[III].

The Constitution (One Hundred And First Amendment) Act, 2015 does not violate the
Basic Structure of the Constitution.

The Basic Structure doctrine as propounded in the landmark Kesavananda Bharati1 case
permits alteration or amendment of several features of the Constitution including the most
cherished Fundamental Rights2 as long as it does not impair the constitutional identity or violates
the Basic Structure. The 101st Constitutional Amendment does not alter the Basic Structure, but
only furthers its objectives.

[III.A.] The Constitution Amendment was the need of the hour as reservations had led to
Reverse Discrimination and violated the Equality clause of the Constitution.

1. The Constitution Amendment was the need of the hour to prevent Reverse Discrimination

The concept of reservation can be applied only with limitations3 inherent in the constitution itself
like socially and educational backwardness4, inadequacy of representation5, general efficiency of
the system6. Any reservation scheme under article 15(4) should take into account the interests of
the beneficiary community and the interest of the society as the whole7. In the present case, the
reservation scheme has become an end in itself while, it was originally envisaged to be a means

1Kesavanandha Bharati v. State of Kerala (1973) 4 SCC 225

2 Indira Gandhi v. Rajnarain AIR 1975 SC 229: (1975) 3 SCC 34 ; See also Minerva Mills v. Union of India AIR
1980 SC 1789: (1980) 2 SCC 591

3 Faculty Assn. of AIIMS v. UOI (2013) 11 SCC 246

4 Art.15(4), Constitution of India, 1950

5 Art.16(4), Constitution of India, 1950

6 Art.335, Constitution of India, 1950

7 Preeti Srivastava v. State of M.P. AIR 1999 SC 2894 : (1999) 7 SCC 120
to a higher end, social justice8. The increase in the quota of reservation during the period between
1954 and 20159 has resulted in a concept of Reverse Discrimination.

Despite, reservations being within 50% of the total number of seats as mentioned in the cases of
M.R.Balaji10 and upheld in Indra Sawhney11, it had led to an increased number of suicides12
committed by students belonging to the General category in a highly competitive academic
regime. In the Commissioners (now replaced by the national commission) report for Scheduled
Castes and Scheduled Tribes for the year 1957-58, he raised a very crucial point stating,
backwardness has a tendency to perpetuate itself and become a vested interest and that if the
ultimate goal of having a classless and casteless society is to be attained, the lists of Scheduled
Castes and Scheduled Tribes would have to be reduced from year-to-year and replaced in the
due course by a list based on criteria of income-cum merit13. In Haden, the apprehension of the
commissioner had come true as reflected by the increase in the reservation percentage. The
adverse effect of such a privilege has resulted in Reverse Discrimination. It would be
constitutionally immoral to perpetuate inequality among majority people of the country in the
guise of protecting the constitutional rights of backward and downtrodden14. Reverse
Discrimination is applicable to extending reservations when they are really not needed thereby
jeopardizing the rights of the general category as much as how they are applicable for an

8 See Jyotica Pragya Kumar, Policy of Reservation- its envisioned perspective,

Journal of Indian law institute, Vol.39, 1997

9 Factsheet, para.9, pg.4

10 AIR 1963 SC 649

11 (2000) 1 SCC 168

12 Factsheet, para.11, pg.4

13 See Report of the Commissioner report for Scheduled Castes and Scheduled
Tribes for the year, 1957-58

14 Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697

impediment free quantity of reservation15. In such a case, the ultimate objective of affirmative
action is defeated as it grossly violates the equality clause of the constitution and no reservation
can obliterate the individual right to equal opportunity. Such application of the theory of Rule of
law and protection of individual rights against any sort of discrimination is also recognized by
various international conventions.16

The very fact that affirmative action was subject to constitutional, judicial limitations and bound
by time17 proves that it cannot override the general provisions of equality18. Thus, the 101st
Constitutional Amendment Act was a blessing as reservations had led to subversion of fraternity,
unity and integrity and dignity of the individual secured by the preamble19.

2. Affirmative Action is not a part of the doctrine of Basic Structure Constitutional Amendment
only furthers the elements of Basic Structure.

Reservation is only a prerogative of the state and not a constitutional mandate20.Article 15(4) and
16(4) are enabling provisions that enable the state to perform something that otherwise would
have been unconstitutional21. The power to make reservation is discretionary and not mandatory.
Nowhere in the doctrine of Basic Structure is reservation mentioned. Their temporary nature
15 M Nagaraj v. Union of India (2006) 8 SCC 212

16 Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A

(III), UN Doc A/810 at 71 (1948); Article 14, United Nation Covenant on Civil and
Political Rights, 6 ILM 368 (1967); Article 14, European Convention on Human
Rights, 213 UNTS 221

17 Factsheet, para.6 , pg.3

18 John Vallamettom v. Union of India, AIR 2003 SC 2902

19 AIIMS Students Union v. AIIMS, AIR 2001SC 3262

20 E.V.Chinnaih v. State of A.P (2005) 1 SCC 394 : AIR 2005 SC 162

21 See D.D.Basu, Commentaries on the Constitution of India, 9th edition, LexisNexis, New Delhi
does not make them an inviolable part of the constitution nor its identity. However, equality as a
general principle is a part of the Basic Structure22. As previously discussed, equality confers
equal protection of laws and reservation is neither an exception nor a proviso to article 15, but
only a mere application23.

