A bench of Chief Justice S A Bobde, R Subhash Reddy and B R Gavai said it is of the view that the questions raised in a batch of pleas and transfer petitions “do constitute substantial questions of law to be considered by a Bench of five Judges”.
The top court said, “It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges”.
It had reserved its verdict on July 31, 2019, a little more than a year on the limited point of reference to the larger bench.
The bench said that whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law.
It said that the question such as whether the ceiling of 50 per cent for affirmative action can be breached as the Centre claimed that though it is ordinarily a rule but same will not prevent to amend the Constitution in view of the existing special circumstances also constitute as substantial question of law to be examined by a bench of five-judges.
The top court allowed the transfer petition filed by Centre seeking transfer of writ petitions filed before various High Court to the apex court involving the challenge to the validity of the Constitution (103 amendment) Act 2019.
It said that this Court has already issued notice in a writ petition wherein validity of very same Amendment Act is questioned before this Court; “we deem it appropriate that these transfer petitions are fit to be allowed”.
“For the aforesaid reasons, we allow the transfer petitions and refer this batch of cases, including the cases covered by transfer applications, to a Bench of five Judges. Registry to place the matter before the Chief Justice, for obtaining appropriate orders in this regard,” it said.
The top court said after hearing Attorney General K K Venugopal, appearing for Centre and the counsel for petitioners on the point of reference, it is in agreement with the petitioners that these matters involve substantial questions of law, as such, they are required to be heard by a bench of five Judges in view of the provision under Article 145(3) of the Constitution of India and Order XXXVIII of the Supreme Court Rules, 2013.
Petitioners which include several NGOs, individuals and lawyers have argued that that the impugned amendments violate the basic structure of the Constitution mainly on the ground that the existing provisions empower to provide affirmative action only in favour of socially backward classes.
They argued that economic criteria alone cannot be the basis to determine backwardness and it is for the first time that by the impugned amendments in the Constitution itself, the new clauses are incorporated enabling the State to provide affirmative action by way of reservation to the extent of 10 per cent in educational institutions and for appointment in services to EWS of society.
The counsel for petitioners had relied on nine-judge verdict in the 1992 case of Indra Sawhney and said that the impugned amendments run contrary to the said judgment as it exceeds the ceiling cap of 50 per cent.
Venugopal had opposed the reference to the larger bench and said that the Amendment Act was necessitated to benefit the economically weaker sections of the society who are not covered within the existing schemes of reservation, which as per statistics, constitute a considerably large segment of Indian population.
He has argued that in order to do justice across all the weaker sections of the society, it was considered imperative that the Constitution be appropriately amended to enable the State to extend various benefits, including reservations in educational institutions and public employment, to the EWS of the society, who are not covered by existing schemes of reservation.
He had refuted the allegation of the petitioners that the impugned amendments alter the basic structure of the Constitution and said that to sustain a challenge against a constitutional amendment; it must be shown that the very identity of the Constitution has been altered.
Venugopal had said that a mere amendment to an Article of the Constitution, even if embodying a basic feature, will not necessarily lead to a violation of basic feature involved.
He had said that Centre’s decision to grant 10 per cent reservation in jobs and education to economically weaker section is intended to uplift around 200 million people who are below the poverty line even after over 70 years of independence.
The apex court had earlier refused to stay the Centre’s decision to grant 10 per cent quota in jobs and admissions to economically weaker section of citizens.
Lok Sabha and Rajya Sabha cleared the bill on January 8 and 9, 2019 respectively, and it has been signed by President Ram Nath Kovind.
The quota will be over and above the existing 50 per cent reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes.