Unpacking the 103rd Amendment Verdict (Part I)

Justice Bela Trivedi upheld the constitutional validity of the Constitutional Amendment.


Earlier this week, the Hon’ble Supreme Court delivered its verdict in Janhit Abhiyan v. Union of India, which concerned the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019 (“Constitutional Amendment”). The Court by a majority of 3:2 upheld the validity of the Constitutional Amendment.

The final judgment consists of four separate judgments authored by Justice Dinesh Maheshwari, Justice Bela Trivedi, Justice Pardiwala (for upholding the Constitutional Amendment) and Justice Ravindra Bhat for himself and Chief Justice Lalit (for striking down the Constitutional Amendment). In this series, I will summarise and analyse the separate judgments, one post at a time.

In the first post, I will analyse the judgment of Justice Bela M. Trivedi, wherein she upheld the Constitutional Amendment. The decision to analyse her judgment first is because of the backlash that she has received on the internet for her views. Trolls have commented on her gender, caste and also questioned her competency as a Judge. I will first summarise the judgment and thereafter argue that she has adopted an approach of strictly interpreting the Constitution and trusting the legislative intention and vision.

At the outset, I must clarify that Justice Trivedi’s judgment is extremely short as she concurs with the judgment of Justice Maheshwari. As a result, she has not gone into a detailed examination of issues at times, which I believe is a conscious decision since she agrees with Justice Maheshwari’s detailed opinion on them. The last few paragraphs of her judgment wherein she has expressed her views on reviewing the reservation policy has garnered criticism and I have addressed them at the end as well.

A. The Constitutional Amendment:

The Constitutional Amendment brought two significant changes to the Constitution i.e., (i) introduction of Article 15(6) and (ii) Article 16(6).

First, Article 15(6) allows the state to make special provisions for advancement of economically weaker sections of citizens in addition to socially and educationally backward classes of citizens or Scheduled Castes (SC) or Scheduled Tribes (ST). The state can make special provisions for economically weaker sections regarding admission to educational institutions (both private and state educational institutions). If such special provisions are in the nature of reservation of seats, they cannot exceed ten percent of the total seats in each category.

Second, Article 16(6) allows the state to make provisions for reservation of appointments or posts in favour of any economically weaker sections of citizens in addition to backward class of citizens which in the opinion of the state are not represented in the services under the state. If such special provisions are in the nature of reservation, they are subject to a maximum of ten percent of the posts in each category.

As per the Statement of Objects and Reasons, the Bill effectively provides for reservation for the economically weaker sections of society. It reads,

Accordingly, the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 provides for reservation for the economically weaker sections of society in higher educational institutions, including private institutions whether aided or unaided by the State other than the minority educational institutions referred to in article 30 of the constitution and also provides for reservation for them in posts in initial appointment in services under the State.”

The Constitutional Amendment was challenged for violating the basic structure doctrine. It was argued that the Amendment excludes backward classes and SC/STs from the benefits of economic reservation and hence, breaches the Equality Clause in the Constitution. The Equality Clause is a basic feature of the Constitution and by breaching it the Amendment violates the basic structure doctrine.

The Basic Structure Doctrine was propounded in the case of Kesavananda Bharti. The Court here by a 7:6 majority held, that the Parliament in exercise of its constituent power can amend every provision of the Constitution so long as the basic foundation and structure of the Constitution remains intact. In simple words, the Parliament’s power to amend is extremely wide but while exercising this power the parliament cannot abrogate the basic features of the Constitution. These features are not exhaustive and include- Supremacy of the Constitution, Republican and Democratic form of Government, Separation of Powers, Judicial Review, Sovereignty and the Integrity of the Nation, Federal Character of Government. As a result of this doctrine, every constitutional amendment made by the parliament is open to judicial review on grounds of violating the basic features. (The Basic Structure doctrine is explained in detail here)

B. The Judgment:

In her judgment, Justice Trivedi held that the Constitutional Amendment does not violate the basic structure doctrine. She based this argument on two limbs. First, that equality code is not violated. Second, the high threshold to attract the basic structure doctrine is not met.

1. Equality Code is not violated:

Justice Trivedi cited precedents to observe that the concept of equality allows differential treatment provided that distinction between two classes is properly justified. She conjointly reads the Preamble, Part-III i.e., fundamental rights, and Part-IV i.e., Directive Principles of State Policy to highlight that removing economic inequality is a goal enshrined in the Constitution. For instance, the Preamble mentions the ideal of economic justice and Article 46 obligates the state to promote the educational and economic interests of the weaker sections of society and protect them from social justice.

She observed, “Economic empowerment to the weaker sections of the society is the fundamental requirement for ensuring equality of status and to promote fraternity assuring dignity as visualised by the framers of our Constitution. (par. 16)”

She observed that the Constitutional Amendment was introduced in light of these obligations to ensure that economically weaker sections of citizens get a fair chance of receiving higher education and getting employment with the state. In furtherance, she argued that treating these economically weaker sections of citizens as a separate class of citizens is a reasonable classification. Just like SC,ST and backward classes constitute a class in themselves and have special provisions under Article 15(4), 15(5) and 16(4), economically weaker sections of citizens constitute a separate category as well.

She ultimately concluded that exclusion of SC,ST and backward classes from the newly created class of economically weaker sections of citizens is not discriminatory since they are two separate classes and equating them would be treating two unequals as equals. She based the justification of this distinction on the need for economic empowerment mentioned in the Constitution.

