The sixth judge

1. Out of all the skills a person possesses, the most important skill is to judge. We all are judges of our life. Decisions that shape our life and our relation with the outer world are based? on our judgments. In the legal field too, it is not only? judges who judge. Onus is also on the lawyers to be a good judge of their brief. It's because? persuasive communication demands a matching perspective. The perspective of a judge can be understood only by one who can? judge the strength of her case objectively, as a third person, like the judge herself. A pleader is supposed to keep the best outcome of her case at the center stage of her mind at the time of making submissions. The fairness of submission, is again, an act of balancing between the duty to assist the court with all fairness and subserving the best interest of her client. This makes the role of a pleader a little more complex and onerous, than the judges, I believe.
2. As a student of law, our role of judging, questioning or critically evaluating the judgment continues even after the judge delivers the judgment. If we do not critically appreciate a judgment delivered, we would face a major handicap in our ability to contribute in the evolution of law for the betterment of society.?
3. Recently, a bench of five judges of the Supreme Court of India delivered a judgment on the constitutional validity of Constitution (One hundred and third) Amendment Act,2019 that provides? for reservation to the economically weaker Section, popularly called as EWS. The bench delivered four judgments. Three judges, by their three separate judgments, upheld the validity of the amendments and the two other judges, including the then Chief Justice of India, delivered a dissenting opinion, disapproving the constitutionality of the impugned amendments.?
4. Had I been the sixth judge, what would have been my decision in the case? I make a humble endeavor to judge these judgments.? My limitations are obvious. By no means I can draw a parallel between myself and the Hon’ble judges given their ability driven by vast experience and the strength of the valuable assistance they got while hearing the case. But at the same time I have the benefit of elucidated opinions of five Hon’ble judges.? The attempt here is only to educate myself. It is the same way when a student tries to learn a subject as if he is going to deliver a lecture of a teacher.? I’ll go without citing references of the previous judgments, assuming them to be understood and focus only on the principles, of course, keeping in view the settled law.?
5. The 103rd amendment is an enabling provision added to the Constitution of India as Art. 15(6) and Art. 16(6). The former enables the State to provide reservation to Economically weaker section of citizens, other than SC, ST or OBC, in admission to educational institutions subject to the upper limit of 10% (over and above the reservation already provided for) and the latter provides for the similar reservation in public sector employment for the same class - EWS, other than SC, ST and OBC.
6. After the judgment of Keshavananda Bharati, the plenary power of the parliament to amend the constitution has got only one limitation, that is, the amendment must not tinker with the basic structure of the constitution.? Therefore, the broad issue for consideration is whether the amendment brought in the constitution changes its basic structure or its basic features. I’ll discuss the scope and ambit of the basic feature a little later. Let us first appreciate the grounds on which the amendment is said to have violated the basic structure. They are following:

• Carving out a class of Economically weaker section (EWS) for the purpose of reservation, is not permissible. As it is violative of equality, which is the basic feature of the constitution.?This ground is further elaborated with the following contentions:?
• The concept of reservation in the constitution is based on amelioration of historical injustice, prominently caused by untouchability and lack of equal opportunity of education. These classes are recognized under the constitution as socially and educationally backward classes of citizens or the Scheduled caste and scheduled tribe under Art. 15(4) and 15(5); and any backward class not adequately represented in the services under the State, under Article 16(4) of the constitution. Therefore, reservation is a constitutional measure? available for upliftment of socially and educationally backward classes only. Making the same ameliorative tool available for the non-backward, economically weaker section of population, will demolish the basic foundation of the constitution, as in the case of EWS, there is absence of historical deprivation or social backwardness.
• Reservation to a backward class in appointment or posts [u/a 16(4)] is to ensure adequate representation of the class in the services under the State. Since, ensuring adequate representation is neither the objective nor a pre-condition for reservation for EWS, the same is violative of the equality clause of the constitution.
• The EWS reservation excludes SC, ST and OBCs from its ambit. The exclusion is a caste based discrimination, impermissible under the constitution. The classification itself is bad as it is not based on a reasonable differentia.? Hence, the exclusion of the SC, ST and OBC from the ambit of the economically weaker section of society is violative of the basic foundation of the constitution.
• The 10%? reservation for EWS, provided by the amended provision, exceeds the upper limit of 50% for? reservation, hence the same is violative of equality, as a basic feature of the constitution.?
