Bulk Of Poor Belongs To SC/ST/OBC Categories, Excluding Them From EWS Quota Arbitrary & Discriminatory : Supreme Court's Minority View

The Supreme Court Court Constitution Bench has by 3:2 majority upheld the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. While Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment to strike it down. Chief Justice of India Uday Umesh Lalit concurred with the minority view of Justice Bhat.

In their dissenting judgment however, Chief Justice of India UU Lalit and Justice S Ravindra Bhat said that reservation on economic criteria is per se not violative. Justice Bhat held that economic criteria can be used to provide reservation in education under Article 15 but not for the purpose of reservation in jobs under Article 16.

"...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 which is empowerment, through representation of the community", Justice Bhat's judgment stated.

This article details the views expressed in the dissenting opinion by the bench.

I. Classification Under 103rd Amendment Contradictory To The Essence Of "Equal Opportunity"

At the very outset, Justice Bhat, while regretting his inability to concur with the views expressed by the majority, stated that–

"This court has, for the first time in the seven decades of the Republic, sanctioned an exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion. In my considered opinion the amendment is the language of exclusion and violates the principle of justice, and thereby the basic structure."

Elaborating further upon his opinion, Justice Bhat stated that the application of the doctrine of classification differentiated between the poorest sections of the society– one segment which consisted of the poorest of forward classes and other, the poorest who were subject to additional disabilities due to caste stigmatisation. He stated that the amendment was keeping the latter out of the new reservation benefit by making us believe that those getting social and educational backwardness based reservations were somehow more fortunate. This classification, as per Justice Bhat, was clearly "contradictory to the essence of equal opportunity." He added–

"If the Constitution means anything, it is that Articles 15(1), 15(2), 15(4), 16(1), 16(2) and 16(4) are one indefeasible code. This court has reiterated time and again that Articles 16(1) and 16(4) are the facets of the same equality principles. The characterisation of including the poor, that is, those who are qualified for economic eligibility among those under Articles 15(4) and 16(4) in the new reservation under 15(6) and 16(6) as bestowing double benefits is incorrect."

The dissenting opinion highlighted that the benefits granted to backward classes under the Constitution, could not be understood as a "free pass" as they were a reparative and compensatory mechanism meant to level the field, granted to those who had been unequals due to social stigmatisation. Justice Bhat, while reading out the dissent stated that excluding backward classes from the ambit of Articles 15(6) and 16(6) violated the non-exclusionary and non-discriminatory facet of equality code which thereby violated the basic structure of the Indian Constitution.

II. Granting Benefits To Poor Permissible, Excluding Backward Classes Impermissible

The dissenting opinion clarified that granting benefits to the destitute or economically weaker sections of the society was not impermissible. However, it was the exclusion of backward classes from such benefits which was impermissible. Justice Bhat remarked–

"Destitution and economic poverty are markers of intelligible differentia forming the basis of the classification of which the impugned amendment is premised, on which ground the constitutional amendment is indefeasible. However, by excluding a large number of equally poor and destitute individuals based on social backwardness on legally acknowledged class stigmatisation, the amendment practises constitutionally prohibited forms of discrimination. The overarching principles on which 15(1), 15(2), 16(1) and 16(2) are based on, is that the practice of discrimination is impermissible...Such exclusion strikes at the heart of the equality code, specifically the non-discriminatory facet."

The opinion further highlighted that as per the Sinoh Commission Report, which was published in July 2010, based upon census of 2001 and statistics of 2004-2005, in all 31.7 crore people who were below poverty line, the SC population was 7.74 crore, which is 38% of the total SC population; ST population was 4.25 crore, which is 48% of total ST population; OBC population was 13.86 crores, which is 33.1% of total OBC population in the country and; the General category was 5.5 crore, which is 18.2% of the total general category population in India. Justice Bhat stated–

"These facts establish that the bulk of the economically weaker sections of the society belong to the classes which are described in Articles 15(4) and 16(4)."

