Janhit Abhiyan vs.

Union of India, 2022:

Case Comment
Abstract:
Supreme Court of India has recently announced its verdict on the case of Janhit Abhiyan vs.
Union of India, 2022, which deals with the 103 rd Constitutional Amendment, 2019, which
was at the helm of the issue concerning the 10% reservation quota given to the Economically
Weaker Section of the society. This article deals with the general analysis of the case,
including brief facts, arguments, issues involved, judgment, dissenting opinion, and the
reasoning and rationale of the honourable Supreme Court in the matter.

Introduction:
The Parliament amended the Constitution of India and brought about the One Hundred and
Third (103rd) Amendment in the Constitution on January 9 th, 20191, which was concerned
with extending the reservation in the educational institutions and employment opportunities
to Economically Weaker Sections of the society by amending Articles 15 and 16 of the
Constitution and inserting 15(6) and 16(6)2 respectively.

The amendment allowed the state to make special provisions for economically weaker section
of the society, both in educational institutions as well as employment opportunities, however,
the issue has been a bone of contention since it has received the assent of the President of
India in 2019. As many as 20 petitions have been filed against the 103 rd amendment to the
constitution, challenging its constitutionality.

Supreme Court, through a 5-judge constitutional bench announced its verdict on the matter
with a 3:2 split3. The case was majorly concerned with the issues relating to the
constitutionality and basic structure doctrine. This article would give an overview of the case,
brief facts, the reasoning of the judgment of Supreme Court, the arguments put up by both the
sides and why this judgment is relevant in redefining the concept of reservation in India as
whole.

1
THE CONSTITUTION (ONE HUNDRED AND THIRD AMENDMENT) ACT, 2019
2
Constitution of India, 1950
3
Janhit Abhiyan v. Union of India 2022 SCC OnLine SC 1540.

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Brief outline of the case:
After the passing of Constitution (One Hundred and Third Amendment) Act, 2019, several
writ petitions, and special leave to appeal were filed in order to deem the said amendment as
unconstitutional and a breach of the basic structure doctrine. By virtue of this amendment, the
state became empowered to make special provision regarding reservation for the
economically weaker section with an upper limit of 10% by virtue of addition of Articles
15(6) and 16(6) in the Constitution of India.

Thereby, the state has been empowered to give a 10% reservation to Economically Weaker
Section of the society in the educational institutions and employment opportunities, in
exclusion of Scheduled Castes (SCs), Scheduled Tribes (STs), and non-creamy layer Other
Backward Class (OBCs).

Moreover, it must also be noted that the said reservation is merely enabling in nature rather
than mandatory, i.e., it does not mandate the institutions to provide the 10% ceiling
reservation to the EWS classes, but enable the state to make arrangements for the same.

Issues involved in the Case:

The apex court essentially identifies 3 major issues to be dealt with while delivering its
judgment:

1. Economic criteria cannot be the sole determinant in allowing reservation for a

particular section of society, and thus it infringes the basic structure of the
constitution.
2. Exclusion of Socially and Educationally Backward Classes (SEBCs), i.e., SCs, STs,
and OBCs, from these special provision for EWS is inexplicably discriminatory in
nature, and thus violates the basic structure of the constitution.
3. The defined 10% upper limit of reservation for the EWS directly breaches the 50%
cap of reservation and hence directly goes against the ethos and jurisprudence of
reservation as espoused by the constitution makers, as it violates the Equality Code 4,
and thus, again, violates the basic structure of the constitution.

Arguments from the side of Petitioner:

The petitioners included Janhit Abhiyan Akhil Bhartiya Kushwaha Mahasabha; Youth for
Equality; SC/ST Agricultural Research and Education Employees Welfare Association;
4
Motilal Nehru Report, 1928

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Peoples Party of India (Democratic)5, represented by Rajeev Dhawan; Gopal
Sankaranarayanan; MN Rao; Meenakshi Arora. The submissions from the side of petitioner
were,

 The reservation granted by the Constitutional Assembly in 1949 to the backward class
of the society was based on age-old discrimination suffered by these communities.
The rationale behind such a measure was to give them an equal playing field and
provide equal representation and address the historical inequalities suffered by the
backward classes. The petitioners further argue that the court must exercise purposive
interpretation of reservation considering EWS, and revisit the purpose behind the
reservation policy through the vision of the constitution makers and the constituent
assembly debates.
 On the other hand, the 103rd amendment aims to extend the reservation to a class of
people which was never marginalised or discriminated against, and hence such an
amendment defeats the very rationale of the reservation policy.
 It was further submitted that constitution endorses the concept of social ‘and’
educational backwardness, rather than social ‘or’ educational backwardness, which
tells us that the social and educational criteria are not mutually exclusive of each
other, and both needs to be fulfilled in order to claim reservation by a certain class of
people.
 Moreover, EWS is perpetuating the monopoly of certain section of society as they
were never historically oppressed as opposed to those who were. This is also leading
to an individual centric reservation which goes against the very nature of reservation
as the purpose of reservation was to remove the inter-group inequalities among the
classes of society.
 In essence the said amendment extends the benefit of reservation not to the
economically weaker but financially incapable class of society and hence the furthers
the individual-centric idea of reservation which is problematic to the very nature of
democracy.
 Furthermore, the identification of backward class is possible according to the
benchmarks and guardrails provided by the constitution, however, the same is very
difficult in order to identify the EWS, as the financial capability and incapability is