• The provision for EWS under the amended provision may be construed in consonance of Article 15(4) and Art. 16(4)? so as to read “other than SC, ST and OBC”? as “in addition to SC, ST and OBC” to include the socially and economically backward class of citizens and SC and STs under the purview of the EWS category.?

7. ANALYSIS:? Let me analyze the above noted contentions.?

Basic Structure

1. The notion of basic structure needs to be understood without getting into the jumble of references and quotes from previous judgments. The concept of basic feature suggests, if one makes a change into it, the constitution itself would change. The basic principle is that - amendment doesn’t mean re-creation. So, the amendment in the constitution should not be of a nature that it gives birth to a new constitution itself. If the constitution is no longer the same constitution, if by amendment its fundamentals have been changed, it can be said that basic structure has been violated.?
2. If we take the analogy of a building, what would be its basic structure? The future generation can make renovations, may change the color, may sometimes add floors too. But when the basic structure of the building (framed by its pillars, boundaries, materials, height etc.)? are changed in the manner that the building is no longer identifiable as the same building, it would not be called a change, it would be called as construction of a new building itself. That's how the test of identity has evolved. The question to be asked is - has the identity of the constitution been lost after the amendment?
3. Identity of a constitution depends on its basic principles. The Preamble of our constitution outlines the basic principles of the constitution.? But is the preamble limit of its identity? Can change in a provision of the constitution not have the impact of demolishing the fundamental principle of the constitution? That is how the “impact test” has evolved. If the impact of the amended provision is such that it demolishes the fundamental principle of the constitution, so that the constitution no longer remains fundamentally the same, it would be said to have violated the basic structure of the constitution.?
4. Basic principles of the constitution run like an undercurrent. Like blood in the body. There may be provisions under the constitution which may not expressly talk about the fundamental principle but if that principle is withdrawn from the provision, the provision would appear like a body without blood.?
5. The present case involves the concept of “equality”. The fundamental rights of equality are enshrined under Article 14 to 18 of the constitution. Isn’t equality as a principle that runs as an under-current in the entire body of the constitution? See, how. Antithesis of equality is discrimination and arbitrariness. Can any provision of the constitution support arbitrariness and discrimination? For a democratic republic, equality of status, equal protection of law or rule of law is a sine qua non. Therefore, if equality is drained out of the body of the constitution, it would no longer be the same constitution the founding fathers had envisaged it to be.?
6. Suppose an amended provision is like a puncture in the body of the constitution, which has the potential of draining out the blood of equality from the body of the constitution.? Would it not be safe to say that the amended provision has the potential of killing the spirit of the constitution, hence, not permissible.
7. Constitutional Provision: Our constitution prohibits discrimination against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them under Art. 15 (1) and 15(2). The constitution at the same time provides for special provision for women and children under Art. 15(3), which means the State may make a provision in? favour of women and children. Article 15(3) starts with the phrase “Nothing in this article shall prevent”. That means, while Articles 15(1) and 15(2) proscribe discrimination on the basis of sex, but that would not prevent State from making any special provision in favour of women and children.? The right against non-discrimination under the proscribed grounds under art. 15(1) and 15(2) as a principle of formal equality is subject to the rider of Art. 15(3) meant to do substantive equality.?
8. Similarly, article 15(4) brought through the first amendment of the constitution, speaks for the special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or for the Scheduled Tribes. Article 15(5) enables the State to make special provision, by law, for the advancement of the aforesaid class in relation to admission in educational institutions including private educational institutions, other than minority educational institutions.?
9. One of the impugned amended provisions is article 15(6). It copies the special provision of article 15(4) and article 15(5) and makes it applicable with an entirely new class, i.e., economically weaker sections of citizens other than the classes mentioned in clause (4) and (5).? The amended Clause (6)(b) makes a difference with the previous clauses of (4) and (5) by saying, “which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten percent of the total seats in each category.?
10. Therefore, the impugned amendment of art. 15(6) enables State to provide for reservation in educational institutions for economically weaker sections of citizens [other than classes covered under clause (4) and (5)], in a similar fashion as has been provided to any socially and educationally backward classes of citizens or for the Scheduled Castes or for (4) and 15(5).? However, it makes clear that the reservation will be in addition to the existing reservations and subject to a maximum of 10% of total seats in each category. The clause, “in addition to the existing reservations” allows it to go beyond the ceiling cast by judicial pronouncements for an upper limit of 50% of reservation, except in exceptional circumstances.
