Reservation An Exception To General Rule Of Equality; Enabling Provisions Do Not Form Basic Feature Of Constitution: Supreme Court

The Supreme Court observed that the reservation is an exception to the general rule of equality and thus cannot be regarded as basic feature of the Constitution.

One of the main defence raised by the Centre was that the 103rd Constitutional amendment is enabling, and confer power upon the state, to make special provisions and reservations, based on the economic criterion – thus, cannot violate the basic structure.

The majority judgment by Justice Dinesh Maheshwari held thus and added that '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'. The judge observed:

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, 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 be invoked for laying a challenge to the 103rd Amendment. [Para 101]

Referring to some essays on the Basic Structure Doctrine, Justice JB Pardiwala observed:

"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 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 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 Constitution would be legitimately sustained."

According to minority opinion authored by Justice S. Ravindra Bhat it is 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 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 weapon" with its potential to destroy core constitutional values".

The judge added that the 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 "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.", Justice Bhat observed.