an
amendment to the Constitution (of course, within the bounds of
basic structure) could be made even without any corresponding
provision in DPSP. In the aforesaid view of matter, there appears
no reason to analyse another unacceptable line of arguments
B
adopted by the petitioners that the amendment in question
provides for compensatory discrimination in favour of the so-called
forward class/caste. Suffice it to observe that the amendment in
question is essentially related to the requirements of those
economically weaker sections who have hitherto not been given
the benefit of such an affirmative action (particularly of C
reservation), which was accorded to the other class/classes of
citizens namely, the SEBCs/OBCs/SCs/STs. Viewing this
affirmative action of EWS reservation from the standpoint of
backward class versus forward class is not in accord with the very
permissibility of compensatory discrimination towards the goal of
D
real and substantive justice for all. The challenge to the
amendment in question on the ground that though the State could
take all the relevant measures to deal with poverty and the
disadvantages arising therefrom but, the affirmative action of
reservation is envisaged by the Constitution only for socially and
educationally backward class of citizens; and economic E
disadvantage alone had never been in contemplation for this action
of reservation, is required to be rejected. In any case, any
legitimate effort of the State towards all-inclusive socio-economic
justice, by way of affirmative action of reservation in support of
economically weaker sections of citizens, who had otherwise not
F
been given the benefit of this affirmative action, cannot be lightly
interfered with by the Court. [Paras 74.3, 75, 76][160-F-H; 161-
A-B, D-E]
12. EWS reservation itself is another form of compensatory
discrimination, which is meant for serving the cause of such
weaker sections who have hitherto not been given any State G
support by way of reservation. SEBCs/OBCs/SCs/STs are having
the existing compensatory discrimination in their favour wherein
the presently supported EWS are also excluded alongwith all other
excluded classes/persons. As a necessary corollary, when EWS
H
20 SUPREME COURT REPORTS [2022] 14 S.C.R.

A is to be given support by way of compensatory discrimination,
that could only be given by exclusion of others, and more
particularly by exclusion of those who are availing the benefit of
the existing compensatory discrimination in exclusion of all others.
Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from
EWS reservation is the compensatory discrimination of the same
B
species as is the exclusion of general EWS from SEBCs/OBCs/
SCs/STs reservation. As said above, compensatory discrimination,
wherever applied, is exclusionary in character and could acquire
its worth and substance only by way of exclusion of others. Such
differentiation cannot be said to be legally impermissible; rather
C it is inevitable. [Para 82.1][165-E-F]
13. The fact that exclusion is innate in compensatory
discrimination could further be exemplified by the fact that in Indra
Sawhney, this Court excluded the creamy layer of OBCs from the
benefit of reservation. In the complex set-up of formal equality
D on one hand (which debars discrimination altogether) and real
and substantive equality on the other (which permits
compensatory discrimination so as to upset the disadvantages),
exclusion is as indispensable as the compensatory discrimination
itself is. In fact, ‘creamy layer’ principle itself was applied to make
a true compact of socially and educationally backward class. Two
E features strikingly come to fore with creamy layer principle. One
is that to make a real compact of socially and educationally
backward class, economic factors play an equally important role;
and then, the exclusionary principle applies therein too. These
two features, when applied to the present case, make it clear that
F the use of economic criteria is not contra- indicated for the exercise
of reservation, rather it is imperative; and second, to make the
exercise of compensatory discrimination meaningful so as to
achieve its desired result, exclusion of every other class/person
from the target group is inevitable. Thus viewed, the amendment
in question remains unexceptionable in the accepted principles
G of constitutional law presently in operation. [Paras 83, 83.1][166-
B-E]
14. Having examined the permissible limits of affirmative
action in light of the possible harm of preferential treatment qua
other innocent class of competitors, i.e., general merit candidates,
H
JANHIT ABHIYAN v. UNION OF INDIA 21

this Court has expressed the desirability of fifty per cent as the A
ceiling limit for reservation in education and public employment
but, all such observations are required to be read essentially in
the context of the reservation obtaining under Articles 15(4), 15(5)
and 16(4) or other areas of affirmative action like that in relation
to local self- government and cannot be overstretched to the
B
reservation provided for entirely different class, consisting of the
economically weaker sections. [Para 93][178-B-D]
15. In the ultimate analysis, it is beyond doubt that using
the doctrine of basic structure as a sword against the amendment
in question and thereby to stultify State’s effort to do economic
justice as ordained by the Preamble and Directive Principles of C
State Policy (DPSP) and, inter alia, enshrined in Articles 38, 39
and 46, cannot be countenanced. This is essentially for the reason
that the provisions contained in Articles 15 and 16 of the
Constitution of India, providing for reservation by way of
affirmative action, being of exception to the general rule of equality, D
cannot be treated as a basic feature. Moreover, even if
reservation is one of the features of the Constitution, it being in
the nature of enabling provision only, cannot be regarded as an
essential feature of that nature whose modulation for the sake of
other valid affirmative action would damage the basic structure of
the Constitution. Therefore, the doctrine of basic structure cannot E
be invoked for laying a challenge to the 103rd Amendment. [Para
101][182-E-G]
16. Reservation is an instrument of affirmative action by
the State so as to ensure all-inclusive march towards the goals of
an egalitarian society while counteracting inequalities; it is an F
instrument not only for inclusion of socially and educationally
backward classes to the mainstream of society but, also for
inclusion of any class or section so disadvantaged as to be
answering the description of a weaker section. In this background,
reservation structured singularly on economic criteria does not G
violate any essential feature of the Constitution of India and does
not cause any damage to the basic structure of the Constitution
of India. [Para 102][183-B-C]

H
22 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 17. 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][183-
B
D]
18. 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
C 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][183-E-F]
D 19. 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. [Para 104][184-A]
20. The 103rd Constitution Amendment cannot be said to
E breach the basic structure of the Constitution by permitting the
State to make special provisions in relation to admission to private
unaided institutions. [Para 104][184-B]
21. The 103rd Constitution Amendment cannot be said to
breach the basic structure of the Constitution in excluding the
F SEBCs/OBCs/SCs/STs from the scope of EWS reservation. [Para
104][184-B]
Kesavananda Bharati Sripadagalvaru v. State of Kerala
and Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; Bhim
Singhji v. Union of India and Ors. (1981) 1 SCC 166
G and Minerva Mills Ltd. and Ors. v. Union of India and
Ors. (1980) 3 SCC 625: [1981] 1 SCR 206 – relied
on.
State of Madras v. Champakam Dorairajan AIR 1951
SC 226: [1951] SCR 525; K.C. Vasanth Kumar and Anr.
H
JANHIT ABHIYAN v. UNION OF INDIA 23

v. State of Karnataka 1985 Supp SCC 714: A
[1985] Suppl. SCR 352; Justice K.S. Puttaswamy
(Retd.) and Anr. v. Union of India and Ors. (2017) 10
SCC 1: [2017] 10 SCR 569; People’s Union for
Democratic Rights and Ors. v. Union of India and Ors.
(1982) 3 SCC 235: [1983] 1 SCR 456; Jolly George
B
Varghese and Anr. v. The Bank of Cochin (1980) 2 SCC
360: [1980] 2 SCR 913; Ahmedabad Municipal
Corporation v. Nawab Khan Gulab Khan and Ors.
(1997) 11 SCC 121:[1996] 7 Suppl. SCR 548; State of
Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC
310; P. Sambhamurthy and Ors. v. State of Andhra C
Pradesh and Anr. (1987) 1 SCC 362: [1987]
1 SCR 879; Lingappa Pochanna Appelwar v. State of
Maharashtra and Anr. (1985) 1 SCC 479: [1985]
2 SCR 224; T. Devadasan v. Union of India and Anr.
[1964] 4 SCR 680; Indra Sawhney and Ors. v. Union
D
of India and Ors. 1992 Supp (3) SCC 217; M. Nagaraj
and Ors. v. Union of India and Ors. (2006) 8 SCC
212:[2006] 7 Suppl. SCR 336; Ashoka Kumar Thakur
v. Union of India and Ors. (2008) 6 SCC 1:[2008]
4 SCR 1; M.R. Balaji and Ors. v. State of Mysore and
Ors. [1963] Supp 1 SCR 439; Indra Sawhney v. Union E
of India (2000) 1 SCC 168:[1999] 5 Suppl. SCR 229;
R. Chitralekha and Anr. v. State of Mysore and Ors.
[1964] 6 SCR 368; Janki Prasad Parimoo and Ors. v.
State of J&K and Ors. (1973) 1 SCC 420: [1973] 3
SCR 236; Sri Sankari Prasad Singh Deo v. Union of
F
India and Anr. [1952] SCR 89; Sajjan Singh v. State of
Rajasthan [1965] 1 SCR 933; I.C. Golak Nath and Ors.
v. State of Punjab and Anr. [1967] 2 SCR 762; E.P.
Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC
3: [1974] 2 SCR 348; Prathvi Raj Chauhan v. Union
of India and Ors. (2020) 4 SCC 727: [2020] 2 G
SCR 727; B.K. Pavitra and Ors. v. Union of India and
Ors. (2019) 16 SCC 129:[2019] 7 SCR 1086; Dr. Jaishri
Laxmanrao Patil v. Chief Minister and Ors. (2021) 8
SCC 1; Dayaram Khemkaran Verma v. State of Gujarat
2016 SCC Online Guj 1821; Madhav Rao Scindia
H
24 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Bahadur etc. v. Union of India (1971) 1 SCC 85:[ 1971]
3 SCR 9; State (NCT of Delhi) v. Union of India and
Anr. (2018) 8 SCC 501: [2018] 7 SCR 1; T.M.A. Pai
Foundation and Ors. v. State of Karnataka and Ors.
(2002) 8 SCC 481; V.V. Giri v. D.S. Dora [1960] 1 SCR
246; Saurav Yadav and Ors. v. State of Uttar Pradesh
B
and Ors. (2021) 4 SCC 542; Waman Rao and Ors. v.
Union of India and Ors. (1981) 2 SCC 362: [1981]
2 SCR 1; Ashoka Kumar Thakur v. State of Bihar and
Ors. (1995) 5 SCC 403: [1995] 3 Suppl. SCR
269; Subhash Chandra and Anr. v. Delhi Subordinate
C Services Selection Board and Ors. (2009) 15 SCC
458:[2009] 12 SCR 978; Raghunathrao Ganpatrao v.
Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR
480; Society for Unaided Private Schools of Rajasthan
v. Union of India and Anr. (2012) 6 SCC 1; Pramati
Educational and Cultural Trust (Registered) and Ors. v.
D
Union of India and Ors. (2014) 8 SCC 1; Indira Nehru
Gandhi v. Raj Narain and Anr. 1975 Supp SCC 1; State
of Karnataka v. Union of India and Anr. (1977) 4 SCC
608: [1978] 2 SCR 1; Kihoto Hollohan v. Zachillhu and
Ors. 1992 Supp (2) SCC 651: [1992] 1 SCR 686; L.
E Chandra Kumar v. Union of India and Ors. (1997) 3
SCC 261: [1997] 2 SCR 1186; K. Krishna Murthy (Dr.)
and Ors. v. Union of India and Anr. (2010) 7 SCC 202:
[2010] 6 SCR 972; Supreme Court Advocates-on-
Record Association and Anr. v. Union of India (2016) 5
SCC 1: [2015] 13 SCR 1; Maganlal Chhaganlal (P)
F
Ltd. v. Municipal Corporation of Greater Bombay and
Ors. (1974) 2 SCC 402: [1975] 1 SCR 1; Chairman
and Managing Director, Central Bank of India and Ors.
v. Central Bank of India SC/ST Employees Welfare
Association and Ors. (2015) 12 SCC 308: [2015]
G 1 SCR 55; State of Uttar Pradesh v. Dr. Dina Nath
Shukla and Anr. (1997) 9 SCC 662: [1997] 1 SCR 750;
M/s Shantistar Builders v. Narayan K. Totame and Ors.
(1990) 1 SCC 520; Association of Unified Tele Services
Providers and Ors. v. Union of India and Ors. (2014) 6
SCC 110: [2014] 9 SCR 780; People’s Union for Civil
H
JANHIT ABHIYAN v. UNION OF INDIA 25

Liberties (PUCL) and Anr. v. Union of India and Anr. A
(2003) 4 SCC 399: [2003] 2 SCR 1136; M/s Frick India
Ltd. v. Union of India and Ors. (1990) 1 SCC 400:
[1989] 2 Suppl. SCR 570; Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India and Ors.
(1981) 1 SCC 246: [1981] 2 SCR 185 and R. D.
B
Upadhyay v. State of Andhra Pradesh and Ors. (2007)
15 SCC 337: [2006] 3 SCR 1132 – referred to.
Corocraft v. Pan American Airways 1969 (1) All ER 82
– referred to.
Per BELA M. TRIVEDI, J. (Concurring with DINESH C
MAHESHWARI, J.)
HELD: 1. It is very well-established proposition of law that
it is the Constitution and not the constituent power which is
supreme. It is axiomatic that the Parliament has been conferred
upon the constituent power to amend by way of addition, variation D
or repeal any provision of the Constitution under Article 368 of
the Constitution, and the same is required to be exercised in
accordance with the procedure laid down in the said Article. The
Constitution is said to be a living document or a work in progress
only because of the plenary power to amend is conferred upon
the Parliament under the said provision. Of course, as laid down E
in plethora of judgments, the said power is subject to the
constraints of the basic structure theory. Deriving inspiration from
the Preamble and the whole scheme of the Constitution, the
majority in Kesavananda Bharati case held that every provision
of the Constitution can be amended so long as the basic foundation F
and structure of the Constitution remains the same. Some of the
basic features of the constitutional structure carved out by the
Court in the said judgment were, the supremacy of the
Constitution, Republican and democratic form of government,
separation of powers, judicial review, sovereignty and the integrity
of the nation, Federal Character of Government etc. A multitude G
of features have been acknowledged as the basic features in
various subsequent judicial pronouncements. Accordingly, any
amendment made by the Parliament is open to the judicial review

H
26 SUPREME COURT REPORTS [2022] 14 S.C.R.

A and is liable to be interfered with by the Court on the ground that
it affects one or the other basic feature of the Constitution. [Paras
5, 6][188-B-C; 189-A-B]
2. As transpiring from the Statements of Objects and
Reasons for introducing the Bill to the impugned amendment,
B the Parliament has taken note that the economically weaker
sections of the citizens have largely remained excluded from
attaining the higher educational institutions and public
employment on account of their financial incapacity to compete
with the persons who are economically more privileged. The
benefits of existing reservations under Clauses (4) and (5) of
C Article 15 and Clause (4) of Article 16 are generally unavailable
to them unless they meet with the specific criteria of social and
educational backwardness. It has been further stated that vide
the Constitution (Ninety-third Amendment) Act, 2005, Clause (5)
was inserted in Article 15 of the Constitution which enables the
D State to make special provision for the advancement of any social
and educational backwardness of citizens, or for the Scheduled
Castes or the Scheduled Tribes, in relation to their admission in
higher educational institutions. Similarly, Clause(4) of Article 16
of the Constitution enables the State to make special provision
for the reservation of appointments or posts in favour of any
E backward class of citizens which in the opinion of the State, is not
adequately represented in the services under the State. However,
economically weaker sections of citizens were not eligible for the
benefit of reservation. Therefore, with a view to fulfil the ideals
lying behind Article 46, and to ensure that economically weaker
F sections of citizens to get a fair chance of receiving higher
education and participation in employment in the services of the
State, it was decided to amend the Constitution of India. [Para
19][194-A-E]
3. As well settled, it must be presumed that the legislature
G understands and appreciates the needs of its own people. Its laws
are directed to the problems made manifest by experience, and
its discriminations are based on adequate norms. Therefore, the
constitutional amendment could not be struck down as
discriminatory if the state of facts are reasonably conceived to

H
JANHIT ABHIYAN v. UNION OF INDIA 27

justify it. In the instant case, the Legislature being aware of the A
exclusion of economically weaker sections of citizens from having
the benefits of reservations provided to the SCs/STs and SEBCs
citizens in Clauses(4) and (5) of Article 15 and Clause(4) of Article
16, has come out with the impugned amendment empowering the
State to make special provision for the advancement of the
B
“economically weaker sections” of citizens other than the classes
mentioned in Clauses(4) and (5) of Article 15 and further to make
special provision for the reservation of appointments or posts in
favour of the economically weaker sections of the citizens other
than the classes mentioned in Clause(4) of Article 16. The
impugned amendment enabling the State to make special C
provisions for the “economically weaker sections” of the citizens
other than the scheduled castes/schedules 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
D
the citizens. 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.
Just as equals cannot be treated unequally, unequals also cannot
be treated equally. Treating unequals as equals would as well E
offend the doctrine of equality enshrined in Articles 14 and 16 of
the Constitution. [Para 20][194-F-H; 195-A-C]
4. The Scheduled Castes/Scheduled Tribes and the
backward class for whom the special provisions have already been
provided in Article 15(4), 15(5) and 16(4) form a separate category F
as distinguished from the general or unreserved category. They
cannot be treated at par with the citizens belonging to the general
or unreserved category. The impugned amendment creates a
separate class of “economically weaker sectionsof the citizens”
from the general/unreserved class, without affecting the special
rights of reservations provided to the Scheduled Caste/Scheduled G
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. Such amendment H
28 SUPREME COURT REPORTS [2022] 14 S.C.R.

A could certainly be not termed as shocking, unconscionable or
unscrupulous travesty of the quintessence of equal justice as
sought to be submitted by the petitioners. [Para 21][195-D-F]
5. The sum and substance is that the limitations –
substantive or procedural – imposed on the exercise of constituent
B power of the State under Article 368 could not be said by any
stretch of imagination, to have been disregarded by the Parliament.
Neither the procedural limitation i.e. the mode of exercise of the
amending power has been disregarded nor the substantive
limitation i.e. the restricted field has been disregarded, which
otherwise would invalidate the impugned amendment. What is
C visualised in the Preamble and what is permissible both in Part-
III and Part-IV of the Constitution could not be said to be violative
of the basic structure or basic feature of the Constitution. In
absence of any obliteration of any of the constitutional provisions
and in absence of any alteration or destruction in the existing
D structure of equality code or in the basic structure of the
Constitution, neither the width test nor the identity test as
propounded in Kesavananda could be said to have been violated
in the impugned Amendment. Accordingly, the challenge to the
constitutional validity of the 103rd Amendment fails, and the validity
thereof is upheld. [Para 22][195-G-H; 196-A-B]
E
6. What was envisioned by the framers of the Constitution,
what was proposed by the Constitution Bench in 1985 and what
was sought to be achieved on the completion of fifty years of the
advent of the Constitution, i.e. that the policy of reservation must
have a time span, has still not been achieved even till this day, i.e.
F till the completion of seventy-five years of our Independence. It
cannot be gainsaid that the age-old caste system in India was
responsible for the origination of the reservation system in the
country. It was introduced to correct the historical injustice faced
by the persons belonging to the scheduled castes and scheduled
G tribes and other backward classes, and to provide them a level
playing field to compete with the persons belonging to the forward
classes. However, at the end of seventy-five years of our
independence, we need to revisit the system of reservation in

H
JANHIT ABHIYAN v. UNION OF INDIA 29

the larger interest of the society as a whole, as a step forward A
towards transformative constitutionalism. [Para 28][199-D-F]
7. As per Article 334 of the Constitution, the provisions of
the Constitution relating to the reservation of seats for the SCs
and the STs in the House of the People and in the Legislative
Assemblies of the States would cease to have effect on the B
expiration of a period of eighty years from the commencement of
the Constitution. The representation of Anglo-Indian community
in the House of the Parliament and in the Legislative Assemblies
of the States by nomination, has already ceased by virtue of the
104thAmendment w.e.f. 25.01.2020. Therefore, similar time limit
if prescribed, for the special provisions in respect of the C
reservations and representations provided in Article 15 and
Article 16 of the Constitution, it could be a way forward leading to
an egalitarian, casteless and classless society. [Para 29][199-F-
H; 200-A]
Kesavananda Bharati v. State of Kerala & Anr. (1973) D
4 SCC 225; K.C. Vasanth Kumar and Anr. v. State of
Karnataka, (1985) Suppl. SCC 714 : 1985 (1) Suppl.
SCR 352 and Ashoka Kumar Thakur v. Union of India,
(2008) 6 SCC 1 : 2008 (4) SCR 1 – relied on.
Kihoto Hollohan v. Zachillhu & Ors. (1992) Suppl. 2 E
SCC 651: [1992] 1 SCR 686; Maharao Sahib Shri Bhim
Singhji v. Union of India & Ors. (1981) 1 SCC 166;
Indira Nehru Gandhi v. Raj Narain (1975) Suppl. SCC
1: [1976] 2 SCR 347; State of Kerala & Anr. v. N.M.
Thomas & Ors. (1976) 2 SCC 310: [1976] 1 SCR 906 F
and Waman Rao & Ors. v. Union of India & Ors. (1981)
2 SCC 362:[1981] 2 SCR 1; M. Nagraj & others v.
Union of India (2006) 8 SCC 212: [2006] 7 Suppl.
SCR 336 and State of Gujarat and Another v. & The
Ashok Mills Co. Ltd. Ahmedabad and Another (1974) 4
SCC 656: [1974] 3 SCR 760 – referred to. G
Per J.B. PARDIWALA, J. (Concurring with DINESH
MAHESWHARI, J.)
HELD:1. Article 21 encompasses the right to live with
dignity. Article 21 has been given wide connotation and expression
H
30 SUPREME COURT REPORTS [2022] 14 S.C.R.

A by the courts, particularly, by this Court to give effect to the
constitutional policy of welfare state. The decision of this Court
in Unni Krishnan is an authority on this aspect where the Court
confirmed that right to education is implicit under Article 21 and
proceeded to identify the content and parameters of this right to
be achieved by Articles 41, 45, and 46 in relation to education.
B
Understood in this context, Article 46 gives not only solemn
protection to the weaker sections of the people at par with the
Scheduled Castes and the Scheduled Tribes but speaks of special
care to be taken by the State of this section of people. Further,
the expression “educational and economic interests” in Article
C 46 concludes the whole legal position in relation to Article 46 to
mean that the State must endeavour to do welfare especially of
this section of people. The endeavour of the State to give the
weaker section of the people a life of dignity is the link between
Articles 46 and 21. The conjoint reading of both the provisions
puts constitutional obligation on the State to achieve the goal of
D
welfare of the weaker sections of the people by all means. Article
46 is not based on social test but on the means test. It speaks of
“educational and economic interests” of “weaker sections”. The
expression “weaker sections” and their “economic interests”
are correlative and denote the means status of the people who
E are to be taken care of. Although, the phrase “economic interests”
is not to be read alone but in consonance with the expression
“educational” used in Article 46; yet to confuse Article 46 with
the “social status” would be to put a strain and nullify otherwise
the pure object of Article 46. The distinction can be explained
with the aid of Article 15(4). Article 15(4) gives impetus to the
F
social and educational “advancement” of Backward Classes or
the Scheduled Castes and Scheduled Tribes. It is an enabling
provision for the State to make special provisions for the socially
and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes. The emphasis here is on the
G upliftment of three constitutionally earmarked classes i.e.,
Scheduled Castes, Scheduled Tribes and Backward classes.
However, Article 46 is wide in expression. The object of welfare
under Article 46 is towards those educationally and economically
weak. Thus, it is evident from the aforesaid that there can be
reservation for certain weaker sections other than the SCs/STs
H
JANHIT ABHIYAN v. UNION OF INDIA 31

and socially and educationally backward classes. The impugned A
amendment is meant for weaker sections of the society who are
economically weak and cannot afford to impart education to their
children or are unable to secure employment in the services of
the State. [Para 81, 82][263-G-H; 264-A-H; 265-A-C]
2. The interpretation of a Constitution involves more than B
a passing interest concerning the actual litigants and being a
pronouncement of the Courts on the government and
administration, has a more general and far-reaching consequence.
If there is an apparent or real conflict between two provisions of
the Constitution, it is to be resolved by applying the principle of
harmonious construction. The rules of the interpretation of the C
Constitution have to take into consideration the problems of
government, structure of a State, dynamism in operation, caution
about checks and balances, not ordinarily called for in the
interpretation of statutes. [Para 86, 87, 90][266-A-B, F; 267-F]
3. Since the power to amend the Constitution is a derivative D
power, the exercise of such power to amend the Constitution is
subject to two limitations, namely, the doctrine of Basic Structure
and lack of legislative competence. The doctrine of Basic Structure
is brought in as a window to keep the power of judicial review
intact as abrogation of such a power would result in violation of E
basic structure. When one speaks of discrimination or arbitrary
classification, the same constitutes violation of Article 14 of the
Constitution. There is a distinction between constitutional law
and ordinary law in a rigid Constitution like ours. The said
distinction proceeds on the assumption that ordinary law can be
challenged on the touchstone of the Constitution. Therefore, when F
an ordinary law seeks to make a classification without any rational
basis and without any nexus with the object sought to be achieved,
such ordinary law could be challenged on the touchstone of Article
14 of the Constitution. However, when it comes to the validity of
a constitutional amendment, one has to examine the validity of G
such amendment by asking the question as to whether such an
amendment violates any overarching principle in the Constitution.
What is overarching principle? Concepts like secularism,

H
32 SUPREME COURT REPORTS [2022] 14 S.C.R.

A democracy, separation of powers, power of judicial review fall
outside the scope of amendatory powers of the Parliament under
Article 368. If any of these were to be deleted, it would require
changes to be made not only in Part III of the Constitution but
also in Article 245 and the three Lists of the Constitution resulting
in the change of the very structure or framework of the
B
Constitution. When an impugned Act creates a classification
without any rational basis and having no nexus with the objects
sought to be achieved, the principle of equality before law is
violated undoubtedly. Such an Act can be declared to be violative
of Article 14. Such a violation does not require re-writing of the
C Constitution. This would be a case of violation of ordinary principle
of equality before law. Similarly, “egalitarian equality” is a much
wider concept. It is an overarching principle. The term
“egalitarianism” has distinct definition that all people should be
treated as equal and have the same political, economic, social
and civil rights or have a social philosophy advocating the removal
D
of economic inequalities among the people, economic
egalitarianism or the decentralisation of power. [Para 154][287-
C-H; 288-A-B]
4. Article 14 has two clear facets which are invalid. One is
over- classification and the other is under-classification, which is
E otherwise, over- inclusiveness or under-inclusiveness. The judicial
review of over-classification should be undertaken very strictly.
In the cases of under-classification when the complaint is either
by those who are left out or those who are in i.e. that the statute
has roped him in, but a similarly situated person has been left
F out, it would be under-inclusiveness. It is to say that you ought to
have brought him in to make the classification reasonable. It is in
such cases that the courts have said that ‘who should be brought
in’ should be left to the wisdom of the legislature because it is
essentially a stage where there should be an element of
practicability. Therefore, the cases of under-inclusion can be
G reviewed in a little liberal manner. The under-inclusion argument
should not be very readily accepted by the courts because the
stage could be experimental. For instance, in the case on hand,
the argument in the context of 103rd Constitution Amendment is
that SCs, STs and OBCs have been left out, the Court would say
H
JANHIT ABHIYAN v. UNION OF INDIA 33

that it is under-inclusiveness. The Legislature does not have to A
bring any and everybody to make it reasonable. The case on hand
is not one of active exclusion. The SCs, STs and OBCs who have
been left out at the first instance are telling the Court that they
ought to have been included. In such circumstances, the test would
be very strict, not that it would be impervious to review. Had
B
they been included in clause (6) of Article 15 & clause (6) of Article
16 resply at any point of time and thereafter, excluded, it would
be legitimate for them to argue that having treated them as one,
they cannot be excluded in an arbitrary manner. [Para 164][293-
H; 294-A-E]
5. Each one of the Constitutional provisions that are C
categorised as rights under Part III has intrinsic value content.
Many of these rights are a part of the mechanism geared towards
realising a common constitutional principle. For example, Articles
14, 15 and 16 of the Constitution are committed to the common
principle of equality. Reasonably then, if an amendment is to be D
struck down under the ‘basic structure’ formulation, the central
principle of these inter-related provisions should be at threat. A
mere violation of one of these enabling provisions would not be
of much consequence under the doctrine of Basic Structure as
long as such violation does not infringe upon the central thesis of
equality. Redress for marginal encroachment cannot be found E
under the ‘Basic Structure Doctrine’. In considering the effect of
an amendment on the constitutional core, it is important to keep
in mind the widest ramifications of the amendment. It is imperative
to contemplate and consider every way in which the ‘basic
structure’ of the Constitution might be threatened through the F
impugned amendment. The amendment would stand as
constitutional only after a satisfactory understanding as to its effect
on the constitutional core is reached by the courts. To sustain
itself, the amendment should not violate such core in the widest
interpretation given to it. [Para 186][310-D-G]
G
6. 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

H
34 SUPREME COURT REPORTS [2022] 14 S.C.R.

A step in the process of doing away with caste-based reservation.
[Para 187][310-H]
7. Reservation is not an end but a means – a means to secure
social and economic justice. Reservation should not be allowed
to become a vested interest. Real solution, however, lies in
B eliminating the causes that have led to the social, educational and
economic backwardness of the weaker sections of the community.
This exercise of eliminating the causes started immediately after
the Independence i.e., almost seven decades back and it still
continues. The longstanding development and the spread of
education have resulted in tapering the gap between the classes
C to a considerable extent. As larger percentages of backward class
members attain acceptable standards of education and
employment, they should be removed from the backward
categories so that the attention can be paid toward those classes
which genuinely need help. In such circumstances, it is very much
D necessary to take into review the method of identification and
the ways of determination of backward classes, and also, ascertain
whether the criteria adopted or applied for the classification of
backward is relevant for today’s conditions. The idea of Baba Saheb
Ambedkar was to bring social harmony by introducing reservation
for only ten years. However, it has continued past seven decades.
E Reservation should not continue for an indefinite period of time
so as to become a vested interest. [Para 190][311-H; 312-A-D]
8. In the result, the impugned amendment is valid and in no
manner alters the basic structure of the Constitution. [Para
191][312-D-E]
F
Minor A. Peeriakaruppan v. State of Tamil Nadu and
Others (1971) 1 SCC 38: [1971] 2 SCR 430 – relied
on.
Kesavananda Bharati Sripadagalvaru v. State of Kerala
and Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; The
G
State of Madras v. Champakam Dorairajan & Another
AIR 1951 SC 226: [1951] SCR 525; Kathi Raning
Rawat v. State of Saurashtra AIR 1952 SC 123: [1952]
SCR 435; State of Kerala and Another v. N.M. Thomas
and Others (1976) 2 SCC 310 : [1976] 1 SCR 906;
H E.P. Royappa v. State of Tamil Nadu and Another AIR
JANHIT ABHIYAN v. UNION OF INDIA 35

1974 SC 555: [1974] 2 SCR 348; Govt. of Andhra A
Pradesh v. P.B. Vijaykumar and another AIR 1995 SC
1648; T.M.A. Pai Foundation and Others v. State of
Karnataka and Others (2002) 8 SCC 481: [2002] 3
Suppl. SCR 587; Supreme Court Advocates-on-Record
Association and another v. Union of India AIR 2016
B
SC 117: [2015] SCR 975; Smt. Indira Nehru Gandhi v.
Shri Raj Narain AIR 1975 SC 2299: [1975]
Suppl. SCC 1; S.R. Bommai and others etc. etc. v. Union
of India and others etc. etc. AIR 1994 SC 1918: [1994]
2 SCR 644; I.R. Coelho (dead) by L.Rs. v. State of
Tamil Nadu AIR 2007 SC 861: [2007] 1 SCR 706; The C
State of West Bengal v. Anwar Ali Sarkar [1952] 0
SCR 284; State of Gujarat and Another v. Shri Ambika
Mills Ltd. Ahmedabad and Another (1974) 4 SCC 656:
[1974] 3 SCR 760; Mohammad Shujat Ali and others
v. Union of India and others Ashutosh Gupta v. State of
D
Rajasthan AIR 2002 SC 1533; Mohini Jain (Miss) v.
State of Karnataka and Others (1992) 3 SCC 666:
[1992] 3 SCR 658; Society for Unaided Private Schools
of Rajasthan v. Union of India and Another (2012) 6
SCC1: [2012] 2 SCR 715; Pramati Educational and
Cultural Trust (Registered) and Others v. Union of India E
and Others (2014) 8 SCC 1: [2014] 11 SCR 712; M.
Nagaraj and Others v. Union of India and Others (2006)
8 SCC 212: [2006] 7 Suppl. SCR 336; M.R. Balaji and
Others v. State of Mysore [1963] Supp 1 SCR 439 and
Dalmia Cement (Bharat) Ltd. and Another v. Union of
F
India and Others (1996) 10 SCC 104: [1996] 1 Suppl.
SCR 825; State of Jammu & Kashmir v. Triloki Nath
Khosa and others AIR 1974 SC 1: [1974] 1 SCR 771;
Ram Singh and Others v. Union of India (2015) 4
SCC 697: [2015] 5 SCR 670; M/s Shantistar Builders
v. Narayan Khimalal Totame and Others (1990) 1 SCC G
520; Ashoka Kumar Thakur v. Union of India (2008) 6
SCC 1: [2008] 4 SCR 1; M.P.V. Sundararamier & Co.
v. State of A.P. and Others [1958] SCR 1422; State of
West Bengal v. Shaik Serajuddin Batley [1954]
SCR 378; Shri Ram Krishna Dalmia v. Shri Justice S.R.
H
36 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Tendolkar and Others [1959] SCR 279; R.C. Poudyal
v. Union of India and Others 1994 Supp (1) SCC 324 :
[1993] 1 SCR 891; Kihoto Hollohan v. Zachillhu and
Others 1992 Supp (2) SCC 651: [1992] 1 SCR 686;
Kuldip Nayar v. Union of India & Ors. AIR 2006 SC
3127: [2006] 5 Suppl. SCR 1; Glanrock Estate Private
B
Limited v. State of Tamil Nadu (2010) 10 SCC 96: [2010]
12 SCR 597; Sanjeev Coke Manufacturing Co. v.
Bharat Coking Coal Ltd. (1983) 1 SCC 147: [1983] 1
SCR 1000; S. Seshachalam and Others v. Chairman,
Bar Council of Tamil Nadu and Others (2014) 16 SCC
C 72 : [2014] 12 SCR 465; State of Madhya Pradesh v.
Narmada Bachao Andolan and Another (2011) 7 SCC
639: [2011] 6 SCR 443; Ajit Singh and Others v. State
of Punjab and Others (1999) 7 SCC 209: [1999] 2
Suppl. SCR 521; C.A. Rajendran v. Union of India &
Others [1968] 1 SCR 721; Indra Sawhney and Others
D
v. Union of India and Others 1992 Supp (3) SCC 217 :
[1992] 2 Suppl. SCR 454; Unni Krishnan, J.P. and
Others v. State of Andhra Pradesh and Others (1993) 1
SCC 645: [1993] 1 SCR 594; Sajjan Singh v. State of
Rajasthan AIR 1965 SC 845: [1965] 1 SCR 933 and
E Golak Nath and Others v. State of Punjab and Another
1967 AIR SC 1643: [1967] 2 SCR 762 – referred to.
Srimathi Champakam Dorairajan and Another v. The
State of Madras AIR 1951 Madras 120; Padmraj
Samarendra v. the State of Bihar, Patna High Court,
F Special Bench, 1978 SCC OnLine Pat 64 : 1979 PLJR
258 : AIR 1979 Pat 266; State of Kerala v. R. Jacob
Mathew and others, AIR 1964 Kerala 316 – referred
to.
James v. Commonwealth of Australia (1936) A.C. 578,
G 614; Central Provinces Case (1939) F. C. R. 18; United
States v. Patrick B. Classic [1941 SCC OnLine US SC
112: 313 US 299 (1941)] ; Missouri, K & T Rly v. May,
194 US 267 (1904), 269 – referred to.

H
JANHIT ABHIYAN v. UNION OF INDIA 37

Per S. RAVINDRA BHAT, J. (for UDAY UMESH LALIT, A
CJI and himself) (Minority opinion)
1. Our Constitution does not speak the language of
exclusion. The 103rd Constitution Amendment, by the language
of exclusion, undermines the fabric of social justice, and thereby,
the basic structure. [Para 1][314-E] B
2. The addition, or insertion of the ‘economic criteria’ for
affirmative action in aid of the section of population who face
deprivation due to poverty, in furtherance of Article 46 of the
Constitution, does not per se stray from the Constitutional
principles, so as to alter, violate, or destroy its basic structure. C
As long as the State addresses deprivation resulting from
discriminatory social practices which have kept the largest
number of our populace in the margins, and continues its
ameliorative policies and laws, the introduction of such
deprivation-based affirmative action, is consistent with
constitutional goals. What, however, needs further scrutiny, is D
whether the manner of implementing – i.e., the implicit exclusion
of those covered under Art. 15(4) and 16(4) [Scheduled Castes
(“SC”), Scheduled Tribes (“ST”), and socially and educationally
backward classes (“SEBC”)], cumulatively referred to as
‘backward classes’] violates, or damages the basic structure or E
essential features of the Constitution. [Para 2][314-F-H; 315-A]
3. The appropriate test or standard of judicial review of
constitutional amendments is not the same as in the case of
ordinary laws; the test is whether the amendment challenged
destroys, abrogates, or damages the “identity”, or “nature” or F
“character” or “personality” of the Constitution, by directly
impacting one or some of the “overarching principles” which
inform its express provisions. Further in constitutional amendment
judicial review, the court would consider the history of the
provision amended, or the way the new provision impacts the
identity, or character, or nature of the Constitution. The standard G
of judicial review of constitutional amendments, draws upon
distinct terminologies – identity, personality, nature and character
to see if the constitutional identity undergoes a fundamental
change, as to alter the Constitution into something it can never
H
38 SUPREME COURT REPORTS [2022] 14 S.C.R.

A be. Or, differently put, the test is whether the impact of the
amendment is to change the Constitution, into something it could
never be considered to be. Each of the terms, i.e. identity, nature,
personality, character, and so on, are methods of expressing the
idea that some part of the Constitution, either through its express
provisions, or its general scheme, and yet transcending those
B
provisions, are embedded as overarching principles, which cannot
be destroyed or damaged. [Paras 29, 30][332-C-G]
4. The application of the doctrine classification differentiating
the poorest segments of the society, as one segment (i.e., the
forward classes) not being beneficiaries of reservation, and the
C other, the poorest, who are subjected to additional disabilities
due to caste stigmatization or social barrier based discrimination
– the latter being justifiably kept out of the new reservation
benefit, is an exercise in deluding ourselves that those getting
social and educational backwardness based reservations are
D somehow more fortunate. This classification is plainly contrary to
the essence of equal opportunity. If this Constitution means
anything, it is that the Code of Articles 15(1), 15(2), 15(4), 16(1),
16(2), and 16(4) are one indivisible whole. Articles 16(1) and 16(4)
are facets of the same equality principle. That one needs Article
15(4) and 16(4) to achieve equality of opportunity guaranteed to
E all in Articles 15(1) and 16(1) cannot now be undermined, through
this reasoning, to hold that the theory of classification permits
exclusion on this very basis. [Para 80][356-D-F]
5. The basis of classification in the impugned amendment,
enacted in furtherance of Article 46 – is economic deprivation.
F Applying that criterion, it is either income, or landholding, or value
of assets or the extent of resources controlled, which are
classifiers. The social origins, or identities of the target group
are thus irrelevant. That there is some basis for classification,
whether relevant or irrelevant, which is sufficient to differentiate
G between members of an otherwise homogenous group, is no
justification. The economic criteria, based on economic indicators,
which distinguish between one individual and another, would be
relevant for the purpose of classification, and grant of reservation

H
JANHIT ABHIYAN v. UNION OF INDIA 39

benefit. The Union’s concern that SC/ST/OBCs are beneficiaries A
of other reservations, which set apart the poorest among them,
from the poorest amongst other communities which do not fall
within Articles 15(4) and 16(4), cannot be a distinguishing factor,
as to either constitute an intelligible differentia between the two,
nor is there any rational nexus between that distinction and the
B
object of the amendment, which is to eliminate poverty and further
the goal of equity and economic justice. [Para 84, 87][358-F; 360-
C-E]
6. None of the materials placed on the record contain any
suggestion that the SC/ST/OBC categories should be excluded
from the poverty or economic criteria-based reservation, on the C
justification that existing reservation policies have yielded such
significant results, that a majority of them have risen above the
circumstances which resulted in, or exacerbate, their
marginalization and poverty. There is nothing to suggest, how,
keeping out those who qualify for the benefit of this economic- D
criteria reservation, but belong to this large segment constituting
82% of the country’s population (SC, ST and OBC together), will
advance the object of economically weaker sections of society.
[Para 91][362-B-C]
7. The characterisation of including the poor (i.e., those who E
qualify for the economic eligibility) among those covered under
Articles 15(4) and 16(4), in the new reservations under Articles
15(6) and 16(6), as bestowing “double benefit” is incorrect. What
is described as ‘benefits’ for those covered under Articles 15(4)
and 16(4) by the Union, cannot be understood to be a free pass,
but as a reparative and compensatory mechanism meant to level F
the field – where they are unequal due to their social
stigmatisation. This exclusion violates the non-discrimination and
the non-exclusionary facet of the equality code, which thereby
violates the basic structure of the Constitution. [Para 100][365-
F-G] G
8. The impugned amendment creates paths, gateways, and
opportunities to the poorest segments of our society, enabling
them multiple access points to spaces they were unable to go to,
places and positions they were unable to fill, and opportunities
they could not hope, ever to ordinarily use, due to their destitution, H
40 SUPREME COURT REPORTS [2022] 14 S.C.R.

A economic deprivation, and penury. These: destitution, economic
deprivation, poverty, are markers, or intelligible differentia,
forming the basis of the classification on which the impugned
amendment is entirely premised. To that extent, the amendment
is constitutionally indefeasible. However, by excluding a large
section of equally poor and destitute individuals – based on their
B
social backwardness and legally acknowledged caste stigmatization
– from the benefit of the new opportunities created for the poor,
the amendment practices constitutionally prohibited forms of
discrimination. The overarching principles underlying Articles
15(1), 15(2), and Articles 16(1), 16(2) is that caste based or
C community-based exclusion (i.e., the practice of discrimination),
is impermissible. Whichever way one would look at it, the
Constitution is intolerant towards untouchability in all its forms
and manifestations which are articulated in Articles 15(1), (2),
Articles 16, 17, 23 and 24. It equally prohibits exclusion based on
past discriminatory practices. The exclusion made through the
D
“other than” exclusionary clause, negates those principles and
strikes at the heart of the equality code (specifically the non-
discriminatory principle) which is a part of the core of the
Constitution. [Para 101][365-H; 366-A-D]
9. Equality of opportunity in public employment – a specific
E facet of the equality code – is a guarantee to each citizen. The
equally forthright prohibition in Article 16(2), enjoining
discrimination on various grounds, including caste, is to reinforce
the absoluteness of equality of opportunity, that it cannot be
denied. The only departure through Article 16(4) is to give voice
F to hitherto unrepresented classes, discriminated against on the
proscribed grounds. This link- between providing equal
opportunity, and representation through reservations, was the only
exception, permitted by the Constitution, to further equality in
public employment. The impugned amendment snaps the link
between the idea of providing reservation for backward classes
G to ensure their empowerment and representation (who were, before
the enactment of Article 16(4), absent from public employment).
The entire philosophy of Article 16 is to ensure barrier-free equal
opportunity in regard to public employment. Article 16(4) –
enables citizens belonging to backward classes access to public
H
JANHIT ABHIYAN v. UNION OF INDIA 41

employment with the superadded condition that this is to ensure A
their “adequate representation”. Important decisions of this court:
Indra Sawhney, M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta
and BK Pavitra (II) v. Union of India have time and again
emphasized that reservations under Article 16 are conditioned
upon periodic adequate representation review. [Paras 129,
B
130][378-E-H; 379-A]
10. The introduction of reservations for economically weaker
sections of the society is not premised on their lack of
representation (unlike backward classes); the absence of this
condition implies that persons who benefit from the EWS
reservations can, and in all probability do belong to classes or C
castes, which are “forward” and are represented in public service,
adequately. This additional reservation, by which a section of the
population who are not socially backward, and whose communities
are represented in public employment – violates the equality of
opportunity which the Preamble assures, and Article 16(1) D
guarantees. [Para 131][379-B-C]
11. The impugned amendment results in treating those
covered by reservations under Article 16(4) with a standard that
is more exacting and stringent than those covered by Article
16(6). For instance, if the poorest citizens among a certain E
community or that entire community, is unrepresented, and the
quota set apart for the concerned group (SC) as a whole is filled,
the requirement of “representation” is deemed fulfilled, i.e.,
notwithstanding that the specific community has not been
represented in public employment, no citizen belonging to it, would
be entitled to claim reservation. However, in the case of non-SC/ F
ST/OBCs, whether the individual belongs to a community which
is represented or not, is entirely irrelevant. This vital dimension
of need to be represented, to be heard in the decision-making process,
has been entirely discarded by the impugned amendment in clause
(6) of Article 16. Within the amended Article 16, therefore, lie G
two standards: representation as a relevant factor (for SC, ST
and OBC under Article 16(4)), and representation as an irrelevant
factor (for Article 16(6)). [Para 132][379-D-F]
12. The introduction of this reservation in public employment
violates the right to equal opportunity, in addition to the non- H
42 SUPREME COURT REPORTS [2022] 14 S.C.R.

A discriminatory facet of equality, both of which are part of the equality
code and the basic structure. [Para 133][379-G]
13. The characterisation of reservations for economically
weaker sections of the population (EWS) as compensatory and
on par with the existing reservations under Articles 15(4) and
B 16(4), is without basis. The endeavour of the Constitution makers
was to ensure that past discriminatory practices which had, so to
say, eaten the vitals of the Indian society and distorted it to such
an extent that when the republic was created, an equal society
was merely an illusion, which compelled them to enact special
provisions such as Article 16(4) – and later Article 15(4), to ensure
C equality. It was not compensatory but also reparatory. They
continue to compensate, definitionally and in reality, because even
as on date, the acknowledged position is that reservations are
necessary for SCs/STs and OBCs who are not part of the creamy
layer. On the other hand, the EWS category, was consciously not
D made beneficiaries of reservations at the time of the framing of
the Constitution, because perhaps the framers felt that the enacted
provisions (including the soon to be added Articles 31A and 31B)
and the slew of economic reforms which were enacted were
sufficient to remove economic disparities. That hope however,
did not materialise. Economic disparities (unconnected with social
E and educational backwardness) continued – and perhaps were even
exacerbated to such an extent that as of now almost 25% of the
population continue to live in abject poverty. Indra Sawhney
acknowledged that measures taken for their purpose would only
result in “poverty alleviation”. [Para 168][398-B-F]
F 14. The principles of non-discrimination, non-exclusion and
equality of opportunity to all is manifested in the Constitution
through the equality code, which is part of its basic structure.
Their link with fraternity, which the Preamble assures is intrinsic
to “dignity of the individual and unity and integrity of the nation”,
G is inseparable. The framers of our constitution recognised that
there can be no justice without equality of status, and that bereft
of fraternity, even equality would be an illusion as existing
divisions and “narrow domestic walls” would fragment society.
[Para 180][402-F-G]

H
JANHIT ABHIYAN v. UNION OF INDIA 43

15. The fraternal principle is deeply embedded to this A
nation’s ethos and culture. The specific provisions which form
part of the Equality Code, are inextricably intertwined with
fraternity as well.
People cannot be assured of Justice, Liberty or Equality,
unless Fraternity in one form or another, to some degree, is felt B
by individuals at each level of our social order, and economic
system. Weakening fraternity therefore undermines justice,
liberty, and equality. [Paras 181, 182, 183][403-B, F, H]
16. One-ness, inclusiveness, humanism and the idea that not
only are all equal, and should have equal opportunities, and the C
content of each one’s rights be no different from the other, but
also that all stand together, and for each other, is a powerful
precept. This precept suffuses every provision of Part III of the
Constitution, especially Articles 14-18, 38-39 and 46. The value
of fraternity is as much a part of the equality code, and its facets –
equality of opportunity, the principle of non-discrimination and D
the non-exclusionary principle, as it inextricably binds them with
the concepts of liberty and freedom. [Paras 185, 186][404-H; 405-
A, B-C]
17. The exclusionary clause (in the impugned amendment)
that keeps out from the benefits of economic reservation, E
backward classes and SC/STs therefore, strikes a death knell to
the equality and fraternal principle which permeates the equality
code and non-discrimination principle. [Para 187][405-D-E]
18. The concepts which our Constitution fosters, and the
principles it engenders – equality, fraternity, egalitarianism, dignity, F
and justice (at individual and social levels) are all inclusive, all
encompassing. The equality code in its majestic formulation
(Article 14, 15, 16 and 17) promotes inclusiveness. Even
provisions enabling reservations foster social justice and equality,
to ensure inclusiveness and participation of all sections of society. G
These provisions assure representation, diversity, and
empowerment. Conversely, exclusion, with all its negative
connotation – is not a constitutional principle and finds no place
in our constitutional ethos. Therefore, to admit now, that exclusion
of people based on their backwardness, rooted in social practice,
H
44 SUPREME COURT REPORTS [2022] 14 S.C.R.

A is permissible, destroys the constitutional ethos of fraternity, non-
discrimination, and non-exclusion. [Para 188][405-E-G]
19. On Question 1, it is held that the states’ compelling
interest to fulfil the objectives set out in the Directive Principles,
through special provisions on the basis of economic criteria, is
B legitimate. That reservation or special provisions have so far been
provided in favour of historically disadvantaged communities,
cannot be the basis for contending that other disadvantaged groups
who have not been able to progress due to the ill effects of abject
poverty, should remain so and the special provisions should not
be made by way of affirmative action or even reservation on their
C behalf. Therefore, special provisions based on objective economic
criteria (for the purpose of Article 15), is per se not violative of
the basic structure. [Para 189][405-H; 406-A-B]
20. However, the framework in which it has been introduced
by the impugned amendment – by excluding backward classes -–
D is violative of the basic structure. The identifier for the new
criteria-is based on deprivation faced by individuals. Therefore,
which community the individual belongs to is irrelevant. An
individual who is a target of the new 10% reservation may be a
member of any community or class. The state does not – and
E perhaps justly so - will not look into her background. Yet in the
same breath, the state is saying that members of certain
communities who may be equally or desperately poor (for the
purposes of classification identification) but will otherwise be
beneficiaries of reservation of a different kind, would not be able
to access this new benefit, since they belong to those communities.
F This dichotomy of on the one hand, using a neutral identifier
entirely based on economic status and at the same time, for the
purpose of exclusion, using social status, i.e., the castes or socially
deprived members, on the ground that they are beneficiaries of
reservations (under Article 15(4) and 16(4)) is entirely offensive
G to the Equality Code. [Para 190][406-C-F]
21. A universally acknowledged truth is that reservations
have been conceived and quotas created, through provision in
the Constitution, only to offset fundamental, deep rooted
generations of wrongs perpetrated on entire communities and
H castes. Reservation is designed as a powerful tool to enable equal
JANHIT ABHIYAN v. UNION OF INDIA 45

access and equal opportunity. Introducing the economic basis for A
reservation – as a new criterion, is permissible. Yet, the “othering”
of socially and educationally disadvantaged classes – including
SCs/ STs/ OBCs by excluding them from this new reservation on
the ground that they enjoy pre-existing benefits, is to heap fresh
injustice based on past disability. The exclusionary clause operates
B
in an utterly arbitrary manner. Firstly, it “others” those subjected
to socially questionable, and outlawed practices – though they
are amongst the poorest sections of society. Secondly, for the
purpose of the new reservations, the exclusion operates against
the socially disadvantaged classes and castes, absolutely, by
confining them within their allocated reservation quotas (15% C
for SCs, 7.5% for STs, etc.). Thirdly, it denies the chance of mobility
from the reserved quota (based on past discrimination) to a
reservation benefit based only on economic deprivation. The net
effect of the entire exclusionary principle is Orwellian, (so to say)
which is that all the poorest are entitled to be considered,
D
regardless of their caste or class, yet only those who belong to
forward classes or castes, would be considered, and those from
socially disadvantaged classes for SC/STs would be ineligible.
Within the narrative of the classification jurisprudence, the
differentia (or marker) distinguishing one person from another is
deprivation alone. The exclusion, however, is not based on E
deprivation but social origin or identity. This strikes at the essence
of the non-discriminatory rule. Therefore, the total and absolute
exclusion of constitutionally recognised backward classes of
citizens - and more acutely, SC and ST communities, is nothing
but discrimination which reaches to the level of undermining, and
F
destroying the equality code, and particularly the principle of non-
discrimination. [Para 191][406-F-H; 407-A-D]
22. On question 3, it is clear 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 G
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 non-discrimination and non-

H
46 SUPREME COURT REPORTS [2022] 14 S.C.R.

A exclusion which forms an inextricable part of the basic structure
of the Constitution. [Para 192][407-E-F]
23. While this reasoning is sufficient to conclude that Article
16(6) is liable to be struck down, there are additional reasons
due to which this court is compelled to clarify that while the
B ‘economic criteria’ per se is permissible in relation to access of
public goods (under Article 15), the same is not true for Article
16, the goal of which is empowerment, through representation of
the community. [Para 193][407-F-G]
24. On the point of Question 2, it is true that unaided private
C educational institutions would be bound under Article 15(6) to
provide for EWS reservations, however, given that the analysis
under Question 3 on ‘exclusion’ leads to the conclusion that the
Amendment is violative of the basic structure, the question herein
has been rendered moot. [Para 194][408-A-B]

D 25. Sections 2 and 3 of the Constitution (One Hundred and
Third Amendment) Act, 2019 which inserted clause (6) in Article
15 and clause (6) in Article 16, respectively, are unconstitutional
and void on the ground that they are violative of the basic structure
of the Constitution. [Para 195][408-B-C]

E State of Madras v. Champakam Dorairajan 1951 SCC
351: [1951] SCR 525; M.R. Balaji v. State of Mysore
[1963] Supp 1 SCR 439; T. Devadasan v. Union of India
(1964) 4 SCR 680; State of Kerala v. N.M. Thomas
(1976) 2 SCC 310: [1976] 1 SCR 906; Indra Sawhney
v. Union of India 1992 Supp (3) SCC 217: [1992]
F 2 Suppl. SCR 454; Pramati Educational & Cultural
Trust v. Union of India (2014) 8 SCC 1; Chebrolu Leela
Prasad Rao v. State of A.P. (2021) 11 SCC 401; Jaishri
Laxmanrao Patil v. State of Maharashtra (2021) 8 SCC
1; Kesavananda Bharati v. State of Kerala (1973) 4 SCC
G 225: [1973] Supp SCR 1; Minerva Mills v. Union of
India (1980) 3 SCC 625: [1981] 1 SCR 206; Indira
Nehru Gandhi v. Raj Narain 1975 Supp SCC 1: [1976]
2 SCR 347; P. Sambamurthy v. State of A.P (1987) 1
SCC 362: [1987] 1 SCR 879; Kihoto Hollohan v.
Zachillhu 1992 Supp (2) SCC 651: [1992] 1 SCR 686;
H
JANHIT ABHIYAN v. UNION OF INDIA 47

L. Chandra Kumar v. Union of India (1997) 3 SCC 261: A
[1997] 2 SCR 1186 ; Raghunathrao Ganpatrao v.
Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR
480; I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC
1: [2007] 1 SCR 706; Waman Rao v. Union of India
(1981) 2 SCC 362: [1981] 2 SCR 1; Indra Sawhney B
(2) v. Union of India (2000) 1 SCC 168: [1999] 5 Suppl.
SCR 229; Indian Young Lawyers Association and Ors.
v. State of Kerala and Ors. (2019) 11 SCC 1: [2018] 9
SCR 561; Supreme Court Advocates on Record
Association (SCAORA) v. Union of India (2016) 5 SCC
1: [2015] 13 SCR 1; Roop Chand Adlakha v. Delhi C
Development Authority (1989) Supp (1) SCC 116:
[1988] 3 Suppl. SCR 253; State of West Bengal v. Anwar
Ali Sarkar (1952) 1 SCC 1: [1952] SCR 284;
Mohammad Shujat Ali and Ors. v. Union of India (1975)
3 SCC 76: [1975] 1 SCR 449; Bhim Singhji v. Union of D
India (1981) 1 SCC 166; M. Nagaraj v. Union of India
(2006) 8 SCC 212: [2006] 7 Suppl. SCR 336; Ashok
Kumar Thakur v. Union of India (2008) 6 SCC 1: [2008]
4 SCR 1; K. Krishna Murthy v. Union of India (2010) 7
SCC 202: [2010] 6 SCR 972; R.C. Poudyal v. Union
of India 1994 Supp (1) SCC 324: [1993] 1 SCR 891; E
Air India v. Nargesh Mirza (1981) SC 1829 : [1982] 1
SCR 438; Vishaka v. State of Rajasthan (1997) 6 SCC
241: [1997] 3 Suppl. SCR 404; Anuj Garg and Others
v. Hotel Association of India and Others, (2008) 3 SCC
1: [2007] 12 SCR 991; National Legal Services F
Authority v UOI and Others (2014) 5 SCC 438: [2014]
5 SCR 119; Vineeta Sharma v. Rakesh Sharma & Others
(2020) 9 SCC 1: [2020] 10 SCR 135; Secretary,
Ministry of Defence v. Babita Puniya & Others (2020)
7 SCC 469: [2020] 3 SCR 833; Lt. Col. Nitisha & Others
v. Union of India & Others, 2021 SCC OnLine SC 261; G
State of Karnataka v. Appa Balu Ingale (1995) Supp
(4) SCC 469: [1992] 3 Suppl. SCR 284; Marri Chandra
Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.
(1990) 3 SCC 130: [1990] 2 SCR 843; Valsamma Paul
& Ors. v. Cochin University & Ors. (1996) 3 SCC 545: H
48 SUPREME COURT REPORTS [2022] 14 S.C.R.

A [1996] 1 SCR 128; Abhiram Singh and Ors. v. C.D.
Commachen (2017) 2 SCC 629: [2017] 1 SCR 158;
Saurabh Chaudri & Ors. v. Union of India & Ors.
(2003) 11 SCC 146; [2003] Supp 5 SCR 152; S.R.
Bommai v. Union of India (1994) 3 SCC 1: [1994]
2 SCR 644 ; Vikas Sankhala & Ors. v. Vikas Kumar
B
Agarwal & Ors (2017) 1 SCC 350: [2016] 7 SCR 639;
Samatha v. State of A.P. & Ors. (1997) 8 SCC 191:
[1997] Supp 2 SCR 305; Indian Medical Association
& Ors. v. Union of India & Ors. (2011) 7 SCC 179: [2011]
6 SCR 599; Society for Unaided Private Schools of
C Rajasthan v. Union of India, (2012) 6 SCC 1: [2012]
2 SCR 715; State of Jammu and Kashmir v. Triloki Nath
Khosa & Ors. (1974) 1 SCC 19: [1974] 1 SCR 771;
Pattali Makkal Katchi v. A. Mayilerumperumal and Ors
2022 SCC Online SC 386; Col. A.S. Iyer v. V.
Balasubramanyam (1980) 1 SCC 634: [1980]
D
1 SCR 1036 ; Lachhman Das v. State of Punjab [1963]
2 SCR 353; National Legal Services Authority v. Union
of India & Ors. (2014) 5 SCC 438: [2014] 5 SCR 119;
Charu Khurana v. Union of India (2015) 1 SCC 192:
[2014] 12 SCR 259; State of West Bengal v. Anwar Ali
E Sarkar [1952] 1 SCR 284; Nandini Satpathy v. PL Dani
[1978] 3 SCR 608; Jarnail Singh v. Lachhmi Narain
Gupta (2018) 10 SCC 396: [2018] 10 SCR 663; BK
Pavitra (II) v. Union of India (2019) 16 SCC 129: [2019]
7 SCR 1086; T.M.A. Pai Foundation v. State of
Karnataka (2002) 8 SCC 481: [2002]
F
3 Suppl. SCR 587; Delhi Transport Corpn. v. D.T.C.
Mazdoor Congress 1991 Supp (1) SCC 600: [1990]
1 Suppl. SCR 142; K.C. Vasant Kumar v. State of
Karnataka (1985) Supp SCC 714: [1985] Suppl.
SCR 352; State of Gujarat v. Shri Ambika Mills (1974)
G 4 SCC 656: [1974] 3 SCR 760; S. Seshachalam & Ors.
v. Chairman Bar Council of TN (2014) 16 SCC 72:
[2014] 12 SCR 465; R.K. Garg v. Union of India (1981)
4 SCC 675: [1982] 1 SCR 947 and Prathvi Raj

H
JANHIT ABHIYAN v. UNION OF INDIA 49

Chauhan v. Union of India, (2020) 4 SCC 727: [2020] A
2 SCR 727 – referred to.
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S.
150 (1891) and Korematsu v. United States, 323 U.S.
214 (1944) – referred to.
Case Law Reference B

In the judgment of DINESH MAHESHWARI, J.
[1964] 4 SCR 680 referred to Para 7.2
(1976) 2 SCC 310 referred to Para 7.2
C
1992 Supp (3) SCC 217 referred to Para 7.2
[1963] Supp 1 SCR 439 referred to Para 7.2
[2020] 2 SCR 727 referred to Para 7.4
[2019] 7 SCR 1086 referred to Para 8.2
D
[2006] 7 Suppl. SCR 336 referred to Para 9.2
(2021) 8 SCC 1 referred to Para 9.2
[1951] SCR 525 referred to Para 10
[2008] 4 SCR 1 referred to Para 10
E
[1974] 2 SCR 348 referred to Para 11
[1973] Suppl. SCR 1 relied on Para 13
[1971] 3 SCR 9 referred to Para 13
[2018] 7 SCR 1 referred to Para 15.4 F
[1985] Suppl. SCR 352 referred to Para 15.4
[1981] 1 SCR 206 relied on Para 16.1
[1999] 5 Suppl. SCR 229 referred to Para 16.2
(2002) 8 SCC 481 referred to Para 17.1 G
[1960] 1 SCR 246 referred to Para 17.1
[2017] 10 SCR 569 referred to Para 18.1
(2021) 4 SCC 542 referred to Para 19
H
50 SUPREME COURT REPORTS [2022] 14 S.C.R.

A [1964] 6 SCR 368 referred to Para 24.1
[1981] 2 SCR 1 referred to Para 24.1
[1995] 3 Suppl. SCR 269 referred to Para 24.3
[2009] 12 SCR 978 referred to Para 24.3
B (1981) 1 SCC 166 relied on Para 24.3
[1993] 1 SCR 480 referred to Para 25.1
(2012) 6 SCC 1 referred to Para 25.5
(2014) 8 SCC 1 referred to Para 25.5
C
1975 Supp SCC 1 referred to Para 26
[1952] SCR 89 referred to Para 35
[1965] 1 SCR 933 referred to Para 35
[1967] 2 SCR 762 referred to Para 35
D
[1978] 2 SCR 1 referred to Para 36.1
[1987] 1 SCR 879 referred to Para 37.5
[1992] 1 SCR 686 referred to Para 37.6
[1997] 2 SCR 1186 referred to Para 37.8
E
[2010] 6 SCR 972 referred to Para 37.11
[2015] 13 SCR 1 referred to Para 37.13
[1975] 1 SCR 1 referred to Para 45.1

F [2015] 1 SCR 55 referred to Para 53
[1997] 1 SCR 750 referred to Para 61
[1980] 2 SCR 913 referred to Para 62
[1996] 7 Suppl. SCR 548 referred to Para 63.1.1
G [1983] 1 SCR 456 referred to Para 63.1.2
[1973] 3 SCR 236 referred to Para 71.3
(1990) 1 SCC 520 referred to Para 71.5
[1985] 2 SCR 224 referred to Para 74.1
H
JANHIT ABHIYAN v. UNION OF INDIA 51

[2014] 9 SCR 780 referred to Para 74.2.1 A
[2003] 2 SCR 1136 referred to Para 74.2.1
[1989] 2 Suppl. SCR 570 referred to Para 74.2.3
[1981] 2 SCR 185 referred to Para 92.4
[2006] 3 SCR 1132 referred to Para 99.1 B
In the judgment of BELA M. TRIVEDI, J.
(1973) 4 SCC 225 relied on Para 5
[1992] 1 SCR 686 referred to Para 7
C
(1981) 1 SCC 166 referred to Para 9
[1976] 2 SCR 347 referred to Para 10
[1976] 1 SCR 906 referred to Para 11
[1981] 2 SCR 1 referred to Para 12
D
[2006] 7 Suppl. SCR 336 referred to Para 13
[1974] 3 SCR 760 referred to Para 14
1985 (1) Suppl. SCR 352 relied on Para 26
2008 (4) SCR 1 relied on Para 27
E
In the judgment of J.B. PARDIWALA, J.
[1973] Suppl. SCR 1 referred to Para 5
[1951] SCR 525 referred to Para 13
[1952] SCR 435 referred to Para 14 F
AIR 2002 SC 1533 referred to Para 15
[1992] 2 Suppl. SCR 454 referred to Para 19
AIR 1974 SC 1631 referred to Para 29
[1976] 1 SCR 906 referred to Para 31 G
[1974] 2 SCR 348 referred to Para 33
AIR 1995 SC 1648 referred to Para 34
[1992] 3 SCR 658 referred to Para 36
H
52 SUPREME COURT REPORTS [2022] 14 S.C.R.

A [1993] 1 SCR 594 referred to Para 37
[2002] 3 Suppl. SCR 587 referred to Para 38
[2012] 2 SCR 715 referred to Para 39
[2014] 11 SCR 712 referred to Para 47
B [2006] 7 Suppl. SCR 336 referred to Para 49
[1963] Supp 1 SCR 439 referred to Para 49
[1996] 1 Suppl. SCR 825 referred to Para 55
[1974] 1 SCR 771 referred to Para 60
C
[2015] 5 SCR 670 referred to Para 61
(1990) 1 SCC 520 referred to Para 78
[2008] 4 SCR 1 referred to Para 81
[1958] SCR 1422 referred to Para 91
D
[1954] SCR 378 referred to Para 92
[1959] SCR 279 referred to Para 93
[1993] 1 SCR 891 referred to Para 94
[1992] 1 SCR 686 referred to Para 95
E
[2006] 7 Suppl. SCR 336 referred to Para 96
[1965] 1 SCR 933 referred to Para 108
[1967] 2 SCR 762 referred to Para 115

F [1975] Suppl. SCC 1 referred to Para 135
[1994] 2 SCR 644 referred to Para 139
[2007] 1 SCR 706 referred to Para 141
[2015] SCR 975 referred to Para 148
G [2006] 5 Suppl. SCR 1 referred to Para 149
[2010] 12 SCR 597 referred to Para 151
[1974] 3 SCR 760 referred to Para 165
[1952] SCR 284 referred to Para 167
H
JANHIT ABHIYAN v. UNION OF INDIA 53

[1983] 1 SCR 1000 referred to Para 169 A
[2014] 12 SCR 465 referred to Para 171
[2011] 6 SCR 443 referred to Para 178
[1999] 2 Suppl. SCR 521 referred to Para 185
[1968] 1 SCR 721 referred to Para 185 B
[1971] 2 SCR 430 relied on Para 189
In the judgment of S. RAVINDRA BHAT, J.
[1951] SCR 525 referred to Para 6
C
[1963] Supp 1 SCR 439 referred to Para 6
[1976] 1 SCR 906 referred to Para 8
[1992] 2 Suppl. SCR 454 referred to Para 9
[2006] 7 Suppl. SCR 336 referred to Para10
D
[2008] 4 SCR 1 referred to Para 10
[2010] 6 SCR 972 referred to Para10
(2014) 8 SCC 1 referred to Para 10
(2021) 11 SCC 401 referred to Para 10
E
(2021) 8 SCC 1 referred to Para 10
[1973] Supp SCR 1 referred to Para 12
[1981] 1 SCR 206 referred to Para 12
[1976] 2 SCR 347 referred to Para 13 F
[1987] 1 SCR 879 referred to Para 16
[1992] 1 SCR 686 referred to Para 16
[1997] 2 SCR 1186 referred to Para 16
[1993] 1 SCR 480 referred to Para 16 G
[1981] 2 SCR 1 referred to Para 22
[1993] 1 SCR 891 referred to Para 24
[2015] 13 SCR 1 referred to Para 26
H
54 SUPREME COURT REPORTS [2022] 14 S.C.R.

A [1982] 1 SCR 438 referred to Para 40
[1997] 3 Suppl. SCR 404 referred to Para 40
[2007] 12 SCR 991 referred to Para 40
[2014] 5 SCR 119 referred to Para 40
B [2018] 9 SCR 561 referred to Para 40
[2020] 10 SCR 135 referred to Para 40
[2020] 3 SCR 833 referred to Para 40
[1992] 3 Suppl. SCR 284 referred to Para 49
C
[1990] 2 SCR 843 referred to Para 50
[1996] 1 SCR 128 referred to Para 51
[2017] 1 SCR 158 referred to Para 52
[1999] 5 Suppl. SCR 229 referred to Para 53
D
[2003] Supp 5 SCR 152 referred to Para 64
[1994] 2 SCR 644 referred to Para 65
[2007] 1 SCR 706 referred to Para 66
[2016] 7 SCR 639 referred to Para 68
E
[1997] 2 Suppl. SCR 305 referred to Para 69
[2011] 6 SCR 599 referred to Para 70
(1981) 1 SCC 166 referred to Para 72

F [2012] 2 SCR 715 referred to Para 74
[1952] SCR 284 referred to Para 81
[1974] 1 SCR 771 referred to Para 82
[1975] 1 SCR 449 referred to Para 83
G [1980] 1 SCR 1036 referred to Para 85
[1963] 2 SCR 353 referred to Para 86
[2014] 5 SCR 119 referred to Para 88
[2014] 12 SCR 259 referred to Para 90
H
JANHIT ABHIYAN v. UNION OF INDIA 55

[1952] 1 SCR 284 referred to Para 124 A
[1978] 3 SCR 608 referred to Para 124
[2018] 10 SCR 663 referred to Para 130
[2019] 7 SCR 1086 referred to Para 130
[2002] 3 Suppl. SCR 587 referred to Para 134 B
[1990] 1 Suppl. SCR 142 referred to Para 140
[1985] Suppl. SCR 352 referred to Para 161
[1974] 3 SCR 760 referred to Para 163
C
[2014] 12 SCR 465 referred to Para 163
[1982] 1 SCR 947 referred to Para 163
[1988] 3 Suppl. SCR 253 referred to Para 164
[2020] 2 SCR 727 referred to Para 186
D
ORIGINAL/CIVIL APPELLATE JURISDICTION : Writ Petition
(Civil) No. 55 of 2019.
Petition for challenging the validity of the Constitution(One Hundred
and Third) Amendment Act.
With E
T.C.(C) No. 8/2021, W.P.(C) Nos. 596, 446, 427, 331, 343, 798,
732, 854 of 2019, T.C. (C) Nos. 12, 10, 9 of 2021, W.P.(C) Nos. 73, 72,
76, 80, 222, 249, 341 of 2019, T.P.(C) Nos. 1245, 2715 of 2019, T.P.(C)
No. 122/2020, SLP(C) No. 8699/2020, T.C.(C) Nos. 7, 11 of 2021, W.P.(C)
Nos. 69, 122, 106, 95, 133, 178, 182, 146, 168, 212, 162, 419 of 2019, F
W.P.(C) No. 473/2020, W.P.(C) No. 493/2019.
K.K. Venugopal, AG, Tushar Mehta, SG, Sanjay Jain,
Ms. Aishwarya Bhati, ASGs, Saurabh Mishra, Ajay Bansal AAGs., R.
Bala Subramanian, Mahesh Jethmalani, Dr. K.S. Chauhan, Maninder
Singh, Ms. Meenakshi Arora, Jayanth Muth Raj, Gopal Sankaranarayanan, G
P. Wilson, ADN Rao, Salman Khurshid, S. Niranjan Reddy, Prof. Ravi
varma Kumar, Prof. (Dr.) Ravi Varma Kumar, Jaideep Gupta, Sr. Advs.,
Yadav Narender Singh, Ajay Sharma, Gulab Chandra Yadav, Sudhir Singh,
Varun Mishra, Abhishek Yadav, Ashutosh Yadav, Ms. Shraddha Deshmukh,
Ankur Talwar, Kanu Agarwal, Ms. Chinmaee Chandra, Apoorva Kurup,
H
56 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Padmesh Mishra, Ms. Sujatha Bagadhi, Amrish Kumar, Ms. Vanshaja
Shukla, Digvijay Dam, Arvind Kumar Sharma, Aman Sharma, Manvendra
Singh, L.N. Shivani, Ms. Shivika Mehra, Ms. Shagun Thakur, Ms.
Poornima Singh, Ms. Shreya Jain, A.K. Sharma, Sajal Singhai, Rajender
Singh Chaudhry, Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar Jha,
Ms. Deepti Hooda, Ms. Sawati Singh, Sanjay Singh, Amit Kumar Chawla,
B Ms. Manju Jetley, Sunny Choudhary, Ms. Yashraj Singh Bundela(G.A.),
Sandeep Sharma, Prof.(Dr.) K. Elumalai, Ajit Kumar Ekka, Ravi Prakash,
Abhishek Chauhan, Ajit Kumar, Shuvodeep Roy, Arnav Singh Deo,
Prabhash Bajaj, Ajay Sabharwal, Ms. Ashita Chawla, Raghav Tewari,
Prasanna S., Rahul Narayan, Tushar Arora, Chandra Tanay Choubey,
C Gautam Bhatia, Ms. Malavika Jayanth, Ms. Ranji Ohri Lal, Yaduinder
Lal, Himinder Lal, Senthil Jagadeesan, Ms. Jhanvi Dubey, Ms. Ishita
Chowdhury, Ms. Shivani Vij, Ms. Tanya Srivastava, Ms. Aditi Gupta,
Vishnu Sharma, R. Nedumaran, Apoorv Malhotra, Ashutosh Dubey, Amit
P. Shahi, Ms. Rajshri A. Dubey, D. Shiva Shankar, Ms. Agrimma Singla,
Manish Dhingra, Ms. Ritambhara, H.B. Dubey, Ms. Asifa Rashid Mir,
D Ms. Aadya Mishra, Ms. Maria Kousar, Mrs. Naghma Imtiaz, Zangham
Ahmed, Saif Naseem for M/s Equity Lex Associates, Mahfooz A. Nazki,
Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy,
K.V. Girish Chowdary, Ms. Rajeswari Mukherjee, Ms. Akhila Palem,
Abhishek Sharma, Sahil Raveen, Jaimon Andrews, Piyo Harold Jaimon,
Ameen Hassan, Ms. Aswathi M.K., Lal Pratap Singh, Shobhit Tiwari,
E
Umesh Pratap Singh, Vishal Singh, R. C. Kohli, Prashant Shukla, Praveen
Gaur, Sampriti Baksi, Suyash Srivastava, Baani Khanna, Shreya Mishra,
Aaina Walia, Subodh S. Patil, Ms. Sampriti Bakshi, Suyash Srivastava,
Ms. Baani Khanna, Karam Murugan, Ms. Shreya Mishra, Shankar Singh,
Ms. Aaina Walia, Satyajeet Kumar, Ms. Sudhansu Palo, Ms. Ipsita Behura,
F Gautam Das, Raj Kumar Yadav, Sanjeev Kumar, Budhadev Palo, Ms.
Padmaja Choudhury, Abhilash Kr. Tripathy, B. Jagannath Rao, Dinesh
Kumar Jha, Nirmal Kumar Ambastha, Ms. Ashmita Bisarya, Damodar
Solanki, Ms. Manju Sharma Jetley, Prof.(Dr.) G. Mohan Gopal, Shishir
Pinaki, Muzaffar Khan, Vijendra Mishra, V. Ramchander Goud, Ms.
Mallika Das, Ramakrishna, Kasoju Mahesh Acharya, D. Mahesh Babu,
G Dr. M.P. Raju, S.S. Nehra, P.I. Jose, Rajendra Verma, Subhash Chandra
Sagar, Hemant Sagar, Mahendra Singh, Manoj Swarup, Dr. K.S. Bhati,
E.C. Viyasagar, Ms. Sharada Bai, Ms. Belle Ravivarma, Ms. Sindhu
Acharya, Ms. Priyanka Yavagal, Giridhar Gangothri, Ms. Shikha Jaihind
Yadav, Vinayak Mohan, M. Vijaya Bhaskar, Murari Lal, R.S.M. Kalky,
S.P. Singh, Randhir Singh, Sumit Kishore, Pratik R. Bombarde, Reepak
H
JANHIT ABHIYAN v. UNION OF INDIA 57

Kansal, Aakarsh Kamra, Jitendra Kumar, Abhishek Kumar, D.D. Verma, A
Renjith B. Marar, Zulfiker Ali P. S, Satya Mitra, Purvish J. Malkan, Ankur
Mittal, P. A. Noor Muhamed, Shereef K.A., Rakesh Kumar, Sanjay Kr.
Yadav, Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupama N.,
W. Inmanuel Meitei, Haris Beeram, Mushtaq Satine, Usman Ghani Khan,
Azhar Assees, Radha Shyam Jena, V.N. Raghupathy, Shadan Farasat,
Ms. Hrishika Jain, Ujwala Uppaluri, Bharat Gupta, Shourya Dasgupta, B
Aman Naqvi, Dhruv Bhatnagar, Ms. Ujjwala Uppaluri, Sachin Patil, Geo
Joseph, Risvi Muhammed, Durgesh Gupta, Kailas Bajirao Autade, Namit
Saxena, Mrs.Niranjana Singh, Ms. Somyashree, Ms. Sarvshree, Dinesh
P. Rajbhar, KasojuMahesh Chary, Ms. Anzu. K. Varkey, Himanshu Tyagi,
Ayush Negi, Saurabh Kumar, Ms. Disha Mittal, Akash Kakade, C
Somanatha Padhan, Ashok Anand, Rakesh Kumar Singh, Miss Sukhada
Kakade, Swetab Kumar, Milind Singh, S. Gowthaman, Ms. M. Venmani,
Abhisar Thakral, Deepak Vuttsya, Raunak Vuttsya, D. Venkata Krishna,
M. Venmani, A.N.Rajan Babu, Roy Abraham, Ms. Reena Roy, Ms.
Seema Jain, Akhil Abraham Roy, Ms. Rajni Ohri Lal, Arun Dagar, Rahul
Nehra, Annam Venkatesh, Sanjay Parikh, Shashank Singh, Adil D
Sharfuddin, Ms. Disha Wadekar, Anupam Chaudhary, Satwik Parikh,
Mubarak Ali, Mohd. Asad Khan, V. K. Biju, Ms. Ria Sachthey, Chetanya
Singh, Amlendu Kumar Akhilesh Kumar Jha, Dr. Ranjeet Bharti, Abhay
Pratap Singh, Ms. Rubina Jawed, Parthsarithi M. Saraf, Kavitha K.T.,
Subhash Chandran, N.P. Rakeshpaniker, Nishant Ramakantrao
Katneshwarkar, V. N. Raghupathy, Siddharath Dharmadhikari, Aaditya E
A. Pande, Bharat Bagla, D.Kumanan, Sheikh F Kalia, Ms. Racheetha
Chawala, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia, Ms. Tushika
Goel, Ms. Savita Singh, K. V. Mohan, K.V. Balakrishnan, Rahul Kumar
Sharma, Ms. Diya Kapur, Ms. Liz Mathew, Siddharth Nath, Raghav
Kumar, Aditya Lodha, Ms. Sonali Jain, Ms. Vasudha Jain, Ms. Khushboo F
Hora, Ms. Deepanwita Priyanka, A. Karthik, Kaleeswaram Raj,
Mohammed Sadique T.A., Mrs. Anu K. Joy, Alim Anvar, Ms. Thulasi K.
Raj, V.K. Biju, Ms. Swathi H. Prasad, Ranjeet Bharti, K.K.L. Gautam,
Ms. Saroj Bala, Ms. Vaishali Nariyala, Kaushal Jeet Kait, Kritagya Kumar
Kait, Manoj Sharma, Rahul Mohod, Abhishek Gurawa, Ms. Vasundhara
Rana, Aditya Agarwal, Vinod Kumar Agarwal, Sanjeev Malhotra, Gaurav G
Yadava, Ms Veena Bansal, Sourav Jindal, Varun Thakur, Brajesh Pandey,
Sudhir Singh, Varinder Kr. Sharma, Ms. Madhavi Khandelwal, Shashank
Patro, Pawan Prakash Pathak, Ravi Chandran Iyar, Amol B.Karande,
Rajsaheb Patil, Vikrant Yadav, A. Selvin Raja, A. Raja Mohammed, A.
Mohammed Yusuff, Ms. V. Shahira Banu, S.A.S. Alandeen, Ms. Nikita
H
58 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Kumari, Dr. Charu Mathur, Ms. Tanvi Dubey, Rahul Unnikrishnan, Malak
Bhatt, Sanjay Kumar Dubey, Sandeep S. Deshmukh, Raj Bahadur Yadav,
Naresh Kumar, Advs. For the appearing parties.
Prakash Sharma, Adv. (in person), Mrinal Shashi Shekhar
Chakravorty (Petitioner-in-person), Intervenor-in-person.
B The following Judgments# and Order* of the Court were delivered:
DINESH MAHESHWARI, J.
Contents**
Preliminary and Brief Outline......................................................3
The Referral and the Questions Formulated.............................5
C Rival Submissions.......................................................................7
In challenge to the amendment in question...................................7
In part challenge to the amendment in question..........................33
In support of the amendment in question....................................36
Points for Determination............................................................44
D Relevant Constitutional Provisions..........................................45
Doctrine of Basic Structure and Constitutional Amendments..54
Expanding Doctrine of ‘Equality’..............................................85
Affirmative Action by ‘Reservation’: Exception to the General
Rule of Equality.........................................................................89
E Economic Disabilities and Affirmative Action...........................95
Whether Economic Criteria as Sole Basis for Affirmative Action
Violates Basic Structure...........................................................102
EWS Reservation Not Availing to Certain Classes: Whether
Violates Basic Structure..........................................................125
F Breach of Fifty Per Cent. Ceiling of Reservations and Basic
Structure..................................................................................136
Other Factors and General Summation..................................146
Conclusions.............................................................................152
Acknowledgments...................................................................154
G
Ed. Note
#
There were four seperate judgments- one judgment each rendered by Hon’ble Mr.
Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M. Trivedi, and, Hon’ble Mr.
Justice J.B. Pardiwala; and a judgment rendered by Hon’ble Mr. Justice S. Ravindra
Bhat, for himself and on behalf of Shri Uday Umesh Lalit, Hon’ble the Chief Justice.
*
Common order of the Court.
H **
Pagination in the Contents is as per the Original judgment.
JANHIT ABHIYAN v. UNION OF INDIA 59
[DINESH MAHESHWARI, J.]

Preliminary and Brief Outline A
1. In this batch of transferred cases, transfer petitions, writ petitions
and the petition for special leave to appeal, the challenge is to the
Constitution (One Hundred and Third Amendment) Act, 20191, which
came into effect on 14.01.2019, whereby the parliament has amended
Articles 15 and 16 of the Constitution of India by adding two new clauses B
viz., clause (6) to Article 15 with Explanation and clause (6) to Article
16; and thereby, the State has been empowered, inter alia, to provide
for a maximum of ten per cent. reservation for “the economically weaker
sections”2 of citizens other than “the Scheduled Castes”3, “the Scheduled
Tribes”4 and the non-creamy layer of “the Other Backward Classes”5.
At the outset, it needs to be stated that the amendment in question does C
not mandate but enables reservation for EWS and prescribes a ceiling
limit of ten per cent.
2. In a very brief outline of the forthcoming discussion, it could
be noticed that the challenge to the amendment in question is premised
essentially on three-fold grounds: first, that making of special D
provisions including reservation in education and employment on the
basis of economic criteria is entirely impermissible and offends the
basic structure of the Constitution; second, that in any case, exclusion
of socially and educationally backward classes6 i.e., SCs, STs and non-
creamy layer OBCs from the benefit of these special provisions for E
EWS is inexplicably discriminatory and destroys the basic structure of
the Constitution; and third, that providing for ten per cent. additional
reservation directly breaches the fifty per cent. ceiling of reservations
already settled by the decisions of this Court and hence, results in
unacceptable abrogation of the Equality Code which, again, destroys
the basic structure of the Constitution. Per contra, it is maintained F
on behalf of the sides opposing this challenge that the amendment in
question, empowering the State to make special provisions for the
economically weaker sections of citizens, is squarely within the four
corners of the Constitution of India; rather making of such provisions is
necessary to achieve the Preambular goal of ‘JUSTICE, social, G
1
Hereinafter also referred to as ‘the amendment in question’ or ‘the 103rd Constitution
Amendment’ or simply ‘the 103 rd Amendment’.
2
‘EWS’, for short.
3
‘SC’, for short.
4
‘ST’, for short.
5
‘OBC’, for short.
6
‘SEBC’, for short. H
60 SUPREME COURT REPORTS [2022] 14 S.C.R.

A economic and political’ in real sense of terms. It is also asserted that
there is no discrimination in relation to the classes that are excluded
from EWS for the simple reason that the existing special provisions of
affirmative action in their relation continue to remain in operation. As
regards the breach of fifty per cent. ceiling of reservations, the
contention is that the said ceiling is not inflexible or inviolable and in
B
the context of the object sought to be achieved, ten per cent. has
been provided as the maximum by way of the enabling provision.
3. With the foregoing outline, we may usefully take note of the
reference made to the Constitution Bench for determination of the
substantial questions of interpretation of the Constitution, as are
C involved in these matters and the questions formulated while
commencing the hearing.
The Referral and the Questions Formulated
4. By an order dated 05.08.2020, a 3-Judge Bench of this Court
D took note of the issues arising in these matters and referred the same for
determination by a Constitution Bench while observing, inter alia, as
under: -
“…..By virtue of the impugned amendments, very Constitution is
amended by inserting new clauses in Articles 15 and 16 thereof,
E 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
F 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
G 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
H affirmative action, it is the case of the respondent-Union of India
JANHIT ABHIYAN v. UNION OF INDIA 61
[DINESH MAHESHWARI, J.]

that though ordinarily 50% is the rule but same will not prevent to A
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….”
B
5. Pursuant to the order aforesaid, this batch of matters has been
referred to this Constitution Bench for determination of the issues arising
from the challenge to the 103rd Amendment. On 08.09.2022, after perusing
the issues suggested by learned counsel for the respective parties, this
Court noted, amongst others, the issues suggested by the learned Attorney
General for India as follows: - C

“(1) Whether the 103rd Constitution Amendment can be said to
breach the basic structure of the Constitution by permitting the
State to make special provisions, including reservation, based on
economic criteria?
D
(2) Whether the 103rd Constitution Amendment can be said to
breach the basic structure of the Constitution by permitting the
State to make special provisions in relation to admission to private
unaided institutions?
(3) Whether the 103rd Constitution Amendment can be said to E
breach the basic structure of the Constitution in excluding the
SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
(4) Whether the cap of 50% referred to in earlier decisions of the
Supreme Court can be considered to be a part of the basic
structure of the Constitution? if so, can the 103rd Constitution F
Amendment be said to breach the basic structure of the
Constitution?”
5.1. Having taken note of the relevant facets of the matter, this
Court found that the first three issues suggested by the learned Attorney
General were the main issues arising in the matter while the other issues
G
were essentially in the nature of supplementing and substantiating the
propositions emerging from the said three issues. Accordingly, this Court
proceeded with the hearing with respect to the first three issues aforesaid,
while leaving it open to the learned counsel appearing for the respective
parties to advance their submissions touching upon other facets in aid of
the said three issues. H
62 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 6. We have heard learned counsel for the petitioners, the
respondents, and the interveners at substantial length and have also
permitted them to submit written notes on their respective submissions.
The principal and material submissions advanced in these matters could
be usefully summarised, while avoiding unnecessary repetition of the
same line of arguments.
B
Rival Submissions
In challenge to the amendment in question
7. Prof. (Dr.) G. Mohan Gopal led the arguments on the side of
the petitioners challenging the amendment in question and also wrapped
C up the submissions in rejoinder.
7.1. The learned counsel has, while extensively relying on the
Constituent Assembly Debates, Preamble, and Article 38 of the
Constitution which enjoins the State to secure and protect “a social
order in which justice, social, economic and political shall inform
D the institutions of the national life”, stressed that it was to ensure this
social justice and the ethos of the Constitution that special provisions
were envisioned under Article 15(4) and reservations in employment
were provided under Article 16(4). He argued that it was due to certain
primordial practices that a section of population was marginalised and
E was deprived of material resources and educational opportunities. The
people in the lowest strand of social hierarchy were ostracised and
stigmatised from public life and were deprived of basic liberties and
equality. It was to address these historical inequalities that, as a vehicle
of positive discrimination, the socially oppressed sections were provided
reservations and special provisions so as to give them a voice in
F administration, access to resources such as education and public
employment. Therefore, the idea of ensuring social equality and justice
was a congenital feature of the Constitution shaping its basic structure.
7.2. The learned counsel has argued that this basic structure has
been violated by the amendment in question which seeks to empower
G the privileged sections of society, who are neither socially and educationally
backward nor inadequately represented. He also submitted that the
amendment in question has introduced those section of people as
economically weaker who were never subjected to any discrimination,
whether historically or otherwise; and were not backward, socially and
educationally. The learned counsel quoted Dr. B.R. Ambedkar, Mr. V.I.
H
JANHIT ABHIYAN v. UNION OF INDIA 63
[DINESH MAHESHWARI, J.]