11. The explanation appended with the amended Article 15(6) states that EWS for the purpose of this article as well as for article 16(6) shall be notified from time to time on the basis of family income and other indicators of economic disadvantage.?
12. I will deal with the other impugned amendment of article 16(6) a little later. Before that I propose to examine the validity of article 15(6) first on the anvil of the concept of basic structure, discussed above. I shall also examine this provision from the point of view of exclusion of Socially and economically backward classes or SC or ST from this provision.?
13. Article 15 is meant, inter-alia, for non-discriminatory use (on the grounds of religion, race, caste, sex or place of birth) of places of public resort maintained wholly or partly by state funds or dedicated to the use of general public, special provisions had already been made for two classes. For women and children and for socially and educationally backward or SC or ST. Now, with this amendment, a new class of economically weaker section of citizens other than SEBC, SC or ST, has been created.?
14. Enabling provision for making special provision for a certain class is required, only if the classification is otherwise impermissible due to article 15(1) and 15(2), and in the matter of public employment, under article 16(1) and 16(2). It is to be emphasized that all the enabling provisions under Art. 15 and 16 starts with the clause, “nothing in this article shall prevent the State”.? In my opinion, while classification on the basis of religion, race, caste, sex or place of birth is impermissible, unless the constitution enables the State to do so, classification on the basis of “non proscribed grounds”, such as, economic condition of the class of citizens, is per-se permissible under the constitution. Such classification, or reasonable differentia, on the basis of “non proscribed grounds” would not even need any enabling provision under the constitution. Since, determination of class for reservation for socially and educationally weaker class or SC or ST is also based on the caste, such an enabling provision was required. Otherwise, the provision would not have passed the test of non-discrimination on the ground of caste. But in case, State has to make some special provision for a class, classification of which is not based on any of those proscribed grounds, State can do so because such classification is not prohibited under the constitution.?
15. Since, the class of EWS (Economic Weaker Section) of citizens is per-se permissible under the constitution and no enabling provision was required for creating this class for making special provision for them, the enabling provision brought in by the amendment cannot be said as violative of the constitution. But here, we are concerned with the wordings of the enabling provision in its entirety. There are two more dimensions added to this classification. One, the economically weaker section of citizens must not belong to the Socially and Educationally backward class (SEBC) or SC or ST. And second, the reservation provided to this class should be over and above the existing reservation available for SEBC or SC or ST . The real question to be asked is whether the class of EWS added with any of these two dimensions pass the test of basic structure?
16. The exclusion of certain classes, already availing reservation, from the new class created on the basis of economic backwardness, excludes similarly situated persons from availing the benefit of the new classification. One view to perceive this exclusion is - discriminatory on the basis of caste and not permissible, as has been taken so in the opinion of Justice Bhat and Justice Lalit. The other view is to perceive the exclusion on the basis of “already availing reservation on the ground of social and educational backwardness, as has been done in the majority opinion.?
17. I agree with the majority opinion on this aspect and do not find the exclusion as violative of basic structure, because the exclusion has a basis. I would like to emphasize some more reasons for agreeing with the majority opinion and for my disagreement with Justice Bhat’s opinion.?
18. Is the class of socially and educationally backward and the class of economically backward mutually exclusive? Can we say that due to economic backwardness people do not suffer social and educational backwardness? ? It is understandable that someone falling under the class of economic backwardness may not fall under the category of socially and educationally backwardness too, because social backwardness takes into its ambit historical deprivation. But both classes are not mutually exclusive, especially in the scenario of large-scale migration of workforce from rural to urban India driven by change brought in the globalized economy in the post feudal era.?
19. Taking cues from the aforesaid two phrases, 'post feudal economy' and 'globalized economy', one can debate enormously over falsity or inadequateness of its socio-economic impact. However, one cannot deny that the 'caste system', traditionally based on the nature of job performed inter-generationally, has loosen its propensity and grip, more rapidly, in the past three decades due to the globalized economy and culture of migration to cities for education of children and earning livelihood.?
