The Supreme Court constitution bench of CJI UU Lalit, Justices Dinesh Maheshwari, Justice Bela Trivedi, Justice JB Pardiwala, and Justice Ravindra Bhat on Monday upheld the constitutional validity of the 103rd constitutional amendment, which introduced 10% reservation for economically weaker sections in education and public employment, by a 3:2 majority. The bench issued four separate judgments, with CJI UU Lalit and Justice Ravindra Bhat dissenting from the majority opinion.

Justice Dinesh Maheshwari writing for the majority held that the EWS quota does not violate the basic structure of the Constitution. "EWS amendment does not violate the basic structure as it is based in economic criteria, state forming special provision for EWS quota does not violate the basic structure," 

In particular, he ruled that the violation of the 50 per cent ceiling (established by the Supreme Court in the Indra Sawhney judgement) for reservation is only applicable to reservation for socially backward classes under Articles 16(4) and 16(5) of the Constitution.

"Reservation is an instrument of affirmative action by the State so as to ensure all inclusive approach. It is an instrument not only for inclusion of socially and educationally backward classes...Reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible," 

In her judgment, Justice Trivedi said that the state has come out with an amendment for the advancement of EWS categories. She observed,

"The impugned amendment has to be treated as an affirmative action by the Parliament for the benefit of EWS class. It cannot be said to be unreasonable classification...Treating EWS as separate class would be a reasonable classification. Just as equals as unequals, unequals cannot be treated equally. Treating unequals equally violates equality under the Constitution...The amendment creates a separate class of EWS. The exclusion of SEBCs cannot be said as discriminatory or violative of Constitution."

In their dissenting opinions, Chief Justice of India UU Lalit and Justice S Ravindra Bhat stated that reservation based on economic criteria is not inherently illegal. The 103rd Amendment, on the other hand, practises constitutionally prohibited forms of discrimination by excluding the poor among SC/ST/OBC from economically backward classes (because they have received benefits).

"Our constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby the basic structure. This amendment is deluding us to believe that that getting social and backward class benefit is somehow better placed. This court has held that 16(1) and (4) are facets of same equality principle. The characterization of excluding the poor of SEBCs is incorrect. What is described as benefits cannot be understood as free pass, it is a compensatory mechanism to reparate...The exclusion is based on social origin which destroys the equality code." "Permitting breach of 50 percent rule becomes a great way for further infractions which would result in compartmentalisation and then rule of reservation will become right to equality and take us back to Champakam Dorarajam since equality was to be a temporary aspect," 

On September 27, the Supreme Court concluded its hearing of a batch of petitions challenging the constitutionality of the 103rd Constitutional Amendment, which grants 10% reservation to the Economically Weaker Section (EWS) among the forward castes.

The petitions, filed by NGOs such as Janhit Abhiyan and Youth for Equality, among others, argued that economic classification could not be the sole basis for reservation.

The Amendment Act reserves 10% of seats in public and private educational institutions, as well as in government employment, for "economically weaker sections" of citizens who are not members of scheduled castes, scheduled tribes, or socially and educationally backward classes.

Attorney General for India, KK Venugopal, had framed the constitutional questions of law for consideration as under:

- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?

- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?

Case Title: Janhit Abhiyan v. Union Of India, with 32 connected matters 

Citation: W.P. (C) No. 55/2019 and connected issues