Muniswamy Pillai and Mr. Sardar Nagappa, from the Constituent A
Assembly Debates, to support his contention that reservation should not
be used by the forward class as a self-perpetuating mechanism depriving
the disadvantaged. The equation of the victims of social discrimination
with those responsible for their victimisation, for the purpose of conferring
benefits, was a contortion of the Constitution and no less than playing a
B
fraud on it. He relied on decisions of this Court in T. Devadasan v.
Union of India and Anr.: (1964) 4 SCR 680, State of Kerala and
Anr. v. N.M. Thomas and Ors.: (1976) 2 SCC 310 7 and Indra
Sawhney and Ors. v. Union of India and Ors.: 1992 Supp (3) SCC
2178 to submit that this Court has discerned reservations and special
provisions as an effective affirmative action to mitigate inequalities and C
ensure social justice and equality of opportunity. The learned counsel
has further relied on the decision of this Court in M.R. Balaji and Ors.
v. State of Mysore and Ors.: 1963 Supp (1) SCR 4399, which held
that latent or covert transgression of the Constitution by abusing an
ostensible power granted by it will amount to ‘fraud on the Constitution’.
D
7.3. The learned counsel has further submitted that the non obstante
clause in Articles 15(6) and 16(6), while granting reservation to already
privileged and adequately represented class of citizens, has vetoed the
pre-requisite of being socially and educationally backward or inadequately
represented, which was the kernel to philosophy of reservation. The
Constitution puts forth social ‘and’ educational backwardness and not E
social ‘or’ educational backwardness as a criterion to determine positive
discrimination in favour of a class. This foundation of social justice for
historically marginalised and disadvantaged people is completely
obliterated by the amendment in question, which removes that criterion.
He argued that backward class included those classes from the forward F
class that were socially and educationally backward, hence making them
eligible for benefits of reservation. He exemplified this by stating that
there were numerous communities, traditionally belonging to the so-called
‘forward’ class, in several States and several of those are not professing
any religion, but are recognised as OBC on the ground that they
are socially and educationally backward. G

7.4. On the point of exclusion of SCs, STs and OBCs, the learned
counsel has argued that the concept of Fraternity, as envisaged in the
7
Hereinafter also referred to as ‘N.M. Thomas’.
8
Hereinafter also referred to as ‘Indra Sawhney’.
9
Hereinafter also referred to as ‘M.R. Balaji’. H
64 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Constitution, informs Articles 15 and 17, giving shape to equality while
prohibiting discrimination and discriminatory practices prevalent in our
society. Inclusion of forward class and exclusion of disadvantaged class
from the protection and benefit of reservation violate the basic structure
of the Constitution. Learned counsel has relied on the decision of this
Court in Prathvi Raj Chauhan v. Union of India and Ors.: (2020)
B
4 SCC 727 to highlight the place and role of Fraternity in the scheme of
polity and society. Further he has stated that such exclusion of SCs, STs
and OBCs was primarily based on caste because it is indeed undisputed
that a large chunk of population so excluded are also economically
backward along with being socially and educationally backward. Hence,
C he would submit that the basic principle of equality forming the basic
structure of the Constitution stands abrogated by excluding those who
are socially and educationally backward and also are part of systemic
poverty/labour under abject poverty.
7.5. The learned counsel has yet further argued that the purpose
D of positive discrimination was to put an end to monopoly of certain classes
and create an inclusive society so as to ensure equality of opportunity to
the marginalised sections. However, the amendment in question creates
a perpetual monopoly by providing reservation to that section of population
whose identification is imprecise and is based on their individual traits
more so, when these classes have been enjoying and are still enjoying
E control over resources and public employment.
7.6. Lastly, the learned counsel would submit that the amendment
in question is not based on economic condition, which is multi-dimensional,
but on financial incapacity which is transient in nature, rewarding poor
financial behaviours and is, therefore, not a reliable criterion for giving
F reservation. There are two wings of reservation - social and educational
backwardness, which cover the people who are economically weaker
but not those who are financially incapable. Economic weakness goes
hand-in-hand with social and educational backwardness. EWS is
individual-centric in contrast to Article 38(2) of the Constitution, which
G talks about inter-group inequalities. Thus, the learned counsel has
submitted that the 103rd Amendment deserves to be set aside, being
violative of the principle of equality, which is the basic structure of the
Constitution.
8. The learned senior counsel, Ms. Meenakshi Arora, elucidating
H on the twin objectives of Equality Code enshrined under Articles 14 to
JANHIT ABHIYAN v. UNION OF INDIA 65
[DINESH MAHESHWARI, J.]

17 of the Constitution as to the formal equality and substantive equality, A
has submitted that these provisions are to ensure that those sections of
society who have been kept out of any meaningful opportunity,
participation in public life and decision making, on the grounds enumerated
under Article 15(1), be uplifted through positive discrimination, giving
flesh and blood to the Equality Code, and essentially enabling the
B
substantive equality. Emphasizing on the efficiency in services as under
Article 335, she would submit that the positive discrimination has to be
read alongwith other guardrails provided by the Constitution, ensuring
identification of the protected group by constitutionally sanctioned bodies.
The absence of these guardrails and safeguards in the newly created
class of EWS through the amendment in question strikes at the core of C
the Equality Code, violating the basic structure of Constitution.
8.1. Stressing further on the argument of social and educational
backwardness and inadequacy in representation being the bedrock for
grant of reservations, the learned counsel has submitted that the
communities, whom the amendment in question aims to protect, are duly D
represented in all walks of life and hence, even from the angle of adequacy
in representation, they are not eligible to avail benefit of reservation
under Articles 15 and 16. She has placed reliance on decisions of this
Court in M.R. Balaji and Indra Sawhney to submit that it is social
‘and’ educational backwardness and not social ‘or’ educational
backwardness that is to be considered by the legislature to grant the E
benefit of reservation. Furthermore, she has submitted that backwardness
is sine qua non and the lynchpin for special provision or reservation;
and as stated by Dr. B.R. Ambedkar, backwardness was designed as a
qualifying phrase to ensure that the ‘exception does not eat the rule’.
8.2. Moving on and while relying on the decisions of this Court in F
Indra Sawhney, N.M. Thomas, M.R. Balaji and B.K. Pavitra and
Ors. v. Union of India and Ors.: (2019) 16 SCC 129, the learned
counsel has submitted that the purpose of reservation was to enable the
backward classes to have a level playing field with the forward class so
that they can participate in public life with them on an equal basis. Also, G
this Court has held that no one criterion such as caste could be the sole
basis for grant of reservation. In the amendment in question, the economic
criteria is the sole basis for grant of reservation without considering the
concept of representation; and this prescription is not only against the
judicial pronouncements but also against the Preambular vision of
casteless society, hitting the basic structure of the Constitution. H
66 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 8.3. The learned counsel has further contended that for classes
that are socially and educationally backward, there are constitutionally
devised commissions and guardrails to ensure that the benefits are
extended only to the deserving sections, who are actually socially and
educationally backward but the amendment in question is bereft of any
such guardrails or safeguards. The amendment is limited to those classes
B
that are neither identifiable nor have any constitutionally devised
mechanism for their identification.
8.4. The learned counsel would further submit that economic status
is transient in nature and would keep on changing unlike the status of
backwardness, which is based on age-old caste practices and oppressions
C that are immutable. The newly protected class under the amendment in
question lacks historic and continuing lack of adequate representation
caused by structural or institutional barriers, so as to be eligible for positive
discrimination. Further, the reservation is intended to be operative only
until there is inadequacy in representation of those classes and not in
D perpetuity. However, the present amendment prescribes essentially no
end to reservation as there would always be people poorer than others.
Since the need for reservation has been delinked from inadequacy of
representation and the need to show backwardness, there is no natural
guardrail or end point to reservations connected with poverty. This
constitutes a clear violation of the Equality Code and of the basic structure
E of the Constitution.
8.5. In the alternative, the learned counsel has argued that even if
this Court were to accept poverty and income as valid criteria for the
grant of reservation then too, the amendment to the extent of ‘other
than the class mentioned in clause (4) [and (5)]’ should be severed
F from Articles 15(6) and 16(6) so as to include the poor of all classes
without any exclusion or discrimination.
9. Learned senior counsel, Mr. Sanjay Parikh, has relied
extensively on the Constituent Assembly Debates to contend that the
Assembly was of the clear opinion that the word ‘backward’ should
G precede ‘class of people’. Therefore, despite being aware of the rampant
poverty in the country, the focus of reservations was predominantly on
the social stigma attached to the group. Reservation in public employment
was given because the framers wanted the backward classes to share
State power and for that matter, they had to be provided equal opportunity.
H The Assembly intended to extend the benefits of affirmative action to
JANHIT ABHIYAN v. UNION OF INDIA 67
[DINESH MAHESHWARI, J.]

only those socially and educationally backward groups who had been A
excluded from mainstream national life due to historic injustice, stigma
and discrimination and thus, bringing in any other criteria, excluding the
communities who have suffered such stigmatisation, would be a blatant
violation of not only the Equality Code but also the very principles of
democracy (sharing of power being necessary to sustain democracy),
B
both of which form part of the basic structure of the Constitution.
9.1. The learned counsel would submit that the criteria for
‘backwardness’ was always ‘social’ in nature and ‘economic’
backwardness was never accepted as the sole criteria. Placing reliance
on the decision of this Court in Indra Sawhney, he has contended that
by the majority of 8:1, it was held that economic criteria cannot be the C
sole basis to grant reservation under Article 16. Drawing attention to the
theory of ‘Substantive Equality’ propounded by Prof. Sandra Fredman,
the learned counsel has submitted that reservation solely on economic
criteria would violate the principles of substantive equality ingrained in
the Constitution, which was directed against identity-based historic D
marginalisation.
9.2. Learned counsel has further placed reliance on Indra
Sawhney to draw distinction between backward class and weaker
sections discussed under Articles 16(4) and 46, respectively. It has been
argued that the latter has no limitations and thus, Article 46 cannot be E
the basis for providing reservation. He has also urged that exceeding
fifty per cent. limit would violate the twin tests of width and identity, as
propounded by this Court in M. Nagaraj and Ors. v. Union of India
and Ors.: (2006) 8 SCC 21210 and result in disturbance of equality;
and that fifty per cent. limit cannot be breached under any circumstance
except if a law is protected under the Ninth Schedule to the Constitution, F
which the amendment in question is not. He supported his argument
citing Indra Sawhney and Dr. Jaishri Laxmanrao Patil v. Chief
Minister and Ors.: (2021) 8 SCC 1 11, wherein it was held that
reservation under Article 16(4) should not exceed fifty per cent.
10. Traversing through the history of reservation policy since the G
year 1872 and the decision of this Court in State of Madras v.
Champakam Dorairajan: AIR 1951 SC 226 12, Prof. Ravivarma
10
Hereinafter also referred to as ‘M. Nagaraj’.
11
Hereinafter also referred to as ‘Dr. Jaishri Patil’.
12
Hereinafter also referred to as ‘Champakam’. H
68 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Kumar, learned senior counsel, has submitted that the ratio of decision
of this Court in Champakam, that classification on the basis of religion,
race, caste, language or any of them was against the ethos of Constitution,
has been followed unanimously and consistently by this Court in M.R.
Balaji and Ashoka Kumar Thakur v. Union of India and Ors.: (2008)
6 SCC 113. However, the 103rd Amendment reinstates the communal
B
Government Order set aside in Champakam.
10.1. Elucidating further on formal and substantive equality, the
learned counsel has submitted that despite ensuring equal opportunity to
all, it was still felt necessary to prohibit discrimination specifically on the
grounds of religion, race, caste, sex, place of birth so as to halt all
C inequality and create a more egalitarian society, protecting the interests
of every individual through Articles 15, 16, 17, 23, 24 and 35. In order to
highlight the intensity of caste-based discrimination in India, he exemplified
the prejudices and discriminations faced by Dr. B.R. Ambedkar and
M.K. Gandhi and submitted that unless caste is destroyed in the country,
D equality cannot be attained in true sense of the term.
10.2. The learned counsel has further contended that the term
“socially and educationally” backward has been employed in Article
15(4) and the expressions employed are not “socially or educationally”
or “socially or economically”. The intention behind this was to protect
E those classes of population who have been historically disadvantaged by
birth and not by loss of wealth or by accident. Further, the substantive
equality enshrined through Articles 15 and 16 not only makes the provisions
to bridge the gap but it also provides the means by which this gap can be
bridged. Likewise, under Article 340, the first Backward Classes
Commission laid down 22 parameters for the identification of a backward
F class. The amendment in question does not have any such machinery
employed within its ambit for the identification of population who would
fall under the EWS category. Relying upon the census report, he has
submitted that the population who would fall under the EWS would be
around five per cent., and providing ten per cent. of reservation for such
G a small population, more so to the forward class, is manifestly arbitrary
and fraud on the Constitution. Further, this positive discrimination is taking
away the rights from rest of the population.
10.3. The learned counsel has further argued that as per the
grounds of discrimination in Article 15, the Constitution has provided a
13
H Hereinafter also referred to as ‘Ashoka Kumar Thakur’.
JANHIT ABHIYAN v. UNION OF INDIA 69
[DINESH MAHESHWARI, J.]

bridge for all the grounds but there, economic deprivation is not mentioned, A
which clarifies that it was not considered as a basis for discrimination.
Applying the principle of ejusdem generis to Article 46, he contended
that the measures contemplated in the Statement of Objects and Reasons
of the amendment in question are in favour of SCs and STs and those
weaker sections who are similarly circumstanced to SCs and STs; and
B
definitely is not meant for those castes and sections which are at the
other end of the pendulum in the society.
10.4. Relying on the decision of this Court in Indra Sawhney, the
learned counsel has posited that economic criteria cannot be the sole
basis to provide reservation. He would further submit that a class should
be homogenous, have a common origin, and have the numerical strength. C
The EWS created by the amendment in question does not fulfill any of
the criteria and hence, cannot be called a class for any State action,
particularly the affirmative action. He further emphasised on this
argument by intensively reading the opinion of Justice Sahai in Indra
Sawhney. D
10.5. The learned counsel has further submitted that the
amendment in question fails on all the anvils of Equality Code because,
if poverty is the rationale behind it and it aims at providing jobs for the
poor by way of reservation then, the amendment fails to address as to
how the poverty of the forward class is different from that of the SCs, E
STs and OBCs. Hence, the amendment in question fails the twin test of
rationality and nexus, and violates the basic structure of Constitution.
11. Learned senior counsel, Mr. Salman Khurshid, has submitted
that in India, reservation formed a special part of affirmative action. It is
within the larger affirmative action circle that reservation finds its place. F
Drawing analogy with countries like U.S.A., Israel and Germany, the
learned counsel has submitted that indeed affirmative action can be an
answer, but it is not the only answer. There are, therefore, many ways
of addressing the issue of economic disadvantage other than reservation,
as has been done by these countries. He would further submit that the
limit for such reservation cannot exceed fifty per cent. except in cases G
where compelling reasons arise. Arguing on the Equality Code, learned
counsel has relied on the classification laid down by this Court in E.P.
Royappa v. State of Tamil Nadu and Anr.: (1974) 4 SCC 3, to submit
that the present amendment neither has any reasonable classification
nor such classification has any nexus with the object to be achieved, H
70 SUPREME COURT REPORTS [2022] 14 S.C.R.

A hence is violative of Article 14. Entire list of reserved categories of
citizens is caste-based and the amendment did not include any metric or
indicator, ignoring the marginalisation criteria entirely while granting
reservation. He has also quoted the works of John Rawls to submit that
each person has the same indefeasible right over every claim.
B 12. “One law for lion and ox is oppression”, Mr. P. Wilson,
learned senior counsel, quoting William Blake, has contested the
amendment in question on four grounds. First, granting reservation to
upper caste is violation of the basic structure of Constitution as the basis
of reservation must be rooted in identified past discrimination which
impeded access to public administration and education opportunities.
C Relying on the decision of this Court in Indra Sawhney and judgment
of the Gujarat High Court in Dayaram Khemkaran Verma v. State of
Gujarat: 2016 SCC Online Guj 1821 wherein similar reservations on
the basis of economic criteria were quashed by this Court and the High
Court respectively, he has submitted that economic criteria cannot be
D the sole basis for providing reservation, and the reservation cannot exceed
fifty per cent. limit. Second, he submitted that reservation in the favour
of forward class violates the basic structure of the Constitution and is,
therefore, unconstitutional. Third, classification of EWS is neither
reasonable nor valid. The reason for providing reservation to SC, ST
and OBC communities was historical and perpetual discrimination and
E stigmatisation. It was the structural barrier that kept them from the
mainstream. Reservation cannot be used as a poverty alleviation scheme.
Hence, such classification violates the Equality Code under Article
14. Fourth, the amendment in question fails the width test laid down by
this Court in M. Nagaraj as there are no limitations or indicators that
F have been devised to identify the people falling under the EWS. Whereas,
for each category, be it SC, ST or OBC, the Constitution is overseeing
the reservation by virtue of Articles 366(24), 366(25), 338, 340, 341 etc.
Hence, the amendment in question fails the guided power test.
13. Learned senior counsel, Mr. K.S. Chauhan, while placing
G reliance on Constituent Assembly Debates and decision of this Court in
Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.:
(1973) 4 SCC 22514, has argued that the 103rd Amendment violates
the basic structure of the Constitution as it changes the identity of the
Constitution. He would again submit that providing reservation solely on
14
Hereinafter also referred to as ‘Kesavananda’.
H
JANHIT ABHIYAN v. UNION OF INDIA 71
[DINESH MAHESHWARI, J.]

economic criteria is against the decision of this Court in Indra Sawhney A
and also against the facet of democracy, as democracy ought to be
representative. The learned counsel would argue that economic criteria
is transient in nature whereas the inclusion of backward classes under
Article 16(4) was on the ground of historical exclusion. In our society,
discrimination finds its root in caste, religion, race, etc. and not in economic
B
condition of a person. The classification under Article 14 has to have
reasonable nexus and intelligible differentia which the amendment in
question, because of all the aforesaid reasons, fails to achieve. He has
also submitted that indeed forward class must have faced some
discrimination, but the intensity of discrimination is not enough to justify
reservation. To support his submission, he has relied on the judgment of C
this Court in Madhav Rao Scindia Bahadur etc. v. Union of India:
(1971) 1 SCC 85 wherein it was held that constitutional philosophy is
the obligation of the executive; if a particular class is eligible for
identification in a category and it is not identified as such, the constitutional
scheme will be destroyed; and if under the constitutional scheme, an
D
obligation is given to a wing and if that wing is not discharging the function,
it is a fraud on the Constitution.
14. Learned counsel, Mr. Yadav Narender Singh, while referring
to Sinho Commission Report, has submitted that the report, on the basis
of which the amendment was enacted, itself stated that economic criteria
would not result in homogenous class. Learned counsel has argued that E
in the absence of quantifiable data, one could not create a class for
which protective measures are to be taken. The said Report concluded
that if poverty is kept as a base-line for reservation, then it should have
in its ambit all, irrespective of their class, more so because the poor of
SCs, STs and OBCs are worse-off than those of general category. He F
has further argued that the condition precedent for a protective clause is
existence of discrimination. Hence, protective action for a class that is
neither a homogenous class nor is discriminated against, is violative of
the basic structure of the Constitution. Learned counsel has relied upon
the decision of this Court in Indra Sawhney, to submit that economic
criteria cannot be the sole basis for classification. He has further argued, G
in the alternative, that even if reservation on grounds of economic criteria
is to be given, EWS ought to include those who are living below the
poverty line (BPL).
15. Learned counsel, Mr. Shadan Farasat, while adding on to the
submissions already advanced by the preceding counsel for petitioners, H
72 SUPREME COURT REPORTS [2022] 14 S.C.R.

A posited that the originalist understanding of reservation is that it can
solely be granted as an anti-discriminatory measure and not as an anti-
deprivation measure. Hence, the amendment in question cannot sustain
itself, as it addresses the deprivation faced by an individual and not
discrimination.
B 15.1. The learned counsel would further argue that even if it is
assumed that reservation can be granted as an anti-deprivation measure,
still the amendment violates the Equality Code as it excludes the SCs,
STs and OBCs, who are poorer than the poor of forward class, without
any intelligible differentia and its nexus with the object sought to be
achieved. Opposing the justification that these classes are already
C protected by way of Articles 15(4) and 16(4), he has submitted that the
purpose of Articles 15(4) and 16(4) is to protect a ‘group’ and to counter
the historical wrong/oppression done to them. Whereas, the amendment
in question deals with situational deprivation, mainly economic criteria,
and is intended to protect an individual. Purposes and entities of both the
D protections being different, inclusion of SCs, STs and OBCs in one cannot
mean their exclusion from the other.
15.2. The learned counsel has re-emphasised on the submissions
that statistically, the backward class poor are worse off than forward
class poor and their poverty is deeper, more intense and likely to be
E stickier and persistent. He has relied on Sinho Commission Report, NITI
Aayog Multi-dimensional Poverty Index, along with other reports; and
has argued that the question before the Sinho Commission was whether
there could be reservation for general category people not covered in
any other category. The Report itself stated that the backward class
poor are poorer than the upper-class poor. He would underscore the
F point that poverty is deeply linked to the caste of an individual and the
perception surrounding that status.
15.3. The learned counsel has further submitted that grant of
reservation as a measure of affirmative action is a way for reparation
and does not lead to economic upliftment. The object of economic
G upliftment of deprived sections of society can be achieved through other
measures of poverty alleviation but reservation is not the answer. While
contending that Articles 15(1) and 16(1) are part of the basic structure
of Constitution and that it is only in furtherance of substantive equality
that formal equality can be breached, he has submitted that exclusion on
H the basis of caste straightaway breaches formal equality. Further,
JANHIT ABHIYAN v. UNION OF INDIA 73
[DINESH MAHESHWARI, J.]

exclusion of those who are arguably more impacted by this criterion A
violates substantive equality too, hitting the Equality Code, and resultantly
violating the basic structure of the Constitution.
15.4. In another line of arguments, the learned counsel has put
forth the proposition that the words “other than” in Articles 15(6) and
16(6) should be read as ”in addition to”, thereby including SCs, STs and B
OBCs within them and furthering the basic structure. He has placed
reliance on the decision of this Court in State (NCT of Delhi) v. Union
of India and Anr.: (2018) 8 SCC 501 to submit that if two interpretations
are possible - one which destroys the basic structure and the other which
enhances it - then purposive approach enhancing the basic structure of
the Constitution is to be taken and not the literal approach. He has C
concluded the submissions while quoting from the judgment of this Court
in K.C. Vasanth Kumar and Anr. v. State of Karnataka: 1985 Supp
SCC 71415 that lower the caste, the poorer are its members.
16. Learned counsel, Ms. Diya Kapoor, while stressing upon the
Equality Code and it being part of the basic structure, has argued on two D
facets. First, as to whether the inclusion of new class of reservation
solely on the basis of economic criteria was constitutionally permissible;
and second, as to whether the exclusion of SCs, STs and OBCs from
this newly created class, was constitutionally permissible. She mapped
the historical background of reservations for backward classes since E
1917 until the Constituent Assembly Debates, where Dr. B.R. Ambedkar
and Mr. K.M. Munshi supported the use of the term ‘backward’ so as to
grant special benefits to the classes qualifying that criterion and to
neutralize the oppression faced by them. She would submit that such
classification was based on long continuing historical oppression faced
by these classes. Thus, to ensure their representation, reservations were F
provided as a means to foster the equality and fraternity of the country,
with various checks and safeguards.
16.1. The learned counsel has further argued that reservation is
for participation and representation and cannot be used for poverty
alleviation. Reservation in public employment is to reverse discrimination G
and to equalize representation. Providing government jobs cannot pave
a way for economic upliftment whereas, other ways of providing subsidies
etc., is a kind of affirmative action to eliminate poverty. Indeed, poverty
15
Hereinafter also referred to as ‘Vasanth Kumar’.
H
74 SUPREME COURT REPORTS [2022] 14 S.C.R.

A alleviation is a goal for the State to strive for as per Directive Principles
of State Policy16 but, reservation is not a way to alleviate poverty, as is
evident from the statistics that despite decades of reservation in favour
of SCs, STs and OBCs, they are still poor. Relying on the decision of this
Court in Minerva Mills Ltd. and Ors. v. Union of India and Ors.:
(1980) 3 SCC 62517, she would submit that alleviation of poverty has
B
to be done without trampling on Fundamental Rights. Welfare steps can
be taken under DPSP but it cannot be done under Article 15 unless there
has been discrimination on the grounds mentioned in Article 15(1), as
otherwise, the character of Article 15 is changed and results in abrogating
the Fundamental Rights. As iterated by this Court in Indra Sawhney,
C Article 16(4) has to be in consonance with and in furtherance to Article
16(1). Similarly, Article 16(6) also has to be in furtherance of equality of
opportunity under Article 16(1). So, if Article 16(6) is violative of Article
16(1), it cannot sustain itself in the scheme of the Constitution.
16.2. Further relying upon 3-Judge bench decision of this Court in
D Indra Sawhney v. Union of India: (2000) 1 SCC 168, the learned
counsel has submitted that by providing reservation to forward class, the
identity of backward class is erased and therefore, such reservation is
illegal, hitting at the roots of the Constitution. Moreover, if the forward
class becomes backward, it can come under OBC so as to benefit from
reservation. She would reason that the 103rd Constitution Amendment
E is discriminatory to SCs and STs as the people falling in EWS are
approximately five per cent. and for these five per cent. of people ten
per cent. of reservation is provided. The learned counsel would further
submit that the amendment in question is arbitrary too, for there is no
mechanism/procedure laid down for it, as under Article 340, for
F identification of genuine EWS.
17. Learned counsel, Dr. M.P. Raju, has based his submission on
the ground that the amendment in question is a caste-based reservation
that excludes the historically oppressed groups (SC/ST/OBC) from its
coverage and is thus, destructive to the aim of ‘casteless society’, which
G is the Preambular vision forming the basic structure of the Constitution.
Learned counsel has submitted that this amendment has created two
levels of classification - first, between the classes already covered under
Articles 15(4) and 16(4) (socially and educationally backward classes)
16
‘DPSP’, for short.
17
H Hereinafter also referred to as ‘Minerva Mills’.
JANHIT ABHIYAN v. UNION OF INDIA 75
[DINESH MAHESHWARI, J.]

and those who were not (forward class/non-reserved), which has resulted A
in caste-based classification; second, within the forward class between
those who were economically weaker and those who were not. Such
classification, in his opinion, not only defeats the goal of casteless society,
as envisaged by the Constituent Assembly, but also attempts to create
vertical reservation inside a vertical reservation, which is not permitted
B
under the Constitution.
17.1. The learned counsel has further submitted that, as held by
this Court in Indra Sawhney, if castelessness is an ideal of the
Constitution, and if this ideal goes into the basic identity of the Constitution,
then the constitutional amendment, even if passes the test of equality,
violates the basic structure. He has also urged that the condition of C
‘adequate representation’ that controlled Article 16(4) is intentionally
excluded from Articles 15(6) and 16(6). Reservation, once starts, has to
end. It cannot be in perpetuity. He has further argued that the amendment
in question is violative of the Constitution inasmuch as grant of reservation
to already sufficiently represented classes while excluding those who D
were inadequately represented (SC/ST/OBC) offends not only the
Equality Code but also the principle of Fraternity, as recognised in the
Preamble to the Constitution. He has supported his contentions while
relying upon decisions of this Court in T.M.A. Pai Foundation and
Ors. v. State of Karnataka and Ors.: (2002) 8 SCC 481 and V.V.
Giri v. D.S. Dora: (1960) 1 SCR 246. E

18. Learned counsel, Mr. Kaleeswaram Raj, has based his
submissions on modern jurisprudence citing academic scholarship18 to
submit that two things are to be considered while dealing with
discrimination law. First, the immutability and second, it should constitute
fundamental choice. Relativity of poverty is antithetical to immutability. F
He has further submitted that the 103rd Amendment in the context of
exclusion, made the forward communities as protected group and the
backward class as cognate group, which is impermissible. The
amendment in question strips off the right of backward class candidates
to contest the seats kept in open category, to which they are entitled to. G
The learned counsel has argued that this amendment fails the preference
test by giving preferential treatment to forward class and taking it away
from backward class who are inadequately represented. He has further
18
‘A Theory of Discrimination Law’ by Tarunabh Khaitan, Oxford University Press
2015. H
76 SUPREME COURT REPORTS [2022] 14 S.C.R.

A submitted that the ‘living tree’ approach should be applied to interpret
the Constitution as per the changing circumstances of the society.
18.1. Learned counsel has also argued that Fundamental Rights
are individualistic in nature; and while relying on the decision of this
Court in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India
B and Ors.: (2017) 10 SCC 1, he would submit that the individual is the
focal point because it is only in the realization of individual rights, that
the collective well-being of the group can be determined and hence, it
remains baseless to say that collective rights have been provided to the
SC/ST/OBC as a group.
C 19. Learned counsel, Mr. Pratik Bombarde, has submitted that
the amendment in question changes the identity of Fundamental Rights
while omitting to take into account the crucial factor that social
backwardness was a ‘cause’ of economic backwardness and not its
‘consequence’. While relying on the decision in Saurav Yadav and
Ors. v. State of Uttar Pradesh and Ors.: (2021) 4 SCC 542 which
D held that open category is open to all and horizontal and vertical
reservations are methods of ensuring representation in public places, he
has argued that the right to equality of the persons belonging to SC, ST
and OBC communities is impacted by reducing their seats in open
category. He would reiterate that rule of ejusdem generis shall apply
E while reading Article 46. Lastly, he has submitted that confining each
social category to its extent of reservation would result in communal
reservation, which, in turn, would result in breach of Equality Code and
thereby, damage the basic structure of the Constitution.
20. Learned counsel, Mr. Akash Kakade referred to the
F phraseology of the provisions under consideration and submitted that
while Articles 15(4) and 15(5) refer to socially and educationally backward
classes, Article 16(4) is directed towards backwardness and inadequate
representation. According to him, the impugned provisions of Articles
15(6) and 16(6) have left aside the key elements of “social backwardness”
and “inadequate representation” while providing for EWS reservation.
G These provisions, therefore, are rather antithetical to the spirit of the
existing provisions. The learned counsel has again urged that Article 46
should be read under the rule of ejusdem generis and by excluding SC,
ST and OBC communities, the said rule is violated. According to the
learned counsel, keeping SC, ST and OBC communities outside of its
H scope and bringing in economically weaker sections within it was never
JANHIT ABHIYAN v. UNION OF INDIA 77
[DINESH MAHESHWARI, J.]

the idea of Article 46. He has also submitted that no constitutionally A
recognised commission has been set up for determination of the financial
incapacity/capacity of a candidate, as in the case of OBCs.
21. Learned senior counsel, Mr. Shekhar Naphade, has argued
that there was no dimension of equality, other than what was rooted in
Articles 14 to 16 of the Constitution. Relying on passages of judgments B
of A.N. Ray, C.J. and P. Jaganmohan Reddy, J. in Kesavananda, which
indicated that new dimensions of equality could be discerned having
regard to new challenges, he has submitted that those observations were
not endorsed by other judges. As a result, the amendment cannot sustain
itself on the ground that it gives shape to another facet or dimension of
equality. Learned counsel has further contended that economic criteria C
cannot be the sole criteria for the basis of classification, and if it is to be
taken as a sole criterion, Indra Sawhney has to be revisited, which
cannot be done by this Bench of 5 Judges.
22. Learned senior counsel, Mr. Jayant Muthuraj, in addition to the
arguments already advanced, would submit that ten per cent. reservation D
in open category in favour of forward class reduces the availability of
seats in open category for other classes and communities, in particular
the persons belonging to the creamy layer category in SEBCs/OBCs.
This, according to him, would damage the basic structure of the
Constitution. E
23. Learned senior counsel, Mr. Ravi K. Deshpande, and the
learned counsel, Mr. Sachin Patil, Mr. Shashank Ratnoo, Mr. Varun
Thakur, Mr. P.A. Noor Muhammad and Mr. A. Selvin Raja have also
made their submissions as interveners. All of their submissions, which
are akin to the submissions already noticed above, need not be elaborated. F
However, in sum and substance, their additional submissions had been
that the amendment in question, which states ‘not more than ten per
cent. of the total seats in each category’ has to be interpreted as
providing ten per cent. reservation for EWS in each category. One of
the interveners provided the statistics as to the percentage of people
working in each category to submit that the exclusion of SCs, STs and G
OBCs is invalid as they are still inadequately represented in State services.
Further they submitted that the current strength of Bench is not
competent to overrule Indra Sawhney wherein it was explicitly held
that reservation cannot be based solely on economic criteria. Yet further,
discussing the power of Parliament under Article 368, it was posited that H
78 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the Parliament has the power to amend the Constitution by way of
‘addition, variation or repeal’ and not by breaking down the basic structure
of the Constitution.
In part challenge to the amendment in question
24. Learned senior counsel, Mr. Gopal Sankaranarayanan has
B taken a stance different than other petitioners, and has contended that
the amendment in question is violative of basic structure of the Constitution
only to the extent of the words ‘in addition to the existing reservation
and’ which need to be severed and that the rest of the part, which
provides classification on the economic criteria for extension of special
C provisions for the advancement of economically weaker sections
excluding classes already covered under Articles 15(4) and 16(4), was
permissible.
24.1. The learned counsel has, otherwise, supported the
amendment in question on two grounds. First, that the insertion of the
D Economically Weaker Sections is perfectly valid as a class for the
extension of special provisions for their advancement, admissions and
for reservations in posts. He has submitted that the classification on the
basis of economic criteria has been recognised in plethora of measures
introduced by the State from providing housing, admission in schools or
hospitals, to several statutes for their upliftment. Further, this Court in
E M.R. Balaji, R. Chitralekha and Anr. v. State of Mysore and Ors.:
(1964) 6 SCR 368 and Vasanth Kumar has accepted poverty as an
indicator of backwardness, while considering reservation. It has been
argued that the present constitutional amendment has removed the basis
of Indra Sawhney (bar on using economic criteria as a sole determinative
F of backwardness); and in fact, such an amendment would further the
goal of economic justice, thus strengthening the basic structure of the
Constitution. The learned counsel has supported his submission with
reference to the decision in Waman Rao and Ors. v. Union of India
and Ors.: (1981) 2 SCC 36219.

G 24.2. Second, at divergence from other submissions
regarding exclusion of SC, ST and OBC communities, he has argued
that such an exclusion is permissible as the exclusion is not of ‘castes’
but of ‘classes’ who are already receiving the benefit of special
provisions. Further, the SCs, STs and OBCs receive political reservations
19
H Hereinafter also referred to as ‘Waman Rao’.
JANHIT ABHIYAN v. UNION OF INDIA 79
[DINESH MAHESHWARI, J.]

as well without having any ceiling limits as such whereas, EWS A
reservation is capped at ten per cent. and is not extended to political
reservation, thereby providing a balance with sufficient guardrails and
safeguards. Therefore, this amendment was long due, stepping away
from caste-based reservation to provide reservation for that class of
persons who had hitherto been overlooked.
B
24.3. Advancing his submission that the amendment in question,
to the extent of ‘in addition to existing reservation’, is violative of the
basic structure of the Constitution, the learned counsel has given three-
fold reasoning. First, the expression ‘in addition to’ cements reservation,
perpetuating the existing reservations within the Constitution as a
permanent feature which violates basic structure of the Constitution as C
laid down in various decisions including those in Champakam, M.R.
Balaji, Indra Sawhney, Ashoka Kumar Thakur v. State of Bihar
and Ors.: (1995) 5 SCC 403 and Subhash Chandra and Anr. v.
Delhi Subordinate Services Selection Board and Ors.: (2009) 15
SCC 458. Secondly, the amendment in question inserts enabling provision D
“in addition to”, making EWS reservation reliant on those of SCs, STs
and/or OBCs, which effectively converts enabling provisions in Articles
15(4), 15(5) and 16(4) into enabled provisions, inconsistent with the ethos
and guiding principles of the Constitution. Lastly, on the extent of
reservation, he would submit that the amendment providing reservation
“in addition to existing reservation” breaches the fifty per cent. ceiling E
limit, which is now not only a part of constitutional interpretation of
reservation provisions but is also a part of basic structure of the
Constitution. He has further emphasised that in more than 54 judgments
of this Court in over 60 years, it has been repeatedly stated that fifty per
cent. ceiling limit must be maintained when reservations are activated F
while interpreting Articles 15 and 16. This, as per his contention, lends
enough strength for fifty per cent. ceiling limit to be a basic feature of
the Constitution. In support of his submission on the extent of reservations,
learned counsel has relied upon the decisions in Bhim Singhji v. Union
of India and Ors.: (1981) 1 SCC 16620, M. Nagaraj and Dr. Jaishri
Patil. G

In support of the amendment in question
25. Learned Attorney General for India, Mr. K.K. Venugopal,
has posited that the 103rd Amendment does not violate the basic structure
20
Hereinafter also referred to as ‘Bhim Singhji’. H
80 SUPREME COURT REPORTS [2022] 14 S.C.R.

A of the Constitution, rather fosters it. Second, the exclusion of those classes
already covered under Articles 15(4) and 16(4) from the proposed
reservation did not breach the Equality Code. Third, the fifty per cent.
limit is not a sacrosanct rule. Lastly, the benefit to EWS with respect to
admission in private aided or unaided educational institutions does not
violate Article 14, as has been settled by this Court.
B
25.1. While quoting from Bhim Singhji, the learned Attorney
General has submitted that a mere violation of Article 14 does not violate
the basic structure of the Constitution unless ‘the violation is shocking,
unconscionable or unscrupulous travesty of the quintessence of
equal justice’. Relying on M. Nagaraj, he has submitted that a
C constitutional amendment can be struck down only when it changes the
identity of the Constitution. In support of his submissions, he has also
relied on the decisions of this Court in Raghunathrao Ganpatrao v.
Union of India: 1994 Supp (1) SCC 19121, Ashoka Kumar Thakur
and Minerva Mills.
D 25.2. Learned Attorney General has placed reliance on the
decision of this Court in M. Nagaraj, as to dynamic interpretation of the
Constitution to strengthen its Preambular vision; and has submitted that
Articles 38 and 46 along with Preamble to the Constitution enjoin a duty
on the State to eliminate social, economic and political inequalities and to
E promote justice. He has further argued that this Court has, over the
years, repeatedly recognised that it was desirable to use poverty as the
only basis for affirmative action and that it is poverty or economic
deprivation that results in social and educational backwardness. He has
relied on the decisions of this Court in Vasanth Kumar and Ashoka
Kumar Thakur to support his contention. He has further submitted that
F the creation of new class fosters the vision of ‘Economic Justice’, as set
out in the Preamble, hence strengthening the basic structure of the
Constitution.
25.3. Learned Attorney General has further contended that the
exclusion of already covered classes does not violate Equality Code as
G the EWS among the SC, ST and OBC communities are already enjoying
the benefit of affirmative action in their favour by way of reservations in
educational institutions and public employment, seats in Legislature, etc.,
to attain an equal status - socially and educationally. However, the EWS
among the classes not covered under any of provisions preceding Articles
21
H Hereinafter also referred to as ‘Raghunathrao’.
JANHIT ABHIYAN v. UNION OF INDIA 81
[DINESH MAHESHWARI, J.]

15(6) and 16(6) do not have any special provision made in their favour A
except for reservation by way of the present amendment. Further, this
ten per cent. carved out for EWS is in addition to the existing reservation
in favour of SEBCs; meaning thereby that it does not in any way affect
the reservation upto fifty per cent. for the SEBCs/OBCs/SCs/STs.
25.4. As to the extent of reservation, learned Attorney General B
has submitted that the fifty per cent. cap as laid down in Indra Sawhney
is for the classes covered under Articles 15(4), 15(5) and 16(4). Therefore,
extending the benefit of ten per cent. to these classes would exceed the
reservation made for them beyond fifty per cent. and that would be
violative of Indra Sawhney. He has also contended that this fifty per
cent. rule could be breached in extraordinary situation, as held by Indra C
Sawhney; and is, therefore, not an inviolable rule or part of the basic
structure of the Constitution.
25.5. On the question of private unaided educational institutions,
learned Attorney General has relied on the decision in Society for
Unaided Private Schools of Rajasthan v. Union of India and Anr.: D
(2012) 6 SCC 1 which upheld twenty-five per cent. reservation in
favour of EWS under the Right of Children to Free and Compulsory
Education Act, 2009, which was further affirmed the by 5-Judge Bench
in Pramati Educational and Cultural Trust (Registered) and Ors. v.
Union of India and Ors.: (2014) 8 SCC 122. E
26. Learned Solicitor General of India, Mr. Tushar Mehta, has
submitted that to set aside a constitutional amendment, very high judicial
threshold is needed. He would submit that a constitutional amendment
may even touch upon the basic structure but unless it is shown that it
fundamentally alters the basic structure or basic features of the F
Constitution, it cannot be struck down under judicial review. In support
of his contentions, learned Solicitor General has placed reliance on the
said decisions in Raghunathrao, Bhim Singhji and Kesavananda as
also on the decision in Indira Nehru Gandhi v. Raj Narain and Anr.:
1975 Supp SCC 123. He has further argued that the amendment in
question, instead of hitting or disturbing the basic structure, rather G
strengthens the Preambular vision of the Constitution i.e., of providing
economic justice to its people along with social and political justice.

22
Hereinafter also referred to as ‘Pramati Trust’.
23
Hereinafter also referred to as ‘Indira Nehru Gandhi’. H
82 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 26.1. Learned Solicitor General has further argued that the
exclusion of classes already covered under Articles 15(4) and 16(4)
does not violate the Equality Code; and that from the time of the decision
in Champakam to the recent decision in Dr. Jaishri Patil, the
understanding and concept of equality and reservation have changed
and evolved with time, and the reservation itself has been treated as a
B
part and parcel of the Equality Code that furthers substantive equality.
The Constitution has recognised different zones of affirmative action,
whereby it extends reservation and special provisions as to the needs of
each section of the society. For instance, all SEBCs do not have any
reservation in Parliament, however, SCs and STs have been given a
C secured representation in Parliament. Learned Solicitor General has also
submitted that except for the open category, the SCs, STs and OBCs
are not permitted to migrate to the other vertical reservations; and similarly,
the Constitution has created another vertical zone for EWS category,
which exists outside the fold of pre-existing reservations. Further, he
would submit that ten per cent. reservation in favour of EWS would
D
result in miniscule delimitation of the available seats in favour of SC, ST
and OBC communities (SC: reduces from 65 per cent. to 55 per cent.;
ST: reduces from 57.5 per cent. to 47.5 per cent.; and OBC: reduces
from 77 per cent. to 67 per cent.).
26.2. On the question of fifty per cent. ceiling limit, learned Solicitor
E General has again submitted that this percentage could be exceeded in
exceptional circumstances for, being neither a fundamental tenet of the
Constitution nor a part of its basic structure. He lastly contended that
the validity of a constitutional amendment cannot be tested on possible
apprehensions or absence of guardrails.
F 26.3. Mr. Kanu Agrawal, learned counsel, has supplemented the
submissions of learned Solicitor General that the amendment in question
has guardrails inbuilt in it by having the upper limit of reservation fixed at
ten per cent. unlike Articles 15(4), 15(5) and 16(4). He further submitted
that exclusion of other classes is inherent in the concept of reservation
G and therefore, the exclusion of SC, ST and OBC communities already
covered under preceding provisions is not violative of Equality Code.
Thus, the exclusion clause ‘other than’ is an “opportunity cost” which
does not violate the basic structure of the Constitution. Further, he has
submitted that Pramati Trust is squarely applicable to Article 15(6) as
well as to making of special provisions in relation to admission to the
H private unaided institutions.
JANHIT ABHIYAN v. UNION OF INDIA 83
[DINESH MAHESHWARI, J.]

27. Learned senior counsel, Mr. Mahesh Jethmalani, has submitted A
that the amendment in question takes into account the changing conditions
of society as iterated in M. Nagaraj and hence, purposive interpretation
of the Constitution has to be resorted to. He has further submitted that,
as held in Dr. Jaishri Patil, there must be harmony between Fundamental
Rights and DPSP, which the amendment seeks to strike. Further, learned
B
counsel would submit that the challenge in Indra Sawhney was to an
Office Memorandum and the view of the Court that economic criteria
cannot be the sole basis ran contrary to its own view of excluding creamy
layer from OBCs on economic basis. Further, Indra Sawhney tested
the Office Memorandum on the tenets of Article 16 alone. Here, the
amendment in question, being a constitutional amendment, has to be C
tested on the threshold of violation of basic structure to an extent that it
changes the identity of the Constitution.
28. Learned senior counsel, Mr. Niranjan Reddy, has submitted
that neither the entitlement to reservation nor exclusion therefrom is
part of the basic structure of the Constitution; and that reservations are D
enabling provisions, temporary in nature and do not hold within them the
feature of permanence, so as to form part of the basic structure of the
Constitution. Indra Sawhney, staged 30 years ago, dealt with ‘schematic
interpretation’ of Articles 16(4) and 15(4). He further emphasized on
the balance to be maintained between the competing claims that keeps
on changing with the needs of the society. He based his argument E
principally on the premise that economic criteria by itself can be a
determinative factor for backwardness. He has supported his contention
by quoting Indra Sawhney, which mentioned R. Chitralekha (supra),
where occupation-cum-means test was employed so as to determine
social backwardness. On the issue of exclusion of SCs, STs and OBCs, F
he has submitted that there is already an affirmative action in the form
of reservation and special provisions operating in their favour. Their
“opportunity quotient” including the reserved and open category exceeds
fifty per cent. Hence, the ten per cent. in favour of EWS, in no way
violates the Equality Code. According to the learned counsel, in fact,
exclusion of SCs, STs and OBCs perfectly fits the constitutional scheme G
so as to avoid double benefit to them; and thus, exclusion is a part of
reasonable classification.
29. Learned senior counsel, Ms. Vibha Dutta Makhija, has
submitted that the ‘Living Tree’ approach has to be applied while
interpreting the Constitution so as to further a more inclusive and H
84 SUPREME COURT REPORTS [2022] 14 S.C.R.

A progressive society. Learned counsel has argued that right of the EWS
category arises from Article 21 of the Constitution, which provides for
the right of dignity; and poverty affects dignity. She has also emphasised
on various international obligations namely Universal Declaration of
Human Rights and International Covenant on Economic, Social and
Cultural Rights, which the Constitution caters under Articles 46, 51(c)
B
and 253, so as to submit that it is the duty of the State to eradicate
poverty in order to ensure economic justice; and in that context too, the
amendment in question becomes an empowering measure for those who
are in systemic poverty. She has further referred to the works of
economist Mr. Amartya Sen, to elucidate upon the concept and effect of
C poverty.
29.1. Learned counsel has further argued that the Constitution
does not impede the Parliament to protect a new section of people in
order to further the Preambular vision of economic justice, different
from the traditional approach of caste-based affirmative action. Learned
D counsel has further exemplified, by referring to U.P. Constables, teachers
and Shiksha-Mitra recruitments, that OBCs are already in good position
now, earning seats in meritorious category as well as in reserved category
and it is the EWS who are suffering and being deprived of the seats. She
lastly contended that the basis of classification in the amendment in
question is ‘intersecting disadvantages’ if not ‘generational
E disadvantages’; and there is no bar or violation of basic structure of the
Constitution in addressing these intersecting disadvantages.
30. Learned counsel, Mr. V.K. Biju, on the basis of various reports
and statistical data, has argued that reservation on the basis of economic
criteria is the need of the hour and the stepping stone to achieve economic
F and social justice, moving away from caste-based reservations, as also
vocalised by Dr. B.R. Ambedkar in Constituent Assembly Debates. He
has further argued that even in Indra Sawhney, the Court took a conscious
note that there may be a group or class of people, who can qualify for
benefits of reservation irrespective of caste.
G Points for Determination
31.Three major issues to be answered in these matters by
this Bench have been noticed at the outset. In order to answer
those issues and in view of the variety of submissions urged as
also the subject-matter, following principal points arise for
H determination:
JANHIT ABHIYAN v. UNION OF INDIA 85
[DINESH MAHESHWARI, J.]

(a) As to whether reservation is an instrument for inclusion of A
socially and educationally backward classes to the mainstream of
society and, therefore, reservation structured singularly on
economic criteria violates the basic structure of the Constitution
of India?
(b) As to whether the exclusion of classes covered under Articles B
15(4), 15(5) and 16(4) from getting benefit of reservation as
economically weaker sections violates the Equality Code and
thereby, the basic structure doctrine?
(c) As to whether reservation for economically weaker sections
of citizens up to ten per cent. in addition to the existing reservations C
results in violation of basic structure on account of breaching the
ceiling limit of fifty per cent.?
31.1. All these points are essentially structured on three important
components namely, (i) the general rule of equality enshrined in Article
14 of the Constitution; (ii) the reservations enabled in Articles 15 and 16 D
as exception to the general rule of equality; and (iii) the doctrine of basic
structure that defines and limits the power of the Parliament to amend
the Constitution.
Relevant Constitutional Provisions
32. Any process of determination of the points aforesaid would E
invariably require an insight of the constitutional provisions. The relevant
provisions could be usefully reproduced as follows:
32.1. Preamble to the Constitution of India, in its present form,
reads as under: -
F
“WE, THE PEOPLE OF INDIA, having solemnly resolved
to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens:
JUSTICE, social, economic and political;
G
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all

H
86 SUPREME COURT REPORTS [2022] 14 S.C.R.

A FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth
day of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.”
B 32.2. The underlying attribute of all the points and questions arising
in these matters is as to whether the 103rd Amendment violates the basic
structure of the Constitution. The discussion, therefore, revolves around
the power of the Parliament to amend the Constitution and for this
purpose, we need to have a close look at the provisions contained in
C Article 368 of the Constitution.
32.2.1. Article 368, as originally adopted, read as under: -
“368. Procedure for amendment of the Constitution.-
An amendment of this Constitution may be initiated only by
D the introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House and by a majority of not
less than two-thirds of the members of that House present and
voting, it shall be presented to the President for his assent and
upon such assent being given to the Bill, the Constitution shall
E stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change
in—
(a) article 54, article 55, article 73, article 162 or article 241,
or
F
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I
of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
G
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislature
of not less than one-half of the States specified in Parts A and B
of the First Schedule by resolution to that effect passed by those
H
JANHIT ABHIYAN v. UNION OF INDIA 87
[DINESH MAHESHWARI, J.]

Legislatures before the Bill making provision for such amendment A
is presented to the President for assent.”
32.2.2. Article 368 has undergone several amendments, some of
which had been the subject matter of debates in this Court, including the
cases of Kesavananda and Minerva Mills. Leaving aside other details,
we may reproduce the relevant of the provisions now contained in Article B
368 as under: -
“368. Power of Parliament to amend the Constitution and
procedure therefor.—(1) Notwithstanding anything in this
Constitution, Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any provision of this C
Constitution in accordance with the procedure laid down in this
article.
(2) An amendment of this Constitution may be initiated only
by the introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by a majority D
of the total membership of that House and by a majority of not
less than two-thirds of the members of that House present and
voting, it shall be presented to the President who shall give his
assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill:
E
Provided that if such amendment seeks to make any change
in—
(a) article 54, article 55, article 73, article 162, article 241 or
article 279-A, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I F
of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, G
the amendment shall also require to be ratified by the Legislature
of not less than one-half of the States by resolution to that effect
passed by those Legislatures before the Bill making provision for
such amendment is presented to the President for assent.
H
88 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (3) Nothing in article 13 shall apply to any amendment made
under this article.
*** *** *** “24
32.2.3. After the amendments approved in Kesavananda, Article
368 starts with a non obstante clause and further to that, sub-
B clause (3) thereof re-emphasises that nothing in Article 13 would
apply to any amendment made under Article 368. In this context, a
look at Article 13 of the Constitution is apposite, which otherwise
declares void every law which is inconsistent with or is in derogation
of Fundamental Rights but, the inserted sub-clause (4) keeps its
C operation away from the amendment made under Article 368.
Article 13 reads as under: -
“13. Laws inconsistent with or in derogation of the
fundamental rights.—(1) All laws in force in the territory of
India immediately before the commencement of this Constitution,
D in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the contravention,
E be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of
India the force of law;
F
(b) “laws in force” includes laws passed or made by a
Legislature or other competent authority in the territory of India
before the commencement of this Constitution and not previously
24
Clauses (4) and (5) inserted by the Constitution (Forty-second Amendment) Act,
1976 were declared invalid by this Court in Minerva Mills. They read as under: -
G “(4) No amendment of this Constitution (including the provisions of Part III)
made or purporting to have been made under this article whether before or after
the commencement of Section 55 of the Constitution (Forty-second Amendment)
Act, 1976 shall be called in question in any Court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation
whatever on the constituent power of Parliament to amend by way of addition, variation
H or repeal the provisions of this Constitution under this article.”
JANHIT ABHIYAN v. UNION OF INDIA 89
[DINESH MAHESHWARI, J.]

repealed, notwithstanding that any such law or any part thereof A
may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of
this Constitution made under article 368.”
32.3. By way of the amendment in question, sub-clause (6) and
Explanation have been added to Article 15 and sub-clause (6) has been B
added to Article 16 of the Constitution of India. These two Articles, 15
and 16, being the subject of the amendment in question and forming the
core of controversy before us, need a closer look. For the purpose, it is
relevant to indicate at this stage itself that these Articles have undergone
several changes from time to time. For the purpose of the present C
discussion, worthwhile it would be to take note of these Articles as
originally adopted and as now existing after various amendments, including
the 103rd Constitution Amendment25
25
As noticed, the provisions in question have been inserted to Articles 15 and 16 of the
Constitution of India by way of the Constitution (One Hundred and Third Amendment)
Act, 2019. This amendment was made after passing of the Constitution (One Hundred D
and Twenty-fourth Amendment) Bill, 2019 by the Parliament. The Statement of Objects
and Reasons for introduction of the said Bill read as under: -
“STATEMENT OF OBJECTS AND REASONS
At present, the economically weaker sections of citizens have largely
remained excluded from attending the higher educational institutions and public
employment on account of their financial incapacity to compete with the persons
E
who are economically more privileged. The benefits of existing reservations
under clauses (4) and (5) of article 15 and clause (4) of article 16 are generally
unavailable to them unless they meet the specific criteria of social and educational
backwardness.
2. The directive principles of State policy contained in article 46 of the
Constitution enjoins that the State shall promote with special care the F
educational and economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect
them from social injustice and all forms of exploitation.
3. Vide the Constitution (Ninety-third Amendment) Act, 2005, clause (5)
was inserted in article 15 of the Constitution which enables the State to make
special provision for the advancement of any socially and educationally backward G
classes of citizens, or for the Scheduled Castes or the Scheduled Tribes, in
relation to their admission in higher educational institutions. Similarly, clause
(4) of article 16 of the Constitution enables the State to make special provision
for the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the
services under the State.
H
90 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 32.3.1. Articles 15 and 16, in their original form were as under:-
“15. Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth. — (1) The State shall not
discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
B (2) No citizen shall, on grounds only of religion, race, caste,
sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of
public entertainment; or
C
(b) the use of wells, tanks, bathing ghats, roads and places
of public resort maintained wholly or partly out of State funds
or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making
D any special provision for women and children.
16. Equality of opportunity in matters of public
employment. —(1) There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any
office under the State.
E (2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible
for, or discriminated against in respect of, any employment or
office under the State.

F 4. However, economically weaker sections of citizens were not eligible for
the benefit of reservation. With a view to fulfil the mandate of article 46, and to
ensure that economically weaker sections of citizens to get a fair chance of
receiving higher education and participation in employment in the services of
the State, it has been decided to amend the Constitution of India.
5. Accordingly, the Constitution (One Hundred and Twenty-fourth
G Amendment) Bill, 2019 provides for reservation for the economically weaker
sections of society in higher educational institutions, including private
institutions whether aided or unaided by the State other than the minority
educational institutions referred to in article 30 of the constitution and also
provides for reservation for them in posts in initial appointment in services
under the State.

H 6. The Bill seeks to achieve the above objects.”
JANHIT ABHIYAN v. UNION OF INDIA 91
[DINESH MAHESHWARI, J.]

(3) Nothing in this article shall prevent Parliament from making A
any law prescribing, in regard to a class or classes of employment
or appointment to an office under any State specified in the First
Schedule or any local or other authority within its territory, any
requirement as to residence within that State prior to such
employment or appointment.
B
(4) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in favour
of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the
State.”
C
32.3.2. These Articles 15 and 16, as now existing after various
amendments, including the amendment in question, read as under: -
“15. Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth. —(1) The State shall not
discriminate against any citizen on grounds only of religion, race, D
caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste,
sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of E
public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places
of public resort maintained wholly or partly out of State funds
or dedicated to the use of general public.
F
(3) Nothing in this article shall prevent the State from making
any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall
prevent the State from making any special provision for the
advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes. G

(5) Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special provision,
by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the
H
92 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Scheduled Tribes 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.
B (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
C 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
D 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
E 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
F income and other indicators of economic disadvantage.
16. Equality of opportunity in matters of public
employment.— (1) There shall be equality of opportunity for
all citizens in matters relating to employment or appointment to
any office under the State.
G
(2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible
for, or discriminated against in respect of, any employment or
office under the State.

H
JANHIT ABHIYAN v. UNION OF INDIA 93
[DINESH MAHESHWARI, J.]

(3) Nothing in this article shall prevent Parliament from making A
any law prescribing, in regard to a class or classes of employment
or appointment to an office under the Government of, or any local
or other authority within, a State or Union territory, any requirement
as to residence within that State or Union territory prior to such
employment or appointment.
B
(4) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in favour
of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making C
any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
D
(4-B) Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved
for being filled up in that year in accordance with any provision
for reservation made under clause (4) or clause (4-A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with E
the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent. reservation on total number
of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law
which provides that the incumbent of an office in connection with F
the affairs of any religious or denominational institution or any
member of the governing body thereof shall be a person professing
a particular religion or belonging to a particular denomination.
(6) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in favour G
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.”
H
94 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 32.3.3. Articles 14, 17 and 18, forming the integral part of Equality
Code along with the afore-mentioned Articles 15 and 16, could also be
taken note of as under: -
“14. Equality before law.—The State shall not deny to any person
equality before the law or the equal protection of the laws within
B the territory of India.
*** *** ***
17. Abolition of Untouchability.—”Untouchability” is abolished
and its practice in any form is forbidden. The enforcement of any
disability arising out of “Untouchability” shall be an offence
C punishable in accordance with law.
18. Abolition of titles.—(1) No title, not being a military or
academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign
D State.
(3) No person who is not a citizen of India shall, while he holds
any office of profit or trust under the State, accept without the
consent of the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State
E shall, without the consent of the President, accept any present,
emolument, or office of any kind from or under any foreign State.”-
32.4. Various provisions in Part IV of the Constitution of India
laying down Directive Principles of State Policy also require a close
look, including Article 46, which has been referred to in the Statement of
F Objects and Reasons for the purpose of the amendment in question.
Articles 38, 39 and 46 of the Constitution of India read as under: -
“38. State to secure a social order for the promotion of
welfare of the people. —(1) The State shall strive to promote
the welfare of the people by securing and protecting as effectively
G as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the
inequalities in income, and endeavour to eliminate inequalities in
status, facilities and opportunities, not only amongst individuals
H
JANHIT ABHIYAN v. UNION OF INDIA 95
[DINESH MAHESHWARI, J.]

but also amongst groups of people residing in different areas or A
engaged in different vocations.
39. Certain principles of policy to be followed by the State.—
The State shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood; B

(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the common
good;
(c) that the operation of the economic system does not result in C
the concentration of wealth and means of production to the
common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are not D
forced by economic necessity to enter avocations unsuited to their
age or strength;
(f) that children are given opportunities and facilities to develop in
a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and E
against moral and material abandonment.
*** *** ***
46. Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker
sections.—The State shall promote with special care the F
educational and economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation.”
Doctrine of Basic Structure and Constitutional Amendments G

33. It is hardly a matter of debate that the challenge herein is not
to any executive order or even to an ordinary legislation. The challenge
is to a constitutional amendment. There has not been any question as
regards fulfilment of all other requirements of Article 368 of the
Constitution of India while making the amendment in question and insertion H
96 SUPREME COURT REPORTS [2022] 14 S.C.R.

A of the relevant clauses to Articles 15 and 16. The challenge is founded
on, and in fact could only be founded on, the premise that the amendment
in question violates the basic structure of the Constitution in the manner
that it destroys its identity. According to the principal part of challenge,
the Equality Code, an essential feature of the Constitution, gets abrogated
because of reservation structured only on economic criteria and because
B
of exclusion of classes covered under Articles 15(4), 15(5) and 16(4)
from its benefit. Therefore, the entire challenge is essentially required to
be examined on the anvil of the doctrine of basic structure.
33.1. In the aforesaid view of the matter, before entering into the
concepts relating to the equality as also the reservation, it shall be apt
C and apposite to take into account all the vital elements of the doctrine of
basic structure, as developed and hitherto applied to the constitutional
amendments; and the discernible principles which are to be applied to
the amendment in question.
34. The power to amend the Constitution availing under Article
D 368 has been a significant area of the development of Constitutional
Law in our country. This power, recognised as a constituent power, is
subject to various safeguards which are intrinsic to Article 368, including
the procedural safeguards. The political process from time to time that
resulted in various constitutional amendments, some of them radical in
E nature, gave rise to several debates in this Court as regards the width
and amplitude as also the limitations of this amending power of the
Parliament. Thus, Article 368 and the power of the Parliament had been
the subject-matter of various decisions, some of which being of far-
reaching consequences. Before embarking upon a survey of the relevant
decisions and the principles discernible therefrom, particularly after the
F locus classicus of Kesavananda and the later expositions (which had
their genesis in the nature of amendment and which were relatable to
the given set of facts and circumstances), it would be profitable to put a
glance at a few background aspects.
35. The doctrine of basic structure was not as such discussed in
G the Constituent Assembly while formulating the enabling provisions for
amending the Constitution. Then, at the initial stages of Constitutional
Law development, the proposition of challenging an amendment to the
Constitution, as mooted in the case of Sri Sankari Prasad Singh Deo
v. Union of India and Anr.: 1952 SCR 89 as also in Sajjan Singh v.
H State of Rajasthan: (1965) 1 SCR 933 did not meet with approval of
JANHIT ABHIYAN v. UNION OF INDIA 97
[DINESH MAHESHWARI, J.]

this Court. However, first reference to the idea of ‘basic feature’ was A
made by Justice Mudholkar in Sajjan Singh (supra)26. Then, the idea
that certain Parts of the Constitution were unamendable was accepted
by the 11-Judge Bench in I.C. Golak Nath and Ors. v. State of Punjab
and Anr.: (1967) 2 SCR 762. However, in Kesavananda, the 13-
Judge Bench of this Court, while partially overruling Golak Nath by a
B
majority of 7-6, held that though any part of the Constitution could be
amended by the Parliament, its basic structure could not be damaged.
36. A precursor to the developments aforesaid could be traced to
the year 1965 when a German jurist, Prof. Dietrich Conrad (1932- 2001),
gave a lecture on ‘Implied Limitations of the Amending Power’ at the
Banaras Hindu University wherein he, inter alia, asked: “Could the C
amending power be used to abolish the Constitution, and
reintroduce, let’s say, the rule of a Moghul emperor or the Crown of
England?” 27
26
The learned Judge referred to the facts that the Constituent Assembly, consciously
enacted a written Constitution; created three organs of State; enacted a federal structure; D
recognised certain rights as fundamental and provided for their enforcement; and
prescribed forms of oath of Office which would require the Members of the Union
Judiciary and of the higher judiciary in the State, to uphold the Constitution; and above
all, formulated a solemn and dignified Preamble which, ‘appears to be an epitome of the
basic features of the Constitution’. The learned Judge, thereafter, posed the points to
ponder over thus:
E
“…..Can it not be said that these are indicia of the intention of the Constituent
Assembly to give a permanency to the basic features of the Constitution?
It is also a matter for consideration whether making a change in a basic feature
of the Constitution can be regarded merely as an amendment or would it be, in
effect, rewriting a part of the Constitution; and if the latter, would it be within
the purview of Article 368?”
F
27
The contribution of Prof. Conrad in Origination and Development of doctrine of
basic structure has been pertinently underscored in A.G. Noorani’s, ‘Constitutional
Questions and Citizens’ Rights, Oxford University Press (2006) in the first chapter
titled as “Sanctity of the Constitution: Dieter Conrad- The man behind the ‘basic
structure’ doctrine”, inter alia, in the following words: -
“There is, sadly, little acknowledgment in India of that debt we owe to a G
distinguished German jurist and scholar steeped in other disciplines beyond the
confines of law–Professor Dietrich Conrad, formerly Head of the Law
Department, South Asia Institute of the University of Heidelberg, Germany.
In Golak Nath’s case, the doctrine of any implied limitations on
Parliament ’s power to amend the Constitution was not accepted. The majority
felt that ‘there is considerable force in this argument’ but thought it unnecessary
H
98 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Later, he wrote an article titled ‘Limitations of Amendment
Procedures and the Constituent Power’ published in the Indian Year
Book of International Affairs wherein he described the limits on the
amending power as follows:-
“The functional limitations implied in the grant of amending power
B to Parliament may then be summarized thus: No amendment may
abrogate the constitution. No amendment may effect changes
which amount to a practical abrogation or total revision of the

to pronounce on it. ‘This question may arise for consideration only if Parliament
seeks to destroy the structure of the Constitution embodied in provisions other
C than in Part III of the Constitution.’
The argument of implied limitations had been advanced at the Bar by M.K.
Nambyar, one of India’s leading constitutional lawyers. Few people knew then
that he owed the argument to Professor Conrad. In February 1965, while on a
visit to India, Conrad delivered a lecture on ‘Implied Limitations of the Amending
Power’ to the Law Faculty of the Banaras Hindu University. A paper based on
D the subject was sent to Professor T.S. Rama Rao in Madras for his comments.
Nambyar’s attention was drawn to this paper which he read before the Supreme
Court, though with little result.
Professor Conrad’s lecture, delivered in February 1965, showed remarkable
perceptiveness besides deep learning. He observed:
‘Perhaps the position of the Supreme Court is influenced by the fact that it
has not so far been confronted with any extreme type of constitutional amendments.
E It is the duty of the jurist, though, to anticipate extreme cases of conflict, and
sometimes only extreme tests reveal the true nature of a legal concept. So, if for
the purpose of legal discussion I may propose some fictive amendment laws to
you, could it still be considered a valid exercise of the amendment power
conferred by Article 368 if a two-thirds majority changed Article 1 by dividing
India into two States of Tamilnad and Hindustan proper?
‘Could a constitutional amendment abolish Article 21, to the effect that
F forthwith a person could be deprived of his life or personal liberty without
authorization by law? Could the ruling party, if it sees its majority shrinking,
amend Article 368 to the effect that the amending power rests with the President
acting on the advice of the Prime Minister? Could the amending power be used
to abolish the Constitution and reintroduce, let us say, the rule of a Moghul
emperor or of the Crown of England? I do not want, by posing such questions,
to provoke easy answers. But I should like to acquaint you with the discussion
G which took place on such questions among constitutional lawyers in Germany
in the Weimar period–discussion, seeming academic at first, but suddenly
illustrated by history in a drastic and terrible manner.’
A more detailed exposition of Professor Conrad’s views appeared after the
judgment in Golak Nath’s case (Limitation of Amendment Procedures and the
Constituent Power, Indian Year Book of International Affairs, 1966–7, Madras,
H pp. 375–430).”
JANHIT ABHIYAN v. UNION OF INDIA 99
[DINESH MAHESHWARI, J.]

constitution. Even partial alterations are beyond the scope of A
amendment if their repercussions on the organic context of the
whole are so deep and far reaching that the fundamental identity
of the constitution is no longer apparent…...”28
36.1. Thus, even the origin of the submissions before this Court
leading to the expositions on the doctrine of basic structure could be B
traced to the thought-process stimulated by the thinkers like Prof. Conrad.
However, as shall be unfolding hereafter, there had been voices of concern
about the exact nature and implication of this doctrine. For example,
concern was expressed in the case of State of Karnataka v. Union
of India and Anr.: (1977) 4 SCC 608 in rather intriguing terms as
follows: - C

“120. …In Kesavananda Bharati case this Court had not worked
out the implications of the basic structure doctrine in all its
applications. It could, therefore, be said, with utmost respect, that
it was perhaps left there in an amorphous state which could give
rise to possible misunderstandings as to whether it is not too D
vaguely stated or too loosely and variously formulated without
attempting a basic uniformity of its meaning or implications…”
36.2. However, when the enquiry itself is into the effect of
amendment of the supreme and organic document, which is fundamental
to everything related to the country, the amorphous state of the doctrine E
of basic structure, obviously, leaves every option open for purposive
approach, in tune with the dynamics of change while ensuring that the
fundamental ethos remain unscathed29.
37. It shall now be appropriate to delve a bit deeper into some of
the significant and important cases in which the doctrine of basic structure F
was employed/applied in the context of a constitutional amendment 30.

28
The Indian Year Book of International Affairs, 1966-7, at p. 420.
29
The acclaimed and honourable jurist O. Chinnappa Reddy would define this
journey in these words: “Since there are no signposts signalling basic features of the G
Constitution, every attempt to discover a basic feature becomes a ‘voyage of discovery’.”
[The Court and the Constitution of India: Summits and Shallows; Oxford University
Press 2008 – at p.54].
30
The extractions hereinbelow are of the relevant passages/paragraphs, which
may not be in continuity but the disjoining signs after end of the passage/paragraph
have been generally avoided to maintain the continuity of discussion. H
100 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 37.1. In Kesavananda, this Court outlined the basic structure
doctrine of the Constitution. In fact, in Kesavananda, this Court, by a 7-
6 majority, went several steps ahead in asserting its power of judicial
review so as to scrutinize any amendment to see if it violated the basic
structure of the Constitution; and asserted its right to strike down
amendments to the Constitution that were in violation of the fundamental
B
architecture of the Constitution. Factually, the case was a challenge to
the Kerala Land Reforms Act, 1963 which interfered with petitioner’s
rights to manage property under Article 26. Furthermore, the Twenty-
fourth, Twenty-fifth and Twenty-ninth constitutional amendments were
also challenged. By Twenty-fourth Amendment, Articles 13 and 368
C were amended to exclude constitutional amendments from the definition
of law under Article 13; the Twenty-fifth Amendment excluded judicial
review by providing that the law giving effect to principles specified in
clause (b) or clause (c) of Article 39 could not be questioned by the
Court; and the Twenty-ninth Amendment put certain land reform
enactments in the Ninth Schedule. The present discussion need not be
D
over-expanded with reference to the variety of opinions expressed therein.
For the present purpose, a few relevant opinions could be extracted as
follows: -
Sikri, C.J.
E “209…..In other words, the expression ‘Amendment of this
Constitution” does not include a revision of the whole Constitution.
If this is true — I say that the concession was rightly made —
then which is that meaning of the word “Amendment” that is
most appropriate and fits in with the whole scheme of the
Constitution. In my view that meaning would be appropriate
F which would enable the country to achieve a social and
economic revolution without destroying the democratic
structure of the Constitution and the basic inalienable rights
guaranteed in Part III and without going outside the
contours delineated in the Preamble.
G 284. In view of the above reasons, a necessary implication arises
that there are implied limitations on the power of Parliament that
the expression “amendment of this Constitution” has consequently
a limited meaning in our Constitution and not the meaning
suggested by the respondents.
H
JANHIT ABHIYAN v. UNION OF INDIA 101
[DINESH MAHESHWARI, J.]

395. It was said that if Parliament cannot increase its power of A
amendment clause (d) of Section 3 of the 24th Amendment which
makes Article 13 inapplicable to an amendment of the Constitution
would be bad. I see no force in this contention. Article 13(2) as
existing previous to the 24th Amendment as interpreted by the
majority in Golak Nath’s case (supra), prevented Legislatures
B
from taking away or abridging the rights conferred by Article 13.
In other words, any law which abridged a fundamental right even
to a small extent was liable to be struck down Article 368 can
amend every article of the Constitution as long as the result is
within the limits already laid down by me. The amendment of
Article 13(2) does not go beyond the limits laid down C
because Parliament cannot even after the amendment
abrogate or authorise abrogation or the taking away of
fundamental rights. After the amendment now a law which
has the effect of merely abridging a right while remaining
within the limits laid down would not be liable to be struck
D
down.
469. I have held that Article 368 does not enable Parliament to
abrogate or take away fundamental rights. If this is so, it does
not enable Parliament to do this by any means, including
the device of Article 31-B and the Ninth Schedule. The
device of Article 31-B and the Ninth Schedule is bad in so E
far as it protects Statutes even if they take away fundamental
rights. Therefore, it is necessary to declare that the Twenty-
Ninth Amendment is ineffective to protect the impugned Acts if
they take away fundamental rights.
Shelat, J. and Grover, J. F

546. The meaning of the words “amendment of this
Constitution” as used in Article 368 must be such which
accords with the true intention of the Constitution-makers
as ascertainable from the historical background, the
Preamble, the entire scheme of the Constitution, its G
structure and framework and the intrinsic evidence in
various articles including Article 368. It is neither possible
to give it a narrow meaning nor can such a wide meaning
be given which can enable the amending body to change
substantially or entirely the structure and identity of the H
102 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Constitution. Even the concession of the learned Attorney-
General and the Advocate-General of Maharashtra that the whole
Constitution cannot be abrogated or repealed and a new one
substituted supports the conclusion that the widest possible meaning
cannot be given to it.
B 583. The entire discussion from the point of view of the meaning
of the expression “amendment” as employed in Article 368 and
the limitations which arise by implications leads to the result that
the amending power under Article 368 is neither narrow
nor unlimited. On the footing on which we have proceeded the
validity of the 24th Amendment can be sustained if Article 368, as
C it originally stood and after the amendment, is read in the way we
have read it. The insertion of Articles 13(4) and 368(3) and
the other amendments made will not affect the result,
namely, that the power in Article 368 is wide enough to
permit amendment of each and every article of the
D Constitution by way of addition, variation or repeal so long
as its basic elements are not abrogated or denuded of their
identity.
Hegde, J. and Mukherjea, J.
666. On a careful consideration of the various aspects of the case,
E we are convinced that the Parliament has no power to abrogate
or emasculate the basic elements or fundamental features of the
Constitution such as the sovereignty of India, the democratic
character of our polity, the unity of the country, the essential
features of the individual freedoms secured to the citizens. Nor
F has the Parliament the power to revoke the mandate to build a
Welfare State and egalitarian society. These limitations are only
illustrative and not exhaustive. Despite these limitations,
however, there can be no question that the amending power
is a wide power and it reaches every Article and every part
of the Constitution. That power can be used to reshape the
G Constitution to fulfil the obligation imposed on the State. It
can also be used to reshape the Constitution within the
limits mentioned earlier, to make it an effective instrument
for social good. We are unable to agree with the contention that
in order to build a Welfare State, it is necessary to destroy some
H of the human freedoms. That, at any rate is not the perspective of
JANHIT ABHIYAN v. UNION OF INDIA 103
[DINESH MAHESHWARI, J.]

our Constitution. Our Constitution envisages that the State A
should without delay make available to all the citizens of
this country the real benefits of those freedoms in a
democratic way.… Every encroachment on freedoms sets a
pattern for further encroachments. Our constitutional plan is to
eradicate poverty without destruction of individual freedoms.
B
Khanna, J.
1416. Argument has then been advanced that if power be
held to be vested in Parliament under Article 368 to take
away or abridge fundamental rights, the power would be,
or in any case could be, so used as would result in repeal of C
all provisions containing fundamental rights. India, it is
urged, in such an event would be reduced to a police state
wherein all cherished values like freedom and liberty would
be non-existent. This argument, in my opinion, is essentially
an argument of fear and distrust in the majority of
representatives of the people. It is also based upon the D
belief that the power under Article 368 by two-thirds of the
members present and voting in each House of Parliament
would be abused or used extravagantly. I find it difficult to
deny to the Parliament the power to amend the Constitution
so as to take away or abridge fundamental right by complying E
with the procedure of Article 368 because of any such
supposed fear or possibility of the abuse of power. I may in
this context refer to the observations of Marshall, C.J., regarding
the possibility of the abuse of power of legislation and of taxation
in the case of Providence Bank v. Alpheus Billings:
F
“This vital power may be abused; but the Constitution of the
United States was not intended to furnish the corrective for
every abuse of power which may be committed by the State
Governments. The interest, wisdom, and justice of the
representative body, and its relations with its constituents furnish
the only security where there is no express contract against G
unjust and excessive taxation, as well as against unwise
legislation generally.”
1535. In exercising the power of judicial review, the Courts
cannot be oblivious of the practical needs of the
government. The door has to be left open for trial and error. H
104 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Constitutional law like other mortal contrivances has to take
some chances. Opportunity must be allowed for vindicating
reasonable belief by experience. Judicial review is not
intended to create what is sometimes called Judicial
Oligarchy, the Aristrocracy of the Robe, Covert Legislation,
or Judge-made law. The proper forum to fight for the wise
B
use of the legislative authority is that of public opinion and
legislative assemblies. Such contest cannot be transferred
to the judicial arena. That all constitutional interpretations have
political consequences should not obliterate the fact that the decision
has to be arrived at in the calm and dispassionate atmosphere of
C the court room, that judges in order to give legitimacy to their
decision have to keep aloof from the din and controversy of politics
and that the fluctuating fortunes of rival political parties can have
for them only academic interest. Their primary duty is to uphold
the Constitution and the laws without fear or favour and in doing
so, they cannot allow any political ideology or economic theory,
D
which may have caught their fancy, to colour the decision. The
sobering reflection has always to be there that the Constitution is
meant not merely for people of their way of thinking but for people
of fundamentally differing views. As observed by Justice Holmes
while dealing with the Fourteenth Amendment to the U.S.
E Constitution:
“The Fourteenth Amendment does not enact Mr. Herbert
Spencer’s Social Statics…Some of these laws embody
convictions or prejudices which judges are likely to share. Some
may not. But a Constitution is not intended to embody a
F particular economic theory, whether of paternalism and the
organic relation of the citizen to the State or of laissez faire. It
is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or
novel and even shocking ought not to conclude our judgment
upon the question whether statutes embodying them conflict
G with the Constitution of the United States.”….”
(emphasis supplied)
37.2. In Indira Nehru Gandhi, using the doctrine of basic
structure, the Thirty-ninth Constitutional Amendment Act was struck
H down whereby the election of the President, the Vice President, the
JANHIT ABHIYAN v. UNION OF INDIA 105
[DINESH MAHESHWARI, J.]

Prime Minister and the Speaker of the Lok Sabha were put beyond the A
judicial scrutiny. Such an amendment was held to be destroying the basic
feature of the Constitution.
37.3. In Minerva Mills, again, using the doctrine of basic
structure, clauses (4) and (5) of the Constitution (Forty-second
Amendment) Act, 1976 were struck down with the following, amongst B
other, observations: -
Chandrachud, C.J.
“56. The significance of the perception that Parts III and IV
together constitute the core of commitment to social revolution
and they, together, are the conscience of the Constitution is to be C
traced to a deep understanding of the scheme of the Indian
Constitution. Granville Austin’s observation brings out the true
position that Parts III and IV are like two wheels of a chariot, one
no less important than the other. You snap one and the other will
lose its efficacy. They are like a twin formula for achieving the D
social revolution, which is the ideal which the visionary founders
of the Constitution set before themselves. In other words, the
Indian Constitution is founded on the bedrock of the balance
between Parts III and IV. To give absolute primacy to one
over the other is to disturb the harmony of the Constitution.
This harmony and balance between fundamental rights and E
directive principles is an essential feature of the basic
structure of the Constitution.
57. ….. The goals set out in Part IV have, therefore, to be
achieved without the abrogation of the means provided for
by Part III. It is in this sense that Parts III and IV together F
constitute the core of our Constitution and combine to form
its conscience. Anything that destroys the balance between
the two parts will ipso facto destroy an essential element of
the basic structure of our Constitution.”
(emphasis supplied) G
37.4. In Waman Rao, it was held that the First Constitution
Amendment Act, that introduced Articles 31-A and 31-B, as well as the
Twenty-fifth Amendment Act that introduced Article 31-C were
constitutional, and did not damage any basic or essential features or the
basic structure of the Constitution. Herein, this Court examined the validity H
106 SUPREME COURT REPORTS [2022] 14 S.C.R.

A of Article 31-A and Article 31-B of the Constitution of India with respect
to the doctrine of basic structure introduced in Kesavananda and
observed that all the decisions made prior to the introduction of the
doctrine shall remain valid. The impact of this decision had been that all
the acts and regulations that were included under Ninth Schedule to the
Constitution prior to the Kesavananda decision were to remain valid
B
while further amendments to the Schedule could be challenged on the
grounds of violation of the doctrine of basic structure. The relevant
observations in this case read as under: -
Chandrachud, C.J.
C “14. … We would like to add that every case in which the
protection of a fundamental right is withdrawn will not
necessarily result in damaging or destroying the basic
structure of the Constitution. The question as to whether
the basic structure is damaged or destroyed in any given
case would depend upon which particular Article of Part III
D is in issue and whether what is withdrawn is quintessential
to the basic structure of the Constitution.
29. The First Amendment is aimed at removing social and
economic disparities in the agricultural sector. It may happen that
while existing inequalities are being removed, new inequalities may
E arise marginally and incidentally. Such marginal and incidental
inequalities cannot damage or destroy the basic structure of the
Constitution. It is impossible for any government, howsoever
expertly advised, socially oriented and prudently managed, to
remove every economic disparity without causing some hardship
F or injustice to a class of persons who also are entitled to equal
treatment under the law. Thus, the adoption of ‘family unit’ as
the unit of application for the revised ceilings may cause
incidental hardship to minor children and to unmarried
daughters. That cannot, in our opinion, furnish an argument
for assailing the impugned laws on the ground that they
G violate the guarantee of equality. It seems to us ironical
indeed that the laws providing for agricultural ceilings
should be stigmatised as destroying the guarantee of
equality when their true object and intendment is to remove
inequalities in the matter of agricultural holdings.
H
JANHIT ABHIYAN v. UNION OF INDIA 107
[DINESH MAHESHWARI, J.]

49. We propose to draw a line, treating the decision A
in Kesavananda Bharati as the landmark. Several Acts were
put in the Ninth Schedule prior to that decision on the supposition
that the power of the Parliament to amend the Constitution was
wide and untrammelled. The theory that the Parliament cannot
exercise its amending power so as to damage or destroy the basic
B
structure of the Constitution, was propounded and accepted for
the first time in Kesavananda Bharati. This is one reason for
upholding the laws incorporated into the Ninth Schedule
before April 24, 1973, on which date the judgment
in Kesavananda Bharati was rendered. A large number of
properties must have changed hands and several new titles C
must have come into existence on the faith and belief that
the laws included in the Ninth Schedule were not open to
challenge on the ground that they were violative of Articles
14, 19 and 31. We will not be justified in upsetting settled
claims and titles and in introducing chaos and confusion
D
into the lawful affairs of a fairly orderly society.
51. Thus, insofar as the validity of Article 31-B read with the
Ninth Schedule is concerned, we hold that all Acts and Regulations
included in the Ninth Schedule prior to April 24, 1973 will receive
the full protection of Article 31-B. Those laws and regulations
will not be open to challenge on the ground that they are inconsistent E
with or take away or abridge any of the rights conferred by any
of the provisions of Part III of the Constitution. Acts and
Regulations, which are or will be included in the Ninth Schedule
on or after April 24, 1973 will not receive the protection of Article
31-B for the plain reason that in the face of the judgment F
in Kesavananda Bharati, there was no justification for making
additions to the Ninth Schedule with a view to conferring a blanket
protection on the laws included therein. The various
constitutional amendments, by which additions were made
to the Ninth Schedule on or after April 24, 1973, will be
valid only if they do not damage or destroy the basic G
structure of the Constitution.
54. Apart from this, if we are right in upholding the validity of
Article 31-A on its own merits, it must follow logically that the
unamended Article 31-C is also valid. … Whatever we have said
in respect of the defined category of laws envisaged by Article H
108 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 31-A must hold good, perhaps with greater force, in respect of
laws passed for the purpose of giving effect to clauses (b) and
(c) of Article 39. It is impossible to conceive that any law passed
for such a purpose can at all violate Article 14 or Article 19. Article
31 is now out of harm’s way. In fact, far from damaging the
basic structure of the Constitution, laws passed truly and
B
bona fide for giving effect to directive principles contained
in clauses (b) and (c) of Article 39 will fortify that structure.
We do hope that the Parliament will utilise to the maximum
its potential to pass laws, genuinely and truly related to the
principles contained in clauses (b) and (c) of Article 39. The
C challenge made to the validity of the first part of the
unamended Article 31-C therefore fails.”
(emphasis supplied)
37.5. In P. Sambhamurthy and Ors. v. State of Andhra Pradesh
and Anr.: (1987) 1 SCC 36231 this Court examined Article 371-D
D inserted by the Constitution (Thirty-second Amendment) Act, 1973 and
struck down its clause (5) with proviso, as being violative of the basic
structure since it conferred power on the State Government to modify
or annul the final order of the Administrative Tribunal, which was against
the concept of justice and principle of rule of law.
E 37.6. In Kihoto Hollohan v. Zachillhu and Ors.: 1992 Supp
(2) SCC 651, the constitutional validity of the Tenth Schedule to the
Constitution introduced by the Constitution (Fifty-second Amendment)
Act, 1985, was assailed. Though, the majority opinion did not find the
entire amendment unconstitutional but the Court declared invalid
F Paragraph 7 of the Tenth Schedule to the Constitution, which excluded
judicial review of any matter connected with the disqualification of a
member of a House in terms of the provisions contained in that Schedule,
essentially for want of ratification in accordance with the proviso to
clause (2) of Article 368.

G 37.7. In Raghunathrao, the validity of the Constitution (Twenty-
sixth Amendment) Act, 1971 which removed privy purses was brought
into question, inter alia, on the ground that it violated the basic structure
and essential features of the Constitution of India and was, therefore,
outside the scope and ambit of the powers of the Parliament to amend
31
Hereinafter also referred to as ‘P. Sambhamurthy’.
H
JANHIT ABHIYAN v. UNION OF INDIA 109
[DINESH MAHESHWARI, J.]

the Constitution. This Court denied interference while observing, inter A
alia, as under: -
“96. Permanent retention of the privy purse and the privileges of
rights would be incompatible with the sovereign and republican
form of Government. Such a retention will also be incompatible
with the egalitarian form of our Constitution. That is the opinion B
of the Parliament which acted to repeal the aforesaid provisions
in exercise of its constituent power. The repudiation of the right to
privy purse privileges, dignities etc. by the deletion of Articles 291
and 362, insertion of Article 363-A and amendment of clause (22)
of Article 366 by which the recognition of the Rulers and payment
of privy purse are withdrawn cannot be said to have offended C
Article 14 or 19(g) [sic 19(1)(f)] and we do not find any logic in
such a submission. No principle of justice, either economic,
political or social is violated by the Twenty-sixth
Amendment. Political justice relates to the principle of rights
of the people, i.e. right to universal suffrage, right to D
democratic form of Government and right to participation
in political affairs. Economic justice is enshrined in Article
39 of the Constitution. Social justice is enshrined in Article
38. Both are in the directive principles of the Constitution.
None of these rights are abridged or modified by this
Amendment. We feel that this contention need not detain E
us any more and, therefore, we shall pass on to the next point in
debate.
107. On a deep consideration of the entire scheme and
content of the Constitution, we do not see any force in the
above submissions. In the present case, there is no question F
of change of identity on account of the Twenty-sixth
Amendment. The removal of Articles 291 and 362 has not
made any change in the personality of the Constitution
either in its scheme or in its basic features, or in its basic
form or in its character. The question of identity will arise G
only when there is a change in the form, character and
content of the Constitution. In fact, in the present case, the
identity of the Constitution even on the tests proposed by the counsel
of the writ petitioners and interveners, remains the same and
unchanged.”
H
(emphasis supplied)
110 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 37.8. A 7-Judge Bench of this Court in L. Chandra
Kumar v. Union of India and Ors.: (1997) 3 SCC 261 32 had the
occasion to examine the nature and extent of jurisdiction of the High
Court under Articles 226/227; and it was held that power of judicial
review under Articles 226/227 and Article 32 of the Constitution is an
integral and essential feature of the Constitution, constituting
B
its basic structure. The Constitution Bench held invalid the provisions of
clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, inserted
by the Constitution (Forty-second Amendment) Act, which excluded the
jurisdiction of the High Court while observing as under: -
“99. In view of the reasoning adopted by us, we hold that
C clause 2(d) of Article 323-A and clause 3(d) of Article 323-
B, to the extent they exclude the jurisdiction of the High
Courts and the Supreme Court under Articles 226/227 and
32 of the Constitution, are unconstitutional. Section 28 of
the Act and the “exclusion of jurisdiction” clauses in all
D other legislations enacted under the aegis of Articles 323-
A and 323-B would, to the same extent, be unconstitutional.
The jurisdiction conferred upon the High Courts under
Articles 226/227 and upon the Supreme Court under Article
32 of the Constitution is a part of the
inviolable basic structure of our Constitution. While this
E jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred
by Articles 226/227 and 32 of the Constitution…….”
(emphasis supplied)

F 37.9. In M. Nagaraj, the Constitution Bench validated the
Constitution (Seventy-seventh Amendment) Act, 1995 which inserted
Article 16(4-A); the Constitution (Eighty-first Amendment) Act, 2000
which inserted Article 16(4-B); the Constitution (Eighty-second
Amendment) Act, 2000 which inserted a proviso to Article 335; and the
Constitution (Eighty-fifth Amendment) Act, 2001 which added
G “consequential seniority” for SC/STs under Article 16(4-B). The said
amendments were introduced essentially to nullify the effect of the
decision in Indra Sawhney wherein a 9-Judge Bench had ruled that
reservation in appointments did not apply to promotions. Article 16(4-A)
32
Hereinafter also referred to as ‘L. Chandra Kumar’.
H
JANHIT ABHIYAN v. UNION OF INDIA 111
[DINESH MAHESHWARI, J.]

enables the State to make any law regarding reservation in promotion A
for SC/STs. Article 16(4-B) provides that reserved promotion posts for
SC/STs that remain unfilled, can be carried forward to the subsequent
year. Article 16(4-B) also ensures that the ceiling on the reservation
quota for these carried forward posts does not apply to subsequent years.
Article 335 mandates that reservations have to be balanced with the
B
‘maintenance of efficiency’. The amendment to Article 335 clarified
that the Article will not apply to the State relaxing evaluation standards
‘in matters of promotion’. The Court held as under: -
“104. Applying the above tests to the present case, there is
no violation of the basic structure by any of the impugned
amendments, including the Constitution (Eighty-second) C
Amendment Act, 2000. The constitutional limitation under
Article 335 is relaxed and not obliterated. As stated above,
be it reservation or evaluation, excessiveness in either
would result in violation of the constitutional mandate. This
exercise, however, will depend on the facts of each case. D
In our view, the field of exercise of the amending power is
retained by the impugned amendments, as the impugned
amendments have introduced merely enabling provisions
because, as stated above, merit, efficiency, backwardness
and inadequacy cannot be identified and measured in
vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall E
in the pattern of Article 16(4) and as long as the parameters
mentioned in those articles are complied with by the States,
the provision of reservation cannot be faulted. Articles 16(4-
A) and 16(4-B) are classifications within the principle of
equality under Article 16(4). F
108. Applying the above tests to the proviso to Article 335 inserted
by the Constitution (Eighty-second Amendment) Act, 2000 we
find that the said proviso has a nexus with Articles 16(4-A) and
16(4-B). Efficiency in administration is held to be a constitutional
limitation on the discretion vested in the State to provide for G
reservation in public employment. Under the proviso to Article
335, it is stated that nothing in Article 335 shall prevent the State
to relax qualifying marks or standards of evaluation for reservation
in promotion. This proviso is also confined only to members of
SCs and STs. This proviso is also conferring discretionary power
on the State to relax qualifying marks or standards of evaluation. H
112 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Therefore, the question before us is—whether the State could be
empowered to relax qualifying marks or standards for reservation
in matters of promotion. In our view, even after insertion of this
proviso, the limitation of overall efficiency in Article 335 is not
obliterated. Reason is that “efficiency” is a variable factor. It is
for the State concerned to decide in a given case, whether the
B
overall efficiency of the system is affected by such relaxation. If
the relaxation is so excessive that it ceases to be qualifying marks
then certainly in a given case, as in the past, the State is free not
to relax such standards. In other cases, the State may evolve a
mechanism under which efficiency, equity and justice, all three
C variables, could be accommodated. Moreover, Article 335 is to be
read with Article 46 which provides that the State shall promote
with special care the educational and economic interests of the
weaker sections of the people, and in particular, of the Scheduled
Castes and Scheduled Tribes, and shall protect them from social
injustice. Therefore, where the State finds compelling interests of
D
backwardness and inadequacy, it may relax the qualifying marks
for SCs/STs. These compelling interests however have to be
identified by weighty and comparable data.
109. In conclusion, we reiterate that the object behind the
impugned constitutional amendments is to confer discretion
E on the State to make reservations for SCs/STs in promotions
subject to the circumstances and the constitutional
limitations indicated above.
Conclusion

F 121. The impugned constitutional amendments by which Articles
16(4-A) and 16(4-B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4). They retain the
controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables
the States to provide for reservation keeping in mind the overall
G efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They
do not obliterate any of the constitutional requirements, namely,
ceiling limit of 50% (quantitative limitation), the concept of creamy
layer (qualitative exclusion), the sub-classification between OBCs
H on one hand and SCs and STs on the other hand as held in Indra
JANHIT ABHIYAN v. UNION OF INDIA 113
[DINESH MAHESHWARI, J.]