20. To my mind, if a person is living below the poverty line, that means, not being able to spend Rs. 34 a day in rural set up and Rs. 42/day in the urban set up, is prone to similar social discrimination, particularly in the urban set up, as the low caste Hindus would face in the rural set up or feudal system.?
21. Is the present-day discrimination not based on economic condition? Discrimination is not confined to the reasons of caste and caste driven untouchability; it can beget its other forms in the rapidly changing socio-economic conditions.?
22. Take for example, the Right to Education Act, wherein provisions have been made for reserving 25 percent seats in schools for children belonging to economically weaker sections of society in private unaided schools. Can one say that the children belonging to the economically weaker section of society are not prone to social discrimination, in the private schools they get admission to or in the society at large? Is this discrimination not in the same fashion, as historically there used to be, against the children belonging to outcastes Hindus or socially backward classes of citizens? Untouchability has many forms and colors. How many instances can one find when children of labourers, construction workers, jhuggi dwellers in cities are allowed to play with the children of economically well to do classes who can afford a house or flat? But we can see children belonging to different castes (backward or forward), belonging to similar economic condition or purchasing power, enjoying the luxury of the public space together and equally.? What kind of basic amenities we provide to the urban poor despite they being forming the working class of the society? Isn't it true that all the developmental riches, our institutions, our public sphere, which are all available today at the disposal one's purchasing power, has no meaning for those who live on the earnings through their menial jobs. Is the society depriving a class of citizens with the basic amenities on the basis of the purchasing power of that class is not doing the same kind discrimination the ancestors of the forward classes were able to do being privileged with the land ownership and opportunity for education?
23. At least in urban set up, discrimination is far more based on economic class and not on the basis of caste. This is also a fact that almost half of the population in India has now shifted to the urban set up and the rural area is rapidly transforming into an urban set up of economy.?
24. Now take it from another perspective. 18% of the non-backward class population is as poor as 48% of ST, 38% of SC and 32% of OBC, courtesy Shinho Commission report, cited in the judgment of Justice Bhat. In terms of the number of population, the non-backward poor is above 5 crores, a little less than the poor belonging to ST. If the government decides to take ameliorative measures for their upliftment by providing seats in educational institutions under article 15 and by reserving seats for them in public employment, can that measure be said as so discriminatory to have violated the basic structure of the constitution? As stated above, it cannot because the constitution already permits such steps.?
25. Economic backwardness gives birth to social and educational backwardness and social backwardness may lead to economic backwardness. Therefore, these two classes are not mutually exclusive.?
26. Now, the question for consideration is, amongst the class of economically backward citizens, can a subclass be carved out who have not been provided with the reservation on the ground of social and educational backwardness? The economically weaker persons covered under the class of socially and educationally backward or SC or ST are excluded on the ground that special provision has already been provided for on the count of their social and educational backwardness. Not enabling the State from making special provision, again on account of their economic backwardness, will not be discriminatory to the extent that it would take out the blood of equality from the body of constitution.?
27. ?According to me, it satisfies the test of reasonable differentia and has a nexus with the object sought to be achieved. The object sought to be achieved is - special provision for those who are economically backward and whose situation may not be better than the poor of social and educationally backward classes, at least in terms of economic criteria, which is an important factor, but not the sole factor, for determination of backwardness.?
28. For the aforesaid, I disagree with the opinion of Justice Bhat, holding the exclusion clause not passing the test of classification.
29. 50% cap on reservation: With this, I am left to examine the second dimension of this classification. Can reservations exceed the 50% cap?
30. For this too, I would not like to emphasize on precedents. Since, the question of exceeding the cap of 50% reservation as a constitutional provision has probably not been a matter of consideration before the Supreme Court.?However, an attempt can be made to question this dimension of the enabling provision on the touchstone of basic structure.?
31. The logic for the 50% cap is hidden in the source of the reservation, which is an enabling provision. Can enabling provision takes away the fundamental right enshrined under article 15(1) and 15(2) and 16(1) and 16(2)? The enabling provision and the main provision have to be constructed harmoniously, so that both can exist side by side. 50% as an upper limit is the way of harmonious construction between the main provision of equality and the enabling clauses.?
32. If 59 percent reservation is fine and does not affect the non-discriminatory mandate of the constitution, even 99% may be held to be fine and in accordance with the constitution. What difference does it make in the constitutional parlance, if the total of 99% seats are reserved through another enabling provision or by law?
