Janhit Abhiyan Vs Union of India

Appellant- Janhit Abhiyan

Respondent – Union of India

Bench – Justices UU Lalit, Justice Dinesh Maheshwari, Justice Bela M Trivedi, Justices J B
Pardiwala, Justices Bhat

Case no. 55 of 2019

Jurisdiction- original appellate jurisdiction

Facts of case

On 7 January 2019, Union Council of Ministers approved a 10% reservation in government jobs and
educational institutions for the Economically Weaker Section (EWS) in the General category. The
cabinet decided that this would be over and above the existing 50% reservation for SC/ST/OBC
categories.

On 8 January 2019, The Constitution (One Hundred and third Amendment) Bill, 2019, was tabled in
the Lok Sabha, the lower house of the Parliament of India and it was passed on the same day. The
bill was passed by the upper house Rajya Sabha on 9 January. President Ram Nath Kovind gave
assent to the bill on 12 January 2019, and a gazette was released on the bill, which turned it into law.
Coming into force on 14 January 2019, the One Hundred and Third Amendment of the Constitution
of India amended articles 15(6) and 16(6) of the Constitution of India to permit 10% reservations to
the EWS category. A number of state cabinets approved the law and announced their intention to
implement the 10% EWS reservations

This was challenge by the petitioner on the various ground

Issues Raised

1.Constitutionality of the amendment was challenged for violation of article 14

2.Weather the economic condition can be a criteria for reservation

3.Exclusion of SC/ST /OBC from the same is discriminatory

4. the EWS reservation crossed the 50% cap set by the landmark judgment of Indra Sawheny

Rules-

Article 14- equality Rights

Article -15 not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them

Article – 16 Equality of opportunity in matters of public employment

Arguments-

Appellant-

The learned counsel primary arguments were as follows

2. The basic structure of constitution is violated as the amendment seeks to empower the already
privileged and also exclude the SC ST and OBC as the wording in the provision states ‘other than the
classes mentioned in clauses (4) and (5)’ this contention is against equality guaranteed under article
14

3. On point of exclusion of sc and st the learned counsel said that the concept of fraternity given in
the constitution as well as equality while prohibiting discrimination provided under art 14 15 and 17
is violated

4. The amendment is not based on economic condition rather on the financial condition of the
person which is different as this may results into awarding poor financial decision

the people intended to get the benefit is adequately represented in all aspect of the society

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 from Articles 15(6) and 16(6) so as to include the poor of all classes without any
exclusion

Judgment

Justice Dinesh Maheswari

The learned counsel had mention certain important facts

the reservation given to sc/st people was with an intention for social upliftment and in the limelight
of preamble to provide justices in social economic and political institution of life

the basic structure of constitution is violated as the amendment seeks to empower the already
privileged

on point of exclusion of sc and st the learned counsel said that the concept of fraternity given in th
constitution as well as equality while prohibiting discrimination provided under art 14 15 and 17 is
violated

the amendment is not based on economic condition rather on the financial condition of the person
which is different as this may results into awarding poor financial decision

the people intended to get the benefit is adequately represented in all aspect of the society

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 from Articles 15(6) and 16(6) so as to include the poor of all classes without any
exclusion

economic criteria is never the sole reason of determination of reservation

10% reservation of open result into lower number of seats for SC/ST

Reservation is for representation and participation and not for economic upliftment
Exclusion of the SC and ST is discriminatory as there far more poorer people in these caste which
excluded resulting into discrimination

This created vertical reservation among vertical reservation

Held

Insertion of EWS as a class is perfectly valid and it does violate the basic structure of the constitution

Parliament could reshape the constitution but cannot violate the basic structure of the same it have
to work with in the pre-decided /defined limits

Mere violation of rule of equality does means there is a violation of basic structure of constitution
but there must reasonable justification and should not be shocking or unconstitutional

Mr. K.K Venugopal said it doesn’t violate the basic structure rather fosters it

The exclusion created is rather logical as SC/ ST already has a reservation and giving them another
one would create double benefit

And the exclusion is inevitable without it the amendment’s nexus could not be achieved

Even if the discrimination faced by caste and economically weaker section is different but the
oppression created is similar and EWS reservation is not applicable in political

