The petitioners have challenged the constitutional validity of The Constitution (One Hundred and Third Amendment) Act, 2019 before Supreme Court in the case of Janhit abhiyan v Union of India & Ors. On 5th August the court referred the matter to a 5 judge bench since it involves a substantial question of law in the view of Article 145(3) of the constitution of India and Order XXXVIII of Supreme Court Rules, 2013.
Brief facts of the Case
Article 15 (6) and Article 16 (6) were inserted under the 103rd Constitutional Amendment. Article 15(6) and Article 16 (6) empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections.In the present petition, the impugned amendments are challenged on the grounds of being ultra vires as they alter the basic structure of the Constitution of India.
The petitioner has stated that the said amendments are violative of basic structure of the constitution. Theimpugned Amendment Act violates the rule of 50% quota for affirmativeaction and reservation as enunciated by this Court in the case of Indra Sawhney & Ors. V. Union of India &Ors. Further it submits that a backward class cannot be determined only and exclusively with reference to economic criterion. The reservation of ten per cent of vacancies, in available vacancies/posts, in open competition on the basis of economic criterion will exclude all other classes of those above the demarcating line of such ten per cent seats. Reservation in unaided institutions violates the fundamental right under Article 19(1)(g) of the Constitution.
State cannot insist on private educational institutions which receive no aid from the State to implement the State policy on reservation for granting admission on lesser percentage of marks, i.e., on any criterion except merit.One of the petitioners submitted that the tests of ‘width’ and ‘identity’ of equality provisions should be applied to judge the impugned amendments. Referring to M. Nagaraj & Ors. v. UOI, it is submitted that for examining amendments to equality provisions of the constitution and matters relating thereto involves a substantial question of Law and should be referred to a higher bench.
The Amendment Act was necessitated to do justice, to extend benefit and to provide equal opportunity in education and employment to economically weaker sections of the society who are not covered within the existing schemes of reservation. The respondents referred to Sinho Commission report dated 02.07.2010 which recommended a constitutional Amendment to promote social equality by providing opportunity in higher education and employment to those whose income is below taxable limit i.e. EBC.
To sustain a challenge against a constitutional amendment it must be shown that the very identity of the Constitution has been altered. That the amendments are in conformity with the principle of reservation and affirmative action which are touchstone of equality of citizens.
Referring to Ashok Kumar Thakur vs UOI, it submitted that the economic criteria is relevant for affirmative action under constitution. That the Indira Sawhney case cannot be applied to judge the validity of impugned amendments since it was a case of challenge of memorandum issued by GoI whereas in present case the challenge is of constitutional amendments. That the limit of 50% reservation does not apply to Article 15(6). That the impugned amendments do not violateArticle 19(1)(g) read with Article 19(6) of the Constitution as theState is entitled to make any law imposing reasonable restrictions on the exercise of right in Article 19(1)(g).
Referring to Societyfor Unaided Private Schools of Rajasthan v. Union of India & Anr. Attorney general said that it approved the classification based on economic criteria as provided under provisions of Right of Children to Free and Compulsory EducationAct, 2009.
That there is no merit in the petitions and they deserve dismissal by this Court.
Decision of the Court
The Court did not look into the merits of the matter on the validity of impugned amendments. The only question examined is whether the petitions involve a substantial question of law or not.
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 a substantial question of law. Also whether the limit of 50% can be exceeded in special circumstances or not is also a substantial question of law. The court agreed that the case involves a substantial question of law which is required to be heard by a 5-Judge bench in view of the provision under Article 145(3) of constitution of India and Rule 1(1) of Order XXXVIII of SC rules, 2013.
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