33. It is argued that the 50% cap is not a constitutional limitation. But keeping in view the non-discriminatory mandate of article 15(1) and 15(2), and also, article 16(1) and 16(2), reservation only up to 50% of the total seats is a constitutional limit and essence of equality.? Allocating the seats to different classes is practically depriving the opportunity to the unreserved class of citizens to enjoy the public sphere and enter into public employment. It would not only be violative of formal equality clauses but also take out the spirit of the constitution.?
34. The difference between 59% reservation and 99% reservation, is according to me, only is a matter of time. The effect of reservation exceeding the limit of 50%, would appear in the long run as availing these avenues becoming gradually impossible for an unreserved class. The equality clause enshrined under the constitution envisages that no one should feel deprived of opportunity irrespective of his social or economic condition. Exceeding the limit of 50% enters into the area of real deprivation. To ameliorate historical injustice, the spirit of the constitution does not permit contemporary injustice.? The blood of equality starts oozing out of the body of the constitution with this enabling provision and it will gradually drain out equal opportunity for the unreserved class of citizens. The unreserved class would very soon realize that the public sphere, in terms of education or employment, is no more available to them. The unreserved class would tend to migrate out of the country as the constitutional India, her forefathers had laid the founding stone for, no more remains the same.
35. The gradual draining out of the blood of equality from the body of the constitution would amount to violation of the basic structure of the constitution.
36. There is another perspective that needs to be considered, not the subject matter of the lis, though. The principle of classification demands that no similarly situated person should be left out and no dissimilar person should be brought in. Within the same class of reserved category for social and educational backwardness or SC or ST, there is a tendency of formation of a sub-class, who may have availed the benefit of reservation for generations, almost up-to four generations in case of SC and ST, and up to two generations in case of other backward classes (OBC). On the other hand, there is a majority within the reserved classes, who remain untouched of the said benefit.? For example, amongst the class of ST, the Sinho Commission points out, 48% of the population is below the poverty line. It is indicative of the fact that despite reservation from 7 decades, almost half the population of the ST are untouched by its benefits. I say so because it is highly improbable that someone having availed the benefit of reservation even once, would continue to live below the yardstick of poverty line of not having the capacity to spend Rs. 34 a day. Similarly, someone having availed the benefit of reservation is unlikely to slip below the poverty line even in the forthcoming generation. It’s so because generally speaking, getting employment in the public sector causes social, economic and educational upliftment not only for the person but also for his future generation. In the scenario where the benefit of reservation is mostly availed by the already uplifted subclass of the reserved class (those who are availing it for more than one generation), at the cost of an unrepresented majority of the same backward class, the classification has become a vested right on the basis of caste.? State does not revisit the classes on objective and study-based criterion.? When the general category seats are available to be fulfilled by the reserved category candidates, who may have availed reservation for several generations, with no deprivation of untouchability or social status in immediate sight, there is no reason why an unreserved person would not think of living in the unjust society, our constitution abhors to its core.
37. Inadequate Representation: With respect to the enabling provision of article 16(6), I have considered the contention that amendment is discriminatory as it does not make “inadequate representation” a pre-condition for the reservation to EWS class. A condition which has been found fit for application to socially and economically backward classes or SC or ST cannot be made inapplicable in case of Economically weaker section. If the purpose of reservation to backward classes is to ensure their representation in public employment, how can the same be not a criterion for EWS? Not putting the same condition for EWS will amount to discrimination on the basis of caste. As discussed above, the EWS class is as good a class as?SEBC, SC or ST, but here, the one class is free of condition whereas the already recognized classes for reservation are fastened with the condition of representation.
38. But is this discrimination of not putting a condition of representation with EWS, violative of basic structure?? My answer is negative. Since the enabling provision has set the cap of maximum of 10%, unlike the provisions for the classes covered under clause (4) and (5) of article 15, it would not amount to violative of equality to the extent of having violated the basic structure.?
39. Therefore, on this count too, I disagree with the opinion of Justice Bhat and Justice Lalit (as his Lordship then was).

For the reasons discussed above, in my opinion the amendments are violative of the basic structure of the constitution only to the extent they enable State to provide for reservation over and above the existing reservation.