If the amendment were to say ‘in addition to existing reservation’ would have been violative of the
basic structure

This exclusion is separating classes not caste

50% cap rule was laid down in Indra Sawhney it is in concern with the art 15(4) and 16 (4)

But this cap is not inflexible

And all the argument were based on a judgement way before this amendment

This 50% cap is a guard line and an amendment’s constitutional validity cannot be challenged on the
test of not following such guard line

He added that the backward classes should not be included in the Amendment's scope, even though
it is still valid. He warned that allowing a breach of the 50% allocation for underprivileged groups
would result in compartmentalization

EWS has an inbuilt cap of 10

Constitution was committed to the principal of economic democracy and political democracy and
EWS is a step toward an economically well flourished country

Our jurisprudences support making provision for taking the disadvantage arising out of the economic
condition

Justices Bela m Trivedi

Completely agreed and support EWS reservation and also agreed on point mentioned by justice
Dinesh Maheshwari

Adding to the same a few important points were highlighted

The classification done on the economic basis is a valid one as economic condition is a huge factor in
the social and educational development of an individual even our preamble and Art 38

Social engineering

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 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

Economic condition plays a vital stand in determining the higher education standard of an individual

Sometimes talent get ignored/rejected due to economic disability this reservation provides
participation in the employment service of the state

Time span of reservation

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 – Sadar Patel

Reservation is for upliftment and this upliftment at the end must result into no need for reservation
because the greater goal is make them equal and remove reservation and treat them as equal

Even over such a long period after independence its not yet achieved there is hope for a castles and
with implication of ews a class less society

This a step forward toward transformative constitutionalism

The reservation provided must not be permanent in nature

Our legislature appreciates and understand the need of the people which is economic upliftment

Hence, EWS is needed but she added that EWS reservation must be revisited

This will lead to an egalitarian and classless society

Justice j b Pardiwala

Agreed with justice dinesh Maheshwari and also added certain aspect to it

In art 15 the word used is to discriminate against and not to discriminate the difference is that the
people who are oppressed but be separated and they must get an adavnatage against the others
and the same is followed in EWS just here the segregation is based on class rather than caste

The new provision in art 15 is in consistent with socialist goal and a step toward implication of DPSP

Its not altering the basic structure of the constitution

EWS may form class as such but the educational backward which results into lack of job is due to the
economic in capabilities which creates vicious circle which make upper movement in class almost
impossible thus EWS is a must as chance for the deserved to progress ahead
But justice pardiwala says that the EWS is for people who are economically handicap but they need
not be as socially backward as SC

Here he disagreed with the exclusion of SC and St as the economic backwardness is not limited and
rather extened to the castes specially is SC and ST the poor and more poor then OPEN as there
financial incapability is paired with social Exclusion

Justices Bhat/Justice U U lalit

Dissented from the judgment according to him it’s a violation of equality to all which is embedded in
the preamble as economic opportunity to progess must be given to all irrespect of the caste as the
exclusion of caste is not reasonable and the justification of double benefit is not applicable as both
the reservation is applied in caste and class respectively and even the person benifiting out of it
could apply any one of them only

Education ex

Reservation is a concept which is community based and not based on individual but EWS judges
people on individuality and there is no community as such

Reservation goal is to empower in education it is done by giving deserving candidate a chance but in
employment it act as a representation of the community as have indiviuals of different community
represented in EWS there no such community as its individual based

Keeping out SC and ST is completely wrong as there is a overwhelming amount of poorer as well as
socially neglected member

Justice Bhat and Justice U U lalit reject the principal of doublr benefit

Quota was started as for the empowerment of people who has suffered fundamental deep rooted
generation of wrong and there condition is such that even after birth they cant escape from caste
system while economic class is open system

Keeping this guys out of economic reservation is against principal of equality and is starit up
discrimination

As it was said that 50% cap is flexible this will result into creating a gateway for further infraction

UU Lalit said its attack on the foundation of constitution and is based on discriminatory norms

reservations, the way our Constitution-makers intended them to be, are community-centric, and not
individual-centric in nature. Reservations serve the purpose of reversing social marginalisation that
have over time denied certain communities access and an equitable playing field in the society