Sawhney, the concept of post-based roster with inbuilt concept A
of replacement as held in R.K. Sabharwal.
124. Subject to the above, we uphold the constitutional
validity of the Constitution (Seventy-seventh Amendment)
Act, 1995; the Constitution (Eighty-first Amendment) Act,
2000; the Constitution (Eighty-second Amendment) Act, B
2000 and the Constitution (Eighty-fifth Amendment) Act,
2001.”
(emphasis supplied)
37.10. In Ashoka Kumar Thakur, the provisions of Constitution
(Ninety-third Amendment) Act, 2005 were under challenge, which C
inserted clause (5) to Article 15 of the Constitution. This Court rejected
the contention of violation of the basic structure while holding, inter
alia, as under: -
“118. Equality is a multicoloured concept incapable of a single
definition as is also the fundamental right under Article 19(1)(g). D
The principle of equality is a delicate, vulnerable and
supremely precious concept for our society. It is true that
it has embraced a critical and essential component of
constitutional identity. The larger principles of equality as
stated in Articles 14, 15 and 16 may be understood as an E
element of the “basic structure” of the Constitution and
may not be subject to amendment, although, these
provisions, intended to configure these rights in a particular
way, may be changed within the constraints of the broader
principle. The variability of changing conditions may
necessitate the modifications in the structure and design F
of these rights, but the transient characters of formal
arrangements must reflect the larger purpose and principles
that are the continuous and unalterable thread of
constitutional identity. It is not the introduction of significant
and far-reaching change that is objectionable, rather it is G
the content of this change insofar as it implicates the
question of constitutional identity.
120. If any constitutional amendment is made which
moderately abridges or alters the equality principle or the
principles under Article 19(1)(g), it cannot be said that it
H
114 SUPREME COURT REPORTS [2022] 14 S.C.R.

A violates the basic structure of the Constitution. If such a
principle is (sic not) accepted, our Constitution would not
be able to adapt itself to the changing conditions of a dynamic
human society. Therefore, the plea raised by the petitioners’
counsel that the present Constitution (Ninety-third
Amendment) Act, 2005 alters the basic structure of the
B
Constitution is of no force. Moreover, the interpretation of
the Constitution shall not be in a narrow pedantic way. The
observations made by the Constitution Bench in Nagaraj case at
p. 240 are relevant: (SCC para 19)
“19. The Constitution is not an ephemeral legal document
C embodying a set of legal rules for the passing hour. It sets out
principles for an expanding future and is intended to endure
for ages to come and consequently to be adapted to the various
crises of human affairs. Therefore, a purposive rather than a
strict literal approach to the interpretation should be adopted.
D A constitutional provision must be construed not in a narrow
and constricted sense but in a wide and liberal manner so as to
anticipate and take account of changing conditions and purposes
so that constitutional provision does not get fossilised but
remains flexible enough to meet the newly emerging problems
and challenges.”
E
122. Therefore, we hold that the Ninety-third Amendment
to the Constitution does not violate the “basic structure”
of the Constitution so far as it relates to aided educational
institutions. Question whether reservation could be made for
SCs, STs or SEBCs in private unaided educational institutions on
F the basis of the Constitution (Ninety-third Amendment); or whether
reservation could be given in such institutions; or whether any
such legislation would be violative of Article 19(1)(g) or Article
14 of the Constitution; or whether the Constitution (Ninety-third
Amendment) which enables the State Legislatures or Parliament
G to make such legislation are all questions to be decided in a properly
constituted lis between the affected parties and others who support
such legislation.”
(emphasis supplied)
37.11. In K. Krishna Murthy (Dr.) and Ors. v. Union of India
H and Anr.: (2010) 7 SCC 202, the Constitution (Seventy-third
JANHIT ABHIYAN v. UNION OF INDIA 115
[DINESH MAHESHWARI, J.]

Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) A
Act, 1992 which had inserted Part IX and Part IX-A to the Constitution
thereby contemplating the powers, composition and functions of local
self-government institutions i.e., the Panchayats (for rural areas) and
Municipalities (for urban areas) were in challenge. This Court rejected
the challenge while holding that there was no damage to the basic
B
structure and concluded as follows: -
“82. In view of the above, our conclusions are:
(i) The nature and purpose of reservations in the context
of local self-government is considerably different from that
of higher education and public employment. In this sense, C
Article 243-D and Article 243-T form a distinct and
independent constitutional basis for affirmative action and
the principles that have been evolved in relation to the
reservation policies enabled by Articles 15(4) and 16(4)
cannot be readily applied in the context of local self-
government. Even when made, they need not be for a period D
corresponding to the period of reservation for the purposes of
Articles 15(4) and 16(4), but can be much shorter.
(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid
since they are in the nature of provisions which merely enable the
State Legislatures to reserve seats and chairperson posts in favour E
of backward classes. Concerns about disproportionate
reservations should be raised by way of specific challenges against
the State legislations.
(iii) We are not in a position to examine the claims about
overbreadth in the quantum of reservations provided for OBCs F
under the impugned State legislations since there is no
contemporaneous empirical data. The onus is on the executive to
conduct a rigorous investigation into the patterns of backwardness
that act as barriers to political participation which are indeed quite
different from the patterns of disadvantages in the matter of access G
to education and employment. As we have considered and decided
only the constitutional validity of Articles 243-D(6) and 243-T(6),
it will be open to the petitioners or any aggrieved party to challenge
any State legislation enacted in pursuance of the said constitutional
provisions before the High Court. We are of the view that the
identification of “backward classes” under Article 243-D(6) and H
116 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Article 243-T(6) should be distinct from the identification of SEBCs
for the purpose of Article 15(4) and that of backward classes for
the purpose of Article 16(4).
(iv) The upper ceiling of 50% vertical reservations in favour
of SCs/STs/OBCs should not be breached in the context of
B local self-government. Exceptions can only be made in
order to safeguard the interests of the Scheduled Tribes in
the matter of their representation in panchayats located in
the Scheduled Areas.
(v) The reservation of chairperson posts in the manner
C contemplated by Articles 243-D(4) and 243-T(4) is
constitutionally valid. These chairperson posts cannot be equated
with solitary posts in the context of public employment.”
(emphasis supplied)
37.12. In Pramati Trust, the validity of clause (5) of Article 15 of
D the Constitution inserted by the Constitution (Ninety-third Amendment)
Act, 2005 was again in question in reference to the private unaided
educational institutions (the aspect which was not under consideration in
Ashoka Kumar Thakur) as also the validity of Article 21-A of the
Constitution inserted by the Constitution (Eighty-sixth Amendment) Act,
E 2002 with effect from 01.04.2010. This Court denied that there was any
basic structure violation while observing, inter alia, as under: -
“38. We accordingly hold that none of the rights under
Articles 14, 19(1)(g) and 21 of the Constitution have been
abrogated by clause (5) of Article 15 of the Constitution
F and the view taken by Bhandari, J. in Ashoka Kumar Thakur v.
Union of India that the imposition of reservation on unaided
institutions by the Ninety-third Amendment has abrogated Article
19(1)(g), a basic feature of the Constitution is not correct. Instead,
we hold that the Constitution (Ninety-third Amendment) Act, 2005
inserting clause (5) of Article 15 of the Constitution is valid.
G
51. In our considered opinion, therefore, by the Constitution
(Eighty-sixth Amendment) Act, a new power was made
available to the State under Article 21-A of the Constitution
to make a law determining the manner in which it will
provide free and compulsory education to the children of
H the age of six to fourteen years as this goal contemplated
JANHIT ABHIYAN v. UNION OF INDIA 117
[DINESH MAHESHWARI, J.]

in the directive principles in Article 45 before this A
constitutional amendment could not be achieved for fifty
years. This additional power vested by the Constitution
(Eighty-sixth Amendment) Act, 2002 in the State is
independent and different from the power of the State under
clause (6) of Article 19 of the Constitution and has affected
B
the voluntariness of the right under Article 19(1)(g) of the
Constitution. By exercising this additional power, the State
can by law impose admissions on private unaided schools
and so long as the law made by the State in exercise of this
power under Article 21-A of the Constitution is for the
purpose of providing free and compulsory education to the C
children of the age of 6 to 14 years and so long as such law
forces admission of children of poorer, weaker and backward
sections of the society to a small percentage of the seats in
private educational institutions to achieve the constitutional
goals of equality of opportunity and social justice set out in
D
the Preamble of the Constitution, such a law would not be
destructive of the right of the private unaided educational
institutions under Article 19(1)(g) of the Constitution.
56. In the result, we hold that the Constitution (Ninety-third
Amendment) Act, 2005 inserting clause (5) of Article 15 of
the Constitution and the Constitution (Eighty-sixth E
Amendment) Act, 2002 inserting Article 21-A of the
Constitution do not alter the basic structure or framework
of the Constitution and are constitutionally valid. We also
hold that the 2009 Act is not ultra vires Article 19(1)(g) of the
Constitution. We, however, hold that the 2009 Act insofar as it F
applies to minority schools, aided or unaided, covered under clause
(1) of Article 30 of the Constitution is ultra vires the Constitution.
Accordingly, Writ Petition (C) No. 1081 of 2013 filed on behalf of
Muslim Minority Schools Managers’ Association is allowed and
Writ Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106, 128,
144-45, 160 and 136 of 2014 filed on behalf of non-minority private G
unaided educational institutions are dismissed. All IAs stand
disposed of. The parties, however, shall bear their own costs.”
(emphasis supplied)

H
118 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 37.13. In Supreme Court Advocates-on-Record Association and
Anr. v. Union of India: (2016) 5 SCC 133, the questions were pertaining
to the constitutional validity of the Constitution (Ninety-ninth Amendment)
Act, 2014 and that of the National Judicial Appointments Commission
Act, 2014. This Court held that the amendment violated the basic structure
inasmuch as by altering the process of appointment of Judges to the
B
Supreme Court and the High Court, the amendment was striking at the
very basis of the independence of the judiciary, an essential feature of
the Constitution. A few passages from the majority opinions read as
under: -
Khehar, J.
C
“308. Articles 124-A(1)(a) and (b) do not provide for an
adequate representation in the matter to the judicial
component to ensure primacy of the judiciary in the matter
of selection and appointment of Judges to the higher
judiciary, and therefore, the same are liable to be set aside
D and struck down as being violative of the “basic structure”
of the Constitution of India. Thus viewed, we are satisfied
that the “basic structure” of the Constitution would be
clearly violated if the process of selection of Judges to the
higher judiciary was to be conducted in the manner
E contemplated through NJAC. The impugned constitutional
amendment being ultra vires the “basic structure” of the
Constitution is liable to be set aside.
Lokur,J.
928. The 99th Constitution Amendment Act and the NJAC Act
F not only reduce the Chief Justice of India to a number in NJAC
but also convert the mandatory consultation between the President
and the Chief Justice of India to a dumb charade with NJAC
acting as an intermediary. On earlier occasions, Parliament
enhanced its power through constitutional amendments, which were
G struck down, inter alia, in Indira Nehru Gandhi and Minerva
Mills. The 99th Constitution Amendment Act
unconstitutionally minimises the role of the Chief Justice
of India and the judiciary to a vanishing point in the
appointment of Judges. It also considerably downsizes the
33
Hereinafter also referred to as ‘NJAC Judgment’.
H
JANHIT ABHIYAN v. UNION OF INDIA 119
[DINESH MAHESHWARI, J.]

role of the President. This effaces the basic structure of A
the independence of the judiciary by sufficiently altering
the process of appointment of Judges to the Supreme Court
and the High Court, or at least alters it unconstitutionally
thereby striking at the very basis of the independence of
the judiciary.”
B
(emphasis supplied)
37.14. In his powerful dissent in the above-referred NJAC
Judgment, Justice Chelameswar surveyed a vast variety of case law
relating to the doctrine/theory of basic structure and thereafter, summed
up the relevant propositions, inter alia, as follows: - C
“1196. An analysis of the judgments of the abovementioned cases
commencing from Kesavananda case yields the following
propositions:
1196.1. Article 368 enables Parliament to amend any provision
of the Constitution. D
1196.2. The power under Article 368 however does not enable
Parliament to destroy the basic structure of the Constitution.
1196.3. None of the cases referred to above specified or declared
what is the basic structure of the Constitution.
E
1196.4. The expressions “basic structure” and
“basic features” convey different ideas though some of the
learned Judges used those expressions interchangeably.
1196.5. The basic structure of the Constitution is the sum
total of the basic features of the Constitution. F
1196.6. Some of the basic features identified so far by this
Court are democracy, secularism, equality of status,
independence of judiciary, judicial review and some of the
fundamental rights.
1196.7. The abrogation of any one of the basic features G
results normally in the destruction of the basic structure of
the Constitution subject to some exceptions.
1196.8. As to when the abrogation of a particular basic
feature can be said to destroy the basic structure of the
Constitution depends upon the nature of the basic feature H
120 SUPREME COURT REPORTS [2022] 14 S.C.R.

A sought to be amended and the context of the amendment.
There is no universally applicable test vis-à-vis all the basic
features.”
(emphasis supplied)
37.15. Lastly, in the decision in Dr. Jaishri Patil to which one of
B us (S. Ravindra Bhat, J.) was a party, this Court considered the validity
of the Constitution (One Hundred and Second Amendment) Act, 2018
which, inter alia, inserted Articles 366(26-C) and 342-A. As a result of
this amendment, the President alone, to the exclusion of all other
authorities, is empowered to identify socially and educationally backward
C classes and include them in a list to be published under Article 342-A (1),
which shall be deemed to include SEBCs in relation to each State and
Union territory for the purposes of the Constitution. The said amendment
was challenged, inter alia, on the ground that the same was not ratified
by at least half of the States and that it was striking at the federal structure
of the Constitution. While rejecting the challenge, this Court held that
D there was no breach of the basic structure of the Constitution. Some of
the relevant questions formulated in that case and the opinions expressed
could be usefully reproduced as under: -
“7.4. (4) Whether the Constitution (One Hundred and Second)
Amendment deprives the State Legislature of its power to enact
E a legislation determining the socially and economically backward
classes and conferring the benefits on the said community under
its enabling power?
7.5. (5) Whether, States’ power to legislate in relation to “any
backward class” under Articles 15(4) and 16(4) is anyway abridged
F by Article 342-A read with Article 366(26-C) of the Constitution
of India?
7.6. (6) Whether Article 342-A of the Constitution abrogates
States’ power to legislate or classify in respect of “any backward
class of citizens” and thereby affects the federal policy/structure
G of the Constitution of India?
Bhat, J.
182. This Court is also of the opinion that the change brought
about by the 102nd Amendment, especially Article 342-A is only
with respect to the process of identification of SEBCs and their
H
JANHIT ABHIYAN v. UNION OF INDIA 121
[DINESH MAHESHWARI, J.]

list. Necessarily, the power to frame policies and legislation with A
regard to all other matters i.e. the welfare schemes for SEBCs,
setting up of institutions, grants, scholarships, extent of reservations
and special provisions under Articles 15(4), 15(5) and 16(4) are
entirely with the State Government in relation to its institutions
and its public services (including services under agencies and
B
corporations and companies controlled by the State Government).
In other words, the extent of reservations, the kind of benefits,
the quantum of scholarships, the number of schools which are to
be specially provided under Article 15(4) or any other beneficial
or welfare scheme which is conceivable under Article 15(4) can
all be achieved by the State through its legislative and executive C
powers. This power would include making suggestions and
collecting data — if necessary, through statutory commissions,
for making recommendations towards inclusion or exclusion of
castes and communities to the President on the aid and advice of
the Union Council of Ministers under Article 342-A. This will
D
accord with the spirit of the Constitution under Article 338-B and
the principle of cooperative federalism which guides the
interpretation of this Constitution.
193. By these parameters, the alteration of the content of
the State legislative power in an oblique and peripheral
manner would not constitute a violation of the concept of E
federalism. It is only if the amendment takes away the very
essence of federalism or effectively divests the federal content
of the Constitution, and denudes the States of their effective
power to legislate or frame executive policies (co-extensive
with legislative power) that the amendment would take away F
an essential feature or violate the basic structure of the
Constitution. Applying such a benchmark, this Court is of
the opinion that the power of identification of SEBCs
hitherto exercised by the States and now shifted to the
domain of the President (and for its modification, to
Parliament) by virtue of Article 342-A does not in any G
manner violate the essential features or basic structure of
the Constitution. The 102nd Amendment is also not contrary to
or violative of proviso to Article 368(2) of the Constitution of India.
As a result, it is held that the writ petition is without merit; it is
dismissed. H
122 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 194.5. Re Point (5): Whether, States’ power to legislate in relation
to “any backward class” under Articles 15(4) and 16(4) is anyway
abridged by Article 342-A read with Article 366(26-C) of the
Constitution of India? On these two interrelated points of reference,
my conclusions are as follows:
B 194.5.5. The States’ power to make reservations, in favour of
particular communities or castes, the quantum of reservations,
the nature of benefits and the kind of reservations, and all other
matters falling within the ambit of Articles 15 and 16 — except
with respect to identification of SEBCs, remains undisturbed.
C 194.6. Re Point (6): Article 342-A of the Constitution by
denuding the States power to legislate or classify in respect
of “any backward class of citizens” does not affect or damage
the federal polity and does not violate the basic structure
of the Constitution of India.

D Bhushan, J.
686. We do not find any merit in the challenge to the
Constitution 102nd Amendment. The Constitution 102nd
Amendment does not violate any basic feature of the
Constitution. The argument of the learned counsel for the
E petitioner is that Article 368 has not been followed since
the Constitution 102nd Amendment was not ratified by the
necessary majority of the State. Parliament never intended
to take the rights of the State regarding identification of
backward classes, the Constitution 102nd Amendment was
not covered by the proviso to Article 368 clause (2), hence,
F the same did not require any ratification. The argument of
procedural violation in passing the 102nd Constitutional Amendment
cannot also be accepted. We uphold the Constitution 102nd
Amendment interpreted in the manner as above.”
(emphasis supplied)
G
38. A comprehension of the foregoing makes one aspect more
than clear. It is that there is no, and there cannot be any, cut-and-dried
formula or a theorem which could supply a ready-made answer to the
question as to whether a particular amendment to the Constitution violates
or affects the basic structure. The nature of amendment and the feature/
H s of the Constitution sought to be touched, altered, modulated, or changed
JANHIT ABHIYAN v. UNION OF INDIA 123
[DINESH MAHESHWARI, J.]

by the amendment would be the material factors for an appropriate A
determination of the question. As observed hereinbefore, amorphous
state of the doctrine of basic structure is rather pertinent in this quest, so
as to keep in tune with the organic nature of the Constitution.
38.1. However, the observations foregoing are not to suggest as
if the doctrine of basic structure is so open-ended that it would be readily B
applied to every constitutional amendment. Quite to the opposite, as
exemplified by the decisions above-referred, this Court has applied the
same only against such hostile constitutional amendments which were
found to be striking at the very identity of the Constitution, like direct
abrogation of the features of judicial review (Kesavananda, Minerva
Mills and P. Sambhamurthy34); free and fair elections (Indira Nehru C
Gandhi); plenary jurisdiction of constitutional Courts (L. Chandra
Kumar); and independence of judiciary (NJAC Judgment). Most of
the other attempts to question the constitutional amendments have met
with disapproval of this Court even when there had been departure from
the existing constitutional provisions and scheme. D
38.2. The reason for minimal interference by this Court in the
constitutional amendments is not far to seek. In our constitutional set-up
of parliamentary democracy, even when the power of judicial review is
an essential feature and thereby an immutable part of the basic structure
of the Constitution, the power to amend the Constitution, vested in the E
Parliament in terms of Article 368, is equally an inherent part of the
basic structure of the Constitution. Both these powers, of amending the
Constitution (by Parliament) and of judicial review (by Constitutional
Court) are subject to their own limitations. The interplay of amending
powers of the Parliament and judicial review by the Constitutional Court
over such exercise of amending powers may appear a little bit complex F
but ultimately leads towards strengthening the constitutional value of
separation of powers. This synergy of separation is the strength of our
Constitution.
39. A few material aspects related with this interlacing of the
amending powers of the Parliament and operation of the doctrine of G
basic structure could be usefully condensed as follows:
34
In Kihoto Hollohan (supra), Paragraph 7 of the Tenth Schedule to the Constitution,
though relating to the matter of exclusion of judicial review but was struck down
essentially for the view of majority about want of ratification in accordance with the
proviso to clause (2) of Article 368. H
124 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 39.1. The power to amend the Constitution essentially vests with
the Parliament and when a high threshold and other procedural safeguards
are provided in Article 368, it would not be correct to assume that every
amendment to the Constitution could be challenged by theoretical
reference to the basic structure doctrine.
B 39.2. As exposited in Kesavananda, the amending power can
even be used by the Parliament to reshape the Constitution in order to
fulfil the obligation imposed on the State, subject, of course, to the defined
limits of not damaging the basic structure of the Constitution.
39.3.Again, as put in Kesavananda, judicial review of
C constitutional amendment is a matter of great circumspection for the
judiciary where the Courts cannot be oblivious of the practical needs of
the Government and door has to be left open even for ‘trial and error’,
subject, again, to the limitations of not damaging the identity of the
Constitution.

D 39.4. The expressions “basic features” and “basic structure”
convey different meaning, even though many times they have been used
interchangeably. It could reasonably be said that basic structure of the
Constitution is the sum total of its essential features.
39.5. As to when abrogation of any particular essential feature
E would lead to damaging the basic structure of Constitution would depend
upon the nature of that feature as also the nature of amendment.
39.6. As regards Part-III of the Constitution, every case of
amendment of Fundamental Rights may not necessarily result in damaging
or destroying the basic structure. The issue would always be as to whether
F what is sought to be withdrawn or altered is an inviolable part of the
basic structure.
39.7. Mere violation of the rule of equality does not violate the
basic structure of the Constitution unless the violation is shocking,
unconscionable or unscrupulous travesty of the quintessence of equal
justice, as exposited in Bhim Singhji.
G
39.8. If any constitutional amendment moderately abridges or
alters the equality principles, it cannot be said to be a violation of the
basic structure.

H
JANHIT ABHIYAN v. UNION OF INDIA 125
[DINESH MAHESHWARI, J.]

40. While keeping in view the principles foregoing, we may embark A
upon the points arising for determination in this matter so as to answer
the root question as to whether the amendment in question violates the
basic structure of the Constitution?
41. As noticed, the principal part of challenge to the 103rd
Amendment is premised on the ground that insertion of clause (6) to B
Article 15 as also the parallel insertion of clause (6) to Article 16 abrogates
the Equality Code, an essential feature of the Constitution of India; and
thereby destroys the basic structure of the Constitution. In order to
determine as to whether the amendment in question destroys or violates
the basic structure, we need to examine the doctrine of equality as
enshrined in our Constitution; the concept of reservation by affirmative C
action as an exception to the general rule of equality; the economic
disability and affirmative action to deal with the same; the implications
of economic criteria as the sole basis for affirmative action; the
implications of the exclusion of socially and educationally backward
classes from the affirmative action for economically weaker sections; D
and the implication of the quantum of additional ten per cent. reservation
for EWS. These aspects may now be exmined in this very order as
infra.
Expanding Doctrine of ‘Equality’
42. It would be apt to begin this discussion with the following E
words of H. M. Seervai, a jurist of great repute, as regards fundamentals
of the concepts of Liberty and Equality:
“Liberty and equality are words of passion and power. They were
the watchwords of the French Revolution; they inspired the
unforgettable words of Abraham Lincoln’s Gettysburg Address; F
and the U.S. Congress gave them practical effect in the 13th
Amendment, which abolished slavery, and in the 14th Amendment,
which provided that “the State shall not deny to any person within
its jurisdiction…the equal protection of the laws.” Conscious of
this history, our founding fathers not only put Liberty and Equality G
in the Preamble to our Constitution but gave them practical effect
in Art. 17 which abolished “Untouchability,” and in Art. 14 which
provides that “the State shall not deny to any person equality before

H
126 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the law and the equal protection of the laws in the territory of
India”35-36.
43. Articles 14 to 18 of the Constitution are to ensure the right to
equality. The makers of our Constitution noticed the widespread social
and economic inequalities in the society that obtained ever since a long
B past, often sanctioned by public policies, religion and other social norms
and practices. Therefore, they enacted elaborate provisions for eradication
of inequalities and for establishing an egalitarian society. The first
expression ‘equality before the law’ of Article 14 is taken from the all-
time wisdom as also from English Common Law, implying absence of
any special privilege in any individual37; and the other expression ‘the
C equal protection of the laws’, referable to the 14th Amendment to the
U.S. Constitution, is a constitutional pledge of protection or guarantee of
equal laws. Both these expressions occur in Article 7 of the Universal
Declaration of Human Rights, 1948.

D 35
H.M. Seervai, ‘Constitutional Law of India, A Critical Commentary’, 4th Edition,
(1991-reprinted 1999) at p. 435.
36
The echoing words of Abraham Lincoln’s Gettysburg Address, as reproduced by
H.M. Seervai read as follows: “Four score and seven years ago our fathers brought
forth on this continent a new nation conceived in liberty and dedicated to the proposition
that all men are created equal. We are engaged in a great civil war, testing whether that
E nation, or any nation so conceived and so dedicated, can long endure.”
37
In fact, total equality has been fundamental to the concept of Dharma, leaving no
scope for discrimination on any ground. These aspects have been succinctly explained
by the acclaimed jurist M. Rama Jois in his classic work Legal and Constitutional
History of India (N. M. Tripathi Private Ltd. 1984 – Volume I, at p. 582) in the
following amongst other expressions while reproducing from Rig Veda: -
“…The very expression Dharma is opposed to and inconsistent with any such
F social inequality. The relevant provisions of the Shruti (Vedas) leave no room
for doubt that discrimination on the ground of birth or otherwise had no Vedic
sanction; on the other hand such discrimination was plainly opposed to Vedic
injunction. Discrimination of any kind is, therefore, contrary to Dharma. It is
really Adharma.
Charter of equality (Samanata) is found incorporated in the Rigveda, the most
ancient of the Vedas, and also in the Atharvaveda.
G Rigveda – Mandala-5, Sukta-60, Mantra-5
:*** *** ***
Ajyestaso akanishtasa ete
Sam bhrataro va vridhuhu sowbhagaya.
No one is superior (ajyestasaha) or inferior (akanishtasaha). All are brothers
(ete bhrataraha). All should strive for the interest of all and should progress
collectively (sowbhagaya sam va vridhuhu)”.
H
JANHIT ABHIYAN v. UNION OF INDIA 127
[DINESH MAHESHWARI, J.]

44. In a nutshell, the principle of equality can be stated thus: equals A
must be treated equally while unequals need to be treated differently,
inasmuch as for the application of this principle in real life, we have to
differentiate between those who being equal, are grouped together, and
those who being different, are left out from the group. This is expressed
as reasonable classification. Now, a classification to be valid must
B
necessarily satisfy two tests: first, the distinguishing rationale should be
based on a just objective and secondly, the choice of differentiating one
set of persons from another should have a reasonable nexus to the object
sought to be achieved. However, a valid classification does not require
mathematical niceties and perfect equality; nor does it require identity of
treatment.38 If there is similarity or uniformity within a group, the law C
will not be condemned as discriminatory, even though due to some
fortuitous circumstances arising out of a particular situation, some included
in the class get an advantage over others left out, so long as they are not
singled out for special treatment. In spite of certain indefiniteness in the
expression ‘equality’, when the same is sought to be applied to a particular
D
case or class of cases in the complex conditions of a modern society,
there is no denying the fact that the general principle of ‘equality’ forms
the basis of a Democratic Government.39
45. Since the early 1970s, equality in Article 14 being a dynamic
concept, has acquired new dimensions. In E. P. Royappa (supra), a
new approach to this doctrine was propounded in the following words: - E

“85. …Equality is a dynamic concept with many aspects and
dimensions and it cannot be “cribbed, cabined and
confined” within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies; one belongs to F
the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14…”
(emphasis supplied)
38
“From the fact that people are very different, it follows that, if we treat them equally,
G
the result must be inequality in their actual position, and that the only way to place
them in an equal position would be to treat them differently…”, said an Austrian
economist Friedrich A. Hayek (1899-1992) in ‘The Constitution of Liberty’, 1960, the
University of Chicago, p. 87.
39
Dr. Alladi Krishnaswami Aiyar, ‘The Constitution and Fundamental Rights’, The
Srinivasa Sastri Institute of Politics, Mylapore, Madras (1955), at p. 28. H
128 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 45.1. In Maganlal Chhaganlal (P) Ltd. v. Municipal
Corporation of Greater Bombay and Ors.: (1974) 2 SCC 402, it
was observed: -
“33. …..Article 14 enunciates a vital principle which lies at the
core of our republicanism and shines like a beacon light pointing
B towards the goal of classless egalitarian socio-economic order
which we promised to build for ourselves when we made a tryst
with destiny on that fateful day when we adopted our Constitution.
If we have to choose between fanatical devotion to this great
principle of equality and feeble allegiance to it, we would
unhesitatingly prefer to err on the side of the former as against
C the latter…”
46. Indian constitutional jurisprudence has consistently held the
guarantee of equality to be substantive and not a mere formalistic
requirement. Equality is at the nucleus of the unified goals of social and
economic justice. In Minerva Mills it was observed: -
D
“111. … the equality clause in the Constitution does not
speak of mere formal equality before the law but embodies
the concept of real and substantive equality which strikes
at inequalities arising on account of vast social and economic
differentials and is consequently an essential ingredient of
E social and economic justice. The dynamic principle of
egalitarianism fertilises the concept of social and economic justice;
it is one of its essential elements and there can be no real social
and economic justice where there is a breach of the egalitarian
principle…”
F (emphasis supplied)
47. Thus, equality is a feature fundamental to our Constitution
but, in true sense of terms, equality envisaged by our Constitution as a
component of social, economic and political justice is real and substantive
equality, which is to organically and dynamically operate against all forms
G of inequalities. This process of striking at inequalities, by its very nature,
calls for reasonable classifications so that equals are treated equally
while unequals are treated differently and as per their requirements.

H
JANHIT ABHIYAN v. UNION OF INDIA 129
[DINESH MAHESHWARI, J.]

Affirmative Action by ‘Reservation’: Exception to the A
General Rule of Equality
48. In the multifaceted social structure, ensuring substantive and
real equality, perforce, calls for consistent efforts to remove inequalities,
wherever existing and in whatever form existing. Hence, the State is
tasked with affirmative action. And, one duly recognised form of B
affirmative action is by way of compensatory discrimination, which
has the preliminary goal of curbing discrimination and the ultimate goal
of its eradication so as to reach the destination of real and substantive
equality. This has led to what is known as reservation and quota system
in State activities.
C
49. Reservation and quota system was introduced in Malta much
before it was mentioned in India40. Reservation in India was introduced
in the last decades of the 19th century at a time when the Indian sub-
continent was broadly divided, according to two main forms of
governance, into British India and about 600 Princely States. Some of
the progressive States had modernised the society through the promotion D
of education and industry. For example, the Princely States of Mysore,
Baroda and Kolhapur took considerable interest in the awakening and
advancement of deprived sections of society. Chhatrapati Shahuji
Maharaj, the Ruler of Princely State of Kolhapur, is said to have been
influenced by the thoughts of egalitarian thinker Jyotirao Phule and is E
said to have introduced affirmative action in 1902, reserving a part of
administrative posts for ‘depressed classes’.41
50. Leaving the historical perspective at that, for the purpose of
questions at hand, we may, however, move on to the provisions in the
Constitution of India and take note of their operation with reference to F
the relevant decisions. The ‘doctrine of equality’, as collectively
enshrined in Articles 14 to 18, happens to be the principal basis for the
creation of a reasonable classification whereunder ‘affirmative action’,
be it legislative or executive, is authorised to be undertaken. The
40
‘Moments in a History of Reservations’ by Bhagwan Das in Economic and Political
Weekly, 28.10.2000. G
41
He is also credited to have presided over the first All India Conference of the
Depressed Classes at Nagpur in the year 1920 where Dr. B. R. Ambedkar was among
the main speakers and where it was resolved, among other things, to have true
representatives of the depressed classes in the legislature. [Vide: Dr. Sanjay Paswan,
Dr. Pramanshi Jaideva, ‘Encyclopaedia of Dalits in India’,Kalpaz Publications, New
Delhi (2003)].
H
130 SUPREME COURT REPORTS [2022] 14 S.C.R.

A constitutional Courts too, precedent by precedent, have constructively
contributed to the evolution of what we may term as ‘reservation
jurisprudence’.
51. The Constitution of India has about two dozen Articles providing
for compensatory or special treatment for disadvantaged citizens or for
B protecting them against discrimination. Part III specifies the Fundamental
Rights that are constitutionally guaranteed. Article 12 defines the ‘State’
against whom these Fundamental Rights can be enforced. Article 13
declares void all laws offending Fundamental Rights. Article 14,
apparently considered to be one of the most important of the Fundamental
Rights, guarantees the right to equality and equal protection of the laws.
C Article 15 confers on the SEBCs/OBCs/SCs/STs the right to seek
reservation in admission to educational institutions. It also provides for
the advancement of these classes. Similarly, Article 16 provides for
reservation in the matter of public employment for Backward Classes.
Both Articles 15 and 16, being citizenship-specific unlike Article 14, prohibit
D discrimination broadly i.e., only on the grounds of, religion, race, caste,
sex or place of birth. Part XVI of the Constitution, making ‘Special
Provisions Relating to Certain Classes’, provides for reservation of seats
in legislatures for Scheduled Castes, Scheduled Tribes and so on.
52. Although several Articles are relevant as expressing the spirit
E of the Constitution, three of them are predominantly germane i.e., Article
14 as embodying the generic principle of equality (as genus) and Articles
15 and 16, enacting the facets of general equality (as species), vide
N.M. Thomas.
52.1. It is evident that the normal process of development benefits
F only that section of society which already possesses land, education,
and social status/respect. For those who have none of these, or are
deprived of any of these, there was the task of making sure that they,
who had been unable to enjoy these rights due to myriad reasons, were
given special facilities, privileges and encouragement so that they could
participate as equals in the mainstream of socio-economic system, taking
G them to the path of Liberty and Justice and thereby promoting Fraternity
among all the citizens, assuring the dignity of the individual. Given these
objectives, the Indian constitutional structure, unlike the U.S. Constitution,
specifically provides for ‘compensatory discrimination’, vide Vasanth
Kumar; and, in that context, reservation is the basic gateway to tread
H the path of all-around development.
JANHIT ABHIYAN v. UNION OF INDIA 131
[DINESH MAHESHWARI, J.]

52.2. Thus, Article 15 enacts the principle of equality before law A
to specific situations. While it prohibits certain classifications, it expressly
requires making of certain classifications which would impliedly be within
the broad reach of Article 14. Clause (4) was added to Article 15 by the
Constitution (First Amendment) Act, 1951, w.e.f. 18.06.1951 to nullify
the effects of the decision in Champakam. Article 16, which enacts
B
another facet of equality, prohibits discrimination in the matters relating
to employment or appointment to any office under the State on almost
the same grounds as in Article 15. Clauses (4) and (4-A) of Article 16
carve out another exception to the rule of equality and enable the State
to make provisions for reservations of appointment in favour of any
backward class of citizens. Such provisions include reservations or quotas C
that can be made in the exercise of executive powers and even without
any legislative support, vide Indra Sawhney. The twin objectives of
Articles 15 and 16 are to provide adequate protection to the disadvantaged
and, through special measures, to raise their capabilities so that they
would, on their own, compete with the rest.
D
52.3. The reference to Scheduled Castes and Scheduled Tribes in
Articles 15 and 16 takes us to Articles 341 and 342, which authorise the
President to issue a notified order in respect of each of the States/Union
Territories specifying the castes, races or tribes which are to be regarded
as Scheduled Castes and Scheduled Tribes. Articles 338 and 338-A
respectively provide for the establishment of National Commission for E
Scheduled Castes and National Commission for Scheduled Tribes.
Similarly, Article 338-B provides for the establishment of National
Commission for Backward Classes. These constitutional bodies, inter
alia, have the duty to participate in and advice on the socio-economic
development of the communities concerned. Article 342-A introduced F
by 102nd Constitutional Amendment w.e.f. 15.08.2018 authorises the
President in consultation with the Governor of the State concerned to
notify socially and educationally backward classes (discussed and upheld
in Dr. Jaishri Patil).
53. Reverting to Articles 15 and 16, it could at once be noticed G
that the provisions concerning reservation were crafted carefully to be
just ‘enabling provisions’. They were worded to confer no more than a
discretionary power on the State. They did not cast a duty on the State
to the effect that it must set apart such and such proportion of seats in
educational institutions or of posts in government services by way of
H
132 SUPREME COURT REPORTS [2022] 14 S.C.R.

A reservation42.The provisions were written so as to obviate a challenge
to the steps that the State may take to raise the downtrodden. However,
they were, as such, not to confer a right on anyone.
54. As regards reservation as one of the measures of affirmative
action, the extent thereof has been a major area of debates and has led
B to various expositions, as shall be noticed in the later segments of this
judgment. For the present purpose, of comprehending the ethos and
contours of this affirmative action, the following are the pertinent
observations of this Court in M. Nagaraj, essentially made in the context
of Article 16: -
C “102 …… Clauses (1) and (4) of Article 16 are restatements
of the principle of equality under Article 14. Clause (4) of
Article 16 refers to affirmative action by way of reservation.
Clause (4) of Article 16, however, states that the appropriate
Government is free to provide for reservation in cases where it is
satisfied on the basis of quantifiable data that Backward Class is
D inadequately represented in the services. Therefore, in every
case where the State decides to provide for reservation
there must exist two circumstances, namely,
“backwardness” and “inadequacy of representation”. As
stated above, equity, justice and efficiency are variable factors.
E These factors are context-specific. There is no fixed yardstick to
identify and measure these three factors, it will depend on the
facts and circumstances of each case. These are the limitations
on the mode of the exercise of power by the State…….. If the
State concerned fails to identify and measure backwardness,
inadequacy and overall administrative efficiency then in that event
F the provision for reservation would be invalid.…….Equality has
two facets - “formal equality” and “proportional equality”.
Proportional equality is equality “in fact” whereas formal equality
is equality “in law”. Formal equality exists in the rule of law. In
the case of proportional equality the State is expected to
G take affirmative steps in favour of disadvantaged sections
of the society within the framework of liberal democracy.
Egalitarian equality is proportional equality.
*** *** ***
42
Vide Chairman and Managing Director, Central Bank of India and Ors. v. Central
Bank of India SC/ST Employees Welfare Association and Ors.: (2015) 12 SCC 308.
H
JANHIT ABHIYAN v. UNION OF INDIA 133
[DINESH MAHESHWARI, J.]

104………… As stated above, be it reservation or evaluation, A
excessiveness in either would result in violation of the constitutional
mandate. This exercise, however, will depend on the facts of each
case…..”
(emphasis supplied)
55. Thus, it could reasonably be summarised that for the socio- B
economic structure which the law in our democracy seeks to build up,
the requirements of real and substantive equality call for affirmative
actions; and reservation is recognised as one such affirmative action,
which is permissible under the Constitution; and its operation is defined
by a large number of decisions of this Court, running up to the detailed C
expositions in Dr. Jaishri Patil.
56. However, it need be noticed that reservation, one of the
permissible affirmative actions enabled by the Constitution of India, is
nevertheless an exception to the general rule of equality and hence,
cannot be regarded as such an essential feature of the Constitution that D
cannot be modulated; or whose modulation for a valid reason, including
benefit of any section other than the sections who are already availing
its benefit, may damage the basic structure.
Economic Disabilities and Affirmative Action
57. After having traversed through the two fundamental aspects, E
Equality and Reservation, we may focus on the central point of
consideration in these matters i.e., the economic disabilities and
affirmative action in that regard.
58. The social revolution was put at the top of the national agenda
by the Constituent Assembly when it adopted Objectives Resolution. In F
Kesavananda, it was observed: -
“646....By the Objectives Resolution adopted on January 22, 1947,
the Constituent Assembly solemnly pledged itself to draw up for
India’s future governance a Constitution wherein “shall be
guaranteed and secured to all the people of India justice, social, G
economic and political, equality of status, of opportunity and before
the law; freedom of thought, expression, belief, faith, worship,
vocation, association and action subject to law and public morality
and wherein adequate safeguard would be provided for minorities,
backward and tribal areas and depressed and other backward
H
134 SUPREME COURT REPORTS [2022] 14 S.C.R.

A classes”. The close association between political freedom and
social justice has become a common concept since the French
Revolution. Since the end of the First World War, it was
increasingly recognised that peace in the world can be established
only if it is based on social justice. The most modern Constitutions
contain declaration of social and economic principles, which
B
emphasise, among other things, the duty of the State to strive for
social security and to provide work, education and proper condition
of employment for its citizens. In evolving the Fundamental Rights
and the Directive Principles, our founding fathers, in addition to
the experience gathered by them from the events that took place
C in other parts of the world, also drew largely on their experience
in the past. The Directive Principles and the Fundamental Rights
mainly proceed on the basis of Human Rights. Representative
democracies will have no meaning without economic and social
justice to the common man. This is a universal experience.
Freedom from foreign rule can be looked upon only as an
D
opportunity to bring about economic and social advancement. After
all freedom is nothing else but a chance to be better. It is this
liberty to do better that is the theme of the Directive Principles of
State Policy in Part IV of the Constitution.”
59. The Chief Architect of the Constitution Dr. B.R. Ambedkar,
E on 19.11.1948, had stressed in the Constituent Assembly that the
Constitution was committed to the principle of ‘economic democracy’
as a compliment to political democracy. His words are worth quoting: -
“Sir, that is the reason why the language of the articles in Part IV
is left in the manner in which this Drafting Committee thought it
F best to leave it….It is, therefore, no use saying that the directive
principles have no value. In my judgment, the directive principles
have a great value, for they lay down that our ideal is economic
democracy. Because we did not want merely a parliamentary
form of Government to the instituted through the various
G mechanisms provided in the Constitution. without any direction as
to what our economic ideal, as to what our social order ought to
be, we deliberately included the Directive Principles in our
Constitution. I think, if the friends who are agitated over this
question bear in mind what I have said just now that our object in
framing this Constitution is really twofold:
H
JANHIT ABHIYAN v. UNION OF INDIA 135
[DINESH MAHESHWARI, J.]

(i) to lay down the form of political democracy, and (ii) to lay A
down that our ideal is economic democracy and also to prescribe
that every Government whatever, it is in power, shall strive to
bring about economic democracy, much of the misunderstanding
under which most members are labouring will disappear….”43
60. H.M. Seervai writes: - B
“4.13 (a) The words “justice, liberty, equality and fraternity” are
words of passion and power – the last three were the watchwords
of the French Revolution. If they are to retain their power to
move men’s hearts and to stir them to action, the words must be
used absolutely – as they are used in the preamble. But do they C
throw any light on the provisions of the Constitution? The only
one of the four objectives which is directly incorporated in any
Article is “Justice, social, economic and political”, for Art. 38
provides: “The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social
order in which justice, social, economic and political, shall D
inform all the institutions of the national life.” (italics supplied)
And Art. 39 amplifies the concept of justice by providing that the
State shall in particular (that is, especially) direct its policy
towards securing the objectives set out of Clauses (a) to (f) of
that Article.”44 E
61. The Preamble to our Constitution sets the ideals and goals
which the makers of the Constitution intended to achieve. Therefore, it
is also regarded as ‘a key to open the mind of the makers’ of the
Constitution which may show the general purposes for which several
provisions in the Constitution are enacted. In Kesavananda, the Preamble F
is held to be a part of the Constitution. Further, in State of Uttar Pradesh
v. Dr. Dina Nath Shukla and Anr.: (1997) 9 SCC 662, the Preamble
is held to be a part of the Constitution and its basic structure. The Preamble
indicates the intent of the makers of the Constitution ‘to secure to all its
citizens: JUSTICE, social, economic and political…’ In V.N. Shukla’s
Constitution of India, the significance of the expressions occurring in the G
Preamble and their sequence has been highlighted in the following
words: -
43
Constituent Assembly Debates, Vol VII, p. 494.
44
H.M. Seervai, ‘Constitutional Law of India, A Critical Commentary’, 4th Edition,
(1991-reprinted 1999) at p. 280.
H
136 SUPREME COURT REPORTS [2022] 14 S.C.R.

A “….the Constitution makers sought to secure to citizens of India
justice- social, economic and political; liberty of thought, expression,
belief, faith, and worship; equality of status and of opportunity,
and to promote among the people of India, fraternity, assuring the
dignity of the individual and the unity and integrity of the nation.
Although the expressions “justice”, “liberty”, “equality”,
B
“fraternity” and “dignity of the individual” do not have fixed
contents and may not be easy to define, they are not without
content or as mere platitudes. They are given content by the
enacting provisions of the Constitution, particularly by Part III,
the Fundamental Rights; Part IV, the Directive Principles of State
C Policy; Part IVA, the Fundamental Duties; and Part XVI, Special
Provisions Relating to Certain Classes. Special attention has been
drawn to the sequence of these values in the Preamble which
establishes primacy of justice over freedom and equality and this
is what the Constitution does by making special provisions for the
weaker and excluded sections of the society, women, children
D
and minorities.”45
61.1. The word ‘economic’ is employed more than thirty times in
the Constitution. The relevant provisions in which it prominently occurs
are: the Preamble and Article 38 (economic justice); Article 39-A (legal
aid with neutrality of economic disability); Article 46 (promotion of
E economic interests of weaker sections), Articles 243-G and 243-W
(economic development to be undertaken by local bodies).
62. Our jurisprudence supports making of a provision for tackling
the disadvantages arising because of adverse economic conditions. In
fact, Article 38 of the Constitution, inter alia, provides for securing
F economic justice and for striving to minimise the inequalities in income
amongst individuals and groups of people. In Jolly George Varghese
and Anr. v. The Bank of Cochin: (1980) 2 SCC 360, adopting of
coercive recovery proceedings in execution of decree, which were
impinging upon liberty of a judgment-debtor, was not countenanced by
G this Court; and in that context, a decision of the Kerala High Court
relying upon the Universal Declaration of Human Rights, 1948 was
referred to. Article 22 of the Universal Declaration of Human Rights,
1948, on which the said decision is based, providing for social security
reads as under: -
45
‘V.N. Shukla’s Constitution of India’, Eastern Book Company, Lucknow, 13 th Edition
H (2017), pp. 4-5.
JANHIT ABHIYAN v. UNION OF INDIA 137
[DINESH MAHESHWARI, J.]

“Everyone, as a member of society, has the right to social security A
and is entitled to realization, through national effort and international
co-operation and in accordance with the organization and
resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his
personality.”
B
63. As noticed hereinbefore, in Minerva Mills, this Court distinctly
pointed out that the equality clause in the Constitution does not speak of
mere formal equality but embodies the concept of real and substantive
equality, which strikes at inequalities arising on account of vast social
and economic differentials; and that the dynamic principle of egalitarianism
furthers the concept of social and economic justice. C

63.1 A few other observations of this Court, though made in
different contexts but having a bearing on the question of economic
justice as a part of overall socio-economic justice, could also be usefully
indicated.
D
63.1.1. In Ahmedabad Municipal Corporation v. Nawab Khan
Gulab Khan and Ors.: (1997) 11 SCC 121 this Court said: -
“25.…It is to be remembered that the Preamble is the arch of the
Constitution which accords to every citizen of India socio-economic
and political justice, liberty, equality of opportunity and of status, E
fraternity, dignity of person in an integrated Bharat. The
fundamental rights and the directive principles and the Preamble
being trinity of the Constitution, the right to residence and to settle
in any part of the country is assured to every citizen. In a secular
socialist democratic republic of Bharat hierarchical caste structure,
antagonism towards diverse religious belief and faith and dialectical F
difference would be smoothened and the people would be
integrated with dignity of person only when social and economic
democracy is established under the rule of law. The difference
due to cast, sect or religion pose grave threat to affinity, equality
and fraternity. Social democracy means a way of life with dignity G
of person as a normal social intercourse with liberty, equality and
fraternity. The economic democracy implicits in itself that the
inequalities in income and inequalities in opportunities and status
should be minimised and as far as possible marginalised… “

H
138 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 63.1.2. In People’s Union for Democratic Rights and Ors.
v. Union of India and Ors.: (1982) 3 SCC 235, this Court
observed: -
“2…..Large numbers of men, women and children who constitute
the bulk of our population are today living a sub-human existence
B in conditions of abject poverty; utter grinding poverty has broken
their back and sapped their moral fibre…….The only solution for
making civil and political rights meaningful to these large sections
of society would be to remake the material conditions and
restructure the social and economic order so that they may be
able to realise the economic, social and cultural rights. There is
C indeed close relationship between civil and political rights on the
one hand and economic, social and cultural rights on the other and
this relationship is so obvious that the International Human Rights
Conference in Teheran called by the General Assembly in 1968
declared in a final proclamation:
D “Since human rights and fundamental freedoms are indivisible,
the full realisation of civil and political rights without the
enjoyment of economic, social and cultural rights is impossible.”
Of course, the task of restructuring the social and economic order
so that the social and economic rights become a meaningful reality
E for the poor and lowly sections of the community is one which
legitimately belongs to the legislature and the executive…The State
or public authority…should be…interested in ensuring basic human
rights, constitutional as well as legal, to those who are in a socially
and economically disadvantaged position…..”
64. Thus, in almost all references to real and substantive equality,
F the concept of economic justice has acquired equal focus alongside the
principles of social justice.
65. In giving effect to the rule of equality enshrined in Article 14,
the Courts have also been guided by the jurisprudence evolved by the
U.S. Supreme Court in the light of the amendments made to their
G Constitution, which were founded on economic considerations.46 This is
46
It is pertinent to quote what an American Judge of Seventh Circuit, Court of Appeals,
said about amendments to the American Constitution: “The takings clause of the Fifth
Amendment also seems founded on economic considerations – and so indeed does the
Fourth Amendment (and not just the exclusionary rule that has been grafted onto it by
the courts)”- Richard A. Posner, ‘The Constitution as an Economic Document’, 56
H George Washington Law Review 4 (1987).
JANHIT ABHIYAN v. UNION OF INDIA 139
[DINESH MAHESHWARI, J.]

to highlight that the economic backwardness of citizens can also be the A
sole ground for providing reservation by affirmative action. Any civilized
jurisdiction differentiates between haves and have-nots, in several walks
of life and more particularly, for the purpose of differential treatment by
way of affirmative action.
66. Poverty, the disadvantageous condition due to want of financial B
resources, is a phenomenon which is complex in origin as well as in its
manifestation. The 2001 explanation of poverty by the United Nations
Committee on Economic, Social and Cultural Rights says: -
“Persons living in poverty are confronted by the most severe
obstacles – physical, economic, cultural and social - to accessing C
their rights and entitlements. Consequently, they experience many
interrelated and mutually reinforcing deprivations – including
dangerous work conditions, unsafe housing, lack of nutritious food,
unequal access to justice, lack of political power and limited access
to health care – that prevents them from realising their rights and
perpetuate their poverty. Persons experiencing extreme poverty D
live in a vicious cycle of powerlessness, stigmatization,
discrimination, exclusion and material deprivation, which all
mutually reinforce one another.”47
67. The above-quoted expositions and explanations would
comprehensively inform anyone that if an egalitarian socio-economic E
order is the goal so as to make the social and economic rights a meaningful
reality, which indeed is the goal of our Constitution, the deprivations
arising from economic disadvantages, including those of discrimination
and exclusion, need to be addressed to by the State; and for that matter,
every affirmative action has the sanction of our Constitution, as noticeable F
from the frame of Preamble as also the text and texture of the provisions
contained in Part III and Part IV.
Whether Economic Criteria as Sole Basis for Affirmative
Action Violates Basic Structure
68. The principal ground of assailing the amendment in question G
in this batch of matters is that even when the State could take all the
relevant measures to deal with poverty and disadvantages arising
47
United Nations General Assembly, ‘Final draft of the guiding principles on extreme
poverty and human rights, submitted by the Special Rapporteur on extreme poverty and
human rights, Magdalena Sepulveda Carmona’, A/HRC/21/39, 18th July 2012. H
140 SUPREME COURT REPORTS [2022] 14 S.C.R.

A therefrom, so far as the affirmative action of reservation is concerned,
the same is envisaged by the Constitution only for socially and educationally
backward class of citizens; and economic disadvantage alone had never
been in contemplation for this action of reservation. We may examine
the sustainability of this line of arguments.
B 69. The expression ‘economically weaker sections of citizens’
is not a matter of mere semantics but is an expression of hard realities.
Poverty is not merely a state of stagnation but is a point of regression.
Of course, mass poverty cannot be eliminated within a short period and
it is a question of progress along a time path. The United Nations General
Assembly, by its Resolution dated 25.09.2015, set forth seventeen
C Sustainable Development Goals and the first of them is to ‘End poverty
in all its forms everywhere’. The 2030 agenda for Sustainable
Development by one hundred and ninety-three countries of the United
Nations General Assembly, including India, brought institutionalised focus
in measuring and addressing poverty in all its forms, as expounded under
D the aforesaid Goal 1. The impact of this was also reflected in the work
of the World Bank which is the custodian of the International Poverty
Line Statistics48. In this backdrop, the insertion of enabling provisions,
within the framework of the Constitution of India, to remedy the evil
effects of poverty by way of reservation, is primarily to be regarded as
a part of the frontal efforts to eradicate poverty ‘in all its forms
E everywhere’. The only question is as to whether providing for economic
criteria as the sole basis for reservation is a violation of the basic structure
of the Constitution.
70. In Kesavananda, building a Welfare State is held to be one of
the main objectives of the Constitution. In the Welfare State, public power
F becomes an instrumentality for the achievement of purposes beyond the
minimum objectives of domestic order and national defence. It is not
enough that the society be secured against internal disorder and/or
external aggression; a society can be thus secured and well-ordered but,
could be lacking in real and substantive justice for all. Equally, providing
G for affirmative action in relation to one particular segment or class may
operate constructively in the direction of meeting with and removing the
inequalities faced by that segment or class but, if another segment of
society suffers from inequalities because of one particular dominating
factor like that of poverty, the question arises as to whether the said
48
H National Multidimensional Poverty Index, Baseline report, NITI Aayog (2021).
JANHIT ABHIYAN v. UNION OF INDIA 141
[DINESH MAHESHWARI, J.]

segment could be denied of the State support by way of affirmative A
action of reservation only because of the fact that that segment is
otherwise not suffering from other disadvantages. The answer could
only be in the negative for, in the State’s efforts of ensuring all-inclusive
socio-economic justice, there cannot be competition of claims for
affirmative action based on disadvantages in the manner that one
B
disadvantaged section would seek denial of affirmative action for another
disadvantaged section.
71. With the foregoing preliminary comments, reference could be
made to the pertinent and instructive expositions of this Court in a few
of the relevant cases cited by the respective parties in support of their
respective contentions as regards the economic criteria being the sole C
basis for affirmative action, on its permissibility or impermissibility.
71.1. In M.R. Balaji, an order dated 31.07.1962 by the State of
Mysore, reserving a total of sixty-eight per cent. seats in engineering
and medical colleges and other technical institutions for various backward
classes was challenged, being violative of Article 15(4) of the Constitution. D
In the given context, it was observed by this Court as under:
P.B. Gajendragadkar, J.
“That takes us to the question about the extent of the special
provision which it would be competent to the State to make under E
Art. 15(4). Article 15(4) authorises the State to make any special
provision for the advancement of the Backward Classes of citizens
or for the Scheduled Castes and Scheduled Tribes. The learned
Advocate-General contends that this Article must be read in the
light of Art. 46, and he argues that Art. 15(4) has deliberately and
wisely placed no limitation on the State in respect of the extent of F
special provision that it should make. Art. 46 which contains a
directive principle, provides that the State shall promote with special
care the educational and economic interests of the weaker sections
of the people, and in particular, of the Scheduled Castes and the
Scheduled Tribes and shall protect them from social injustice and G
all forms of exploitation. There can be no doubt that the object
of making a special provision for the advancement of the
castes or communities, there specified, is to carry out the
directive principle enshrined in Art. 46. It is obvious that
unless the educational and economic interests of the weaker
sections of the people are promoted quickly and liberally, H
142 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the ideal of establishing social and economic equality will
not be attained, and so, there can be no doubt that Art.
15(4) authorises the State to take adequate steps to achieve
the object which it has in view. No one can dispute the
proposition that political freedom and even fundamental
rights can have very little meaning or significance for the
B
Backward Classes and the Scheduled Castes and Scheduled
Tribes unless the backwardness and inequality from which
they suffer are immediately redressed...
*** *** ***
C …. In our country where social and economic conditions
differ from State to State, it would be idle to expect absolute
uniformity of approach; but in taking executive action to
implement the policy of Art. 15(4). It is necessary for the
States to remember that the policy which is intended to be
implemented is the policy which has been declared by Art.
D 46 and the preamble of the Constitution. It is for the
attainment of social and economic justice that Art. 15(4) authorises
the making of special provisions for the advancement of the
communities there contemplated even if such provisions may be
inconsistant with the fundamental rights guranteed under Art. 15
E or 29(2). The context, therefore, requires that the executive action
taken by the State must be based on an objective approach, free
from all extraneous pressures. The said action is intended to
do social and economic justice and must be taken in a
manner that justice is and should be done.”

F (emphasis supplied)
71.2. Similarly, in R. Chitralekha (supra), this Court upheld an
order of the Government that defined ‘backwardness’ without any
reference to caste, using other criteria such as occupation, income and
other economic factors. The Court ruled that while caste may be relevant
G to determine backwardness, the mere exclusion of caste does not impair
the classification if it satisfies other tests. The relevant observations of
this Court read as under: -
K. Subba Rao, J.
“The Constitution of India promises Justice, social, economic and
H political; and equality of status and of opportunity, among others.
JANHIT ABHIYAN v. UNION OF INDIA 143
[DINESH MAHESHWARI, J.]

Under Art. 46, one of the Articles in Part IV headed “Directive A
Principles of State Policy”, the State shall promote with special
care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation….”
B
71.3. Furthermore, in Janki Prasad Parimoo and Ors. v. State
of J&K and Ors.: (1973) 1 SCC 420, the teachers in the Secondary
High School of the State, who comprised a large portion of Kashmiri
Pandits, found that in spite of their seniority, promotions to the gazetted
posts in the service were being made on communal basis and not in
accordance with the Jammu and Kashmir Civil Services (Classification, C
Control and Appeals) Rules, 1969. In this matter, this Court held that
mere poverty cannot be a consideration for the test of backwardness
for the purpose of enabling reservations by observing as follows: -
D.G. Palekar, J.
D
“24. It is not merely the educational backwardness or the social
backwardness which makes a class of citizens backward; the
class identified as a class as above must be both educationally
and socially backward. In India social and educational
backwardness is further associated with economic
backwordness and it is observed in Balaji’s case E
(supra) referred to above that backwardness, socially and
educationally, is ultimately and primarily due to proverty.
But if proverty is the exclusive test, a very large proportion of the
population in India would have to be regarded as socially and
educationally backward, and if reservations are made only on the F
ground of economic considerations, an untenable situation may
arise even in sectors which are recognised as socially and
educationally advanced there are large pockets of poverty. In this
country except for a small percentage of the population the people
are generally poor — some being more poor, others less poor.
Therefore, when a social investigator tries to identify socially and G
educationally backward classes, he may do it with confidence
that they are bound to be poor. His chief concern is, therefore,
to determine whether the class or group is socially and
educationally backward. Though the two words ‘socially’
and ‘educationally’ are used cumulatively for the purpose H
144 SUPREME COURT REPORTS [2022] 14 S.C.R.

A of describing the backward class, one may find that if a class
as a whole is educationally advanced itis generally also
socially advanced because of the reformative effect of
education on that class. The words “advanced” and “backward”
are only relative terms — there being several layers or strata of
classes, hovering between “advanced” and “backward”, and the
B
difficult task is which class can be recognised out of these several
layers as been socially and educationally backward.”
71.4. In N.M. Thomas, provisions of the Kerala State and
Subordinate Services Rules, 1958 were in question, where Rule 13A
required every employee, to be promoted in subordinate services, to
C clear a test within two years of promotion, but it gave SC/ST candidates
an extension of two more years. Later, Rule 13AA was added that enabled
the State Government to grant more time to SC/ST candidates to pass
the test for promotional posts apart from the initial four years. The main
issue was as to whether the said Rule 13-AA was offending Article
D 16(1) and 16(2) of the Constitution. In this regard, the following
observations of this Court become relevant with emphasis on economic
criteria: -
A.N. Ray, C.J.
“44. Our Constitution aims at equality of status and opportunity
E for all citizens including those who are socially, economically and
educationally backward. The claims of members of backward
classes require adequate representation in legislative and executive
bodies. If members of scheduled castes and tribes, who are said
by this Court to be backward classes, can maintain minimum
F necessary requirement of administrative efficiency, not only
representation but also preference may be given to them to enforce
equality and to eliminate inequality. Article 15(4) and 16(4) bring
out the position of backward classes to merit equality. Special
provisions are made for the advancement of backward classes
and reservations of appointments and posts for them to secure
G adequate representation. These provisions will bring out the content
of equality guaranteed by Articles 14, 15(1) and 16(1). The basic
concept equality is equality of opportunity for appointment.
Preferential treatment for members of backward classes
with due regard to administrative efficiency alone can mean
H equality of opportunity for all citizens. Equality under Article
JANHIT ABHIYAN v. UNION OF INDIA 145
[DINESH MAHESHWARI, J.]

16 could not have a different content from equality under A
Article 14. Equality of opportunity for unequals can only
mean aggravation of inequality. Equality of opportunity
admits discrimination with reason and prohibits
discrimination without reason. Discrimination with reasons
means rational classification for differential treatment having
B
nexus to the constitutionally permissible object.
Preferential representation for the backward classes in
services with due regard to administrative efficiency is
permissible object and backward classes are a rational
classification recognised by our Constitution. Therefore,
differential treatment in standards of selection are within C
the concept of equality.
K.K. Mathew, J.
64. It would follow that if we want to give equality of
opportunity for employment to the members of the
scheduled castes and scheduled tribes, we will have to take D
note of their social, educational and economic environment.
Not only is the directive principle embodied in Article 46
binding on the law-maker as ordinarily understood but it
should equally inform and illuminate the approach of the
Court when it makes a decision as the Court also is ‘State’ E
within the meaning of Article 12 and makes law even though
“interstitially from the molar to the molecular”. I have
explained at some length the reason why Court is ‘State’ under
Article 12 in my judgment in His Holiness Kesavananda Bharati
Sripadagalavaru v. State of Kerala.
F
*** *** ***
67. Today, the political theory which acknowledges the obligation
of Government under Part IV of the Constitution to provide jobs,
medical care, old age pension, etc., extends to human rights and
imposes an affirmative obligation to promote equality and liberty. G
The force of the idea of a State with obligation to help the weaker
sections of its members seems to have increasing influence in
constitutional law. The idea finds expression in a number of
cases in America involving social discrimination and also
in the decisions requiring the State to offset the effects of
poverty by providing counsel, transcript of appeal, expert H
146 SUPREME COURT REPORTS [2022] 14 S.C.R.

A witnesses, etc. Today, the sense that Government has
affirmative responsibility for elimination of inequalities,
social, economic or otherwise, is one of the dominant forces
in constitutional law. While special concessions for the
underprivileged have been easily permitted, they have not
traditionally been required. Decisions in the areas of criminal
B
procedure, voting rights and education in America suggest that
the traditional approach may not be completely adequate. In these
areas, the inquiry whether equality has been achieved no longer
ends with numerical equality; rather the equality clause has been
held to require resort to a standard of proportional equality which
C requires the State, in framing legislation, to take into account the
private inequalities of wealth, of education and other circumstances.
*** *** ***
78. I agree that Article 16(4) is capable of being interpreted
as an exception to Article 16(1) if the equality of opportunity
D visualized in Article 16(1) is a sterile one, geared to the
concept of numerical equality which takes no account of
the social, economic, educational background of the
members of scheduled castes and scheduled tribes. If
equality of opportunity guaranteed under Article 16(1)
E means effective material equality, then Article 16(4) is not
an exception to Article 16(1). It is only an emphatic way of
putting the extent to which equality of opportunity could be carried
viz., even upto the point of making reservation.
M.H. Beg, J.
F 93. When citizens are already employed in a particular grade, as
government servants, considerations relating to the sources from
which they are drawn lose much of their importance. As public
servants of that grade they could, quite reasonably and logically,
be said to belong to one class, at least for purposes of promotion
G in public service for which there ought to be a real “equality of
opportunity”, if we are to avoid heart burning or a sense of injustice
or frustration in this class. Neither as members of this single
class nor for purposes of the equality of opportunity which
is to be afforded to this class does the fact that some of
them are also members of an economically and socially
H backward class continue to be material, or, strictly speaking,
JANHIT ABHIYAN v. UNION OF INDIA 147
[DINESH MAHESHWARI, J.]

even relevant. Their entry, into the same relevant class as A
others must be deemed to indicate that they no longer suffer
from the handicaps of a backward class. For purposes of
government service the source from which they are drawn should
cease to matter. As government servants they would, strictly
speaking, form only one class for purposes of promotion.
B
94. ….The specified and express mode of realization of these
objects contained in Article 16(4), must exclude the possibility of
other methods which could be implied and read into Article 16(1)
for securing them in this field, one could think of so many other
legally permissible and possibly better, or, at least more direct,
methods of removing socio-economic inequalities by C
appropriate legislative action in other fields left open and
unoccupied for purposes of discrimination in favour of the
backward.
95. ….Article 16(4) was designed to reconcile the conflicting
pulls of Article 16(1), representing the dynamics of justice, D
conceived of as equality in conditions under which
candidates actually compete for posts in government
service, and of Articles 46 and 335, embodying the duties
of the State to promote the interests of the economically,
educationally, and socially backward so as to release them E
from the clutches of social injustice. These encroachments
on the field of Article 16(1) can only be permitted to the
extent they are warranted by Article 16(4). To read broader
concepts of social justice and equality into Article 16(1)
itself may stultify this provision itself and make Article 16(4)
otiose. F

V.R. Krishna Iyer, J.
120. The domination of a class generates, after a long night
of sleep or stupor of the dominated, an angry awakening
and protestant resistance and this conflict between thesis, G
i.e. the status quo, and antithesis, i.e., the hunger for happy
equality, propels new forces of synthesis, i.e., an equitable
constitutional order or just society. Our founding fathers,
possessed of spiritual insight and influenced by the
materialist interpretation of history, forestalled such social
pressures and pre-empted such economic upsurges and H
148 SUPREME COURT REPORTS [2022] 14 S.C.R.

A gave us a trinity of commitments — justice: social,
economic and political. The ‘equality articles’ are part of this
scheme. My proposition is, given two alternative understandings
of the relevant sub-articles [Article 16(1) and (2)], the Court must
so interpret the language as to remove that ugly ‘inferiority’
complex which has done genetic damage to Indian polity and
B
thereby suppress the malady and advance the remedy, informed
by sociology and social anthropology. My touchstone is that
functional democracy postulates participation by all sections of
the people and fair representation in administration is an index of
such participation.
C *** *** ***
126. … The Directive Principles of State Policy, fundamental
in the governance of the country, enjoin on the State the
promotion

D with special care the educational and economic interests
of the weaker sections of the people, and, in particular,
of the scheduled castes and the scheduled tribes, ... and
protect them from social injustice.
To neglect this obligation is to play truant with Article 46.
E Undoubtedly, economic interests of a group — as also social
justice to it — are tied up with its place in the services
under the State. Our history, unlike that of some other countries,
has found a zealous pursuit of government jobs as a mark of share
in State power and economic position. Moreover, the biggest —
and expanding, with considerable State undertakings, — employer
F is Government, Central and State, so much so appointments in the
public services matter increasingly in the prosperity of backward
segments. The scheduled castes and scheduled tribes have
earned special mention in Article 46 and other ‘weaker
sections’, in this context, means not every ‘backward class’
G but those dismally depressed categories comparable
economically and educationally to scheduled castes and
scheduled tribes. To widen the vent is to vitiate the equal
treatment which belongs to all citizens, many of whom are
below the poverty line. Realism reveals that politically
powerful castes may try to break into equality, using the
H masterkey of backwardness but, leaving aside Article 16(4),
JANHIT ABHIYAN v. UNION OF INDIA 149
[DINESH MAHESHWARI, J.]

the ramparts of Article 16(1) and (2) will resist such oblique A
infiltration.
S. Murtaza Fazal Ali, J.
166. Article 46 of the Constitution runs thus:
The State shall promote with special care the educational and B
economic interests of the weaker sections of the people, and,
in particular, of the Scheduled Castes and the Scheduled Tribes,
and shall protect them from social injustice and all forms of
exploitation.
Properly analysed this article contains a mandate on the C
State to take special care for the educational and economic
interests of the weaker sections of the people and as
illustrations of the persons who constitute the weaker
sections the provision expressly mentions the scheduled
castes and the scheduled tribes.”
D
(emphasis supplied)
71.5. In M/s Shantistar Builders v. Narayan K. Totame and
Ors.: (1990) 1 SCC 520, the Government of Maharashtra exempted
certain excess land from the provisions of the Urban Land (Ceiling and
Regulation) Act, 1976 for the purpose of constructing dwelling houses
E
under a scheme for the weaker sections of the society on the conditions
specified in the order. In the given context, this Court observed as
follows: -
Ranganath Misra, J.
“12. Members of the Scheduled Castes and Scheduled F
Tribes have ordinarily been accepted as belonging to the
weaker sections. Attempt to bring in the test of economic
means has often been tried but no guideline has been
evolved. Undoubtedly, apart from the members of the
Scheduled Castes and Scheduled Tribes, there would be
millions of other citizens who would also belong to the G
weaker sections. The Constitution-makers intended all
citizens of India belonging to the weaker sections to be
benefited when Article 46 was incorporated in the
Constitution. Parliament in adopting the same language in Section
21 of the Act also intended people of all weaker sections to have H
150 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the advantage. It is, therefore, appropriate that the Central
Government should come forward with an appropriate guideline
to indicate who would be included within weaker sections of the
society.”
(emphasis supplied)
B 71.6. In Indra Sawhney, the following observations were made
in regard to the myriad features of backwardness including the economic
backwardness: -
S. Ratnavael Pandian, J.

C “44. The word ‘backward’ is very wide bringing within its
fold the social backwardness, educational backwardness,
economic backwardness, political backwardness and even
physical backwardness.
*** *** ***
D 116. The composition and terms of reference of the Second
Backward Classes Commission show that the Commission
was appointed to investigate the conditions of socially and
educationally backward classes within the territory of India
but not the socially, economically and educationally
backward classes. The earlier OM issued on August 13, 1990
E
reads that with a view to providing certain weightage to socially
and educationally backward classes in the services of the Union
and their Public Undertakings, as recommended by the
Commission, the orders are issued in the terms mentioned therein.
The said OM also explains that “the SEBC would comprise in the
F first phase the castes and communities which are common to
both the lists, in the report of the Commission and the State
Governments’ list”. In addition it is said that a list of such castes/
communities is being issued separately. The subsequent amended
OM dated September 25, 1991 states that in order to enable the
‘poorer sections’ of the SEBCs to receive the benefits of
G
reservation on a preferential basis and to provide reservation for
other economically backward sections of the people not covered
by any of the existing schemes of reservation, the Government
have decided to amend the earlier Memorandum. Thus this
amended OM firstly speaks of the ‘poorer sections’ of the
H SEBCs and secondly about the economically backward
JANHIT ABHIYAN v. UNION OF INDIA 151
[DINESH MAHESHWARI, J.]

sections of the people not covered by any of the existing A
schemes of reservation. However, both the OMs while
referring to the SEBCs, do not include the ‘economic
backwardness’ of that class along with ‘social and
educational backwardness’. By the amended OM, the
Government while providing reservation for the backward
B
sections of the people not covered by the existing schemes
of reservation meant for SEBCs, classifies that section of
the people as ‘economically backward’, that is to say that
those backward sections of the people are to be identified
only by their economic backwardness and not by the test of
social and educational backwardness, evidently for the C
reason that they are all socially and educationally well
advanced.
117. Coming to Article 16(4) the words ‘backward class’ are used
with a wider connotation and without any qualification or
explanation. Therefore, it must be construed in the wider D
perspective. Though the OMs speak of social and educational
backwardness of a class, the primary consideration in
identifying a class and in ascertaining the inadequate
representation of that class in the services under the State
under Article 16(4) is the social backwardness which results
in educational backwardness, both of which culminate in E
economic backwardness. The degree of importance to be
attached to social backwardness is much more than the
importance to be given to the educational backwardness
and the economic backwardness, because in identifying and
classifying a section of people as a backward class within F
the meaning of Article 16(4)for the reservation of
appointments or posts, the ‘social backwardness’ plays a
predominant role.”
Sawant, J.
482. Economic backwardness is the bane of the majority of G
the people in this country. There are poor sections in all
the castes and communities. Poverty runs across all
barriers. The nature and degree of economic backwardness
and its causes and effects, however, vary from section to
section of the populace. Even the poor among the higher H
152 SUPREME COURT REPORTS [2022] 14 S.C.R.

A castes are socially as superior to the lower castes as the
rich among the higher castes. Their economic
backwardness is not on account of social backwardness.
The educational backwardness of some individuals among
them may be on account of their poverty in which case
economic props alone may enable them to gain an equal
B
capacity to compete with others. On the other hand, those
who are socially backward such as the lower castes or
occupational groups, are also educationally backward on
account of their social backwardness, their economic
backwardness being the consequence of both their social
C and educational backwardness. Their educational
backwardness is not on account of their economic
backwardness alone. It is mainly on account of their social
backwardness. Hence mere economic aid will not enable
them to compete with others and particularly with those
who are socially advanced. Their social backwardness is
D
the cause and not the consequence either of their economic
or educational backwardness. It is necessary to bear this
vital distinction in mind to understand the true import of
the expression “backward class of citizens” in Article 16(4).
If it is mere educational backwardness or mere economic
E backwardness that was intended to be specially catered to,
there was no need to make a provision for reservation in
employment in the services under the State. That could be
taken care of under Articles 15(4), 38 and 46. The provision
for reservation in appointments under Article 16(4) is not
aimed at economic upliftment or alleviation of poverty.
F
Article 16(4) is specifically designed to give a due share in
the State power to those who have remained out of it mainly
on account of their social and, therefore, educational and
economic backwardness. The backwardness that is
contemplated by Article 16(4) is the backwardness which is both
G the cause and the consequence of non-representation in the
administration of the country. All other kinds of backwardness
are irrelevant for the purpose of the said article. Further, the
backwardness has to be a backwardness of the whole class and
not of some individuals belonging to the class, which individuals
may be economically or educationally backward, but the class to
H
JANHIT ABHIYAN v. UNION OF INDIA 153
[DINESH MAHESHWARI, J.]

which they belong may be socially forward and adequately or A
even more than adequately represented in the services. Since the
reservation under Article 16(4) is not for the individuals but to a
class which must be both backward and inadequately represented
in the services, such individuals would not be beneficiaries of
reservation under Article 16(4). It is further difficult to come across
B
a “class” (not individuals) which is socially and educationally
advanced but is economically backward or which is not adequately
represented in the services of the State on account of its economic
backwardness. Hence, mere economic or mere educational
backwardness which is not the result of social backwardness,
cannot be a criterion of backwardness for Article 16(4). C
*** *** ***
492. While discussing Question No. I, it has been pointed
out that so far as “backward classes” are concerned, clause
(4) of Article 16 is exhaustive of reservations meant for
them. It has further been pointed out under Question No. D
II that the only “backward class” for which reservations
are provided under the said clause is the socially backward
class whose educational and economic backwardness is on
account of the social backwardness. A class which is not
socially and educationally backward though economically E
or even educationally backward is not a backward class for
the purposes of the said clause. What follows from these two
conclusions is that reservations in posts cannot be made in favour
of any other class under the said clause. Further, the purpose of
keeping reservations even in favour of the socially and
educationally backward classes under clause (4), is not to alleviate F
poverty but to give it an adequate share in power.
B.P. Jeevan Reddy, J.
799. It follows from the discussion under Question No. 3
that a backward class cannot be determined only and G
exclusively with reference to economic criterion. It may be
a consideration or basis along with and in addition to social
backwardness, but it can never be the sole criterion. This
is the view uniformly taken by this Court and we respectfully
agree with the same.
H
*** *** ***
154 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 843. While dealing with Question No. 3(d), we held that
exclusion of ‘creamy layer’ must be on the basis of social
advancement (such advancement as renders them misfits
in the backward classes) and not on the basis of mere
economic criteria. At the same time, we held that income
or the extent of property held by a person can be taken as
B
a measure of social advancement and on that basis ‘creamy
layer’ of a given caste/community/occupational group can
be excluded to arrive at a true backward class. Under
Question No. 5, we held that it is not impermissible for the State
to categorise backward classes into backward and more backward
C on the basis of their relative social backwardness. We had also
given the illustration of two occupational groups, viz., goldsmiths
and vaddes (traditional stone-cutters in Andhra Pradesh); both
are included within ‘other backward classes’. If these two groups
are lumped together and a common reservation is made, the
goldsmiths would walk away with all the vacancies leaving none
D
for vaddes. From the said point of view, it was observed, such
classification among the designated backwards classes may indeed
serve to help the more backward among them to get their due.
But the question now is whether clause (i) of the Office
Memorandum dated September 25, 1991 is sustainable in law.
E The said clause provides for preference in favour of “poorer
sections” of the backward classes over other members of the
backward classes. On first impression, it may appear that
backward classes are classified into two sub-groups on the basis
of economic criteria alone and a preference provided in favour of
the poorer sections of the backward classes. In our considered
F
opinion, however, such an interpretation would not be consistent
with context in which the said expression is used and the spirit
underlying the clause nor would it further the objective it seeks to
achieve. The object of the clause is to provide a preference in
favour of more backward among the “socially and educationally
G backward classes”. In other words, the expression ‘poorer
sections’ was meant to refer to those who are socially and
economically more backward. The use of the word ‘poorer’, in
the context, is meant only as a measure of social backwardness.
(Of course, the Government is yet to notify which classes among
the designated backward classes are more socially backward,
H
JANHIT ABHIYAN v. UNION OF INDIA 155
[DINESH MAHESHWARI, J.]

i.e., ‘poorer sections’). Understood in this sense, the said A
classification is not and cannot be termed as invalid either
constitutionally speaking or in law. The next question that arises
is: what is the meaning and context of the expression ‘preference’?
Having regard to the fact the backward classes are sought to be
divided into two sub-categories, viz., backward and more
B
backward, the expression ‘preference’ must be read down to mean
an equitable apportionment of the vacancies reserved (for
backward classes) among them. The object evidently could not
have been to deprive the ‘backward’ altogether from benefit of
reservation, which could be the result if word ‘preference’ is read
literally — if the ‘more backward’ take away all the available C
vacancies/posts reserved for OBCs, none would remain for
‘backward’ among the OBCs. It is for this reason that we are
inclined to read down the expression to mean an equitable
apportionment. This, in our opinion, is the proper and reasonable
way of understanding the expression ‘preference’ in the context
D
in which it occurs. By giving the above interpretation, we would
be effectuating the underlying purpose and the true intention behind
the clause.”
(emphasis supplied)
71.7. The relevant observations in M. Nagaraj would read as E
under: -
S.H. Kapadia, J.
“120. At this stage, one aspect needs to be mentioned. Social
justice is concerned with the distribution of benefits and burdens.
The basis of distribution is the area of conflict between rights, F
needs and means. These three criteria can be put under two
concepts of equality, namely, “formal equality” and “proportional
equality”. Formal equality means that law treats everyone equal.
Concept of egalitarian equality is the concept of proportional
equality and it expects the States to take affirmative action in G
favour of disadvantaged sections of society within the framework
of democratic polity. In Indra Sawhney all the Judges except
Pandian, J. held that the “means test” should be adopted to exclude
the creamy layer from the protected group earmarked for
reservation. In Indra Sawhney this Court has, therefore,
accepted caste as a determinant of backwardness and yet H
156 SUPREME COURT REPORTS [2022] 14 S.C.R.

A it has struck a balance with the principle of secularism which
is the basic feature of the Constitution by bringing in the
concept of creamy layer. Views have often been expressed
in this Court that caste should not be the determinant of
backwardness and that the economic criteria alone should
be the determinant of backwardness. As stated above, we
B
are bound by the decision in Indra Sawhney. The question as
to the “determinant” of backwardness cannot be gone into by us
in view of the binding decision. In addition to the above
requirements this Court in Indra Sawhney has evolved numerical
benchmarks like ceiling limit of 50% based on post-specific roster
C coupled with the concept of replacement to provide immunity
against the charge of discrimination.”
(emphasis supplied)
72. On a contextual reading, it could reasonably be culled out that
the observations, wherever occurring in the decisions of this Court, to
D the effect that reservation cannot be availed only on economic criteria,
were to convey the principle that to avail the benefit of this affirmative
action under Articles 15(4) and/or 15(5) and/or 16(4), as the case may
be, the class concerned ought to be carrying some other disadvantage
too and not the economic disadvantage alone. The said decisions cannot
E be read to mean that if any class or section other than those covered by
Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage
only due to economic conditions, the State can never take affirmative
action qua that class or section.
73. In view of the principles discernible from the decisions aforesaid
F as also the background aspects, including the avowed objective of socio-
economic justice in the Constitution, the observations of this Court in the
past decisions that reservations cannot be claimed only on the economic
criteria, apply only to class or classes covered by or seeking coverage
under Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court has
not put a blanket ban on providing reservation for other sections who are
G disadvantaged due to economic conditions.
74. On behalf of the petitioners, much emphasis has been laid on
the phraseology of Article 46 of the Constitution of India; and it has been
suggested that the measures contemplated therein are supposed to be
taken in favour of SCs/STs and such other weaker sections who are
H
JANHIT ABHIYAN v. UNION OF INDIA 157
[DINESH MAHESHWARI, J.]

“similarly circumstanced to SCs/STs”. The submission has been that A
this provision cannot be invoked for reservation in favour of any
economically weaker section that is not carrying other attributes which
could place it at par with, or akin to, SCs/STs. This line of arguments is
premised on the passages occurring in the Statement of Objects and
Reasons for introduction of the Constitution (One Hundred and Twenty-
B
fourth Amendment) Bill, 2019 in the Parliament which led to the
Constitution (One Hundred and Third Amendment) Act, 2019 but, is
based on too narrow and unacceptably restricted reading of the text of
Article 46 while totally missing on its texture; and suffers from at least
three major shortcomings.
74.1. The first and the apparent shortcoming is that this line of C
arguments not only goes off at a tangent but also misses out the important
principle of “Distributive Justice”, which is a bedrock of the provisions
like Article 46 as also Articles 38 and 39 of the Constitution of India. The
principle of distributive justice has been explained and put into effect by
this Court in the case of Lingappa Pochanna Appelwar v. State of D
Maharashtra and Anr.: (1985) 1 SCC 479 thus: -
“16. …… Legislators, Judges and administrators are now familiar
with the concept of distributive justice. Our Constitution permits
and even directs the State to administer what may be termed
‘distributive justice’. The concept of distributive justice in E
the sphere of law-making connotes, inter alia, the removal
of economic inequalities and rectifying the injustice resulting
from dealings or transactions between unequals in society.
Law should be used as an instrument of distributive justice to
achieve a fair division of wealth among the members of society
based upon the principle: “From each according to his capacity, to F
each according to his needs”. Distributive justice comprehends
more than achieving lessening of inequalities by differential
taxation, giving debt relief or distribution of property owned by
one to many who have none by imposing ceiling on holdings, both
agricultural and urban, or by direct regulation of contractual G
transactions by forbidding certain transactions and, perhaps, by
requiring others. It also means that those who have been deprived
of their properties by unconscionable bargains should be restored
their property. All such laws may take the form of forced
redistribution of wealth as a means of achieving a fair division of
H
158 SUPREME COURT REPORTS [2022] 14 S.C.R.

A material resources among the members of society or there may
be legislative control of unfair agreements.”
(emphasis supplied)
74.1.1. Of course, the aforesaid decision was rendered in the
context of the Maharashtra Restoration of Lands to Scheduled Tribes
B Act, 1974, which provides for annulment of transfer of agricultural land
from tribals to non-tribals and restoration of possession to tribals but, the
principle stated therein, being related to scheme of the Constitution, makes
it clear that the mandate of the Constitution to the State is to administer
distributive justice; and in the law-making process, the concept of
C distributive justice connotes, inter alia, the removal of economic
inequalities. There could be different methods of distributive justice; and
it comprehends more than merely achieving the lessening of inequalities
by tax or debt relief measures or by regulation of contractual transactions
or redistribution of wealth, etc. This discussion need not be expanded on
all other means of distributive justice but, it is more than evident that the
D philosophy of distributive justice is of wide amplitude which, inter alia,
reaches to the requirements of removing economic inequalities; and then,
it is not confined to one class or a few classes of the disadvantaged
citizens. In other words, the wide spectrum of distributive justice mandates
promotion of educational and economic interests of all the weaker
E sections, in minimizing the inequalities in income as also providing adequate
means of livelihood to the citizens. In this commitment, leaving one class
of citizens to struggle because of inequalities in income and want of
adequate means of livelihood may not serve the ultimate goal of securing
all-inclusive socio-economic justice.

F 74.1.2. In fact, the argument that the State may adopt any poverty
alleviation measure but cannot provide reservation for EWS by way of
affirmative action proceeds on the assumption that the affirmative action
of reservation in our constitutional scheme is itself reserved only for
SEBCs/OBCs/SCs/STs in view of the existing text of Articles 15(4),
15(5) and 16(4) of the Constitution. Such an assumption is neither valid
G nor compatible with our constitutional scheme. This line of argument is
wanting on the fundamental constitutional objectives, with the promise
of securing ‘JUSTICE, social, economic and political’ for ‘all’ the
citizens; and to promote FRATERNITY among them ‘all’. Thus viewed,
the challenge to the amendment in question fails on the principle of
H distributive justice.
JANHIT ABHIYAN v. UNION OF INDIA 159
[DINESH MAHESHWARI, J.]

74.2. Secondly, this argument concerning Article 46 crumbles down A
on the basic rules of interpretation of the text of a constitutional provision.
74.2.1. It remains trite that a Constitution, unlike other enactments,
is intended to be an enduring instrument. The great generalities of the
Constitution have a content and a significance that vary from age to
age.49 The Constitution is recognised as a living organic thing to be B
required to meet the current needs and requirements. Ergo, the provisions
of the Constitution cannot be put in a straitjacket. This Court, in the case
of Association of Unified Tele Services Providers and Ors. v. Union
of India and Ors.: (2014) 6 SCC 110, with reference to a previous
decision in the case of People’s Union for Civil Liberties (PUCL) and
Anr. v. Union of India and Anr.: (2003) 4 SCC 399 has pithily C
explained the principles in the following terms (of course, in the context
of Article 149):-
“43. The Constitution, as it is often said “is a living organic thing
and must be applied to meet the current needs and requirements”.
The Constitution, therefore, is not bound to be understood D
or accepted to the original understanding of the
constitutional economics. Parliamentary Debates, referred to
by service providers may not be the sole criteria to be adopted by
a court while examining the meaning and content of Article 149,
since its content and significance has to vary from age to age. E
Fundamental rights enunciated in the Constitution itself,
as held by this Court in People’s Union For Civil
Liberties v. Union of India, have no fixed content, most of
them are empty vessels into which each generation has to
pour its content in the light of its experience.”
F
(emphasis supplied)
74.2.2. Therefore, it cannot be said that the eclectic expression
“other weaker sections” is not to be given widest possible meaning or
that this expression refers only to those weaker sections who are similarly
circumstanced to SCs and STs. G
74.2.3. Though, the text and the order of expressions used in the
body of Article 46 have been repeatedly recounted on behalf of the
petitioners to emphasise on the arguments based on ejusdem generis
49
Benjamin N. Cardozo, ‘The Nature of the Judicial Process’, Yale University Press
(1921), p. 17. H
160 SUPREME COURT REPORTS [2022] 14 S.C.R.

