Legal Information / Articles


The Honourable Supreme Court on 7th November 2022 upheld the validity of the 103rd constitutional amendment, 2019. The 103rd amendment added clause 6 to both Article 15 and Article 16 of the Constitution of India, which enables the state to make a reservation of 10 percent for economically weaker section apart from SCs, STs, and OBCs in education and job opportunities, in institutions, either aided or un-aided by the state. This reservation is an addition to all the previous reservations. The amendment was challenged before the Hon’ble Supreme Court by way of various writ petitions under Article 32 of the Constitution of India. The Hon’ble Court clubbed the cases under one case i.e. Janhit Abhiyan v Union of India. The Hon’ble Supreme Court then referred the matter to the Constitutional Bench comprising of Five Hon’ble Judges namely, Chief Justice of India U.U. Lalit, Justice Dinesh Maheshwari, Justice Bela Trivedi, Justice PB Pardiwala, and Justice S Ravindra Bhat. The judgment came in the ratio of 3:2, with Justice Bhat and Chief Justice U.U. Lalit gives the dissenting opinions. The majority judgement upheld the validity of the 103rd Amendment.

The petition was filed arguing that the amendment violates article 14 and the Basic Structure of the Constitution of India as:
1) Reservations are granted solely on the basis of economic criteria which cannot be done by the state as stated in Indra Sawhney v Union of India.
2) SCs, STs, and OBCs are excluded which violates their fundamental rights.
3) The reservation exceeds the 50% limit set under Indra Sawhney case.
4) It is violative for the un-aided educational institutions as the state is imposing reservation without providing any aid to them.

On September 8th, 2022, Learned Attorney General K.K. Venugopal’s issues were accepted by the Constitutional Bench which were as follows:
1) Whether the economic criteria taken by the state as sole basis for providing reservation violates Basic structure?
2) Whether excluding of certain classes violates the basic structure?
3) Whether the breach of fifty percent ceiling violates basic structure?

All three questions are related to the basic structure violation. So, what is the basic structure and why it is so important for the Indian Constitution?. 

In the landmark judgement of Kesavananda Bharti v State of Kerala, the Hon’ble Supreme Court ruled that parliament cannot restrict judicial review and The Hon’ble Courts have the power to strike down any amendment or law made by the parliament which takes away the basic features of the constitution or are in violation to the basic fundamental character of the constitution. 
After this judgement, The Hon’ble Court has strengthened its power of judicial review and is trying to safeguard the basic structure of the constitution in various cases. The Hon’ble Court has struck down various amendments brought by the parliament which infringed the basic structure of the constitution. The basic structure includes those features which forms the essence of our Indian Constitution and without which our constitution will lose its power and characteristics. Thus, it is important to protect the basic structure of the constitution, The Hon’ble Court had noted.

The Hon’ble Supreme Court dealt with many previous judgements to examine if economic criteria can be taken as the sole basis for granting reservation. In those cases, the rulings emphasized on the importance of economic factor in eradicating social and educational backwardness. The Hon’ble Court in its previous decisions has observed that the social and educational backwardness is associated with the economic backwardness of the people, i.e., the poverty aspect of our country. Under article 46, the state shall make provisions to promote educational and economic interests of the weaker sections of the society and shall promote SCs and STs. 
The Hon’ble Court laid down that although economic criteria cannot be the sole basis for providing reservation but it is for those classes which are provided with reservation under the Articles 15(4)(5) and 16(4) and it does not restrict the state to make provisions for other section of the society which are economically disadvantaged. The Hon’ble Court has also taken the view that the state has the duty to remove the economic inequalities in the society. The fact that state can bring poverty alleviation measures but cannot make provisions for reservation for the same matter gives us the assumption that the reservation is only for SCs, STs and OBCs, which is not valid.
Another reason taken by The Hon’ble Court to uphold the validity is that, the provision under Article 46 contains the words “SCs, STs and other weaker sections of the society”, which makes it clear that the state has the power to make provisions for others also and not only for the SCs and STs. Therefore, The Hon’ble Court cannot interfere in the matter where the state has acted legitimately to promote socio-economic justice by way of reservation for economically backward sections who had not been provided with any other benefits.

The Hon’ble Court held that it cannot question the observation of parliament in not providing further benefits to those classes, as they are already availing benefits and the current benefits is only for those who are facing this particular problem of economic deprivation. To give reservation to any targeted group for its benefits always results in exclusion of others as done in cases of reservation to SCs, STs, etc. Also, in case, if reservation on the grounds of economic conditions is given along with the already provided reservations on the basis of social and educational backwardness, this would create inequality as certain sections of society will be then availing double benefits while others will be only entitled to one. All these reservations are based on the principle of compensatory discrimination, which can only be practiced by excluding other groups which do not require any benefits and providing reservations to the needy. Therefore, the challenging of 103rd amendment on the basis of the exclusion of other classes was dismissed.

The Hon’ble Court here, after considering various judgements, gave the reason why breach of fifty percent ceiling limit of Indra Sawhney does not violate the basic structure. The Hon’ble Court held that, it was never a limit which cannot be breached or is inflexible, it can be breached if there are some extraordinary circumstances. Secondly, in all the previous judgements although this Hon’ble Court has tried to limit the reservation to fifty percent so as to reduce the excessive reservations which may become discriminatory, but all those were for the reservations provided under Articles 15(4)(5) and 16(4) and cannot be extended to these new provisions. Thirdly, all the previous judgements held by this Hon’ble Court indicate that the need for reservation is a state’s decision and The Hon’ble Court cannot interfere without having any proper evidence and also the need of reservation varies from case to case. Therefore, reservation given to other sections of the society which does not avail any benefit cannot be said to be in violation of basic structure.

The Hon’ble Supreme Court’s Constitution bench comprising of five Hon’ble judges, by the majority, mainly focused on the needs of the present times and concluded that the 103rd constitutional amendment 2019 does not violate the basic structure of the Constitution of India which is based on the EWS reservation. The criteria for the said reservation solely lie on economic factors and can only be provided to a limit of ten percent.

Written by:
Ekta Gupta
M/s Aura & Co. 
Date: 15.12.2022