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 very transient in nature. Moreover, reservation cannot be a measure of poverty
alleviation.
 The petitioners also contended that economic criteria cannot be the sole basis of
granting reservation as the same has been established by the Indra Sawhney judgment
and consequently in the Mandal Commission report, and hence this 5-judge bench is
not capable of implying otherwise as the concerned judgment was made by a 9-judge
constitutional bench.
 It was also argued that the 103rd amendment would never put an end to the reservation
as, although it is possible that the backward classes may be put at par with the forward
ones, however, people would always be poor, which goes against the ethos and
purpose of reservation, as espoused by B.R. Ambedkar.
 Exceeding 50% limit would violate the Equality Code, because the people from the
backward class would not be able to claim the seats in the open category, for the
people belonging from the creamy layer SEBCs, which would damage the basic
structure of the constitution.
 The amendment also fails to justify as to how the poverty of forward class is different
than that of the backward class. The reports of Sinho Commission, NITI Ayog Multi-
dimensional Poverty Index6, etc. clearly points out that the backward class poor are
poorer than the upper-class poor, and hence their exclusion from the EWS quota
directly discriminates between the forward and backward class of people.
 It is further destructive of the aim of caste-less society, and hence EWS reservation
goes against the preambular vision. It creates a vertical reservation inside of vertical
reservation.

Arguments from the side of Respondent:

The respondents included Union of India; Ministry of Social Justice & Empowerment; The
State of Maharashtra; Ministry of Personnel, Public Grievances and Pensions represented by

6
The NMPI assists in estimation of poverty at the level of the states and all the over 700 districts across the 12
indicators, capturing multitude of deprivations and indicator-wise contribution to poverty. Thus, in terms of
NMPI, 51.91% population of Bihar is poor, followed by 42.16% in Jharkhand, 37.79% in Uttar Pradesh, with
Madhya Pradesh (36.65%) as fourth in the index, and Meghalaya (32.67%) is at fifth place. Kerala, Goa, and
Sikkim have the lowest percentage of population who are multidimensionally poor at 0.71%, 3.76% and 3.82%,
respectively. Amongst Union Territories (UTs), Dadra and Nagar Haveli (27.36%), Jammu & Kashmir, and
Ladakh (12.58%), Daman and Diu (6.82%) and Chandigarh (5.97%), are emerged as the poorest UTs. The
proportion of poor in Puducherry at 1.72% is the lowest among the UTs, followed by Lakshadweep at 1.82%,
Andaman & Nicobar Islands at 4.30% and Delhi at 4.79%

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Attorney General KK Venugopal7; Solicitor General Tushar Mehta. The submissions from
the side of Respondent were,

 The ethos of reservation makes distinction between classes and not castes and hence
such an amendment is based on the reasoning of providing the special benefit to the
backward class which is backward by the virtue of economic inequality, thus
furthering the rationale of reservation and strengthening the preambular vision of
economic justice. The amendment is a step towards furthering a caste-less society
which was the vision of the constitution makers.
 Learned Attorney General of India, Mr. K.K. Venugopal, contends that the said
amendment vitalizes the basic structure of the constitution rather than breaking it. An
amendment to the constitution may be struck down only when it is capable of
changing the identity of the constitution.
 The respondents argue that one must dynamically interpret the constitution in order to
strengthen the preambular vision of the constitution. One must look into the Articles
38 and 46 of the DPSPs which renders a duty on the state to eliminate social, political
and economic differences and to promote justice.
 The classification based on economic criteria alone is justified. The Supreme Court
has considered poverty as an indicator of backwardness, while considering reservation
in several cases, such as, M.R. Balaji 8, R Chitralekha v. State of Mysore9, Vasanth
Kumar10.
 It is further argued that it is poverty that leads one to social and educational
backwardness and the said amendment tries to cure such a discrepancy by creating a
class of people which are in fact social ‘and’ educationally backward due to the
economic inequality faced by them in the society, therefore, the Parliament is in the
right to create such an enabling provision which minimises the economic inequality in
the society. The amendment is furthering the goal of economic justice, thus
strengthening the basic structure and preambular goal of the constitution.
 On the question of 10% ceiling limit for EWS reservation, the respondents argue that
such a limit in no way infringes the rights of SCs/STs/OBCs/SEBCs as this 10% is in
addition to the reservation already available to the backward class and hence makes