A principle of interpretation but, as aforesaid, that principle does not fit in
the interpretation of an organic thing like the Constitution. This apart,
when traversing through the principles of interpretation, it could also be
noticed that in case of any doubt, the heading or sub-heading of a provision
could also be referred to as an internal aid in construing the provision,
while not cutting down the wide application of clear words used in the
B
provision.50 What is interesting to notice is that in the heading of Article
46, the chronology of the description of target groups for promotion of
educational and economic interests is stated in reverse order than the
contents of the provision. The heading signifies ‘Promotion of
educational and economic interests of Scheduled Castes, Scheduled
C Tribes and other weaker sections’ whereas the contents of the main
provision are framed with the sentence ‘interest of the weaker sections
of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes’. A simple reading of the heading together with the
contents would make it clear that the broader expression “other weaker
sections” in Article 46 is disjointed from the particular weaker sections
D
(Schedule Castes and Scheduled Tribe); and is not confined to only those
sections who are similarly circumstanced to SCs and STs.
74.3. Apart from the aforesaid two major shortcomings in the
argument suggesting restricted operation of the measures contemplated
by Article 46, the other shortcoming rather knocks the bottom out of this
E argument when the same is examined in the context of a constitutional
amendment. The fundamental flaw in this argument is that even if the
Statement of Objects and Reasons for the amendment in question refers
to Article 46, such a reference is only to one part of DPSP to indicate
the constitutional objective which is sought to be addressed to, or fulfilled.
F However, the amendment in question could be correlated with any other
provision of the Constitution, including the Preamble as well as Articles
38 and 39. Moreover, it is not the requirement of our constitutional scheme
that an amendment to the Constitution has to be based on some existing
provision in DPSP. In fact, an amendment to the Constitution (of course,
within the bounds of basic structure) could be made even without any
G corresponding provision in DPSP.
75. In the aforesaid view of matter, there appears no reason to
analyse another unacceptable line of arguments adopted by the petitioners
that the amendment in question provides for compensatory discrimination
50
Vide M/s Frick India Ltd. v. Union of India and Ors. : (1990) 1 SCC 400.
H
JANHIT ABHIYAN v. UNION OF INDIA 161
[DINESH MAHESHWARI, J.]

in favour of the so-called forward class/caste. Suffice it to observe that A
the amendment in question is essentially related to the requirements of
those economically weaker sections who have hitherto not been given
the benefit of such an affirmative action (particularly of reservation),
which was accorded to the other class/classes of citizens namely, the
SEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWS
B
reservation from the standpoint of backward class versus forward class
is not in accord with the very permissibility of compensatory discrimination
towards the goal of real and substantive justice for all.
76. There has been another ground of challenge that if at all
reservation on economic criteria is to be given, keeping the SEBCs/
OBCs/SCs/STs out of this affirmative action is directly at conflict with C
the constitutional scheme and hits the Equality Code. This line of arguments
shall be dealt with in the next segment. Enough to say for the present
purpose that the challenge to the amendment in question on the ground
that though the State could take all the relevant measures to deal with
poverty and the disadvantages arising therefrom but, the affirmative D
action of reservation is envisaged by the Constitution only for socially
and educationally backward class of citizens; and economic disadvantage
alone had never been in contemplation for this action of reservation, is
required to be rejected. In any case, any legitimate effort of the State
towards all-inclusive socio-economic justice, by way of affirmative action
of reservation in support of economically weaker sections of citizens, E
who had otherwise not been given the benefit of this affirmative action,
cannot be lightly interfered with by the Court.
EWS Reservation Not Availing to Certain Classes: Whether
Violates Basic Structure
F
77. The discussion aforesaid takes us to the next major area of
discord in these matters where the aggrieved petitioners state that the
exclusion of SEBCs/OBCs/SCs/STs from the benefit of EWS reservation
violates the basic framework of the Constitution. While entering into
this point for determination, worthwhile it would be to recapture the
salient features of the provisions introduced by the 103rd Amendment. G
77.1. As noticed, the amendment in question introduces clause
(6) to both the Articles, i.e., 15 and 16. Clause (6) of Article 15 starts
with a non obstante preposition, making it operative notwithstanding
anything otherwise contained in other clauses of Article 15 or Article
19(1)(g) or Article 29(2). Sub-clause (a) of clause (6) of Article 15 enables H
162 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the State to make any special provision for the advancement of any
economically weaker sections of citizens and sub-clause (b) thereof
provides for making a maximum of ten per cent. reservation in the matter
of admission to educational institutions, public or private, barring minority
educational institutions. Similarly, clause (6) of Article 16 also starts with
a non obstante preposition, making it operative notwithstanding anything
B
otherwise contained in other clauses of that Article and enables the State
to make any provision for the reservation of appointments or posts in
favour of any economically weaker sections of citizens to a maximum
of ten per cent. As per the Explanation to clause (6) of Article 15,
“economically weaker sections” for the purpose of both these Articles
C 15 and 16 shall be such as to be notified by the State from time to time
on the basis of family income and other indicators of economic
disadvantage. However, when both these clauses exclude from their
ambit those classes who are already covered under Articles 15(4), 15(5)
and 16(4), that is to say, the benefits under these amended provisions do
not avail to Scheduled Castes, Scheduled Tribes, and Other Backward
D
Classes (Non-creamy layer), the ground of challenge is that keeping the
socially and educationally backward classes out of Articles 15(6) and
16(6) is directly at conflict with the constitutional scheme and is of
inexplicably hostile discrimination. Rather, according to the petitioners,
the classes covered by Articles 15(4), 15(5) and 16(4) are comprising of
E the poorest of the poor and hence, keeping them out of the benefit of
EWS reservation is an exercise conceptionally at conflict with the
constitutional norms and principles.
77.2. At the first blush, the arguments made in this regard appear
to be having some substance because it cannot be denied that the classes
F covered by Articles 15(4), 15(5) and 16(4) would also be comprising of
poor persons within. However, a little pause and a closer look makes it
clear that the grievance of the petitioners because of this exclusion
remains entirely untenable and the challenge to the amendment in question
remains wholly unsustainable. As noticed infra, there is a definite logic
in this exclusion; rather, this exclusion is inevitable for the true operation
G and effect of the scheme of EWS reservation.
78. It is true that in identifying the classes of persons for the
purpose of Articles 15(4), 15(5) and 16(4) of the Constitution i.e., Other
Backward Classes (Non-creamy layer), Scheduled Castes and Scheduled
Tribes, the social and educational backwardness predominantly figures
H
JANHIT ABHIYAN v. UNION OF INDIA 163
[DINESH MAHESHWARI, J.]

but then, it needs no great deal of research to demonstrate that the A
poverty too is thickly associated with these factors.
78.1. In fact, poverty was recognised as the primary source of
social and educational backwardness in Vasanth Kumar, but in the
following words: -
“80. Class poverty, not individual poverty, is therefore the B
primary test. Other ancillary tests are the way of life, the standard
of living, the place in the social hierarchy, the habits and customs,
etc. etc. Despite individual exceptions, it may be possible
and easy to identify social backwardness with reference to
caste, with reference to residence, with reference to C
occupation or some other dominant feature. Notwithstanding
our antipathy to caste and sub-regionalism, these are facts
of life which cannot be wished away. If they reflect poverty
which is the primary source of social and educational
backwardness, they must be recognised for what they are
along with other less primary sources. There is and there can D
be nothing wrong in recognising poverty wherever it is reflected
as an identifiable group phenomena whether you see it as a caste
group, a sub-regional group, or occupational group or some other
class. Once the relevant factors are taken into consideration, how
and where to draw the line is a question for each State to consider E
since the economic and social conditions differ from area to area.
Once the relevant conditions are taken into consideration and the
backwardness of a class of people is determined, it will not be for
the Court to interfere in the matter. But, lest there be any
misunderstanding, judicial review will not stand excluded.”
F
(emphasis supplied)
78.2. Though, the principal factor in the observations aforesaid is
class poverty which is indicated to be different than individual poverty
but, it cannot be denied that poverty is a material factor taken into
consideration along with caste, residence, occupation or other dominant G
feature while recognising any particular class/caste’s entitlement to the
affirmative action by way of reservation enabled in terms of Articles
15(4), 15(5) and 16(4). In that scenario, if the Parliament has considered
it proper not to extend those classes covered by the existing clauses of
Articles 15(4), 15(5) and 16(4) another benefit in terms of affirmative
action of reservation carved out for other economically weaker sections, H
164 SUPREME COURT REPORTS [2022] 14 S.C.R.

A there is no reason to question this judgment of the Parliament. Obviously,
for the reason that those classes are already provided with affirmative
action in terms of reservation, in the wisdom of the Parliament, there
was no need to extend them or any of their constituents yet another
benefit in the affirmative action of reservation carved out for other
economically weaker sections.
B
78.3. Moreover, the benefit of reservation avails to the excluded
classes/castes under the existing clauses of Articles 15 and 16; and by
the amendment in question, the quota earmarked for them is not depleted
in any manner.
C 79. The amendment in question makes a reasonable classification
between “economically weaker sections” and other weaker sections,
who are already mentioned in Articles 15(4), 15(5) and 16(4) of the
Constitution and are entitled to avail the benefits of reservation thereunder.
The moment there is a vertical reservation, exclusion is the vital requisite
to provide benefit to the target group. In fact, the affirmative action of
D reservation for a particular target group, to achieve its desired results,
has to be carved out by exclusion of others. The same principle has
been applied for the affirmative action of reservation qua the groups of
SEBCs, OBCs, SCs, and STs. Each of them takes reservation in their
vertical column in exclusion of others. But for this exclusion, the purported
E affirmative action for a particular class or group would be congenitally
deformative and shall fail at its inception. Therefore, the claim of any
particular class or section against its exclusion from the affirmative action
of reservation in favour of EWS has to be rejected.
80. In fact, it follows as a necessary corollary to the discussion in
F the preceding segments of this judgment that looking to the purpose and
the objective of the present affirmative action, that is, reservation for the
benefit of economically weaker sections, the other classes, who are
already availing the benefit of affirmative action of reservation by virtue
of Articles 15(4), 15(5) and 16(4), are required to be kept out of the
benefits of EWS reservation in Articles 15(6) and 16(6). It could easily
G be seen that but for this exclusion, the entire balance of the general
principles of equality and compensatory discrimination would be disturbed,
with extra or excessive advantage being given to the classes already
availing the benefit under Articles 15(4), 15(5) and 16(4). In other words,
sans such exclusion, reservation by way of the amendment in question
H would only lead to an incongruous and constitutionally invalid situation.
JANHIT ABHIYAN v. UNION OF INDIA 165
[DINESH MAHESHWARI, J.]

81. Putting it in other words, the classes who are already the A
recipient of, and beneficiary of, compensatory discrimination by virtue
of Articles 15(4), 15(5) and 16(4), cannot justifiably raise the grievance
that in another set of compensatory discrimination for another class,
they have been excluded. It gets, perforce, reiterated that the
compensatory discrimination, by its very nature, would be structured as
B
exclusionary in order to achieve its objectives. Rather, if the classes for
whom affirmative action is already in place are not excluded, the present
exercise itself would be of unjustified discrimination.
82. Even a slightly different angle of approach would also lead to
the same result. The case sought to be made out on behalf of the class
or classes already availing the benefit of Articles 15(4), 15(5) and 16(4) C
is that their exclusion from EWS reservation is of inexplicable
discrimination. What this argument misses out is that in relation to the
principles of formal equality, both the reservations, whether under the
pre-existing provisions or under the newly inserted provisions, are of
compensatory discrimination which is permissible for being an D
affirmative action; and is to be contra-distinguished from direct
discrimination, which is not permissible.
82.1. According to the petitioners, it is a case of their direct
discrimination when they have been excluded from EWS reservation.
The problem with this argument is that EWS reservation itself is another E
form of compensatory discrimination, which is meant for serving the
cause of such weaker sections who have hitherto not been given any
State support by way of reservation. SEBCs/OBCs/SCs/STs are having
the existing compensatory discrimination in their favour wherein the
presently supported EWS are also excluded alongwith all other excluded
classes/persons. As a necessary corollary, when EWS is to be given F
support by way of compensatory discrimination, that could only be given
by exclusion of others, and more particularly by exclusion of those who
are availing the benefit of the existing compensatory discrimination in
exclusion of all others. Put in simple words, the exclusion of SEBCs/
OBCs/SCs/STs from EWS reservation is the compensatory discrimination G
of the same species as is the exclusion of general EWS from SEBCs/
OBCs/SCs/STs reservation. As said above, compensatory discrimination,
wherever applied, is exclusionary in character and could acquire its worth
and substance only by way of exclusion of others. Such differentiation
cannot be said to be legally impermissible; rather it is inevitable. When
H
166 SUPREME COURT REPORTS [2022] 14 S.C.R.

A that be so, clamour against exclusion in the present matters could only
be rejected as baseless.
83. The fact that exclusion is innate in compensatory discrimination
could further be exemplified by the fact that in Indra Sawhney, this
Court excluded the creamy layer of OBCs from the benefit of reservation.
B In the complex set-up of formal equality on one hand (which debars
discrimination altogether) and real and substantive equality on the other
(which permits compensatory discrimination so as to upset the
disadvantages), exclusion is as indispensable as the compensatory
discrimination itself is.
C 83.1. In fact, ‘creamy layer’ principle itself was applied to make
a true compact of socially and educationally backward class. Two features
strikingly come to fore with creamy layer principle. One is that to make
a real compact of socially and educationally backward class, economic
factors play an equally important role; and then, the exclusionary principle
applies therein too. These two features, when applied to the present
D case, make it clear that the use of economic criteria is not contra-indicated
for the exercise of reservation, rather it is imperative; and second, to
make the exercise of compensatory discrimination meaningful so as to
achieve its desired result, exclusion of every other class/person from the
target group is inevitable. Thus viewed, the amendment in question
E remains unexceptionable in the accepted principles of constitutional law
presently in operation.
84. Yet further, in Indra Sawhney, in the context of the question
as to whether Article 16(4) is exhaustive of the concept of reservation in
favour of backward classes, Jeevan Reddy, J. made the following,
F amongst other, observations: -
“743. .…In our opinion, therefore, where the State finds it
necessary — for the purpose of giving full effect to the provision
of reservation to provide certain exemptions, concessions or
preferences to members of backward classes, it can extend the
G same under clause (4) itself. In other words, all supplemental and
ancillary provisions to ensure full availment of provisions for
reservation can be provided as part of concept of reservation
itself. Similarly, in a given situation, the State may think that in the
case of a particular backward class it is not necessary to provide
reservation of appointments/posts and that it would be sufficient
H
JANHIT ABHIYAN v. UNION OF INDIA 167
[DINESH MAHESHWARI, J.]

if a certain preference or a concession is provided in their favour. A
This can be done under clause (4) itself. In this sense, clause (4)
of Article 16 is exhaustive of the special provisions that can be
made in favour of “the backward class of citizens”. Backward
Classes having been classified by the Constitution itself as
a class deserving special treatment and the Constitution
B
having itself specified the nature of special treatment, it
should be presumed that no further classification or special
treatment is permissible in their favour apart from or
outside of clause (4) of Article 16.”
(emphasis supplied)
C
84.1. The above observations make it absolutely clear that so far
as the classes availing the benefit of compensatory discrimination in the
form of reservation under Article 16(4) are concerned, no further
classification or special treatment is to be given to them. A fortiori, they
cannot make a claim to intrude into other compensatory discrimination
in favour of another deserving group. D

85. Having said so, even if it be assumed for the sake of argument
that the amendment in question alters the existing equality principles, it is
not of abrogation or annulment of the existing rights but could only be
treated to be of moderate abridgment thereof for a valid purpose. Thus
viewed, it cannot be said that the amendment in question leads to such a E
violation of the rule of equality which is shocking or is unscrupulous
travesty of quintessence of equal justice.
86. Viewed from any angle, the amendment in question cannot be
declared invalid as being violative of the basic structure of the Constitution
of India. F
87. Though the discussion and the observations foregoing are
sufficient to conclude this segment but, before moving on to the other
point, it could be usefully observed that in the ultimate analysis, the
questions as to how all the requirements of socio-economic justice are
to be balanced in our constitutional scheme and, for that purpose, whether G
any constitutional amendment is to be made or not, are essentially in the
domain of the Parliament. Any constitutional amendment cannot be
disturbed by the Court only for its second guess as to the desirability of
a particular provision or by way of synthesis of advantages or
disadvantages flowing from an amendment. In this context and in the
H
168 SUPREME COURT REPORTS [2022] 14 S.C.R.

A context of the amendment in question, a reference to the following words
of P.B. Gajendragadkar, the former Chief Justice of India, shall be
apposite: -
“Modern liberalism draws its inspiration from a progressive and
comprehensive ethical philosophy. Its main postulate is that
B individual life should show preference for social obligation. The
root and basic motive of this ethical approach is the passion for
the relief of human suffering and misery. In the pursuit of this
ideal, liberalism does not hesitate to embark upon newer and newer
socio-economic experiments. These experiments represent in a
sense an adventurous voyage of discovery in unknown ethical
C regions, prepared to take the risks but determined to win the
ultimate prize of socio-economic justice.”51
87.1. Even if the provisions in question are said to be of experiment,
the Parliament is entitled to do any such experiment towards the avowed
objective of socio-economic justice. Such an action (or say, experiment)
D of the Parliament by way of constitutional amendment can be challenged
only on the doctrine of basic structure and not otherwise.
88. Thus, the exclusion of other groups and classes from the ten
per cent. reservation earmarked for EWS does not make them
constitutionally aggrieved parties to invoke the general doctrine of equality
E for assailing the amendment in question. In other words, their grievance
cannot be said to be a legal grievance so as to be agitated before the
Court.
89. One of the submissions that the words “other than” in Articles
15(6) and 16(6) of the Constitution of India should be read as “in addition
F to”, so as to include SCs/STs/OBCs within EWS has also been noted
only for rejection for the simple reason 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). If there is any doubt yet, the official Hindi translation of the
G amendment in question, as published in the Gazette of India, Extraordinary,
Part II, Section 1A dated 17.07.2019 would remove any misconception
where the exclusionary Hindi expression ^^fHkUu** (bhinn) has been
employed in relation to the expression “other than”. No further comment
appears requisite in this regard.
51
‘Law, Liberty and Social Justice’, Asia Publishing House, Bombay (1965), p. 120.
H
JANHIT ABHIYAN v. UNION OF INDIA 169
[DINESH MAHESHWARI, J.]

Breach of Fifty Per Cent. Ceiling of Reservations and Basic A
Structure
90. A long deal of arguments by the learned counsel challenging
the amendment in question had also been against the prescription of ten
per cent. reservation for EWS on the ground that it exceeds the ceiling
limit of fifty per cent. laid down by this Court in the consistent series of B
cases. Apart that this argument is not precisely in conformity with the
law declared by this Court, it runs counter to the other argument that this
EWS reservation is invalid because of exclusions. If at all the cap of
fifty per cent. is the final and inviolable rule, the classes already standing
in the enabled bracket of fifty per cent. cannot justifiably claim their
share in the extra ten per cent., which is meant for a separate class and C
section, i.e., economically weaker section.
91. Moreover, the argument regarding the cap of fifty per cent. is
based on all those decisions by this Court which were rendered with
reference to the reservations existing before the advent of the amendment
in question. The fifty per cent. ceiling proposition would obviously be D
applied only to those reservations which were in place before the
amendment in question. No decision of this Court could be read to mean
that even if the Parliament finds the necessity of another affirmative
action by the State in the form of reservation for a section or class in
need, it could never be provided. As noticed hereinbelow, the decisions E
of this Court are rather to the contrary and provide that flexibility within
which the Parliament has acted for putting in place the amendment in
question.
92. In the above backdrop, the relevant decisions of this Court in
regard to this fifty per cent. ceiling limit could be referred but, while F
reiterating that these decisions are applicable essentially to the class/
classes who are to avail the benefits envisaged by Articles 15(4), 15(5)
and 16(4) of the Constitution of India.
92.1. In M.R. Balaji, the Constitution Bench of this Court, while
considering whether sixty per cent. reservation in engineering and medical G
colleges and other technical institutions was appropriate, observed as
under: -
“…It is because the interests of the society at large would be
served by promoting the advancement of the weaker elements in
the society that Art. 15(4) authorises special provision to be made.
H
170 SUPREME COURT REPORTS [2022] 14 S.C.R.

A But if a provision which is in the nature of an exception completely
excludes the rest of the society, that clearly is outside the scope
of Art. 15(4)….
*** *** ***
....Speaking generally and in a broad way, a special provision
B should be less than 50%; how much less than 50% would depend
upon the relevant prevailing circumstances in each case…”
92.2. In T. Devadasan (supra), constitutionality of carry forward
rule was challenged on the ground that it violated fifty per cent. limit.
The majority relied upon M.R. Balaji and observed that the ratio of the
C said decision pertaining to Article 15(4) equally applied to the case at
hand pertaining to Article 16(4); and held that reservation of more than
half of the vacancies was invalid. The Court struck down the carry
forward rule by holding that 16(4) was a proviso to 16(1), in the following
words: -
D “……In the case before us 45 vacancies have actually been filled
out of which 29 have gone to members of the Scheduled Castes
and Tribes on the basis of reservation permitted by the carry
forward rule. This comes to 64.4% of reservation. Such being the
result of the operation of the carry forward rule we must, on the
E basis of the decision in Balaji’s case hold that the rule is bad…..
……Further, this Court has already held that cl. (4) of Art. 16 is
by way of a proviso or an exception to cl. (1). A proviso or an
exception cannot be so interpreted as to nullify or destroy the
main provision. To hold that unlimited reservation of appointments
F could be made under cl. (4) would in effect efface the guarantee
contained in cl. (1) or at best make it illusory….”
92.3. As noticed, the case of N.M. Thomas arose in the context
of constitutionality of the rules contained in the Kerala State and
Subordinate Services Rules, 1958, by which the State Government was
empowered to grant exemption to SC/ST candidates from passing
G
qualifying test for departmental exam. In that case, two learned judges
opined about the rule of ceiling limit thus: -
Fazal Ali, J.
“191…….. As to what would be a suitable reservation within
H permissible limits will depend upon the facts and
JANHIT ABHIYAN v. UNION OF INDIA 171
[DINESH MAHESHWARI, J.]

circumstances of each case and no hard and fast rule can A
be laid down, nor can this matter be reduced to a
mathematical formula so as to be adhered to in all cases.
Decided cases of this Court have no doubt laid down that the
percentage of reservation should not exceed 50%. As I read the
authorities, this is, however, a rule of caution and does not exhaust
B
all categories. Suppose for instance a State has a large number of
backward classes of citizens which constitute 80% of the
population and the Government, in order to give them proper
representation, reserves 80% of the jobs for them, can it be said
that the percentage of reservation is bad and violates the
permissible limits of clause (4) of Article 16?.......... C
Krishna Iyer, J.
143…....I agree with my learned Brother Fazal Ali, J. in the
view that the arithmetical limit of 50% in any one year set
by some earlier rulings cannot perhaps be pressed too far.
Overall representation in a department does not depend on D
recruitment in a particular year, but the total strength of a cadre.
I agree with his construction of Article 16(4) and his view about
the ‘carry forward’ rule.”
(emphasis supplied)
E
92.3.1. The other learned Judges did not specifically deal with the
fifty per cent. rule but the majority judges agreed that Article 16(4) was
not an exception to 16(1).
92.4. In Akhil Bharatiya Soshit Karamchari Sangh (Railway)
v. Union of India and Ors.: (1981) 1 SCC 246, several concessions F
and exemptions granted by the Railway Board in favour of SCs/STs
came to be challenged. Therein, the opinions as regards percentage of
reservation came to be expressed as under: -
Chinnappa Reddy, J.
“135… There is no fixed ceiling to reservation or preferential G
treatment in favour of the Scheduled Castes and Scheduled Tribes
though generally reservation may not be far in excess of fifty per
cent. There is no rigidity about the fifty per cent rule which
is only a convenient guide-line laid down by judges. Every
case must be decided with reference to the present practical results
H
172 SUPREME COURT REPORTS [2022] 14 S.C.R.

A yielded by the application of the particular rule of preferential
treatment and not with reference to hypothetical results which
the application of the rule may yield in the future. Judged in the
light of this discussion I am unable to find anything illegal or
unconstitutional in anyone of the impugned orders and circulars….
B Krishna Iyer, J.
88.…....All that we need say is that the Railway Board shall take
care to issue instructions to see that in no year shall SC & ST
candidates be actually appointed to substantially more than 50 per
cent of the promotional posts. Some excess will not affect as
C mathematical precision is difficult in human affairs, but
substantial excess will void the selection. Subject to this rider
or condition that the ‘carry forward’ rule shall not result, in any
given year, in the selection or appointments of SC & ST candidates
considerably in excess of 50 per cent, we uphold Annexure ‘I’.”

D (emphasis supplied)
92.4.1. Thus, in effect, while Chinnappa Reddy, J. held that there
can be no ceiling limit on reservation, Krishna Iyer, J. held that reservation
in substantial excess of fifty per cent. cannot be sustained.
92.5. In Vasanth Kumar, two learned Judges stated slightly
E different conclusions as regards this ceiling limit of fifty per cent. and
the effect of the decision in N.M. Thomas as follows: -
Chinnappa Reddy, J.
“57. ……The percentage of reservations is not a matter
upon which a court may pronounce with no material at hand.
F
For a court to say that reservations should not exceed 40
per cent 50 per cent or 60 per cent, would be arbitrary and
the Constitution does not permit us to be arbitrary. Though
in the Balaji case, the Court thought that generally and in a broad
way a special provision should be less than 50 per cent, and how
G much less than 50 per cent would depend upon the relevant
prevailing circumstances in each case, the Court confessed: “In
this matter again, we are reluctant to say definitely what would
be a proper provision to make.” All that the Court would finally
say was that in the circumstances of the case before them, a
reservation of 68 per cent was inconsistent with Article 15(4) of
H
JANHIT ABHIYAN v. UNION OF INDIA 173
[DINESH MAHESHWARI, J.]

the Constitution. We are not prepared to read Balaji as A
arbitrarily laying down 50 per cent as the outer limit of
reservation……….
58. We must repeat here, what we have said earlier, that there is
no scientific statistical data or evidence of expert administrators
who have made any study of the problem to support the opinion B
that reservation in excess of 50 per cent may impair efficiency. It
is a rule of thumb and rules of the thumb are not for judges to lay
down to solve complicated sociological and administrative
problems. Sometimes, it is obliquely suggested that excessive
reservation is indulged in as a mere vote-catching device. Perhaps
so, perhaps not. One can only say “out of evil cometh good” and C
quicker the redemption of the oppressed classes, so much the
better for the nation. Our observations are not intended to show
the door to genuine efficiency. Efficiency must be a guiding factor
but not a smokescreen. All that a court may legitimately say
is that reservation may not be excessive. It may not be so D
excessive as to be oppressive; it may not be so high as to
lead to a necessary presumption of unfair exclusion of
everyone else.
Venkataramiah, J.
149. After carefully going through all the seven opinions in the E
above case, it is difficult to hold that the settled view of this
Court that the reservation under Article 15(4) or Article
16(4) could not be more than 50% has been unsettled by a
majority on the Bench which decided this case. I do not
propose to pursue this point further in this case because if F
reservation is made only in favour of those backward castes or
classes which are comparable to the Scheduled Castes and
Scheduled Tribes, it may not exceed 50% (including 18% reserved
for the Scheduled Castes and Scheduled Tribes and 15% reserved
for “special group”) in view of the total population of such
backward classes in the State of Karnataka……..”. G
(emphasis supplied)
92.6. In Indra Sawhney, Jeevan Reddy, J., speaking for the
majority, though made it clear that reservation contemplated by Article
16(4) should not exceed fifty per cent., yet left that small window open
H
174 SUPREME COURT REPORTS [2022] 14 S.C.R.

A where some relaxation to the strict rule may become imperative in view
of the extraordinary situations inherent in the great diversity of our country.
As an example, it was pointed out that the population inhabiting farflung
and remote areas might, on account of their being out of the mainstream
of national life and in view of the conditions peculiar to them, need to be
treated in a different way. However, a caveat was put that a special
B
case has to be made out and extreme caution has to be exercised in this
regard. The relevant observations read as under: -
“809. From the above discussion, the irresistible conclusion that
follows is that the reservations contemplated in clause (4) of Article
16 should not exceed 50%.
C
810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations
inherent in the great diversity of this country and the people.
It might happen that in farflung and remote areas the
population inhabiting those areas might, on account of their
D being out of the mainstream of national life and in view of
conditions peculiar to and characteristical to them, need to
be treated in a different way, some relaxation in this strict
rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.”
E (emphasis supplied)
92.6.1. Pandian, J. also opined that no maximum percentage of
reservation can be fixed in the following words:
“189. I fully share the above views of Fazal Ali, Krishna Iyer,
F Chinnappa Reddy, JJ holding that no maximum percentage of
reservation can be justifiably fixed under Articles 15(4) and/or
16(4) of the Constitution.”
92.6.2. P.B. Sawant, J. also echoed that fifty per cent. ordinary
ceiling can be breached but would be required to be seen in the facts
and circumstances of every case in the following words: -
G
“518. To summarise, the question may be answered thus. There
is no legal infirmity in keeping the reservations under clause (4)
alone or under clause (4) and clause (1) of Article 16 together,
exceeding 50%. However, validity of the extent of excess of
reservations over 50% would depend upon the facts and
H
JANHIT ABHIYAN v. UNION OF INDIA 175
[DINESH MAHESHWARI, J.]

circumstances of each case including the field in which and the A
grade or level of administration for which the reservation is kept.
Although, further, legally and theoretically the excess of
reservations over 50% may be justified, it would ordinarily be
wise and nothing much would be lost, if the intentions of the
Framers of the Constitution and the observations of Dr Ambedkar,
B
on the subject in particular, are kept in mind. The reservations
should further be kept category and gradewise at appropriate
percentages and for practical purposes the extent of reservations
should be calculated category and gradewise.”
92.7. In M. Nagaraj, while interpreting Article 16 (4-A) and (4-
B) and while considering the extent of reservation, the expression “ceiling C
limit” came to be employed by this Court while underscoring the concept
of “proportional equality”. Paragraph 102 of the said decision, which
had been reproduced hereinabove in the discussion pertaining to
reservation, could be usefully re-extracted alongwith other relevant
passages as under: - D
“102 …… Clauses (1) and (4) of Article 16 are restatements of
the principle of equality under Article 14. Clause (4) of Article 16
refers to affirmative action by way of reservation. Clause (4) of
Article 16, however, states that the appropriate Government is
free to provide for reservation in cases where it is satisfied on the E
basis of quantifiable data that Backward Class is inadequately
represented in the services. Therefore, in every case where the
State decides to provide for reservation there must exist two
circumstances, namely, “backwardness” and “inadequacy of
representation”. As stated above, equity, justice and efficiency
are variable factors. These factors are context-specific. There is F
no fixed yardstick to identify and measure these three factors, it
will depend on the facts and circumstances of each case. These
are the limitations on the mode of the exercise of power by the
State…….. If the State concerned fails to identify and measure
backwardness, inadequacy and overall administrative efficiency G
then in that event the provision for reservation would be
invalid.…….Equality has two facets - “formal equality” and
“proportional equality”. Proportional equality is equality “in fact”
whereas formal equality is equality “in law”. Formal equality exists
in the rule of law. In the case of proportional equality the
H
176 SUPREME COURT REPORTS [2022] 14 S.C.R.

A State is expected to take affirmative steps in favour of
disadvantaged sections of the society within the framework
of liberal democracy. Egalitarian equality is proportional
equality.
*** *** ***
B 104…..As stated above, be it reservation or evaluation,
excessiveness in either would result in violation of the
constitutional mandate. This exercise, however, will depend
on the facts of each case…..
*** *** ***
C
Conclusion
121. The impugned constitutional amendments by which Articles
16(4-A) and 16(4-B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4). They retain the
D controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables
the States to provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They
do not obliterate any of the constitutional requirements, namely,
E ceiling limit of 50% (quantitative limitation), the concept of creamy
layer (qualitative exclusion), the sub-classification between OBCs
on one hand and SCs and STS on the other hand as held in Indra
Sawhney, the concept of post-based roster with inbuilt concept
of replacement as held in R.K. Sabharwal.
F 122. We reiterate that the ceiling limit of 50%, the concept
of creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in
Article 16 would collapse.”
G
(emphasis supplied)
92.8. In K. Krishna Murthy (supra), as noticed, this Court rejected
the challenge to the Constitution (Seventy-third Amendment) Act, 1992
and the Constitution (Seventy-fourth Amendment) Act, 1992 which had
H inserted Part IX and Part IX-A to the Constitution thereby contemplating
JANHIT ABHIYAN v. UNION OF INDIA 177
[DINESH MAHESHWARI, J.]

the powers, composition and functions of the Panchayats (for rural areas) A
and Municipalities (for urban areas). In the present context, the passage
referring to the ceiling aspect of reservation in regard to local self-
government could be re-extracted as under: -
“82......(iv) The upper ceiling of 50% vertical reservations in favour
of SCs/STs/OBCs should not be breached in the context of local B
self-government. Exceptions can only be made in order to
safeguard the interests of the Scheduled Tribes in the matter of
their representation in panchayats located in the Scheduled
Areas…...”
92.9. In Dr. Jaishri Patil, Bhat, J. after analysis of Indra Sawhney C
said as follows: -
“10. A careful reading of the judgments in Indra Sawhney v.
Union of India, clarifies that seven out of nine Judges concurred
that there exists a quantitative limit on reservation-spelt out at
50%. In the opinion of four Judges, therefore, per the judgment of D
B.P. Jeevan Reddy, J., this limit could be exceeded under
extraordinary circumstances and in conditions for which separate
justification has to be forthcoming by the State or the agency
concerned. However, there is unanimity in the conclusion by
all seven Judges that an outer limit for reservation should be 50%.
Undoubtedly, the other two Judges, Ratnavel Pandian and P.B. E
Sawant, JJ. indicated that there is no general rule of 50% limit on
reservation. In these circumstances, given the general common
agreement about the existence of an outer limit i.e. 50%, the
petitioner’s argument about the incoherence or uncertainty about
the existence of the rule or that there were contrary observations F
with respect to absence of any ceiling limit in other judgments
(the dissenting judgments of K. Subba Rao, in T. Devadasan v.
Union of India, the judgments of S.M. Fazal Ali and Krishna
lyer, JJ. in State of Kerala v. N.M. Thomas and the judgment of
Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of
Karnataka) is not an argument compelling a review or G
reconsideration of Indra Sawhney rule.”
92.9.1. In the said decision, Bhushan, J. observed as under: -
“442. The above constitutional amendment makes it very clear
that ceiling of 50% “has now received constitutional recognition”.
H
178 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Ceiling of 50% is ceiling which was approved by this Court in
Indra Sawhney case, thus, the constitutional amendment in fact
recognises the 50% ceiling which was approved in Indra Sawhney
case and on the basis of above constitutional amendment, no case
has been made out to revisit Indra Sawhney.”
B 93. Thus, having examined the permissible limits of affirmative
action in light of the possible harm of preferential treatment qua other
innocent class of competitors, i.e., general merit candidates, this Court
has expressed the desirability of fifty per cent. as the ceiling limit for
reservation in education and public employment but, as observed
hereinbefore, all such observations are required to be read essentially in
C the context of the reservation obtaining under Articles 15(4), 15(5) and
16(4) or other areas of affirmative action like that in relation to local
self-government [the case of K. Krishna Murthy (supra)] and cannot
be overstretched to the reservation provided for entirely different class,
consisting of the economically weaker sections.
D 94. Moreover, as noticed, this ceiling limit, though held attached to
the constitutional requirements, has not been held to be inflexible and
inviolable for all times to come. Reasons for this are not far to seek. As
mentioned hereinbefore, reservation by affirmative action is not having
trappings of any such essential feature of the Constitution, collectively
E enumerated by Kesavananda and successive decisions, that its
modulation with reference to any particular compelling reason or
requirement could damage the basic structure of the Constitution.
95. In another view of the matter, the prescription of ceiling limit
of fifty per cent., being apparently for the benefit of general merit
F candidates, does not provide any justified cause to the candidates standing
in the bracket of already available reservation to raise any grievance
about extra ten per cent. reservation for the benefit of another section
of society in need of affirmative action. In any case, there is no question
of violation of any such basic feature of the Constitution that the entire
structure of equality of opportunity in Article 16 would collapse by this
G EWS reservation.
Other Factors and General Summation
96. There have been several suggestions during the course of
arguments that while the existing reservations are class-specific, the
impugned reservation is person-specific and even the eligibility factor,
H
JANHIT ABHIYAN v. UNION OF INDIA 179
[DINESH MAHESHWARI, J.]

that is of ‘economic weakness’, is itself uncertain, fortuitous and mutable. A
All these submissions have only been noted to be rejected in the context
of the limited permissible challenge to the amendment in question on the
doctrine of basic structure. None of these submissions make out a case
of violation of any such essential feature of the Constitution that leads to
destroying the basic structure.
B
97. It may, however, be observed that as per the Explanation to
Article 15(6), the reservations in relation to economically weaker sections
would avail to such sections/persons as may be notified by the State
from time to time on the basis of family income and other indicators of
economic disadvantage. The question as to whether any particular section
or person falls in or is entitled to stand within the class of ‘economically C
weaker sections of citizens’ may be a question to be determined with
reference to the parameters laid down and indicators taken into
consideration by the State. Coupled with this, even the extent of
reservation provided therein may also be a question to be determined
with reference to the relevant analysis of the material data justifying a D
particular percentage. In other words, the question as to whether any
particular classification as economically weaker section is based on
relevant data and factors as also the extent of reservation for that section
could be the matters of consideration as and when arising but, for these
and akin grounds, the constitutional amendment, moderately expanding
the enabling power of the State, cannot be questioned. E

98. The fact that ‘representation’ alone is not the purpose of
enabling provisions of Article 16 could be directly seen from clause (4-
B) of Article 16, inserted later and upheld by this Court ensuring that
ceiling on reservation quota to carried forward posts does not apply to
subsequent years. Interestingly, clause (5) of Article 16, protecting the F
operation of any law in relation to any incumbent of an office in
connection with the affairs of any religious or denominational institution
as regards eligibility, operates in an entirely different field but finds mention
in Article 16 for being an exception to the general rule of equality of
opportunity. Viewed as a whole, it is difficult to say that permissible G
deviation from the rule of equality in the matters of employment is having
the objective of representation alone.
98.1. Moreover, even if it be assumed that the existing provisions
concerning reservation are correlated with ‘representation’, such a
correlation would only remain confined to the classes availing benefit H
180 SUPREME COURT REPORTS [2022] 14 S.C.R.

A under Article 16(4); and it cannot be said that for any other deserving
section or class reservation could be provided only for the purpose of
representation. As repeatedly noticed, the real and substantive equality
takes myriad shapes, depending on the requirements. Therefore,
questioning clause (6) of Article 16 only on the ground of it being not
representation-oriented, does not appear to be a sustainable argument
B
vis-a-vis the doctrine of basic structure.
99. A few other pertinent features of consideration herein may
also be usefully indicated.
99.1. As noticed, our country is and has been a participant in
C various International Conventions having a co-relation with the questions
pertaining to economic disabilities. Kesavananda has referred to a
decision rendered by Lord Denning in Corocraft v. Pan American
Airways: 1969 (1) All ER 82 that, ‘…it is the duty of these courts to
construe our legislation so as to be in conformity with international
law and not in conflict with it.’ In R. D. Upadhyay v. State of Andhra
D Pradesh and Ors.: (2007) 15 SCC 337, a 3-Judge Bench affirmed
the earlier decisions upholding the enforceability of International
Conventions when they elucidate and effectuate the Fundamental Rights
and that such conventions may also be read as part of domestic law as
long as there is no inconsistency between them. Thus understood, it
E hardly needs elaboration that the laws (including constitutional
amendments) enacted, inter alia, for giving effect to International
Conventions, have to be broadly construed and cannot be struck down
for askance.
99.2. Apart from the principles relating to judicial restraint and
F circumspection in the matters of challenge to constitutional amendment,
as stated by Khanna, J. in Kesavananda (reproduced hereinbefore),
what Justice Cardozo of U.S. Supreme Court said about the
judicial process in the matters of challenge to constitutionality is also
instructive: -

G “… The restraining power of the judiciary does not manifest its
chief worth in the few cases in which the legislature has gone
beyond the lines that mark the limits of discretion. Rather shall
we find its chief worth in making vocal and audible the ideals that
might otherwise be silenced, in giving them continuity of life and
of expression, in guiding and directing choice within the limits
H
JANHIT ABHIYAN v. UNION OF INDIA 181
[DINESH MAHESHWARI, J.]

where choice ranges. This function should preserve to the courts A
the power that now belongs to them, if only the power is exercised
with insight into social values, and with suppleness of adaptation
to changing social needs.”52
99.3. It would also be worthwhile to quote the words of famous
American jurist Thomas M. Cooley thus: - B
“The rule of law upon this subject appears to be, that, except
where the constitution has imposed limits upon the legislative
power, it must be considered as practically absolute, whether it
operate according to natural justice or not in any particular case.
The courts are not the guardians of the rights of the people of the C
State, unless those rights are secured by some constitutional
provision which comes within the judicial cognizance. The remedy
for unwise or oppressive legislation, within constitutional bounds,
is by an appeal to the justice and patriotism of the representatives
of the people. If this fail, the people in their sovereign capacity
can correct the evil; but courts cannot assume their rights. The D
judiciary can only arrest the execution of a statute when it conflicts
with the constitution. It cannot run a race of opinions upon points
of right, reason, and expediency with the law-making power. Any
legislative act which does not encroach upon the powers
apportioned to the other departments of the government, being E
prima facie valid, must be enforced, unless restrictions upon the
legislative power can be pointed out in the constitution, and the
case shown to come within them.”53
100. The above-mentioned norms of circumspection had been
the guiding factors in examining the challenge to the amendment in F
question, with this Court being conscious that the Parliament, whilst
enacting amendments to the Constitution, exercises constituent power,
as distinguished from ordinary legislative power. Same as that the
Parliament is not at liberty to destroy the basic structure of the
Constitution, the Constitutional Court is also not at liberty to declare
constitutional amendments void because of their perceived injustice or G
impolicy or where they appear to the Court to be violating fundamental
52
Benjamin N. Cardozo, ‘The Nature of the Judicial Process’, Yale University Press
(1921), p. 94.
53
T.M. Cooley, ‘A Treatise on the Constitutional Limitations’, Hindustan Law Book
Company (2005), p 168. H
182 SUPREME COURT REPORTS [2022] 14 S.C.R.

A principles of governance, unless such principles are placed beyond
legislative encroachment by the Constitution itself. As noticed from
Kesavananda, the power to amend the Constitution can be used to
reshape the Constitution to fulfil the obligation imposed on the State.
Starting from the insertion of clause (4) to Article 15 by the Constitution
(First Amendment) Act, 1951; moving on to the insertion of clause (4-A)
B
to Article 16 by the Constitution (Seventy-seventh Amendment) Act,
1995 to the insertion of clause (4-B) to Article 16 by the Constitution
(Eighty-first Amendment) Act, 2000 and further amendment of the said
clause (4-A) by the Constitution (Eighty-fifth Amendment) Act, 2001;
yet further with the insertion of clause (5) to Article 15 by the Constitution
C (Ninety-third Amendment) Act, 2005; and lately with insertion of Articles
366(26-C) and 342-A by the Constitution (One Hundred and
Second Amendment) Act, 2018, the Parliament has indeed brought about
certain modulations, within the framework of the Constitution of India,
to cater to the requirements of the citizenry with real and substantive
justice in view. In the same vein, if the Parliament has considered it fit to
D
make provisions in furtherance of the objectives of socio-economic justice
by the amendment in question for economically weaker sections, the
amendment cannot be condemned as being violative of any of the basic
features of the Constitution and thereby damaging the basic structure.
101. In the ultimate analysis, it is beyond doubt that using the
E doctrine of basic structure as a sword against the amendment in question
and thereby to stultify State’s effort to do economic justice as ordained
by the Preamble and DPSP and, inter alia, enshrined in Articles 38, 39
and 46, cannot be countenanced. This is essentially for the reason that
the provisions contained in Articles 15 and 16 of the Constitution of
F India, providing for reservation by way of affirmative action, being of
exception to the general rule of equality, cannot be treated as a basic
feature. Moreover, even if reservation is one of the features of the
Constitution, it being in the nature of enabling provision only, cannot be
regarded as an essential feature of that nature whose modulation for the
sake of other valid affirmative action would damage the basic structure
G of the Constitution. Therefore, the doctrine of basic structure cannot be
invoked for laying a challenge to the 103rd Amendment. In this view of
the matter, the other contentions and submissions need not be dilated
herein.

H
JANHIT ABHIYAN v. UNION OF INDIA 183
[DINESH MAHESHWARI, J.]

Conclusions A
102. For what has been discussed and held hereinabove, the points
formulated in paragraph 31 are answered as follows: -
a. Reservation is an instrument of affirmative action by the State
so as to ensure all-inclusive march towards the goals of an egalitarian
society while counteracting inequalities; it is an instrument not only for B
inclusion of socially and educationally backward classes to the mainstream
of society but, also for inclusion of any class or section so disadvantaged
as to be answering the description of a weaker section. In this background,
reservation structured singularly on economic criteria does not violate
any essential feature of the Constitution of India and does not cause any C
damage to the basic structure of the Constitution of India.
b. 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 D
Code and does not in any manner cause damage to the basic structure
of the Constitution of India.
c. 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 E
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.
F
103. Not much of the contentions have been urged in relation to
the impact of the amendment in question on admissions to private unaided
institutions. However, it could at once be clarified that what has been
observed hereinabove in relation to the principal part of challenge to the
amendment in question, read with the decision of this Court in Pramati
Trust, the answer to the issue framed in that regard would also be against G
the challenge.
104. Accordingly, and in view of the above, the answers to the
issues formulated in these matters are as follows:

H
184 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 1. 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.
2. The 103rd Constitution Amendment cannot be said to breach
the basic structure of the Constitution by permitting the State to make
B special provisions in relation to admission to private unaided institutions.
3. 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.
105. Consequently, the transferred cases, transfer petitions, writ
C petitions and the petition for special leave to appeal forming the part of
this batch of matters are dismissed.
Acknowledgments
106. While closing on this reference, sincere thanks and
D compliments deserve to be placed on record for the learned counsel for
the respective parties, their associates, and their researchers as also all
the constructive contributors, whose erudite and scholarly presentation
of respective view-points has rendered invaluable assistance to this Court
in shaping the formulations herein.

E BELA M. TRIVEDI, J.

1. I have had the benefit of perusing the opinion of my learned
Brother Dinesh Maheshwari, J. and I am in respectful agreement with
him. However, having regard to the importance of the constitutional issues
involved, I deem it appropriate to pen down my few views, in addition to
F his opinion.
2. For the sake of brevity, the divergent and irreconcilable
submissions made by the Learned Counsels for the parties and the
propositions of law laid down by this Court from time to time on the
issues involved, are not repeated, the same having already been narrated
G in the opinion of my learned Brother.
3. Since the advent of the Constitution, there is a constant churning
process going on to keep alive the spirit of its Preamble and to achieve
the goal of establishing a Welfare State, adhering to the inherent elements
of the Constitutional morality and Constitutional legality. As a result
thereof about 105 amendments have been made so far, in the Constitution.
H
JANHIT ABHIYAN v. UNION OF INDIA 185
[BELA M. TRIVEDI, J.]

We have been called upon to examine the constitutional validity of the A
Constitution (One hundred and third Amendment) Act, 2019.
4. For ready reference, the impugned 103rd Amendment along
with the Statement of Objects and Reasons is reproduced:-
“MINISTRY OF LAW AND JUSTICE
B
(Legislative Department)
New Delhi, the 12th January, 2019/Pausha 22, 1940
(Saka)
The following Act of Parliament received the assent of the
President on the 12th January, 2019, and is hereby published for C
general information:—
THE CONSTITUTION (ONE HUNDRED AND THIRD
AMENDMENT) ACT, 2019
[12th January, 2019.]
D
An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Sixty-ninth Year of the Republic
of India as follows:—
Short title and commencement.
1. (1) This Act may be called the Constitution (One Hundred E
and Third Amendment) Act, 2019.
(2) It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint.
Amendment of article 15. F
2. In article 15 of the Constitution, after clause (5), the following
clause shall be inserted, namely:—
‘(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,— G

(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

H
186 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (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
B 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.
C 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.’.

D Amendment of article 16.
3. In article 16 of the Constitution, after clause (5), the following
clause shall be inserted, namely:—
“(6) Nothing in this article shall prevent the State from
making any provision for the reservation of appointments
E 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.”.
————
F
DR . G. NARAYANA RAJU,
Secretary to the Govt. of India.”
“STATEMENT OF OBJECTS AND REASONS
At present, the economically weaker sections of citizens have
G largely remained excluded from attending the higher educational
institutions and public employment on account of their financial
incapacity to compete with the persons who are economically
more privileged. The benefits of existing reservations under clauses
(4) and (5) of article 15 and clause (4) of article 16 are generally
H
JANHIT ABHIYAN v. UNION OF INDIA 187
[BELA M. TRIVEDI, J.]

unavailable to them unless they meet the specific criteria of social A
and educational backwardness.
2. The directive principles of State policy contained in
article 46 of the Constitution enjoins that the State shall promote
with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled B
Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation.
3. Vide the Constitution (Ninety-third Amendment) Act,
2005, clause (5) was inserted in article 15 of the Constitution which
enables the State to make special provision for the advancement C
of any socially and educationally backward classes of citizens, or
for the Scheduled Castes or the Scheduled Tribes, in relation to
their admission in higher educational institutions. Similarly, clause
(4) of article 16 of the Constitution enables the State to make
special provision for the reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of D
the State, is not adequately represented in the services under the
State.
4. However, economically weaker sections of citizens
were not eligible for the benefit of reservation. With a view to
fulfil the mandate of article 46, and to ensure that economically E
weaker sections of citizens to get a fair chance of receiving higher
education and participation in employment in the services of the
State, it has been decided to amend the Constitution of India.
5. Accordingly, the Constitution (One Hundred and
Twenty-fourth Amendment) Bill, 2019 provides for reservation F
for the economically weaker sections of society in higher
educational institutions, including private institutions whether aided
or unaided by the State other than the minority educational
institutions referred to in article 30 of the constitution and also
provides for reservation for them in posts in initial appointment in G
services under the State.
6. The Bill seeks to achieve the above objects.
NEW DELHI;
The 7th January, 2019. THAAWARCHAND GEHLOT”
H
188 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 5. The legal and constitutional history of India depicted through
the erudite, scholarly and authoritative opinions pronounced by this Court
in the past, has always been very educative and interesting. The wide
spectrum and perspectives of the contours of the Constitution of India
laid down therein, have actually worked at the fulcrum and have guided
us as a laser beam in the interpretation of the Constitutional provisions.
B
The sole fountainhead of the constituent power conferred upon the
Parliament to amend the provisions of the Constitution is Article 368
thereof. It is very well-established proposition of law that it is the
Constitution and not the constituent power which is supreme. The
Constitution which reflects the hopes and aspirations of people, also
C provides for the framework of the different organs of the State viz. the
Executive, the Legislature and the Judiciary. The Judiciary is entrusted
with the responsibility of upholding the supremacy of the Constitution.
That does not mean that such power of judicial review makes the judiciary
supreme. The Constitution itself has created a system of checks and
balances by which the powers are so distributed that none of the three
D
organs it sets up, can become so predominant as to disable the others
from exercising and discharging powers and functions entrusted to them.1
Yet the power of judicial review is provided expressly in our Constitution
by means of Articles 226 and 32, which is one of the features upon
which hinges the system of checks and balances. This power is of
E paramount importance in a federal Constitution like ours and is the heart
and core of the democracy.
6. It is axiomatic that the Parliament has been conferred upon the
constituent power to amend by way of addition, variation or repeal any
provision of the Constitution under Article 368 of the Constitution, and
F the same is required to be exercised in accordance with the procedure
laid down in the said Article. The Constitution is said to be a living
document or a work in progress only because of the plenary power to
amend is conferred upon the Parliament under the said provision. Of
course, as laid down in plethora of judgments, the said power is subject
to the constraints of the basic structure theory. Deriving inspiration from
G the Preamble and the whole scheme of the Constitution, the majority in
Kesavananda Bharati case held that every provision of the Constitution
can be amended so long as the basic foundation and structure of the
Constitution remains the same. Some of the basic features of the
1
Kesavananda Bharati vs. State of Kerala & Anr. (1973) 4 SCC 225 (Para 577)
H
JANHIT ABHIYAN v. UNION OF INDIA 189
[BELA M. TRIVEDI, J.]

constitutional structure carved out by the Court in the said judgment A
were, the supremacy of the Constitution, Republican and democratic
form of government, separation of powers, judicial review, sovereignty
and the integrity of the nation, Federal Character of Government etc. A
multitude of features have been acknowledged as the basic features in
various subsequent judicial pronouncements. Accordingly, any amendment
B
made by the Parliament is open to the judicial review and is liable to be
interfered with by the Court on the ground that it affects one or the other
basic feature of the Constitution.
7. In case of Kihoto Hollohan vs. Zachillhu & Ors.2 the Court
explaining the limitations imposed on the constituent power observed
that the limitations imposed are substantive limitations and procedural C
limitations. Substantive limitations are those which restrict the field of
exercise of the amending power and exclude some areas from its ambit.
Therefore, violation of the basic structure of the Constitution would be a
substantive limitation restricting the field of exercise of the amending
power under Article 368 of the Constitution. Procedural limitations are D
those which impose restrictions with regard to the mode of exercise of
the amending power. Both these limitations touch and affect the
constituent power itself, the disregard of which invalidates its exercise.
In Kesavananda Bharati 3 Case, it has been observed that while
examining the width of the constituent power, it is essential to see its
limits, the maximum and the minimum; the entire ambit and the magnitude E
of it. It has been further observed that Parliament could under Article
368 amend Article 13 and also the fundamental rights; and that the power
of amendment under Article 368 is wide, but it is not wide enough to
totally abrogate any of the fundamental rights or other essential elements
of the basic structure of the Constitution and destroy its identity4. F
8. In the light of afore-stated legal position, let us examine whether
the impugned amendment has disregarded any of the limitations -
substantive or procedural. The gravamen of the submissions made by
the learned counsels for the petitioners is that the Equality clause as
interpreted in catena of decisions is the most important and indispensable G
feature of the Constitution, and the destruction thereof will amount to
changing the basic structure of the Constitution. The bone of contention
raised by them is that the exclusionary clauses contained in Articles
2
(1992) Suppl. 2 SCC 651
3
Ibid (Para-524-525)
4
Ibid (Para-1162) H
190 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 15(6) and 16(6) keeping out the backward classes and SCs/STs from
having the benefits of the economic reservation, are discriminatory in
nature and violate the equality code and in turn the basic structure of the
Constitution.
9. At the outset, very relevant and apt observations made by
B Krishna Iyer, J. in Maharao Sahib Shri Bhim Singhji vs. Union of
India & Ors.5, with regard to the breach of equality code, deserve
reference.
“Every breach of equality cannot spell disaster as a lethal violation
of basic structure. Peripheral inequality is inevitable when large scale
C equalization processes are put into action. If all the judges of the Supreme
Court in solemn session sit and deliberate for half a year to produce a
legislation for reducing glaring economic inequality their genius will let
them down if the essay is to avoid even peripheral inequalities. Every
large cause claims some martyr, as sociologists will know. Therefore,
what is a betrayal of the basic feature is not a mere violation of Article
D 14 but a shocking, unconscionable or unscrupulous travesty of the
quintessence of equal justice. If a legislation does go that far, it shakes
the democratic foundation and must suffer the death penalty.”
10. In an another interesting opinion by Justice Mathew in Indira
Nehru Gandhi Vs. Raj Narain6, it was observed that: -
E
“334. Equality is a multi-coloured concept incapable of a single
definition. It is a notion of many shades and connotations. The
preamble of the Constitution guarantees equality of status and of
opportunity. They are nebulous concepts. And I am not sure
whether they can provide a solid foundation to rear a basic
F structure. I think the types of equality which our democratic
republic guarantees are all subsumed under specific articles of
the Constitution like Articles 14, 15, 16, 17, 25 etc. and there is no
other principle of equality which is an essential feature of our
democratic polity.”
G 11. The seven-judge Bench of this Court in State of Kerala &
Anr. vs. N.M. Thomas & Ors.7, stated that Article 16(1) is only part of
comprehensive scheme to ensure equality in all spheres and is an instance
of larger concept of equality of law. Article 16(4) cannot be viewed as
5
(1981) 1 SCC 166
6
(1975) Suppl. SCC 1
7
H (1976) 2 SCC 310
JANHIT ABHIYAN v. UNION OF INDIA 191
[BELA M. TRIVEDI, J.]

an exception to Article 16(1), but only as something which logically A
emanates from Article 16(1).
12. In Waman Rao & Ors. Vs. Union of India & Ors.8, it was
observed that every case in which the protection of a fundamental right
is withdrawn will not necessarily result in damaging or destroying the
basic structure of the Constitution. The question as to whether the basic B
structure is damaged or destroyed in any given case would depend upon
which particular Article of Part III is in issue and whether what is
withdrawn is quintessential to the basic structure of the Constitution.
13. The case of M. Nagraj & others Vs. Union of India9,
classifies equality into two parts - “Formal equality” and “Proportional C
equality”. Proportional equality is equality “in fact”, whereas Formal
equality is equality “in law”. Formal equality exists in the rule of law. In
case of Proportional equality, the State is expected to take affirmative
steps in favour of disadvantaged sections of the society within the
framework of liberal democracy. Egalitarian equality is proportional
equality. The Constitution Bench in the said case was called upon to D
examine the constitutional validity of Article 16(4A) and 16(4B) as well
as the 77th, 82nd and 85 th amendments of the Constitution. While
unanimously upholding the validity of the said Amendments, it was
observed that-
“118. The constitutional principle of equality is inherent in the rule E
of law. However, its reach is limited because its primary concern
is not with the content of the law but with its enforcement and
application. The rule of law is satisfied when laws are applied or
enforced equally, that is, even-handedly, free of bias and without
irrational distinction. The concept of equality allows differential
F
treatment but it prevents distinctions that are not properly justified.
Justification needs each case to be decided on case-to-case basis.”
14. In State of Gujarat and Another vs. & The Ashok Mills Co.
Ltd. Ahmedabad and Another10, it was observed: -
“53. The equal protection of the laws is a pledge of the protection
of equal laws. But laws may classify. And the very idea of G
classification is that of inequality. In tackling this paradox, the
Court has neither abandoned the demand for equality nor denied
8
(1981) 2 SCC 362
9
(2006) 8 SCC 212
10
(1974) 4 SCC 656 H
192 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the legislative right to classify. It has taken a middle course. It has
resolved the contradictory demands of legislative specialization
and constitutional generality by a doctrine of reasonable
classification.
54. A reasonable classification is one which includes all who are
B similarly situated and none who are not. The question then is: what does
the phrase ‘similarly situated’ mean? The answer to the question is that
we must look beyond the classification to the purpose of the law. A
reasonable classification is one which includes all persons who are
similarly situated with respect to the purpose of the law. The purpose of
a law may be either the elimination of a public mischief or the achievement
C of some positive public good.”
15. What is discernible from the above cited decisions is that the
concept of equality allows differential treatment but it prevents distinctions
that are not properly justified. Equality is violated if it rests on unreasonable
classification. A reasonable classification is permissible, which includes
D all who are similarly situated, and none who are not. Discrimination is
the essence of classification. Those who are similarly circumscribed are
entitled to an equal treatment. Classification has to be founded on
substantial differences which distinguish persons grouped together from
those left out of the groups, and such differential attributes must bear a
E just and rational relation to the object sought to be achieved.
16. The Preamble, the Part III-Fundamental Rights and the Part
IV-Directive Principles of State Policy- the Trinity are the conscience
of the Constitution. The Preamble visualises to remove economic
inequalities and to secure to all citizens of India, Justice - Social, Economic
F and Political, which is the sum total of the aspirations incorporated in
Part IV. Economic empowerment to the weaker sections of the society
is the fundamental requirement for ensuring equality of status and to
promote fraternity assuring dignity as visualised by the framers of our
Constitution. And therefore any positive discrimination in favour of the
weak or disadvantaged class of people by means of a valid classification
G has been treated as an affirmative action on the part of the State. The
Preamble to the Constitution and the Directive Principles of the State
Policy give a positive mandate to the State and the State is obliged to
remove inequalities and backwardness from the society.

H
JANHIT ABHIYAN v. UNION OF INDIA 193
[BELA M. TRIVEDI, J.]

17. As observed in Ashok Kumar Thakur11, while considering A
the constitutionality of social justice legislation, it is worthwhile to note
the objectives which have been incorporated by the Constitution makers
in the Preamble of the Constitution and how they are sought to be secured
by enacting Fundamental Rights in Part-III and Directive Principles of
State Policy in Part-IV of the Constitution. The Fundamental Rights
B
represent the civil and political rights and the Directive Principles embody
social and economic rights. Together they are intended to carry out the
objectives set out in the Preamble to the Constitution. Article 46 enjoins
upon the State to promote with special care the educational and economic
interests of the weaker sections of the people and to protect them from
social injustice and all forms of exploitation. The theory of reasonable C
classification is implicit and inherent in the concept of equality. Equality
of opportunity would also mean a fair opportunity not only to one section
or the other but to all sections by removing the handicaps if a particular
section of the society suffers from the same.
18. Justice Krishna Iyer in N.M. Thomas12 has beautifully D
explained what is “social engineering”
“119. Social engineering — which is law in action — must adopt
new strategies to liquidate encrusted group injustices or surrender
society to traumatic tensions. Equilibrium, in human terms, emerges
from release of the handicapped and the primitive from persistent E
social disadvantage, by determined, creative and canny legal
manoeuvres of the State, not by hortative declaration of arid
equality. “To discriminate positively in favour of the weak may
sometimes be promotion of genuine equality before the law” as
Anthony Lester argued in his talk in the B.B.C. in 1970 in the
series: What is wrong with the law [ Published in book form — F
Edited by Micheel Zander — BBC, 1970 — quoted in Mod Law
Rev Vol 33, Sept 1970, pp. 579, 580] . “One law for the Lion and
Ox is oppression”. Or, indeed, as was said of another age by
Anatole France:
“The law in its majestic equality forbids the rich as well as the G
poor to sleep under bridges, to beg in the streets and to steal
bread. “

11
Ibid. (2008) 6 SCC 1
12
Ibid (1976) 2 SCC 310 H
194 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 19. As transpiring from the Statements of Objects and Reasons
for introducing the Bill to the impugned amendment, the Parliament has
taken note that the economically weaker sections of the citizens have
largely remained excluded from attaining the higher educational institutions
and public employment on account of their financial incapacity to compete
with the persons who are economically more privileged. The benefits of
B
existing reservations under Clauses(4) and (5) of Article 15 and Clause(4)
of Article 16 are generally unavailable to them unless they meet with the
specific criteria of social and educational backwardness. It has been
further stated that vide the Constitution (Ninety-third Amendment) Act,
2005, Clause(5) was inserted in Article 15 of the Constitution which
C enables the State to make special provision for the advancement of any
social and educational backwardness of citizens, or for the Scheduled
Castes or the Scheduled Tribes, in relation to their admission in higher
educational institutions. Similarly, Clause(4) of Article 16 of the
Constitution enables the State to make special provision for the reservation
of appointments or posts in favour of any backward class of citizens
D
which in the opinion of the State, is not adequately represented in the
services under the State. However, economically weaker sections of
citizens were not eligible for the benefit of reservation. Therefore, with
a view to fulfil the ideals lying behind Article 46, and to ensure that
economically weaker sections of citizens to get a fair chance of receiving
E higher education and participation in employment in the services of the
State, it was decided to amend the Constitution of India.
20. As well settled, it must be presumed that the legislature
understands and appreciates the needs of its own people. Its laws are
directed to the problems made manifest by experience, and its
F discriminations are based on adequate norms. Therefore, the constitutional
amendment could not be struck down as discriminatory if the state of
facts are reasonably conceived to justify it. In the instant case, the
Legislature being aware of the exclusion of economically weaker sections
of citizens from having the benefits of reservations provided to the SCs/
STs and SEBCs citizens in Clauses(4) and (5) of Article 15 and Clause(4)
G of Article 16, has come out with the impugned amendment empowering
the State to make special provision for the advancement of the
“economically weaker sections” of citizens other than the classes
mentioned in Clauses(4) and (5) of Article 15 and further to make special
provision for the reservation of appointments or posts in favour of the
H
JANHIT ABHIYAN v. UNION OF INDIA 195
[BELA M. TRIVEDI, J.]

economically weaker sections of the citizens other than the classes A
mentioned in Clause(4) of Article 16. The impugned amendment enabling
the State to make special provisions for the “economically weaker
sections” of the citizens other than the scheduled castes/schedules 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
B
the benefit and for the advancement of the economically weaker sections
of the citizens. 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 C
be treated equally. Treating unequals as equals would as well offend the
doctrine of equality enshrined in Articles 14 and 16 of the Constitution.
21. The Scheduled Castes/Scheduled Tribes and the backward
class for whom the special provisions have already been provided in
Article 15(4), 15(5) and 16(4) form a separate category as distinguished D
from the general or unreserved category. They cannot be treated at par
with the citizens belonging to the general or unreserved category. The
impugned amendment creates a separate class of “economically 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 E
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. Such amendment could
certainly be not termed as shocking, unconscionable or unscrupulous F
travesty of the quintessence of equal justice as sought to be submitted
by the Learned Counsels for the petitioners.
22. 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 G
have been disregarded by the Parliament. Neither the procedural limitation
i.e. the mode of exercise of the amending power has been disregarded
nor the substantive limitation i.e. the restricted field has been disregarded,
which otherwise would invalidate the impugned amendment. What is
visualised in the Preamble and what is permissible both in Part-III and
H
196 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Part-IV of the Constitution could not be said to be violative of the basic
structure or basic feature of the Constitution. In absence of any obliteration
of any of the constitutional provisions and in absence of any alteration or
destruction in the existing structure of equality code or in the basic
structure of the Constitution, neither the width test nor the identity test
as propounded in Kesavananda could be said to have been violated in
B
the impugned Amendment. Accordingly, the challenge to the constitutional
validity of the 103rd Amendment fails, and the validity thereof is upheld.
23. Before parting, let me say something on the time span of the
reservation policy.
C 24. It is said that no document can be perfect and no ideals can be
fully achieved. But does that mean we should have no ideals? No vision?
Sardar Patel had said 13 - “But in the long run, it would be in the interest
of all to forget that there is anything like majority or minority in this
country; that in India there is only one community…”
D 25. Can we not move towards an ideal envisaged by the framers
of our Constitution to have an egalitarian, casteless and classless society?
Though difficult, it is an achievable ideal. Our Constitution which is a
living and organic document continuously shapes the lives of citizens in
particular and societies in general.

E 26. At this juncture, some of the very apt observations made by
the Constitution Bench in K.C. Vasanth Kumar14 are worth noting-
Per D.A. Desai, J.
“30. Let me conclude. If economic criterion for compensatory
discrimination or affirmative action is accepted, it would strike
F at the root cause of social and educational backwardness, and
simultaneously take a vital step in the direction of destruction
of caste structure which in turn would advance the secular
character of the Nation. This approach seeks to translate into
reality the twin constitutional goals: one, to strike at the
perpetuation of the caste stratification of the Indian Society so
G
as to arrest regressive movement and to take a firm step
towards establishing a casteless society; and two, to
progressively eliminate poverty by giving an opportunity to the
13
CAD Vol. VIII P.272, 25 May 1949
14
(1985) Suppl. SCC 714
H
JANHIT ABHIYAN v. UNION OF INDIA 197
[BELA M. TRIVEDI, J.]

disadvantaged sections of the society to raise their position A
and be part of the mainstream of life which means eradication
of poverty.
31. Let me make abundantly clear that this approach does not
deal with reservation in favour of Scheduled Castes and
Scheduled Tribes. Thousands of years of discrimination and B
exploitation cannot be wiped out in one generation. But even
here economic criterion is worth applying by refusing preferred
treatment to those amongst them who have already benefited
by it and improved their position. And finally reservation must
have a time span otherwise concessions tend to become vested
interests.” C

Per E.S. Venkataramiah, J.
“150. At this stage it should be made clear that if on a fresh
determination some castes or communities have to go out of
the list of backward classes prepared for Article 15(4) and D
Article 16(4), the Government may still pursue the policy of
amelioration of weaker sections of the population amongst them
in accordance with the Directive Principle contained in Article
46 of the Constitution. “
In the said judgment, Chief Justice Y.V. Chandrachud, as he then E
was, had proposed thus:-
“2. I would state my opinion in the shape of the following
propositions:
(1) The reservation in favour of Scheduled Castes and Scheduled
Tribes must continue as at present, there is, without the application F
of a means test, for a further period not exceeding fifteen years.
Another fifteen years will make it fifty years after the advent of
the Constitution, a period reasonably long for the upper crust of
the oppressed classes to overcome the baneful effects of social
oppression, isolation and humiliation.
G
(2) The means test, that is to say, the test of economic
backwardness ought to be made applicable even to the Scheduled
Castes and Scheduled Tribes after the period mentioned in (1)
above. It is essential that the privileged section of the
H
198 SUPREME COURT REPORTS [2022] 14 S.C.R.

A underprivileged society should not be permitted to monopolise
preferential benefits for an indefinite period of time.
(3) Insofar as the other backward classes are concerned, two
tests should be conjunctively applied for identifying them for the
purpose of reservations in employment and education: One, that
B they should be comparable to the Scheduled Castes and Scheduled
Tribes in the matter of their backwardness; and two, that they
should satisfy the means test such as a State Government may
lay down in the context of prevailing economic conditions.
(4) The policy of reservations in employment, education and
C legislative institutions should be reviewed every five years or so.
That will at once afford an opportunity (i) to the State to rectify
distortions arising out of particular facets of the reservation policy
and (ii) to the people, both backward and non-backward, to ventilate
their views in a public debate on the practical impact of the policy
of reservations.”
D
27. The concern for continuing the reservation as an affirmative
action only for a limited period was also expressed by this Court in “Ashok
Kumar Thakur vs. Union of India”15
“666. Caste has divided this country for ages. It has hampered
E its growth. To have a casteless society will be realisation of a
noble dream. To start with, the effect of reservation may appear
to perpetuate caste. The immediate effect of caste-based
reservation has been rather unfortunate. In the pre-reservation
era people wanted to get rid of the backward tag—either social
or economical. But post reservation, there is a tendency even
F among those who are considered as “forward”, to seek the
“backward” tag, in the hope of enjoying the benefits of
reservations. When more and more people aspire for
“backwardness” instead of “forwardness” the country itself
stagnates. Be that as it may. Reservation as an affirmative action
G is required only for a limited period to bring forward the socially
and educationally backward classes by giving them a gentle
supportive push. But if there is no review after a reasonable period
and if reservation is continued, the country will become a caste
divided society permanently. Instead of developing a united society
15
H (2008) 6 SCC 1
JANHIT ABHIYAN v. UNION OF INDIA 199
[BELA M. TRIVEDI, J.]

with diversity, we will end up as a fractured society forever A
suspicious of each other. While affirmative discrimination is a road
to equality, care should be taken that the road does not become a
rut in which the vehicle of progress gets entrenched and stuck.
Any provision for reservation is a temporary crutch. Such crutch
by unnecessary prolonged use, should not become a permanent
B
liability. It is significant that the Constitution does not specifically
prescribe a casteless society nor tries to abolish caste. But by
barring discrimination in the name of caste and by providing for
affirmative action Constitution seeks to remove the difference in
status on the basis of caste. When the differences in status among
castes are removed, all castes will become equal. That will be a C
beginning for a casteless egalitarian society.”
28. What was envisioned by the framers of the Constitution, what
was proposed by the Constitution Bench in 1985 and what was sought
to be achieved on the completion of fifty years of the advent of the
Constitution, i.e. that the policy of reservation must have a time span, D
has still not been achieved even till this day, i.e. till the completion of
seventy-five years of our Independence. It cannot be gainsaid that the
age-old caste system in India was responsible for the origination of the
reservation system in the country. It was introduced to correct the
historical injustice faced by the persons belonging to the scheduled castes
and scheduled tribes and other backward classes, and to provide them a E
level playing field to compete with the persons belonging to the forward
classes. However, at the end of seventy-five years of our independence,
we need to revisit the system of reservation in the larger interest of the
society as a whole, as a step forward towards transformative
constitutionalism. F
29. Be it noted that as per Article 334 of the Constitution, the
provisions of the Constitution relating to the reservation of seats for the
SCs and the STs in the House of the People and in the Legislative
Assemblies of the States would cease to have effect on the expiration
of a period of eighty years from the commencement of the Constitution. G
The representation of Anglo-Indian community in the House of the
Parliament and in the Legislative Assemblies of the States by nomination,
has already ceased by virtue of the 104th Amendment w.e.f. 25.01.2020.
Therefore, similar time limit if prescribed, for the special provisions in

H
200 SUPREME COURT REPORTS [2022] 14 S.C.R.

A respect of the reservations and representations provided in Article 15
and Article 16 of the Constitution, it could be a way forward leading to
an egalitarian, casteless and classless society.
J.B. PARDIWALA, J. :
1. I have had the benefit of carefully considering the lucid and
B
erudite judgment delivered by my learned Brother Justice Ravindra Bhat
taking the view that Sections 2 and 3 resply of the Constitution (One
Hundred and Third Amendment) Act, 2019 which inserted clause (6) in
Article 15 and clause (6) in Article 16 respectively are unconstitutional
and void on the ground that they destroyed and are violative of the basic
C structure of the Constitution. My esteemed Brother Justice Bhat has
taken the view that the State’s compelling interest to fulfil the objective
set out in the Directive Principles, through special provisions on the basis
of economic criteria, is legitimate; that reservation or special provisions
have so far been provided in favour of historically disadvantaged
communities cannot be the basis of contending that the other
D
disadvantaged groups who have not been able to progress due to the ill
effects of abject poverty should remain so and the special provisions
should not be made by way of affirmative action or even reservation on
their behalf. My learned esteemed Brother Justice Bhat has concluded
that therefore the special provisions based on objective economic criteria,
E is per se not violative of the basic structure. However, my esteemed
Brother Justice Bhat thought fit to declare clause (6) of Article 15 as
unconstitutional essentially on the ground that the exclusion clause therein
and the classification could be termed as arbitrary resulting in hostile
discrimination of the poorest sections of the society who are socially and
educationally backward and/or subjected to caste discrimination.
F
2. In so far as clause (6) of Article 16 is concerned, my esteemed
Brother Justice Bhat struck it down on two counts – first, the same is
violative of the equality code particularly the principle of non-
discrimination and non-exclusion which forms an inextricable part of the
basic structure of the Constitution and, secondly, although the “economic
G criteria” per se is permissible in relation to access of public goods (under
Article 15), yet the same is not true for Article 16 as the goal of which is
empowerment through representation of the community.
3. On the other hand, my esteemed Brother Justice Dinesh
Maheshwari, in his separate judgment, has taken the view that clause
H
JANHIT ABHIYAN v. UNION OF INDIA 201
[J.B. PARDIWALA, J.]

(6) in Article 15 and clause (6) in Article 16 do not violate the basic A
structure of the Constitution in any manner and are valid.
4. Having gone through both the sets of judgments, I regret my
inability to agree with my esteemed Brother Justice Bhat that clause (6)
in Article 15 and clause (6) in Article 16 are unconstitutional and void.
Whereas, I agree with the final decision taken by my esteemed Brother B
Justice Dinesh Maheshwari that the impugned amendment is valid, I
would like to assign my own reasons as I have looked into the entire
issue from a slightly different angle.
5. “The Judgment of this Court in His Holiness Keshvananda
Bharati Sripadagalvaru and others v. State of Kerala and another, C
AIR 1973 SC 1461, which introduced the concept of Basic Structure
in our constitutional jurisprudence is the spontaneous response of
an activist Court after working with our Constitution for about 25
years. This Court felt that in the absence of such a stance by the
constitutional Court there are clear tendencies that the tumultuous
tides of democratic majoritarianism of our country may engulf the D
constitutional values of our nascent democracy. The judgement in
Kesavananda Bharti (supra) is possibly an “auxiliary precaution
against a possible tidal wave in the vast ocean of Indian
democracy”. …….. But we must have a clear perception of what the
Basic Structure is. It is hazardous to define what is the Basic Structure E
of the Constitution as what is basic does not remain static for all
time to come…..”
[See : J&K National Panthers Party v. The
Union of India & Ors, (2011) 1 SCC 228]
6. The idea of equality is the heart and soul of the Indian F
Constitution. India achieved independence on the 15th of August, 1947
after a long political struggle in which a number of patriots laid down
their lives and countless suffered to secure self-government and to throw
off the foreign yoke. But self-government was not an end in itself. It
was a means to an end. They struggled and suffered not merely to be G
ruled by their chosen representatives in the place of foreign rulers, but to
achieve the basic human rights and freedom and to secure social,
economic and political justice so as to build up a welfare State from
which poverty, ignorance and disease may be banished and to lay the
foundation of a strong and independent country which may command
respect in the world. H
202 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 7. A Constituent Assembly was formed to draw up a Constitution
which was ultimately adopted on the 26th January, 1950. The aspirations
of the people are reflected in the Preamble of the Constitution which
reads thus:-
“WE, THE PEOPLE OF INDIA, having solemnly resolved
B to constitute India into a SOVEREIGN, SOCIALIST,
SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
C
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and
the unity and integrity of the Nation;
D
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day
of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.”
8. The Preamble of our Constitution promises equality, which is
explained in detail in Articles 14 and 15 resply as enshrined in Part III of
E the Constitution. Equality, as contemplated under our constitutional system,
is ‘among equal and similarly situated’. Equality in general cannot be
universally applied and is subject to the condition and restriction as spelt
out in the Constitution itself. The Preamble to the Constitution referred
to above does not grant any power but it gives the direction and purpose
F to the Constitution. It outlines the objective of the whole Constitution.
The Preamble contains the fundamentals of the Constitution. It serves
several important purposes, as for example: -
(1) It contains the enacting clause which brings the Constitution
into force.
G (2) It declares the great rights and freedoms which the People of
India intended to secure to all its citizens.
(3) It declares the basic type of Government and polity which is
sought to be established in the country.
(4) It throws light on the source of the Constitution, viz.
H
the People of India.
JANHIT ABHIYAN v. UNION OF INDIA 203
[J.B. PARDIWALA, J.]

9. Articles 14, 15 and 16 resply deal with the various facets of A
the right to equality. Article 14 provides for equality before law and
prohibits the State from denying to any person, equality before law or
equal protection of laws. Article 15 provides for prohibition of
discrimination against any citizen on grounds only of religion, race, caste,
sex or place of birth or any of them, but permits special provisions being
B
made for women and children or for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled
Castes and Scheduled Tribes. Article 16 guarantees equality of opportunity
in matters of public employment to the citizens of India.
10. These three Articles form part of the same Constitutional
code of guarantees and, in the sense, supplement to each other. Article C
14 on the one hand, and Articles 15 and 16 resply on the other, have
frequently been described as being the genesis and the species
respectively.
11. I propose to look into the constitutional validity of the
Constitution (103rd Amendment) Act, 2019 in the first instance, as if there D
is nothing like Articles 15(6) and 16(6) resply in the Constitution. It would
be profitable to look into the various relevant provisions (Articles) of the
Constitution of India:-
“14. Equality before law. The State shall not deny to any person
equality before the law or the equal protection of the laws E
within the territory of India.
15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth. (1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them. F
(2) No citizen shall, on ground only of religion, race, caste,
sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to%
(a) access to shops, public restaurants, hotels and places of
G
public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places
of public resort maintained wholly or partly out of State funds
or dedicated to the use of general public.
H
204 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (3) Nothing in this article shall prevent the State from
making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29
shall prevent the State from making any special provision
for the advancement of any socially and educationally
B backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of the clause
(1) of article 19 shall prevent the State from making any
special provision, by law, for the advancement of any
C socially and educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes 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
D clause (1) of article 30.
(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,%

E (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
F 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
G 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
H
JANHIT ABHIYAN v. UNION OF INDIA 205
[J.B. PARDIWALA, J.]

family income and other indicators of economic A
disadvantage.
16. Equality of opportunity in matters of public
employment. - (1) There shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the B
State.
(2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any
employment or office under the State. C

(3) Nothing in this article shall prevent Parliament from
making any law prescribing, in regard to a class or classes
of employment or appointment to an office under the
Government of, or any local or other authority within, a
State or Union territory, any requirement as to residence D
within that State or Union territory prior to such
employment or appointment.
(4) Nothing in this article shall prevent the State from
making any provision for the reservation of appointments
or posts in favour of any backward class of citizens which, E
in the opinion of the State, is not adequately represented
in the services under the State.
(4A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of
promotion, with consequential seniority, to any class or F
classes of posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in
the services under the State.
(4B) Nothing in this article shall prevent the State from G
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance
with any provision for reservation made under clause (4)
or clause (4A) as a separate class of vacancies to be filled
up in any succeeding year or years and such class of
H
206 SUPREME COURT REPORTS [2022] 14 S.C.R.

A vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent. reservation on
total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any
B law which provides that the incumbent of an office in
connection with the affairs of any religious or
denominational institution or any member of the governing
body thereof shall be a person professing a particular
religion or belonging to a particular denomination.
C (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.
D
x x x x
21-A. Right to education. - The State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by law,
E determine.
x x x x
25. Freedom of conscience and free profession, practice
and propagation of religion. - (1) Subject to public order,
morality and health and to the other provision of this Part,
F all persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate
religion.
(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law%
G (a) regulating or restricting any economic, financial,
political or other secular activity which may be associated
with religious practice;
(b) providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character
H to all classes and sections of Hindus.
JANHIT ABHIYAN v. UNION OF INDIA 207
[J.B. PARDIWALA, J.]

Explanation I.%The wearing and carrying of kirpans shall A
be deemed to be included in the profession of the Sikh
religion.
Explanation II.%In sub-clause (b) of clause (2), the
reference to Hindus shall be construed as including a
reference to Hindu religious institutions shall be construed B
accordingly.
26. Freedom to manage religious affairs. - Subject to
public order, morality and health, every religious
denomination or any section thereof shall have the right%
(a) to establish and maintain institutions for religious and C
charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property;
and D
(d) to administer such property in accordance with law.
x x x x
29. Protection of interests of minorities. - (1) Any section
of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its E
own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion, race,
caste, language or any of them. F

30. Right of minorities to establish and administer
educational institutions. - (1) All minorities, whether based
on religion or language, shall have the right to establish
and administer educational institutions of their choice.
G
(1A) In making any law providing for the compulsory
acquisition of any property of an educational institution
established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by
or determined under such law for the acquisition of such
H
208 SUPREME COURT REPORTS [2022] 14 S.C.R.

A property is such as would not restrict or abrogate the right
guaranteed under that clause.
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational institution
on the ground that it is under the management of a minority,
B whether based on religion or language.
x x x x
46. Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker
sections. - The State shall promote with special care the
C educational and economic interests of the weaker sections
of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.”
12. The Constitution of India was framed by the Constituent
D Assembly after long drawn debates. Many of the Members of the
Constituent Assembly themselves were actively and directly involved in
the struggle for freedom. They, therefore, brought in framing the
Constitution their experience of movement for liberation from the colonial
rule. The Constitution was framed at a time when the memories of
E violation of human and fundamental rights at the hands of colonial rulers
were fresh. So was fresh in the mind of the people the Nazi excesses
during the time of Second World War. Declaration of separate chapter
of fundamental rights with special focus on equality and personal
liberties was thus inevitable. The framers of the Constitution, thus,
dedicated a whole chapter (Part III) for fundamental rights. While doing
F so, important provisions were made in Part IV pertaining to the Directive
Principles of State Policy, making detailed provisions laying down a
road-map for bringing about a peaceful social revolution through
Constitutional means and for the Governments to bear in mind those
principles while framing future governmental policies. Article 37 contained
G in Part IV provides that the provisions contained in that Part shall not be
enforceable by any court, but it makes it clear that the principles laid
down therein are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply those principles in
making laws. Interplay of fundamental rights and directive principles of
state policy has occupied the minds of this Court on several occasions.
H
JANHIT ABHIYAN v. UNION OF INDIA 209
[J.B. PARDIWALA, J.]

13. Article 15, as originally framed, did not contain clauses (4) A
and (5). Clause (4) in fact was introduced through the First Constitution
Amendment in the year 1951. This was necessitated due to a judicial
pronouncement of the Supreme Court in the case of The State of Madras
v. Sm. Champakam Dorairajan & Another, AIR 1951 SC 226 : (1951)
SCR 525.
B
14. In Article 15, there are two words of very wide import – (1)
“discrimination” and (2) “only”. The expression “discriminate against”,
according to the Oxford Dictionary means, “to make an adverse
distinction with regard to; to distinguish favourably from others”. The
true purport of the word “discrimination” has been very well explained
by this Court in a Constitution Bench decision of five Judges in Kathi C
Raning Rawat v. State of Saurashtra, reported in AIR 1952 SC
123: -
“7. All legislative differentiation is not necessarily
discriminatory. In fact, the word “discrimination” does not
occur in Art. 14. The expression “discriminate against” is D
used in Art. 15(1) and Art. 16(2), and it means, according to
the Oxford Dictionary, “to make an adverse distinction with
regard to; to distinguish unfavourably from others”.
Discrimination thus involves an element of unfavourable bias
and it is in that sense that the expression has to be understood E
in this context. If such bias is disclosed and is based on any
of the grounds mentioned in Arts. 15 and 16, it may well be
that the statute will, without more, incur condemnation as
violating a specific constitutional prohibition unless it is saved
by one or other of the provisos to those articles. But the position
under Art. 14 is different….” F

15. The principle has been consistently followed in subsequent
decisions. Reference may be made, in this respect, in the case of
Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
16. A very important decision on the significance of the word “only” G
(as used in Article 29(2) also relating to fundamental rights) is that of the
Full Bench in Srimathi Champakam Dorairajan and Another v. The
State of Madras, reported in AIR 1951 Madras 120. In that case the
Madras Government, finding that there were not sufficient vacancies
for admission of students to Medical College, issued a circular making,
H
210 SUPREME COURT REPORTS [2022] 14 S.C.R.

A what it considered, an equitable division of the vacancies available among
the various classes of citizens of the State. Out of every 14 seats, 6
were to be filled by non-Brahmin Hindus, 2 to backward Hindu
communities, 2 to Brahmins, 2 to Harijans, 1 to Anglo-Indians and Indian
Christians and 1 to Muslims. The circular was challenged by various
persons on the ground that it decided admission to persons only on the
B
ground of religion or caste. It was sought to support the circular on the
ground that the denial was not only on the ground of religion or caste,
but as a matter of public policy based upon the provisions of Article 46
together with the paucity of the vacancies. It was held that much
significance could not be attached to the word ‘only’ because even
C reading the Article without that word, the result would be the same. It
was further held that the circular was bad because it infringed the clear
and unambiguous terms of Article 15(1) since it discriminated against
citizens only on the ground of religion, race, caste, sex, place of birth or
any of them. The judgment states:-
D “15…..”Discriminate against” means “make an adverse
distinction with regard to”; “distinguish unfavourably from
others” (Oxford Dictionary). What the article says is that no
person of a particular religion or caste shall be treated
unfavourably when compared with persons of other
religions and castes merely on the ground that they belong to
E a particular religion or caste. Now what does the Communal
G.O. purport to do? It says that a limited number of seats
only are allotted to persons of a particular caste, namely
Brahmins. The qualifications which would enable a candidate
to secure one of those seats would necessarily be higher than
F the qualifications which would enable a person of another
caste or religion, say, Harijan or Muslim to secure
admission…..”
It was, therefore, held that the Communal G.O. was void.
17. This decision was upheld by the Supreme Court on appeal in
G The State of Madras v. Sm. Champakam Dorairajan & another
(supra). Their Lordships say:-
“11. It is argued that the petitioners are not denied
admission only because they are Brahmins but for a variety
of reasons, e.g. (a) they are Brahmins, (b) Brahmins have an
H allotment of only two seats out of 14 and (c) the two seats
JANHIT ABHIYAN v. UNION OF INDIA 211
[J.B. PARDIWALA, J.]

have already been filled up by more meritorious Brahmin A
candidates. This may be true so far as these two seats reserved
for the Brahmins are concerned but this line of argument can
have no force when we come to consider the seats reserved
for candidates of other communities, for so far as those seats
are concerned, the petitioners are denied admission into any
B
of them not on any ground other than the sole ground of their
being Brahmins and not being members of the community for
whom those reservations have been made. The classification
in the Communal G.O. proceeds on the basis of religion, race
and caste. In our view, the classification made in the Communal
G.O. is opposed to the Constitution and constitutes a clear C
violation of the fundamental rights guaranteed to the citizen
under Art. 29(2)…..”
18. In view of the aforesaid, the Parliament intervened & introduced
clause (4) to Article 15 which provided that if any action was taken by
the State to make special provisions for the advancement of the D
communities specified therein, that could not be challenged on the ground
that it contravened Article 15(1). In other words, a specific exception
was made to the provisions of Article 15(1) in regard to the backward
communities mentioned in Article 15(4). This amendment also shows
how a progressive democratic legislature does not hesitate even to amend
the Constitution with a view to harmonise the fundamental rights of the E
individual citizen with the claims of social good.
19. Thus, the decisions of this Court in Champakam Dorairajan
(supra) and Kathi Raning Rawat (supra) establish the proposition that,
while classification is permissible, it cannot be based on any of the factors
mentioned in the Articles 15 and 16 resply. So far as this proposition of F
law is concerned, it still holds good even after the pronouncement of this
Court in the case of Indra Sawhney and Others v. Union of India
and Others reported in 1992 Supp (3) SCC 217 : AIR 1993 SC 477.
20. Article 16 of the Constitution guarantees equality of opportunity
in matters of public employment to all the citizens. Article 16(1) provides G
that there shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State. Clause (2)
of Article 16 further amplifies this equality of opportunity in public
employment, by providing that no citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them, be H
212 SUPREME COURT REPORTS [2022] 14 S.C.R.

A ineligible for, or discriminated against in respect of, any employment or
office under the State. Clause (4) of Article 16 reads thus:
“(4) Nothing in this article shall prevent the State from
making any provision for the reservation of appointments
or posts in favour of any backward class of citizens which,
B in the opinion of the State, is not adequately represented in
the services under the State.”
21. Article 21 pertains to protection of life and personal liberty
and provides that no person shall be deprived of his life or personal
liberty except according to the procedure established by law. This
C important guarantee, though seemingly plain, has been interpreted by
this Court as to include variety of rights which would form part of right
to life and personal liberty, without enjoyment of which the rights, like
the right to life and personal liberty would be meaningless and nugatory.
Right to education has been recognised as one of the facets of Article
21 long before it was codified as one of the fundamental rights separately
D guaranteed under Article 21-A of the Constitution.
22. The Constitution of India was amended by the Eighty-sixth
Amendment Act, 2002, to include the right to education as a fundamental
right under Article 21-A providing that “the State shall provide free and
compulsory education to all children of the age of six to fourteen years
E in such manner as the State may, by law, determine.”
23. Article 29 guarantees protection of interests of minorities and
reads as under:-
“29. Protection of interests of minorities. - (1) Any section
F of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its
own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion, race,
G
caste, language or any of them.”
24. Article 30 pertains to the right of minorities to establish and
administer educational institutions. Clause (1) thereof provides that all
minorities, whether based on religion or language, shall have the right
to establish and administer educational institutions of their choice.
H
JANHIT ABHIYAN v. UNION OF INDIA 213
[J.B. PARDIWALA, J.]

