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Reservation as affirmative action or positive discrimination has a history that dates back to British India. Since then it is a tool used by politicians to fulfil their needs. Unfortunately, Reservation has been wrapped in a political stunt, be it the case in Maharashtra or Haryana. The Supreme Court


Reservation as affirmative action or positive discrimination has a history that dates back to British India. Since then it is a tool used by politicians to fulfil their needs. Unfortunately, Reservation has been wrapped in a political stunt, be it the case in Maharashtra or Haryana. The Supreme Court from time to time has struck down these unconstitutional desires nevertheless it does not end and will continue more after the recent EWS judgment in the case of Janhit Abhiyan vs. Union of India[1]. Based on the social backwardness of a particular caste, the reservation had the purpose to create a casteless and classless society. It was created to justify the injustice faced by the individual of those castes. The Constitutional Assembly settled for the reservation based on castes but thought differently about the “economic criteria ” to be used as a basis to grant reservations. It has been 75 years of glorious independence, and not only is there a gigantic change in power politically but also a change in thinking psychology. The Janhit Abhiyan judgment wrote history as it was unanimously acquiesced by the judges, that economic criterion is justified to be used as the basis for reservation. It was passed by a majority of 3:2 where the majority was delivered by Honorable Justice Dinesh Maheshwari, Honorable Justice Bela M. Trivedi and Honorable Justice J.B. Pardiwala held that reservations based on economic criteria without the inclusion of previously identified socially backward classes do not violate the basic structure of the constitution and are a need of the hour for modern societies whereas Honorable Justice S. Ravindra Bhat and Former Chief Justice of India Uday Umesh Lalit surrendered a minority view as they believed it violates the equality code and basic structure of the constitution.1 Consequently, the 103rd Constitutional amendment, 2019 which introduced Articles 15(6) and 16 (6)[2] to extend reservations to Economically Weaker Sections (EWS) was held impeccably constitutional by the Supreme Court of India.


Articles 14, 15, 16 and 17 of the Constitution of India[3] constitute an equality code. Article 14 expounds on the general rule of equality whereas Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Article 16 is an application of the general rule with specific reference to appointments under the State and Article 17 is the abolition of untouchability. The relation between these articles is special in the case of reservation. Socially backward castes have faced centuries of oppression, discrimination and humility. Application of facet equality in case of them will be further discrimination against them. The unequal can’t be treated the same as equal. Hence, reservations were created as positive discrimination to uplift those classes to an equal status. The Supreme Court held that although facet equality is part of the basic structure of the constitution, classification under Articles 15 and 16 is not violative of the basic structure of the Constitution.[4]

Justice Ravindra Bhat in the Janhit Abhiyan case[5] held that the amendment engages in forms of discrimination that are expressly forbidden by the constitution by excluding a sizable portion of equally poor people from the benefits of the new opportunities created for the poor. This exclusion is based on their social backwardness and legally recognized caste stigmatization. Accordingly, this is a violation of the equality code and the basic structure of the Constitution.

Justice Dinesh Maheshwari held that the 103rd Constitutional amendment is not violative of basic structure as the State has a right and duty to make provisions for the education of not only socially backward classes but also economically disadvantaged sections of society.

Concurring, with the view of Justice Maheshwari, Justice Bela M Trivedi held that “at the end of 75 years of independence, we need to revisit the system of reservation in the larger interests of the society as a step forward towards transformative constitutionalism.”[6] Justice Trivedi regarded that reservations were introduced to address the historic injustice faced by backward classes. She further regarded the time limit that was set for reservations under Article 344 of the Indian Constitution[7] which has been extended from time to time and needs to be applied in the case of reservations under Articles 15 and 16 to build an egalitarian society.

Justice J.B. Pardiwala supported the majority view and held that “reservations can’t be indefinite”, a limit has to be set for the same as it was agreed that reservations will continue for ten years but has been continued for decades since then. Reservations had the purpose to snuff out the bases which prevented backward classes from attaining education. Justice Pardiwala regarded that “reservation is not an end but a means to secure social justice.” He further stated that there is a need to review the method of identification of socially backward classes.


Justice Ravindra Bhat supported his view by analyzing the reports of the Sinho Commission, National Sample Survey Organization (NSSO) Reports (2004-05) and the NITI Aayog Report on the National Multidimensional Poverty Index (published in 2021). According to the NITI Aayog Report, a poor person is an individual who spends less than ₹47 a day in cities and less than ₹32 a day in villages.[8] The Sinho Commission was established to assess the situation of economically underprivileged sections and make recommendations, including whether or not reservations would be viable. The statistics of National Sample Survey Organization (NSSO) Reports (2004- 05) revealed that 31.7 crore people were below the poverty line (“BPL”), of which the scheduled caste population was 7.74 crores (i.e., 38% of the total scheduled castes), scheduled tribe population was 4.25 crores (48.4% of total scheduled tribes), 13.86 crores of OBC population (which was 33.1% of the total OBCs), and 5.85 crores of General Category (18.2% of total general category).[9] Justice Ravindra Bhat’s argument relied on this data where he stated that to state that someone is poor, as desperately poor or even more so than members of other communities (who were not entitled to the reparative reservations under Article 15(4) and 16(4)), yet being kept out because they belong to a scheduled caste or scheduled tribe is nothing but discrimination. The Majority relied on the context of the State to create provisions for the disadvantaged rather than on data.


Indra Sawhney’s judgment of 1992 fixed a cap of 50% in the case of reservation which cannot be breached unless there is an extraordinary situation.[10] The Majority view regarded this 50% is in the context that classes that have already secured a reservation under the 50% ceiling cannot stake for another 10%. Justice Ravindra Bhat who held a minority view preferred to keep the question of violation of the 50% rule open and stated the words of Dr B R Ambedkar that reservations are to be kept as temporary and exceptional or else they would “eat up the rule of equality”.


The primary context of the discussion in the whole judgment was whether the exclusion of previously identified backward classes- SC / ST/ OBC in the reservation of 10% based on economic criteria is violative of the basic structure of the constitution or not. The Majority heavily relied on the purpose of reservation and the role of the State to make provisions. Their view had a liberal and futuristic approach but lacked the discussion of constitutional debates and the view of constitutional forefathers. The Minority on the other hand captures the exclusion of backward classes ideally and fosters the approach of equality rather than divisiveness. This judgment will have a large impact on educational institutions and public employment under the State. The future is full of challenges, and I hope that this judgment fulfills its purpose of creating an egalitarian casteless and classless society.

Author(s) Name: Paavanta Arya (National Law University, Odisha)


[1] Janhit Abhiyan v. Union of India, 2022 SCC OnLine SC 1540.

[2] Constitution of India, art. 15(6), 16(6)

[3] Constitution of India, art. 14, 15, 16, 17

[4] M. Nagaraj v. Union of India, (2006) 8 SCC 212

[5] Ibid 1

[6] Supra Note 1

[7] Constitution of India, art. 344

[8] Niti Ayog, National Multidimensional Poverty Index (2015-16).

[9] National Sample Survey Office, Employment and Unemployment Situation Among Social Groups in India (2004- 05).

[10] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.