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8
M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”), See para 21
9
R. Chitralekha v. State of Mysore & Ors, 1964 AIR 1823
10
K .C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714

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 no difference against their favour. Exclusion of SCs/STs/non-creamy layer OBCs is
justified as they are already receiving the benefit of special provisions.
 Regarding the issue of breach of 50% limit and violation of Equality Code, the
respondents argue that such a limit is not inextricable and can be breached in
extraordinary circumstances. Moreover, had the amendment been extending this 10%
reservation towards the SEBCs/SCs/STs/OBCs, that would have been the violation of
the Indra Sawhney judgment, which is not the case in the present scenario.
 The amendment furthers substantive equality to the needs of each section of society,
and extending the benefit of reservation to the EWS champions the ethos of
reservation.
 The amendment also strikes a harmony between the Fundamental Rights and DPSPs,
as iterated in M Nagraj vs. UOI11, by balancing out the right against discrimination
and states duty to enhance equality to each section of the society by enlarging the
bracket of beneficiaries of reservation.

Judgment:
The Supreme Court, through a 3:2 majority upheld the constitutionality of the 103 rd
Amendment to the constitution on the questions of,

 Basic structure of the constitution,

 Discrimination due to the exclusion of SCs/STs/OBCs/SEBCs in the 10% quota of
EWS reservation,
 Economic criterion as the sole criteria to provide reservation under Articles 15(6) and
16(6) of the constitution,
 Application of 10% EWS reservation on private unaided educational institutions.

Basic Structure of the constitution:

The Supreme Court referred to various previous judgments, such as Kesavananda Bharti v.
State of Kerala12, etc., in order to understand and revisit the doctrine of basic structure of the
constitution. It was held that an amendment is capable of violating the basic structure if it
changes the form, character and content of the Constitution. The court highlighted that the

11
M. Nagaraj v. Union of India, (2006) 8 SCC 212
12
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

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provisions for providing reservation to the weaker section by way of affirmative action do not
form a part of basic feature of the constitution, as it is merely enabling in nature.

The court also quotes the intention of the drafters of the constitution in order to justify such a
reasoning, that reservation was never meant to be permanent in the Indian society and was
included just as a measure to include the weaker sections to the forefront of the society and
provide them equal opportunity.

Reservation is an enabling provision, which allows the state to make arrangements for the
upliftment of the weaker section of society. This, in court’s view, does not carry the
weightage of violating the basic structure. Moreover, if the Parliament is making some
provisions in furtherance of socio-economic justice to the society, such an initiative could not
be termed to be damaging the basic structure of the Constitution, and hence settles this issue
that the said amendment is not a violation of the basic structure of the constitution.

Exclusion of SCs/STs/OBCs/SEBCs from the ambit of 10% quota of EWS Reservation.

The court in its majority decision opines that the exclusion of other classes in the EWS
Reservation is not an abrogation of basic structure and the fundamental rights of the weaker
section of society. The court’s reasoning is established on the fact that the
SCs/STs/OBCs/SEBCs are already getting the benefit of affirmative action under the Articles
15(4), 15(5), 16(4), and have a certain quota earmarked for them in their favour.

Moreover, the court stresses on the fact that the EWS Reservation does not impact the benefit
already accorded to the Socially and Educationally Backward Classes, as it does not encroach
upon their ambit of quota provided to them.

The court furthers its reasoning by assuming that even if for the sake of the argument, it be
assumed that the equality is violated by such a reservation, it shall be treated as a minor
abridgment of the right and that too for justified and reasonable causes and hence does not
amount to violation of basic structure and fundamental rights of the weaker sections.

Economic criteria as the sole criterion of deciding for reservation:

The Constitution of India strives to provide an ‘economic democracy’ which aims at

achieving economic, social and political justice.13 The concept of economic justice furthers
13
Constituent Assembly Debates, Vol VII, p. 494

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the goal of distributive justice14 in the Indian society as envisioned by the framers of the
constitution. The court analyses the importance of economic justice through interpreting the
constitution holistically.

The court cites the landmark judgments of M.R. Balaji15, R. Chitralekha16, M. Nagraj v. UOI,
etc. in order to highlight that the Supreme Court has previously opined that poverty is an
indicator of backwardness while considering reservation. The state is empowered to make
provisions for the economically disadvantaged section of the society under Articles 38 and 46
of Part IV of the Constitution.