25. Article 46 contained in Part IV provides that the State shall A
promote with special care the educational and economic interests of
the weaker sections of the people, and, in particular, of the Scheduled
Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
26. The Constitution of India places immense importance on the B
fundamental rights for which a separate chapter was dedicated while
framing the Constitution itself. The fact that Article 32 guaranteeing
the right to move the Supreme Court for appropriate proceedings for the
enforcement of rights conferred in Part III itself is contained in the
fundamental rights and thus made a fundamental right, is a strong
indication that such rights were considered sacrosanct. However, it C
has always been recognised while framing the Constitution as well as
while interpreting the same that no right of a citizen can be absolute and
every right would have reasonable restriction. Article 19, for example,
while guaranteeing various individual freedoms to citizens contains various
clauses limiting enjoyment of such rights under specified conditions. D
Likewise, though Article 14 in plain terms provides that the State shall
not deny to any person equality before the law or the equal protection of
the laws, since the earliest days of interpretation of the Constitution, it
has been recognised that this does not imply that there shall be one law
which must apply to every person and that every law framed must
correspondingly cover every person. In legal terminology, it means though E
Article 14 prohibits class legislation, the same does not prevent
reasonable classification. It is, of course, true that for the classification
to be valid and to pass the test of reasonableness twin tests laid down
by this Court, time and again, must be fulfilled. Such tests are that the
classification must be founded on an intelligible differentia which F
distinguishes persons or things that are grouped together from others
left out of the group and that the differentia must have a rational relation
to the object sought to be achieved by the statute in question.
27. Article 14 guarantees equality in very wide terms and is
worded in negative term preventing the State from denying any person G
equality before law or the equal protection of the laws within the territory
of India. Article 15(1), on the other hand, prevents the State from
discriminating against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them. Clause (2) of the Article
further provides that no citizen shall, on grounds only of religion, race,
H
214 SUPREME COURT REPORTS [2022] 14 S.C.R.

A caste, sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to access to shops, public
restaurants, use of wells, tanks, bathing ghats, etc. of public resort
maintained wholly or partly out of State funds or dedicated to the use of
general public. Article 16, in turn, pertains to equality of opportunity in
matters of public employment. Clause (1) of Article 16, as already noted,
B
guarantees equality of opportunity to all citizens in matters of employment
or appointment to any office under the State. Clause (2) thereof, further
amplifies that no citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible for or
discriminated against in respect of, any employment or office under the
C State.
28. Thus, Articles 14, 15 and 16 resply are all different facets of
concept of equality. In different forms, such Articles guarantee equality
of opportunity and equal treatment to all the citizens while specifically
mandating that the State shall not discriminate against the citizens only
D on the grounds of religion, race, caste, sex, descent, place of birth or
any of them. Like Article 14, neither Article 15(1) nor Article 16(1)
prohibits reasonable classification. In other words, the clauses of Articles
15 and 16 respectively guaranteeing non-discrimination on the grounds
only of religion, race, caste, sex, place of birth or equality of opportunity
for all citizens in matters of public employment prohibit hostile
E discrimination, but not reasonable classification. As in Article 14, as
well in Article 15(1), if it is demonstrated that special treatment is meted
out to a class of citizens, not only on the ground of religion, race, caste,
sex, place of birth or any of them, but due to some special reasons and
circumstances, the enquiry would be, does such a classification stand
F the test of reasonableness and in the process, it would be the duty of the
court to examine whether such classification fulfills the above noted
twin conditions, namely, it must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from
others left out of the group and that the differentia must have a rational
relation to the object sought to be achieved by the statute in question.
G (See :- Adam B. Chaki v. Government of India, Writ Petition (PIL)
No. 20 of 2011 (Guj).)
29. In the case of Mohammad Shujat Ali and others v. Union
of India and others, AIR 1974 SC 1631, a Constitution Bench of this
Court in the context of concept of equality flowing from Articles 14 and
H
JANHIT ABHIYAN v. UNION OF INDIA 215
[J.B. PARDIWALA, J.]

16 resply of the Constitution observed that Article 16 is an instance or A
incident of guarantee of equality enshrined in Article 14. It gives effect
to the doctrine of equality in the spheres of public employment. The
constitutional code of equality and equal opportunity, however, does not
mean that the same laws must be applicable to all persons. It was held
and observed as under:-
B
“23. Now we proceed to consider the challenge based on
infraction of Articles 14 and 16 of the Constitution. Article
14 ensures to every person equality before law and equal
protection of the laws and Article 16 lays down that there
shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under C
the State. Article 16 is only an instance or incident of the
guarantee of equality enshrined in Article 14 : It gives
effect to the doctrine of equality in the spheres of public
employment. The concept of equal opportunity to be found
in Article 16 permeates the whole spectrum of an D
individual’s employment from appointment through
promotion and termination to the payment of gratuity and
pension and gives expression to the ideal of equality of
opportunity which is one of the great socio-economic
objectives set out in the Preamble of the Constitution. The
constitutional code of equality and equal opportunity, E
however, does not mean that the same laws must be
applicable to all persons. It does not compel the State to
run “all its laws in the channels of general legislation”. It
recognises that having regard to differences and disparities
which exist among men and things, they cannot all be F
treated alike by the application of the same laws. “To
recognise marked differences that exist in fact is living law;
to disregard practical differences and concentrate on some
abstract identities is lifeless logic.” Morey v. Doud, 354
U.S. 457, p. 473. The Legislature must necessarily, if it is
to be effective at all in solving the manifold problems which G
continually come before it, enact special legislation directed
towards specific ends and limited in its application to
special classes of persons or things. “Indeed, the greater
part of all legislation is special, either in the extent to
H
216 SUPREME COURT REPORTS [2022] 14 S.C.R.

A which it operates, or the objects sought to be attained by
it.” (1889) 134 US 594.
24. We thus arrive at the point at which the demand for
equality confronts the right to classify. For it is the
classification which determines the range of persons
B affected by the special burden or benefit of a law which
does not apply to all persons. This brings out a paradox.
The equal protection of the laws is a “pledge of the
protection of equal laws.” But laws may classify. And, as
pointed out by Justice Brewer, “the very idea of
classification is that of inequality’’. The court has tackled
C this paradox over the years and in doing so, it has neither
abandoned the demand for equality nor denied the
legislative right to classify. It has adopted a middle course
of realistic reconciliation. It has resolved the contradictory
demands of legislative specialization and constitutional
D generality by a doctrine of reasonable classification. This
doctrine recognises that the legislature may classify for
the purpose of legislation but requires that the classification
must be reasonable. It should ensure that persons or things
similarly situated are all similarly treated. The measure of
reasonableness of a classification is the degree of its
E success in treating similarly those similarly situated. “The
Equal Protection of the Laws’’, 37 California Law Review,
341.
25. But the question is : what does this ambiguous and
crucial phrase “similarly situated’’ mean? Where are we to
F look for the test of similarity of situation which determines
the reasonableness of a classification? The inescapable
answer is that we must look beyond the classification to
the purpose of the law. A reasonable classification is one
which includes all persons or things similarly situated with
G respect to the purpose of the law. There should be no
discrimination between one person or thing and another,
if as regards the subject-matter of the legislation their
position is substantially the same. This is sometimes
epigrammatically described by saying that what the
constitutional code of equality and equal opportunity
H
JANHIT ABHIYAN v. UNION OF INDIA 217
[J.B. PARDIWALA, J.]

requires is that among equals, the law should be equal A
and that like should be treated alike. But the basic principle
underlying the doctrine is that the legislature should have
the right to classify and imposed special burdens upon or
grant special benefits to persons or things grouped
together under the classification, so long as the
B
classification is of persons or things similarly situated with
respect to the purpose of the legislation, so that all persons
or things similarly situated are treated alike by law. The
test which has been evolved for this purpose is % and this
test has been consistently applied by this Court in all
decided cases since the commencement of the Constitution C
% that the classification must be founded on an intelligible
differentia which distinguishes certain persons or things
that are grouped together from others and that differentia
must have a rational relation to the object sought to be
achieved by the legislation.” [Emphasis supplied]
D
30. While doing so, a note of caution was sounded that the
fundamental guarantee is of equal protection of the laws and the doctrine
of classification is only a subsidiary rule evolved by the courts to give a
practical content to that guarantee by accommodating it with the practical
needs of the society and it should not be allowed to submerge and drown
the precious guarantee of equality. E

31. In the case of State of Kerala and Another v. N.M. Thomas
and Others, (1976) 2 SCC 310, Mathew, J. observed that Articles 16(1)
and 16(2) resply of the Constitution do not prohibit prescription of a
reasonable classification for appointment or for promotion. Any provision
as to qualification for employment or appointment to an office reasonably F
fixed and applicable to all would be consistent with the doctrine of equality
of opportunity under Article 16(1). It was observed that classification is
reasonable if it includes all persons who are similarly situated with respect
to the purpose of the law.
32. In the case of Indra Sawhney (supra), B.P. Jeevan Reddy, J. G
in his majority opinion, observed in para 733 that Article 16(1) is a facet
of Article 14. Just as Article 14 permits reasonable classification so
does Article 16(1).

H
218 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 33. In a judgment of the Constitution Bench of this Court, in the
case of E.P. Royappa v. State of Tamil Nadu and Another, AIR 1974
SC 555, Bhagwati, J. in the context of co-relation between Article 14
and Article l6 of the Constitution observed as under: -
“85. The last two grounds of challenge may be taken up
B together for consideration. Though we have formulated
the third ground of challenge as a distinct and separate
ground it is really in substance and effect merely an aspect
of the second ground based on violation of Arts. 14 and
16. Article 16 embodies the fundamental guarantee that
there shall be equality of opportunity for all citizens in
C matters relating to employment or appointment to any office
under the State. Though enacted as a distinct and
independent fundamental right because of its great
importance as a principle ensuring equality of opportunity
in public employment which is so vital to the building up of
D the new classless egalitarian society envisaged in the
Constitution, Art. 16 is only an instance of the application
of the concept of equality enshrined in Article 14. In other
words, Art. 14 is the genus while Art. 16 is a species. Article
16 gives effect to the doctrine of equality in all matters
relating to public employment. The basic principle which,
E therefore, informs both Arts. 14 and 16 is equality and
inhibition against discrimination. Now, what is the content
and reach of this great equalising principle? It is a founding
faith, to use the words of Bose, J., “a way of life’’, and it
must not be subjected to a narrow pedantic or
F lexicographic approach. We cannot countenance any
attempt to truncate its all embracing scope and meaning,
for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and
dimensions and it cannot be “cribbed, cabined and
confined’’ within traditional and doctrinaire limits. From a
G positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
H both according to political logic and constitutional law and
JANHIT ABHIYAN v. UNION OF INDIA 219
[J.B. PARDIWALA, J.]

is therefore violative of Article 14, and if it affects any A
matter relating to public employment, it is also violative of
Art. 16. Articles 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment. They
require that State action must be based on valid relevant
principles applicable alike to all similarly situate and it
B
must not be guided by any extraneous or irrelevant
considerations because that would be denial of equality.
Where the operative reason for State action, as
distinguished from motive inducing from the antechamber
of the mind, is not legitimate and relevant but is extraneous
and outside the area of permissible considerations, it would C
amount to mala fide exercise of power and that is hit by
Arts. 14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating from
the same vice: in fact the latter comprehends the former.
Both are inhibited by Arts. 14 and 16.”
D
34. Similar observations were made also in the context of
co-relation between Articles 14 and 16 resply in the case of
Govt. of Andhra Pradesh v. P.B. Vijaykumar and another, AIR
1995 SC 1648. It was observed thus:
“6. This argument ignores Article 15(3). The interrelation E
between Articles 14, 15 and 16 has been considered in a
number of cases by this Court. Art. 15 deals with every
kind of State action in relation to the citizens of this country.
Every sphere of activity of the State is controlled by Article
15(1). There is, therefore, no reason to exclude from the
ambit of Article 15(1) employment under the State. At the F
same time Article 15(3) permits special provisions for
women. Both Arts. 15(1) and 15(3) go together. In addition
to Art. 15(1) Art. 16(1), however, places certain additional
prohibitions in respect of a specific area of State activity
viz. employment under the State. These are in addition to G
the grounds of prohibition enumerated under Article 15(1)
which are also included under Article 16(2). There are,
however, certain specific provisions in connection with
employment under the State under Article 16. Article 16(3)
permits the State to prescribe a requirement of residence
H
220 SUPREME COURT REPORTS [2022] 14 S.C.R.

A within the State or Union Territory by parliamentary
legislation; while Article 16(4) permits reservation of posts
in favour of backward classes. Article 16(5) permits a law
which may require a person to profess a particular religion
or may require him to belong to a particular religious
denomination, if he is the incumbent of an office in
B
connection with the affairs of the religious or
denominational institution. Therefore, the prohibition
against discrimination of the grounds set out in Article 16(2)
in respect of any employment or office under the State is
qualified by clauses 3,4 and 5 of Article 16. Therefore, in
C dealing with employment under the State, it has to bear in
mind both Articles 15 and 16 % the former being a more
general provision and the latter, a more specific provision.
Since Article 16 does not touch upon any special provision
for women being made by the State, it cannot in any manner
derogate from the power conferred upon the State in this
D
connection under Article 15(3). This power conferred by
Article 15(3) is wide enough to cover the entire range of
State activity including employment under the State.”
35. In the case of State of Kerala v. N.M. Thomas (supra),
A.N. Ray, CJ also advanced this theory, observing that there is no
E denial of equality of opportunity unless the person who complains of
discrimination is equally situated with the person or persons who are
alleged to have been favoured. Article 16(1) does not bar a reasonable
classification. It was observed as under:-
“27. There is no denial of equality of opportunity unless
F the person who complains of discrimination is equally
situated with the person or persons who are alleged to
have been favoured. Article 16(1) does not bar a
reasonable classification of employees or reasonable tests
for their selection (State of Mysore v. V. P. Narasing Rao
G (1968) 1 SCR 407 : AIR 1968 SC 349 : (1968) 2 LLJ
120).
28. This equality of opportunity need not be confused
with absolute equality. Article 16(1) does not prohibit the
prescription of reasonable rules for selection to any
H employment or appointment to any office. In regard to
JANHIT ABHIYAN v. UNION OF INDIA 221
[J.B. PARDIWALA, J.]

employment, like other terms and conditions associated with A
and incidental to it, the promotion to a selection post is
also included in the matters relating to employment and
even in regard to such a promotion to a selection post all
that Article 16(1) guarantees is equality of opportunity to
all citizens. Articles 16(1) and (2) give effect to equality
B
before law guaranteed by Article 14 and to the prohibition
of discrimination guaranteed by Article 15(1). Promotion
to selection post is covered by Article 16(1) and (2).
x x x x
30. Under Article 16(1) equality of opportunity of C
employment means equality as between members of the
same class of employees and not equality between members
of separate, independent class. The Roadside Station
Masters and Guards are recruited separately, trained
separately and have separate avenues of promotion. The
Station Masters claimed equality of opportunity for D
promotion vis-a-vis the guards on the ground that they were
entitled to equality of opportunity. It was said the concept
of equality can have no existence except with reference to
matters which are common as between individuals, between
whom equality is predicated. The Roadside Station Masters E
and Guards were recruited separately. Therefore, the two
form distinct and separate classes and there is no scope
for predicating equality or inequality of opportunity in
matters of promotion. (See All India Station Masters and
Assistant Station Masters’ Association v. General Manager,
Central Railway (1960) 2 SCR 311 : AIR 1960 SC 384). F
The present case is not to create separate avenues of
promotion for these persons.
31. The rule of parity is the equal treatment of equals in
equal circumstances. The rule of differentiation is enacting
laws differentiating between different persons or things in G
different circumstances. The circumstances which govern
one set of persons or objects may not necessarily be the
same as those governing another set of persons or objects
so that the question of unequal treatment does not really
arise between persons governed by different conditions H
222 SUPREME COURT REPORTS [2022] 14 S.C.R.

A and different sets of circumstances. The principle of equality
does not mean that every law must have universal
application for all persons who are not by nature,
attainment or circumstances in the same position and the
varying needs of different classes of persons require special
treatment. The Legislature understands and appreciates the
B
need of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations
are based upon adequate grounds. The rule of
classification is not a natural and logical corollary of the
rule of equality, but the rule of differentiation is inherent
C in the concept of equality. Equality means parity of
treatment under parity of conditions. Equality does not
connote absolute equality. A classification in order to be
constitutional must rest upon distinctions that are
substantial and not merely illusory. The test is whether it
has a reasonable basis free from artificiality and
D
arbitrariness embracing all and omitting none naturally
falling into that category.”
36. Education, by now, which is well recognised through judicial
pronouncements and outside, is perhaps the most fundamental requirement
of development. Without access to quality basic education, it would be
E impossible in the modern world to expect any individual, race, class or
community to make any real advancement. While recognising the role
of education to achieve development and to provide equality of
opportunity, the Courts have also recognised that the State has an
important role, in fact an obligation, to provide quality basic education to
F all the citizens. Long before the Constitution was amended by introduction
of Article 21-A, providing for free and compulsory education to children
between age of 6 and 14 years, this Court had been expanding this principle
through purposive interpretation and meaningful construction of guarantee
to life and liberty enshrined under Article 21 of the Constitution. In case
of Mohini Jain (Miss) v. State of Karnataka and Others, (1992) 3
G SCC 666, this Court observed as under: -
“9. The directive principles which are fundamental in the
governance of the country cannot be isolated from the
fundamental rights guaranteed under Part III. These
principles have to be read into the fundamental rights. Both
H
JANHIT ABHIYAN v. UNION OF INDIA 223
[J.B. PARDIWALA, J.]

are supplementary to each other. The State is under a A
constitutional mandate to create conditions in which the
fundamental rights guaranteed to the individuals under
Part III could be enjoyed by all. Without making “right to
education” under Article 41 of the Constitution a reality
the fundamental rights under Chapter III shall remain
B
beyond the reach of large majority which is illiterate.
x x x x
12. “Right to life” is the compendious expression for all
those rights which the Courts must enforce because they
are basic to the dignified enjoyment of life. It extends to C
the full range of conduct which the individual is free to
pursue. The right to education flows directly from right to
life. The right to life under Article 21 and the dignity of an
individual cannot be assured unless it is accompanied by
the right to education. The State Government is under an
obligation to make endeavour to provide educational D
facilities at all levels to its citizens.
13. The fundamental rights guaranteed under Part III of
the Constitution of India including the right to freedom of
speech and expression and other rights under Article 19
cannot be appreciated and fully enjoyed unless a citizen E
is educated and is conscious of his individualistic dignity.
14. The “right to education”, therefore, is concomitant to
the fundamental rights enshrined under Part III of the
Constitution. The State is under a constitutional mandate
to provide educational institutions at all levels for the F
benefit of the citizens. The educational institutions must
function to the best advantage of the citizens. Opportunity
to acquire education cannot be confined to the richer
section of the society. Increasing demand for medical
education has led to the opening of large number of medical G
colleges by private persons, groups and trusts with the
permission and recognition of State Governments. The
Karnataka State has permitted the opening of several new
medical colleges under various private bodies and
organisations. These institutions are charging capitation
H
224 SUPREME COURT REPORTS [2022] 14 S.C.R.

A fee as a consideration for admission. Capitation fee is
nothing but a price for selling education. The concept of
‘teaching shops’ is contrary to the constitutional scheme
and is wholly abhorrent to the Indian culture and heritage.
As far back as December 1980 the Indian Medical
Association in its 56th All India Medical Conference held
B
at Cuttack on December 28-30, 1980 passed the following
resolutions:
“The 56th All India Medical Conference views with great
concern the attitude of State Governments particularly the
State Government of Karnataka in permitting the opening
C of new medical colleges under various bodies and
organisations in utter disregard to the recommendations
of Medical Council of India and urges upon the authorities
and the Government of Karnataka not to permit the opening
of any new medical college, by private bodies.
D It further condemns the policy of admission on the
basis of capitation fees. This commercialisation of
medical education endangers the lowering of
standards of medical education and encourages bad
practice.”” [Emphasis supplied]
E 37. In the case of Unni Krishnan, J.P. and Others v. State of
Andhra Pradesh and Others, (1993) 1 SCC 645, the decision in the
case of Mohini Jain (supra) came up for consideration before a larger
Bench of this Court. While not approving the judgment in toto, the above
concept was further expanded and refined. It was observed as under: -
F “168. In Brown v. Board of Education [98 L Ed 873 : 347
US 483 (1954)] Earl Warren, C. J., speaking for the U.S.
Supreme Court emphasised the right to education in the
following words:
“Today, education is perhaps the most
G important function of State and local governments
.... It is required in the performance of our most basic
responsibilities, even service in the armed forces. It
is the very foundation of good citizenship. Today it
is the principal instrument in awakening the child to
cultural values, in preparing him for later
H
JANHIT ABHIYAN v. UNION OF INDIA 225
[J.B. PARDIWALA, J.]

professional training, and in helping him to adjust A
normally to his environment. In these days, it is
doubtful any child may reasonably be expected to
succeed in life if he is denied the opportunity of an
education.”
B
169. In Wisconsin v. Yoder [32 L Ed 2d 15 : 406 US 205
(1971)] the court recognised that:
“Providing public schools ranks at the very
apex of the function of a State.”
C
The said fact has also been affirmed by eminent
educationists of modern India like Dr Radhakrishnan, J.
P. Naik, Dr Kothari and others.
170. It is argued by some of the counsel for the petitioners
that Article 21 is negative in character and that it merely D
declares that no person shall be deprived of his life or
personal liberty except according to the procedure
established by law. Since the State is not depriving the
respondents’-students of their right to education, Article
21 is not attracted, it is submitted. If and when the State
makes a law taking away the right to education, would E
Article 21 be attracted, according to them. This argument,
in our opinion, is really born of confusion; at any rate, it
is designed to confuse the issue. The first question is
whether the right to life guaranteed by Article 21 does
take in the right to education or not. It is then that the F
second question arises whether the State is taking away
that right. The mere fact that the State is not taking away
the right as at present does not mean that right to education
is not included within the right to life. The content of the
right is not determined by perception of threat. The content
of right to life is not to be determined on the basis of G
existence or absence of threat of deprivation. The effect
of holding that right to education is implicit in the right to
life is that the State cannot deprive the citizen of his right
to education except in accordance with the procedure
prescribed by law.
H
226 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 171. In the above state of law, it would not be correct to
contend that Mohini Jain [Mohini Jain v. State of
Karnataka, (1992) 3 SCC 666] was wrong insofar as it
declared that “the right to education flows directly from
right to life”. But the question is what is the content of this
right? How much and what level of education is necessary
B
to make the life meaningful? Does it mean that every citizen
of this country can call upon the State to provide him
education of his choice? In other words, whether the citizens
of this country can demand that the State provide adequate
number of medical colleges, engineering colleges and other
C educational institutions to satisfy all their educational
needs? Mohini Jain [Mohini Jain v. State of Karnataka,
(1992) 3 SCC 666] seems to say, yes. With respect, we cannot
agree with such a broad proposition. The right to education
which is implicit in the right to life and personal liberty
guaranteed by Article 21 must be construed in the light of
D
the directive principles in Part IV of the Constitution. So
far as the right to education is concerned, there are several
articles in Part IV which expressly speak of it. Article 41
says that the “State shall, within the limits of its economic
capacity and development, make effective provision for
E securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness
and disablement, and in other cases of undeserved want”.
Article 45 says that “the State shall endeavour to provide,
within a period of ten years from the commencement of
this Constitution, for free and compulsory education for
F
all children until they complete the age of fourteen years”.
Article 46 commands that “the State shall promote with
special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall
G protect them from social injustice and all forms of
exploitation”. Education means knowledge % and
“knowledge itself is power”. As rightly observed by John
Adams, “the preservation of means of knowledge among
the lowest ranks is of more importance to the public than
all the property of all the rich men in the country”.
H
JANHIT ABHIYAN v. UNION OF INDIA 227
[J.B. PARDIWALA, J.]

(Dissertation on Canon and Feudal Law, 1765) It is this A
concern which seems to underlie Article 46. It is the tyrants
and bad rulers who are afraid of spread of education and
knowledge among the deprived classes. Witness Hitler
railing against universal education. He said: “Universal
education is the most corroding and disintegrating poison
B
that liberalism has ever invented for its own destruction.”
(Rauschning, The Voice of Destruction: Hitler speaks.) A
true democracy is one where education is universal, where
people understand what is good for them and the nation
and know how to govern themselves. The three Articles
45, 46 and 41 are designed to achieve the said goal among C
others. It is in the light of these Articles that the content
and parameters of the right to education have to be
determined. Right to education, understood in the context
of Articles 45 and 41, means: (a) every child/citizen of
this country has a right to free education until he completes
D
the age of fourteen years, and (b) after a child/citizen
completes 14 years, his right to education is circumscribed
by the limits of the economic capacity of the State and its
development. We may deal with both these limbs separately.
172. Right to free education for all children until they
complete the age of fourteen years (Art.45). It is noteworthy E
that among the several articles in Part IV, only Article 45
speaks of a time-limit; no other article does. Has it no
significance? Is it a mere pious wish, even after 44 years
of the Constitution? Can the State flout the said direction
even after 44 years on the ground that the article merely F
calls upon it to “endeavour to provide” the same and on
the further ground that the said article is not enforceable
by virtue of the declaration in Article 37. Does not the
passage of 44 years % more than four times the period
stipulated in Article 45 % convert the obligation created
by the article into an enforceable right? In this context, we G
feel constrained to say that allocation of available funds
to different sectors of education in India discloses an
inversion of priorities indicated by the Constitution. The
Constitution contemplated a crash programme being
H
228 SUPREME COURT REPORTS [2022] 14 S.C.R.

A undertaken by the State to achieve the goal set out in
Article 45. It is relevant to notice that Article 45 does not
speak of the “limits of its economic capacity and
development” as does Article 41, which inter alia speaks
of right to education. What has actually happened is %
more money is spent and more attention is directed to higher
B
education than to % and at the cost of % primary
education. (By primary education, we mean the education,
which a normal child receives by the time he completes 14
years of age.) Neglected more so are the rural sectors,
and the weaker sections of the society referred to in Article
C 46. We clarify, we are not seeking to lay down the priorities
for the government % we are only emphasising the
constitutional policy as disclosed by Articles 45, 46 and
41. Surely the wisdom of these constitutional provisions is
beyond question. This inversion of priorities has been
commented upon adversely by both the educationists and
D
economists.
173. Gunnar Myrdal, the noted economist and sociologist,
a recognised authority on South Asia, in his book ‘Asian
Drama’ (Abridged Edition % published in 1972) makes
these perceptive observations at page 335:
E
“But there is another and more valid criticism to
make. Although the declared purpose was to give
priority to the increase of elementary schooling in
order to raise the rate of literacy in the population,
what has actually happened is that secondary
F schooling has been rising much faster and tertiary
schooling has increased still more rapidly. There is
a fairly general tendency for planned targets of
increased primary schooling not to be reached,
whereas targets are over-reached, sometimes
G substantially, as regards increases in secondary and,
particularly, tertiary schooling. This has all happened
in spite of the fact that secondary schooling seems
to be three to five times more expensive than primary
schooling, and schooling at the tertiary level five to
seven times more expensive than at the secondary
H level.
JANHIT ABHIYAN v. UNION OF INDIA 229
[J.B. PARDIWALA, J.]

What we see functioning here is the distortion of A
development from planned targets under the influence
of the pressure from parents and pupils in the upper
strata who everywhere are politically powerful. Even
more remarkable is the fact that this tendency to
distortion from the point of view of the planning
B
objectives is more accentuated in the poorest
countries, Pakistan, India, Burma and Indonesia,
which started out with far fewer children in primary
schools and which should therefore have the strongest
reasons to carry out the programme of giving primary
schooling the highest priority. It is generally the C
poorest countries that are spending least, even
relatively, on primary education, and that are
permitting the largest distortions from the planned
targets in favour of secondary and tertiary
education.”
D
174. In his other book Challenge of World Poverty
(published in 1970, Chapter 6 ‘Education’) he discusses
elaborately the reasons for and the consequences of neglect
of basic education in this country. He quotes J.P. Naik,
(the renowned educationist, whose Report of the Education
Commission, 1966 is still considered to be the most E
authoritative study of the education scene in India) as
saying “Educational development … is benefitting the
‘haves’ more than the ‘have nots’. This is a negation of
social justice and ‘planning’ proper” % and our
Constitution speaks repeatedly of social justice [Preamble F
and Article 38(1)]. As late as 1985, the Ministry of
Education had this to say in para 3.74 of its publication
Challenge of Education % A Policy Perspective. It is stated
there:
“3.74. Considering the constitutional imperative G
regarding the universalisation of elementary
education it was to be expected that the share of
this sector would be protected from attribution (sic).
Facts, however, point in the opposite direction. From
a share of 56 per cent in the First Plan, it declined to
35 per cent in the Second Plan, to 34 per cent in H
230 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the Third Plan, to 30 per cent in the Fourth Plan. It
started going up again only in the Fifth Plan, when
it was at the level of 32 per cent, increasing in Sixth
Plan to 36 per cent, still 20 per cent below the First
Plan level. On the other hand, between the First and
the Sixth Five Year Plans, the share of university
B
education went up from 9 per cent to 16 per cent.”
175. Be that as it may, we must say that at least now the
State should honour the command of Article 45. It must be
made a reality % at least now. Indeed, the National
Education Policy 1986 says that the promise of Article 45
C will be redeemed before the end of this century. Be that as
it may, we hold that a child (citizen) has a fundamental
right to free education up to the age of 14 years.”
38. The decision of this Court in the case of Unni Krishnan
(supra) was later on overruled in a larger Bench decision in the case of
D T.M.A. Pai Foundation and Others v. State of Karnataka and Others,
(2002) 8 SCC 481, but on a different point.
39. In the case of Society for Unaided Private Schools of
Rajasthan v. Union of India and Another, (2012) 6 SCC 1, this Court
considered the validity of the Right of Children to Free and Compulsory
E Education Act, 2009 insofar as it made the provisions therein applicable
to unaided non-minority schools. S.H. Kapadia, CJ, speaking for the
majority, observed as under:
“27. At the outset, it may be stated, that fundamental rights
have two aspects%they act as fetters on plenary legislative
F powers and, secondly, they provide conditions for fuller
development of our people including their individual
dignity. Right to live in Article 21 covers access to
education. But unaffordability defeats that access. It
defeats the State’s endeavour to provide free and
G compulsory education for all children of the specified age.
To provide for free and compulsory education in Article
45 is not the same thing as to provide free and compulsory
education. The word “for” in Article 45 is a preposition.
The word “education” was read into Article 21 by the

H
JANHIT ABHIYAN v. UNION OF INDIA 231
[J.B. PARDIWALA, J.]

judgments of this Court. However, Article 21 merely A
declared “education” to fall within the contours of right
to live.
28. To provide for right to access education, Article 21-A
was enacted to give effect to Article 45 of the Constitution.
Under Article 21-A, right is given to the State to provide B
by law “free and compulsory education”. Article 21-A
contemplates making of a law by the State. Thus, Article
21-A contemplates right to education flowing from the law
to be made which is the 2009 Act, which is child-centric
and not institution-centric. Thus, as stated, Article 21-A
provides that the State shall provide free and compulsory C
education to all children of the specified age in such manner
as the State may, by law, determine. The manner in which
this obligation will be discharged by the State has been
left to the State to determine by law. The 2009 Act is thus
enacted in terms of Article 21-A. It has been enacted D
primarily to remove all barriers (including financial
barriers) which impede access to education.”
40. I am conscious of the fact that the economically weaker
sections of the citizens are not declared as socially and economically
backward classes (SEBCs) for the purpose of Article 15(4) of the E
Constitution. However, for the purpose of judging the validity of the
impugned amendment, this, in my view, would not be of any consequence.
One should take notice of the fact that Article 16(4) of the Constitution
refers to backward class of citizens, which in the opinion of the State, is
not adequately represented in the services under the State. In such a
case, it is provided that nothing in that Article shall prevent the State F
from making any provision for the reservation of appointments or posts
in favour of such backward classes of the citizens. On the other hand,
Article 15(4) refers to socially and educationally backward classes of
citizens along with the Scheduled Castes or the Scheduled Tribes and
provides that nothing in that Article or Article 29(2) shall prevent the G
State from making any special provision for the advancement of such
classes. Article 16(4) pertains to backward class of citizens for the
purpose of making reservation in public employment. Article 15(4), on
the other hand, refers to socially and educationally backward classes for
the purpose of making any special provision by the State for the
H
232 SUPREME COURT REPORTS [2022] 14 S.C.R.

A advancement of such classes. While affirmative action implied in Article
16(4) is restricted to reservation in employment, Article 15(4) has a wider
canvass and reach by virtue of the pronounced purpose of making special
provision.
41. Such a distinction between the two provisions was noticed by
B this Court in the case of Indra Sawhney (supra) wherein Reddy, J.
speaking for the majority, observed as under:
“(c) Whether the backwardness in Article 16(4) should
be both social and educational?
786. The other aspect to be considered is whether the
C backwardness contemplated in Article 16(4) is social
backwardness or educational backwardness or whether it
is both social and educational backwardness. Since the
decision in Balaji (M.R. Balaji v. State of Mysore, 1963
Supp 1 SCR 439: AIR 1963 SC 649) it has been assumed
D that the backward class of citizens contemplated by Article
16(4) is the same as the socially and educationally backward
classes, Scheduled Castes and Scheduled Tribes mentioned
in Article 15(4). Though Article 15(4) came into existence
later in 1951 and Article 16(4) does not contain the
qualifying words “socially and educationally” preceding
E the words “backward class of citizens” the same meaning
came to be attached to them. Indeed, it was stated in Janki
Prasad Parimoo (Janki Prasad Parimoo v. State of J & K,
(1973) 1 SCC 420: 1973 SCC (L&S) 217: (1973) 3 SCR
236) (Palekar, J speaking for the Constitution Bench) that:
F “Article 15(4) speaks about ‘socially and
educationally backward classes of citizens’ while
Article 16(4) speaks only of ‘any backward class
citizens’. However, it is now settled that the
expression ‘backward class of citizens’ in Article
G 16(4) means the same thing as the expression ‘any
socially and educationally backward class of citizens’
in Article 15(4). In order to qualify for being called
a ‘backward class citizen’ he must be a member of a
socially and educationally backward class. It is social
and educational backwardness of a class which is
H
JANHIT ABHIYAN v. UNION OF INDIA 233
[J.B. PARDIWALA, J.]

material for the purposes of both Articles 15(4) and A
16(4).”
787. It is true that no decision earlier to it specifically
said so, yet such an impression gained currency and it is
that impression which finds expression in the above
observation. In our respectful opinion, however, the said B
assumption has no basis. Clause (4) of Article 16 does
not contain the qualifying words “socially and
educationally” as does clause (4) of Article 15. It may be
remembered that Article 340 (which has remained
unamended) does employ the expression ‘socially and
educationally backward classes’ and yet that expression C
does not find place in Article 16(4). The reason is obvious:
“backward class of citizens” in Article 16(4) takes in
Scheduled Tribes, Scheduled Castes and all other backward
classes of citizens including the socially and educationally
backward classes. Thus, certain classes which may not D
qualify for Article 15(4) may qualify for Article 16(4). They
may not qualify for Article 15(4) but they may qualify as
backward class of citizens for the purposes of Article 16(4).
It is equally relevant to notice that Article 340 does not
expressly refer to services or to reservations in services
under the State, though it may be that the Commission E
appointed thereunder may recommend reservation in
appointments/posts in the services of the State as one of
the steps for removing the difficulties under which SEBCs
are labouring and for improving their conditions. Thus,
SEBCs referred to in Article 340 is only one of the F
categories for whom Article 16(4) was enacted: Article
16(4) applies to a much larger class than the one
contemplated by Article 340. It would, thus, be not correct
to say that ‘backward class of citizens’ in Article 16(4) are
the same as the socially and educationally backward
classes in Article 15(4). Saying so would mean and imply G
reading a limitation into a beneficial provision like Article
16(4). Moreover, when speaking of reservation in
appointments/posts in the State services % which may mean,

H
234 SUPREME COURT REPORTS [2022] 14 S.C.R.

A at any level whatsoever % insisting upon
educational backwardness may not be quite
appropriate.” (Emphasis supplied)
42. Despite such legal distinction drawn by this Court between
the “backward classes” referred to in Article 16(4) and “socially and
B educationally backward classes” referred to in Article 15(4) of the
Constitution, in the practice which has developed over a period of time,
such distinction has been virtually obliterated. It is an undisputed position
that the State has been categorising various classes and communities as
socially and educationally backward classes (SEBCs) often referred to
in popular term as the Other Backward Classes or OBCs. Such list is
C common for both the benefits envisaged under Article 16(4) of the
Constitution as well as Article 15(4). In other words, it is this very list
of SEBCs which is utilised by the State organs for the purpose of granting
reservation in public employment in terms of Article 16(4) of the
Constitution. This very classification of the SEBC status also qualifies
D the member of the community to reservation in education including
professional courses which would flow from the provisions made in Article
15(4) of the Constitution.
43. Though previously Articles 15(4) and 16(4) resply were seen
as exception of the equality enshrined in the Articles 15(1) and 16(1)
E respectively, this understanding of the constitutional provisions underwent
a major change in the decision in N.M. Thomas (supra). Mathew J,
observed as under:-
“78. I agree that Article 16(4) is capable of being
interpreted as an exception to Article 16(1) if the equality
F of opportunity visualized in Article 16(1) is a sterile one,
geared to the concept of numerical equality which takes
no account of the social, economic, educational
background of the members of scheduled castes and
scheduled tribes. If equality of opportunity guaranteed
under Article 16(1) means effective material equality, then
G Article 16(4) is not an exception to Article 16(1). It is only
an emphatic way of putting the extent to which equality of
opportunity could be carried viz., even upto the point of
making reservation.”

H
JANHIT ABHIYAN v. UNION OF INDIA 235
[J.B. PARDIWALA, J.]

44. This change in the approach was noticed and amplified by this A
Court in the larger Bench judgment in the case of Indra Sawhney (supra).
It was observed as under: -
“741. In Balaji [M.R. Balaji v. State of Mysore,1963 Supp
1 SCR 439 : AIR 1963 SC 649] it was held — “there is no
doubt that Article 15(4) has to be read as a proviso or an B
exception to Articles 15(1) and 29(2)”. It was observed
that Article 15(4) was inserted by the First Amendment in
the light of the decision in Champakam [ State of Madras
v. Smt Champakam Dorairajan, 1951 SCR 525 : AIR 1951
SC 226], with a view to remove the defect pointed out by
this court namely, the absence of a provision in Article 15 C
corresponding to clause (4) of Article 16.
Following Balaji [M.R. Balaji v. State of Mysore, 1963
Supp 1 SCR 439 : AIR 1963 SC 649] it was held by another
Constitution Bench (by majority) in Devadasan [T.
Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 D
SC 179 : (1965) 2 LLJ 560] — “further this Court has
already held that clause (4) of Article 16 is by way of a
proviso or an exception to clause (1)”. Subba Rao, J,
however, opined in his dissenting opinion that Article 16(4)
is not an exception to Article 16(1) but that it is only an
emphatic way of stating the principle inherent in the main E
provision itself. Be that as it may, since the decision
in Devadasan [T. Devadasan v. Union of India, (1964) 4
SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] , it was
assumed by this Court that Article 16(4) is an exception to
Article 16(1). This view, however, received a severe setback F
from the majority decision in State of Kerala v. N.M.
Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227 : (1976)
1 SCR 906]. Though the minority (H.R. Khanna and A.C.
Gupta, JJ) stuck to the view that Article 16(4) is an
exception, the majority (Ray, CJ, Mathew, Krishna Iyer
and Fazal Ali, JJ) held that Article 16(4) is not an exception G
to Article 16(1) but that it was merely an emphatic way of
stating a principle implicit in Article 16(1). (Beg, J took a
slightly different view which it is not necessary to mention
here.) The said four learned Judges — whose views have
H
236 SUPREME COURT REPORTS [2022] 14 S.C.R.

A been referred to in para 713 — held that Article 16(1) being
a facet of the doctrine of equality enshrined in Article 14
permits reasonable classification just as Article 14 does.
In our respectful opinion, the view taken by the majority
in Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227 :
(1976) 1 SCR 906] is the correct one. We too believe that
B
Article 16(1) does permit reasonable classification for
ensuring attainment of the equality of opportunity assured
by it. For assuring equality of opportunity, it may well be
necessary in certain situations to treat unequally situated
persons unequally. Not doing so, would perpetuate and
C accentuate inequality. Article 16(4) is an instance of such
classification, put in to place the matter beyond
controversy. The “backward class of citizens” are
classified as a separate category deserving a special
treatment in the nature of reservation of appointments/posts
in the services of the State. Accordingly, we hold that clause
D
(4) of Article 16 is not exception to clause (1) of Article
16. It is an instance of classification implicit in and
permitted by clause (1). The speech of Dr Ambedkar during
the debate on draft Article 10(3) [corresponding to Article
16(4)] in the Constituent Assembly — referred to in para
E 693 — shows that a substantial number of members of the
Constituent Assembly insisted upon a “provision (being)
made for the entry of certain communities which have so
far been outside the administration”, and that draft clause
(3) was put in in recognition and acceptance of the said
demand. It is a provision which must be read along with
F
and in harmony with clause (1). Indeed, even without clause
(4), it would have been permissible for the State to have
evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause
(4) merely puts the matter beyond any doubt in specific
G terms.
742. Regarding the view expressed in Balaji [ M.R. Balaji
v. State of Mysore, 1963 Supp 1 SCR 439 : AIR 1963 SC
649] and Devadasan [T. Devadasan v. Union of India,
(1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560],
H
JANHIT ABHIYAN v. UNION OF INDIA 237
[J.B. PARDIWALA, J.]

it must be remembered that at that time it was not yet A
recognised by this Court that Article 16(1) being a facet
of Article 14 does implicitly permit classification. Once this
feature was recognised the theory of clause (4) being an
exception to clause (1) became untenable. It had to be
accepted that clause (4) is an instance of classification
B
inherent8 in clause (1). Now, just as Article 16(1) is a facet
or an elaboration of the principle underlying Article 14,
clause (2) of Article 16 is also an elaboration of a facet of
clause (1). If clause (4) is an exception to clause (1) then
it is equally an exception to clause (2). Question then arises,
in what respect if clause (4) an exception to clause (2), if C
‘class’ does not means ‘caste’. Neither clause (1) nor
clause (2) speak of class. Does the contention mean that
clause (1) does not permit classification and therefore
clause (4) is an exception to it. Thus, from any point of
view, the contention of the petitioners has no merit.”
D
45. In that context, this Court answered the question whether
Article 16(4) is exhaustive of the very concept of reservation. It was
held that though Article 16(4) is exhaustive for reservation in favour of
backward classes and no further special treatment is permissible in their
favour outside of Article 16(4), Article 16(4) itself is not exhaustive of
the concept of reservation. It was held that Article 16(1) itself, of course, E
in very exceptional situations and not for all and sundry reasons permits
reservations. The contention that Article 16(1) permits preferential
treatment and not reservation was thus rejected.
46. According to the Constitutional scheme, the right to education
forms part of the right to life under Article 21 and the right to education F
is incorporated separately and in clear terms as an independent
fundamental right in the form of Article 21-A. That Article is couched in
the language which is mandatory insofar as the State is obliged to provide
free and compulsory education to all children of the age of 6 to 14
years. The matter of free and compulsory primary education has been G
perceived to be so important even at the time of drafting of the Constitution
that Articles 45 and 46 resply were incorporated in Part IV of the
Constitution to lay the principles fundamental in the governance of the
country and they were made the duty of the State to apply those
principles in making laws by virtue of Article 37. Now that right to
H
238 SUPREME COURT REPORTS [2022] 14 S.C.R.

A education is not only declared as fundamental right of every child, but
the State has been obliged to provide free and compulsory education, no
authority which is the State within the definition contained in Article 12
could legitimately renege on the constitutional covenant. The phrase
“free and compulsory education” in Article 21-A clearly makes it
obligatory on the State to not only provide necessary funds and facilities
B
for free, but also compulsory education. Thus, the State is under an
obligation to apply the provisions contained in Articles 45 and 46 resply
to provide childhood care and primary education and promote with special
care the educational and economic interests of the weaker sections of
the people and protect them from social injustice. (See : Adam B.
C Chaki (supra))
CONSTITUTIONAL VALIDITY OF CLAUSE (5) IN
ARTICLE 15
47. The constitutional validity of clause (5) in Article 15 of the
Constitution introduced by the Constitution (93rd Amendment) Act, 2005
D was made the subject matter of challenge before this Court in Pramati
Educational and Cultural Trust (Registered) and Others v. Union
of India and Others, (2014) 8 SCC 1.
48. The constitutional validity of clause (5) in Article 15 was
essentially challenged on the ground that the same is violative of Article
E 19(1)(g) of the Constitution, inasmuch as it compels the private educational
institutions to give up a share of the available seats to the candidates
chosen by the State and such appropriation of seats would not be a
regulatory measure and not a reasonable restriction on the right
under Article 19(1)(g) of the Constitution within the meaning of Article
F 19(6) of the Constitution. It was further argued that clause (5) of Article
15 of the Constitution, as its very language, indicates would not apply to
the minority educational institutions referred to in clause (1) of Article
30 of the Constitution. It was argued that thus it violated Article 14
because the aided minority institutions and unaided minority institutions
cannot be treated alike. It was also argued that clause (5) of Article
G 15 of the Constitution is discriminatory and violative of the equality clause
in Article 14 of the Constitution, which is a basic feature of the
Constitution.
49. On the other hand, while defending clause (5) of Article 15 of
the Constitution, it was argued on behalf of the Union of India that clause
H
JANHIT ABHIYAN v. UNION OF INDIA 239
[J.B. PARDIWALA, J.]

(5) of Article 15 of the Constitution is only an enabling provision A
empowering the State to make a special provision, by law, for the
advancement of socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes insofar as such
special provisions relate to their admission to educational institutions
including the private educational institutions. It was also argued that Article
B
15(5) is consistent with the socialistic goals set out in the Preamble and
the Directive Principles in Part IV and to ensure the march and progress
of the weaker sections resulting in progress to socialistic democratic
State establishing the egalitarian ethos/egalitarian equality which is the
mandate of the Constitution and has also been recognised by this Court
in the case of M. Nagaraj and Others v. Union of India and Others, C
(2006) 8 SCC 212 : AIR 2007 SC 71. It was argued that this Court in
M.R. Balaji and Others v. State of Mysore (1963) Supp 1 SCR 439,
disagreed with the judgment in the State of Madras v. Sm. Champakam
Dorairajan (supra) and upheld that Article 46 of the Constitution charges
the State with promoting with special care the educational and economic
D
interests of the weaker sections of the society. The underlying logic
behind the judgment in M.R. Balaji (supra) has logically flown from the
mandate of Article 15(4), Article 16(4), Article 38, Article 45 and Article
46 resply and that Article 15(5) is only a continuation of that process.
Much emphasis was laid on the fact that when the elementary education
has been made a fundamental right, in order to make that objective more E
meaningful, it was also necessary for the State to ensure that even in
higher education, there must be affirmative equality by providing chances
or opportunities to the socially and educationally backward classes.
50. The Constitution Bench, in Pramati Educational and
Cultural Trust (supra), after due consideration of the rival contentions F
canvassed on either side and while upholding the validity of clause (5) of
Article 15 of the Constitution, held as under:
“29. We may now examine whether the Ninety-third Amendment
satisfies the width test. A plain reading of clause (5) of Article
15 would show that the power of a State to make a law can G
only be exercised where it is necessary for advancement of
socially and educationally backward classes of citizens or
for the Scheduled Castes and Scheduled Tribes and not for
any other purpose. Thus, if a law is made by the State only to
appease a class of citizen which is not socially or
H
240 SUPREME COURT REPORTS [2022] 14 S.C.R.

A educationally backward or which is not a Scheduled Caste
or Scheduled Tribe, such a law will be beyond the powers of
the State under clause (5) of Article 15 of the Constitution. A
plain reading of clause (5) of Article 15 of the Constitution
will further show that such law has to be limited to making a
special provision relating to admission to private educational
B
institutions, whether aided or unaided, by the State. Hence, if
the State makes a law which is not related to admission in
educational institutions and relates to some other aspects
affecting the autonomy and rights of private educational
institutions as defined by this Court in T.M.A. Pai Foundation
C [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC
481], such a law would not be within the power of the State
under clause (5) of Article 15 of the Constitution. In other
words, power in clause (5) of Article 15 of the Constitution is
a guided power to be exercised for the limited purposes stated
in the clause and as and when a law is made by the State in
D
purported exercise of the power under clause (5) of Article
15 of the Constitution, the Court will have to examine and
find out whether it is for the purposes of advancement of any
socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes and
E whether the law is confined to admission of such socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes to private
educational institutions, whether aided or unaided, and if
the Court finds that the power has not been exercised for the
purposes mentioned in clause (5) of Article 15 of the
F
Constitution, the Court will have to declare the law as ultra
vires Article 19(1)(g) of the Constitution. In our opinion,
therefore, the width of the power vested on the State under
clause (5) of Article 15 of the Constitution by the
constitutional amendment is not such as to destroy the right
G under Article 19(1)(g) of the Constitution.
30. We may now examine the contention of Mr Nariman that
clause (5) of Article 15 of the Constitution fails to make a
distinction between aided and unaided educational
institutions and treats both aided and unaided alike in the
H
JANHIT ABHIYAN v. UNION OF INDIA 241
[J.B. PARDIWALA, J.]

matter of making special provisions for admission of socially A
and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes. The distinction
between a private aided educational institution and a private
unaided educational institution is that private educational
institutions receive aid from the State, whereas private unaided
B
educational institutions do not receive aid from the State. As
and when a law is made by the State under clause (5) of Article
15 of the Constitution, such a law would have to be examined
whether it has taken into account the fact that private unaided
educational institutions are not aided by the State and has
made provisions in the law to ensure that private unaided C
educational institutions are compensated for the admissions
made in such private unaided educational institutions from
amongst socially and educationally backward classes of
citizens or the Scheduled Castes and the Scheduled Tribes.
In our view, therefore, a law made under clause (5) of Article
D
15 of the Constitution by the State on the ground that it treats
private aided educational institutions and private unaided
educational institutions alike is not immune from a challenge
under Article 14 of the Constitution. Clause (5) of Article 15 of
the Constitution only states that nothing in Article 15 or Article
19(1)(g) will prevent the State to make a special provision, by E
law, for admission of socially and educationally backward
classes of citizens or for the Scheduled Castes and the
Scheduled Tribes to educational institutions including private
educational institutions, whether aided or unaided by the
State. Clause (5) of Article 15 of the Constitution does not
F
say that such a law will not comply with the other requirements
of equality as provided in Article 14 of the Constitution.
Hence, we do not find any merit in the submission of the Mr
Nariman that clause (5) of Article 15 of the Constitution that
insofar as it treats unaided private educational institutions
and aided private educational institutions alike it is violative G
of Article 14 of the Constitution.
31. We may now deal with the contention of Mr Divan that
clause (5) of Article 15 of the Constitution is violative
of Article 14 of the Constitution as it excludes from its purview
H
242 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the minority institutions referred to in clause (1) of Article
30 of the Constitution and the contention of Mr Nariman that
clause (5) of Article 15 excludes both unaided minority
institutions and aided minority institutions alike and is thus
violative of Article 14 of the Constitution.
B x x x x
34. Clause (5) of Article 15 of the Constitution enables the
State to make a special provision, by law, for the advancement
of socially and educationally backward classes of citizens or
for the Scheduled Castes and Scheduled Tribes. Such
C admissions of socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled
Tribes who may belong to communities other than the minority
community which has established the institution, may affect
the right of the minority educational institutions referred to
in clause (1) of Article 30 of the Constitution. In other words,
D the minority character of the minority educational institutions
referred to in clause (1) of Article 30 of the Constitution,
whether aided or unaided, may be affected by admissions of
socially and educationally backward classes of citizens or
the Scheduled Castes and the Scheduled Tribes and it is for
E this reason that minority institutions, aided or unaided, are
kept outside the enabling power of the State under clause (5)
of Article 15 with a view to protect the minority institutions
from a law made by the majority. As has been held by the
Constitution Bench of this Court in Ashoka Kumar Thakur v.
Union of India [(2008) 6 SCC 1], the minority educational
F institutions, by themselves, are a separate class and their rights
are protected under Article 30 of the Constitution, and,
therefore, the exclusion of minority educational institutions
from Article 15(5) is not violative of Article 14 of the
Constitution.
G 35. We may now consider the contention of Mr Divan that
clause (5) of Article 15 of the Constitution is violative of
secularism insofar as it excludes religious minority institutions
referred to in Article 30(1) of the Constitution from the purview
of clause (5) of Article 15 of the Constitution. In M. Ismail
H
JANHIT ABHIYAN v. UNION OF INDIA 243
[J.B. PARDIWALA, J.]

Faruqui v. Union of India [(1994) 6 SCC 360], this Court A
has held that: (SCC p. 403, para 37)
“37. ... The Preamble of the Constitution read in
particular with Articles 15 to 28 emphasises this aspect
and indicates that … the concept of secularism embodied
in the constitutional scheme [is] a creed adopted by the B
Indian people….”
Hence, secularism is no doubt a basic feature of the
Constitution, but we fail to appreciate how clause (5) of Article
15 of the Constitution which excludes religious minority
institutions in clause (1) of Article 30 of the Constitution is in C
any way violative of the concept of secularism. On the other
hand, this Court has held in T.M.A. Pai Foundation [T.M.A.
Pai Foundation v. State of Karnataka, (2002) 8 SCC 481)]
that the essence of secularism in India is the recognition and
preservation of the different types of people, with diverse
languages and different beliefs and Articles 29 and 30 seek D
to preserve such differences and at the same time unite the
people of India to form one strong nation (see para 161 of
the majority judgment of Kirpal, C.J., in T.M.A. Pai
Foundation (T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481) at p. 587 of SCC). In our considered E
opinion, therefore, by excluding the minority institutions
referred to in clause (1) of Article 30 of the Constitution, the
secular character of India is maintained and not destroyed.
x x x x
37. Educational institutions in India such as Kendriya F
Vidyalayas, Indian Institute of Technology, All India Institute
of Medical Sciences and Government Medical Colleges admit
students in seats reserved for backward classes of citizens
and for the Scheduled Castes and the Scheduled Tribes and
yet these government institutions have produced excellent G
students who have grown up to be good administrators,
academicians, scientists, engineers, doctors and the like.
Moreover, the contention that excellence will be compromised
by admission from amongst the backward classes of citizens
and the Scheduled Castes and the Scheduled Tribes in private
H
244 SUPREME COURT REPORTS [2022] 14 S.C.R.

A educational institutions is contrary to the Preamble of the
Constitution which promises to secure to all citizens “fraternity
assuring the dignity of the individual and the unity and
integrity of the nation”. The goals of fraternity, unity and
integrity of the nation cannot be achieved unless the backward
classes of citizens and the Scheduled Castes and the
B
Scheduled Tribes, who for historical factors, have not
advanced are integrated into the mainstream of the nation.
We, therefore, find no merit in the submission of Mr Nariman
that clause (5) of Article 15 of the Constitution violates the
right under Article 21 of the Constitution.
C 38. We accordingly hold that none of the rights under Articles
14, 19(1)(g) and 21 of the Constitution have been abrogated
by clause (5) of Article 15 of the Constitution and the view
taken by Bhandari, J. in Ashoka Kumar Thakur v. Union of
India [(2008) 6 SCC 1] that the imposition of reservation on
D unaided institutions by the Ninety-third Amendment has
abrogated Article 19(1)(g), a basic feature of the Constitution
is not correct. Instead, we hold that the Constitution (Ninety-
third Amendment) Act, 2005 inserting clause (5) of Article
15 of the Constitution is valid.”
[Emphasis supplied]
E
51. Thus, if Article 15(5) of the Constitution has been found to be
consistent with the socialistic goals set out in the Preamble and the
Directive Principles in Part IV and to ensure the march and progress of
the weaker sections resulting in progress to Socialistic Democratic State
establishing the egalitarian ethos/egalitarian equality which is the mandate
F of the Constitution and has also been approved in M. Nagaraj (supra),
then clause (6) in Article 15 of the Constitution could also be said to be
consistent with the socialistic goals set out in the Preamble and the
Directive Principles in Part IV. Article 15(6), brought in by way of the
Constitution (103rd Amendment) Act, 2019, which provides for identical
G reservation for the economically weaker sections of the citizens in private
unaided educational institutions. The Constitution Bench in Pramati
Educational and Cultural Trust (supra) was not impressed with the
challenge to Article 15(5) on the ground of breach of basic structure so
far as it relates to the unaided private educational institutions.

H
JANHIT ABHIYAN v. UNION OF INDIA 245
[J.B. PARDIWALA, J.]

52. Taking the aforesaid view of the matter, the Constitution Bench A
of this Court, in the case of Pramati Educational and Cultural Trust
(supra), held that the Constitution (93rd Amendment) Act, 2005 inserting
clause (5) of Article 15 of the Constitution could not be said to have
altered the basic structure or framework of the Constitution and is
constitutionally valid.
B
53. In view of the aforesaid, Article 15(6), which is the subject
matter of challenge and which provides for reservation for the “EWS
other than the SC, ST and OBC-NCL” in private unaided educational
institutions, cannot be said to be altering the basic structure. It is
constitutionally valid. However, the question whether the exclusion clause
is violative of the equality code, particularly the principle of non- C
discrimination and non-exclusion which forms inextricable part of the
basic structure of the Constitution, shall be answered by me a little later.
54. Let us remember the observations made by Mathew, J. in
the case of N.M. Thomas (supra), as under:
D
“73. There is no reason why this Court should not also
require the State to adopt a standard of proportional
equality which takes account of the differing conditions
and circumstances of a class of citizens whenever those
conditions and circumstances stand in the way of their equal
access to the enjoyment of basic rights or claims.” E

(Emphasis supplied)
55. It has been held by this Court in the case of Dalmia Cement
(Bharat) Ltd. and Another v. Union of India and Others, (1996) 10
SCC 104, that with a view to establish an egalitarian social order, the F
trinity, the Preamble, the Fundamental Rights in Part III and the Directive
Principles of State Policy in Part IV of the Constitution delineated the
social economic justice. The word “justice” envisioned in the Preamble
is used in a broad spectrum to harmonise the individual right with the
general welfare of the society. The Constitution is the supreme law.
The purpose of law is realization of justice whose content and scope G
vary depending on the prevailing social environment. Every social and
economic change causes change in the law. In a democracy governed
by the rule of law, it is not possible to change the legal basis of social and
economic life of the community without bringing about any corresponding
change in the law. In Dalmia Cement (Bharat) Ltd. (supra), this
H
246 SUPREME COURT REPORTS [2022] 14 S.C.R.

A Court further observed that social justice is not a simple or single idea of
a society but is an essential part of complex social change to relieve the
poor, etc. from the handicaps, penury, to ward them off from distress
and to make their lives livable for the greater good of the society at
large. Therefore, social and economic justice in the context of our Indian
Constitution must, be understood in a comprehensive sense to remove
B
every inequality and to provide equal opportunity to all citizens in social
as well as economic activities and in every part of life. Economic justice
means abolition of those economic conditions which ultimately result in
the inequality of economic values between men leading towards
backwardness.
C 56. In the case on hand, it was vociferously argued that the
individuals belonging to the economical weaker sections may not form a
class and they may be weaker as individual only. Secondly, their weakness
may not be the result of the past social and educational backwardness
or discrimination. The basis of such argument is the observation of
D Sawant, J. in Indra Sawhney (supra). All the learned counsel while
criticising the impugned amendment kept reminding this Court time and
again that the Constitution has never recognised economic criteria as a
mode of reservation. Reservation in employment, etc. is only meant for
the socially oppressed class. Economically weaker sections of the citizens
may be financially handicapped or poor but still socially, they can be said
E to be much advanced and cannot be compared with the socially oppressed
class like the SCs/STs. Thus, the reservation for the weaker sections of
the citizens has destroyed or rather abridged the basic structure of the
Constitution. I shall deal with this argument of abridgement of the basic
structure a little later. But, I would definitely like to say something as
F regards the economic criteria for the purpose of reservation.
57. In this country with a population of around 1.41 billion, the
economic backwardness is not confined only to those who are covered
by Article 15(4) or Article 16(4) of the Constitution. In a country where
only a small percentage of the population is above the poverty line, to
G deny opportunities of higher education (which secures employment) and
employment is to deny to those who are qualified and deserving what is
or at least should be their due.
58. When the 42nd Constitutional Amendment was on the anvil,
there was suggestion of inclusion of “right to work” which carries with
H it the natural corollary of assured employment as a fundamental right.
JANHIT ABHIYAN v. UNION OF INDIA 247
[J.B. PARDIWALA, J.]

This, understandably, could not be done in a political system which is A
based on mixed economy. The natural effect of reservation is to close
the door of betterment or even employment to even a portion of
economically weak section of community. This all the more emphasises
the urgent necessity of eliminating or at least substantially reducing the
causes which have contributed to the creation of socially and
B
educationally backward section of the community, thus, creating a situation
when the need of reservation would be no more. Then alone the promise
of equality for all would become a reality. And, it is to be remembered
that right of equality is the “Cornerstone of the Constitution” (per Khanna,
J.). Chandrachud, J. says: “it is a right which more than any other is a
basic postulate of our Constitution”. Mathew, J. describes it as the “most C
fundamental postulate of republicanism”. [See : Padmraj Samarendra
v. the State of Bihar, Patna High Court, Special Bench, 1978 SCC
OnLine Pat 64 : 1979 PLJR 258 : AIR 1979 Pat 266 at page 267]
59. In the aforesaid context, it would further be useful again to
extract the observation of Iyer, J., in N. M. Thomas (supra) who D
concurring with A. N. Ray, CJ, observed:
“149. ….no caste, however seemingly backward, or
claiming to be derelict, can be allowed to breach the dykes
of equality of opportunity guaranteed to all citizens. To
them the answer is that, save in rare cases of ‘chill penury E
repressing their noble rage’, equality is equality — nothing
less and nothing else. The heady upper berth occupants
from ‘backward’ classes do double injury. They beguile
the broad community into believing that backwardness is
being banished. They rob the need-based bulk of the
backward of the ‘office’ advantages the nation, by F
classification, reserves or proffers. The
constitutional dharma, however, is not an unending
deification of ‘backwardness’ and showering ‘classified’
homage, regardless of advancement registered, but
progressive exercising of the social evil and gradual G
withdrawal of artificial crutches. Here the Court has to be
objective, resisting mawkish politics…..”
60. Also, the note of caution sounded by this Court in the State
of Jammu & Kashmir v. Triloki Nath Khosa and others, AIR 1974
SC 1, reads as follows: H
248 SUPREME COURT REPORTS [2022] 14 S.C.R.

A “56......let us not evolve, through imperceptible extensions,
a theory of classification which may subvert, perhaps
submerge, the precious guarantee of equality. The eminent
spirit of an ideal society is equality and so we must not be
left to ask in wonderment: what after all is the operational
residue of equality and equal opportunity?”
B
61. In Ram Singh and Others v. Union of India, (2015) 4 SCC
697, this Court, while considering a challenge to the notification published
in the Gazette of India dated 04.03.2014 by which the Jat Community
came to be included in the Central List of Backward Classes for the
States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh,
C NCT of Delhi, Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh
and Uttarakhand, observed very emphatically as under:-
“54. Past decisions of this Court in M.R. Balaji v. State of
Mysore [AIR 1963 SC 649 : 1963 Supp (1) SCR 439]
and Janki Prasad Parimoo v. State of J&K [(1973) 1 SCC
D 420 : 1973 SCC (L&S) 217] had conflated the two
expressions used in Articles 15(4) and 16(4) and read them
synonymously. It is in Indra Sawhney case [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992
SCC (L&S) Supp 1 : (1992) 22 ATC 385] that this Court
E held that the terms “backward class” and “socially and
educationally backward classes” are not equivalent and
further that in Article 16(4) the backwardness contemplated
is mainly social. The above interpretation of backwardness
in Indra Sawhney [Indra Sawhney v. Union of India, 1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22
F ATC 385] would be binding on numerically smaller
Benches. We may, therefore, understand a social class as
an identifiable section of society which may be internally
homogeneous (based on caste or occupation) or
heterogeneous (based on disability or gender e.g.
G transgender). Backwardness is a manifestation caused by
the presence of several independent circumstances which
may be social, cultural, economic, educational or even
political. Owing to historical conditions, particularly in
Hindu society, recognition of backwardness has been
associated with caste. Though caste may be a prominent
H
JANHIT ABHIYAN v. UNION OF INDIA 249
[J.B. PARDIWALA, J.]

and distinguishing factor for easy determination of A
backwardness of a social group, this Court has been
routinely discouraging the identification of a group as
backward solely on the basis of caste. Article 16(4) as
also Article 15(4) lay the foundation for affirmative action
by the State to reach out to the most deserving. Social
B
groups who would be most deserving must necessarily be
a matter of continuous evolution. New practices, methods
and yardsticks have to be continuously evolved moving
away from caste centric definition of backwardness. This
alone can enable recognition of newly emerging groups in
society which would require palliative action. The C
recognition of the third gender as a socially and
educationally backward class of citizens entitled to
affirmative action of the State under the Constitution
in National Legal Services Authority v. Union of
India [(2014) 5 SCC 438] is too significant a development
D
to be ignored. In fact it is a pathfinder, if not a path-
breaker. It is an important reminder to the State of the high
degree of vigilance it must exercise to discover emerging
forms of backwardness. The State, therefore, cannot blind
itself to the existence of other forms and instances of
backwardness. An affirmative action policy that keeps in E
mind only historical injustice would certainly result in under
protection of the most deserving backward class of citizens,
which is constitutionally mandated. It is the identification
of these new emerging groups that must engage the attention
of the State and the constitutional power and duty must be
F
concentrated to discover such groups rather than to enable
groups of citizens to recover “lost ground” in claiming
preference and benefits on the basis of historical
prejudice.”
[Emphasis supplied]
G
62. In State of Kerala v. R. Jacob Mathew and others, AIR
1964 Kerala 316, Chief Justice M.S. Menon observed as follows:
“9. In these regions of human life and values the clear-cut
distinctions of cause and effect merge into each other.
Social backwardness contributes to educational H
250 SUPREME COURT REPORTS [2022] 14 S.C.R.

A backwardness; educational backwardness perpetuates
social backwardness; and both are often no more than the
inevitable corollaries of the extremes of poverty and the
deadening weight of custom and tradition…..”
[Emphasis supplied]
B 63. In M.R. Balaji (supra), Gajendrakadkar J. said that:
“…..Social backwardness is on the ultimate analysis the
result of poverty, to a very large extent. The classes of
citizens who are deplorably poor automatically become
socially backward….
C
x x x x
…..However, we may observe that if any State adopts such
a measure, it may afford relief to and assist the advancement
of the Backward Classes in the State, because
D backwardness, social and educational, is ultimately and
primarily due to poverty…..”
[Emphasis supplied]
ECONOMIC CRITERIA FOR THE AFFIRMATIVE
ACTION UNDER THE CONSTITUTION
E 64. What is so principally, so fundamentally wrong in singling out
an economic criterion for reservation? Is it that they do not belong to a
homogenous group? Is it cast in stone that they (beneficiaries of
reservation) should belong to homogenous group? Why cannot economic
criterion be a ground for the State’s affirmative action?
F 65. The aforesaid are the few questions which were put by this
Bench to the learned counsel appearing for the respective petitioners.
One common reply to the aforesaid questions was that the reservation is
only meant for the persons falling within Article 15(4) and Article 16(4)
of the Constitution and that there are other affirmative actions which
G can address the problem of economy, but not necessarily reservation.
66. Economic criteria can be a relevant factor for affirmative
action under the Constitution. In N.M. Thomas (supra), the constitutional
validity of Rule 13AA giving further exemption of two years to the
members belonging to the Scheduled Tribes and Scheduled Castes in
H the service from passing the tests referred to in Rule 13 or Rule 13A,
JANHIT ABHIYAN v. UNION OF INDIA 251
[J.B. PARDIWALA, J.]

was questioned. The High Court struck down the rule. Allowing the A
State appeal, this Court held that:
“67. Today, the political theory which acknowledges the
obligation of Government under Part IV of the Constitution
to provide jobs, medical care, old age pension, etc., extends
to human rights and imposes an affirmative obligation to B
promote equality and liberty. The force of the idea of a
State with obligation to help the weaker sections of its
members seems to have increasing influence in
constitutional law. The idea finds expression in a number
of cases in America involving social discrimination and
also in the decisions requiring the State to offset the effects C
of poverty by providing counsel, transcript of appeal,
expert witnesses, etc. Today, the sense that Government
has affirmative responsibility for elimination of inequalities,
social, economic or otherwise, is one of the dominant forces
in constitutional law. While special concessions for the D
underprivileged have been easily permitted, they have not
traditionally been required. Decisions in the areas of
criminal procedure, voting rights and education in America
suggest that the traditional approach may not be completely
adequate. In these areas, the inquiry whether equality has
been achieved no longer ends with numerical equality ; E
rather the equality clause has been held to require resort
to a standard of proportional equality which requires the
State, in framing legislation, to take into account the private
inequalities of wealth, of education and other
circumstances. [See “Developments—Equal Protection”, F
82 Harv L R 1165]
68. The idea of compensatory State action to make
people who are really unequal in their wealth, education
or social environment, equal, in specified areas, was
developed by the Supreme Court of the United States. G
Rousseau has said :
It is precisely because the force of circumstances
tends to destroy equality that force of legislation must
always tend to maintain it. [Contract Social ii, 11.]
H
252 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 69. In Griffin v. Illinois [351 US 12.] an indigent
defendant was unable to take advantage of the one appeal
of right granted by Illinois law because he could not afford
to buy the necessary transcript. Such transcripts were made
available to all defendants on payment of a similar fee ;
but in practice only non-indigents were able to purchase
B
the transcript and take the appeal. The Court said that
there can be no equal justice where the kind of trial a man
gets depends on the amount of money he has
and held that the Illinois procedure violated the equal
C protection clause.
The State did not have to make appellate review available
at all; but if it did, it could not do so in a way which
operated to deny access to review to defendants solely
because of their indigency. A similar theory underlies the
D requirement that counsel be provided for indigents on
appeal. In Douglas v. California [372 US 353] the case
involved the California procedure which guaranteed one
appeal of right for criminal defendants convicted at trial.
In the case of indigents the appellate Court checked over
the record to see whether it would be of advantage to the
E defendant or helpful to the appellate Court to have counsel
appointed for the appeal. A negative answer meant that
the indigent had to appeal pro se if at all. The Court held
that this procedure denied defendant the equal protection
of the laws. Even though the State was pursuing an
F otherwise legitimate objective of providing counsel only
for non-frivolous claims, it had created a situation in which
the well-to-do could always have a lawyer — even for
frivolous appeals — whereas the indigent could not.
x x x x
G 71. Though in one sense Justice Harlan is correct, when
one comes to think of the real effect of his view, one is
inclined to think that the opinion failed to recognise that
there are several ways of looking at equality, and treating
people equally in one respect always results in unequal
treatment in some other respects. For Mr. Justice Harlan,
H
JANHIT ABHIYAN v. UNION OF INDIA 253
[J.B. PARDIWALA, J.]

the only type of equality that mattered was numerical equality A
in the terms upon which transcripts were offered to
defendants. The majority, on the other hand, took a view
which would bring about equality in fact, requiring similar
availability to all of criminal appeals in Griffin’s case
(supra) and counsel-attended criminal appeals in Douglas
B
case (supra). To achieve this result, the Legislature had to
resort to a proportional standard of equality. These cases
are remarkable in that they show that the kind of equality
which is considered important in the particular context and
hence of the respect in which it is necessary to
treat people equally. [See “Developments—Equal C
Protection”, 82 Harv LR 1165.]
x x x x
158. It is no doubt true that Article 16(1) provides for
equality of opportunity for all citizens in the services under
the State. It is, however, well-settled that the doctrine D
contained in Article 16 is a hard and reeling reality, a
concrete and constructive concept and not a rigid rule or
an empty formula. It is also equally well-settled by several
authorities of this Court that Article 16 is merely an incident
of Article 14, Article 14 being the genus is of universal E
application whereas Article 16 is the species and seeks to
obtain equality of opportunity in the services under the
State. The theory of reasonable classification is implicit
and inherent in the concept of equality for there can hardly
be any country where all the citizens would be equal in all
respects. Equality of opportunity would naturally mean a F
fair opportunity not only to one section or the other but to
all sections by removing the handicaps if a particular section
of the society suffers from the same. It has never been
disputed in judicial pronouncements by this Court as also
of the various High Courts that Article 14 permits G
reasonable classification. But what Article 14 or Article
16 forbid is hostile discrimination and not reasonable
classification. In other words, the idea of classification is
implicit in the concept of equality because equality means
equality to all and not merely to the advanced and educated
H
254 SUPREME COURT REPORTS [2022] 14 S.C.R.

A sections of the society. It follows, therefore, that in order to
provide equality of opportunity to all citizens of our country,
every class of citizens must have a sense of equal
participation in building up an egalitarian society, where
there is peace and plenty, where there is complete economic
freedom and there is no pestilence or poverty, no
B
discrimination and oppression, where there is equal
opportunity to education, to work, to earn their livelihood
so that the goal of social justice is achieved…..
x x x x
C 230. Scheduled castes and scheduled tribes are castes
and tribes specified by the President under Articles 341
and 342 of the Constitution to be known as such for the
purposes of the Constitution. It is accepted that generally
speaking these castes and tribes are backward in
educational and economic fields. It is claimed that the
D expression “scheduled castes” does not refer to any caste
of the Hindu society but connotes a backward class of
citizens. A look at Article 341 however will show that the
expression means a number of existing social castes listed
in a schedule ; castes do not cease to be castes being put
E in a schedule though backwardness has come to be
associated with them. Article 46 requires the State to
promote the economic interests of the weaker sections of
the people and, in particular, of the scheduled castes and
the scheduled tribes. The special reference to the scheduled
castes and the scheduled tribes does not suggest that the
F State should promote the economic interests of these castes
and tribes at the expense of other “weaker sections of the
people”. I do not find anything reasonable in denying to
some lower division clerks the same opportunity for
promotion as others have because they do not belong to a
G particular caste or tribe. Scheduled castes and scheduled
tribes no doubt constitute a well-defined class, but a
classification valid for one purpose may not be so for
another ; in the context of Article 16(1) the sub-class made
by Rule 13AA within the same class of employees amounts
to, in my opinion, discrimination only on grounds of race
H and caste which is forbidden by clause (2) of Article 16….
JANHIT ABHIYAN v. UNION OF INDIA 255
[J.B. PARDIWALA, J.]

231. All I have said above relates to the scope of Article A
16(1) only, because Counsel for the appellant has built
his case on this provision alone. Clause (4) of Article 16
permits reservation of appointments on posts in favour of
backward classes of citizens notwithstanding Article 16(1)
; I agree with the views expressed by Khanna, J. on Article
B
16(4) which comes in for consideration incidentally in this
case. The appalling poverty and backwardness of large
sections of the people must move the State machinery to do
everything in its power to better their condition but doling
out unequal favours to members of the clerical staff does
not seem to be a step in that direction : tilting at the windmill C
taking it to be a monster serves no useful purpose.”
[Emphasis supplied]
67. On the issue of economic criteria as an affirmative action
under the Constitution, there is no difference of opinion amongst
us. My esteemed Brother Justice Bhat, in his dissenting D
judgment has beautifully observed that the economic
emancipation is a facet of economic justice which the Preamble
as well as Articles 38 and 46 resply promise to all Indians. It is
intrinsically linked with distributive justice – ensuring a fair share
of the material resources, and a share of the progress of the
society as a whole, to each individual. My esteemed Brother E
Justice Bhat has rightly observed that the break from the past
– which was rooted on elimination of caste-based social
discrimination, in affirmative action – to now include affirmative
action based on deprivation, through impugned amendment,
does not alter, destroy or damage the basic structure of the F
Constitution. On the contrary, it adds a new dimension to the
constitutional project of uplifting the poorest segments of the
society.
68. The following is discernable from the aforesaid: -
(1) When substantive equality is the avowed constitutional G
mandate, the State is obliged to provide a level playing field
(M. Nagaraj (supra) para 47).
(2) The test for such reasonable classification is not necessarily,
or much less exclusively, the social backwardness test of
Article 15(4) and Article 16(4) resply. H
256 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (3) Article 16(4) [and Article 15(4)] provision is rooted as
historical reasons of exclusion from service. The provision
was thus fulcrummed on the Constituent Assembly’s clear
intent (expressed through Dr. B.R. Ambedkar’s speech) to
redress the specific wrong.
B (4) Indra Sawhney (supra) was limited to then existing Article
16 and construed the meaning of “socially” backward classes
for the purpose of Article 16(4).
(5) Indra Sawhney (supra) was thus undertaking a “schematic
interpretation” of the Article 16(4) [subsequently held equally
C applicable for Article 15(4)].
(6) The Special “schematic interpretation” based on the original
intent doctrine led the amendment of the Constitution and
introduction of Article 16(4A) [77th Amendment], Article
16(4B) [81 st Amendment] and Article 15(5) [91 st
D Amendment] all of which have been upheld by this Court.
(7) The recuring feature of such constitutional progression is
the Parliament’s freedom and liberty from the “original intent”
doctrine. It is the same theme that enables the Parliament
to constantly innovate and improvise to better attend to the
E Directive Principles’ mandate of Articles 38 & 46 resply or
of the equality code itself.
69. The march from the past is also discernible from the judicial
approach. If adequate representation in services of under-represented
class was the sole purpose of Article 16(4), any person from that class
F would be representative of that class. When Indra Sawhney (supra)
read the necessity of excluding Creamy Layer from the ‘backward class’
in Article 16(4) – it took note of the events 42 years post the adoption of
the Constitution. It is 30 years since the seminal judgment of Indra
Sawhney. Time enough for the Parliament to feel the necessity of
attending to another section of deprived classes.
G
70. Therefore, the 103rd Constitutional Amendment signifies the
Parliament’s intention to expand affirmative action to hitherto untouched
groups – who suffer from similar disadvantages as the OBCs competing
for opportunities. If economic advance can be accepted to negate certain
social disadvantages for the OBCs [Creamy Layer concept] the converse
H
JANHIT ABHIYAN v. UNION OF INDIA 257
[J.B. PARDIWALA, J.]

would be equally relevant. At least for considering the competing A
disadvantages of Economically Weaker Sections. Economic capacity
has been upheld as a valid basis for classification by this Court in various
other contexts. It has also been implored to be considered as a relevant
facet of the ‘Equality Code’ provisions. The 103rd Amendment offers a
basis not frowned upon by Article 15(1) or 16(2) for providing a population
B
generic and caste/religion/community neutral criteria. It also harmonizes
with the eventual constitutional goal of a casteless society. Indra
Sawhney (supra) holds that the Chitralekha (supra) propounded
occupation-cum-means test can be a basis of social backwardness even
for the purposes of Article 16(4). Article 15(6)(b) Explanation defining
EWS could be said to be fully compliant with this norm. C
CONSTITUTION (103 RD AMENDMENT) ACT, 2019
71. Let me now look into the Constitution (103rd Amendment)
Act, 2019 which came into effect on 14th of January, 2019 amending
Articles 15 and 16 resply of the Constitution by adding new clauses
which empower the State to provide a maximum of 10% reservation for D
the “weaker sections” (EWS) of citizens other than the Scheduled Castes
(SCs), Scheduled Tribes (STs) and Non- Creamy Layer of the Other
Backward Classes (OBCs-NCL).
72. The Constitution (124th Amendment) Bill, 2019 reads thus:
E
“THE CONSTITUTION (ONE HUNDRED AND TWENTY-
FOURTH AMENDMENT) BILL, 2019
A
BILL
F
further to amend the Constitution of India.
BE it enacted by Parliament in the Sixty-ninth Year of the
Republic of India as follows:—
1. (1) This Act may be called the Constitution (One Hundred
and Twenty-fourth Amendment) Act, 2019. G
(2) It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint.
2. In article 15 of the Constitution, after clause (5), the
following clause shall be inserted, namely:— H
258 SUPREME COURT REPORTS [2022] 14 S.C.R.

A ‘(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
B 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)
C 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
D 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
E 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.’.
F 3. In article 16 of the Constitution, after clause (5),
the following clause shall be inserted, namely:—
“(6) Nothing in this article shall prevent the
State from making any provision for the
reservation of appointments or posts in favour
G 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.”.
H
JANHIT ABHIYAN v. UNION OF INDIA 259
[J.B. PARDIWALA, J.]

The Statement of Objects and Reasons reads thus:- A
“STATEMENT OF OBJECTS AND REASONS
At present, the economically weaker sections of citizens
have largely remained excluded from attending the higher
educational institutions and public employment on account
of their financial incapacity to compete with the persons B
who are economically more privileged. The benefits of
existing reservations under clauses (4) and (5) of article
15 and clause (4) of article 16 are generally unavailable
to them unless they meet the specific criteria of social and
educational backwardness. C
2. The directive principles of State policy contained in
article 46 of the Constitution enjoins that the State shall
promote with special care the educational and economic
interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled D
Tribes, and shall protect them from social injustice and all
forms of exploitation.
3. Vide the Constitution (Ninety-third Amendment) Act,
2005, clause (5) was inserted in article 15 of the
Constitution which enables the State to make special E
provision for the advancement of any socially and
educationally backward classes of citizens, or for the
Scheduled Castes or the Scheduled Tribes, in relation to
their admission in higher educational institutions. Similarly,
clause (4) of article 16 of the Constitution enables the State
to make special provision for the reservation of F
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately
represented in the services under the State.
4. However, economically weaker sections of citizens were
not eligible for the benefit of reservation. With a view to G
fulfil the mandate of article 46, and to ensure that
economically weaker sections of citizens to get a fair
chance of receiving higher education and participation in
employment in the services of the State, it has been decided
to amend the Constitution of India.
H
260 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 5. Accordingly, the Constitution (One Hundred and Twenty-
fourth Amendment) Bill, 2019 provides for reservation for
the economically weaker sections of society in higher
educational institutions, including private institutions
whether aided or unaided by the State other than the
minority educational institutions referred to in article 30
B
of the constitution and also provides for reservation for
them in posts in initial appointment in services under the
State.
6. The Bill seeks to achieve the above objects.”
C 73. Thus, from the Objects and Reasons as aforesaid it is evident
that the entire edifice of the impugned amendment is to fulfil the mandate
of Article 46 of the Constitution. What was looked into by the Parliament
was the fact that the economically weaker sections of citizens were not
eligible for the benefit of reservations. However, with a view to fulfil
the mandate of Article 46 and to ensure that economically weaker
D sections of the citizens get a fair chance of being imparted higher
education and participation in employment in the services of the State,
the Constitution (103rd Amendment) Act was brought into force.
74. The reservation for the new category will be in addition to the
existing scheme of 15%, 7.50% and 27% resply reservations for the SC,
E ST and OBC-NCL, thus, bringing the total reservation to 59.50%. An
‘Explanation’ appended to Article 15 states that the EWS shall be such
as may be notified by the State from time to time based on the family
income and other indicators of economic disadvantage. In its Office
Memorandum F. No. 20013/01/2018-BC-II dated January 17, 2019, the
F Ministry of Social Justice and Empowerment, Government of India has
stipulated that only persons whose families have a gross annual income
less than Rs.8 lakhs, or agricultural land less than 5 acres, or residential
flat less than 1,000 sq. ft., or residential plot less than 100 sq. yards in
the notified Municipalities, or residential plot less than 200 sq. yards in
the areas other than the notified Municipalities, are to be identified as
G EWS for the benefit of reservation.
75. What is exactly happening after the impugned amendment?
Or to put it in other words, what is the effect of it?
(1) The total reservation is now to the extent of 59.50%.
The hue and cry is that the same is in excess of the
H
JANHIT ABHIYAN v. UNION OF INDIA 261
[J.B. PARDIWALA, J.]

ceiling of 50% fixed by this Court in Indra Sawhney A
(supra).
(2) It excludes the Scheduled Castes (SCs), the Schedule
Tribes (STs) and the Non-Creamy Layer of Other
Backward Classes (OBCs-NCL). The hue and cry is
that the same has abridged the equality code. In other B
words, the exclusion is violative of Articles 14, 15 and
16 resply of the Constitution.
(3) Reservation of 10% of the vacancies among the open
competition candidates means exclusion of those above
the demarcating line from those 10% seats. In other C
words, the competition will now be within 40%. The
hue and cry in this regard is that it is not permissible to
debar a citizen from being considered for appointment
to an office under the State solely on the basis of his
income or property-holding.
D
76. In the aforesaid context, by and large, all the learned counsel
who argued that the impugned judgment is unconstitutional strenuously
urged before the Constitution Bench to take the view that Article 46 of
the Constitution could not have been made the edifice for the impugned
amendment. It was vociferously argued that Article 46 should be
interpreted on the principle of ejusdem generis. To put in other words, E
it was vociferously submitted that the words “weaker sections” used in
Article 46 should be read to mean only the Scheduled Castes or the
Scheduled Tribes.
77. Article 46 reads as under:-
F
“46.—Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker
sections.-The State shall promote with special care the
educational and economic interests of the weaker sections
of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes, and shall protect them from social G
injustice and all forms of exploitation.”
78. I found something very interesting to read in regard to Article
46 from the decision of this Court in the case of M/s Shantistar Builders
v. Narayan Khimalal Totame and Others, (1990) 1 SCC 520, wherein
H
262 SUPREME COURT REPORTS [2022] 14 S.C.R.

A a Bench of three Judges speaking through Ranganath Misra, J.
observed: -
“11. …. ‘Weaker sections’ have, however, not been defined
either in the Constitution or in the Act itself. An attempt
was made in the Constituent Assembly to provide a
B definition but was given up. Attempts have thereafter been
made from time to time to provide such definition but on
account of controversies which arise once the exercise is
undertaken, there has been no success. A suggestion for
introducing economic criterion for explaining the term was
made in the approach to the Seventh Five Year Plan (1985-
C 1990) brought out by the Planning Commission and
approved by the National Development Council and the
Union Government. A lot of controversy was raised in
Parliament and the attempt was dropped. In the absence
of a definition perhaps a proper guideline could be
D indicated but no serious attention has been devoted to this
aspect.
12. Members of the Scheduled Castes and Scheduled Tribes
have ordinarily been accepted as belonging to the weaker
sections. Attempt to bring in the test of economic means
E has often been tried but no guideline has been evolved.
Undoubtedly, apart from the members of the Scheduled
Castes and Scheduled Tribes, there would be millions of
other citizens who would also belong to the weaker sections.
The Constitution-makers intended all citizens of India
belonging to the weaker sections to be benefited when Article
F 46 was incorporated in the Constitution. …..”
[Emphasis supplied]
79. I am of the view that the words “weaker sections” used in
Article 46 cannot be read to mean only the Scheduled Castes or the
G Scheduled Tribes nor the same can be interpreted on the principle of
ejusdem generis, as argued. The expression refers to all weaker sections
and in particular the Scheduled Castes and the Scheduled Tribes.
Inasmuch as, if we confine the meaning of the expression “weaker
sections” only to the Scheduled Castes or the Scheduled Tribes or the
likes, namely backward class, then it will expose the weaker sections of
H citizens, other than the Scheduled Castes and the Scheduled Tribes and
JANHIT ABHIYAN v. UNION OF INDIA 263
[J.B. PARDIWALA, J.]

backward class people to exploitation without any protection from it. A
Sandro Galea, Dean and Robert A. Knox Professor, Boston University
School of Public Health has defined Economic Justice as “a set of moral
principles for building economic institutions, the ultimate goal of
which is to create an opportunity for each person to create a
sufficient material foundation upon which to have a dignified,
B
productive, and creative life beyond economics.” Therefore, an
economic justice argument focuses on the need to ensure
that everyone has access to the material resources that create
opportunities, in order to live a life unencumbered by pressing
economic concerns.” Social welfare or welfare of the State is the onus
of the State itself. Thus, Part IV has been given the status and expression C
in the Constitution which lays down the constitutional policy that the
State must strive for, if the country is to develop as a welfare State. The
weaker section of the people is the lowliest class of people (poorest of
the poor), economically and educationally weak who have been given
constitutional protection. Their welfare is paramount as can be read
D
from the conjoint reading of Articles 21 and 46 resply of the Constitution.
80. Speaking the constitutional position in this regard, this Court in
N.M. Thomas (supra) observed as under: -
“126. ….. The Preamble to the Constitution silhouettes a
‘justice-oriented’ community. The Directive Principles of E
State Policy, fundamental in the governance of the country,
enjoin on the State the promotion with special care the
educational and economic interests of the weaker sections
of the people, and, in particular, of the scheduled castes
and the scheduled tribes, . . . and protect them from social
injustice. F

To neglect this obligation is to play truant with Article 46.
Undoubtedly, economic interests of a group — as also
social justice to it — are tied up with its place in the services
under the State. …”
G
81. Article 21 encompasses the right to live with dignity. The
right to live with dignity is not an ordinary expression. It has serious
meaning attached to it. In the words of the Allahabad High Court (Abdul
Moin, J.), “our society is an amalgamation of various classes of people.
Some are wealthy. Some are not wealthy. Some lead life of penance
H
264 SUPREME COURT REPORTS [2022] 14 S.C.R.