2. Basic Structure not violated:

At the outset of her judgment, Justice Trivedi highlighted that for a basic structure challenge to succeed, the Amendment in question must be a betrayal of a basic feature and not a mere violation of an article of the Constitution. She relied on the opinion of Justice Krishna Iyer J., in Maharao Sahib Shri Bhim Singh v. Union of India (1988) 1 SCC 166, wherein he had observed,

Every breach of equality cannot spell disaster as a lethal violation of basic structure. Peripheral inequality is inevitable when large scale equalization processes are put into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far, it shakes the democratic foundation and must suffer the death penalty.”

She held that the Constitutional Amendment does not meet the threshold laid down in judgment of Maharao Sahib, as it cannot be termed shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice.

C. Some Observations:

In my opinion, Justice Trivedi in her judgment reads the Constitution strictly.

First, it is settled as per the Constitution that every institution of governance has a specific role allotted to it. Parliament is obligated to make law; the Executive is to implement that law and the Judiciary is to adjudicate disputes in accordance with the law and interpret the law in accordance with the Constitution. Law-making is a task vested on the Parliament since it is an elected body and hence, represents the will of the people.

Justice Trivedi starts her judgment by highlighting that none of these powers are supreme as there are several checks and balance mechanisms in the Constitution which ensure that none of the three organs usurp the power of the other or disable the other from performing its function. One such checks and balance is the power of judicial review available to the Courts. However, she cautions that this power does not make the judiciary supreme.

She proceeds with this caution and shows deference to the legislative wisdom behind the Constitutional Amendment. She observes that, “As well settled, it must be presumed that the legislature understands and appreciates the needs of its own people. Its laws are directed to the problems made manifest by experience, and its discriminations are based on adequate norms. Therefore, the constitutional amendment could not be struck down as discriminatory if the state of facts are reasonably conceived to justify it.(par. 20)” Instead of questioning the viability or appropriateness of the legislative wisdom, she defers to parliamentary wisdom and in effect, upholds the principle that law making is a task suited to the parliament and intervention is justified only in exceptional circumstances which are lacking here.

Second, she reads the Equality Code strictly. She relies on precedent to argue that Article 14 demands that equals cannot be treated unequally, and unequals cannot be treated equally. Since, economically weaker sections of citizens and SC,ST and backward classes are different and not equals, they cannot be treated the same. In other words, the difference in the two groups is the justification behind not granting the benefit of the Constitutional Amendment to the SC,ST and backward classes. This is a very strict reading of the text and the precedent, and she does not investigate or substantiate on how the two groups are different. She adopts a similar approach while analysing the argument of basic structure doctrine. In a nutshell, her judgment reads the existing precedent and the Constitution formally and strictly.  

However, unfortunately her judgment is being criticised for none of the above-mentioned reasons. It is being criticised for her observations on the time span of reservation policy. In the last few paragraphs of the judgment, Justice Trivedi argues for revisiting the system of reservation in the larger interest of the society. She observes, “However, at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole, as a step forward towards transformative constitutionalism.(par. 28)”

This has been interpreted by many to mean that Justice Trivedi is asking for reservation to be scrapped altogether. In my opinion, that is not what Justice Trivedi is arguing for, instead she is arguing to review the reservation policy to curb its misuse and ensure that the actual aim behind it is achieved.

She begins by first urging the society to move towards an egalitarian, casteless and classless society. She thereafter cites various judicial observations made by Judges in the case of K.C Vasanth Kumar v State of Karnataka, (1985) Supp SCC 714. She cites Justice Desai, who argued for introducing economic criteria in reservations for SC and STs so as to refuse preferential treatment to those who have already availed the benefit of reservation and improved their position. He observed, “But even here economic criterion is worth applying by refusing preferred treatment to those amongst them who have already benefited by it and improved their position. And finally reservation must have a time span otherwise concessions tend to become vested interests.(par. 26)”

She thereafter cites Justice Chandrachud who also made similar remarks and argued for introducing a means test in reservations for SC/ST to ensure that privileged section of the underprivileged do not monopolise the preferential benefits for an indefinite period of time.

I believe by citing these remarks Justice Trivedi is trying to highlight the monopolisation of reservation benefits by the privileged section of the underprivileged. She is arguing for a review of the reservation benefits of those sections/communities that have already availed the benefits, so as to ensure that there is no monopolisation for an indefinite period of time by the privileged section of the underprivileged. This is further evidenced from her citation of Ashok Kumar Thakur v. Union of India (2008) 6 SCC1, where the Court bats for achieving the ideal of a casteless society. The Court in Ashok Kumar recognised that historically reservation was supposed to be in place for a limited time period to bring forward socially and educationally backward classes by giving them a gentle push. However, if no review is carried out to assess whether this goal has been achieved or not, the country will forever be divided on the lines of caste. Further, the Court here also highlighted that there is a tendency amongst who are not backward to seek the ‘backward’ tag in the hope of enjoying benefits of reservation. As per the Court in Ashok Kumar, a review of the reservation policy would curb such attempts and fix the flaws in the existing reservation policy. I believe this is what Justice Trivedi is arguing for as well.

While this is a reasonable interpretation of her remarks, the last paragraph of her judgment weakens this argument and confuses us. She observes,

Amendment w.e.f. 25.01.2020. Therefore, similar time limit if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society. Amendment w.e.f. 25.01.2020. Therefore, similar time limit if prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a way forward leading to an egalitarian, casteless and classless society. (par. 29)”

If read in isolation it suggests that benefits of Articles 15 and 16 must end after a fixed time, however, if read in the spirit of the remaining judgment, I believe they call for reviewing the reservation policy to fix its existing flaws.

Views are personal. They are not intended to disrespect or hurt the sentiments of any community.

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