III. State Can Make Provisions For Reservations For Admissions In Private Unaided Institutions

Regarding the question on whether the State could make provisions for reservations for admission in private, unaided institutions, Justice Bhat and CJI UU Lalit's opinion concurred with the majority. The opinion stated–

"As held in Pramati & Society for Unaided Private Schools, reservations in private institutions are not per se violative of basic structure. Thus, reservations as a concept cannot be ruled out. They (private, unaided institutions) may not be the State and State instrumentalities but these institutions also constitute material resources of the community in which the State has a vital interest. They are not merely set up because of the private and interests of the founders like shareholders in companies. Therefore, I hold that on the question 2, the amendment is valid but for the reasons of answering question 3, the amendment has to go."

IV. Breach Of 50% Ceiling Limit Would Lead To "Compartmentalisation" ; Reservations AreTemporary And Exceptional

Justice Bhat stated that caution had to be exercised in dealing with the issue pertaining to the 50% ceiling limit as the breach of 50% limit was the principal ground of attack to the 76th Constitutional Amendment, 1994, which had been challenged in a batch of petitions pending before the Supreme Court. he added–

"The view of the members constituting this bench on the creation of another class which can be the recipient of up to 10% of reservations over and above 50% permitted under Article 15(4) and 16(4), in my considered opinion, therefore has a direct bearing on the likely outcome in the challenge in that case."

Therefore, while exercising caution in that regard, Justice Bhat stated that permitting the breach of the 50% rule become "a gateway of further infractions which in fact would result in compartmentalisation." He added–

"The rule of equality would then be reduced to the right of reservation, leading us back to the days of Champakam Dorairajan. In this regard the observations of Ambedkar have to be kept in mind that reservations are to be seen as temporary and exceptional or they could eat up the rule of equality."

V. Fraternity Embedded In India's Ethos & Culture

As departing comments, Justice Bhat stated that the fraternal principle was deeply embedded to the nation's ethos and culture. He said–

"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 says that ultimately all individuals are human beings, all go through the same natural process, subject to the same physical limitations, and finally will leave this world. The idea of fraternity is to awaken to the consciousness of each member of society that the institution which are created, the ideas we develop, and the progress we want cannot be without cooperation and harmony."

He also narrated an excerpt from Swami Vivekananda's speech in Chicago in 1893–

"In the face of this evidence, if anybody dreams of the exclusive survival of his own religion and the destruction of the 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 of resistance: 'Help and not fight', 'Assimilation and not Destruction', 'Harmony and Peace and not Dissension'."

VI. Summary of the Dissent

1. Whether the 103rd Constitution Amendment is violative of basic structure for providing reservation solely on the basis of economic criteria?

On this question, it was held that the State's compelling interest to fulfil the object set out in the directive principles through special provisions on the basis of economic criteria was legitimate. It was held that–

"Special provisions made on objective economic criteria is per se not violative. Reservation is designed as a powerful tool to enable equal access and equal opportunities. Introducing economic basis for reservations as a new category is permissible."

2. Whether the amendment is violative of basic structure for excluding the poor among the SC/ST/OBC categories from EWS Quota?

As per the dissent, the exclusion of backward classes was violative of basic structure. On this note, Justice Bhat stated–

"The othering of socially and economically backward sections, including SCs, STs and OBCs, by excluding them based on no other ground but that they enjoy pre-existing benefits is to reap fresh injustice based on caste disability. The exclusionary clause operates in an utterly arbitrary matter. First, it others those subjected to socially questionable and outlawed practises. Secondly, for the purpose of new reservations, the exclusion operates against socially disadvantaged groups absolutely by confining them within their allotted reservation quota. Thirdly, it denies a chance of mobility from reserved quotas based upon caste discrimination, to a reservation benefit based only on economic criteria. The entire exclusionary principle is Orwellian so to say that all are entitled to be considered regardless of their caste or class, yet only those who belong to other classes or caste would be considered and socially disadvantaged classes would be ineligible."

As per the opinion, the total exclusion of constitutionally recognised backward classes was nothing but discrimination which reached to the level of undermining and destroying the equality code, particularly the principle of non-discrimination. Therefore, the impugned amendment was held to be arbitrary as resulting in hostile discrimination of SEBCs. 

It was held that–

"While the economic criteria is per se permissible in relation to access to public goods under Article 15, the same was not true for Article 16, the role of which was empowerment through representation in the community."

For summary of the arguments raised in the court, refer to this report.

CASE TITLE: Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues

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