A with pleasure. Some lead life of penance due to their fortune. Our
Constitution endorses welfare of all classes.” This is why Article 21 has
been given wide connotation and expression by the courts, particularly,
by this Court to give effect to the constitutional policy of welfare state.
The decision of this Court in Unni Krishnan (supra) is an authority on
this aspect where the Court confirmed that right to education is implicit
B
under Article 21 and proceeded to identify the content and parameters
of this right to be achieved by Articles 41, 45, and 46 resply in relation to
education. Understood in this context, Article 46 gives not only solemn
protection to the weaker sections of the people at par with the Scheduled
Castes and the Scheduled Tribes but speaks of special care to be taken
C by the State of this section of people. Further, the expression “educational
and economic interests” in Article 46 concludes the whole legal position
in relation to Article 46 to mean that the State must endeavour to do
welfare especially of this section of people. The endeavour of the State
to give the weaker section of the people a life of dignity is the link between
Articles 46 and 21 resply. The conjoint reading of both the provisions
D
puts constitutional obligation on the State to achieve the goal of welfare
of the weaker sections of the people by all means. Article 46 is not
based on social test but on the means test. It speaks of “educational and
economic interests” of “weaker sections”. The expression “weaker
sections” and their “economic interests” are correlative and denote the
E means status of the people who are to be taken care of. Although, the
phrase “economic interests” is not to be read alone but in consonance
with the expression “educational” used in Article 46; yet to confuse Article
46 with the “social status” would be to put a strain and nullify otherwise
the pure object of Article 46. The distinction can be explained with the
aid of Article 15(4). Article 15(4) gives impetus to the social and
F
educational “advancement” of Backward Classes or the Scheduled
Castes and Scheduled Tribes. It is an enabling provision for the State to
make special provisions for the socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes.
The emphasis here is on the upliftment of three constitutionally earmarked
G classes i.e., Scheduled Castes, Scheduled Tribes and Backward classes.
However, Article 46 is wide in expression. The object of welfare
under Article 46 is towards those educationally and economically weak.
In fact, this Court has laid down in M.R. Balaji (supra) that, “in taking
executive action to implement the policy of Art. 15(4), it is necessary
for the States to remember that the policy which is intended to be
H
JANHIT ABHIYAN v. UNION OF INDIA 265
[J.B. PARDIWALA, J.]

implemented is the policy which has been declared by Article 46 and A
the preamble of the Constitution.” Reference in this context may also be
made to Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
[See : Atish Kumar v. Union of India, Writ (C) No. 14955 of 2019,
High Court of Judicature at Allahabad, Lucknow Bench].
82. Thus, it is evident from the aforesaid that there can be B
reservation for certain weaker sections other than the SCs/STs and
socially and educationally backward classes. The impugned amendment
is meant for weaker sections of the society who are economically weak
and cannot afford to impart education to their children or are unable to
secure employment in the services of the State.
C
83. Thus, in view of my aforesaid discussion, I am not impressed
with the submission canvassed on behalf of the writ applicants that Article
46 of the Constitution cannot be brought in aid to defend the constitutional
validity of the impugned amendment.
INTERPRETATION OF THE CONSTITUTION D
84. There are certain important differences in the theory of
interpretation of a Constitution contrasted with the theory of interpretation
of statutes. These differences arise from the very nature and quality of
a Constitution. It would be pertinent over here to make a brief reference
to these differences. Although the validity of a statute can be assailed on E
the ground that it is ultra vires (beyond the powers), yet the Legislature
which enacted it, the validity of the Constitution cannot be assailed on
any ground whatsoever.
85. The framing of the Constitution of a State is a capital political
fact and not a juridical act. No court or other authority in the State under F
the Constitution can, therefore, determine the primordial question whether
the Constitution has been lawfully framed according to any standards.
Even if a Constitution is framed under violence, rebellion or coercion, it
stands outside the whole area of law, jurisprudence and justiciability.
The basic principle of constitutional jurisprudence is that the Constitution
is the supreme law of the land, even supreme above the law and itself G
governing all other laws. [Mukharji ‘The New Jurisprudence” p. 103].
But this principle is not applicable to an amendment of the Constitution.
The Constitution can be amended only in accordance with the provisions
thereof by the authority empowered to do so in accordance with the
H
266 SUPREME COURT REPORTS [2022] 14 S.C.R.

A procedure laid down therein. The validity of a constitutional amendment
can, therefore, be challenged on the ground that it is ultra vires.
86. The interpretation of a Constitution involves more than a
passing interest concerning the actual litigants and being a pronouncement
of the Courts on the government and administration, has a more general
B and far-reaching consequence. Chief Justice Marshall of the American
Supreme Court, therefore warned in Mcculloch v. Maryland, 4
Wheaton 316, “We must never forget that it is a Constitution we are
expounding”. The policy of a particular state is more easily discernible
and interpreted than the policy of a Constitution, which is a charter for
government and administration of a whole nation and a country. It is
C that policy consideration which makes the statutory interpretation different
from the interpretation of the Constitution. [Mukharji ‘The New
Jurisprudence’, p. 105]. More foresight in the nature of judicial
statesmanship, therefore, is required in interpreting a Constitution than
in construing a statute. The Constitution is not to be construed in any
D narrow pedantic sense [Per Lord Wright in James v. Commonwealth
of Australia, (1936) A.C. 578, 614] and a broad liberal spirit should
inspire those whose duty it is to interpret it, for a Constitution, which
provides for the government of a country, is a living and organic thing,
which of all instruments has the greatest claim to be construed ut res
magis valeat quam pereat (it is better for a thing to have effect than to
E be made void).[Per Gwyer C.J. in Central Provinces Case, (1939) F.
C. R. 18 at p. 37]. But this does not mean that a Court is free to stretch
for pervert the language of a Constitution in the interests of any legal or
constitutional theory, or even for the purpose of supplying omissions or
for the purpose of correcting supposed errors. [ibid]
F 87. If there is an apparent or real conflict between two provisions
of the Constitution, it is to be resolved by applying the principle of
harmonious construction. [Seervai ‘Constitutional Law of India’ pp.25-
27 (Vol.I)] Since it is impossible to make a clear-cut distinction between
mutually exclusive legislative powers, it is well settled that in case of
G conflict, Central Law would prevail over State Law, for otherwise an
absurd situation would arise if two inconsistent laws, each of equal validity,
could exist side by side within the same territory. [Salmond
‘Jurisprudence’, p.32]
88. Stone J. of the American Supreme Court in United States v.
H Patrick B. Classic [1941 SCC OnLine US SC 112 : 313 US 299 (1941)]
JANHIT ABHIYAN v. UNION OF INDIA 267
[J.B. PARDIWALA, J.]

expressed the important principle of constitutional interpretation in these A
terms: -
“….in determining whether a provision of the Constitution
applies to a new subject matter, it is of little significance
that it is one with which the framers were not familiar. For
in setting up an enduring framework of government they B
undertook to carry out for the indefinite future and in all
the vicissitudes of the changing affairs of men, those
fundamental purposes which the instrument itself discloses.
Hence we read its words, not as we read legislative codes
which are subject to continuous revision with the changing
course of events, but as the revelation of the great purposes C
which were intended to be achieved by the Constitution as
a continuing instrument of government. Cf. Davidson v.
New Orleans, 96 U.S. 97, 24 L.Ed. 616; Brown v. Walker,
161 U.S. 591, 595, 16 S.Ct. 644, 646, 40 L.Ed. 819;
Robertson v. Baldwin, 165 U.S. 275, 281, 282, 17 S.Ct. D
326, 328, 329, 41 L.Ed. 715. If we remember that ‘it is a
Constitution we are expounding’, we cannot rightly prefer,
of the possible meanings of its words, that which will defeat
rather than effectuate the Constitutional purpose.”
89. This has been sometimes called as ‘flexible’ or ‘progressive’ E
interpretation of the Constitution which Dr. Wynes refers to as the
doctrine of ‘generic interpretation’.
90. The rules of the interpretation of the Constitution have to take
into consideration the problems of government, structure of a State,
dynamism in operation, caution about checks and balances, not ordinarily F
called for in the interpretation of statutes. [Mukharji ‘The New
Jurisprudence’, p. 106]
91. Although a Constitution is not to be fettered by the past history,
yet it is relevant for properly interpreting the Constitution. This Court
accepted the logic that the Indian Constitution was not written on a G
‘blank slate’ and because the Government of India Act, 1935 provided
the basic fabric for the Indian Constitution, it was invoked to interpret
the Constitution in the light of the provisions of the Act. [M.P.V.
Sundararamier & Co. v. State of A.P. and Others, 1958 SCR 1422 :
AIR 1958 SC 468]
H
268 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 92. The principle of ejusdem generis, a rule of statutory
interpretation, has been applied to the Indian Constitution by this Court
in the State of West Bengal v. Shaik Serajuddin Batley, 1954 SCR
378. The statutory rule of interpretation expressed “Expressio unius
est exclusion alterius” (the express mention of one person or thing is
the exclusion of another) is not strictly applicable to constitutional
B
interpretation. [Mukharji ‘The New Jurisprudence’, p. 110]
93. It is the fundamental principle of construction that there is
always a presumption in favour of the constitutionality of an enactment
and the burden is upon him who attacks it to show that there has been a
clear transgression of the Constitution vide Shri Ram Krishna Dalmia
C v. Shri Justice S.R. Tendolkar and Others, 1959 SCR 279 : AIR 1958
SC 538. [Reference : Law, Judges and Justice by S.M.N. Raina, First
Edn.]
94. In the case of R.C. Poudyal v. Union of India and Others,
1994 Supp (1) SCC 324, this Court at p. 385, para 124 held as under:
D
“124. …. In the interpretation of a constitutional document,
“words are but the framework of concepts and concepts
may change more than words themselves”. The significance
of the change of the concepts themselves is vital and the
constitutional issues are not solved by a mere appeal to
E the meaning of the words without an acceptance of the
line of their growth. It is aptly said that “the intention of a
Constitution is rather to outline principles than to engrave
details”.”
95. In the case of Kihoto Hollohan v. Zachillhu and Others,
F 1992 Supp (2) SCC 651, this Court at p. 676, para 27 held as under:
“27. A constitutional document outlines only broad and
general principles meant to endure and be capable of
flexible application to changing circumstances — a
distinction which differentiates a statute from a Charter
G under which all statutes are made. …”
96. In the case of M. Nagaraj and Others v. Union of India
and Others, (2006) 8 SCC 212, this Court at p. 240 & p. 241, para 19
held as under:

H
JANHIT ABHIYAN v. UNION OF INDIA 269
[J.B. PARDIWALA, J.]

“19. The Constitution is not an ephemeral legal document A
embodying a set of legal rules for the passing hour. It sets
out principles for an expanding future and is intended to
endure for ages to come and consequently to be adapted
to the various crises of human affairs. Therefore, a
purposive rather than a strict literal approach to the
B
interpretation should be adopted. A constitutional provision
must be construed not in a narrow and constricted sense
but in a wide and liberal manner so as to anticipate and
take account of changing conditions and purposes so that
a constitutional provision does not get fossilised but
remains flexible enough to meet the newly emerging C
problems and challenges.” [Emphasis supplied]
DOCTRINE OF BASIC STRUCTURE
97. “Amend as you may even the solemn document which
the founding fathers have committed to your care, for
you know best the needs of your generation. But the D
Constitution is a precious heritage; therefore, you cannot
destroy its identity.” [Minerva Mills Ltd. and Ors. v.
Union of India and others, AIR 1980 SC 1789]
98. The doctrine of Basic Structure includes general features of
the broad democracy, supremacy of the Constitution, rule of law, E
separation of powers, judicial review, freedom and dignity of the individual,
unity and integrity of the nation, free and fair education, federalism and
secularism. The Basic Structure Doctrine admits to identify a philosophy
upon which a Constitution is based. A Constitution stands on certain
fundamental principles which are its structural pillars and if those pillars F
are demolished or damaged, the whole constitutional edifice may fall
down. The metaphor of a living Constitution is usually used in its
interpretive meaning i.e., that the language of the document should evolve
through judicial decisions according to the changing environment of
society. A Constitution’s amendment process provides another mechanism
for such evolution, as a ‘built-in provision for growth’. Prima facie, the G
view that a Constitution must develop over a period of time supports a
broad use of the amendment power. Nevertheless, even if we conceive
of the Constitution as a living tree, which must evolve with the nation’s
growth and develop with its philosophical and cultural advancement, it
has certain roots that cannot be uprooted through the growth process. In H
270 SUPREME COURT REPORTS [2022] 14 S.C.R.

A other words, the metaphor of a living tree captures the idea of certain
constraints: ‘trees, after all, are rooted, in ways that other living organisms
are not’. These roots are the basic principles of a given Constitution.
[Reference : “Unconstitutional Constitutional Amendments : A Study of
the Nature and Limits of Constitutional Amendment Powers”, Yaniv
Roznai, Thesis, February, 2014]
B
99. In the words of Carl Friedrich, a German mathematician and
physicist:
“A constitution is a living system. But just as in a living,
organic system, such as the human body, various organs
C develop and decay, yet the basic structure or pattern
remains the same with each of the organs having its proper
functions, so also in a constitutional system the basic
institutional pattern remains even though the different
component parts may undergo significant alterations. For
it is the characteristic of a system that it perishes when
D one of its essential component parts is destroyed.”
100. Therefore, it is not merely a matter of which principles are
more fundamental than the others. It is not an exercise of ‘ranging over
the constitutional scheme to pick out elements that might arguably be
more fundamental in the hierarchy of values’, William Harris correctly
E claimed, adding that: ‘a Constitutional provision would be fundamental
only in terms of some articulated political theory that makes sense of the
whole Constitution’. The idea of a hierarchy of norms within the
foundational structuralism is to examine whether a constitutional principle
or institution is so basic to the constitutional order that changing it – and
F looking at the whole constitution - would be to change the entire
constitutional identity.
101. Gary Jacobsohn, Professor of Constitutional and Comparative
Law in the Department of Government and Professor of Law at the
University of Texas at Austin, argues that constitutional identity is never
G a static thing, as it emerges from the interplay of inevitably disharmonic
elements. But changes to the constitutional identity, ‘however significant,
rarely culminate in a wholesale transformation of the constitution’. This
is because a nation usually aims to remain faithful to a ‘basic structure’,
which comprises its constitutional identity. ‘It is changeable’, Gary writes,
‘but resistant to its own destruction’.
H
JANHIT ABHIYAN v. UNION OF INDIA 271
[J.B. PARDIWALA, J.]

102. Yaniv Roznai in his thesis referred to above, has referred to A
Water Murphy who argues:
“Thus an “amendment” corrects or modifies the system
without fundamentally changing its nature: An
“amendment” operates within the theoretical parameters
of the existing Constitution. A proposal to transform a B
central aspect of the compact to create another kind of
system – for example, to change a constitutional democracy
into an authoritarian state … – would not be an amendment
at all, but a re-creation of both the covenant and its people.
That deed would lie outside the authority of any set of
governmental bodies, for all are creatures of the people’s C
agreement.”
103. In other words, constitutional changes should not be
tantamount to constitutional metamorphosis. Conversely, one should not
confuse constitutional preservation with constitutional stagnation. As
Joseph Raz writes: D

“The law of the constitution lies as much in the interpretive
decisions of the courts as in the original document that
they interpret … But … it is the same constitution. It is still
the constitution adopted two hundred years ago, just as a
person who lives in an eighteenth-century house lives in a E
house built two hundred years ago. His house had been
repaired, added to, and changed many times since. But it
is still the same house and so is the constitution. A person
may, of course, object to redecorating the house or to
changing its windows, saying that it would not be the same. F
In that sense it is true that an old constitution is not the
same as a new constitution, just as an old person is not the
same as the same person when young. Sameness in that
sense is not the sameness of identity … It is the sameness
of all the intrinsic properties of the object. … The point of
my coda is to warn against confusing change with loss of G
identity and against the spurious arguments it breeds.
Dispelling errors is all that a general theory of the
constitution can aspire to achieve.”

H
272 SUPREME COURT REPORTS [2022] 14 S.C.R.

A STANDARD OF REVIEW
104. While considering the appropriate standards of review of the
constitutional amendments vis-à-vis unamenable principles, Yaniv Roznai
has suggested three different levels of standards:
1. Minimal Effect Standard:
B
105. The first option is the Minimal Effect Standard. This is the
most stringent standard of the judicial review of amendments. According
to this standard, any violation or infringement of an unamendable principle
is prohibited no matter how severe the intensity of the infringement is,
including amendments that have only a minimal effect on the protected
C principles. On the one hand, one may claim that the importance of the
protected unamendable principles – as pillars of the constitution –
necessitates the most stringent protection. If the aim of unamendability
is to provide for hermetic protection of a certain set of values or
institutions, then any violation of these principles ought to give rise to
D grounds for judicial intervention. On the other hand, such a standard
would not only bestow great power to the courts, but also would place
wide – perhaps too wide – restrictions on the ability to amend the
constitution. The theory of unamendability should not be construed as a
severe barrier to change. It should be construed as a mechanism enabling
constitutional progress, permitting certain flexibility by allowing
E constitutional amendments, while simultaneously shielding certain core
features of the constitution from amendment, thereby preserving the
constitutional identity.
2. Disproportionate Violation Standard :

F 106. The intermediate standard of review is the Disproportionate
Violation Standard. It is an examination of the proportionality of the
violation. The principle of proportionality is nowadays becoming an almost
universal doctrine in constitutional adjudication. Proportionality generally
requires that a violation of a constitutional right has a ‘proper purpose;’
that there is a rational connection between the violation and that purpose;
G that the law is narrowly tailored to achieve that purpose; and that the
requirements of the proportionality stricto (balancing) test are met. A
disproportionate violation of a constitutional right would be considered
unconstitutional and thus void. This standard emphasises the balancing
of conflicting interests.
H
JANHIT ABHIYAN v. UNION OF INDIA 273
[J.B. PARDIWALA, J.]

3. Fundamental Abandonment Standard: A
107. Fundamental Abandonment Standard is the lowest level of
scrutiny. According to this standard, only an extraordinary infringement
of unamendable principles, one that changes and ‘fundamentally
abandons’ them, would allow judicial annulment of constitutional
amendments. This seems to be the approach taken by the German B
Constitutional Court.
108. One of the initial references to doctrine of basic features
and its permanency was in Sajjan Singh v. State of Rajasthan, AIR
1965 SC 845, observed, that the Constitution “formulated a solemn and
dignified preamble which appears to be an epitome of the basic features C
of the Constitution. Can it not be said that these are indicia of the intention
of the Constituent Assembly to give a permanency to the basic features
of the Constitution?”
109. The doctrine actually came to be in the seminal case of
Kesavananda Bharati (supra), where the Supreme Court emphasising D
on the essence of the basic structure held that “every provision of the
Constitution can be amended provided in the result the basic foundation
and structure of the Constitution remains the same.” The concept of
basic structure, as such gives coherence and durability to a Constitution,
for it has a certain intrinsic force in it.
E
110. Inspired by the doctrine of Basic Structure enshrined in
Articles 1 to 19 of the German Constitution, 1949 (“The Basic Law for
the Federal Republic of Germany’), where these principles are based on
the premise that democracy is not only a parliamentary form of
government but also is philosophy of life based on the appreciation of
the dignity, the value and the inalienable rights of each individual human F
being; such as that of right to life and physical integrity; equality before
law; rights to personal honour and privacy; occupational freedom;
inviolability of the home; right to property and inheritance. The essence
of basic rights could, under no circumstance, be affected.
111. Article 20 of the Federal Republic of Germany provides that G
Germany is a Democratic and Social Federal State. State authority is
derived from the people through elections. All Germans have right to
resist anyone seeking to abolish the constitutional order, if no other remedy
is available.
H
274 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 112. Article 79 of the Federal Republic of Germany lays down the
procedure to amend the Basic Law by supplementing a particular
provision or expressly amending the same. However, amendments to
the Basic Law affecting the principles laid down in Articles 1 and 20 or
affecting the division of federation i.e. participation of Centre and State
in the legislative process are inadmissible.
B
113. The provisions under the German Constitution deal with rights,
which are not mere values, rather, they are justiciable and capable of
interpretation. Thus, those values impose a positive duty on the State to
ensure their attainment as far as practicable. The State must facilitate
the rights, liberties and freedoms of the individuals.
C
114. In India, the doctrine of Basic Structure is a judicial innovation,
and it continues to evolve via judicial pronouncements of this Court. The
contours of the expression have been looked into by the Court from time
to time, and several constitutional features have been identified as the
basic structure of the Constitution; but there is not an exhaustive definition
D or list of what constitutes the ‘basic structure’ of the Constitution - the
Court decides from case to case if a constitutional feature can be regarded
as basic or not.
115. Kesavananda Bharati (supra) was heard by a Full Bench
of this Court consisting of 13 Judges. A majority of Judges held that the
E view taken in C. Golak Nath and Others v. State of Punjab and
Another, 1967 AIR 1643 : (1967) 2 SCR 762, that the word “law” in
Article 13 included a constitutional amendment, could not be upheld.
The said decision was, therefore, overruled. But the Court was sharply
split on the question whether the word “amendment” in Article 368 as it
F stood before its amendment by the 24th Amendment included the power
to alter the basic feature or to repeal the Constitution itself.
116. Six Judges led by Sikri CJ were of the view that the Constitution
could not be amended so as to abrogate or emasculate the basic features
of the Constitution some of which were characterized by Sikri, CJ as
G under: -
“(1) Supremacy of the Constitution;
(2) Republican and Democratic forms of
Government;
(3) Secular character of the Constitution;
H
JANHIT ABHIYAN v. UNION OF INDIA 275
[J.B. PARDIWALA, J.]

(4) Separation of powers between the legislature, the A
executive and the judiciary;
(5) The Federal character of the Constitution.”
117. It was further held that fundamental rights could not be
abrogated though reasonable abridgment of fundamental rights could be
affected in public interest. According to this view, Parliament would be B
able to adjust fundamental rights in order to secure what the Directive
Principles directed to be accomplished while maintaining the freedom
and dignity of the citizens. Khanna, J. took a more liberal view in regard
to the power of amendment of the Parliament. He agreed with the above-
mentioned six Judges that the power of amendment is not unlimited and C
made the following pertinent observations in Paragraph 1437:
“1437. ….The word “amendment” postulates that the old
Constitution survives without loss of its identity despite the
change and continues even though it has been subjected to
alternations. ………………. The words “amendment of the D
constitution” with all their wide sweep and amplitude cannot
have the effect of destroying or abrogating the basic
structure or framework of the constitution….”
118. He was, however, of the view that subject to the retention of
the basic structure or framework of the Constitution, the power of E
amendment is plenary and includes within itself the power to amend the
various articles of the Constitution, including those relating to fundamental
rights as well as those which may be said to relate to essential features.
He was also of the view that the right to property does not pertain to
basic structure or framework of the Constitution (vide Paragraph 1550).
In short, the decision of the majority may be stated as under : - F
(1) Golak Nath case [AIR 1967 SC 1643 : (1967) 2 SCR
762 : (1967) 2 SCJ 486] is overruled;
(2) Article 368 does not enable Parliament to alter the basic
structure or framework of the Constitution;
G
(3) The Constitution (Twenty-fourth Amendment) Act, 1971,
is valid;
(4) Section 2(a) and 2(b) of the Constitution (Twenty-fifth
Amendment) Act, 1971 is valid;
H
276 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (5) The first part of Section 3 of the Constitution (Twenty-
fifth Amendment) Act, 1971, is valid. The second part,
namely, “and no law containing a declaration that it is for
giving effect to such policy shall be called in question in
any court on the ground that it does not give effect to such
policy” is invalid;
B
(6) The Constitution (Twenty-ninth Amendment) Act, 1971
is valid.
119. Other six Judges led by Ray J. (as he then was) held that
the power to amend was wide and unlimited and included the power to
C add, alter or repeal any provision of the Constitution. They, therefore,
upheld all the Constitutional amendments.
120. Seven judges against six thought that the basic structure of
the Constitution cannot be altered under the amending power although
there was no agreement among themselves about the meaning and
D content of the so-called basic structure.
121. Sikri, CJ, observed:
“The expression “amendment of this Constitution” does not
enable Parliament to abrogate or take away fundamental
rights or to completely change the fundamental features
E of the Constitution so as to destroy its identity. Within these
limits Parliament can amend every article.”
[Kesavananda Bharati, at p. 1565.]
122. Shelat and Grover, JJ., said on the scope of amending power
under Article 368 as follows:
F
“Though the power to amend cannot be narrowly construed
and extends to all the articles it is not unlimited so as to
include the power to abrogate or change the identity of
the Constitution or its basic features;” [Kesavananda
Bharati, at p. 1609-10.]
G 123. Hegde and Mukherjea, JJ., expressed the same opinion. They
said:
“Though the power to amend the Constitution under Article
368 is a very wide power, it does not yet include the power
to destroy or emasculate the basic elements or the
H
JANHIT ABHIYAN v. UNION OF INDIA 277
[J.B. PARDIWALA, J.]

fundamental features of the Constitution.” [Kesavananda A
Bharati, at p. 1648.]
124. Reddy, J. was of the same opinion. Khanna, J. held that the
amending power of Parliament is very wide under Article 368, but he
also imposed certain limitations on the amending power in the name of
basic structure of the Constitution. He said: B
“….it is permissible under the power of amendment to effect
changes, howsoever important, and to adapt the system to
the requirements of changing conditions, it is not permissible
to touch the foundation or to alter the basic institutional
pattern. The words “amendment of the constitution” with C
all their wide sweep and amplitude cannot have the effect
of destroying or abrogating the basic structure or
framework of the constitution…..” [Kesavananda Bharati,
at p. 1860.]
He further said that: D
“…..Subject to the retention of the basic structure or
framework of the Constitution, the power of amendment is
plenary and would include within itself the power to amend
the various articles of the Constitution. … The power of
amendment would also include within itself the power to E
add, alter or repeal the various articles.”
[Kesavananda Bharati, at p. 1903-04.]
125. Thus, it is very clear that the sense in which Khanna, J., uses
the expression ‘basic structure or framework of the Constitution’ is very
different from the sense in which six judges led by Sikri, CJ., use the F
expression ‘essential features or basic features’ of the Constitution.
Fundamental rights can be abrogated by the use of the amending power
according to Khanna, J., but not so according to six judges led by Sikri,
C.J.
126. Ray, J. rejected the idea of any implied limitations on the G
amending power and thought that the power to amend is wide and
unlimited. He said that:
“….There can be or is no distinction between essential and
inessential features of the Constitution to raise any
H
278 SUPREME COURT REPORTS [2022] 14 S.C.R.

A impediment to amendment of alleged essential features….”
[Kesavananda Bharati at p. 1718]
127. The aforesaid opinion was also shared by Palekar, Mathew,
Beg, Dwivedi and Chandrachud, JJ.
128. Thus, if Kesavananda Bharati (supra) is to be read closely
B and carefully, it says that there are no limitations on the exercise of
Article 368 (which is a constituent power), yet it is subject to the ‘Basic
Structure Doctrine’. The origin of the ‘Doctrine of Basic Features’ lies
in the fear of an apprehension of constitutional collapse, and anxiety
which is exceptional in the life of a Constitution. The ‘Basic Structure
C Doctrine’ was meant for special use in times when constitutional
amendments threatened the fundamental structure of the Constitution.
The special stature anticipates a careful use of the doctrine so as to
ensure that its unique place is preserved. Vital as the doctrine was, even
more important was to exercise some restraint and to ensure its
meaningful use. The ‘Basic Structure Doctrine’ has been taken recourse
D to over and over again with little concern about its restrained use.
Professor Satya Prateek, former Assistant Professor, O.P. Jindal
Global University, in one of his essays titled ‘Today’s Promise, Tomorrow’s
Constitution : ‘Basic Structure’, Constitutional Transformations And The
Future Of Political Progress In India’ has very rightly stated that the
E doctrine has been extensively used in affecting policy decisions and its
indifferent use is the root cause of the resentment that has brewed against
it. Over a period of time, it has been used less for constitutional gate–
keeping in times of crisis and more for decisively influencing the course
which State policy might take in future. The repeated use of the doctrine
of Basic Structure may impair the doctrine itself and it is likely that the
F idea of constitutional essentialism might not get the respect it deserves
from the political institutions. Prof. Satya Prateek has beautifully explained
stating that the ‘Basic Structure Doctrine’ is indeed special, it is a powerful
tool we have for constitutional preservation but its special character as
well as its authority is severely threatened in a culture of unresponsive
G use.
129. According to the widely accepted principles of constitutional
interpretation, the provisions of a constitution should be construed in the
widest possible manner. Constitutional law is the basic law. It is meant
for people of different opinions. It should be workable by people of different
H ideologies and at different times. Since it provides a framework for the
JANHIT ABHIYAN v. UNION OF INDIA 279
[J.B. PARDIWALA, J.]

organisation and working of a State in a society which keeps on changing, A
it is couched in elastic terms and, therefore, it has to be interpreted
broadly. No generation has a right to bind the future generations by its
own beliefs and values. Each generation has to choose for itself the
ways of life and social organisation. Constitution should be so adaptable
that each generation may be able to make use of it to realise its aspirations
B
and ideals. An amending clause is specifically provided to adapt the
Constitution according to the needs of the society and the times. In view
of this, no implied limitation can be imposed on the amending power. To
do so would be to defeat the very purpose of it. The Constitution-makers
had before them the Constitutions of the United States, Australia, Canada,
Ireland, South Africa and Germany which they were constantly referring C
to while discussing and drafting the amending provisions. In all these
Constitutions the word ‘amendment’ is used in the widest possible sense.
Therefore, our Constitution-makers may be presumed to have used this
word in the same broad sense in the absence of any express limitations.
[B.N. Rau, Table of Amending Process, Constitutional Precedents,
D
1st Series (1947) cf. Hari Chand, Amending Process in the Indian
Constitution 96 (1972).]
130. Dwivedi, J., in Kesavanand Bharati (supra) said about the
scope of amending power as follows:
“Article 368 is shaped by the philosophy that every E
generation should be free to adapt the Constitution to the
social, economic and political conditions of its time. Most
of the Constitution-makers were freedom-fighters. It is
difficult to believe that those who had fought for freedom
to change the social and political organisation of their
time would deny the identical freedom to their descendants F
to change the social, economic and political organisation
of their times. The denial of power to make radical changes
in the Constitution to the future generation would invite
the danger of extra constitutional changes of the
Constitution. G
“The State without the means of some change is without
means of its conservation. Without such means it might even
risk the loss of that part of the Constitution which it wished
the most religiously to preserve.” [Burke, Recollections on
H
280 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the Revolution in France and other Writings. Oxford
University Press, 1958 Reprint, p. 23.]”
131. The whole Constitution is basic law. It is not easy to distinguish
which part is more basic than the other as there is no objective test to
distinguish. [Ray, J., in Kesavananda Bharati (supra) at p. 1675, 1682
B & 1684.] Since, there are no objective criteria to distinguish, there are
bound to be subjective preferences and choices in deciding what
constitutes this so-called basic structure. Even, if it were possible to
distinguish essential features from non-essential features, it is not possible
to assert that the essential features are necessarily eternal and immutable.
[ Mathew, J., Kesavananda Bharati (supra) at p. 1947.] Judging from
C past history one may doubt if any feature of law and society is
unchangeable. What was considered fundamental by one society at one
time was abandoned later as an outmoded impediment.
132. Fundamental rights, no doubt, are very important and constitute
the bed-rock of civilization. But society keeps on changing with the
D changes in the socio-economic conditions. The limits of these rights may
need constant re-definition. Even their essential content may undergo a
radical transformation. To enable necessary adjustments in the legal
relationships and to bring them in harmony with social realities, an
amending power is provided in all Constitutions. The easier the mode of
E amendment, the more flexible the Constitution is. In the absence of some
amending provision, a Constitution will fail to contain the social changes
and is bound to break down. It is a necessary safety valve to allow
radical changes through constitutional processes. If the necessary
changes cannot be brought through constitutional means, revolution
becomes a necessity. Thus, an unlimited amending power and a simple
F procedure of amendment is an effective means to bring about social
revolution through law. The British Constitution offers a very good
example of a flexible Constitution with an easy procedure of simple
majority vote to bring about any changes in law including constitutional
law. Perhaps, this aspect of constitutional law and strong democratic
G traditions in Britain prompted even Marx to say that probably Britain is
the only country where revolution may be brought about through peaceful
and democratic means. [Friedrich Engels (ed.) Karl Marx, Capital,
(1952. 50 Britannic Great Book Series] Thus, to have wide amending
power and easy procedure of amendment is not to undervalue
fundamental rights, nor is it an invitation to abolish them but is a means
H
JANHIT ABHIYAN v. UNION OF INDIA 281
[J.B. PARDIWALA, J.]

to preserve them through necessary adaptations in harmony with the A
changed social realities. Stability of fundamental rights lies not in the
absence of legal power to remove them but in the social and political
support for them. [Reference : Phantom of Basic Structure of the
Constitution, Source : Journal of the Indian Law Institute, April-June
1974, Vol. 16]
B
133. Mr. N. Palkhivala has summed up the effect of the majority
judgment in his book titled “Our Constitution Defaced and Defiled” in
the following words:
“Parliament cannot, in the exercise of its amending power,
alter the basic structure or framework of the constitution. C
For instance, it cannot abolish the sovereignty of India or
the free democratic character of the republic; nor can it
impair the integrity and unity of India or abolish the States.
(The principle that the basic structure or framework of the
Constitution cannot be altered gives a wider scope to the
amending power than the principle that none of the essential D
features of the Constitution can be damaged or destroyed.)
The Court’s jurisdiction cannot be ousted as is sought to be
done by Article 31C. If the Court’s jurisdiction were ousted,
any of the States could pass laws which might lead to the
dismemberment of India.” E
134. Thus, Kesavananda Bharati (supra) struck a balance
between the rights of the individuals and the powers of the State to
curtail those rights. It found a suitable via-media between the two rival
philosophies – one favouring the complete sanctity of fundamental rights
while the other supporting the complete flexibility of the Constitution. F
[Reference: Law, Judges and Justice – by Justice S.M.N. Raina].
135. In Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR
1975 SC 2299, the Court, expanding the scope of the basic structure,
held that there were four unamendable features which formed part of
the basic structure, namely, “(i) India is a sovereign democratic republic; G
(ii) Equality of status and opportunity shall be secured to all its citizens;
(iii) The State shall have no religion of its own and all persons shall be
equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion and (iv) The nation shall be governed by
a government of laws, not of men.” These, according to them, were
H
282 SUPREME COURT REPORTS [2022] 14 S.C.R.

A “the pillars of our constitutional philosophy, the pillars, therefore, of the
basic structure of the Constitution.”
136. The Court also noted that the principle of free and fair
elections is an essential postulate of democracy, and which, in turn, is a
part of the basic structure of the Constitution. That democracy was an
B essential feature forming part of the basic structure. In this case, the
Court struck down clause (4) of Article 329-A which provided for special
provision as to elections to Parliament in the case of Prime Minister and
Speaker, on the ground that it damaged the democratic structure of the
Constitution. That the said clause (4) had taken away the power of
judicial review of the courts as it abolished the forum without providing
C for another forum for going into the dispute relating to the validity of
election of the Prime Minister. It extinguished the right and the remedy
to challenge the validity of such an election. The complaints of
improprieties, malpractices and unfair means have to be dealt with as
the principle of free and fair elections in a democracy is a basic feature
D of the Constitution, and thus, clause (4) was declared to be impermissible
piece of constitutional amendment.
137. However, the Court in this case also observed that “the
concept of a basic structure, as brooding omnipresence in the sky, apart
from specific provisions of the Constitution, is too vague and indefinite
E to provide a yardstick to determine the validity of an ordinary law.”
138. In Minerva Mills Ltd. (supra), discussing the standard to be
applied to what qualifies as the basic structure, this Court held that “….the
features or elements which constitute the basic structure or
framework of the Constitution or which, if damaged or destroyed,
F would rob the Constitution of its identity so that it would cease to be
the existing Constitution but would become a different Constitution.
… Therefore, in every case where the question arises as to whether
a particular feature of the Constitution is a part of its basic structure,
it would have to be determined on consideration of various factors
such as the place of the particular feature in the scheme of the
G Constitution, its object and purpose and the consequence of its
denial on the integrity of the Constitution as a fundamental instrument
of country’s governance…..”. The Court further held that
“Fundamental rights occupy a unique place in the lives of civilised
societies and have been variously described in our Judgments as
H “transcendental”, “inalienable” and “primordial”…..they constitute
JANHIT ABHIYAN v. UNION OF INDIA 283
[J.B. PARDIWALA, J.]

the ark of the Constitution”. … “….To destroy the guarantees given A
by Part III in order purportedly to achieve the goals of Part IV is
plainly to subvert the Constitution by destroying its basic structure”.
139. In S.R. Bommai and others etc. etc. v. Union of India
and others etc. etc., AIR 1994 SC 1918, expanding the list of basic
features, this Court held that secularism was an essential feature of the B
Constitution and part of its basic structure. In this case, this Court
explained the concept of basic structure of the Constitution, while dealing
with the issue of exercise of the power by the Central Government
under Article 356 of the Constitution.
140. In M. Nagraj (supra), the Constitution Bench of this Court C
dealing with the issue of basic structure observed that “axioms like
secularism, democracy, reasonableness, social justice, etc. are overarching
principles which provide linking factor for principles of fundamental rights
like Articles 14, 19 and 21. These principles are beyond the amending
power of Parliament. They pervade all enacted laws and they stand at
the pinnacle of the hierarchy of constitutional values”. Such rights have D
to be respected and cannot be taken away.
141. The framers of the Constitution have built a wall around the
fundamental rights, which has to remain forever, limiting the ability of
the majority to intrude upon them. That wall is a part of basic structure.
[See : I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu, AIR 2007 E
SC 861; See also Kesavananda Bharati (supra)].
142. Thus, “for a constitutional principle to qualify as an essential
feature, it must be established that the said principle is a part of the
constitutional law binding on the legislature. Only thereafter, the second
step is to be taken, namely, whether the principle is so fundamental as to F
bind even the amending power of Parliament i.e. to form a part of the
basic structure.” [M. Nagaraj (supra)]
143. When an issue is raised regarding the basic structure, the
question does arise as to whether the amendment alters the structure of
the constitutional provisions. “The criterion for determining the validity G
of a law is the competence of the law-making authority. The competence
of the law-making authority would depend on the ambit of the legislative
power, and the limitations imposed thereon as also the limitations on the
mode of exercise of the power.” [M. Nagaraj (supra)]
H
284 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 144. The aforesaid structure is built on the basic foundation, i.e.,
the dignity and freedom of the individual. This is of supreme importance.
This cannot be destroyed by any form of amendment. Parliament cannot
expand its power of amendment under Article 368 so as to confer on
itself the power to repeal, abrogate the Constitution or damage,
emasculate or destroy any of the fundamental rights or essential elements
B
of the basic structure of the Constitution or of destroying the identity of
the Constitution.
145. In I.R. Coelho (dead) by L.R.s (supra), a Nine Judge Bench
of this Court laid down the concrete criteria for basic structure principle,
observing:
C
“123. … Since power to amend the Constitution is not
unlimited, if changes brought about by amendments destroy
the identity of the constitution, such amendments would be
void.….
D x x x x
137. ….every improper enhancement of its own power by
Parliament, be it clause 4 of Article 329-A or clauses 4
and 5 of Article 368 or Section 4 of 42nd Amendment have
been held to be incompatible with the doctrine of basic
E structure doctrine as they introduced new elements which
altered the identity of the Constitution, or deleted the
existing elements from the Constitution by which the very
core of the Constitution is discarded…..”
[Emphasis added]

F 146. Articles 14, 19 and 21 resply represent the fundamental values
and form the basis of rule of law, which is a basic feature of the
Constitution. For instance, Parliament, in exercise of its amending power
under Article 368, can make additions in the three legislative lists contained
in the Seventh Schedule of the Constitution, but it cannot abrogate all the
lists as that would abrogate the federal structure, which is one of the
G basic features of the Constitution.
147. To qualify to be a basic structure it must be a “terrestrial
concept having its habitat within the four corners of the Constitution.”
What constitutes basic structure is not like “a twinkling star up above
the Constitution.” It does not consist of any abstract ideals to be found
H outside the provisions of the Constitution. The Preamble no doubt
JANHIT ABHIYAN v. UNION OF INDIA 285
[J.B. PARDIWALA, J.]

enumerates great concepts embodying the ideological aspirations of the A
people but these concepts are particularised and their essential features
delineated in the various provisions of the Constitution. It is these specific
provisions in the body of the Constitution which determine the type of
democracy which the founders of that instrument established; the quality
and nature of justice, political, social and economic which they aimed to
B
realise, the content of liberty of thought and expression which they
entrenched in that document and the scope of equality of status and of
opportunity which they enshrined in it. These specific provisions enacted
in the Constitution alone can determine the basic structure of the
Constitution. These specific provisions, either separately or in combination,
determine the content of the great concepts set out in the Preamble. It is C
impossible to spin out any concrete concept of basic structure out of the
gossamer concepts set out in the Preamble. The specific provisions of
the Constitution form the yarn from which the basic structure has to be
woven.
148. In Supreme Court Advocates-on-Record Association and D
another v. Union of India, AIR 2016 SC 117, this Court held that there
are declared limitations on the amending power conferred on Parliament
which cannot be breached. Breach of a single provision of the
Constitution is sufficient to render the entire legislation ultra vires the
Constitution. The Court held that the basic structure of the Constitution
includes supremacy of the Constitution, the republican and democratic E
form of Government, the federal character of distribution of powers,
secularism, separation of powers between the Legislatures, Executive
and the Judiciary, and independence of the Judiciary.
149. In Kuldip Nayar v. Union of India & Ors., AIR 2006 SC
3127, this Court, while dealing with the question of political party system F
vis-à-vis democracy observed that “parliamentary democracy and multi-
party system are an inherent part of the basic structure of Indian
Constitution. It is the political parties that set up candidates at an election
who are predominantly elected as Members of the State Legislatures.”
Further, the Court, placing reliance on Kesavananda Bharati (supra) G
observed that “….a Parliamentary Democracy like ours functions on
the basis of the party system. The mechanics of operation of the party
system as well as the system of Cabinet Government are such that the
people as a whole can have little control in the matter of detailed law-
making”.
H
286 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 150. In Kihoto Hollohan v. Zachillhu (supra), the Court felt that
the existence of the Tenth Schedule of the Constitution further strengthens
the importance of the political parties in our democratic set-up. Rejecting
the argument that the political party is not a democratic entirety, and that
Whip issued under the Tenth Schedule is unconstitutional, the Court
reiterated that the Parliament was empowered to provide that the
B
Members are expected to act in accordance with the ideologies of their
respective political parties and not against it. Thus, ‘Basic’ means the
base of a thing on which it stands and on the failure of which it falls.
Hence, the essence of the ‘basic structure of the Constitution’ lies in
such of its features, which if amended would amend the very identity of
C the Constitution itself, ceasing its current existence. It, as noted above
is, not a “vague concept” or “abstract ideals found to be outside the
provisions of the Constitution”. Therefore, the meaning/extent of ‘basic
structure’ needs to be construed in view of the specific provision(s)
under consideration, its object and purpose, and the consequences of its
denial on the integrity of the Constitution as a fundamental instrument of
D
governance of the country. [Reference : paragraphs 108 to 114,
paragraphs 135 to 150 from - Doctrine of Basic Structure : Contours
by Dr. Justice B.S. Chauhan Former Judge, Supreme Court of India;
dated 16 September, 2018]
151. In the case on hand, the entire debate on the constitutional
E validity of the 103rd Constitution Amendment has proceeded on the
doctrine of Basic Structure. If there is one decision of this Court which
explains the doctrine of Basic Structure and its reach and effects in the
most lucid and simple manner, the same is the case of Glanrock Estate
Private Limited v. State of Tamil Nadu, (2010) 10 SCC 96. In the said
F case, a Bench of three Judges examined the constitutional validity of the
Constitution (34th Amendment) Act, 1974 by which the Gudalur Janmam
Estates (Abolition and Conversion into Ryotwari) Act, 1969 stood inserted
in the Ninth Schedule to the Constitution as Item 80. It was argued on
behalf of the petitioner therein that the inclusion of Janmam Act in the
Ninth Schedule amounted to direct negation and abrogation of judicial
G review. It was argued that the Constitution (34th Amendment) Act, 1974
destroyed the basic feature of the Constitution, namely, judicial review.
152. S.H. Kapadia, CJ, speaking for the Bench, in the Glanrock
Estate (supra), has explained certain concepts like the egalitarian equality,
overarching principles and reading of Article 21 with Article 14.
H
JANHIT ABHIYAN v. UNION OF INDIA 287
[J.B. PARDIWALA, J.]

153. The learned Judge explained that in applying the above three A
principles, one has to go by the degree of abrogation as well as the
degree of elevation of an ordinary principle of equality to the level of
overarching principles. The learned Judge reminded that the case was
not one wherein the challenge was to any ordinary law of the land. The
Court said that the challenge was to the constitutional amendment. In a
B
rigid Constitution (Article 368) power to amend the Constitution is a
derivative power, which is an aspect of the constituent power.
154. In the case on hand also, the challenge is to the exercise of
derivative power of the Parliament in the matter of 103 rd Constitution
Amendment. Since the power to amend the Constitution is a derivative
power, the exercise of such power to amend the Constitution is subject C
to two limitations, namely, the doctrine of Basic Structure and lack of
legislative competence. The doctrine of Basic Structure is brought in as
a window to keep the power of judicial review intact as abrogation of
such a power would result in violation of basic structure. When we
speak of discrimination or arbitrary classification, the same constitutes D
violation of Article 14 of the Constitution. This Court laid stress to keep
in mind that the distinction between constitutional law and ordinary law
in a rigid Constitution like ours. The said distinction proceeds on the
assumption that ordinary law can be challenged on the touchstone of the
Constitution. Therefore, when an ordinary law seeks to make a
classification without any rational basis and without any nexus with the E
object sought to be achieved, such ordinary law could be challenged on
the touchstone of Article 14 of the Constitution. However, when it comes
to the validity of a constitutional amendment, one has to examine the
validity of such amendment by asking the question as to whether such
an amendment violates any overarching principle in the Constitution. F
What is overarching principle? Concepts like secularism, democracy,
separation of powers, power of judicial review fall outside the scope of
amendatory powers of the Parliament under Article 368. If any of
these were to be deleted, it would require changes to be made not only
in Part III of the Constitution but also in Article 245 and the three Lists
of the Constitution resulting in the change of the very structure or G
framework of the Constitution. When an impugned Act creates a
classification without any rational basis and having no nexus with the
objects sought to be achieved, the principle of equality before law is
violated undoubtedly. Such an Act can be declared to be violative
of Article 14. Such a violation does not require re-writing of H
288 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the Constitution. This would be a case of violation of ordinary principle
of equality before law. Similarly, “egalitarian equality” is a much wider
concept. It is an overarching principle. The term “egalitarianism” has
distinct definition that all people should be treated as equal and have the
same political, economic, social and civil rights or have a social philosophy
advocating the removal of economic inequalities among the people,
B
economic egalitarianism or the decentralisation of power.
155. For the purpose of explaining “egalitarian equality” as an
overarching principle, this Court in Glanrock Estate (supra) gave an
illustration of the acquisition of forests. This Court observed thus:
C “26. … This would be a case of violation of ordinary
principle of equality before law.
27. Similarly, “egalitarian equality” is a much wider
concept. It is an overarching principle. Take the case of
acquisition of forests. Forests in India are an important
D part of environment. They constitute national asset. In
various judgments of this Court delivered by the Forest
Bench of this Court in T.N. Godavarman
Thirumulpad v. Union of India (Writ Petition No. 202 of
1995), it has been held that “inter-generational equity” is
part of Article 21 of the Constitution.
E
28. What is inter-generational equity? The present
generation is answerable to the next generation by giving
to the next generation a good environment. We are
answerable to the next generation and if deforestation
takes place rampantly then inter-generational equity would
F stand violated.
29. The doctrine of sustainable development also forms
part of Article 21 of the Constitution. The “precautionary
principle” and the “polluter pays principle” flow from the
core value in Article 21.
G
30. The important point to be noted is that in this case we
are concerned with vesting of forests in the State. When
we talk about inter-generational equity and sustainable
development, we are elevating an ordinary principle of
equality to the level of overarching principle. Equality
H
JANHIT ABHIYAN v. UNION OF INDIA 289
[J.B. PARDIWALA, J.]

doctrine has various facets. It is in this sense that in I.R. A
Coelho case [(2007) 2 SCC 1] this Court has read Article
21 with Article 14. The above example indicates that when
it comes to preservation of forests as well as environment
vis-à-vis development, one has to look at the constitutional
amendment not from the point of view of formal equality
B
or equality enshrined in Article 14 but on a much wider
platform of an egalitarian equality which includes the
concept of “inclusive growth”. It is in that sense that this
Court has used the expression Article 21 read with Article
14 in I.R. Coelho case [(2007) 2 SCC 1]. Therefore, it is
only that breach of the principle of equality which is of C
the character of destroying the basic framework of the
Constitution which will not be protected by Article 31-B. If
every breach of Article 14, however, egregious, is held to
be unprotected by Article 31-B, there would be no purpose
in protection by Article 31-B.
D
31. The question can be looked at from yet another angle.
Can Parliament increase its amending power by amendment
of Article 368 so as to confer on itself the unlimited power
of amendment and destroy and damage the fundamentals
of the Constitution? The answer is obvious. Article 368
does not vest such a power in Parliament. It cannot lift all E
limitations/restrictions placed on the amending power or
free the amending power from all limitations. This is the
effect of the decision in Kesavananda Bharati [(1973) 4
SCC 225]. …”
156. This Court, in the aforesaid context, said that the point to be F
noted, therefore, is that when constitutional law is challenged, one has to
apply the “effect test” to find out the degree of abrogation. This is the
“degree test” which has been referred to earlier. If one finds that the
constitutional amendment seeks to abrogate core values/overarching
principles like secularism, egalitarian equality, etc. and which would G
warrant re-writing of the Constitution, then such constitutional law would
certainly violate the basic structure. In other words, such overarching
principles would fall outside the amendatory power under Article 368 in
the sense that the said power cannot be exercised even by the Parliament
to abrogate such overarching principles. The Court proceeded to quote
H
290 SUPREME COURT REPORTS [2022] 14 S.C.R.

A the observations made by Mathew, J. in Indira Nehru Gandhi (supra),
that equality is a feature of rule of law and not vice-versa. The expression
“rule of law” describes a society in which Government must act in
accordance with law. A society governed by law is the foundation of
personal liberty. It is also the foundation of economic development since
investment will not take place in a country where rights are not respected.
B
The Court said that it is in that sense that the expression “Rule of Law”
constitutes an overarching principle embodied in Article 21, one aspect
of which is equality.
157. As stated above, the amending power under Article 368 of
the Constitution is a derivative power. The doctrine of Basic Structure
C provides a touchstone on which the validity of the Constitutional
Amendment Act could be judged. While applying this doctrine, one need
not go by the content of a “right” but by the test of justifiability under
which one has to see the scope and the object of the Constitutional
Amendment. The doctrine of Classification under Article 14 has several
D facets. Equality is a comparative concept. This Court proceeded to
observe something very important. It said that “a person is treated
unequally only if that person is treated worse than others, and those
others (the comparison group) must be those who are “similarly
situated” to the complainant.”
E 158. The pivotal or seminal question that falls for my consideration
is whether the “similarly situated test” is attracted in the present case so
as to say that the egalitarian equality as an overarching principle is violated
and has thereby rendered clause (6) of Article 15 and clause (6) of
Article 16 invalid as they exclude the SCs, STs and OBCs.

F 159. In Glanrock Estate (supra), K.S. Panicker Radhakrishnan,
J., concurring with S.H. Kapadia, CJ, thought fit to supplement the
reasonings by his separate order. Radhakrishnan, J. observed thus:
“79. Right to equality before law, right to equality of
opportunity in matters of public employment, right to
G protection of life and personal liberty, right against
exploitation, right to freedom of religion, etc. are all
fundamental rights guaranteed under Part III of the
Constitution and a common thread running through all the
articles in Part III of the Constitution have a common
identity committed to an overarching principle which is the
H
JANHIT ABHIYAN v. UNION OF INDIA 291
[J.B. PARDIWALA, J.]

basic structure of the Constitution. Rule of law is often A
said as closely interrelated principle and when interpreted
as a principle of law, it envisages separation of powers,
judicial review, restriction on the absolute and arbitrary
powers, equality, liberty, etc. Separation of powers is an
integral part of rule of law which guarantees independence
B
of judiciary which is a fundamental principle viewed as a
safeguard against arbitrary exercise of powers, legislative
and constitutional.
80. Doctrine of absolute or unqualified parliamentary
sovereignty is antithesis to rule of law. Doctrine of
parliamentary sovereignty may, at times, make rule of law C
and separation of powers subservient to the wish of the
majority in Parliament. Parliamentary supremacy cannot
be held unqualified so as to undo the basic structure. Basic
structure doctrine is, in effect, a constitutional limitation
against parliamentary autocracy. Let us, however, be clear D
that the principles of equality inherent in the rule of law
do not averse to the imposition of special burdens, grant
special benefits and privileges to secure to all citizens
justice, social and economic, and for implementing the
directive principles of State policy for establishing an
egalitarian society.” E

[Emphasis supplied]
160. Thus, the word “amendment” postulates that the old
Constitution survives without loss of its identity despite the change and
continues even though it has been subjected to alteration. As a result of F
the amendment, the old Constitution cannot be destroyed and done away
with; it is retained though in the amended form. What then is meant by
the retention of the old Constitution? It means the retention of the basic
structure or framework of the Constitution. Although it is permissible
under the power of amendment to effect changes, howsoever important,
and to adapt the system to the requirements of changing conditions, yet G
it is not permissible to touch the foundation or to alter the basic institutional
pattern. The words “amendment of the Constitution” with all their wide
sweep and amplitude cannot have the effect of destroying or abrogating
the basic structure or framework of the Constitution. It would not be
competent under the garb of amendment, for instance, to change the H
292 SUPREME COURT REPORTS [2022] 14 S.C.R.

A democratic government into dictatorship or hereditary monarchy, nor
would it be permissible to abolish the Lok Sabha and the Rajya Sabha.
161. Justice H.R. Khanna in one of his lectures delivered at the
Delhi Study Group in New Delhi, stated something which is worth taking
note of:
B “Criticism has been levelled against the concept of basic
structure that it creates uncertainty in a vital matter like
the power to amend the Constitution. It is urged that unless
that concept is put in precise cut and dry form, those
amending the Constitution would always remain uncertain
C whether the constitutional amendment, even though passed
by the requisite majority, would be upheld by the courts.
In this respect it may be stated that the majority decision
of this Court in Kesavananda Bharati case contains
sufficient indication by giving illustrations as to what would
constitute basic structure of the Constitution. It is never
D desirable in constitutional matters to put either the
provisions or basic propositions in cut and dry form, nor is
it proper in such matters to try to be exhaustive for once
you do that you forget a vital fact of life that in human
affairs there can arise a variety of situations and that it is
E beyond any human ingenuity to pierce through the visage
of time and to contrive for all types of contingencies. It is
for that reason that the provision of a Constitution are
couched in general terms because that fact gives the
provisions flexibility, helps them to grow and enables them
to adapt themselves to new situations. Rigidity is one thing
F which the provisions of a Constitution must shun for such
rigidity can result in the break-down of the Constitution in
situations where what is needed is resilience and flexibility
rather than brittleness and rigidity. Absence of formal
exactitude or want of fixity of meaning is not unusual or
G even regrettable attribute of constitutional provision. Nor
is it desirable in such matters to freeze a concept at some
fixed stage of thought or time. The US Constitution was
framed about 200 years ago. It was designed for a country
which at that time was primarily agricultural and consisted
of a small number of States. The fact that the said
H
JANHIT ABHIYAN v. UNION OF INDIA 293
[J.B. PARDIWALA, J.]

Constitution has stood the test of time and has proved A
effective for the most industrialized country consisting of
a very large number of States is primarily due to the fact
that the provisions of its Constitution are couched in general
language. As mentioned by a great master the generalities
of US Constitution have helped it to grow and adapt its
B
provisions to the varying situations. Although one can
never prevent the challenge to any provision, however
immaculately drafted, there can be not much doubt about
the validity of most of the provisions.”
[Emphasis supplied]
162. Thus, what is important from the aforesaid is that it is never C
desirable in constitutional matters to put either the provisions or basic
propositions in cut and dry form nor is it proper in such matters to try to
be exhaustive for once you do that you forget a vital fact of life that in
human affairs there can arise a variety of situations and that it is beyond
any human ingenuity to pierce through the visage of time and to contrive D
for all types of contingencies. The amending power cannot be construed
in a narrow and pedantic manner. It cannot be said that no part of Part
III can be abridged. What is violative of the basic structure is the
withdrawal of the props on which the edifice stands, will alter the identity
of the Constitution. [See : Kesavananda Bharati (supra)]. Only if a
right is so abridged that it tends to affect the basic structure or essential E
content of the right and reduces the right only to a name, will be
abridgement or ceases to be an abridgement.
163. If the economic criteria based on the economic indicator
which distinguishes between one individual and another is relevant for
the purpose of classification and grant of benefit of reservation under F
clause (6) of Article 15 as held by my esteemed Brother Justice Bhat,
then merely because the SCs/STs/OBCs are excluded from the same,
by itself, will not make the classification arbitrary and the amendment
violative of the basic structure of the Constitution. This is where with all
humility at my command I beg to differ with my esteemed Brother Justice G
Bhat for whom I have utmost and profound respect.
164. Article 14 has two clear facets which are invalid. One is
over- classification and the other is under-classification, which is
otherwise, over-inclusiveness or under-inclusiveness. The judicial review
of over-classification should be undertaken very strictly. In the cases of H
294 SUPREME COURT REPORTS [2022] 14 S.C.R.

A under-classification when the complaint is either by those who are left
out or those who are in i.e. that the statute has roped him in, but a
similarly situated person has been left out, it would be under-inclusiveness.
It is to say that you ought to have brought him in to make the classification
reasonable. It is in such cases that the courts have said that ‘who should
be brought in’ should be left to the wisdom of the legislature because it is
B
essentially a stage where there should be an element of practicability.
Therefore, the cases of under-inclusion can be reviewed in a little liberal
manner. The under-inclusion argument should not be very readily
accepted by the courts because the stage could be experimental. For
instance, in the case on hand, the argument in the context of 103 rd
C Constitution Amendment is that SCs, STs and OBCs have been left out,
the Court would say that it is under-inclusiveness. The Legislature does
not have to bring any and everybody to make it reasonable. The case on
hand is not one of active exclusion. The SCs, STs and OBCs who have
been left out at the first instance are telling the Court that they ought to
have been included. In such circumstances, the test would be very strict,
D
not that it would be impervious to review. Had they been included in
clause (6) of Article 15 & clause (6) of Article 16 resply at any point of
time and thereafter, excluded, it would be legitimate for them to argue
that having treated them as one, they cannot be excluded in an arbitrary
manner.
E 165. This Court in the State of Gujarat and Another v. Shri
Ambika Mills Ltd. Ahmedabad and Another, (1974) 4 SCC 656, has
explained the concept of under-inclusiveness. I quote the relevant
observations: -
“54. A reasonable classification is one which includes all
F who are similarly situated and none who are not. The
question then is : what does the phrase ‘similarly situated’
mean? The answer to the question is that we must look
beyond the classification to the purpose of the law. A
reasonable classification is one which includes all persons
G who are similarly situated with respect to the purpose of
the law. The purpose of a law may be either the elimination
of a public mischief or the achievement of some positive
public good.
55. A classification is under-inclusive when all who are
H included in the class are tainted with the mischief but there
JANHIT ABHIYAN v. UNION OF INDIA 295
[J.B. PARDIWALA, J.]

are others also tainted whom the classification does not A
include. In other words, a classification is bad as under-
inclusive when a State benefits or burdens persons in a
manner that furthers a legitimate purpose but does not
confer the same benefit or place the same burden on others
who are similarly situated. A classification is over-inclusive
B
when it includes not only those who are similarly situated
with respect to the purpose but others who are not so
situated as well. In other words, this type of classification
imposes a burden upon a wider range of individuals than
are included in the class of those attended with mischief at
which the law aims. Herod ordering the death of all male C
children born on a particular day because one of them
would some day bring about his downfall employed such
a classification.
56. The first question, therefore, is, whether the exclusion
of establishments carrying on business or trade and D
employing less than 50 persons makes the classification
under-inclusive, when it is seen that all factories employing
10 or 20 persons, as the case may be, have been included
and that the purpose of the law is to get in unpaid
accumulations for the welfare of the labour. Since the
classification does not include all who are similarly situated E
with respect to the purpose of the law, the classification
might appear, at first blush, to be unreasonable. But the
Court has recognized the very real difficulties under which
legislatures operate — difficulties arising out of both the
nature of the legislative process and of the society which F
legislation attempts perennially to re-shape — and it has
refused to strike down indiscriminately all legislation
embodying classificatory inequality here under
consideration. Mr. Justice Holmes, in urging tolerance of
under-inclusive classifications, stated that such legislation
should not be disturbed by the Court unless it can clearly G
see that there is no fair reason for the law which would
not require with equal force its extension to those whom it
leaves untouched. [Missouri, K & T Rly v. May, 194 US
267, 269] What, then, are the fair reasons for non-
H
296 SUPREME COURT REPORTS [2022] 14 S.C.R.

A extension? What should a court do when it is faced with a
law making an under-inclusive classification in areas
relating to economic and tax matters? Should it, by its
judgment, force the legislature to choose between inaction
or perfection?”
[Emphasis supplied]
B
166. Ambica Mills (supra) justified under-inclusiveness on the
grounds of recognition of degrees of harm, administrative convenience,
and legislative experimentation. Reference was made to Justice Oliver
Wendell Holmes’s observation in Missouri, K & T Rly v. May, 194 US
267 (1904), 269, that “legislation should not be disturbed by the Court
C unless it can clearly see that there is no fair reason for the law which
would not require with equal force its extension to those whom it leaves
untouched”, to state that the judiciary must exercise self-restraint in
such cases.
167. The equality code in Article 14 of the Indian Constitution
D prescribes substantive and not formal equality. It is now a settled position
that classification per se is not discriminatory and violative of Article 14.
Article 14 only forbids class legislation and not reasonable classification.
A classification is reasonable, when the following twin tests as laid down
by S.R. Das, J., in The State of West Bengal v. Anwar Ali Sarkar,
E 1952 SCR 284, are fulfilled:
(i) The classification must be based on an intelligible differentia
which distinguishes persons or things that are grouped, from others left
out of the group; and
(ii) The differentia must have a rational relationship to the object
F sought to be achieved by the statute.
168. Das J. in Anwar Ali Sarkar (supra) held that there must be
some yardstick to differentiate the class included and the others excluded
from the group. The differentia used for the classification in the
amendment is to promote or uplift the economically weaker sections of
G citizens who are otherwise not covered under Article 15(4) and Article
16(4) of the Constitution. This is keeping in mind the Directive Principles
of State Policy as embodied under Article 46 of the Constitution.
Therefore, there is a yardstick used for constituting the class for the
purpose of the amendment. To put it in other words, the insertion of the
economically weaker sections is perfectly valid as a class for the
H
JANHIT ABHIYAN v. UNION OF INDIA 297
[J.B. PARDIWALA, J.]

extension of special provision for their advancement for admission and A
for reservation in posts.
169. The broad egalitarian principle of social and economic justice
for all is implicit in every Directive Principle and, therefore, a law designed
to promote a directive principle, even if it comes into conflict with the
formalistic and doctrinaire of equality before the law, would most certainly B
advance the broader egalitarian principles and desirable constitutional
goal of social and economic justice for all. [See : Sanjeev Coke
Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147]
170. Article 14 of the Constitution of India corresponds to the last
portion of Section 1 of the 14th Amendment of the American Constitution, C
except that our Article 14 has also adopted the English doctrine of Rule
of law by the addition of the words “equality before the law”. However,
the addition of these extra words does not make any substantial difference
in its practical application. The, meaning, scope and effect of Article
14 of the Constitution of India have been discussed and laid down by
this Court in the case of Charanjit Lal Chowdhury v. The Union of D
India and others, AIR 1951 SC 41.
171. It could be said that this Court in S. Seshachalam and Others
v. Chairman, Bar Council of Tamil Nadu and Others reported in
(2014) 16 SCC 72, has taken the view that the reasonable classification
to prevent double benefits under the equality code is permissible. This E
Court observed thus:
“28. The various welfare fund schemes are in actuality
intended for the benefit of those who are in the greatest
need of them. The lawyers, straight after their enrolment,
who join the legal profession with high hopes and F
expectations and dedicate their whole lives to the
professions are the real deservers. Lawyers who enrol
themselves after their retirement from government services
and continue to receive pension and other terminal benefits,
who basically join this field in search of greener pastures G
in the evening of their lives cannot and should not be
equated with those who have devoted their whole lives to
the profession. For these retired persons, some amount of
financial stability is ensured in view of the pension and
terminal benefits and making them eligible for lump sum
H
298 SUPREME COURT REPORTS [2022] 14 S.C.R.

A welfare fund under the Act would actually amount to double
benefits. Therefore, in our considered view, the
classification of lawyers into these two categories is a
reasonable classification having a nexus with the object of
the Act.
B 29. Furthermore, it is also to be noted that in view of their
being placed differently than the class of lawyers who chose
this profession as the sole means of their livelihood, it can
reasonably be discerned that the retired persons form a
separate class. As noticed earlier, the object of the Act is to
provide for the constitution of a Welfare Fund for the benefit
C of advocates on cessation of practice. As per Section 3(2)(d)
any grant made by the Government to the welfare fund is
one of the sources of the Advocates’ Welfare Fund. The
retired employees are already in receipt of pension from
the Government or other employer and to make them get
D another retiral benefit from the Advocates’ Welfare Fund
would amount to double benefit and they are rightly
excluded from the benefit of the lump sum amount of the
welfare fund.”
[Emphasis supplied]
E 172. One of the arguments of Mr. Gopal Sankaranarayanan, the
learned senior counsel who appeared for the petitioner in Writ Petition
(Civil) No. 73 of 2019 that has appealed to me is that the SC/ST/OBCs
received political reservation as well as under the Constitution and there
are no ceiling limits to the extent of reservation which each of the groups
can receive. On the other hand, the EWS reservation is kept at 10% and
F is not extended to the political reservation, thereby providing a balance.
Indisputably, the exclusion in Articles 15(6) and 16(6) resply from the
benefits of EWS measures is only of the “classes mentioned” in the
Articles 15(4), 15(5) and 16(4) of the Constitution. The contention that
the exclusion of these groups is discriminatory overlooks the fact that by
G exclusion of the creamy layer, the lower economic strata of the SC/ST
and OBCs are already represented in the classes covered by the Articles
15(4), 15(5) and 16(4) resply. The sketch below would make it more
clear.

H
JANHIT ABHIYAN v. UNION OF INDIA 299
[J.B. PARDIWALA, J.]

A

B

C

173. Let me go back to Kathi Raning Rawat (supra). I have
referred to Kathi Raning Rawat (supra) in para 14 of my judgment. D
Let me reiterate the observations made in Kathi Raning Rawat (supra)
which I have incorporated in para 14. I quote once again:
“7. All legislative differentiation is n o t
necessarily discriminatory. In fact, the word
“discrimination” does not occur in Art. 14. The expression E
“discriminate against” is used in Art. 15(1) and Art. 16(2),
and it means, according to the Oxford Dictionary, “to make
an adverse distinction with regard to; to distinguish
unfavourably from others”. Discrimination thus involves
an element of unfavourable bias and it is in that sense
that the expression has to be understood in this context. If F
such bias is disclosed and is based on any of the grounds
mentioned in Arts. 15 and 16, it may well be that the statute
will, without more, incur condemnation as violating a
specific constitutional prohibition unless it is saved by one
or other of the provisos to those articles. But the position G
under Art. 14 is different….”
174. Article 15, just like Article 16, is a facet of the right to equality.
That right as interpreted in the context of Article 14 is not the right to
uniform or identical treatment. It is a right to be treated equally among
equals. Unequal treatment of equals is as much violation of that right as
H
300 SUPREME COURT REPORTS [2022] 14 S.C.R.

A equal treatment of unequals. Every difference of treatment is not
inconsistent with that right just as every identical treatment is not
consistent with it. For determining the consistency of such treatment
with the right to equality from time to time different tests such as
reasonable classification, suspect classification, or classification lying in
between the two, etc. have been devised and applied. But they have not
B
always been able to provide satisfactory explanation, particularly when
it comes to affirmative action or positive equality. An all comprehensive
and satisfactory test in this regard has been provided by Ronald Dworkin,
an American philosopher and scholar of United States Constitutional
Law, in his distinction between the right to equal treatment and the right
C to treatment as an equal. According to Ronald Dworkin, the latter is the
fundamental right, while the former is only a derivative right. The right
to treatment as an equal consists in equal respect and concern, while the
right to equal treatment consists in identical treatment. But identical
treatment is neither possible nor consistent with the right to equality.
Therefore, what the right to equality requires is equal concern. As long
D
as that concern exists, the difference of treatment is consistent with the
right to equality. Not every difference of treatment is per se inconsistent
with the right to equality. Only that difference of treatment which is
based on lack of equal concern is inconsistent with that right. To illustrate,
different treatment on the basis of race, religion or caste is not, in itself,
E bad so long as equal concern or respect is shown to every race, religion
or caste. It becomes vulnerable only when it is based on disrespect,
contempt or prejudice to a race, religion or caste. Article 15 prohibits
only such and not every difference of treatment based on religion, race,
caste, sex, place of birth or any of them. This is very much obvious from
the expression “discriminate against” in Article 15 of the Constitution.
F
The State is not prohibited from treating people differently on the basis
of religion, race, caste, sex or place of birth; it is prohibited from
discriminating against them on these grounds. Discrimination results only
when religion, race, caste, sex or place of birth or any of them is made
the basis of disrespect, contempt or prejudice for difference in treatment.
G In other words, if difference in treatment on any of these grounds is not
based on any disrespect, contempt or prejudice, it is not discriminatory
and, therefore, not against Article 15(1). The same is true for Article
29(2).

H
JANHIT ABHIYAN v. UNION OF INDIA 301
[J.B. PARDIWALA, J.]

175. Articles 15(1) and 29(2) resply while thus prohibiting A
discrimination or prejudicial or contemptuous difference of treatment on
the grounds mentioned in those Articles, Article 15(4) sanctions “special
provisions for the advancement of any socially and educationally
backward classes ... or for the Scheduled Castes and the Scheduled
Tribes”. Could it be said or argued that any provision for the advancement
B
of any socially and educationally backward class or for SCs and STs
can be termed or characterised as the one based on any prejudice,
contempt or insult to any forward class? If the answer is in the negative,
then why any provision for the advancement of any economically weaker
section of the society excluding SCs and STs should be termed or
characterised as the one based on any prejudice, contempt or insult to C
any backward class? The aforesaid would equally apply to Article 16 of
the Constitution. [Reference : “Are Articles 15(4) and 16(4)
Fundamental Rights” by Prof. Mahenendra P. Singh, Professor of Law,
Delhi University]
176. M. Patanjali Sastri, CJ in Kathi Raning Rawat (supra) D
explained:
“7. All legislative differentiation is n o t
necessarily discriminatory. In fact, the word
“discrimination” does not occur in Art. 14. The expression
“discriminate against” is used in Art. 15(1) and Art. 16(2), E
and it means, according to the Oxford Dictionary, “to make
an adverse distinction with regard to; to distinguish
unfavourably from others”. Discrimination thus involves
an element of unfavourable bias and it is in that sense
that the expression has to be understood in this context. If
such bias is disclosed and is based on any of the grounds F
mentioned in Arts. 15 and 16, it may well be that the statute
will, without more, incur condemnation as violating a
specific constitutional prohibition unless it is saved by one
or other of the provisos to those articles. But the position
under Art. 14 is different. Equal protection claims under G
that article are examined with the presumption that the State
action is reasonable and justified. This presumption of
constitutionality stems from the wide power of classification
which the legislature must, of necessity, possess in making
laws operating differently as regards different groups of
persons in order to give effect to its policies.… ” H
302 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 177. Fazal Ali, J. in his concurring judgment Kathi Raning Rawat
(supra) explained the concept in the following words:
“19. I think that a distinction should be drawn between
“discrimination without reason” and ‘’discrimination with
reason”. The whole doctrine of classification is based on
B this distinction and on the well-known fact that the
circumstances which govern one set of persons or objects,
may not necessarily be the same as those governing another
set of persons or objects, so that the question of unequal
treatment does not really arise as between persons
governed by different conditions and different sets of
C circumstances….”
178. In the State of Madhya Pradesh v. Narmada Bachao
Andolan and Another, (2011) 7 SCC 639, this Court observed quoting
Kathi Raning Rawat (supra):

D “73. Discrimination means an unjust, an unfair action in
favour of one and against another. It involves an element
of intentional and purposeful differentiation and further
an element of unfavourable bias; an unfair classification.
Discrimination under Article 14 of the Constitution must
be conscious and not accidental discrimination that arises
E from oversight which the State is ready to rectify. [Vide Kathi
Raning Rawat v. State of Saurashtra [AIR 1952 SC 123 :
1952 Cri LJ 805], and Video Electronics (P) Ltd. v. State
of Punjab [(1990) 3 SCC 87 : 1990 SCC (Tax) 327 : AIR
1990 SC 820].”
F 179. Let me also refer to a speech of the President of the Supreme
Court of the United States on “Equality and Human Rights”, Oxford
Equality Lecture 2018, Lady Hale dated 29th October, 2018. The speech
starts stating: -
“Equality sounds a simple concept but the reality is very
G complicated. Is it about where you start – with equal
opportunities - or where you end up – with equal outcomes
- or something in between – like a level playing field?”
180. Let me now refer to some relevant parts of the speech:
“There must be other people in an ‘analogous situation’
H or ‘similarly situated’ who are treated more favourably than
JANHIT ABHIYAN v. UNION OF INDIA 303
[J.B. PARDIWALA, J.]

the complainant. In ordinary discrimination cases, now A
under the Equality Act 2010, the equivalent requirement,
that the circumstances of the comparator must be the same
or not materially different from those of the complainant,
can generate a lot of argument. How different is different?
I usually give the illustration of Shamoon v Chief Constable
B
of the Royal Ulster Constabulary [2003] UKHL 11, [2003]
ICR 337: the House of Lords held that the situation of a
senior female police officer was not the same as the
situation of male officers who had been treated more
favourably, because there had been complaints against her
from subordinates and not against them. This begs the C
question of whether the complaints themselves stemmed from
discriminatory attitudes towards senior police officers. A
better illustration now might be Hewage v Grampian Health
Board [2012] UKSC 37, 2013 SC (UKSC) 54, where an
Asian female consultant in orthodontics complained of
D
bullying and harassment by her managers and the more
favourable treatment given to white male consultants who’d
made similar complaints. The Health Board tried hard to
argue that their situations were different because of minor
differences between them – but we did not agree.
These arguments arise because under the Equality Act it is E
not generally a defence to direct discrimination that the
difference in treatment is justified. It is tempting, therefore,
where a court or tribunal thinks that there might have been
a justification to find that the cases are not the same. This
is not a problem under article 14 where both direct and F
indirect discrimination can be justified if it is a
proportionate means of achieving a legitimate aim. So the
approach to comparability ought to be more relaxed, as
indeed it is. As Lord Nicholls put it in R (Carson) v Secretary
of State for Work and Pensions [2005] UKHL17, [2006]
1 AC 173, para 3: G

“ . . . the essential question for the court is whether
the alleged discrimination, that is, the difference in
treatment of which complaint is made, can withstand
scrutiny. Sometimes the answer to this question will
H
304 SUPREME COURT REPORTS [2022] 14 S.C.R.

A be plain. There may be such an obvious, relevant
difference between the claimant and those with whom
he seeks to compare himself that their situations
cannot be regarded as analogous. Sometimes, where
the position is not so clear, a different approach is
called for. Then the court’s scrutiny may best be
B
directed at considering whether the differentiation
has a legitimate aim and whether the means chosen
to achieve the aim is appropriate and not
disproportionate in its adverse impact.”
Thus in most cases it comes down to justification. There is
C a link here with status. Discrimination on some grounds is
more difficult to justify than discrimination on others. In R
(RJM) v Secretary of State for Work and Pensions [2008]
UKHL 63, [2009] 1 AC 311, Lord Walker produced the
illuminating idea that personal characteristics are ‘more
D like a series of concentric circles’ (para 5). The inner circle
is innate, largely immutable, and closely connected with
personality: gender, sexual orientation, colour, race,
disability. Next come nationality, language, religion and
politics, which may be innate or acquired, but are all-
important to personality and reflect important values
E protected by the European Convention. Outside those are
acquired characteristics, more concerned with what people
do or with what happens to them than with who they are,
such as military status, residence, or past employment. He
put street homelessness into that category: ‘The more
F peripheral or debateable any suggested personal
characteristic is, the less likely it is to come within the most
sensitive area where discrimination is particularly difficult
to justify’ (para 5). So denying disability premium to street
homeless was justified. Strasbourg has also put immigration
status into this category (Bah v United Kingdom (2011) 31
G BHRC 609).
But there is also a link with the subject matter.
Discrimination in some areas is easier – much easier – to
justify than in others. Generally speaking, we address
justification in four questions: is there a legitimate aim; is
H
JANHIT ABHIYAN v. UNION OF INDIA 305
[J.B. PARDIWALA, J.]

there a rational connection between the means and the aim; A
could the aim be achieved by measure which would intrude
less upon the fundamental right in question; and has a
fair balance been struck between the end and the means?
But the test to be applied in striking that balance does differ
according to the subject-matter.
B
This brings me to the most fraught area of all – welfare
benefits. Welfare benefits do more than try to ensure a level
playing field on which all start equal and then make of
life what they can. Welfare benefits are trying to do
something to redress inequality of results: to lift people out
of absolute poverty; to redress some of the disadvantage C
suffered by children growing up in poverty; to make
reasonable adjustments to cater for disability. They are not
of course trying to achieve absolute equality – just to
prevent the worst effects of gross socio-economic
inequalities.” D
181. Keeping in view the aforesaid, let me now refer to some of the
observations made by this Court in Ashoka Kumar Thakur (supra):
“114. A survey of the conclusions reached by the learned
Judges in Kesavananda Bharati case [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225] clearly shows E
that the power of amendment was very wide and even the
fundamental rights could be amended or altered. It is also
important to note that the decision in Berubari Union and
Exchange of Enclaves, Reference under Article 143(1) of
the Constitution of India, In re [AIR 1960 SC 845 : (1960) F
3 SCR 250] to the effect that the Preamble to the
Constitution was not part of the Constitution was
disapproved in Kesavananda Bharati case [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225 ] and it was
held that it is a part of the Constitution and the Preamble
to the Constitution is of extreme importance and the G
Constitution should be read and interpreted in the light of
the grand and noble visions envisaged in the Preamble. A
close analysis of the opinions in Kesavananda Bharati
case [Kesavananda Bharati v. State of Kerala, (1973) 4
SCC 225] shows that all the provisions of the Constitution, H
306 SUPREME COURT REPORTS [2022] 14 S.C.R.

A including the fundamental rights, could be amended or
altered and the only limitation placed is that the basic
structure of the Constitution shall not be altered. The
judgment in Kesavananda Bharati case [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225 ] clearly
indicates what is the basic structure of the Constitution. It
B
is not any single idea or principle like equality or any other
constitutional principles that are subject to variation, but
the principles of equality cannot be completely taken away
so as to leave the citizens in this country in a state of
lawlessness. But the facets of the principle of equality could
C always be altered especially to carry out the directive
principles of the State policy envisaged in Part IV of the
Constitution….”
115. The basic structure of the Constitution is to be taken
as a larger principle on which the Constitution itself is
D framed and some of the illustrations given as to what
constitutes the basic structure of the Constitution would
show that they are not confined to the alteration or
modification of any of the fundamental rights alone or any
of the provisions of the Constitution. Of course, if any of
the basic rights enshrined in the Constitution are completely
E taken out, it may be argued that it amounts to alteration of
the basic structure of the Constitution. For example, the
federal character of the Constitution is considered to be
the basic structure of the Constitution. There are large
number of provisions in the Constitution dealing with the
F federal character of the Constitution. If any one of the
provisions is altered or modified, that does not amount to
the alteration of the basic structure of the Constitution.
Various fundamental rights are given in the Constitution
dealing with various aspects of human life. The
Constitution itself sets out principles for an expanding
G future and is obligated to endure for future ages to come
and consequently it has to be adapted to the various
changes that may take place in human affairs.
116. … as regards constitutional amendments, if any
challenge is made on the basis of basic structure, it has to
H be examined based on the basic features of the Constitution.
JANHIT ABHIYAN v. UNION OF INDIA 307
[J.B. PARDIWALA, J.]

117. It may be noticed that the majority in Kesavananda A
Bharati case [Kesavananda Bharati v. State of Kerala,
(1973) 4 SCC 225] did not hold that all facets of Article
14 or any of the fundamental rights would form part of
the basic structure of the Constitution….
118. Equality is a multicoloured concept incapable of a B
single definition as is also the fundamental right under
Article 19(1)(g). The principle of equality is a delicate,
vulnerable and supremely precious concept for our society.
It is true that it has embraced a critical and essential
component of constitutional identity. The larger principles
of equality as stated in Articles 14, 15 and 16 may be C
understood as an element of the “basic structure” of the
Constitution and may not be subject to amendment,
although, these provisions, intended to configure these
rights in a particular way, may be changed within the
constraints of the broader principle. The variability of D
changing conditions may necessitate the modifications in
the structure and design of these rights, but the transient
characters of formal arrangements must reflect the larger
purpose and principles that are the continuous and
unalterable thread of constitutional identity. It is not the
introduction of significant and far-reaching change that E
is objectionable, rather it is the content of this change
insofar as it implicates the question of constitutional
identity.
119. The observations made by Mathew, J. in Indira Nehru
Gandhi v. Raj Narain [1975 Supp SCC 1 : AIR 1975 SC F
2299 : (1976) 2 SCR 347] are significant in this regard
[Ed.: Quoted and paraphrased in Minerva Mills
Ltd. v. Union of India, (1980) 3 SCC 625, p. 673, para
83.] :
“83. … ‘To be a basic structure it must be a terrestrial G
concept having its habitat within the four corners of
the Constitution.’ (Indira Nehru case [1975 Supp SCC
1 : AIR 1975 SC 2299 : (1976) 2 SCR 347] , SCC p.
137, para 341)
H
308 SUPREME COURT REPORTS [2022] 14 S.C.R.

A What constitutes basic structure is not like ‘a
twinkling star up above the Constitution’. It does not
consist of any abstract ideals to be found outside
the provisions of the Constitution. The Preamble no
doubt enumerates great concepts embodying the
ideological aspirations of the people but these
B
concepts are particularised and their essential
features delineated in the various provisions of the
Constitution. It is these specific provisions in the body
of the Constitution which determine the type of
democracy which the founders of that instrument
C established; the quality and nature of justice,
political, social and economic which they aimed to
realise, the content of liberty of thought and
expression which they entrenched in that document
and the scope of equality of status and of opportunity
which they enshrined in it. These specific provisions
D
enacted in the Constitution alone can determine the
basic structure of the Constitution. These specific
provisions, either separately or in combination,
determine the content of the great concepts set out
in the Preamble. It is impossible to spin out any
E concrete concept of basic structure out of the
gossamer concepts set out in the Preamble. The
specific provisions of the Constitution are the stuff
from which the basic structure has to be woven.
(Indira Nehru case [Indira Nehru Gandhi v. Raj
Narain, 1975 Supp SCC 1 : AIR 1975 SC 2299 :
F
(1976) 2 SCR 347] , SCC p. 138, para 345)”
x x x x
121. It has been held in many decisions that when a
constitutional provision is interpreted, the cardinal rule is
G to look to the Preamble to the Constitution as the guiding
star and the directive principles of State policy as the “book
of interpretation”. The Preamble embodies the hopes and
aspirations of the people and directive principles set out
the proximate grounds in the governance of this country.

H x x x x
JANHIT ABHIYAN v. UNION OF INDIA 309
[J.B. PARDIWALA, J.]

373. Affirmative action is employed to eliminate substantive A
social and economic inequality by providing opportunities
to those who may not otherwise gain admission or
employment. Articles 14, 15 and 16 allow for affirmative
action. To promote Article 14 egalitarian equality, the State
may classify citizens into groups, giving preferential
B
treatment to one over another. When it classifies, the State
must keep those who are unequal out of the same batch to
achieve constitutional goal of egalitarian society.”
182. I am of the view as Prof. Satya Prateek rightly puts that the
enabling provisions, varying enforcement mechanisms and the State
opinion on backwardness, reservation, adequate representation etc., in C
any circumstances cannot be recognised as the fundamental or basic
structure of the Constitution. By their very nature, they are bound to
change, with time, location and circumstances. On the other hand, the
fundamental tenets or the core principles of the Constitution are
foundational – they are at the core of its existence. They are seminal to D
the Constitution’s functioning. The Constitution retains its existence on
these foundations as they preserve the Constitution in its essence. This
is not to mark out the possibilities of structural adjustments in the
foundations with time. The foundations may shift, fundamental values
may assume a different meaning with time but they would still remain to
be integral to the constitutional core of principles, the core on which the E
Constitution would be legitimately sustained. (Reference: Virendra
Kumar, Basic Structure of the Indian Constitution: Doctrine of
Constitutionally Controlled Governance, 49:3, Journal of the Indian Law
Institute, 365, 385 (2007))
183. Prof. Virendra Kumar believes that there is a difference F
between the fundamental rights and the values that structure such
fundamental rights. He views the values to have an overarching influence
and says that it is totally possible to hold that violation of the fundamental
rights in certain situations, may not infringe the fundamental values in
their backdrop. (Reference –Essay by Satya Prateek). G
184. The ad hoc policies of the State directed towards achieving
a larger, fundamental standard of equality, cannot by itself become
fundamental. Fundamental would only be the principle and not the way
these principles are sought to be realised. Such mechanisms which
facilitate ‘equality of opportunity in public employment’ as guaranteed H
310 SUPREME COURT REPORTS [2022] 14 S.C.R.

A under Article 16 of the Constitution are ad hoc arrangements. They
could be suitably modified with passage of time or even be done away
with for a more suitable, convenient and efficient reservation policy,
largely dependent on the State’s own understanding of the best way to
pursue the constitutional ends.
B 185. This Court in Ajit Singh and Others v. State of Punjab and
Others reported as (1999) 7 SCC 209 (5-Judge Bench) after quoting
with approval the law laid down in its previous judgments in M.R. Balaji
(supra) and C.A. Rajendran v. Union of India & Others reported as
(1968) 1 SCR 721 : AIR 1968 SC 507 ruled that there is no duty on the
Government to provide reservation. The Court held that both Articles
C 16(4) and 16(4A) resply do not confer any fundamental rights nor do
they impose any constitutional duties but are only in the nature of enabling
provision vesting a discretion in the State to consider providing reservation
if the circumstances mentioned in those articles so warranted.
186. Each one of these Constitutional provisions that are
D categorised as rights under Part III has intrinsic value content. Many of
these rights are a part of the mechanism geared towards realising a
common constitutional principle. For example, Articles 14, 15 and 16
resply of the Constitution are committed to the common principle of
equality. Reasonably then, if an amendment is to be struck down under
E the ‘basic structure’ formulation, the central principle of these inter-
related provisions should be at threat. A mere violation of one of these
enabling provisions would not be of much consequence under the doctrine
of Basic Structure as long as such violation does not infringe upon the
central thesis of equality. Redress for marginal encroachment cannot be
found under the ‘Basic Structure Doctrine’. In considering the effect of
F an amendment on the constitutional core, it is important to keep in mind
the widest ramifications of the amendment. It is imperative to contemplate
and consider every way in which the ‘basic structure’ of the Constitution
might be threatened through the impugned amendment. The amendment
would stand as constitutional only after a satisfactory understanding as
G to its effect on the constitutional core is reached by the courts. To sustain
itself, the amendment should not violate such core in the widest
interpretation given to it. (Reference : Prof. Satya Prateek’s essay)
187. The new concept of economic criteria introduced by the
impugned amendment for affirmative action may go a long way in
H eradicating caste-based reservation. It may be perceived as a first step
JANHIT ABHIYAN v. UNION OF INDIA 311
[J.B. PARDIWALA, J.]

in the process of doing away with caste-based reservation. In the words A
of Nani A. Palkhivala, “……The basic structure of the Constitution
envisages a cohesive, unified, casteless society. By breathing new
life into casteism the judgment (Mandal-Indra Sawhney) fractures
the nation and disregards the basic structure of the Constitution.
The decision would revitalize casteism, cleave the nation into two –
B
forward and backward – and open up new vistas for internecine
conflicts and fissiparous forces, and make backwardness a vested
interest. It will undo whatever has been achieved since independence
towards creating a unified, integrated nation. The majority judgment
(Mandal) will revive casteism which the Constitution emphatically
intended to end; and the pre-independence tragedy would be re- C
enacted with the roles reversed – the erstwhile underprivileged
would now become the privileged…..”
188. Baba Saheb Ambedkar recognised fraternity as a necessary
principle for the survival of Indian democracy. He defined fraternity as
the ‘common brotherhood of all Indians’. In his revolutionary, yet D
undelivered speech titled ‘Annihilation of Caste’, he described fraternity
as the ‘essential attitude of respect and reverence towards fellowmen’.
189. Let me remind one and all of what this Court observed almost
five decades back in Minor A. Peeriakaruppan v. State of Tamil Nadu
and Others [(1971) 1 SCC 38 : AIR 1971 SC 2303]: E
“29. …. But all the same the Government should not proceed
on the basis that once a class is considered as a backward
class it should continue to be backward class for all times.
Such an approach would defeat the very purpose of the
reservation because once a class reaches a stage of F
progress which some modern writers call as take off stage
then competition is necessary for their future progress. The
Government should always keep under review the question
of reservation of seats and only the classes which are really
socially and educationally backward should be allowed
to have the benefit of reservation. Reservation of seats G
should not be allowed to become a vested interest.….”
[Emphasis supplied]
190. Thus, reservation is not an end but a means – a means to
secure social and economic justice. Reservation should not be allowed
H
312 SUPREME COURT REPORTS [2022] 14 S.C.R.

A to become a vested interest. Real solution, however, lies in eliminating
the causes that have led to the social, educational and economic
backwardness of the weaker sections of the community. This exercise
of eliminating the causes started immediately after the Independence
i.e., almost seven decades back and it still continues. The longstanding
development and the spread of education have resulted in tapering the
B
gap between the classes to a considerable extent. As larger percentages
of backward class members attain acceptable standards of education
and employment, they should be removed from the backward categories
so that the attention can be paid toward those classes which genuinely
need help. In such circumstances, it is very much necessary to take into
C review the method of identification and the ways of determination of
backward classes, and also, ascertain whether the criteria adopted or
applied for the classification of backward is relevant for today’s conditions.
The idea of Baba Saheb Ambedkar was to bring social harmony by
introducing reservation for only ten years. However, it has continued
past seven decades. Reservation should not continue for an indefinite
D
period of time so as to become a vested interest.
191. In the result, I hold that the impugned amendment is valid
and in no manner alters the basic structure of the Constitution.
192. I am of the view that all the petitions challenging the impugned
E amendment should fail.
S. RAVINDRA BHAT, J.
Table of Contents*
I. Context and history of reservations .....................................4
F II. Dealing with the basic structure ..................................10
A. Important cases on the doctrine.........................................10
B. Test for determining basic structure.............................14
III. Re Question 3: analyzing the exclusionary clause “other than”
G and whether it offends the basic structure.......................................22
A. Historical analysis of the Equality Code..............................24
(i) Article 15........................................................................24

H * Ed. Note: Pagination in the Contents is as per the Original Judgment.
JANHIT ABHIYAN v. UNION OF INDIA 313
[S. RAVINDRA BHAT, J.]