The court further points out that the constitution sanctions every such affirmative action of
the government which aims at furthering the goal of establishing an egalitarian society and
furthering the socio-economic order which is one of the prime objectives of our
constitution17. The court strikes a difference between substantive and formalistic equality,
through which the court infers that the Constitution espouses equality in the true sense and
substance and not merely as a formality. In providing equality in the truest sense, the court
must look forward to cover all the backward classes of the society, including those that are
struggling with economic restraints and must need the help of the state in order to break the
shackles and disabilities caused due to economic factors.

The court is of the opinion that restricting affirmative action to SCs/STs/OBCs/SEBCs would
defeat the purpose and miss the texture of the concept of substantive justice as espoused in
the constitution. Moreover, the reservation cannot be availed solely on economic criteria
under Articles 15(4), 15(5), 16(4), but it must not restrict the state to make special provision
for the economically backward classes which furthers the preambular goal of the constitution.

The court does not put a blanket ban on providing reservation to economically weaker
section. the court tends to give widest interpretation to the term ‘other weaker sections’ in
order to realise the goal of distributive justice. The court also stresses on the application of
dynamic interpretation of constitution in order to realise the goals as espoused by the makers
of the constitution and upholding its relevance in letter and spirit.

14
Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479
15
M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”), See para 21
16
R. Chitralekha v. State of Mysore & Ors, 1964 AIR 1823
17
He is also credited to have presided over the first All India Conference of the Depressed Classes at Nagpur in
the year 1920 where Dr. B. R. Ambedkar was among the main speakers and where it was resolved, among other
things, to have true representatives of the depressed classes in the legislature. [Vide : Dr. Sanjay Paswan, Dr.
Pramanshi Jaideva, ‘Encyclopaedia of Dalits in India’, Kalpaz Publications, New Delhi (2003)]

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Breach of 50% ceiling of reservation

The petitioners challenged the amendment on the ground that it violates the 50% limit of
reservation and hence violates the equality code. This was challenged with regard to the
judgment of Indra Sawhney vs. UOI18. The court however, took the stance and quoted Indra
Sawhney to establish that the 50% reservation is not inviolable. The limit could be breached
in extraordinary situations. Moreover, since the 103rd amendment merely enacts an enabling
provision for providing reservation to the economically weaker section, such a contention
becomes unacceptable.

The basis of this 50% ceiling limit is that reservation should not be such that it adversely
affects another section of society 19. Keeping that in mind, if the state makes a law in order to
realise substantive equality for any weaker section of society, it has the assent of the
constitution to do so, in furtherance of fulfilling the preambular goal of equality.

Application of EWS Reservation in Private Institution

The court settled this question by referring to the case of Pramati Trust20, where the court held
that the amendment shall be applicable to all the private educational institutions (aided and
unaided), subject to the Article 29 and 30 of the Constitution.

Dissenting Opinion of CJI UU Lalit and J Ravindra Bhat

CJI UU Lalit and J Ravindra Bhat collectively held that the 103rd amendment is violative of
the basic structure of the constitution on the following grounds:

That the exclusion of SCs/STs/OBCs/SEBCs is completely against the equality code which is
essential to the nature of the constitution. It is believed that such an exclusion is a furtherance
of discrimination against the historically disadvantaged and deprived communities. The 10%
reservation disallows such communities to not compete outside their allocated reservation
quotas, which is arbitrary in nature.

However, there seems to be no disagreement with regard to providing reservation through

Article 15 solely on the basis of economic criteria. The court realises that through dynamic

18
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217,
19
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310
20
Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1, (“Pramati”)

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interpretation21 one may include the economically weaker section as a part of the backward
class which is not able to afford the benefit of education and hence get forever stuck in the
vicious cycle of poverty. However, the dissenting judges believe that such a reservation is not
allowed under Article 16 of the constitution, which talk about equality of opportunity in
employment. The rationale behind this provision is to provide representation to the
historically disadvantaged and weaker section of society, thus giving reservation on the sole
basis of economic criteria would be against the ethos of constitution which aims to provide
equal representation to all the classes of the society.

Conclusion:
After understanding and analysing the nuances of the 103 rd amendment to the constitution,
which introduces reservation to the economically weaker sections of the society under
Articles 15(6) and 16(6), one may be able to deduce that India is still suffering from rampant
poverty and needs strong measures to extend the social and economic benefit to every strata
of society. State must ensure social mobility in order to lessen the chasm between the rich
and poor so that a homogenous society may be created.

Supreme Court has interpreted the amendment in such a manner that it may fulfil the
preambular goal of rendering economic justice to all. Parallelly, the dissenting opinion of CJI
UU Lalit and J Ravindra Bhat signifies the historical essence of reservation as a reparation to
those invariably discriminated by virtue of their caste. One may understand that this judgment
showcases both the aspects of backwardness in the society, be it social or economic,
however, they must not be understood in isolation as they are heavily co-dependent on each
other, and must be factored together for the larger interest of society.

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comment/

21
M. Nagaraj v. Union of India, (2006) 8 SCC 212,

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