Upper caste quota: Not a legal challenge! Basic structure of Constitution not cast in stone

Updated: Jan 20, 2019 8:27 PM

The reservation to EWS comes within the latitudes and the leeway granted to the executive and the legislature. The amendment will surely pass constitutional muster.

What is important is not to judge the political expediency of the issue but to judge whether the decision itself do not violate or transgress the basic fundamentals of the Constitution.

By Alangad Raghunath

Recently, the Indian Parliament gave its assent to the 124th amendment to the Indian Constitution which aims to provide ten percent reservation in public employment and higher education for economically weaker sections (EWS) of the Indian population. The said amendment seeks to add sub clause (6) to Articles 15 and 16 of the Constitution and creates a new class of citizens based on economic criteria. The principal problem which the Government will have to surmount in the ensuing legal challenge before the Supreme Court is in fending off the argument that the creation of a new class of citizens will amount to violating the basic structure doctrine evolved by the Supreme Court through the decades.

Reservation for EWs and the ‘Basic Structure’ argument
The ‘basic structure’ argument would be that the Constitution does not envisage reservations based on economically weaker sections but only permits reservation on socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes. Therefore, it can be argued that the new reservation for the EWS is violative and transgresses the basic structure doctrine.

However, the above argument is both flawed and unsound.

The argument on ‘basic structure theory’ would not be a hindrance for the newly introduced reservations for the ‘EWS’ in as much as the ‘basic structure’ theory like other words in the Constitution are mere concepts and it is for each passing generation to feed and make laws that are alive to the changing needs and requirements of the society.

Way back in 1994, the Supreme Court held that “ words are but the framework of concepts and concepts may change more than the words themselves.”

Reservations and Reality of a Constitutional Republic

The reality of a Constitutional republic is very much based on the political maturity of the ruling class and its ability to respond to the needs and requirements and to cater to the legitimate desires of the people it governs, as to the maintenance of the Constitutional principles and the bedrock on which it rests. To put it simply, the executive has sufficient latitudes to implement and carry out the ‘concepts’ of the Constitution.

The reservation to EWS comes within the latitudes and the leeway granted to the executive and the legislature. The amendment will surely pass constitutional muster.

What is important is not to judge the political expediency of the issue but to judge whether the decision itself do not violate or transgress the basic fundamentals of the Constitution.

Also, note whether the reality of the Constitution and its solid foundation values are carried forward by this decision.

Constitutional interpretation: Why India discarded ‘Originalist theory’

In this context, it is well to remind ourselves that India has long discarded the ‘Originalist theory’ of Constitutional interpretation. This theory advocates the interpretation of constitutional text in accordance with the meaning and intention that was accorded to it during its formulation.

Even in the United States, where the ‘Originalist theory’ has the maximum followers, it has now given way to what is now being called ‘Originalism 2.0’or ‘New Originalism’.

Reservation and Dynamic Nature of Indian Constitution

We have long recognised that our Constitution is ‘dynamic and a living one’ and should be flexible to cater to or to meet the innumerable concerns of a diverse country facing grave cultural and social crises. Moreover, as our Constitution was enacted only in 1950 which is fairly recent as compared to other Constitutions like that of the United States, it had to cater to a fairly modern world with changes coming its way a lot more frequently than to other countries which enacted its Constitution centuries ago.

[DO READ: Legal implications of Rafale judgment]

While concluding and also congratulating the political class as a whole, which almost unanimously passed the 124th amendment to the Constitution, one hopes and prays that the Supreme Court will not fail its citizens when it is adjudicating the challenge to the said amendment.

Reservation for general category: Interpretation of Constitutional Concepts

It is best for the judges hearing the issue to hearken to the words of wisdom of the jurist Chief Justice M.N. Venkatachaliah in one of his innumerable judgments, most of which are locus classicus:

“In the interpretation of a constitutional document, words are but the framework of concepts and concepts may change more than words themselves”…. significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that “the intention of a Constitution is rather to outline principles than to engrave details”.

Based on the above principles, the 124th amendment to the Constitution passed in the wisdom of the members of the Parliament and the State assemblies is legit and permissible within the four corners of the Constitutional law of India.

(Alangad Raghunath is Advocate on Record, Supreme Court. Views expressed are the author’s own.)

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