(ii) Article 16........................................................................27 A
(iii) Article 17.......................................................................29
(iv) Other provisions in the Constitution................................33
B. Content of Equality Code...................................................34
C. Equality Code is a part of the basic structure...............37 B
D. Impact/effect of the phrase “other than” in the impugned
amendment................................................................................45
(i) Test of reasonable classification.....................................45
(ii) Individual – as the beneficiary.......................................52 C
(iii) Violation of the basic structure.......................................54
IV. Re Question No. 1: permissibility of special provisions (including
reservation) based on economic criteria.........................................56
A. Judicial observations on economic criteria..........................56 D
B. State’s obligations under Directive Principles to fulfil
mandate of substantive equality................................................60
C. Flexibility of constitutional amendments to enable
substantive equality...................................................................61
E
D. Purpose that the amendment seeks to achieve through
introduction of economic criteria..............................................65
E. Conclusion on permissibility of economic criteria
per se............................................................................................67
V. Consideration of Article 16(6).............................................67 F
VI. Re: Question 2: special provisions based on economic
criteria, in relation to admission to private unaided
institutions.................................................................................71
VII. Addressing other related challenges to, and justifications
of the impugned Amendment....................................................73 G

A. Possibility of reading down the exclusion............................73
B. Absence of ‘guardrails’ to deny economic criteria per
se...............................................................................................75
C. Basic structure doctrine as a discernible concept........76 H
314 SUPREME COURT REPORTS [2022] 14 S.C.R.

A D. Whether an enabling provision can violate the basic
structure....................................................................................78
E. Parallel with exclusion of creamy layer..........................83
F. Other justifications for the classification......................84
B (i) Reasonable classification to prevent double benefits.......85
(ii) Scope of Article 46.........................................................86
(iii) EWS as a ‘compensatory’ measure..................................88
G. The breach of the 50% cap – A note of caution..................92
C VIII. Conclusion.......................................................................93
A. The principles of non-discrimination and fraternity in the
constitutional ethos.......................................................................94
B. Summary of findings in Questions 1-3............................97
D 1. I regret my inability to concur with the views expressed by the
majority opinion on the validity of the 103rd Amendment on Question No.
3, since I feel - for reasons set out elaborately in the following opinion -
that this court has for the first time, in the seven decades of the republic,
sanctioned an avowedly exclusionary and discriminatory principle. Our
Constitution does not speak the language of exclusion. In my considered
E opinion, the amendment, by the language of exclusion, undermines the
fabric of social justice, and thereby, the basic structure.
2. At the outset, I must state that I am in agreement that the
addition, or insertion of the ‘economic criteria’ for affirmative action in
aid of the section of population who face deprivation due to poverty, in
F furtherance of Article 46, does not per se stray from the Constitutional
principles, so as to alter, violate, or destroy its basic structure. As long as
the State addresses deprivation resulting from discriminatory social
practices which have kept the largest number of our populace in the
margins, and continues its ameliorative policies and laws, the introduction
G of such deprivation-based affirmative action, is consistent with
constitutional goals. What, however, needs further scrutiny, (which this
opinion proposes to address presently) is whether the manner of
implementing – i.e., the implicit exclusion of those covered under Art.
15(4) and 16(4) [Scheduled Castes (“SC”), Scheduled Tribes (“ST”),
and socially and educationally backward classes (“SEBC”)], cumulatively
H
JANHIT ABHIYAN v. UNION OF INDIA 315
[S. RAVINDRA BHAT, J.]

referred to as ‘backward classes’] violates, or damages the basic A
structure or essential features of the Constitution.
3. Therefore, I will first address the point of my disagreement –
Question 3 [Part III] followed by a discussion on Question 1 [Part IV];
I have also separately considered economic criteria vis-a-vis Article 16,
specifically [Part V]. I have given my additional reasoning on Question B
2 [Part VI]. Since all three questions framed by this court, entail an
examination under the doctrine of basic structure, I find it necessary to
lay out the contours of this doctrine, the standard of review for identifying
the essential feature or principle, and for application of the doctrine itself
[Part II].
C
I. Context and history of reservations
4. Given that it has been exhaustively recounted in the judgment
of Justice Dinesh Maheshwari - it is unnecessary for the purpose of this
opinion to retrace the history of how affirmative action and reservations
in India have been worked out; I have briefly outlined what is relevant to D
my analysis.
5. Aside from the allusion to Maharaja Chhatrapati Shahuji’s
reservation of 50% (in 1902), the kind of affirmative action one sees
today, can be traced to the 1931 census which separately determined
the “depressed classes”. Premised on this, the Government of India E
(Scheduled Castes) Order, 1936 1 enlisted a large number of
communities which faced the brunt of caste stigma and other socially
evil practices. Parallelly, in several princely states disparate efforts were
made to ameliorate the lot of such communities and castes, that had
been discriminated against and marginalised for centuries. This history
informs a large part of the Constituent Assembly debates, during which, F
member after member, reiterated the fledgling nation’s determination
not only to ensure equality before law, and equal protection of the law,
but travelling beyond that, to ensuring substantive equality of opportunity
and access to public places, goods, employment, etc.
6. One of the first cases that this court decided was State of G
Madras v. Champakam Dorairajan2, where this court held to be
unconstitutional, a communal reservation which fixed quotas for different
1
Government of India (Scheduled Castes) Order, 1936 <https://socialjustice.gov.in/
writereaddata/UploadFile/GOI-SC-ORDER-1936.pdf>.
2
State of Madras v. Champakam Dorairajan, 1951 SCC 351, (hereinafter, “ Champakam
Dorairajan“). H
316 SUPREME COURT REPORTS [2022] 14 S.C.R.

A communities and castes – this led to insertion of Article 15(4) by the
Constitution (First Amendment) Act. The next important case was M.R.
Balaji v. State of Mysore3 where this court held that reservations cannot
be solely based on caste, and rather would have to satisfy the test of
social and educational backwardness, as per the (then) text of the
Constitution. It was held that the result of poverty, to a large extent, was
B
that the poor class of citizens automatically became socially backward.
They did not enjoy a status in society and were therefore, forced to take
a backward seat. Other decisions followed the law declared in M.R.
Balaji – In T. Devadasan v. Union of India4, too, a rule enabling carrying
forward of SC vacancies which resulted in almost 2/3rd of the vacancies
C being earmarked for SC candidates, was adversely commented upon
and held to be unconstitutional. The majority remarked importantly that
the reason for backwardness of SC/ST communities was due to
“historical causes” and that the “purpose of Article 16(4) is to ensure
that such people, because of their backwardness should not be
unduly handicapped in the matter of securing employment in the
D
services of the State”. Reservations is therefore “in favour of
backward classes who are not adequately represented in the services
under the State”. The court also said that a rule for reservation and
posts for such backward classes “cannot be said to have violated
Article 14”, as advanced classes cannot be considered for appointment
E to such posts because “they may be equally or even more meritorious
than the members of the backward classes”.
7. However, in an illuminating dissenting, Subba Rao, J, highlighted
the linkages between Articles 14, 15 and 16, stressing on the fact that
Article 16(4) was a facet of Article 16(1):
F “26. Article 14 lays down the general rule of equality. Article
16 is an instance of the application of the general rule with
special reference to opportunity of appointments under the
State. It says that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
G any office under the State. If it stood alone, all the backward
communities would go to the wall in a society of uneven basic
social structure; the said rule of equality would remain only

3
M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”),
See para 21.
H 4
T. Devadasan v. Union of India (1964) 4 SCR 680 (hereinafter, “T. Devadasan”).
JANHIT ABHIYAN v. UNION OF INDIA 317
[S. RAVINDRA BHAT, J.]

an utopian conception unless a practical content was given A
to it. Its strict enforcement brings about the very situation it
seeks to avoid. To make my point clear, take the illustration
of a horse race. Two horses are set down to run a race—one
is a first class race horse and the other an ordinary one.
Both are made to run from the same starting point. Though
B
theoretically they are given equal opportunity to run the race
in practice the ordinary horse is not given an equal
opportunity to compete with the race horse. Indeed that is
denied to it. So a handicap may be given either in the nature
of extra weight or a start from a longer distance. By doing
so, what would otherwise have been a farce of a competition C
would be made a real one. The same difficulty had confronted
the makers of the Constitution at the time it was made.
Centuries of calculated oppression and habitual submission
reduced a considerable section of our community to a life of
serfdom. It would be well nigh impossible to raise their
D
standards if the doctrine of equal opportunity was strictly
enforced in their case. They would not have any chance if
they were made to enter the open field of competition without
adventitious aids till such time when they could stand on their
own legs. That is why the makers of the Constitution
introduced clause (4) in Art. 16. The expression “nothing in E
this article” is a legislative device to express its intention in a
most emphatic way that the power conferred thereunder is
not limited in any way by the main provision but falls outside
it. It has not really carved out an exception, but has preserved
a power untrammelled by the other provisions of the Article.”
F
8. A majority of the 7-judge bench in State of Kerala v. N.M.
Thomas5, accepted this dissenting view of K. Subba Rao, J. (in T.
Devadasan). In N.M. Thomas, a rule exempting SC candidates from
qualifying in a departmental examination for a longer duration than others,
was upheld by the Supreme Court. The court noted that:
G
(i) The basic content of Articles 14, 15(1) and 16(1)
constituted a code in that Articles 15(4) and 16(4) was
to enable equality of opportunity for class which would
otherwise have been excluded from appointment. Hence,
5
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 (hereinafter “N.M. Thomas”) H
318 SUPREME COURT REPORTS [2022] 14 S.C.R.

A any preferential rule for backward classes, could not be
unconstitutional;
(ii) Article 16(1) permits classification and Article 16(4) is
not an exception to Article 16(1);
(iii) A classification is reasonable if it includes all persons
B who are similarly situated with respect to the purpose6;
(iv) Article 16(1) sets out a positive aspect of equality of
opportunity in matters of public employment and Article
16(2) negatively prohibits discrimination on the
enumerated grounds in the area covered by Article 16(1);
C
(v) But for Article 16(4), 16(1) would have prevented
preferential treatment for reservations for backward
classes of citizens.
It was held that Article 16(4) was introduced to reconcile Article
D 16(1) [representing the dynamics of ‘justice’ conceived as ‘equality’, in
conditions under which candidates actually competing for posts in the
Government] and Articles 46 and 335 embodying the duties of the State
so as to protect them from the inequities of social injustice. These
encroachments in the field of Article 16(1) can only be permitted if they
are warranted under Article 16(4).
E
9. The most authoritative decision on the point of reservations
was the nine-Judge ruling in Indra Sawhney v. Union of India7. The
court also had the occasion to consider the validity of an office
memorandum which introduced a 27% quota in favour of other backward
classes in relation to Central Government posts and services. The verdict
F was not a unanimous one. There were six opinions. The broadest
summary of those opinions:
(i) the reference to backward classes of citizens within
Article 16(4) refers to social and educational
backwardness;
G (ii) Article 16(4) is a facet and part of Article 16(1), and
not an exception to the latter. The judgment of Jeevan
Reddy, J explains the ruling in N.M. Thomas on this
point approvingly at paragraph 713 (SCC p. 672-674);
6
para 83 per Mathew, J.
7
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, (hereinafter, “Indra
H
Sawhney”).
JANHIT ABHIYAN v. UNION OF INDIA 319
[S. RAVINDRA BHAT, J.]

(iii) Caste alone cannot be the determining factor to decide A
social and educational backwardness and that a caste
can be and can often be a social class in India;
(iv) The economic criterion alone for determining
backwardness of classes or groups is impermissible,
because the indicators are social and educational B
backwardness having regard to the express terms of
Articles 15(4) and 16(4);
(v) There can be sub-classification amongst backward
classes of citizens for the purpose of ensuring that most
vulnerable groups benefit; C
(vi) There can be no reservations in promotions under Article
16(4); and
(vii) The “creamy layer” or more affluent sections of other
backward classes had to be identified by the state to
ensure that the most deprived sections were not kept D
out. Such categories could not claim the benefit of
reservation.
10. M. Nagaraj v. Union of India 8, Ashok Kumar Thakur v.
Union of India9, K. Krishna Murthy v. Union of India 10, Pramati
Educational & Cultural Trust v. Union of India11, Chebrolu Leela E
Prasad Rao v. State of A.P12, and Jaishri Laxmanrao Patil v. State of
Maharashtra 13, are the other significant decisions, rendered by
Constitution Benches, after Indra Sawhney on this. In M. Nagaraj, the
court negatived a challenge to Article 16(4-A and B) introduced by a
Constitutional amendment on the ground that it violated the basic structure F
principle. The court held that though facets of equality were part of the
basic structure, the provision Article 16(4A) permitting reservations in
8
M. Nagaraj v. Union of India, (2006) 8 SCC 212, (hereinafter, “M. Nagaraj”).
9
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (hereinafter, “Ashok Kumar
Thakur”).
10
K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, (hereinafter as “K. Krishna
G
Murthy”).
11
Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1, (“Pramati”).
12
Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401, (“Chebrolu Leela
Prasad”).
13
Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1, (hereinafter,
“Jaishri Laxmanrao Patil”). H
320 SUPREME COURT REPORTS [2022] 14 S.C.R.

A promotion for SC/STs did not violate the basic structure. The amendment
in fact, restored the situation which existed due to prior court rulings that
such reservations in promotion were permissible. The court also held
that the “catch-up rule”14 was not an rule of equality, or a constitutional
principle that could not be overborne.15 The court, in M. Nagaraj,
discussed the principles underlying the basic structure doctrine, as well
B
as the applicable tests to determine it (which I have referred to in the
following section).
II. Dealing with the basic structure
11. I agree with the judgment of Justice Dinesh Maheshwari in its
C tracing of the doctrine of basic structure, and its journey, through past
precedents spanning nearly five decades. I will however, record a few
additional conclusions based upon my reading.
A. Important cases on the doctrine
12. The court’s polyvocal majority in Kesavananda Bharati v.
D State of Kerala16, did not offer unanimity on the key elements of the
constitution, or the values underlying it, as essential features. What
however, the judges constituting the majority were clear, was that the
power of amendment needed regulation, or control, through the basic
structure doctrine. For the purpose of brevity – and compactness, it
E would be sufficient to notice the analysis and summary17 of the majority
14
So described, in view of the previous decisions of the court, which had declared that
senior employees in a cadre, overlooked for promotion on account of quotas in promotion
in favour of SC/STs were entitled to “catch up” their seniority in the lower cadre, when
they were promoted. This was to balance their equities, or off-set the disadvantage
they were placed in due to reservations in promotions, which enabled junior officials in
a cadre to steal a march and secure promotions earlier.
F 15
The court stated that “As stated hereinabove, the concept of the ‘catch-up’ rule and
‘consequential seniority’ are not constitutional requirements. They are not implicit in
clauses (1) and (4) of Article 16. They are not constitutional limitations. They are
concepts derived from service jurisprudence. They are not constitutional principles.”
16
Kesavananda Bharati v. State of Kerala,(1973) 4 SCC 225; 1973 Supp SCR 1
(hereinafter, “Kesavananda Bharti”).
17
G Salient aspects are that: Sikri, CJ stated that the “fundamental importance of the
freedom of the individual has to be preserved for all times to come and that it could not
be amended out of existence” and enumerated some of the essential features - supremacy
of the constitution, republican and democratic form of Government, secular character
of the Constitution; separation of powers between the Legislature, the executive and
the judiciary, and the federal character of the Constitution. Shelat and Grover, JJ too
indicated that the Preamble contained the key to the basic structure, which rested on a
H
JANHIT ABHIYAN v. UNION OF INDIA 321
[S. RAVINDRA BHAT, J.]

in Kesavananda Bharati, made by the majority opinion of Chandrachud, A
CJ, in Minerva Mills v. Union of India18 (paragraph 7-11, SCC).
13. In Indira Nehru Gandhi v. Raj Narain 19, this court invalidated
provisions of the 39th Constitutional Amendment (which resulted in taking
away the court’s adjudicatory powers and vesting it in a tribunal, which
was to decide legality of elections of four specified functionaries), as B
violative of the basic structure doctrine – specifically the principle of
rule of law, and the doctrine of separation of powers. Chandrachud, J. in
his judgment made pertinent observations about what constitutes the
basic structure, and how equality is an integral part of it. Speaking about
the basic structure, he said:
C
“664. I consider it beyond the pale of reasonable controversy
that if there be any unamendable features of the Constitution
on the score that they form a part of the basic structure of the
Constitution, they are that: (i) India is a sovereign democratic
republic; (ii) Equality of status and opportunity shall be
secured to all its citizens; (iii) The State shall have no religion D
of its own and all persons shall be equally entitled to freedom
of conscience and the right freely to profess, practice and
propagate religion and that (iv) the nation shall be governed
by a Government of laws, not of men. These, in my opinion,
are the pillars of our constitutional philosophy, the pillars, E
therefore, of the basic structure of the Constitution.”
[…]
691. […] The theory of basic structure is woven out of the
conspectus of the Constitution and the amending power is
subjected to it because it is a constituent power. “The power F
to amend the fundamental instrument cannot carry with it the

harmony between Parts III and IV and that the amendments could not result in
“changing the identity of the Constitution.” Hegde and Mukherjea, JJ stated similarly
that the basic structure was “delineated in the preamble and the Parliament has no
power to abrogate or emasculate those basic elements or fundamental features”. Reddy, G
J draws analogy from the Preamble to say that the features “are justice, freedom of
expression and equality of status and opportunity”. Khanna, J emphasises survival of
the Constitution “without loss of its identity”.
18
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, (hereinafter as “Minerva
Mills”)
19
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. (“Indira Gandhi”).
H
322 SUPREME COURT REPORTS [2022] 14 S.C.R.

A power to destroy its essential features — this, in brief, is the
arch of the theory of basic structure. It is wholly out of place
in matters relating to the validity of ordinary laws made under
the Constitution.”
14. K. K Mathew, J. made general observations with regard to
B the fact that the basic structure should be rooted in some provisions of
the Constitution and also importantly, flagged the equality code as one of
the basic features of the Constitution.
15. This court’s decision in Minerva Mills marks a watershed
moment in the journey of the basic structure doctrine. The court had to
C decide on the validity of Sections 4 and 55 of the 42nd Amendment Act20
which sought to nullify the basic structure doctrine itself, by amending
Article 36821 ; and amendment to Article 31C which sought to immunize
all laws which declared that they were made to advance all or any of the
provisions of Part IV of the Constitution. The court reiterated the basic
structure doctrine, and held that the amendment to Article 368, which
D sought to fetter the court’s inquiry into the validity of constitutional
amendments, violated the basic structure. By a majority decision of 4:1,
the court held that the amendment to Article 31C too violated the basic
structure.
16. Judicial review was the value, which the court held to be
E violated in other decisions as well – such as in P. Sambamurthy v. State
of A.P22, Kihoto Hollohan v. Zachillhu 23, in L. Chandra Kumar v.
Union of India24. In the latter, it was held that judicial review, through
Articles 32 and 226 are part of the basic structure of the Constitution.

F 20
Constitution (Forty-second Amendment) Act 1976.
21 Introducing two clauses (4) and (5), which read as follows :
“(4) No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the
commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976
shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation
G whatever on the constituent power of Parliament to amend by way of addition, variation
or repeal the provisions of this Constitution under this article”
22
P. Sambamurthy v. State of A.P., (1987) 1 SCC 362, (hereinafter as “P. Sambamurthy”).
23
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, (hereinafter “Kihoto
Hollohan”).
24
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, (hereinafter “L. Chandra
Kumar”).
H
JANHIT ABHIYAN v. UNION OF INDIA 323
[S. RAVINDRA BHAT, J.]

Thus, here, for the first time, specific provisions were held to be part of A
the basic structure. Raghunathrao Ganpatrao v. Union of India 25
held that the deletion of provisions – held to be an “integral” part of the
constitution (by the judgment of a 11-judge bench, when the basic
structure doctrine was not recognized), did not violate the basic structure,
or lead to loss of its identity. The majority judgment in Kihoto Hollohon
B
is narrowly premised26; it severed a part of the offending portion of the
52nd Amendment, to the extent it excluded judicial review, since its deletion
was procedurally unsustainable, given the text of Article 368, which
requires that such amendments need ratification by the legislatures of
one half of the total states forming the Union.
17. Next, in M. Nagaraj, this court tersely stated that the standard C
to be applied in evaluating whether an amendment has also modified the
overarching principles, that inform each and every fundamental right
and link them, is to find whether due to such change we have a completely
different Constitution. In particular, after summarising various opinions
in Kesavananda Bharati, the court observed that “[t]he basic structure D
jurisprudence is a preoccupation with constitutional identity.” The
object of which is “continuity” within which “continuity of identity,
changes are admissible”. The court, however refused to strike down
Article 16(4B) [which had sought to overrule decisions of this court, to
the effect that when reservations are resorted to in promotions, leading
to accelerated promotions, the non-reserved category of employees, upon E
their promotions should be permitted to retain or “catch up” their previous
seniority]. The court made certain general observations which are
relevant, and are extracted below:
“102 ... Applying the “width test”, we do not find obliteration
of any of the constitutional limitations. Applying the test of F
“identity”, we do not find any alteration in the existing
structure of the equality code. As stated above, none of the
axioms like secularism, federalism, etc. which are overarching
principles have been violated by the impugned constitutional
amendments. Equality has two facets— “formal equality” and G
25
Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191, (hereinafter
“Raghunathrao Ganpatrao”).
26
The minority opinion of Verma, J. (see para 181-182) struck down the provision on
the ground that it violated the rule of law, which is a basic feature of the
Constitution.26 The majority judgment, by Venkatachaliah, J also struck down the
offending provision, but for different reasons (procedural lapses). H
324 SUPREME COURT REPORTS [2022] 14 S.C.R.

A “proportional equality”. Proportional equality is equality “in
fact” whereas formal equality is equality “in law”. Formal
equality exists in the rule of law. In the case of proportional
equality the State is expected to take affirmative steps in favour
of disadvantaged sections of the society within the framework
of liberal democracy. Egalitarian equality is proportional
B
equality.
18. The other decisions in I.R. Coelho and Pramati, too dealt
with facets of basic structure. I shall be discussing I.R. Coelho and M.
Nagaraj, later, more elaborately, when dealing with the equality code,
and its facets being intrinsic to the basic structure of the Constitution.
C
B. Test for determining basic structure
19. It was remarked in Indira Gandhi that:
“661.…The subject-matter of constitutional amendments is a
question of high policy and Courts are concerned with the
D implementation of laws, not with the wisdom of the policy
underlying them….”27
It is axiomatic that a constitutional provision cannot be construed
in the same manner as a legislative enactment, delegated legislation, or
executive measure. All those can be subjected to judicial review on distinct
E heads such as legislative competence, constitutional limitations (such as
in Part III or Part XI of the Constitution), ultra vires the parent enactment
or constitutional limitation (delegated legislation), illegality, conflict with
provisions of the constitution, Wednesbury unreasonableness, unfair
procedure, proportionality, or other grounds of administrative law review
F (executive action).
20. Logically, then, the applicable standard of review of
constitutional amendments should be higher – also because the procedure
adopted to amend, under Article 368, is special, and requires two-third
majority in favour of any proposed amendment, with the super-added
provision in case of amendments to certain enumerated provisions, of
G
resolutions approving the amendment by a majority of the legislatures of
all states as well. This exercise of constituent power, therefore, cannot
be subjected to the same standard of review, as in the case of legislative

27
H Indira Gandhi, para 661.
JANHIT ABHIYAN v. UNION OF INDIA 325
[S. RAVINDRA BHAT, J.]

or executive actions. The clearest enunciation of this was in Chandrachud, A
J’s opinion in Indira Gandhi:
“691. […] Ordinary laws have to answer two tests for their
validity: (1) The law must be within the legislative competence
of the legislature as defined and specified in Chapter I, Part
XI of the Constitution, and (2) it must not offend against the B
provisions of Articles 13(1) and (2) of the Constitution. ‘Basic
structure’, by the majority judgment, is not a part of the
fundamental rights nor indeed a provision of the Constitution.
… ‘The power to amend the fundamental instrument cannot
carry with it the power to destroy its essential features’—this,
in brief, is the arch of the theory of basic structure. It is wholly C
out of place in matters relating to the validity of ordinary
laws made under the Constitution.”
At another place, the same learned judge (Chandrachud, J)
observed that:
D
“663. […] For determining whether a particular feature of
the Constitution is a part of its basic structure, one has perforce
to examine in each individual case the place of the particular
feature in the scheme of our Constitution, its object and
purpose, and the consequences of its denial on the integrity
of the Constitution as a fundamental instrument of country’s E
governance…” 28
[…]
“692. […] There is no paradox, because certain limitations
operate upon the higher power for the reason that it is a F
higher power. A constitutional amendment has to be passed
by a special majority and certain such amendments have to
be ratified by the legislatures of not less than one-half of the
States as provided by Article 368(2). An ordinary legislation
can be passed by a simple majority. The two powers, though
species of the same genus, operate in different fields and are G
therefore subject to different limitations.”29

28
Indira Gandhi, para 663.
29
Indira Gandhi, para 692. H
326 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 21. In M. Nagaraj upon review of previous authorities, this court
indicated the methodology of determining whether a constitutional
amendment violates the basic structure:
“24. The point which is important to be noted is that
principles of federalism, secularism, reasonableness and
B socialism, etc. are beyond the words of a particular provision.
They are systematic and structural principles underlying and
connecting various provisions of the Constitution. They give
coherence to the Constitution. They make the Constitution an
organic whole. They are part of constitutional law even if
they are not expressly stated in the form of rules.
C
25. For a constitutional principle to qualify as an essential
feature, it must be established that the said principle is a part
of the constitutional law binding on the legislature. Only
thereafter, is the second step to be taken, namely, whether the
principle is so fundamental as to bind even the amending
D power of Parliament i.e. to form a part of the basic structure.
The basic structure concept accordingly limits the amending
power of Parliament. To sum up : in order to qualify as an
essential feature, a principle is to be first established as part
of the constitutional law and as such binding on the
E legislature. Only then, can it be examined whether it is so
fundamental as to bind even the amending power of
Parliament i.e. to form part of the basic structure of the
Constitution. This is the standard of judicial review of
constitutional amendments in the context of the doctrine of
basic structure.
F
26. […] secularism is the principle which is the overarching
principle of several rights and values under the Indian
Constitution. Therefore, axioms like secularism, democracy,
reasonableness, social justice, etc. are overarching principles
which provide linking factor for principle of fundamental
G rights like Articles 14, 19 and 21. These principles are beyond
the amending power of Parliament. They pervade all enacted
laws and they stand at the pinnacle of the hierarchy of
constitutional values. For example, under the German
constitutional law, human dignity under Article 1 is inviolable.
H It is the duty of the State not only to protect the human dignity
JANHIT ABHIYAN v. UNION OF INDIA 327
[S. RAVINDRA BHAT, J.]

but to facilitate it by taking positive steps in that direction. A
No exact definition of human dignity exists. It refers to the
intrinsic value of every human being, which is to be respected.
It cannot be taken away. It cannot give (sic be given). It simply
is. Every human being has dignity by virtue of his existence.
The constitutional courts in Germany, therefore, see human
B
dignity as a fundamental principle within the system of the
basic rights. This is how the doctrine of basic structure stands
evolved under the German Constitution and by interpretation
given to the concept by the constitutional courts.
27. Under the Indian Constitution, the word “federalism”
does not exist in the Preamble. However, its principle (not in C
the strict sense as in USA) is delineated over various
provisions of the Constitution. In particular, one finds this
concept in separation of powers under Articles 245 and 246
read with the three lists in the Seventh Schedule to the
Constitution. D
28. To conclude, the theory of basic structure is based on
the concept of constitutional identity. The basic structure
jurisprudence is a preoccupation with constitutional identity.
In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC
225] it has been observed that “one cannot legally use the E
Constitution to destroy itself”. It is further observed “the
personality of the Constitution must remain unchanged”.
Therefore, this Court in Kesavananda Bharati [(1973) 4 SCC
225] while propounding the theory of basic structure, has
relied upon the doctrine of constitutional identity. The word
“amendment” postulates that the old Constitution survives F
without loss of its identity despite the change and it continues
even though it has been subjected to alteration. This is the
constant theme of the opinions in the majority decision
in Kesavananda Bharati [(1973) 4 SCC 225] . To destroy its
identity is to abrogate the basic structure of the Constitution. G
This is the principle of constitutional sovereignty. Secularism
in India has acted as a balance between socio-economic
reforms which limits religious options and communal
developments. The main object behind the theory of the

H
328 SUPREME COURT REPORTS [2022] 14 S.C.R.

A constitutional identity is continuity and within that continuity
of identity, changes are admissible depending upon the
situation and circumstances of the day.”
(emphasis supplied)
Thus, the test of “identity” which some of the judges in
B Kesavananda Bharati indicated, as of the core of the basic structure
doctrine, was re-stated, and elaborated upon in M. Nagaraj as the
concept or doctrine of ‘constitutional identity’. The standard of review,
it was held was that firstly, the essential feature must be a constitutional
law principle, which is binding on the legislature and secondly, the analysis
C is whether such principle is so fundamental that it must restrict even
the Parliament’s amending power (see paragraph 25, extracted above).
22. This court has, in applying the test, followed the historical
approach in conducting substantive basic structure review. This method
was indicated by Chandrachud, J in Waman Rao v. Union of India30.
D In this case, Articles 31-A, 31-B, and 31-C which had been introduced
to advance the land reform programmes were challenged as violations
of the basic structure of the Constitution. Chandrachud, J observed that
the “questions have a historical slant and content: and history can
furnish a safe and certain clue to their answer”. After considering
the history of the newly inserted provision (by the first Amendment Act,
E 1951) it was held that
“24. …Looking back over the past thirty years of constitutional
history of our country, we as lawyers and Judges, must
endorse the claim made … that if Article 31-A were not
enacted, some of the main purposes of the Constitution would
F have been delayed and eventually defeated and that by the
1st Amendment, the constitutional edifice was not impaired
but strengthened.”
23. An independent justification for the amendments was of
implementing the constitutional purposes as outlined in Article 39(b) and
G (c), i.e., “that the ownership and control of the material resources
of the community are so distributed as best to subserve the common
good”. The historical approach was also apparent, when this court
considered the amendments which deleted Articles 291 and 362 of the

30
Waman Rao v. Union of India, (1981) 2 SCC 362, (hereinafter, “Waman Rao”).
H
JANHIT ABHIYAN v. UNION OF INDIA 329
[S. RAVINDRA BHAT, J.]

Constitution in Raghunathrao Ganpatrao, as well as in Kihoto A
Hollohon.
24. Likewise, in R.C. Poudyal v. Union of India31, where this
court, speaking through three different judgments (one of them a
dissenting judgment, by L.M. Sharma, CJ) used history of the amendment,
and contrasted it with the history of the provisions of the Constitution. B
The impugned provision, Article 371F(f) enabled representation of
members of the Buddhist Monasteries, in the Sikkim Legislature. The
dissenting view held that the provisions for reservation in state assembly,
based upon religion, violated the basic structure of the Constitution. The
majority judgment upheld the amendment, as necessary because of
historical continuity, and the need to assimilate Sikkimese society within C
the republic. However, the majority at the same time, also stated that
such a conclusion might not have been the same, if such reservation
were introduced elsewhere:
“128. […] These adjustments and accommodations reflect a
political expediencies for the maintenance of social D
equilibrium. The political and social maturity and of economic
development might in course of time enable the people of
Sikkim to transcend and submerge these ethnic apprehensions
and imbalances and might in future — one hopes sooner —
usher-in a more egalitarian dispensation. Indeed, the E
impugned provisions, in their very nature, contemplate and
provide for a transitional phase in the political evolution of
Sikkim and are thereby essentially transitional in character.
129. It is true that the reservation of seats of the kind and the
extent brought about by the impugned provisions may not, if F
applied to the existing States of the Union, pass the
Constitutional muster”. But in relation to a new territory
admitted to the Union, the terms and conditions are not such
as to fall outside the permissible constitutional limits.
Historical considerations and compulsions do justify in
equality and special treatment...” G
(emphasis supplied)
25. Judicial review of legislation on the touchstone of their validity
vis-à-vis fundamental rights, is an analogy closest to constitutional
31
R. C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, (hereinafter “R.C. Poudyal”). H
330 SUPREME COURT REPORTS [2022] 14 S.C.R.

A amendment review, on the ground of its conformity to the basic structure.
It is an entirely different kind of review that “imposes substantive limits
on the scope of constitutional amendment. However, these limits or
basic features are identified as constitutional principles which are
distinct from the constitutional provisions which embody these
principles” 32. Drawing from the remarks in Minerva Mills and Indira
B
Gandhi. Dr. Krishnaswamy notes in his work that this form of basic
structure review has to account for the distinction between
“ordinary democratic law making and higher level democratic
law making, it must rightly identify the different limits on these
two forms of law making. Only an independent model of basic
C structure review which ensures that constitutional amendments
do not destroy core constitutional principles can fulfil this
requirement.”33
26. It also needs to be noticed that when the court conducts a
constitutional amendment validity review, to consider if it violates the
D basic structure, apart from the standard, the discussion is rooted in the
lexicology of judicial review, developed from the jurisprudence of past
precedents. In other words, the difference in standard which this court
adopts does not result in a difference in the approach, to consider if the
amendment violates the basic structure. In judicial review, of a legislation,
E which violates the provisions of the constitution, the court considers the
law, its impact on the fundamental right, its object and its reasonableness
or proportionality. In basic structure review, likewise, the subject of
scrutiny is the amendment, its content, its impact on the overarching
value or principle, which is part of the basic structure, and whether that
impact destroys or violates the identity of the Constitution. Illustratively,
F in Kihoto Hollohon, the court dealt with the constitutionality of
amendments, introducing the Xth Schedule to the Constitution and
considered past cases, interpreting the Constitution to see if the newly
added provisions accorded with the existing Constitution. In R.C.
Poudyal, the court upheld reservation in favour of Buddhist monasteries,
G and explained that it was for continuity. The court drew upon the equality

32
Dr. Sudhir Krishnaswamy, ‘3 Applying Basic Structure Review: The Limits of State
Action and the Standard of Review’, Democracy and Constitutionalism in India - A
Study of the Basic Structure doctrine, Oxford University Press (2009).
33
Ibid., p. 88.
H
JANHIT ABHIYAN v. UNION OF INDIA 331
[S. RAVINDRA BHAT, J.]

jurisprudence. The minority and dissenting views also relied heavily upon A
past judicial precedents to underscore the importance of prohibition against
religion-based discrimination and reservation not necessarily dealing with
the validity of constitutional amendments alone, but to bring out the idea
of judicial review. The same goes for the five judge decision in Supreme
Court Advocates on Record Association (SCAORA) v. Union of
B
India34 in which the value of an independent judiciary, and what it is
expected to achieve in a democracy was underlined, by reference to
past cases which did not deal with constitutionality of amendments.
Hence, even while judicial review of constitutional amendments carries
with it a standard higher than judicial review of law or executive action,
and uses a particular methodology or test to discern whether the C
amendment changes or damages the basic structure, the court at the
same time, draws upon past precedents its exercise of judicial review,
and the resulting interpretation of the Constitution, as it exists.
27. This idea – of a distinct category of judicial review, which
deals with constitutional amendment review, was also voiced in M. D
Nagaraj.35 In basic structure review parlance, the legitimate role of the
court is to evaluate whether, in the given case, the “identity” of the
Constitution is affected so as to violate the basic structure and to apply
the “direct impact” test (as propounded in I.R. Coelho).
28. It is evident that at different points in time, different values E
that underlie the Constitution and are manifested - either directly in the
form of express provisions, or what can be inferred as basic
“overarching” principles (Nagaraj) or what impacts the identity
(Kesavananda Bharati, Raghunathrao Ganpatrao, M. Nagaraj, and
I.R. Coelho) or takes away the “essence” of certain core principles,
F
34
(2016) 5 SCC 1
35
“103. The criterion for determining the validity of a law is the competence of the law-
making authority. The competence of the law-making authority would depend on the
ambit of the legislative power, and the limitations imposed thereon as also the limitations
on the mode of exercise of the power. Though the amending power in the Constitution is
in the nature of a constituent power and differs in content from the legislative power, the G
limitations imposed on the constituent power may be substantive as well as procedural.
Substantive limitations are those which restrict the field of the exercise of the amending
power. Procedural limitations on the other hand are those which impose restrictions
with regard to the mode of exercise of the amending power. Both these limitations touch
and affect the constituent power itself, disregard of which invalidates its exercise.”
(See Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] .)
H
332 SUPREME COURT REPORTS [2022] 14 S.C.R.

A through amendment were examined. Raghunathrao Ganpatrao
echoed the idea of identity, and the idea of “basic form or in its
character” of the Constitution. I.R. Coelho went on to say that “it
cannot be held that essence of the principle behind Article 14 is not
part of the basic structure” and also that “doctrine of basic structure
contemplates that there are certain parts or aspects of the
B
Constitution including Article 15, Article 21 read with Article 14
and 19 which constitute the core values” – which, if allowed to be
altered, would change the “nature” of the Constitution. The court also
stated that “in judging the validity of constitutional amendment we
have to be guided by the impact test”.
C 29. It is therefore clear that the appropriate test or standard of
judicial review of constitutional amendments is not the same as in the
case of ordinary laws; the test is whether the amendment challenged
destroys, abrogates, or damages the “identity”, or “nature” or
“character” or “personality” of the Constitution, by directly impacting
D one or some of the “overarching principles” which inform its express
provisions. Further in constitutional amendment judicial review, the court
would consider the history of the provision amended, or the way the
new provision impacts the identity, or character, or nature of the
Constitution.
E 30. The standard of judicial review of constitutional amendments,
draws upon distinct terminologies – identity, personality, nature and
character to see if the constitutional identity undergoes a fundamental
change, as to alter the Constitution into something it can never be. Or,
differently put, the test is whether the impact of the amendment is to
change the Constitution, into something it could never be considered to
F be. Each of the terms, i.e. identity, nature, personality, character, and so
on, are methods of expressing the idea that some part of the Constitution,
either through its express provisions, or its general scheme, and yet
transcending those provisions, are embedded as overarching principles,
which cannot be destroyed or damaged.
G 31. Having laid out the test of basic structure assessment in the
paragraphs above, I will now apply this standard of review to the impugned
amendment in the following sections.
III. Re Question 3: analyzing the exclusionary clause “other
than” and whether it offends the basic structure
H
JANHIT ABHIYAN v. UNION OF INDIA 333
[S. RAVINDRA BHAT, J.]

32. The insertion of clause (6) in Article 15 and 16, introduces a A
new class i.e., “economically weaker sections” which are defined to be
“other than” the classes covered in Article 15(4) [i.e., other than socially
and educationally backward classes including Scheduled Castes and
Scheduled Tribes, which coincides with “backward class of citizens”
covered in Article 16(4)]. The plain interpretation of this new expression,
B
read along with the Statement of Objects and Reasons brings home the
idea that this allusion to “special provision” - including reservations, is
meant only for the newly created class and excludes the classes described
under Article 15(4) and 16(4). This is the base on which the petitioners’
mount their challenge, contending that the exclusion falls foul of the
equality code and amounts to a violation of basic structure. C
33. The Union’s position was that objections to the exclusion of
SC/ST/OBC communities could not be countenanced; at any rate, such
exclusion did not reach to the level of damaging the basic structure of
the Constitution. It was contended that the mechanism of reservation
itself per se, carries within it the idea of exclusion. Consequently, the D
“set apart” by way of reservation for SC/ST/OBC collectively to the
tune of 50% by itself, implies that others are kept apart and cannot
question such reservation for the weaker sections of society (as settled
in Indra Sawhney). It was submitted that the exclusion of all categories
except the target groups [i.e, exclusion of SC/ST/OBC and the general
category who do not fulfil the economic criteria] was not discriminatory, E
let alone violative of the basic structure of the Constitution.
34. Clearly there is no dispute, in the manner that the phrase “other
than” appearing in Articles 15(6) and 16(6), is to be read – either on the
side of the petitioners, or the respondents. That exclusion is implicit, is
agreed upon – the point of divergence is only on whether such an exclusion F
is permissible or not. To examine this, it is necessary to trace the history
of the provisions that constitute the Equality Code and its content, and
the cases that have interpreted them, in order to cull out the principle(s),
relevant for a basic structure assessment. For this, I will firstly trace the
history of the provisions that constitute the Equality Code, secondly G
discuss the content of this Code; thirdly, how this Equality Code is in
itself, a part of the basic structure; and lastly how the impugned
amendment violates the basic structure on the ground of exclusion.

H
334 SUPREME COURT REPORTS [2022] 14 S.C.R.

A A. Historical analysis of the Equality Code
(i) Article 15
35. The original draft Constitution contained a provision that
comprehensively encompassed the idea of non-discrimination, in draft
Article 9, which later emerged as Article 15. This article, and more
B
specifically Article 15(2), prohibited discrimination in various spheres
and commended that access be made available to a range of facilities,
spaces, and resources on a non-discriminatory basis.
36. The history and evolution of this Article as it stands today, is
revealing. The Motilal Nehru Report 192836, had recommended, in the
C
demand for self-rule a charter of governance and basic human rights.
The relevant provision, Clause 4 (v), (vi), (xiii) and (xiv) read as follows:
(v) All citizens in the Commonwealth of India have the right
to free elementary education without any distinction of
caste or creed in the matter of admission into any
D
educational institutions, maintained or aided by the
state, and such right shall be enforceable as soon as
due arrangements shall have been made by competent
authority. Provided that adequate provisions shall be
made by the State for imparting public instruction in
E primary schools to the children of members of minorities
of considerable strength in the population through the
medium of their own language and in such script as in
vogue among them.
Explanation:- This provision will not prevent the State
F from making the teaching of the language of the
Commonwealth obligatory in the said schools.
(vi) All citizens are equal be for the law and possess equal
civic rights.
********** ************
G
(xiii) No person shall by reason of his religion, caste or
creed be prejudiced in any way in regard to public

36
Motilal Nehru Report, 1928 <https://www.constitutionofindia.net/historical_
H constitutions/nehru_report__motilal_nehru_1928__1st%20January%201928>
JANHIT ABHIYAN v. UNION OF INDIA 335
[S. RAVINDRA BHAT, J.]

employment, office of power or honour and the exercise A
of any’ trade or calling.
(xiv) All citizens have an equal right of access to, and use
of, public roads, public wells and all other places of
public resort.”
37. Similarly, the historic Poona Pact37 contained the seeds of B
what are now Articles 15 and 16:
“…8. There shall be no disabilities attached to any one on
the ground of his being a member of the Depressed Classes
in regard to any election to local bodies or appointment to
the public services. Every endeavour shall be made to secure C
a fair representation of the Depressed Classes in these respects,
subject to such educational qualifications as may be laid
down for appointment to the Public Services.
9. In every province out of the educational grant an adequate
sum shall be ear-marked for providing educational facilities D
to the members of Depressed Classes,”
38. Dr. Ambedkar38 and Sh. K.M. Munshi39, had drafted two
versions, on similar lines. These two drafts were discussed by the Sub-
Committee on Fundamental Rights and an amended form, was included
in their draft report: E
37
Poona Pact, Agreed to by Leaders of Caste-Hindus and of Dalits, at Poona on 24-
1 9 3 2 < h t t p s : / / w w w. c o n s t i t u t i o n o f i n d i a . n e t / h i s t o r i c a l _ c o n s t i t u t i o n s /
poona_pact_1932__b_r_ambedkar_and_m_k_gandhi__24th%20September%201932>
38
Art. II(1)(4) in Dr. B. R. Ambedkar’s draft, available in B. Shiva Rao, ‘The Framing
of India’s Constitution: Select Documents’, vol. II, 4(ii)(d), p. 86:
“Whoever denies to any person, except for reasons by law applicable to
F
persons of all classes and regardless of their social status, the full enjoyment
of any of the accommodations, advantages, facilities, privileges of inns,
educational institutions, roads, paths, streets, tanks, wells, and other watering
places, public conveyances on land, air or water, theatres, or other places of
public amusement, resort or convenience, where they are dedicated to or
maintained or licensed for the use of the public, shall be guilty of an offence”. G
39
Art. III (1), (3), (4)(b) in K.M. Munshi’s draft available in B. Shiva Rao,‘The Framing
of India’s Constitution: Select Documents’, vol. II, 4(ii)(b), p. 74-75.
“All persons irrespective of religion, race, colour, caste, language, or sex are
equal before the law and are entitled to the same rights and are subject to the
same duties.

H
336 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (1) All persons within the Union shall be equal before
the law. No personal shall be denied the equal protection
of the laws within the territories of the Union. There
shall be no discrimination against any person on grounds
of religion, race, caste, language or sex.
B In particular –
(a) There shall be no discrimination against any person
on any of the grounds aforesaid in regard to the use of
wells, tanks, roads, schools and places of public resort
maintained wholly or partly out of public funds or
C dedicated to the use of the general public.40
39. After discussions, the Advisory Committee recommended that
the non-discrimination provision would be an independent clause protecting
a ‘citizen’, and the ground of ‘language’ was dropped. Members of the
Minority Sub-Committee, then considered this clause and made further
D recommendations – including, that education and schools should not be
within the purview of this provision. A four-member sub-committee
including Dr. Ambedkar was constituted and tasked to draw a specific
provision in this regard. This resulted in a general provision which reads
as follows: “the State shall make no discrimination against any citizens
on grounds of religion, race, caste or sex”, but it was clarified that
E with regard to access to trading establishments, restaurants, etc., ‘sex’
would not be a prohibited ground. This too, did not pass muster and
therefore, the re-drafted clause41 had a general principle prohibiting
Women citizens are the equal of men citizens in all spheres of political, economic,
social and cultural life and are entitled to the same civil rights and are subject
to the same civil duties unless where exception is made in such rights or duties
F by the law of the Union on account of sex.
***
All persons shall have the right to the enjoyment of equal facilities in public
places subject only to such laws as impose limitations on all persons,
irrespective of religion, race, colour, caste or language.”
40
Draft report, Annexure, clause 4 available in B. Shiva Rao, ‘The Framing of India’s
G Constitution: Select Documents’, vol. II, 4(iv), p. 138.
41
“(1) The State shall make no discrimination against any citizen on the grounds of
religion, race, caste or sex.
(2) There shall be no discrimination against any citizen on any ground of religion, race,
caste, or sex in regard to –
(a) Access to trading establishments including public restaurants and hotels;
(b) The use of wells, tanks, roads, and places of public resort maintained
H wholly or partly out of public funds or dedicated to the use of the general public:
JANHIT ABHIYAN v. UNION OF INDIA 337
[S. RAVINDRA BHAT, J.]

discrimination, with a separate articulation within the provision which A
allowed for separate amenities for the benefit of women and children.
With minor changes, this was included as clause 11 in the Draft
Constitution of October 1947, and was later accepted by the Drafting
Committee without change, as Article 9. The debates in the Constituent
Assembly leading to the framing of Articles 15(1) and 15(2) clearly point
B
to the overarching idea of non-discrimination as one of the basic facets
of equality [which is reflected clearly in the jurisprudence of this court;
elaborated more in Part III (A)].
40. Laws or executive action that further discrimination, directly
or indirectly, on proscribed grounds, have also been recognised as
violative of the right to equality, and consequently have been struck down, C
routinely by this court42.
(ii) Article 16
41. As far as Article 16 goes, the idea behind that provision was
to achieve the goal of equal opportunity (as appearing in the Preamble) D
in matters of public employment. The difference between Articles 15(1)
and 16(1) is that the former applies generally and prohibits the State
from discriminating on enumerated grounds in diverse activities – including
access to educational institutions, amenities, and other public goods, which
are to be made available without regard to caste, religion, or sex, etc.
Article 16(1) is a positive right declaring that all are equal in terms of E
opportunity for public employment. Article 16(2) goes on to enumerate
grounds such as caste, race, religion, caste, sex, descent, place of birth
and residence [few of which are different from the proscribed ground
under Article 15(1)] as grounds on which the state cannot discriminate.
Article 16(3) empowers Parliament (to the exclusion of State legislatures) F

Provided that nothing contained in this clause shall prevent separate provision being
made for women and children”.
Advisory Committee Proceedings, April 21-22, 1947; and Interim Report of the Advisory
Committee, Annexure. Select Documents, vol. II, 6(iv) and 7(i), p. 221, 253, 254-4, 296
42
Air India v. Nargesh Mirza (1981) SC 1829, 1982 SCR (1) 438; Vishaka v. State of
Rajasthan (1997) 6 SCC 241: 1997 SCC (Cri) 932; Anuj Garg and Others v. Hotel
G
Association of India and Others, (2008) 3 SCC 1; National Legal Services Authority v
UOI and Others (2014) 5 SCC 438; Indian Young Lawyers Association and Ors. v.
State of Kerala and Ors. (2019) 11 SCC 1; Vineeta Sharma v. Rakesh Sharma &
Others, (2020) 9 SCC 1; Secretary, Ministry of Defence v. Babita Puniya & Others
(2020) 7 SCC 469; Lt. Col. Nitisha & Others v. Union of India & Others, 2021 SCC
OnLine SC 261. H
338 SUPREME COURT REPORTS [2022] 14 S.C.R.

A to enact law, prescribing requirements as to residence within a State or
Union Territory, for a class or classes of employment or appointment to
local or other authorities, within a State or Union Territory. The
Constitution makers did not wish to arm the State legislature with the
power of prescribing local residential qualifications for employment within
the State or local authorities and preferred to entrust that power with the
B
Parliament which were expected to lay down principles of general
application in that regard. Article 16(4) is the only provision in the original
Constitution which enabled reservation – in favour of any backward
class of citizens that were not adequately represented in the services
under the State.
C 42. In this context, in that part of the debate dealing with “backward
classes” in draft Article 10(1)- in the Constituent Assembly Debates,
Dr. Ambedkar spoke about the three points of view which recommended
reconciliation to a workable proposition: firstly, that every individual
qualified for a particular post should be free to apply and compete for it;
D secondly, that the fullest operation of the first rule would mean that there
ought to be no reservation for any class or community at all; and the
third significant point that though theoretically, equality of opportunity
should be available to all, at the same time, some provision should be
made for entry of certain community “which have so far been outside
the administration”43.
E
43. Proposing Article 10(3), Dr. Ambedkar stated that Article 10(1)
(precursor to Article 16(4) and 16(1) respectively) is a “generic
principle”:
“At the same time, as I said, we had to reconcile this formula
F with the demand made by certain communities that the
administration which has now—for historical reasons—been
controlled by one community or a few communities, that
situation should disappear and that the others also must have
an opportunity of getting into the public services.”

G Dr. Ambedkar then went on to say that reservation should operate
ideally for a minority of posts and that the identifying principle for positive
discrimination would be use of a “qualifying phrase such as
backward”44 in whose favour an exception could be made without which
the exception could ultimately eat up the rule.
43
Constituent Assembly Debates, Vol. 7, 30 th November 1948, 7.63.205.
H 44
Ibid.
JANHIT ABHIYAN v. UNION OF INDIA 339
[S. RAVINDRA BHAT, J.]

44. The idea or dominant theme behind the entire scheme of Article A
16, right through Article 16(4) - is equality of opportunity in matters of
public employment. At the same time, the Constitution framers realised
that substantive equality would not be achieved unless allowance were
made through some special provision ensuring representation of the most
backward class of citizens who were hitherto, on account of caste
B
practices, or such constraints, barred from public employment. Therefore,
the idea of Section 16(4) essentially is to enable representation, the
controlling factor being adequacy of representation. That apart, the other
control which the Constitution envisioned was the identification of
backward classes of citizens through entrenched provisions that set up
institutions which were to function in an objective manner based on certain C
norms – Articles 340, 341 and 342, which relate to Identification of SC/
ST/BC- and the newly added Article 342A.
(iii) Article 17
45. The anxiety of the Constitution framers in outlawing
untouchability in all forms (without any reference to religion or D
community), resulted in its express manifestation as Article 17, wherein
the expression “untouchability” was left undefined. The debates of the
Assembly suggest that this was intentional. B. Shiva Rao’s treatise45
discloses that proceedings of the Sub-Committee on Fundamental Rights,
which undertook the task of preparing the draft provisions on fundamental E
rights suggested a clause enabling for the abolition of “untouchability”-
this was Clause 4(a) of Article III of K.M. Munshi’s draft of fundamental
rights:
“Untouchability is abolished and the practice thereof is
punishable by the law of the Union.” F
And similarly, Article 11(1) of Dr Ambedkar’s draft provided that:
“any privilege or disability arising out of rank, birth, person,
family, religion or religious usage and custom is abolished.”
46. Considerable deliberations took place since there was unanimity
G
among all sections of representatives in the Constituent Assembly that
the practice of untouchability (in all its forms) had to be outlawed. The
Assembly bestowed its attention to the minutiae of what constitutes

45
B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at p. 202. H
340 SUPREME COURT REPORTS [2022] 14 S.C.R.

A untouchability, whether its forms of practice in the Hindu religion alone
qualified for prohibition, or also inter-communally, etc. Dr. Ambedkar,
K.M. Munshi, Sardar Patel, and B.N. Rau, participated in all these
deliberations. Shiva Rao observes that the Committee came to the general
conclusion that “the purpose of the clause was to
abolish untouchability in all its forms—whether it was untouchability
B
within a community or between various communities”46. Attempts
made to amend the article were deemed unnecessary due to the careful
and extensive deliberations, and the unanimity amongst members; there
was actually no change in the draft, which survived to become a part of
the Constitution:
C “Untouchability” is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of
“untouchability” shall be an offence punishable in
accordance with law.”
47. The result was an all-encompassing provision which Article
D 17 is as it stands, outlawing untouchability in all its forms - by the State,
individuals, and other entities. The reach and sweep of this provision –
like Article 15(2) is wide; it is truly horizontal in its application.
48. Given that the case law relating to Article 15 and 16 has
substantially been covered in the judgment of Justice Dinesh Maheshwari,
E I have not reiterated the same. However, it is my considered opinion,
that due weightage was not given to Article 17, which as argued by
some of the petitioners, is also a part of the Equality Code; I have included
some judgments which underscore the importance of this injunction and
its continued need.
F 49. The social evil - of untouchability and its baleful effect of
untouchability based discrimination was recounted by this court, in State
of Karnataka v. Appa Balu Ingale47 :
“21. Thus it could be concluded that untouchability has
grown as an integral facet of socio-religious practices being
G observed for over centuries; keeping the Dalits away from
the mainstream of the society on diverse grounds, be it of
religious, customary, unfounded beliefs of pollution etc. It is
an attitude and way of behaviour of the general public of the
46
Ibid.
47
H 1995 Supp (4) SCC 469
JANHIT ABHIYAN v. UNION OF INDIA 341
[S. RAVINDRA BHAT, J.]

Indian social order towards Dalits. Though it has grown as A
an integral part of caste system, it became an institution by
itself and it enforces disabilities, restrictions, conditions and
prohibitions on Dalits for access to and the use of places of
public resort, public means, roads, temples, water sources,
tanks, bathing ghats, etc., entry into educational institutions
B
or pursuits of avocation or profession which are open to all
and by reason of birth they suffer from social stigma.
Untouchability and birth as a Scheduled Caste are thus
intertwined root causes. Untouchability, therefore, is founded
upon prejudicial hatred towards Dalits as an independent
institution. It is an attitude to regard Dalits as pollutants, C
inferiors and outcastes. It is not founded on mens rea. The
practice of untouchability in any form is, therefore, a crime
against the Constitution. The Act also protects civil rights of
Dalits. The abolition of untouchability is the arch of the
Constitution to make its preamble meaningful and to integrate
D
the Dalits in the national mainstream.”
50. The criterion for determining communities or castes as scheduled
castes has been recognized as those who suffered on account
of the practice of untouchability, and its pernicious effects, in
Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical
College & Ors.48: E

“9. It appears that Scheduled Castes and Scheduled
Tribes in some States had to suffer the social
disadvantages and did not have the facilities for
development and growth. It is, therefore, necessary in
order to make them equal in those areas where they have F
so suffered and are in the state of underdevelopment to
have reservations or protection in their favour so that
they can compete on equal terms with the more
advantageous or developed Sections of the community.
Extreme social and economic backwardness arising out G
of traditional practices of untouchability is normally
considered as criterion for including a community in
the list of Scheduled Castes and Scheduled Tribes….”

48
(1990) 3 SCC 130
H
342 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 51. That SC communities are victims of the practise of
untouchability, and the equality code was meant to provide them
opportunities, and eliminate discrimination, was narrated in the earlier
decision in Valsamma Paul & Ors. V. Cochin University & Ors49:
“7. […] The practice of untouchability, which had
B grown for centuries, denuded social and economic status
and cultural life of the Dalits and the programmes
evolved under Articles 14 15(2) 15(4) and 16(4) aimed
to bring Dalits into national mainstream by providing
equalitarian facilities and opportunities. They are
designated as “Scheduled Castes” by definition under
C Article 366(24) and “Scheduled Tribes” under Article
366(25) read with Articles 341 and 342 respectively.
The constitutional philosophy, policy and goal are to
remove handicaps, disabilities, suffering restrictions or
disadvantages to which Dalits/ Tribes are subjected, to
D bring them into the national mainstream by providing
facilities and opportunities for them…”
52. In Abhiram Singh and Ors. v. C.D. Commachen 50 this court
again revisited the “central theme” of elimination of discrimination of
SCs:
E “118. […] The Constitution is not oblivious to the history
of discrimination against and the deprivation inflicted
upon large segments of the population based on religion,
caste and language. Religion, caste and language are
as much a symbol of social discrimination imposed on
F large segments of our society on the basis of immutable
characteristics as they are of a social mobilisation to
answer centuries of injustice. They are part of the
central theme of the Constitution to produce a just social
order...”

G 53. The Constitution Bench ruling in Indian Young Lawyers Assn.
(Sabarimala Temple) v. State of Kerala51 took note of the fact that the
evil of untouchability, which kept out large swathes of Indian population

49
(1996) 3 SCC 545
50
(2017) 2 SCC 629
51
H (2019) 11 SCC 1
JANHIT ABHIYAN v. UNION OF INDIA 343
[S. RAVINDRA BHAT, J.]

in the thrall of caste-based exclusion, was sought to be dismantled, and A
real equality was sought to be achieved:
“386. The rights guaranteed under Part III of the
Constitution have the common thread of individual
dignity running through them. There is a degree of
overlap in the Articles of the Constitution which B
recognise fundamental human freedoms and they must
be construed in the widest sense possible. To say then
that the inclusion of an Article in the Constitution
restricts the wide ambit of the rights guaranteed, cannot
be sustained. Article 17 was introduced by the Framers
to incorporate a specific provision in regard to C
untouchability. The introduction of Article 17 reflects
the transformative role and vision of the Constitution.
It brings focus upon centuries of discrimination in the
social structure and posits the role of the Constitution
to bring justice to the oppressed and marginalised. The D
penumbra of a particular Article in Part III which deals
with a specific facet of freedom may exist elsewhere in
Part III. That is because all freedoms share an
inseparable connect. They exist together and it is in their
co-existence that the vision of dignity, liberty and
equality is realised. As noted in Puttaswamy [K.S. E
Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10
SCC 1], “the Constituent Assembly thought it fit that
some aspects of liberty require a more emphatic
declaration so as to restrict the authority of the State to
abridge or curtail them…” F
54. The centrality of Article 17 and the constitutional resolve to
eliminate untouchability in all forms to any debate on equality involving
SC/ST communities is undeniable. Other provisions such as Article 15
(2), Article 23 and 24 also contain links to Article 17, because the
constitution aimed not merely at outlawing untouchability, but ensuring G
access to public amenities and also guaranteeing that the stigma of caste
discrimination should not result in exploitation.
(iv) Other provisions in the Constitution
55. Apart from Article 16, the other provisions which expressly
talked of reservations are not in regard to public employment but are in H
344 SUPREME COURT REPORTS [2022] 14 S.C.R.

A respect of elective offices – Articles 330 and 332 – both of which enabled
reservation in favour of SCs and STs in proportion to their population in
the concerned States legislative or Parliamentary constituencies.
56. The other provisions which expressly forbid and injunct the
state from practising discrimination are Article 29(2) and Article 325.
B Article 29 (2) enacts that
“No citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.”
C Article 325 reads as follows:
“325. No person to be ineligible for inclusion in, or to
claim to be included in a special, electoral roll on
grounds of religion, race, caste or sex: There shall be
one general electoral roll for every territorial
D constituency for election to either House of Parliament
or to the House or either House of the Legislature of a
State and no person shall be ineligible for inclusion in
any such roll or claim to be included in any special
electoral roll for any such constituency on grounds only
E of religion, race, caste, sex or any of them.”
B. Content of Equality Code
57. The equality code (Articles 14, 15, 16, and 17), so referred to
in various previous decisions of this court) does not merely visualize a
bland statement of equality before law and equal protection of law but
F also contains specific injunctions against state from discriminating on
proscribed grounds [such as caste, race, sex, place of birth, religion, or
any of them, in Article 15; and caste, sex, religion, place of residence,
descent, place of birth, or any of them, in Article 16]. The engraining of
these specific heads – enjoining the State not to discriminate on such
specific heads, such as caste, religion or sex is therefore, as much part
G
of equality code, as the principle of equality enacted in general terms, in
Article 14. The inclusion of Article 17 – as an unequivocal injunction,
against untouchability, of any form, enjoins the state to forbear caste
discrimination, overtly, or through classification, and looms large as a
part of the equality code and indeed the entire framework of the
H Constitution.
JANHIT ABHIYAN v. UNION OF INDIA 345
[S. RAVINDRA BHAT, J.]

58. Joseph Raz described this dimension as “the ideal of personal A
autonomy is the vision of people controlling, to some degree, their
own destiny, fashioning it through successive decisions throughout
their lives”.52 Dr. Ambedkar put the issue very poignantly, saying that
systematic caste discrimination was akin to slavery, since such subjugation
“means a state of society in which some men are forced to accept
B
from others the purposes which control their conduct”53. In caste
based hierarchal societies, which discriminated against a significant
segment of society, the extent of deprivation – of choice was such that
those born into those castes or communities were not part of the
community and were termed “outcastes”. This exclusion was specifically
targeted against, and sought to be eliminated, by the Constitution.It is C
inconceivable that the deletion of caste (as long as Indian society believes
in and practices the caste system) as a proscribed ground through a
constitutional amendment would stand scrutiny. This example is given to
illustrate that the value of proscribing caste discrimination is rooted
in the express provision of the Constitution, as a part of the equality
D
code. Equally, one cannot visualize an amendment which promotes or
even permits discrimination of other proscribed grounds, such as gender,
descent, or religion. All this would per se violate equality - both textually,
as well as the principle of equality, which the Constitution propounds.
The rationale for enacting these as proscribed grounds either under
Article 15 or 16 (or both) was that the framers of the Constitution were E
aware that courts could use these markers to determine when reasonable
classification is permissible. Thus, for instance, if the proscribed ground
of ‘gender’ was absent, it could have been argued that gender is a basis
for an intelligible differentia, in a given case. To ensure that such
classifications and arguments were ruled out, these proscribed grounds
F
were included as specific injunctions against the State. The provisions,
and the code, therefore, are not only about the grand declaratory sweep
of equality: but equally about the absolute prohibition against exclusion
from participation in specified, enumerated activities, through entrenched
provisions.
59. A closer look at Article 15, especially Article 15(2), would G
further show that likewise most of the proscribed grounds in Article
15(1) were engrafted to ensure that access to public resources – in

52
Joseph Raz, The Morality of Freedom (OUP, 1986), p. 369.
53
Dr. B.R. Ambedkar, Annihilation of Caste (1939). H
346 SUPREME COURT REPORTS [2022] 14 S.C.R.

A some cases not even maintained by the state, but available to the public
generally, could not be barred. This provision too was made to right a
historical wrong, i.e., denial of access to the most deprived sections of
society of the most basic resources, such as water, food, etc. The
injunction against untouchability under Article 17, ensuring that such
practice is outlawed is strengthened by taking away the subject matter
B
from state domain and placing it as an exclusive legislative head to the
Parliament through Article 35. In a similar vein, Articles 23 and 24 (although
seemingly unconnected with the issue of equality), enact very special
rights – which are enforceable against both the State agencies and others.
Through these articles, the forms of discrimination, i.e., exploitation,
C trafficking, and forced labour (which was resorted to against the most
deprived classes of society described as SCs and STs) was sought to be
outlawed.
60. The elaborate design of the Constitution makers, who went to
great lengths to carefully articulate provisions, such that all forms of
D discrimination were eliminated - was to ensure that there was no scope
for discrimination of the kind that the society had caused in its most
virulent form in the past, before the dawn of the republic. These, together
with the affirmative action provisions - initially confined to Articles 15(3)
and 16(4), and later expanded to Article 15(4) and 15(5) - was to
guarantee that not only facial discrimination was outlawed but also that
E the existing inequalities were ultimately eliminated. To ensure the latter,
only one segment, i.e., socially and educationally backward classes were
conceived as the target group, i.e., or its beneficiaries. Therefore, in this
Court’s opinion, the basic framework of the constitution or the idea and
identity of equality was that:
F (i) There ought to be no discrimination in any form, for any
reason whatsoever on the proscribed grounds, including
in matters of public employment;
(ii) That the provision for affirmative action was an intrinsic
part of the framework and value of equality, i.e., to
G ensure that the equality of classes hitherto discriminated
and ostracized, was eventually redressed.
61. This was recognized in Jaishri Laxmanrao Patil as “the
obligation or duty to equalize those sections of the population” on the

H
JANHIT ABHIYAN v. UNION OF INDIA 347
[S. RAVINDRA BHAT, J.]

States’ part.54 Likewise, the observations of Sahai, J. in Indra Sawhney A
characterize Article 15(4) and 16(4) as ‘obligations’.
C. Equality Code is a part of the basic structure
62. That the principle of equality is the most important indispensable
feature of the Constitution and destruction thereof will amount to changing
the basic structure of the Constitution has been held in numerous cases. B
That it is an inextricable part of the basic structure, is clearly enunciated
in Kesavananda Bharati (para 1159, SCC), Minerva Mills (para 19),
Raghunath Ganpatrao (para 142), R. C. Poudyal (para 54), Indra
Sawhney (para 260-261), Indra Sawhney (2) v. Union of India55 (para
64-65), M. Nagaraj (para 31-32) and I.R. Coelho (para 105), among C
others.
63. In Indira Gandhi, Y.V. Chandrachud, J. identified “equality
of status and opportunity” to all its citizens, as an unamendable basic
feature of the Constitution. In the same case, K. K. Mathew, J. identified
specific provisions of the Constitution, relating to the equality principle, D
as a part of the basic structure:
“334. Equality is a multi-coloured concept incapable of
a single definition. It is a notion of many shades and
connotations. The preamble of the Constitution
guarantees equality of status and of opportunity. They E
are nebulous concepts. And I am not sure whether they
can provide a solid foundation to rear a basic structure.
I think the types of equality which our democratic
republic guarantees are all subsumed under specific
articles of the Constitution like Articles 14, 15, 16, 17,
25 etc., and there is no other principle of equality which F
is an essential feature of our democratic polity.”
64. In a five-judge bench decision, through his concurring opinion,
S.B. Sinha, J stated, in Saurabh Chaudri & Ors. v. Union of India &
Ors.56 That:
G
“82. Article 14 of the Constitution of India prohibits
discrimination in any form. Discrimination at its worst

54
See paragraph 23-24, SCC.
55
(2000) 1 SCC 168
56
(2003) 11 SCC 146; 2003 (Supp 5) SCR 152
H
348 SUPREME COURT REPORTS [2022] 14 S.C.R.

A form would be violative of the basic and essential feature
of the Constitution. It is trite that even the fundamental
rights of a citizen must conform to the basic feature of
the Constitution. Preamble of the Constitution in no
uncertain terms lays emphasis on equality.”
B 65. A nine-judge bench of this court, in S.R. Bommai v. Union of
India57, though not dealing with a constitutional amendment, opined that
“these fundamental rights enshrined in Articles 15, 16, and 25 to
30 leave no manner of doubt that they form part of the basic
structure of the Constitution….”. Again, in M. Nagaraj, it was opined
that “…the principle which emerges is that “equality” is the essence
C of democracy and, accordingly a basic feature of the Constitution.”
66. I.R. Coelho v. State of Tamil Nadu58 is the next important
decision, of note, by a nine-judge bench decision. The court, undoubtedly
was not concerned with the direct impact of an amendment on Article
14 or equality, but with the effect of an overarching immunizing provision
D such as Article 31-B. It was unanimously held, that:
“109. It cannot be held that essence of the principle
behind Article 14 is not part of the basic structure. In
fact, essence or principle of the right or nature of
violation is more important than the equality in the
E abstract or formal sense. The majority opinion
in Kesavananda Bharati case [(1973) 4 SCC 225]
clearly is that the principles behind fundamental rights
are part of the basic structure of the Constitution. It is
necessary to always bear in mind that fundamental
F rights have been considered to be heart and soul of the
Constitution. Rather these rights have been further
defined and redefined through various trials having
regard to various experiences and some attempts to
invade and nullify these rights. The fundamental rights
are deeply interconnected. Each supports and
G strengthens the work of the others. The Constitution is
a living document, its interpretation may change as the
time and circumstances change to keep pace with it.

57
S.R. Bommai v. Union of India, (1994) 3 SCC 1, (hereinafter “S.R. Bommai”).
58
(2007) 2 SCC 1
H
JANHIT ABHIYAN v. UNION OF INDIA 349
[S. RAVINDRA BHAT, J.]

This is the ratio of the decision in Indira Gandhi A
case [1975 Supp SCC 1].
[…]
141. The doctrine of basic structure contemplates that
there are certain parts or aspects of the Constitution
including Article 15, Article 21 read with Article 14 and B
19 which constitute the core values which if allowed to
be abrogated would change completely the nature of
the Constitution. Exclusion of fundamental rights would
result in nullification of the basic structure doctrine,
the object of which is to protect basic features of the C
Constitution as indicated by the synoptic view of the
rights in Part III.
142. There is also a difference between the ‘rights test’
and the ‘essence of right test’. Both form part of
application of the basic structure doctrine. When in a D
controlled Constitution conferring limited power of
amendment, an entire Chapter is made inapplicable, ‘the
essence of the right’ test as applied in M. Nagaraj’s
case (supra) will have no applicability. In such a
situation, to judge the validity of the law, it is ‘right test’
which is more appropriate. We may also note that in E
Minerva Mills and Indira Gandhi’s cases, elimination
of Part III in its entirety was not in issue. We are
considering the situation where entire equality code,
freedom code and right to move court under Part III
are all nullified by exercise of power to grant F
immunization at will by the Parliament which, in our
view, is incompatible with the implied limitation of the
power of the Parliament. In such a case, it is the rights
test that is appropriate and is to be applied…”
67. Observations in the cases referred to above, therefore, have G
outlined that certain provisions of the equality code – rather the ideas –
and principles intrinsic to Articles 14 and 15, and the rights in Articles 19
and 21, are part of the basic structure of the Constitution.

H
350 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 68. Speaking of the general right to equality, this court in Vikas
Sankhala & Ors. v. Vikas Kumar Agarwal & Ors59 stated that
“65. Going by the scheme of the Constitution, it is more
than obvious that the framers had kept in mind social
and economic conditions of the marginalized Section
B of the society, and in particular, those who were
backward and discriminated against for centuries.
Chapters on ‘Fundamental Rights’ as well as ‘Directive
Principles of State Policies’ eloquently bear out the
challenges of overcoming poverty, discrimination and
inequality, promoting equal access to group quality
C education, health and housing, untouchability and
exploitation of weaker section. In making such
provisions with a purpose of eradicating the aforesaid
ills with which marginalized Section of Indian society
was suffering (in fact, even now continue to suffer in
D great measure), we, the people gave us the Constitution
which is transformative in nature…”
It was also held that
“67. […] when our Constitution envisages equal respect
and concern for each individual in the society and the
E attainment of the goal requires special attention to be
paid to some, that ought to be done. Giving of desired
concessions to the reserved category persons, thus,
ensures equality as a levelling process. At
jurisprudential level, whether reservation policies are
F defended on compensatory principles, utilitarian
principles or on the principle of distributive justice, fact
remains that the very ethos of such policies is to bring
out equality, by taking affirmative action…”
69. In Samatha v. State of A.P. & Ors.60 this court underlined the
G unity of directive principles and fundamental rights, and the deep, intrinsic
connection between equality, liberty, and fraternity:
“72. […] Fundamental Rights and Directive Principles
of the Constitution have fused in them as fundamental
59
Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350.
60
H Samatha v. State of A.P., (1997) 8 SCC 191; 1997 (Supp 2) SCR 305
JANHIT ABHIYAN v. UNION OF INDIA 351
[S. RAVINDRA BHAT, J.]

human rights as indivisible and interdependent. The A
Constitution has charged the State to provide facilities
and opportunities among the people and groups of
people to remove social and economic inequality and
to improve equality of status. Article 39(b) enjoins the
State to direct its policy towards securing distribution
B
of the ownership and control of the material resources
of the community as best to subserve the common good.
The founding fathers with hind sight, engrafted with
prognosis, not only inalienable human rights as part of
the Constitution but also charged the State as its policy
to remove obstacles, disabilities and inequalities for C
human development and positive actions to provide
opportunities and facilities to develop human dignity
and equality of status and of opportunity for social and
economic democracy. Economic and social equality is
a facet of liberty without which meaningful life would
D
be hollow and mirage.”
70. In a similar manner, Indian Medical Association & Ors. v.
Union of India & Ors.61 underscored the centrality of equality and the
egalitarian principle, of the Constitution:
“165. It is now a well settled principle of our E
constitutional jurisprudence that Article 14 does not
merely aspire to provide for our citizens mere formal
equality, but also equality of status and of opportunity.
The goals of the nation-state are the securing for all of
its citizens a fraternity assuring the dignity of the
individual and the unity of the nation. While Justice – F
social, economic and political is mentioned in only
Article 38, it was also recognized that there can be no
justice without equality of status and of opportunity (See
M. Nagaraj). As recognized by Babasaheb Ambedkar,
at the moment that –ur Constitution just set sail, that G
while the first rule of the ship, in the form of formal
equality, was guaranteed, inequality in terms of access
to social and economic resources was rampant and on
a massive scale, and that so long as they individually,
61
Indian Medical Assn. v. Union of India, (2011) 7 SCC 179 H
352 SUPREME COURT REPORTS [2022] 14 S.C.R.

A and the social groups they were a part of, continue to
not access to social and economic resources that affords
them dignity, they would always be on the margins of
the ship, with the ever present danger of falling off that
ship and thereby never partaking of the promised goals
of that ship. Babasaheb Ambedkar with great foresight
B
remarked that unless such more fundamental
inequalities, that foster conditions of injustice, and limit
liberty of thought and of conscience, are eradicated at
the earliest, the ship itself would be torn apart.
[…]
C
168. An important and particular aspect of our
Constitution that should always be kept in mind is that
various aspects of social justice, and an egalitarian
social order, were also inscribed, not as exceptions to
the formal content of equality but as intrinsic, vital and
D necessary components of the basic equality code itself.
To the extent there was to be a conflict, on account of
scarcity, it was certainly envisaged that the State would
step in to ensure an equitable distribution in a manner
that would be conducive to common good; nevertheless,
E if the state was to transgress beyond a certain limit,
whereby the formal content of equality was likely to be
drastically abridged or truncated, the power of judicial
review was to curtail it…”
71. Therefore, the design of the Constitution, which by the
F Preamble, promises justice – social, economic, and political, liberty of
thought and expression, equality, and fraternity; and the various provisions
which manifest it (Articles 14-18, 19, 20-21, 23-24, 29, 38-39, 41 and 46)
– articulate an organic and unbreakable bond between these concepts,
which are guarantees. The idea of the twin assurance of non-
discrimination and equality of opportunity, is to oblige the state to ensure
G that meaningful equality is given to all. Similarly, the fraternal principle
binds both the state and the citizen, as without fraternity, liberty
degenerates to individualistic indulgence. Without dignity, equality and
liberty, are rendered hollow. This inviolable bond, therefore, is part of the
core foundation of our republic. Freedom from colonial rule was with
H the agenda of creating a democratic republic, reflecting the unique genesis
JANHIT ABHIYAN v. UNION OF INDIA 353
[S. RAVINDRA BHAT, J.]

of its nation, holding the people with diverse languages, cultures, religions A
with a common bond of egalitarianism, fraternity, and liberties, assuring
dignity to all – the State and the citizens were to ensure that these were
preserved, at all times, for each individual.
72. This principle of equality – non-discrimination or non-exclusion,
never had occasion to be considered in past decisions that examined B
amendments to the Constitution which dealt with different facets of
equality – such as the ceiling on land holding (Waman Rao, Bhim Singhji
v. Union of India62) or omission of princely privileges (Raghunath
Ganpatrao). Thus the court did not adjudicate upon the non-
discriminatory or non-exclusionary principle. In each case, the facet of
equality alleged to have been violated by a constitutional amendment, C
limited or affected property. In other words, the focus of every instance
where an amendment was struck down (barring those in L. Chandra
Kumar, P. Sambamurthy, Indira Gandhi, and Kihoto Hollohan) were
defining of excess property in the hands of the “haves” and the more
fortunate, in possession of land exceeding ceilings (agrarian or otherwise), D
and dismantling of princely privileges deemed antithetical to republicanism
and thereby promoting republicanism and equality. The court’s caveat –
be it in Kesavananda Bharati, Waman Rao or Bhim Singhji – were
only to the extent that oversight, to ensure that the contents of the laws
adhered to the directive principles and were not a mask or veneer to
extinguish liberties enshrined in Articles 14 and 19, and were to be E
retained.
73. The effort of the State in each of these instances, was to
create new avenues by expropriation of wealth, assets, and properties
from the ‘haves’ and ensure distributive justice in furtherance of the
objectives under Article 38 [particularly clause (2); and also Article 39 F
(particularly clause (b)] – that of minimising inequalities, and distribution
of ownership and control of material resources, respectively. Thus, 263
entries out of the total of 284 entries in the IXth Schedule of the
Constitution, are legislations relating to land reforms, land ceilings, and
other agrarian reforms acts, of the States and Union Territories. G
74. In the other class of amendments where the constitutional
ethos was promoted [introduction of Article 21A, and Article 15(5) (to
facilitate Article 21A)], this court’s decisions (in Pramati and Society

62
Bhim Singhji v. Union of India, (1981) 1 SCC 166, (hereinafter as “Bhim Singhji”).
H
354 SUPREME COURT REPORTS [2022] 14 S.C.R.

A for Unaided Schools of Rajasthan v. Union of India 63 respectively)
are telling, because these provisions did not practice discrimination in
the sharing of new benefits or rights, and were inclusive. The court
naturally upheld them. The only challenge dealing with equality – in M.
Nagaraj, failed because the right to “catch up rule” was a derivative
principle evolved by the court, in the context of the larger canvas that
B
there was no right to promotion [Article 16(4) did not carry within it the
right to promotion – a formulation in Indra Sawhney, which holds good
even as on date, for all classes save the SCs and STs]. This court held
that such rule did not negate the “essence” of equality or its “egalitarian”
facet.
C 75. In juxtaposition to all this, for the first time, the constituent
power has been invoked to practice exclusion of victims of social injustice,
who are also amongst the poorest in this country, which stands in stark
contradiction of the principle of egalitarianism and social justice for all.
The earlier amendments were aimed at ensuring egalitarianism and social
D justice in an inherently unequal society, where the largest mass of people
were impoverished, denied access to education, and other basic needs.
76. In every case, which implicates the right to equality, when the
Court is asked to adjudge upon the validity of a Constitutional amendment,
invariably what the Court focuses its gaze upon, is what is facet of
E equality. The debates which led to the framing of the Constitution, are
emphatic that the equalizing principle is a foundational tenet “an article
of faith” upon which our democratic republic rests. Equality - both as a
principle, an idea, and as a provision is “so mixed” as to make it impossible
to extricate the form from the substance, the idea from its expression.
Likewise, equality - of protection before the law, of opportunity - as a
F right not to be discriminated against on grounds enumerated in Articles
15(1) and 16(1) are engrained principles, nay, entrenched entitlements.
The question which this court therefore addresses, in every case which
complains of infractions of the essential features of the Constitution is -
has that principle been undermined or the core idea (of equality) been
G distorted.
77. The bedrock value which enlivens Articles 14, 15, 16, 17, 18,
29(2), and 325, therefore, is the principle of non-discrimination.
Alongside the generic principle of equality, captured by Article 14, is the
63
Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1,
H (hereinafter as “Society for Unaided Schools of Rajasthan”).
JANHIT ABHIYAN v. UNION OF INDIA 355
[S. RAVINDRA BHAT, J.]

idea that certain segments of society which had been historically A
stigmatised and discriminated on account of the caste identity of its
members, should be the beneficiaries of protective discrimination to enable
them proper access to public goods, facilities, spaces, and representation
in public employment. The idea of equality, therefore, is tethered to another
inseparable facet, i.e., non-discrimination, that there cannot be any
B
exclusion by the state in these vital spheres of human activity. This
principle of non-discrimination is what emerges from the history of the
provisions (outlined previously), and the precedents of this court. Further,
the manner in which these provisions have been interpreted reiterate
that integral to that non-discriminatory facet, is the idea of positive
discrimination in favour of hitherto discriminated communities C
(“Harijans”, as termed in N.M. Thomas, or SC/STs). Consequently, the
irresistible conclusion is that non-discrimination – especially the
importance of the injunction not to exclude or discriminate against SC/
ST communities [by reason of the express provisions in Articles 17 and
15] constitutes the essence of equality: that principle is the core value
D
that transcends the provisions themselves; this can be said to be part of
the basic structure.
D. Impact/effect of the phrase “other than” in the
impugned amendment
(i) Test of reasonable classification E
78. At the outset, it is acknowledged that the doctrine of reasonable
classification is not per se a part of the basic structure; it is however, a
method evolved by this court to breathe life into and provide content to
the right to equality under Article 14 – the latter being a part of the basic
structure. The contention made by those supporting the amendment – F
that treating the SC, ST and OBC as a distinct class from those who are
not covered under Article 15(4) and 16(4) is a reasonable classification,
necessitates further scrutiny.
79. It was the submission of the learned Attorney General and
Solicitor General, that SC/ST/OBC communities who have thus far G
enjoyed and will continue to enjoy special provision and reservation made
in their favour (Articles 15(4) and 16(4)) constitute a homogenous class,
the members of whose communities are beneficiaries of existing
reservation [which also includes the poorer members among their group],
whereas the beneficiaries of the new EWS reservation, were those who
did not enjoy such benefits. Consequently, there was no deprivation of H
356 SUPREME COURT REPORTS [2022] 14 S.C.R.

A opportunity within the quota/silo set apart for the former category. That
further opportunities are being denied to them on account of the creation
of the 10% quota, marginally affects them64. Such adverse effect, it
was argued, could not be characterized as a shocking breach of the
equality code or that it affected the identity of the Constitution. It was
submitted furthermore, that even in the existing reservation, the SC/ST/
B
OBC candidate belonging to such category, could compete in the quota
set apart for their caste or class and not of the quota of each other.
Thus, the SC candidates cannot compete in the quota set apart for SC or
OBC. This, it was urged is reasonable classification by which unequals
are not treated equally. This characterization of the classification, and
C justification for the impugned amendment, found favour in the judgments
by Dinesh Maheshwari, Bela Trivedi, and J.B. Pardiwala, JJ. I
respectfully disagree with this conclusion.
80. I am of the opinion that the application of the doctrine
classification differentiating the poorest segments of the society, as one
D segment (i.e., the forward classes) not being beneficiaries of
reservation, and the other, the poorest, who are subjected to additional
disabilities due to caste stigmatization or social barrier based discrimination
– the latter being justifiably kept out of the new reservation benefit, is
an exercise in deluding ourselves that those getting social and educational
backwardness based reservations are somehow more fortunate. This
E classification is plainly contrary to the essence of equal opportunity. If
this Constitution means anything, it is that the Code of Articles 15(1),
15(2), 15(4), 16(1), 16(2), and 16(4) are one indivisible whole. This
court has reiterated time and again that Articles 16(1) and 16(4) are
facets of the same equality principle. That we need Article 15(4) and
F 16(4) to achieve equality of opportunity guaranteed to all in Articles
15(1) and 16(1) cannot now be undermined, through this reasoning, to
hold that the theory of classification permits exclusion on this very basis.
81. In State of West Bengal v. Anwar Ali Sarkar65, one of the
earliest decisions to utilize the classification principle held (per Mahajan,
G J), that:
64
By way of example, it was submitted that in Central Universities and Central services
so far, the OBC communities could compete in 27% of the seats reserved for them and
in addition also participated as open category candidates. The total available for them
is 77% and with the introduction of the EWS category along with the exclusion class,
the number has been reduced to 67% - which was argued as only margically affecting
them, at best.
H 65
State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1; 1952 SCR 284.
JANHIT ABHIYAN v. UNION OF INDIA 357
[S. RAVINDRA BHAT, J.]

“64. […] The classification permissible, however, must A
be based on some real and substantial distinction
bearing a just and reasonable relation to the objects
sought to be attained and cannot be made arbitrarily
and without any substantial basis. Classification thus
means segregation in classes which have a systematic
B
relation, usually found in common properties and
characteristics. It postulates a rational basis and does
not mean herding together of certain persons and classes
arbitrarily. Thus the legislature may fix the age at which
persons shall be deemed competent to contract between
themselves, but no one will claim that competency to C
contract can be made to depend upon the stature or
colour of the hair. “Such a classification for such a
purpose would be arbitrary and a piece of legislative
despotism.”
Per SR Das, J: D
“85. It is now well established that while Article 14 is
designed to prevent a person or class of persons from
being singled out from others similarly situated for the
purpose of being specially subjected to discriminating
and hostile legislation, it does not insist on an “abstract E
symmetry” in the sense that every piece of legislation
must have universal application. All persons are not,
by nature, attainment or circumstances, equal and the
varying needs of different classes of persons often
require separate treatment and, therefore, the protecting
clause has been construed as a guarantee against F
discrimination amongst equals only and not as taking
away from the State the power to classify persons for
the purpose of legislation. This classification may be
on different bases. It may be geographical or according
to objects or occupations or the like. Mere classification, G
however, is not enough to get over the inhibition of the
Article. The classification must not be arbitrary but must
be rational, that is to say, it must not only be based on
some qualities or characteristics which are to be found
in all the persons grouped together and not in others
H
358 SUPREME COURT REPORTS [2022] 14 S.C.R.

A who are left out but those qualities or characteristics
must have a reasonable relation to the object of the
legislation…”
82. This court, in the State of Jammu and Kashmir v. Triloki
Nath Khosa & Ors.66 that classification,
B “31. […] is fraught with the danger that it may produce
artificial inequalities and therefore, the right to classify
is hedged in with salient restraints, or else, the
guarantee of equality will be submerged in class
legislation masquerading as laws meant to govern well-
C marked classes characterized by different and distinct
attainments. Classification, therefore, must be truly
founded on substantial differences which distinguish
persons grouped together from those left out of the
group and such differential attributes must bear a just
and rational relation to the object sought to be
D achieved.”
(emphasis supplied)
83. Again, in Mohammad Shujat Ali and Ors. v. Union of India 67
this court observed that the “doctrine of classification should not be
E carried to a point where instead of being a useful servant, it becomes
a dangerous master”.
84. The basis of classification in the impugned amendment, enacted
in furtherance of Article 46 – is economic deprivation. Applying that
criterion, it is either income, or landholding, or value of assets or the
F extent of resources controlled, which are classifiers. The social origins,
or identities of the target group are thus irrelevant. That there is some
basis for classification, whether relevant or irrelevant, which is sufficient
to differentiate between members of an otherwise homogenous group,
is no justification. This was highlighted most recently by this court in
Pattali Makkal Katchi v. A. Mayilerumperumal and Ors68:
G
“79. Discrimination is the essence of classification.
Equality is violated if it rests on unreasonable basis.
The concept of equality has an inherent limitation arising
66
State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19.
67
Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76.
68
Pattali Makkal Katchi v. A. Mayilerumperumal and Ors, 2022 SCC Online SC 386.
H
JANHIT ABHIYAN v. UNION OF INDIA 359
[S. RAVINDRA BHAT, J.]

from the very nature of the constitutional guarantee. A
Those who are similarly circumstanced are entitled to
an equal treatment. Equality is amongst equals.
Classification is, therefore, to be founded on substantial
differences which distinguish persons grouped together
from those left out of the groups and such differential
B
attributes must bear a just and rational relation to the
object sought to be achieved. Our Constitution aims at
equality of status and opportunity for all citizens
including those who are socially, economically and
educationally backward. Articles 15(4) and 16(4) bring
out the position of backward classes to merit equality. C
Special provisions are made for the advancement of
backward classes and reservation of appointments and
posts for them to secure adequate representation. These
provisions are intended to bring out the content of
equality guaranteed by Articles 14, 15(1) and 16(1).
D
However, it is to be noted that equality under Articles
15 and 16 could not have a different content from
equality under Article 14 [State of Kerala v. N.M
Thomas (1976) 2 SCC 310]. Differentia which is the
basis of classification must be sound and must have
reasonable relation to the object of the legislation. If E
the object itself is discriminatory, then explanation that
classification is reasonable having rational relation to
the object sought to be achieved is immaterial
[Subramanian Swamy v. Director, Central Bureau of
Investigation (2014) 8 SCC 682].”
F
(emphasis supplied)
85. Krishna Iyer, J, speaking in Col. A.S. Iyer v. V.
Balasubramanyam69 put the matter even more pithily:
“57. […] equality clauses in our constitutional ethic have
an equalizing message and egalitarian meaning which G
cannot be subverted by discovering classification
between groups and perpetuating the inferior-superior
complex by a neo-doctrine…”

69
Col. A.S. Iyer v. V. Balasubramanyam, (1980) 1 SCC 634.
H
360 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 86. Classification, it is said, is a subsidiary rule, to give practical
shape to the principle of equality. However, as emphasized by K. Subba
Rao, J. in Lachhman Das v. State of Punjab70:
“47. […] Overemphasis on the doctrine of classification
or an anxious and sustained attempt to discover some
B basic for classification may gradually and imperceptibly
deprive the Article of its glorious content. That process
would inevitably end in substituting the doctrine of
classification for the doctrine of equality; the
fundamental right to equality before the law and the
equal protection of the laws may be replaced by the
C doctrine of classification.”
87. The economic criteria, based on economic indicators, which
distinguish between one individual and another, would be relevant for
the purpose of classification, and grant of reservation benefit. The Union’s
concern that SC/ST/OBCs are beneficiaries of other reservations, which
D set apart the poorest among them, from the poorest amongst other
communities which do not fall within Articles 15(4) and 16(4), cannot be
a distinguishing factor, as to either constitute an intelligible differentia
between the two, nor is there any rational nexus between that distinction
and the object of the amendment, which is to eliminate poverty and
E further the goal of equity and economic justice.
88. There is a considerable body of past judgments enunciating
the principle that any exclusionary basis, should be rational, and non-
discriminatory. In National Legal Services Authority v. Union of India
& Ors.71 This court frowned upon the discrimination faced by transgender
F persons and held all practices which excluded their participation to be
discriminatory. The court explained how treatment of equals and unequals
as equals, is violative of the basic structure. Crucially, the court observed
that:
“61. Article 14 of the Constitution of India states that
G the State shall not deny to “any person” equality before
the law or the equal protection of the laws within the
territory of India. Equality includes the full and equal
enjoyment of all rights and freedom. Right to equality
70
Lachhman Dass v. State of Punjab, (1963) 2 SCR 353; [1963] 2 SCR 353.
71
H National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
JANHIT ABHIYAN v. UNION OF INDIA 361
[S. RAVINDRA BHAT, J.]

has been declared as the basic feature of the Constitution A
and treatment of equals as unequals or unequals as
equals will be violative of the basic structure of the
Constitution. Article 14 of the Constitution also ensures
equal protection and hence a positive obligation on the
State to ensure equal protection of laws by bringing in
B
necessary social and economic changes, so that
everyone including TGs may enjoy equal protection of
laws and nobody is denied such protection…”
89. The salience of the non-exclusionary precept as facets of
non-discrimination (equality), liberty and dignity, was ruled in Indian
Young Lawyers Association & Ors. v. The State of Kerala & Ors.72 C
where it was emphasized that
“300. […] this Court will be guided by the pursuit to
uphold the values of the Constitution, based in dignity,
liberty and equality. In a constitutional order of
priorities, these are values on which the edifice of the D
Constitution stands. They infuse our constitutional order
with a vision for the future-of a just, equal and dignified
society. Intrinsic to these values is the anti-exclusion
principle. Exclusion is destructive of dignity.”
90. Similarly, in Charu Khurana v. Union of India73 this court E
held that discrimination against women artistes in the cinema industry
violated equality. It was held that dignity was an integral part of a person’s
identity:
“33. […] Be it stated, dignity is the quintessential quality
of a personality and a human frames always desires to F
live in the mansion of dignity, for it is a highly cherished
value. Clause (j) has to be understood in the backdrop
that India is a welfare State and, therefore, it is the duty
of the State to promote justice, to provide equal
opportunity to see that all citizens and they are not G
deprived of by reasons of economic disparity…”
91. Can the fact that SC/ST and OBC communities are covered
by reservations to promote their equality, to ensure that centuries old
72
Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.
73
Charu Khurana v. Union of India, (2015) 1 SCC 192. H
362 SUPREME COURT REPORTS [2022] 14 S.C.R.

A disadvantages and barriers faced by them (which are still in place, and is
necessary to ensure their equal participation) be a ground for a
reasonable classification? In my opinion, that cannot be the basis of
classification. None of the materials placed on the record contain any
suggestion that the SC/ST/OBC categories should be excluded from the
poverty or economic criteria-based reservation, on the justification that
B
existing reservation policies have yielded such significant results, that a
majority of them have risen above the circumstances which resulted in,
or exacerbate, their marginalization and poverty. There is nothing to
suggest, how, keeping out those who qualify for the benefit of this
economic-criteria reservation, but belong to this large segment constituting
C 82% of the country’s population (SC, ST and OBC together), will advance
the object of economically weaker sections of society.
92. As an aside, it may also be noted that according to the figures
available, 45 districts are fully declared, and 64, partially declared, as
Fifth Schedule areas, out of 766 districts in the country. Majority of the
D population of these areas are inhabited by members of scheduled tribes.
According to the Sinho Committee, 48.4% of all Scheduled Tribes are in
the BPL (below poverty line) zone. This is 4.25 crores of the population.
In this manner, the exclusion operates additionally, in a geographical
manner, too, denying the poorest tribals, living in these areas, the benefit
of reservation meant for the poor.
E
93. The reservations in favour of the poorest members of society,
is not identity-based, or on past discrimination of the community concerned
which shackled them within the confines of their caste (and what
members of that caste could do). It is based on persistent economic
deprivation, or poverty. The identifying characteristic is, therefore,
F entirely new. It has no connection with social or educational
backwardness. The social or educational backwardness of the
communities to which beneficiaries of the impugned amendments belong,
are irrelevant. Therefore, caste or community is not the identifying
criteria or classifier. In such eventuality, the wall of separation, so to
G say by which the exclusion clause (“other than”) keeps out the socially
and educationally backward classes, particularly SC/STs operates to
discriminate them, because overwhelming numbers of the poorest are
from amongst them.

H
JANHIT ABHIYAN v. UNION OF INDIA 363
[S. RAVINDRA BHAT, J.]

(ii) Individual – as the beneficiary A
94. Further, in the case of economic deprivation, what is to be
seen is that poverty – or its acute ill effects are equally felt by all,
irrespective of which silos they are in. Thus, at an individual level, a
tribal girl facing economic hardship, is as equally deprived of meaningful
opportunity as a non-tribal, “non-backward”/forward class girl is. The B
characterization of existing reservations to SCs/STs/OBCs, as benefits
or privileges, which disentitle them from accessing this new resource,
of reservations based on economic deprivation, though they fall within
the latter description, because “they are loaded with such benefits” (as
contended by the respondents), with respect belittles their plight.
C
95. The problem with the “silo” argument furthered by the Union,
is that it not only fails to locate the individual within a collective, reducing
her visibility in the debate and robbing her of voice, but also further
ignores the potentiality of each individual to excel, and cross the barriers
of these very “silos”. The polarity between “collective” rights and
entitlements and “individual” is artificial. At the end of it all, the D
Constitution has to mean, and provide something, for the common
individual/person; it has to provide the greatest good to all, not merely
sections or collectives. Therefore, the view that the collective is the
constitutive element, from whose prism the individual is viewed, diminishes
the role and the focal point of inquiry, away from the individual, thereby E
affording a convenient way of placing people in different “silos”.
96. This court’s understanding, in the past too, has been that equality
of opportunity is individual – likewise, the benefit of reservation too is
made on the basis of the community’s social and educational
backwardness, or they being victims of the practice of untouchability: F
yet the individuals are recipients. In M. Nagaraj, therefore, it was held
that
“…the concept of “equality of opportunity” in public
employment concerns an individual, whether that
individual belongs to the general category or Backward G
Class. The conflicting claim of individual right Under
Article 16(1) and the preferential treatment given to a
Backward Class has to be balanced. Both the claims
have a particular object to be achieved. The question
is of optimisation of these conflicting interests and
claims.” H
364 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 97. The object of reservations is to benefit the individual, in the
case of enabling access to public goods such as education, whereas in
the case of elective office or even public office, though the individual is
the recipient of the reservation, the community is expected to benefit,
due to its representation through her. This was emphasized by this court
in K. Krishna Murthy in the following words:
B
“55. It must be kept in mind that there is also an inherent
difference between the nature of benefits that accrue
from access to education and employment on one hand
and political representation at the grassroots level on
the other hand. While access to higher education and
C public employment increases the likelihood of the socio-
economic upliftment of the individual beneficiaries,
participation in local-self government is intended as a
more immediate measure of empowerment for the
community that the elected representative belongs to.”
D This goal of empowerment through ‘representation’, is not
applicable in the case of reservations on the basis of economic criteria –
which as the petitioners laboriously contended, is transient, temporary,
and rather than a discernible ‘group’, is an individualistic characteristic.
This distinction on the question of Article 16(6), is elaborated on further
E in Part V.
98. Apart from the fact that reservations are made for or in favour
of collectives, which are the building blocks of society such as castes,
they are meant to benefit individuals. Castes are merely a convenient
method of identifying the backward communities whose members are
F beneficiaries. The fact remains that it is citizens who are meant to benefit
from it. The entire jurisprudence, or even the text of Articles 15 and 16,
bear out this aspect. To say, therefore, that collectively communities
identified as Scheduled Castes and Scheduled Tribe, are beneficiaries
and that is reason enough to exclude those castes/tribes from the benefit
of new resources (created by the state through the amendment) though
G undisputedly a substantial number of members of these historically
marginalised communities and castes also fulfil the eligibility criteria that
entitles one as deserving of the new resource, is nothing but
discrimination at an individual level. This undermines the very basis of
the promise of equal opportunity and equality of status which the
H Constitution makers so painstakingly and carefully conceived of as a
JANHIT ABHIYAN v. UNION OF INDIA 365
[S. RAVINDRA BHAT, J.]

guarantee for all, particularly the members of the most discriminated A
and deprived sections of the community, i.e., the SC and ST communities.
In these circumstances it is cold comfort, therefore, for the person who
otherwise fulfils all the characteristics of an identifier such as poverty –
which is not based on social identity, but on deprivation – to be told that
she is poor, as desperately poor or even more so than members of other
B
communities (who were not entitled to the reparative reservations under
Article 15(4) and 16(4)), yet she is being kept out because she belongs
to a scheduled caste or scheduled tribe.
(iii) Violation of the basic structure
99. Poverty debilitates all sections of society. In the case of C
members of communities which faced continual discrimination – of the
most venial form, poverty afflicts in the most aggravated form. The
exclusion of those sections of society, for whose benefit non-
discriminatory provisions were designed, is an indefensible violation of
the non-discrimination principle, a facet that is entwined in the Equality
Code, and thus reaches to the level of offending or damaging the very D
identity of the Constitution. To use the terminology in I.R. Coelho, the
impact of this amendment on the equality code which is manifested in
its non-discriminatory or non-exclusionary form, leads it to radically
damage the identity of the Constitution. The promise of the Constitution
that no one will be discriminated on the ground of caste-based practices E
and untouchability (which is the basis of identification of such backward
class of citizens as scheduled castes), is plainly offended. Therefore, the
exclusionary clauses in articles 15(6) and Articles 16(6) damage and
violate the basic structure of the Constitution.
100. The characterisation of including the poor (i.e., those who F
qualify for the economic eligibility) among those covered under Articles
15(4) and 16(4), in the new reservations under Articles 15(6) and 16(6),
as bestowing “double benefit” is incorrect. What is described as ‘benefits’
for those covered under Articles 15(4) and 16(4) by the Union, cannot
be understood to be a free pass, but as a reparative and compensatory
mechanism meant to level the field – where they are unequal due to G
their social stigmatisation. This exclusion violates the non-discrimination
and the non-exclusionary facet of the equality code, which thereby violates
the basic structure of the Constitution.
101. The impugned amendment creates paths, gateways, and
opportunities to the poorest segments of our society, enabling them multiple H
366 SUPREME COURT REPORTS [2022] 14 S.C.R.

A access points to spaces they were unable to go to, places and positions
they were unable to fill, and opportunities they could not hope, ever to
ordinarily use, due to their destitution, economic deprivation, and penury.
These: destitution, economic deprivation, poverty, are markers, or
intelligible differentia, forming the basis of the classification on which
the impugned amendment is entirely premised. To that extent, the
B
amendment is constitutionally indefeasible. However, by excluding a large
section of equally poor and destitute individuals – based on their social
backwardness and legally acknowledged caste stigmatization – from
the benefit of the new opportunities created for the poor, the amendment
practices constitutionally prohibited forms of discrimination. The
C overarching principles underlying Articles 15(1), 15(2), and Articles 16(1),
16(2) is that caste based or community-based exclusion (i.e., the practice
of discrimination), is impermissible. Whichever way one would look at it,
the Constitution is intolerant towards untouchability in all its forms and
manifestations which are articulated in Articles 15(1), (2), Articles 16,
17, 23 and 24. It equally prohibits exclusion based on past discriminatory
D
practices. The exclusion made through the “other than” exclusionary
clause, negates those principles and strikes at the heart of the equality
code (specifically the non-discriminatory principle) which is a part of the
core of the Constitution.
IV. Re Question No. 1: permissibility of special
E provisions (including reservation) based on
economic criteria
102. At the outset, it is clarified that I am in agreement with the
other members of this bench, that ‘economic criteria’ for the purpose of
Article 15 is permissible and have provided my additional reasoning and
F analysis in this section; however, I diverge with regards to Article 16 for
the purpose of reservations in appointment to public employment, which
is elaborated in Part V.
A. Judicial observations on economic criteria

G 103. Repeated decisions of this court have iterated that caste
alone could not be the criteria for determining social and educational
backwardness. M.R. Balaji was the first to articulate this proposition.
This was accepted in later decisions. The Union and other respondents
in the present challenge, relied on Article 46 and certain other provisions

H
JANHIT ABHIYAN v. UNION OF INDIA 367
[S. RAVINDRA BHAT, J.]

of Part IV of the Constitution. The text of Article 46 is extracted again A
for reference:
“46. The State shall promote with special care the
educational and economic interests of the weaker
sections of the people and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall B
protect them from social injustice and all forms of
exploitation.”
104. This court, in both N.M. Thomas and Indra Sawhney
propounded the idea that preferential treatment based on classification,
to further affirmative action, could be traced to Articles 15(1) and 16(1). C
However, it was emphasized that on the question of reservation for
socially and educationally backward classes, scheduled castes and
scheduled tribes, the field was occupied by Articles 15(4) and 16(4). At
the same time, their location did not prevent the State from making
classification for other groups. The question of whether the economic
criterion alone could be the basis of such reservation was squarely D
addressed in Indra Sawhney. The court held that such reservation based
solely on the application of the economic criterion was not justified.
B.P. Jeevan Reddy, J. who authored the majority judgement on this aspect,
observed that the office memorandum in question did not recite the
concerned provision, and then proceeded to reason why it was E
unsustainable:
“845. …Evidently, this classification among a category
outside clause (4) of Article 16 is not and cannot be
related to clause (4) of Article 16. If at all, it is relatable
to clause (1). Even so, we find it difficult to sustain. F
Reservation of 10% of the vacancies among open
competition candidates on the basis of income/property-
holding means exclusion of those above the demarcating
line from those 10% seats. The question is whether this
is constitutionally permissible? We think not. It may not
be permissible to debar a citizen from being considered G
for appointment to an office under the State solely on
the basis of his income or property-holding. Since the
employment under the State is really conceived to serve
the people (that it may also be a source of livelihood is
secondary) no such bar can be created. Any such bar H
368 SUPREME COURT REPORTS [2022] 14 S.C.R.

A would be inconsistent with the guarantee of equal
opportunity held out by clause (1) of Article 16. On this
ground alone, the said clause in the Office Memorandum
dated May 25, 1991 fails and is accordingly declared
as such.”
B 105. It is quite evident that the economic criterion as the basis for
reservations, was not upheld on account of the existing structure and
phraseology in Articles 15(1) and 16(1). There is nothing in the judgment
in Indra Sawhney suggestive of this court’s omnibus disapproval of the
idea of rooting affirmative action (including reservation) on the basis of
economic criteria. Nor did this court comment (or could have commented)
C on a possible future amendment to the Constitution, introducing the
economic criteria as the basis for reservation or special provisions.
106. One of the questions considered in Indra Sawhney was
whether reservations contemplated could be confined to what existed,
in the form of Articles 15 and 16. This court, having regard to the existing
D structure of those provisions, answered the question as follows:
“744. The aspect next to be considered is whether clause
(4) is exhaustive of the very concept of reservations?
In other words, the question is whether any reservations
can be provided outside clause (4) i.e., under clause
E (1) of Article 16. There are two views on this aspect. On
a fuller consideration of the matter, we are of the opinion
that clause (4) is not, and cannot be held to be,
exhaustive of the concept of reservations; it is exhaustive
of reservations in favour of backward classes alone.
F Merely because, one form of classification is stated as
a specific clause, it does not follow that the very concept
and power of classification implicit in clause (1) is
exhausted thereby. To say so would not be correct in
principle. But, at the same time, one thing is clear. It is
in very exceptional situations, — and not for all and
G sundry reasons — that any further reservations, of
whatever kind, should be provided under clause (1). In
such cases, the State has to satisfy, if called upon, that
making such a provision was necessary (in public

H
JANHIT ABHIYAN v. UNION OF INDIA 369
[S. RAVINDRA BHAT, J.]

interest) to redress a specific situation. The very A
presence of clause (4) should act as a damper upon the
propensity to create further classes deserving special
treatment. The reason for saying so is very simple. If
reservations are made both under clause (4) as well as
under clause (1), the vacancies available for free
B
competition as well as reserved categories would be a
correspondingly whittled down and that is not a
reasonable thing to do.”
107. It is apparent that the court was considering the issue through
the prism of the provisions as they existed. The court did not – and
correctly, could not have visualized what may be become a necessity, C
perhaps even a compelling one in the future, of the need to bridge the
ever-widening gap between the affluent and comfortable on the one
hand, and the desperately poor, on the other. The need to ensure that
those suffering the adverse effects of abject poverty – illiteracy, marginal
income, little or no access to basic amenities such as shelter, hygiene, D
nutrition, or crucially, education (which has transformational value) –
are given a modicum of access to achieve basic goals which the Preamble
assures, and Part IV provisions directs the State to achieve, therefore, is
another dimension which Parliament thought appropriate to achieve, while
introducing the economic criteria. Therefore, the judgment in Indra
Sawhney, howsoever authoritative, cannot be considered as the last word, E
when considering the introduction of the new criteria for affirmative
action. That judgment is authoritative, for its determination of what is
permissible, and what should be the constitutional method of implementing,
backwardness-based affirmative action. However, it cannot be
considered as exhaustive of new criteria, which may be brought about F
by constitutional amendments (thus, removing the basis of the judgment
itself). Therefore, to say that Indra Sawhney or any other judgment
does not permit reservations or affirmative action, based on economic
criteria, alone, is incorrect. That judgment cannot restrain Parliament
from introducing constitutional amendments that enact such criteria, as
the basis of reservation benefits, or other special provisions. Further, G
existing criteria for reservations, cannot be the only way in which the
state is permitted to achieve social and economic justice goals: those

H
370 SUPREME COURT REPORTS [2022] 14 S.C.R.

A criteria must be followed, but cannot preclude the introduction of new
criteria, or new methods, through amendment to the Constitution.
B. State’s obligations under Directive Principles to fulfil
mandate of substantive equality
108. A perusal of the Directive Principles of State Policy, reveals
B the State’s obligations, as intended by the Constituent Assembly. The
State, through Article 38(1), is obligated to establish a social order to
promote welfare of people by extending to them justice – social, economic
and political. It also has the responsibility of minimising income inequalities
and the elimination of inequalities in status, facilities and opportunities,
C by virtue of Article 38(2) specifically. Article 39 not only postulates the
right to an adequate means of livelihood, and redistribution of material
resources for common good, it further directs the State to ensure that
there is no concentration of wealth and means of production in hands of
the few, to the common detriment. Articles 38 and 39 read with Articles
41, 42, 43, 45, 46, 47 and 48, holistically, contribute to economic justice.
D
109. Social justice implies removing all inequalities and affording
equal opportunities to citizens in social as well as in economic affairs. 74
Directive Principles of State Policy, through Articles 38, 39, 41 and 43,
mandate the state to establish an “economically just” social order.
The Preambular aims of justice (economic, social and political), and
E equality of status and opportunity, find articulation in both Part III and
Part IV of the Constitution. Till now, the State pursued the goal of achieving
equality of status and opportunity, substantively, by employing some
form of protective discrimination, to eliminate past discrimination, which
had set up barriers to the most marginalised sections of society, thereby
F denying them access to resources and public employment. The
structuring of enabling provisions [Articles 15(4) and 16(4)] is such that
the target group were only those who fell within the description of classes
that suffered social and educational backwardness. These included the
most disadvantaged among the disadvantaged and oppressed, i.e.,
scheduled castes and scheduled tribes. The inclusion of any other people
G therefore, could not be contemplated in the context of the Constitution,
as well as its text, as it stood.
110. The aim of creating a uniform, egalitarian, casteless society
is to be seen as a paramount objective. Reservation was deemed as one
74
Gokulesh Sharma, Human rights and Social Justice Fundamental Rights vis-à-vis
H Directive Principles, Deep and Deep Publication Ltd (1997).
JANHIT ABHIYAN v. UNION OF INDIA 371
[S. RAVINDRA BHAT, J.]

of the principal means of achieving that goal. Such measures have A
worked, and their retention underlines that as a nation, we have miles to
go, before we are anywhere near the promise we have given onto
ourselves. In this journey, if it is discerned that alongside these hitherto
oppressed communities, who were hostilely treated on account of their
caste status, there are also a substantial number of people, who have not
B
progressed due to their economic deprivation; the state is duty bound to
take remedial measures to address their plight.
C. Flexibility of constitutional amendments to enable
substantive equality
111. Constitutions being charters of governance, carry within them C
delineation of powers, of various branches of government, and numerous
constituent units, at the same time, guaranteeing liberties, assuring equality.
To be vibrant and relevant, they are to be sufficiently flexible to allow
experimentation. This experimentation is vital, to enable the assimilation
of felt needs of the society – for change: in view of developments in
interpretation, efficacy of provisions of the charter, unmet or new D
aspirations, etc. The need to ensure that the fruits of progress reach all,
especially the poor, who are marginalized, is an important constitutional
obligation, which finds voice in several provisions of the Directive
Principles of State Policy. The existence, or rather, the express recognition
of discrimination which prevented large segments of the population, E
access to institutions, or participation in public affairs and offices cannot,
therefore, imply the preclusion of recognition of any other criteria, for
providing means to other disadvantaged groups, based on other factors.
In this case, the factor, or basis chosen, is economic deprivation.
112. In Kihoto Hollohan this court noted that a Constitution F
“outlines only broad and general principles meant to endure and
be capable of flexible application to changing circumstances – a
distinction which differentiates a statue from a Charter under which
all statutes are made.”. This court quoted from Cooley on
‘Constitutional Limitations’75 that an amendment, to the constitution,
upon its adoption becomes a part thereof; as much so as if it had been G
originally incorporated in the Constitution and “it is to be construed
accordingly” .

75
8th Edn. Vol. 1 page 129.
H
372 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 113. Constitutions are meant to endure; they outline the broad
contours of governance of the society which creates them. Modern
constitutions typically delineate power: legislative, executive and judicial
and, depending upon the genius of the individual society, set up systems
of checks and balances to limit the zones of operation of each branch.
Where the Constitution governs a large territory, comprising of provincial
B
or constituent units, the delineation of legislative power is also indicated.
Furthermore, in every Constitution, limitations on state power, in the form
of a Bill of Rights (by whatever name called) are engrafted to safeguard
individual liberties and ensure that there is equality in all spheres of
activity. Constitutions also indicate the manner of their amendment:
C essentially regarding the special procedures needed for the purpose, and
in some instances, the limitation upon the amending power, in regard to
certain subjects, which are deemed beyond the pale of that power.
114. The rationale for such amending power is that no matter
how exhaustive a constitution is, how deeply its framers have deliberated,
D it may possibly not provide for all situations. There may be need to re-
align legislative heads, in the light of subsequent changes dictated by
social or political consensus, or compromise. Societies are constantly, in
a state of flux. In the words of Thomas Jefferson, considered to be the
Founding Father of the United States:
E “I am not an advocate for frequent changes in laws
and Constitutions. But laws and institutions must go
hand in hand with the progress of the human mind. As
that becomes more developed, more enlightened, as new
discoveries are made, new truths discovered and
manners and opinions change, with the change of
F circumstances, institutions must advance also to keep
pace with the times. We might as well require a man to
wear still the coat which fitted him when a boy as
civilized society to remain ever under the regimen of
their barbarous ancestors.” 76
G 115. The opinion of Khanna, J, too recognizes this aspect, in
Kesavananda Bharati. He said that constitutions provide
“1437. […] for the framework of the different organs of
the State viz. the executive, the legislature and the
76
In a letter to Samuel Kerceval on July 12, 1816.
H
JANHIT ABHIYAN v. UNION OF INDIA 373
[S. RAVINDRA BHAT, J.]

judiciary. A Constitution also reflects the hopes and A
aspirations of a people. Besides laying down the norms
for the functioning of different organs a constitution
encompasses within itself the broad indications as to
how the nation is to march forward in times to come…”
Commenting that it cannot be regarded as “a mere legal B
document” the learned judge further noted that the
“1437. […] Constitution must of necessity be the vehicle
of the life of a nation. It has also to be borne in mind
that a Constitution is not a gate but a road. Beneath the
drafting of a Constitution is the awareness that things C
do not stand still but move on, that life of a progressive
nation, as of an individual, is not static and stagnant
but dynamic and dashful. A Constitution must therefore
contain ample provision for experiment and trial in the
task of administration…”
D
116. Such being the case, the concerns which emerge from
changing time, are usually met within the framework of a flexible
constitutional document. However, occasionally, that document needs to
be re-examined, and if necessary, amended to accommodate the
challenges that are unmet and beyond the contemplation of that
foundational charter. E

117. It is axiomatic that the wisdom of a legislation is not within
the domain of the courts. Speaking of constitutional amendments, Sikri,
CJ., in Kesavananda Bharati observed:
“288. It is of course for Parliament to decide whether F
an amendment is necessary. The Courts will not be
concerned with the wisdom of the amendment.”
118. Shelat and Grover, JJ. stated the same idea, and added that it
is the consequences of the provision, having regard to the width of the
power, which properly falls for judicial consideration:
G
“532. It is difficult to accede to the submission on behalf
of the respondents that while considering the
consequences with reference to the width of an
amending power contained in a Constitution any
question of its abuse is involved. It is not for the courts
H
374 SUPREME COURT REPORTS [2022] 14 S.C.R.

A to enter into the wisdom or policy of a particular
provision in a Constitution or a statute. That is for the
Constitution-makers or for the Parliament or the
legislature. But that the real consequences can be taken
into account while judging the width of the power is
well settled. The court cannot ignore the consequences
B
to which a particular construction can lead while
ascertaining the limits of the provisions granting the
power.” 77
119. Whether the circumstances justified the move, or that some
measure was better than what was conceived and enacted is not what
C can be gone into by the courts. This is even more so, in the case of
constitutional amendments, where the facts which impelled the
Parliament to draw upon its extraordinary power, a constituent power,
no less, and amend the Constitution, are not matters of examination or
deep consideration. Therefore, whether there is objective material to
D justify the economic criteria, or the sufficiency of it, are not relevant for
the court to examine, while considering the validity of this constitutional
amendment. Equally Parliament’s motive (or of a legislative body), in
enacting the legislative measure, or constitutional amendment, is an
irrelevant factor. What the court can certainly consider is, the purpose
which the amendment seeks to achieve, which is often discernible from
E the processes leading up to the passing of such an amendment, the
discussions that arise, etc.
D. Purpose that the amendment seeks to achieve through
introduction of economic criteria

F 120. The above discussion is conclusive on the question of
relevance of materials to justify constitutional amendments. Nevertheless,
since arguments were addressed by the petitioners and Union on this, it
would be appropriate to deal with them. The materials relied on, in the
form of the Sinho Commission Report (2010), the Statement of Objects
of the Bill when it was introduced, together with the parliamentary debates
G (brief as they are) before it fructified into the Amendment, are indicative
of what Parliament wished to achieve, through the amendment.

77
In Kihoto Hollohon too, the court adverted to Parliamentary wisdom, which results
in an amendment, that cannot be questioned in by the court.
H
JANHIT ABHIYAN v. UNION OF INDIA 375
[S. RAVINDRA BHAT, J.]

121. The respondent-Union relied heavily upon the NITI Aayog A
Report on National Multidimensional Poverty Index (published in 2021).
The issue of mapping poverty has consistently engaged the attention of
the State - earlier, poverty was mapped using the “the poverty line”,
which has now given way to the “multi-dimensional” approach. By this
latter methodology, various indicators are considered to look at a holistic
B
picture of deprivation. The NITI Aayog Report considered – as poor, an
individual spending less than ¹ 47 a day in cities as against one spending
less than ¹ 32 a day in villages. The National Multidimensional Poverty
Index (“NMPI”) based itself on three facets – education, health, and
standard of living – each having a weightage of one-third, in the index.
Each of these are further based on 12 sections – nutrition, child and C
adolescent mortality, antenatal care, years of schooling, school attendance,
cooking fuel, sanitation, drinking water, electricity, housing, assets, and
bank accounts.
122. There were deprived people by each of these criteria though
some of them may not have been multidimensionally poor in 2015-16. D
The highest number of the deprived were identified on the indicators of
cooking fuel (58.5%) and sanitation (52%). In other words, more than
half the population were poor on these two facets, in terms of the report.
Housing had a deprivation proportion of 45.6% of the population during
2015-16, followed by nutrition (37.6%), maternal health (22.6%), drinking
water (14.6 %), assets (14%), years of schooling (13.9%), electricity E
(12.2%), bank account (9.7%), school attendance (6.4%) and child and
adolescent mortality (2.7%).78
123. The Sinho Commission was set up to examine the condition
of economically backward classes and suggested measures – including
the feasibility of reservations – to improve their lot. The Report, published F
78
The NMPI assists in estimation of poverty at the level of the states and all the over
700 districts across the 12 indicators, capturing multitude of deprivations and indicator-
wise contribution to poverty. Thus, in terms of NMPI, 51.91% population of Bihar is
poor, followed by 42.16% in Jharkhand, 37.79% in Uttar Pradesh, with Madhya
Pradesh (36.65%) as fourth in the index, and Meghalaya (32.67%) is at fifth place.
G
Kerala, Goa, and Sikkim have the lowest percentage of population who are
multidimensionally poor at 0.71%, 3.76% and 3.82%, respectively. Amongst Union
Territories (UTs), Dadra and Nagar Haveli (27.36%), Jammu & Kashmir, and Ladakh
(12.58%), Daman and Diu (6.82%) and Chandigarh (5.97%), are emerged as the poorest
UTs. The proportion of poor in Puducherry at 1.72% is the lowest among the UTs,
followed by Lakshadweep at 1.82%, Andaman & Nicobar Islands at 4.30% and Delhi
at 4.79%. H
376 SUPREME COURT REPORTS [2022] 14 S.C.R.

A in July 2010, was based on the census of 2001, and later surveys, wherein
the Commission took note of various factors such as employment,
education, nutrition levels, housing, access to resources, etc. The statistics
(NSSO 2004-05) which this Report is based on, disclosed that in all, 31.7
crore people were below the poverty line (“BPL”), of which the
scheduled caste population was 7.74 crores (i.e., 38% of total scheduled
B
castes), scheduled tribe population was 4.25 crores (48.4% of total
scheduled tribes), 13.86 crores of OBC population (which was 33.1%
of total OBCs), and 5.85 crores of General Category (18.2% of total
general category).
E. Conclusion on permissibility of economic criteria per se
C
124. Economic emancipation is a facet of economic justice which
the Preamble, as well as Articles 38 and 46 promise to all Indians. It is
intrinsically linked with distributive justice – ensuring a fair share of the
material resources, and a share of the progress of society as a whole, to
each individual. Without economic emancipation, liberty – indeed equality,
D are mere platitudes, empty promises tied to “ropes of sand”79. The
break from the past – which was rooted on elimination of caste-based
social discrimination, in affirmative action – to now include affirmative
action based on deprivation, through the impugned amendment,
therefore, does not alter, destroy or damage the basic structure of the
E Constitution. It adds a new dimension to the Constitutional project of
uplifting the poorest segments of society.
V. Consideration of Article 16(6)
125. It is important to note that there are crucial supplementary
reasons, why the reservation benefits introduced through Article 16(6)
F are to be examined from another point of view – apart from the point of
exclusion.
126. The issue of providing reservations in public employment,
was debated four times, by the Constituent Assembly, (30.11.1948,
09.12.1948, 23.08.1949 and 14.10.1949) which considered Draft Article
G 10(3). Several speakers emphasized that reservations in favour of
backward classes of citizens was necessary to empower them and give
voice to them in the administration of the country. The speech, by H.V.
Kamath, on the content of what is now Article 16(4), is illustrative:
79
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150 (1891), quoted in State of
West Bengal v. Anwar Ali Sarkar 1952 (1) SCR 284 and Nandini Satpathy v. PL Dani
H 1978 (3) SCR 608.
JANHIT ABHIYAN v. UNION OF INDIA 377
[S. RAVINDRA BHAT, J.]

“This is not a more directive principle of state policy; A
this is in Chapter III, on Fundamental Rights. When this
is guaranteed to them, no backward class of citizens
need be apprehensive. If there is no representation for
them in the services they can take the Government to
task on that account. I think this would be an adequate
B
safeguard for them so far as their share in the services
is concerned. I hope that this article 10 guarantees that
right to them, and so they need have no dispute or
quarrel with the article before the House today.”
127. This aspect, of representation, was highlighted in Indra
Sawhney: C

“694. […] the objective behind Clause (4) of Article
16 was the sharing of State power. The State power
which was almost exclusively onopolized by the upper
castes i.e., a few communities, was now sought to be
made broad-based. The backward communities who D
were till then kept out of apparatus of power, were sought
to be inducted there into and since that was not
practicable in the normal course, a special provision
was made to effectuate the said objective. In short, the
objective behind Article 16 (4) is empowerment of the E
deprived backward communities – to give them a share
in the administrative apparatus and in the governance
of the community”
The majority judgment again stated:
“788. […] It is a well known fact that till independence F
the administrative apparatus was manned almost
exclusively by members of the ‘upper’ castes. The
Shudras, the Scheduled Castes and the Scheduled Tribes
and other similar backward social groups among
Muslims and Christians had practically no entry into G
the administrative apparatus. It was this imbalance
which was sought to be redressed by providing for
reservations in favour of such backward classes. In this
sense Dr. Rajiv Dhawan may be right when he says that
the object of Article 16 (4) was “empowerment” of the
H
378 SUPREME COURT REPORTS [2022] 14 S.C.R.

A backward classes. The idea was to enable them to share
the state power. We are, accordingly, of the opinion that
the backwardness contemplated by Article 16 (4) is
mainly social backwardness. It would not be correct to
say that the backwardness under Article 16 (4) should
be both social and educational…”
B
128. In M. Nagaraj, too, the idea of reservations under Article
16(4) being provided, to enable representation, was underlined:
“55. […] in The General Manager, Southern Railway
and another v. Rangachari Gajendragadkar, J. giving
C the majority judgment said that reservation under Article
16 (4) is intended merely to give adequate representation
to backward communities. It cannot be used for creating
monopolies or for unduly or illegitimately disturbing
the legitimate interests of other employees. A reasonable
balance must be struck between the claims of backward
D classes and claims of other employees as well as the
requirement of efficiency of administration.”
129. It is clear, from the above discussion, that equality of
opportunity in public employment – a specific facet of the equality code
– is a guarantee to each citizen. The equally forthright prohibition in
E Article 16(2), enjoining discrimination on various grounds, including caste,
is to reinforce the absoluteness of equality of opportunity, that it cannot
be denied. The only departure through Article 16(4) is to give voice to
hitherto unrepresented classes, discriminated against on the proscribed
grounds. This link - between providing equal opportunity, and
F representation through reservations, was the only exception, permitted
by the Constitution, to further equality in public employment.
130. The impugned amendment snaps the link between the idea
of providing reservation for backward classes to ensure their
empowerment and representation (who were, before the enactment of
G Article 16(4), absent from public employment). The entire philosophy of
Article 16 is to ensure barrier-free equal opportunity in regard to public
employment. Article 16(4) – as stated previously enables citizens
belonging to backward classes access to public employment with the
superadded condition that this is to ensure their “adequate
representation”. Important decisions of this court: Indra Sawhney,
H
JANHIT ABHIYAN v. UNION OF INDIA 379
[S. RAVINDRA BHAT, J.]

M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta 80 and BK Pavitra A
(II) v. Union of India81 have time and again emphasized that reservations
under Article 16 are conditioned upon periodic adequate representation
review.
131. The introduction of reservations for economically weaker
sections of the society is not premised on their lack of representation B
(unlike backward classes); the absence of this condition implies that
persons who benefit from the EWS reservations can, and in all probability
do belong to classes or castes, which are “forward” and are represented
in public service, adequately. This additional reservation, by which a
section of the population who are not socially backward, and whose
communities are represented in public employment – violates the equality C
of opportunity which the Preamble assures, and Article 16(1) guarantees.
132. The impugned amendment results in treating those covered
by reservations under Article 16(4) with a standard that is more exacting
and stringent than those covered by Article 16(6). For instance, if the
poorest citizens among a certain community or that entire community, is D
unrepresented, and the quota set apart for the concerned group (SC) as
a whole is filled, the requirement of “representation” is deemed fulfilled,
i.e., notwithstanding that the specific community has not been represented
in public employment, no citizen belonging to it, would be entitled to
claim reservation. However, in the case of non-SC/ST/OBCs, whether E
the individual belongs to a community which is represented or not, is
entirely irrelevant. This vital dimension of need to be represented, to
be heard in the decision-making process, has been entirely discarded
by the impugned amendment in clause (6) of Article 16. Within the
amended Article 16, therefore, lie two standards: representation as a
relevant factor (for SC, ST and OBC under Article 16(4)), and F
representation as an irrelevant factor (for Article 16(6)).
133. Therefore, for the reasons already covered in Question 3,
and as set out separately above, the introduction of this reservation in
public employment violates the right to equal opportunity, in addition to
the non-discriminatory facet of equality, both of which are part of the G
equality code and the basic structure.

80
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.
81
BK Pavitra (II) v. Union of India, (2019) 16 SCC 129.
H
380 SUPREME COURT REPORTS [2022] 14 S.C.R.

A VI. Re: Question 2: special provisions based on economic
criteria, in relation to admission to private unaided institutions
134. The eleven-judge bench ruling in T.M.A. Pai Foundation v.
State of Karnataka 82 has recognized that Article 19(1)(g) of the
Constitution embraces the right to establish private educational institutions
B as an avocation. The insertion of Article 21A, and later Article 15(5)
added a new dimension. These amendments are to be viewed as society’s
resolve that all institutions – public and private – have to join in the
national endeavour to promote education at all levels. Education in this
context is to be seen as a “material resource” of the society, meant to
benefit all its segments.
C
135. The Right of Children to Free and Compulsory Education
Act, 2009 by Section 12(a) in fact introduces an all-encompassing quota
which is inclusive, under the broad rubric of “economically weaker
sections of the society”.83 Parliament had this model, and was also
aware that this Court had upheld it in Society for Unaided Private
D Schools of Rajasthan and further that Article 15(5) too was upheld in
Pramati.
136. Unaided private institutions, including those imparting
professional education, cannot be seen as standing out of the national
mainstream. As held in the aforementioned judgments, reservations in
E private institutions is not per se violative of the basic structure. Thus,
reservations as a concept cannot be ruled out in private institutions where
education is imparted. They may not be State or State instrumentalities,
yet the value that they add, is part of the national effort to develop skill
and disseminate knowledge. These institutions therefore also constitute
F material resources of the community in which the State has vital interest,
and are not merely bodies set up to further private objective of their
founders, unlike in case of the shareholders of a company. Such institutions
are seen as part of the State’s endeavour to bring educational levels of
the country up, and foster fraternity, as held in Pramati:

G “37. […] The goals of fraternity, unity and integrity of
the nation cannot be achieved unless the backward
82
(2002) 8 SCC 481.
83
Section 12. Extent of school’s responsibility for free and compulsory education.— (1)
For the purposes of this Act, a school: (a) specified in sub-clause (i) of clause (n) of
Section 2 shall provide free and compulsory elementary education to all children admitted
H therein.
JANHIT ABHIYAN v. UNION OF INDIA 381
[S. RAVINDRA BHAT, J.]

classes of citizens and the Scheduled Castes and the A
Scheduled Tribes, who for historical factors, have not
advanced are integrated into the mainstream of the
nation…”
137. Further, in Indian Medical Association on reservation of
seats under Article 15(5) in Army College of Medical Sciences (ACMS), B
the court held:
“74. At this stage we wish to make a necessary and a
primordially important observation that has troubled us
right throughout this case. The primordial premise of
the arguments by unaided educational institutions in C
claiming an ability to choose students of their own
choice, in case after case before this Court, was on the
ground that imposition of reservations by the State would
impede their right to choose the most meritorious on the
basis of marks secured in an objective test. It would
appear that, having unhorsed the right of the State to D
impose reservations in favour of deprived segments of
the population, even though such reservations would
be necessary to achieve the constitutionally mandated
goals of social justice and an egalitarian order, unaided
institutions are now seeking to determine their own E
delimited “sources” of students to the exclusion of
everybody else.
75. The fine distinctions made…that an allocation when
made by the State is reservation, as opposed to
allocations made by private educational institutions in F
selecting a source do not relate to the fundamental issue
here: when the State delimits, and excludes some students
who have secured more marks, to achieve goals of
national importance, it is sought to be projected as
contrary to constitutional values, and impermissibly
reducing national welfare by allowing those with lesser G
marks to be selected into professional colleges; and at
the same time, such a delimitation by a private
educational institution, is supposedly permissible under
our Constitution, and we are not then to ask what
happens to that very same national interest and welfare H
382 SUPREME COURT REPORTS [2022] 14 S.C.R.

A in selecting only those students who have secured the
highest marks in a common entrance test. We are
reminded of the story of the camel that sought to protect
itself from the desert cold, and just wanted to poke its
head into the tent. It appears that the camel is now ready
to fully enter the tent, in the desert, and kick the original
B
inhabitant out altogether.
76. In any case we examine these propositions below,
as we are unable to convince ourselves that this Court
would have advocated such an illogical position,
particularly given our history of exclusion of people,
C on various invidious grounds, from portals of education
and knowledge. Surely, inasmuch as this Constitution
has been brought into force, as a constitutive document
of this nation, on the promise of justice—social,
economic and political, and equality—of status and
D opportunity, for all citizens so that they could live with
dignity and fraternal relations amongst groups of them,
it would be surprising that this Court would have
unhorsed the State to exclude anyone even though it
would lead to greater social good, because marks
secured in an entrance test were sacrosanct, and yet
E give the right to non-minority private educational
institutions to do the same. The knots of legal formalism,
and abandonment of the values that the Constitution
seeks to protect, may lead to such a result. We cannot
believe that this Court would have arrived at such an
F interpretation of our Constitution, and in fact below we
find that it has not.
(emphasis supplied)
138. No better articulation than the aforementioned is warranted
to hold the EWS reservation equally applicable to unaided private
G institutions. However, given that my analysis under question 3 on
‘exclusion’ holds the Amendment to be violative of the basic structure,
the question herein has been rendered moot.

H
JANHIT ABHIYAN v. UNION OF INDIA 383
[S. RAVINDRA BHAT, J.]

VII. Addressing other related challenges to, and A
justifications of the impugned Amendment
A. Possibility of reading down the exclusion
139. An argument made by some of the petitioners, was that the
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 B
that negates the exclusionary element, which offends the basic
structure.
140. The doctrine of reading down, has been employed by this
court, in the past, in numerous cases; however, in each instance, it has
been clarified that it is to be used sparingly, and in limited circumstances. C
Additionally, it is clear from the jurisprudence of this court that 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”84. In Delhi Transport Corporation v. DTC
Mazdoor Congress85 Sawant, J recounted the position on this doctrine D
succinctly:
“255. It is thus clear that the doctrine of reading down
or of recasting the statute can be applied in limited
situations. It is essentially used, firstly, for saving a
statute from being struck down on account of its E
unconstitutionality. It is an extension of the principle
that when two interpretations are possible — one
rendering it constitutional and the other making it
unconstitutional, the former should be preferred. The
unconstitutionality may spring from either the
incompetence of the legislature to enact the statute or F
from its violation of any of the provisions of the
Constitution. The second situation which summons its
aid is where the provisions of the statute are vague and
ambiguous and it is possible to gather the intentions of
the legislature from the subject of the statute, the context G
in which the provision occurs and the purpose for which
it is made. However, when the provision is cast in a
84
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600, para
326.
85
1991 Supp (1) SCC 600
H
384 SUPREME COURT REPORTS [2022] 14 S.C.R.

A definite and unambiguous language and its intention is
clear, it is not permissible either to mend or bend it even
if such recasting is in accord with good reason and
conscience. In such circumstances, it is not possible for
the court to remake the statute. Its only duty is to strike
it down and leave it to the legislature if it so desires, to
B
amend it….”
141. Therefore, when the intention is clear, and the text
unambiguous, the warning against employing this device of reading down,
has been consistent. In Minerva Mills, this court was faced with the
possibility of reading down to uphold a constitutional amendment, which
C was rejected as follows:
64. […] The device of reading down is not to be resorted
to in order to save the susceptibilities of the law-makers,
nor indeed to imagine a law of one’s liking to have been
passed. One must at least take the Parliament at its word
D when, especially, it undertakes a constitutional
amendment…
[…]
65. […] If the Parliament has manifested a clear
E intention to exercise an unlimited power, it is
impermissible to read down the amplitude of that power
so as to make it limited. The principle of reading down
cannot be invoked or applied in opposition to the clear
intention of the legislature. We suppose that in the
history of the constitutional law, no constitutional
F amendment has ever been read down to mean the exact
opposite of what it says and intends…”
142. 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
G 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.

H
JANHIT ABHIYAN v. UNION OF INDIA 385
[S. RAVINDRA BHAT, J.]

B. Absence of ‘guardrails’ to deny economic criteria per se A
143. The petitioners submitted that the Constitution has enacted
“guardrails” to control reservations based on social and educational
backwardness in the form of (1) mandating institutions; (2) tasking
institutions with evolving principles for identification of backward classes,
SC/STs; and (3) periodically reviewing lists of SC/STs and OBCs. These B
arguments-of lack of “guardrails” to counter economic criteria, per se,
are in my opinion, insubstantial. As elaborated in Part V, I have accepted
the contention that the guardrail of ‘adequate representation’ in Article
16, prohibits introduction of reservation based on economic criteria for
the purpose of public employment. The other arguments on absence of
guardrails, are dealt with presently. C

144. The explanation to Article 15(6) enlists the broadest criteria
of what constitutes “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 disadvantages”), upon
which legislation and executive policy can be built (and subject to D
subsequent challenge or scrutiny, if such a situation arises). The indicators
of economic deprivation, enacted through the explanation are income, or
such other criteria, including other traits which may be relevant. For the
purpose of evolving economic criteria as a separate or a new basis for
affirmative action, the indication of the broadest guideline of income, E
and other relevant criteria, are sufficient. The extent of income, relative
to income earning capacity, having regard to the state in question, or
areas in states, or extent of assets, are matters of detail which can be
factored into the policies of the state or the Union, having regard to the
felt necessities of the time, or circumstances.
F
145. As far as the existence of institutional guarantees in the form
of commissions or bodies, such as National Scheduled Caste and
Scheduled Tribe Commissions, Backward Class Commissions, etc., which
specific provisions (i.e., Articles 338, 338A, 338B, 340) of the Constitution
provide for are concerned, it is for the Union, or the states as the case
may be, to create these permanent bodies through appropriate legislation. G
In fact, the judgement of this court in Indra Sawhney had suggested
the creation of a permanent body to determine OBCs which led to the
setting up of the National Backward Class commission through a separate
Parliamentary enactment. Therefore, the absence of any such provision
enabling the setting up of a permanent institution per se cannot lead this H
386 SUPREME COURT REPORTS [2022] 14 S.C.R.

A court to conclude that the basic structure or essential features of the
Constitution are violated.
C. Basic structure doctrine as a discernible concept
146. Having perused the other opinions authored by members of
this bench, I am compelled to record my disagreement, and caution,
B relating to certain observations on the basic structure doctrine. In the
myriad challenges based on basic structure, the ones that succeeded,
have been based on violation of constitutional principles, such as judicial
review (Indira Gandhi, Minerva Mills, L. Chandra Kumar and P.
Sambamurty) independence of the judiciary (SCAORA case); rule of
C law, democracy and separation of powers (Indira Gandhi). To say that
this court thwarted policies, or more seriously, that it dictated policy, is
parlous, and tends to undermine the foundations of judicial functioning.86
In each instance when the court intervened and held an amendment to
be violative of the basic structure, the rule of law triumphed. For instance,
in Kesavananda Bharati itself, the court only held unconstitutional the
D part of a provision that upheld declaration in a law (whether made by
Parliament or the State) which stated that its objectives were to promote
Articles 38 and 39, thus excluding judicial scrutiny to discern whether
the law actually promoted any value of those directive principles. Such
wide and untrammelled power, to override Articles 14 and 19, were not
E left unchecked. On the other hand, the court upheld, in Raghunathrao
Ganpatrao, deletion of two provisions, which an eleven judge bench
had previously held to be “integral” to the formation of the nation, and
the Constitution.
147. Furthermore, the basic structure is not as fluid as is made out
F to be; the contours of what it constitutes have emerged, broadly speaking,
through various decisions. Can the value of democracy, be so nebulous,
“amorphous” or transient, that it can be undermined by succeeding
generations, as is suggested? Can the rule of law become rule by law,
which is the essence of autocracy and authoritarianism? Can the Orwellian
concept of an oligarchic equality be ever conceived as the essential
G principle of equality? Can liberty be subjected to indefinite incarceration
without trial or charges and yet remain of the same content, as to mean
what it means under Articles 21 and the Preamble? The answer has to
be a resounding negative in each of the cases. The basic structure may
86
J.B. Pardiwala, J cites with approval certain academic material in paragraph 124 of
H his draft opinion.
JANHIT ABHIYAN v. UNION OF INDIA 387
[S. RAVINDRA BHAT, J.]

not be a defined concept; it is however not indecipherable. The values A
which the court set out to guard, by the framing of that doctrine, are
eternal to every democracy, every free society: liberty, equality, fraternity,
social and economic justice.
148. The members of this bench, constituting the majority, have
relied on the test of validity of a constitutional amendment evolved in B
Bhim Singhji. I find it pertinent to highlight that in this decision the only
reference to the said test was by Krishna Iyer J. 87 who himself did not
indicate how Section 27 of the impugned Act (which was inserted as an
enactment in the IX th Schedule), amounted to a “shockingly
unconscionable or unscrupulous travesty of quintessence of equal
justice”. Similarly, the common judgment of Chandrachud J., and C
Bhagwati J., also was silent on this aspect. Tulzapurkar J., judgment
invalidated not only Section 27 but several other provisions of the Act
also. In these circumstances, the observations of Krishna Iyer J., as to
be the high threshold of violation of Article 14 in the context of insertions
of an enactment in the Ninth Schedule i.e. “shocking, unconscionable D
or unscrupulous travesty of the quintessence of equal justice”, has
limited application.
149. It is noteworthy that this judgment was taken into account by
the unanimous decision of a nine-judge bench in I.R. Coelho where the
appropriate test to determine whether insertion of an enactment into the E
Ninth Schedule, was finally settled. The court not only took note of
Kesavananda Bharati, Minerva Mills and Bhim Singhji but also
Waman Rao and held that the appropriate test would be the “impact” on
the right and also whether the “identity of the constitution” is changed
by way of the amendment or the enactment which is inserted through an
amendment. That aspect has been discussed in an earlier portion of this F
judgment. I.R. Coelho is also an authority that Article 14 and 15 principles
underlying them are integral parts of the basic structure of the
Constitution. In these circumstances, the test indicated by Krishna Iyer,
J. has been altered, to a different one, by I.R. Coelho.
D. Whether an enabling provision can violate the basic G
structure
150. The Union and other respondents had submitted that the
newly introduced provisions, through the impugned amendment, are
87
Bhim Singhji, paragraph 20.
H
388 SUPREME COURT REPORTS [2022] 14 S.C.R.

A merely enabling, and confer power upon the state, to make special
provisions and reservations, based on the economic criterion – thus, cannot
violate the basic structure. This view has also been accepted in the
opinion authored by Justice J.B. Pardiwala. I am of the considered opinion
that the argument that the provisions are enabling and therefore, do not
violate the basic structure (of the Constitution) is not substantial.
B
151. Previous decisions of this court have invalidated Constitutional
Amendments, even when containing merely enabling provisions. In L.
Chandra Kumar, the provisions in question were, inter alia, Articles
323A (2) (d) and 323B (3) (d), which read as follows:
C “Article 323A (1) Parliament may, by law, provide for
the adjudication or trial by administrative tribunals of
disputes and complaints with respect to recruitment and
conditions of service of persons appointed to public
services and posts in connection with the affairs of the
Union or of any State or of any local or other authority
D within the territory of India or under the control of the
Government of India or of any corporation owned or
controlled by the Government.
(147) A law made under clause (1) may-

E [….]
(d) exclude the jurisdiction of all courts, except the
jurisdiction of the Supreme Court under article 136,
with respect to the disputes or complaints referred to in
clause (1);
F ************** *****************
Article 323B (1) The appropriate Legislature may, by
law, provide for the adjudication or trial by tribunals
of any disputes, complaints, or offences with respect to
all or any of the matters specified in clause (2) with
G respect to which such Legislature has power to make
laws.
(2) The matters referred to in clause (1) are the
following, namely:-
[…]
H
JANHIT ABHIYAN v. UNION OF INDIA 389
[S. RAVINDRA BHAT, J.]

(3) A law made under clause (1) may- A
(a) provide for the establishment of a hierarchy of
tribunals;
(b) specify the jurisdiction, powers (including the power
to punish for contempt) and authority which may be
exercised by each of the said tribunals; B

I provide for the procedure (including provisions as to
limitation and rules of evidence) to be followed by the
said tribunals;
(d) exclude the jurisdiction of all courts, except the C
jurisdiction of the Supreme Court under article 136,
with respect to all or any of the matters falling within
the jurisdiction of the said tribunals…”
************** *****************
152. The court did not merely hold that the legal provisions, which D
enabled exclusion of jurisdiction of courts, violated any provision of the
constitution. It proceeded to hold that the provision which enabled the
enactment of a law, that excluded jurisdiction of courts, more
particularly the High Courts, and thus, shut out judicial review, violated
and destroyed the basic structure of the Constitution.
E
153. By the Constitution (Thirty Second Amendment) Act, 1973,
Article 371D was introduced, which inter alia, enabled the President to
set up Administrative Tribunals, in relation to areas in Andhra Pradesh.
Article 371D(5) was the subject matter of challenge before this court in
P. Sambamurthy. Article 371D(3) and (5) read as follow:
F
“The President may, by order, provide for the
Constitution of an Administrative Tribunal for the State
of Andhra Pradesh to exercise such jurisdiction, powers
and authority including any jurisdiction, power and
authority which immediately before the commencement
of the Constitution (Thirty-Second Amendment) Act, G
1973, was exercisable by any Court (other than the
Supreme Court) or by any Tribunal or other authority
as may be specified in the order with respect to the
following matters, namely:-
H
390 SUPREME COURT REPORTS [2022] 14 S.C.R.

A […]
(5) The order of the Administrative Tribunal finally dis-
posing of any case shall become effective upon its
confirmation by the State Government or on the expiry
of three months from the date on which the order is made.
B whichever is earlier;
Provided that the State Government may. by special order
made in writing for reasons to be specified therein,
modify or annul any order of the Administrative Tribunal
before it becomes effective and in such a case, the order
C of the Administrative Tribunal shall have effect only in
such modified form or be of no effect, as the case may
“e.”
154. This court held that the power under Article 371D(5), per
se, and not merely the exercise of it, was shockingly subversive of the
D rule of law:
“4. […] this power of modifying or annulling an order
of the Administrative Tribunal conferred on the State
Government under the proviso to Clause (5) is violative
of the rule of law which is clearly a basic and essential
E feature of the Constitution. It is a basic principle of the
rule of law that the exercise of power by the executive
or any other authority must not only be conditioned by
the Constitution but must also be in accordance with
law and the power of judicial review is conferred by
the Constitution with a view to ensuring that the law is
F observed and there is compliance with the requirement
of law on the part of the executive and other authorities.
It is through the power of judicial review conferred on
an independent institutional authority such as the High
Court that the rule of law is maintained and every organ
G of the State is kept within the limits of the law. Now if
the exercise of the power of judicial review can be set
at naught by the State Government by over-tiding the
decision given against it, it would sound the death/knell
of the rule of law. The rule of law would cease to have

H
JANHIT ABHIYAN v. UNION OF INDIA 391
[S. RAVINDRA BHAT, J.]

any meaning, because then it would be open to the State A
Government to defy the law and yet get away with it...”
155. Likewise, in R.C. Poudyal, the controversy was with respect
to reservations made in favour of a religious sect, i.e., the Buddhist
Sangha. The provision which enabled this reservation, was in Article
371F (f) which inter alia, reads as follows: B
“371F. Special provisions with respect to the State of
Sikkim
Notwithstanding anything in this Constitution,
(a) the Legislative Assembly of the State of Sikkim shall C
consist of not less than thirty members;
[…]
(f) Parliament may, for the purpose of protecting the
rights and interests of the different sections of the
population of Sikkim make provision for the number of D
seats in the Legislative Assembly of the State of Sikkim
which may be filled by candidates belonging to such
sections and for the delimitation of the assembly
constituencies from which candidates belonging to such
sections alone may stand for election to the Legislative
E
Assembly of the State of Sikkim;…”
156. The majority opinion upheld the amendment, and the
provision- not because it was an enabling provision, but that it dealt with
inclusion of new territory, and ensured historical continuity, of a state,
with its past traditions, and was part of the compact through which it
F
entered the Union. At the same time, the majority opinion, tellingly stated
that
“129. It is true that the reservation of seats of the kind
and the extent brought about by the impugned provisions
may not, if applied to the existing States of the Union,
pass the Constitutional muster. But in relation to a new G
territory admitted to the Union, the terms and conditions
are not such as to fall outside the permissible
constitutional limits. Historical considerations and

H
392 SUPREME COURT REPORTS [2022] 14 S.C.R.

A compulsions do justify in equality and special.
Treatment...”
Chief Justice L.M. Sharma, who wrote a dissenting opinion, held
that the provision which enabled reservation on the basis of religion, was
violative of the basic structure of the constitution.88
B 157. It is therefore, inaccurate to say that provisions that enable,
exercise of power, would not violate the basic structure of the Constitution.
The enabling provision in question’s basic premise, its potential to overbear
the constitutional ethos, or overcome a particular value, would be in
issue. The court’s inquiry therefore, cannot stop at the threshold, when
C an enabling provision is enacted. Its potential for violating the basic
structure of the Constitution is precisely the power it confers, on the
legislature, or the executive. To borrow a powerful simile from a dissenting
opinion in a decision of the United States Supreme Court, that upheld
broad use of emergency power, to incarcerate thousands of US citizens,
such enabling powers, if left alone, can “lie(s) about like a loaded
D weapon”89 with its potential to destroy core constitutional values.
158. In S.R. Bommai, although the validity of a Constitutional
amendment was not in issue, the nine-judge Bench made certain crucial
observations, with respect to use of power, under Article 356 of the
Constitution. The court stated that
E
“96. […] The Constitution is essentially a political
document and provisions such as Article 356 have a
potentiality to unsettle and subvert the entire
constitutional scheme. The exercise of powers vested
under such provisions needs, therefore, to be
F circumscribed to maintain the fundamental constitutional
balance lest the Constitution is defaced and destroyed.
This can be achieved even without bending much less
breaking the normal rules of interpretation, if the
interpretation is alive to the other equally important
G provisions of the Constitution and its bearing on them.
Democracy and federalism are the essential features of
our Constitution and are part of its basic structure. Any

88
Paragraph 50 and 54 (SCC).
89
Korematsu v. United States, 323 U.S. 214 (1944).
H
JANHIT ABHIYAN v. UNION OF INDIA 393
[S. RAVINDRA BHAT, J.]

interpretation that we may place on Article 356 must, A
therefore help to preserve and not subvert their
fabric…”
159. Therefore, the fact that impugned amendments have
introduced provisions which are merely enabling, does not protect it
from basic structure scrutiny. To view a newly added provision as only B
“enabling” can be an oversimplification in constitutional parlance. The
court’s concern is not with the conferment of power per se, but with the
width of it, lack of constitutional control, and the direct impact it can
have on principles constituting the basic structure.
E. Parallel with exclusion of creamy layer C
160. Another assumption that the exclusion of the creamy layer
can somehow be equated to, the exclusion that the impugned amendment
perpetrates, necessitates correction. As discussed previously, the
Constituent Assembly debates plainly show that Article 16(4) was included
with the intention of permitting representation and diversity. The other D
parameter was that without such a provision, the rule of equality of
opportunity [mandated by Article 16(1)] would not admit of positive
discrimination. Therefore, the idea of positive or compensatory
discrimination was intrinsic to the idea of equal opportunity – a fact
recognised and acknowledged as late as in M. Nagaraj. The idea that
Article 16(4) really is meant to ensure representation is also borne out E
textually, since the State is enjoined to ensure that “adequate
representation” is given to members of the backward classes. These
sections of society were hitherto barred access to public offices and
denied opportunity to representation in public affairs. If one keeps this in
mind, the matrix operating for reservation under Article 16(4) is one F
permitting diversity, representation, and eliminating discrimination.
161. The idea of introducing creamy layer, gained momentum for
the first time in K.C. Vasant Kumar v. State of Karnataka90 and was
recognised as a compulsion which the State had to adopt in carrying out
the exercise of identifying socially and educational backward classes. G
The rationale for identification and consequent exclusion of creamy layer
amongst the backward class is that there exists a segment or section
among the backward classes who have gained reservations and have
advanced socially and educationally. The criteria adopted by the States
90
K.C Vasanth Kumar v State of Karnataka, (1985) Supp SCC 714.
H
394 SUPREME COURT REPORTS [2022] 14 S.C.R.

A has been the level of advancement – reflected in the economic and
social status of such segments of society. Thus, if in the application of
such criteria, it is found that amongst the OBCs, sections have moved
forward and gained affluence, they are to be treated as advanced sections
of society. In other words, moving out of the grouping as backward
classes are deemed to be “forward”. Constitutionally speaking, Indra
B
Sawhney is an authority on this issue, i.e., that identification of creamy
layer among the OBCs is as such a duty of the State to ensure that
meaningful opportunities are given to the really backward. The corollary
is therefore, the caste status of those who form part of creamy layer
becomes irrelevant; and hence, they are not entitled to reservation under
C 15(4) or 16(4). Keeping all this in mind, the fact that some amongst the
OBCs (creamy layer) do not enjoy the benefit of reservation (under
15(4) and 16(4)) does not lend justification for excluding those who are
entitled to reservations under 15(4) and 16(4), due to their caste or social/
educational backwardness, for benefit under Articles 15(6) – which is a
reservation based on a different criterion, despite them being equally, or
D
even more deprived than those who belong to the forward caste.
F. Other justifications for the classification
162. I am unable to agree with the characterisation of the
classification in the impugned amendment as accepted by Dinesh
E Maheshwari, Bela Trivedi, and J.B. Pardiwala, JJ), for reasons set out
in Part III (D). I shall in this section, respond to specific conclusions
arrived at by the judges that constitute the majority.
(i) Reasonable classification to prevent double benefits
163. The allusion to over-classification and under classification,
F as the bases for exclusion in the context of the doctrine of classification
governing Article 14, cannot be denied as a matter of law. However, to
say that the non-inclusion of SC/ST and OBC communities - though the
largest segments of the poor are from amongst them, is mere reasonable
under- inclusion, cannot be accepted - especially in the context of a
G constitutional amendment. Reliance has been placed on State of Gujarat
v. Shri Ambika Mills91 and S. Seshachalam & Ors. v. Chairman Bar
Council of TN92. In Ambica Mills, the court upheld the legislative
91
State of Gujarat v. Shri Ambika Mills (1974) 4 SCC 656 (hereinafter, “Ambika
Mills”).
92
S. Seshachalam & Ors. v. Chairman Bar Council of TN (2014) 16 SCC 72 (hereinafter,
H “Seshachalam”).
JANHIT ABHIYAN v. UNION OF INDIA 395
[S. RAVINDRA BHAT, J.]

measure, which excluded establishment or persons, on the ground that A
the state’s policies to cover establishments, having regard to the objects,
was not defeated, and the classification, not fatal, because it left out
some classes of establishments having regard to their size. In
Seshachalam, the exclusion from payment of lump sum amount, under
an Advocate’s welfare scheme, of lawyers receiving pension from their
B
erstwhile employers, was held to not offend Article 14. Each of these
cases are not apt instances, for the purposes of this case. The use of the
term “double benefit” is discernible in the latter case. If one considers
that if pension was being introduced for professionals for the first time,
who had no other means of livelihood, when they gave up their avocation,
the exclusion of those who had their full run of employment, enjoyed C
pension from their erstwhile employer, and then joined the legal
profession, was justifiable, given that the State was assuming a burden
for the first time, and keeping apart resources for that purpose. This
classification was justified also on the basis of the principle in R.K. Garg
v. Union of India93, that in matters concerning economic policy, the
D
state has wider latitude.
164. It is worth recollecting that Mathew, J. in Ambica Mills
cautioned that one has to look beyond the classification. Else, the mind
boggles at the classification, resulting in its justification. As recognised
in some of the earliest decisions, the rule of classification is not the right
to equality (just as the rights are fundamental, not the restrictions). I E
wish to highlight at this juncture, what was said in Roop Chand Adlakha
v. Delhi Development Authority94 - “To overdo classification is to
undo equality.”
(ii) Scope of Article 46
F
165. In my considered opinion, it would be wrong to
characterize that the classification made for upliftment of SC/STs for
whom special mention is made, is a “classification” for the purpose of
upliftment of economically weaker sections, under Article 46, which
permits a later classification that excludes them. If anything, the intent
of Article 46 is to ensure upliftment of all poor sections: the mention of G
SC/STs is to remind the state that especially those classes should not be
left out. But ironically, that is exactly the result achieved by their exclusion.

93
(1981) 4 SCC 675
94
1989 Supp (1) SCC 116 H
396 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 166. There can be no debate that Article 46 is an injunction to the
State to take all steps to ameliorate the lot of economically weaker sections
of the society. That this injunction was not confined to only SCs/STs has
been widely accepted. In Indra Sawhney this aspect was recognized
and elaborated, by PB Sawant, J. who stated that economic backwardness
may not be the result of social backwardness:
B
“481. […] The concept of “weaker sections” in Article
46 has no such limitation. In the first instance, the
individuals belonging to the weaker sections may not
from a class and they may be weaker as individuals
only. Secondly, their weakness may not be the result of
C past social and educational backwardness or
discrimination. Thirdly, even if they belong to an
identifiable class but that class is represented in the
services of the State adequately, as individuals forming
weaker section, they may be entitled to the benefits of
D the measures taken under Article 46, but not to the
reservations under Article 16(4). Thus, not only the
concept of “weaker sections” under Article 46 is
different from that of the “backward class” of citizens
in Article 16(4), but the purpose of the two is also
different. One is for the limited purpose of the
E reservation and hence suffers from limitations, while the
other is for all purposes under Article 46, which
purposes are other than reservation under Article 16(4).
While those entitled to benefits under Article 16(4) may
also be entitled to avail of the measures taken under
F Article 46, the converse is not true. If this is borne in
mind, the reasons why mere poverty or economic
consideration cannot be a criterion for identifying
backward classes of citizens under Article 16(4) would
be more clear. To the consideration of that aspect we
may now turn.
G
[…]
576. Economic backwardness is the bane of the majority
of the people in this country. There are poor sections in
all the castes and communities. Poverty runs across all
H barriers. The nature and degree of economic
JANHIT ABHIYAN v. UNION OF INDIA 397
[S. RAVINDRA BHAT, J.]

backwardness and its causes and effects, however, vary A
from section to section of the populace. Even the poor
among the higher castes are socially as superior to the
lower castes as the rich among the higher castes. Their
economic backwardness is not on account of social
backwardness. The educational backwardness of some
B
individuals among them may be on account of their
poverty in which case economic props alone may enable
them to gain an equal capacity to compete with others.
On the other hand, those who are socially backward
such as the lower castes or occupational groups, are
also educationally backward on account of their social C
backwardness, their economic backwardness being the
consequence of both their social and educational
backwardness. Their educational backwardness is not
on account of their economic backwardness alone. It is
mainly on account of their social backwardness. Hence
D
mere economic aid will not enable them to compete with
others and particularly with those who are socially
advanced. Their social backwardness is the cause and
not the consequence either of their economic or
educational backwardness. It is necessary to bear this
vital distinction in mind to understand the true import E
of the expression “backward class of citizens” in Article
16(4).”
167. Therefore, that Article 46 covers a wider canvass, and includes
people who are poor, and whose poverty is not the result of social
backwardness, has been recognized always. To now say that the mention F
of SC/STs in Article 46, and provision of reservations for them, is sufficient
to distinguish them as a separate class, within Article 46, ignoring the
rationale for continued reservations in their favour, (i.e., due to social
exclusion) is to ignore important legal realities:
(a) That Article 46 comprehends all economically weaker sections G
of people, including SC/STs and OBC;
(b) The mention of SC/STs in Article 46 is a reminder to the state
never to ignore them from the reckoning whenever a measure towards
economic emancipation under Article 46 is introduced by the State.
H
398 SUPREME COURT REPORTS [2022] 14 S.C.R.

A (c) Article 46 existed from the beginning, and has been resorted
to for providing all manner of measures to assist the poorest segments
of society, irrespective of whether they are SCs/STs OBCs, such as
scholarships, freeships, amenities, and concessions.
(iii) EWS as a ‘compensatory’ measure
B 168. The characterisation of reservations for economically weaker
sections of the population (EWS) as compensatory and on par with the
existing reservations under Articles 15(4) and 16(4), in my respectful
opinion, is without basis. The endeavour of the Constitution makers was
to ensure that past discriminatory practices which had, so to say, eaten
C the vitals of the Indian society and distorted it to such an extent that
when the republic was created, an equal society was merely an illusion,
which compelled them to enact special provisions such as Article 16(4)
– and later Article 15(4), to ensure equality. It was not compensatory
but also reparatory. They continue to compensate, definitionally and in
reality, because even as on date, the acknowledged position is that
D reservations are necessary for SCs/STs and OBCs who are not part of
the creamy layer. On the other hand, the EWS category, was consciously
not made beneficiaries of reservations at the time of the framing of the
Constitution, because perhaps the framers felt that the enacted provisions
(including the soon to be added Articles 31A and 31B) and the slew of
E economic reforms which were enacted were sufficient to remove
economic disparities. That hope however, did not materialise. Economic
disparities (unconnected with social and educational backwardness)
continued – and perhaps were even exacerbated to such an extent that
as of now almost 25% of the population continue to live in abject poverty.
Indra Sawhney acknowledged that measures taken for their purpose
F would only result in “poverty alleviation”.
169. Therefore, to conclude that reservations for EWS based upon
the economic criteria is on par with reservations which the Constitution
mandated, and envisioned as a pledge to create an equal society, is
constitutionally unsound. The amendment which introduces new
G reservations does not “compensate”: unlike the protective and
compensatory reservations for socially and educationally backward
classes (and SC/STs) who were discriminated systemically and who
needed the “push” which is sought to be addressed by reservations, the
economically weaker sections who are conceived to be the targets (i.e.,
H forward classes) were never consciously discriminated against. Nor is it
JANHIT ABHIYAN v. UNION OF INDIA 399
[S. RAVINDRA BHAT, J.]

anyone’s case, that they faced social and other barriers which made it A
impossible for them to advance.
170. I am also of the opinion that the observations made in Indra
Sawhney - especially in paragraph 743 (SCC Reports) with respect to
other kinds of reservations, has to be read in the context of the observations
in N.M.Thomas and by the majority of judges in Indra Sawhney itself, B
which is that Article 16(1) permits classification and that the category of
reservations in accord with the than existing provisions of the Constitution,
favouring backward classes were stood exhausted by reason of Article
16(4). Illustratively therefore, the reservations in favour of sections
(such as persons with disabilities, transgenders etc.) would be covered
by the affirmative content of Article 16(1). It is in that sense that the C
observations made in Indra Sawhney have to be understood rather than
the court foreseeing an amendment to the Constitution which permitted
an entirely new section of the persons not based on social grouping, but
on an economic criterion as a target or recipients of reservations.
Therefore, these two categories of reservations cannot be compared. D
171. I cannot persuade myself to be sanguine about the fact that
the poorest of the poor do not comprise large sections of the backward
classes and even larger segments of the SCs/STs. The Sinho
Commission Report itself is a testimony to this fact, that amongst the
entire population of STs, 48% are the poorest; amongst the entire E
population of Scheduled Castes 38% are the poorest and amongst the
OBC’s no less than 33% are the poorest.
172. The fact that different forms of discrimination and even
untouchability still persists in society, impelled parliament as late as 2015
to amend the Scheduled Castes and the Scheduled Tribes (Prevention F
of Atrocities) Act 1989, by Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Act 2015. The statement of Object
and Reasons to the amendment, inter alia reads as follows:
“2. Despite the deterrent provisions made in the Act,
atrocities against the members of the Scheduled Castes G
and Scheduled Tribes continue at a disturbing level.
Adequate justice also remains difficult for a majority
of the victims and the witnesses, as they face hurdles
virtually at every stage of the legal process. The
implementation of the Act suffers due to (a) procedural
H
400 SUPREME COURT REPORTS [2022] 14 S.C.R.

A hurdles such as non registration of cases; (b)
procedural delays in investigation, arrests and filing of
charge-sheets; and (c) delays in trial and low conviction
rate.
3. It is also observed that certain forms of atrocities,
B known to be occurring in recent years, are not covered
by the Act. Several offences under the Indian Penal
Code, other than those already covered under section
3(2) (v) of the Act, are also committed frequently against
the members of the Scheduled Castes and the Scheduled
Tribes on the ground that the victim was a member of a
C Scheduled Caste and Scheduled Tribe. It is also felt that
the public accountability provisions under the Act need
to be outlined in greater detail and strengthened.”
173. The amendment enlarged and added the definition of certain
terms, and extended to discrimination on the grounds of economic boycott,
D social boycott and even changed the provision dealing with presumption
as to the offence making it more stringent.
174. It is also worth noting that according to the National Crime
Record Bureau Report titled – “Crime in India 2021”95:

E a) The total population of Scheduled Castes in entire country
(according to 2011 census) – 2013.8 lakhs, i.e., 20.13 crores.
b) Total crimes against Scheduled Castes in 2019 was 45961 and
2020 it was 50291 and in 2021, 50900. Of this about 20% constituted
crimes against Scheduled Caste and Scheduled Tribes (Prevention of
F Atrocities) Act, 1989.
c) As per same report, the total population of Scheduled Tribes in
the entire country (based on 2011 census report) is 1042.8 lakhs, i.e.,
10.42 crores.
d) The total crime reported and registered against Scheduled
G Tribes in 2019 was 7570; increased to 8272 in 2020, and 8802 in 2021.
e) Bulk of the crimes reported against Scheduled Tribes were
offences under Indian Penal Code, with a much smaller proportion of
offences under the Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act, 1989.
95
H Source: https://ncrb.gov.in/en/node/3721
JANHIT ABHIYAN v. UNION OF INDIA 401
[S. RAVINDRA BHAT, J.]

This data is demonstrative, that crime against those marginalized A
and stigmatized by caste, continue till this date. These legal developments
and statistics belie the perception that such classes which can benefit
from compensatory discrimination can be rightfully excluded from the
benefit of reservations for the poor. That view, in my opinion is
indefensible, and ignores stark realities.
B
175. If such explanations for the differentiations, or exclusions
are to be accepted, then this court will be paving the way for future
discriminations, through constitutional amendments, based on
constitutionally proscribed grounds. Even through the present
amendments, especially Article 15(6)(a), it is possible to create
corporations, and policies (not merely reservations) which can result in C
benefits to specific target groups and communities in forward castes,
which may far exceed the allocations for those covered by Articles 15(4)
and 16(4). When challenged, excessive budgetary allocations can
successfully be justified on the ground of classification, i.e. that those
who receive reservation and benefits under Articles 15(4) and 16(4) are D
different. Likewise preferential treatment, of communities, based on
descent may well be sanctioned through later constitutional amendments,
that may also be justified as a different basis, a class apart from others.
These possibilities cannot be ruled out, because what begins as a seemingly
innocuous alteration, may result in the “emasculation” and ultimate
annihilation of the grand principle of equality. E

G. The breach of the 50% cap – A note of caution
176. In view of my conclusions as recorded in this opinion – that
the impugned amendment is violative of the basic structure of the
Constitution, I find that there is no need for a specific finding on the 50% F
cap, or its breach of the basic structure; however I deem it necessary to
sound a note of caution, on the consequence of upholding the reservation,
thereby, breaching the 50% limit.
177. It is pertinent to note that the breach of the 50% limit is the
principal ground of attack, of the 76th Constitutional Amendment 1994 G
which inserted as Entry 257A – 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 in the IXth Schedule. The validity of that
enactment - and whether the inclusion by the constitutional amendment,
H
402 SUPREME COURT REPORTS [2022] 14 S.C.R.

A violates basic structure, is directly in issue in a batch of cases pending
before this court. The view of the members of this bench constituting
the majority - that creation of another class which can be a recipient of
up to 10% of the reservation, over and above 50%, which is permitted
under Articles 15(4) or 16(4), in my considered opinion, therefore, has a
direct bearing on the likely outcome in the challenge in that proceeding.
B
I would therefore sound this cautionary note since this judgment may
well seal the fate of the pending litigation - without the benefit of hearing
in those proceedings.
178. The last reason why I find myself unpersuaded to agree with
the opinion that the impugned amendments by creating a different kind
C of criteria, have to be viewed separately and that Indra Sawhney was
confined to reservations in Articles 15(4) and 16 (4) is because permitting
the breach of the 50% rule as it were through this reasoning, becomes a
gateway for further infractions whereby which in fact would result in
compartmentalization; the rule of reservation could dealt well become
D rule of equality or the right to equality, could then easily be reduced to
right to reservation - leading us back to the days of Champakam
Dorairajan. In this regard, the observations of Ambedkar have to be
kept in mind that the reservations are to be seen temporary and
exceptional or else they would “eat up the rule of equality”96.
E 179. In view of the above discussion, and given my conclusion on
the validity of the impugned amendment, I would respectfully prefer to
keep the question of violation of 50% rule open.
VIII. Conclusion
180. In the light of the above discussion, it is held that the principles
F of non-discrimination, non-exclusion and equality of opportunity to all is
manifested in the Constitution through the equality code, which is part of
its basic structure. Their link with fraternity, which the Preamble assures
is intrinsic to “dignity of the individual and unity and integrity of the
nation”, is inseparable. The framers of our constitution recognised that
G there can be no justice without equality of status, and that bereft of
fraternity, even equality would be an illusion as existing divisions and
“narrow domestic walls”97 would fragment society.

96
Constituent Assembly Debates, Vol. 7, 30 th November 1948, 7.63.205.
97
Rabindranath Tagore, ‘Where the Mind is Without Fear’, Gitanjali (1910).
H
JANHIT ABHIYAN v. UNION OF INDIA 403
[S. RAVINDRA BHAT, J.]

A. The principles of non-discrimination and fraternity in the A
constitutional ethos
181. The fraternal principle is deeply embedded to this nation’s
ethos and culture. The specific provisions which form part of the Equality
Code, are inextricably intertwined with fraternity as well. It is fraternity
– and no other idea, which acknowledges that ultimately, all individuals B
are human beings, born through the same natural process, subjected to
the same physical limitations, and finally leave this world at an unknown
time, but are sure to leave. Fraternity as a concept awakens humans to
the reality that despite our apparent or superficial differences – ethnic,
religion, caste, gender, origin or economic status – the institutions we
create need our collective cooperation and individual commitment. Every C
social order invariably contains individuals with differences – be it
grounded in ethnicity, wealth, talent, or realisation of one’s abilities; the
diversities abound. The idea of fraternity is to awaken the consciousness
of each member of society that the human institutions which they create,
the ideas they seek to develop, and the progress they wish to achieve, D
cannot be in isolation – by separation – but with cooperation and harmony.
182. Ours is a nation of multi-dimensional diversity. The
Constitution forges unity, and instructs people of this country about its
social goals, and the means to achieve it. By it, We the People, ”solemnly
resolve to … secure to all its citizens … Justice, Liberty and Equality, E
and to promote … Fraternity”. It reinforces national unity re-
emphasising the idea of oneness as people of India, first and foremost,
regardless of our regional, linguistic, religious, ethnic, economic, etc.,
diversities. In this context, fraternity is brotherhood. It focuses on concern
for others, and respect for and acceptance of differences of caste, gender,
ethnicity, economic status, religion, etc. People cannot be assured of F
Justice, Liberty or Equality, unless Fraternity in one form or another, to
some degree, is felt by individuals at each level of our social order, and
economic system.
183. It is essential that for the unity of this great nation, that we all
recognize that fraternity is the integrator, and unifier, which needs active G
propagation and practise, in tune with our preambular resolve to preserve
our Republic. Therefore, divisiveness of any form: in the polity, social
hierarchy, religion, origin, or regional destroys fraternity and undermines
unity. Divisiveness tends to polarize people and is likely to foster distrust.
Weakening fraternity therefore undermines justice, liberty, and equality. H
404 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 184. On this, I want to highlight the words of two social reformers,
which demonstrate that the principle of fraternity and the ideas and values
connected to it, are not new, but in fact, transcend time. Swami
Vivekananda’s message, in his address at the World Parliament of
Religions, in Chicago, on 11 th September, 1893 had the theme of
universal brotherhood of all, and that differences in religion, the exclusion
B
of one of another, would fade. He evocatively said that:
“If anybody dreams of the exclusive survival of his own
religion and the destruction of others, I pity him from
the bottom of my heart, and point out to him that upon
the banner of every religion will soon be written, in spite
C of resistance, ‘Help and not fight’, ‘Assimilation and
not Destruction’, ‘Harmony and Peace and not
dissension’.”
Sri Aurobindo too, was conscious of the need for fraternity. In a
speech delivered in Howrah, on 27 June, 1909, he presciently said:
D
“Again, there is fraternity. It is the last term of the gospel.
It is the most difficult to achieve, still it is a thing towards
which all religions call and human aspirations rise.
There is discord in life, but mankind yearns for peace
and love. This the reason why the gospels which preach
E brotherhood spread quickly and excite passionate
attachment. This was the reason of the rapid spread of
Christianity. This was the reason of Buddhism’s spread
in this country and throughout Asia. This is the essence
of humanitarianism, the modern gospel of love for
F mankind. None of us have achieved our ideals, but
human society has always attempted an imperfect and
limited fulfilment of them. It is the nature, the dharma of
humanity that it should be unwilling to stand alone. Every
man seeks the brotherhood of his fellow and we can
only live by fraternity with others. Through all its
G differences and discords humanity is striving to become
one.”
185. Thus, one-ness, inclusiveness, humanism and the idea that
not only are all equal, and should have equal opportunities, and the content
of each one’s rights be no different from the other, but also that all stand
H together, and for each other, is a powerful precept. This precept suffuses
JANHIT ABHIYAN v. UNION OF INDIA 405
[S. RAVINDRA BHAT, J.]

every provision of Part III of the Constitution, especially Articles 14-18, A
38-39 and 46.
186. This intrinsic value of fraternity, its intricate connection with
justice, liberty, and equality, assuring the dignity of the individual are
steeped in the constitutional jurisprudence of this nation. The constitution
does not merely bind the institutions it creates and regulate their action, B
confer rights on individuals, but it is also a “pact between people” and is
a charter given on to themselves defining their conduct with each other.98
In my opinion, this value of fraternity is as much a part of the equality
code, and its facets – equality of opportunity, the principle of non-
discrimination and the non-exclusionary principle, as it inextricably binds
them with the concepts of liberty and freedom. Building upon the simile C
used by Chandrachud, J of the basic structure of the Constitution being
“woven out of the conspectus of the Constitution” - equality and
justice are the warp and weft of the constitutional fabric: with liberty,
fraternity, and dignity, lending it richness in colour.
187. The exclusionary clause (in the impugned amendment) that D
keeps out from the benefits of economic reservation, backward classes
and SC/STs therefore, strikes a death knell to the equality and fraternal
principle which permeates the equality code and non-discrimination
principle.
188. The concepts which our Constitution fosters, and the principles E
it engenders – equality, fraternity, egalitarianism, dignity, and justice (at
individual and social levels) are all inclusive, all encompassing. The
equality code in its majestic formulation (Article 14, 15, 16 and 17)
promotes inclusiveness. Even provisions enabling reservations foster social
justice and equality, to ensure inclusiveness and participation of all sections F
of society. These provisions assure representation, diversity, and
empowerment. Conversely, exclusion, with all its negative connotation –
is not a constitutional principle and finds no place in our constitutional
ethos. Therefore, to admit now, that exclusion of people based on their
backwardness, rooted in social practice, is permissible, destroys the
constitutional ethos of fraternity, non-discrimination, and non-exclusion. G
B. Summary of findings in Questions 1-3
189. On Question 1, it is held that the states’ compelling interest
to fulfil the objectives set out in the Directive Principles, through special
98
Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727. H
406 SUPREME COURT REPORTS [2022] 14 S.C.R.

A provisions on the basis of economic criteria, is legitimate. That reservation
or special provisions have so far been provided in favour of historically
disadvantaged communities, cannot be the basis for contending that other
disadvantaged groups who have not been able to progress due to the ill
effects of abject poverty, should remain so and the special provisions
should not be made by way of affirmative action or even reservation on
B
their behalf. Therefore, special provisions based on objective economic
criteria (for the purpose of Article 15), is per se not violative of the basic
structure.
190. However, in answer to Question 3, I have highlighted that
the framework in which it has been introduced by the impugned
C amendment – by excluding backward classes -– is violative of the
basic structure. The identifier for the new criteria-is based on deprivation
faced by individuals. Therefore, which community the individual belongs
to is irrelevant. An individual who is a target of the new 10% reservation
may be a member of any community or class. The state does not – and
D perhaps justly so - will not look into her background. Yet in the same
breath, the state is saying that members of certain communities who
may be equally or desperately poor (for the purposes of classification
identification) but will otherwise be beneficiaries of reservation of a
different kind, would not be able to access this new benefit, since they
belong to those communities. This dichotomy of on the one hand, using a
E neutral identifier entirely based on economic status and at the same
time, for the purpose of exclusion, using social status, i.e., the castes or
socially deprived members, on the ground that they are beneficiaries of
reservations (under Article 15(4) and 16(4)) is entirely offensive to the
Equality Code.
F 191. A universally acknowledged truth is that reservations have
been conceived and quotas created, through provision in the Constitution,
only to offset fundamental, deep rooted generations of wrongs
perpetrated on entire communities and castes. Reservation is designed
as a powerful tool to enable equal access and equal opportunity.
G Introducing the economic basis for reservation – as a new criterion, is
permissible. Yet, the “othering” of socially and educationally
disadvantaged classes – including SCs/ STs/ OBCs by excluding them
from this new reservation on the ground that they enjoy pre-existing
benefits, is to heap fresh injustice based on past disability. The
exclusionary clause operates in an utterly arbitrary manner. Firstly, it
H
JANHIT ABHIYAN v. UNION OF INDIA 407
[S. RAVINDRA BHAT, J.]

“others” those subjected to socially questionable, and outlawed practices A
– though they are amongst the poorest sections of society. Secondly, for
the purpose of the new reservations, the exclusion operates against the
socially disadvantaged classes and castes, absolutely, by confining them
within their allocated reservation quotas (15% for SCs, 7.5% for STs,
etc.). Thirdly, it denies the chance of mobility from the reserved quota
B
(based on past discrimination) to a reservation benefit based only on
economic deprivation. The net effect of the entire exclusionary principle
is Orwellian, (so to say)99 which is that all the poorest are entitled to be
considered, regardless of their caste or class, yet only those who belong
to forward classes or castes, would be considered, and those from socially
disadvantaged classes for SC/STs would be ineligible. Within the narrative C
of the classification jurisprudence, the differentia (or marker)
distinguishing one person from another is deprivation alone. The exclusion,
however, is not based on deprivation but social origin or identity. This
strikes at the essence of the non-discriminatory rule. Therefore, the total
and absolute exclusion of constitutionally recognised backward classes
D
of citizens - and more acutely, SC and ST communities, is nothing but
discrimination which reaches to the level of undermining, and destroying
the equality code, and particularly the principle of non-discrimination.
192. Therefore, on question 3, it is clear 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 E
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
non-discrimination and non-exclusion which forms an inextricable
part of the basic structure of the Constitution. F
193. While this reasoning is sufficient to conclude that Article
16(6) is liable to be struck down, there are additional reasons (elaborated
in Part V), due to which this court is compelled to clarify that while the
‘economic criteria’ per se is permissible in relation to access of public
goods (under Article 15), the same is not true for Article 16, the goal of G
which is empowerment, through representation of the community.

99
George Orwell, Animal Farm where idea of equality is explained allegorically, through
the example of a society comprising of animals who have seized control, by one of them
saying that the rule ‘All animals are equal’ reads that ‘All animals are equal but some
animals are more equal than others’.ps://ncrb.gov.in/en/node/3721 H
408 SUPREME COURT REPORTS [2022] 14 S.C.R.

A 194. On the point of Question 2, this court is in agreement that
unaided private educational institutions would be bound under Article
15(6) to provide for EWS reservations. However, given that the analysis
under Question 3 on ‘exclusion’ leads to the conclusion that the
Amendment is violative of the basic structure, the question herein has
been rendered moot.
B
195. For the above reasons, it is hereby declared that Sections 2
and 3 of the Constitution (One Hundred and Third Amendment) Act,
2019 which inserted clause (6) in Article 15 and clause (6) in Article 16,
respectively, are unconstitutional and void on the ground that they are
violative of the basic structure of the Constitution.
C
196. The writ petitions and other proceedings are consequently,
disposed of, in the above terms. There shall be no order as to costs.
197. It would be in order to place my gratitude and appreciation
for the valuable assistance rendered by all counsels who appeared and
D made submissions during the course of the hearings, i.e., K.K. Venugopal,
Attorney General for India, Tushar Mehta, Solicitor General of India,
Ms. Meenakshi Arora, Mr. Sanjay Parikh, Prof. Ravi Verma Kumar,
Mr. Salman Khurshid, Mr. P. Wilson, Dr. K. S. Chauhan, Mr. Gopal
Sankaranarayanan, Mr. Mahesh Jethmalani, Mr. Niranjan Reddy, Ms.
Vibha Makhija, senior advocates; and Prof (Dr) G. Mohan Gopal, Mr.
E Yadav Narender Singh, Mr. Shadan Farasat, Ms. Diya Kapur, Dr. M. P.
Raju, Mr. Kaleeswaram Raj, Mr. Pratik R. Bombarde, Mr. Akash
Kakade, Mr. Kanu Agrawal, Mr. V.K. Biju, advocates; and all the other
counsels that assisted them.

F
O R D E R*
1. These matters have been disposed of today by pronouncement
of four separate judgments rendered by Hon’ble Mr. Justice Dinesh
Maheshwari, Hon’ble Mr. Justice S. Ravindra Bhat, for himself and on
behalf of the Hon’ble the Chief Justice; Hon’ble Ms. Justice Bela M.
G
Trivedi; and, Hon’ble Mr. Justice J.B. Pardiwala.
2. In view of the decision rendered by the majority consisting of
Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M.

*
H Ed. Note: Common Order of the Court.
JANHIT ABHIYAN v. UNION OF INDIA 409

Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, the challenge raised to A
103rd Amendment to the Constitution fails and the decision rendered by
Hon’ble Mr. Justice S. Ravindra Bhat remains in minority.
3. Consequently, the Writ Petitions and other proceedings stand
disposed of.
B
Bibhuti Bhushan Bose Writ petitions and
(Assisted by : Mahendra Yadav, LCRA) other proceedings disposed of.

C

D

E

F

G

H