The fact that reservations cannot exist in perpetuity to treat the beneficiaries as socially and
educationally backward24 conveys that it cannot be a part of the Basic Structure. The State will
take initiative in reviewing periodically the beneficiary castes and tribes and on reaching
progress, reservation shall not be granted25. This is contrary to the Doctrine of Basic Structure
which forever maintains the constitutional identity and retains it as an organic whole26. Only
equality as stated before, is a part of the Basic Structure and not reservation.

In Arguendo, assuming that for a moment, reservation as part of the equality clause was
considered to be a part of Basic Structure till equality and a level playing field were achieved, it
will no longer be a part of it as Haden is already witnessing equality in its truest sense with very
few instances of discrimination27.Caste was no longer a barrier in the economic prosperity of
LCs and LGs28. From the case of M.R.Balaji29, it is clear that caste cannot be a sole criteria in
granting reservation unless it is coupled with economic backwardness. If reservation is solely
22 Raghunathrao Ganpathrao v. Union of India AIR 1993 SC 1267 CB : 1994 Supp. (1) SCC
191 : 1993 (1) SCR 480

23 Supra note 11

24 Jagdish Negi v. State of U.P. (1997) 3 SCC 203 : AIR 1997 SC 3505

25 State of U.P v. U.S.V. Balram AIR 1972 SC 1375 : (1972) 1 SCC 660

26 See H.M.Seervai, Constitutional Law of India, Vol.2, 4 th edition, Universal law

publishing Co., New Delhi

27 Factsheet para.8, pg. 3

28 Factsheet para.11, pg.4

29 Supra note 10
based on caste and not on social and educational backwardness, it would be violative of Article
15(1)30. Thus, the LCs and LGs were not subjected to any economic disabilities on behalf of
their caste, it cannot be invoked as a factor in granting reservation. Equality having already been
achieved would no longer require a special/preferential treatment in favour of any class. Thus,
reservation had achieved what it sought to and there was no further requirement.

3. Constitutional Amendment Act only furthers the elements of Basic Structure.

The 101st Constitutional Amendment Act does not violate any element of the Basic Structure, but
rather promotes or furthers some of the elements specified therein. The concept of Rule of law,
which was held to be a part of Basic Structure in Indira Gandhi case31 has been extended added
depth to by the amendment as it completely prohibits all sorts of discrimination, be it positive or
negative. It states that every man, whatever his rank or condition, is subject to the ordinary law
and jurisdiction of the ordinary courts and that no man is above law32. Article 14 is one of the
provisions in the Indian constitution along with articles 19, 21, 32 and 226 which constitutes the
life breath of this concept. Thus, through the amendment Act, Rule of law which forms a part of
Basic Structure has been upheld and given further impetus to.

The concept of welfare state which was held to be a part of the Basic Structure in the case of
Kesavanandha Bharathi33 and Bhim Singhji34 stands accomplished on the implementation of this
amendment. Any welfare state is expected to protect and promote the interests of its people35

30 P. Rajendran v. St. of Madras AIR 1968 SC 1012 : (1968) 2 SCR 786; See also A.Periakaruppan v. State of
Tamilnadu AIR 1971 SC 2303

31 Supra note 2

32 See A.V.Dicey, Introduction to the study of the law of Constitution, Chapter 4,

10th edition, Macmillan & Co.ltd.

33 Supra note 1

34 Bhim Singhji v. Union of India AIR 1981 SC 234: (1981) 1 SCC 166

35 Paschim Banga Khet Mazdoor Samity v. St. of West Bengal (1996) 4 SCC 37 : AIR 1996 SC 2426
irrespective of their caste, creed, sex, religion etc. By abolishing reservation, the State aims to
protect the welfare of each and every citizen without any discrimination. Also, the amendment
seeks to remove any sort of inequalities which was perpetuated by the caste system and in doing
so, promotes the unity and integrity of the nation36. It removes the ills and hatred which was
created by the caste system and promotes fraternity among the people. The rule of equality in
public employment which was held to be a part of the Basic Structure37 also is furthered through
the amendment. Thus, the Amendment has added new dimensions to the existing Basic Structure
doctrine which the concept of reservations only abrogated.

[III.B] The 101st Constitutional Amendment Act, 2015 does not exceed the standards set in the
Twin tests laid down in M.Nagaraj v. Union of India.38

The Supreme Court in order to determine the constitutional validity of the 77th, 81st , 82nd and 85th
Constitutional Amendments Acts which inserted new provisions in the form of article 16(4A),
(4B) and amended article 335 in favour of the SCs and STs. The impugned amendments
introduced reservation in promotion with consequential seniority for SCs and STs in any class
of job relating to public employment and relaxed the limitations in qualifying marks or standards
of evaluation in article 335. The Court while upholding the impugned amendments laid down
twin tests comprising of the width test and the test of identity to assess if the provisions
violated the Basic Structure of the constitution.

In applying the width test, the court considered the width of the power conferred under the
amendment in the sense that, whether they obliterate the constitutional limitations which reduce
the scope of its exercise which was in the form of 16(4) namely, backwardness and inadequacy
of representation. Another limitation was in the form of Article 335 where the general efficiency
of the service was to be maintained while providing affirmative action. The court came to the
conclusion that the amendments did not derogate the constitutional requirements. Applying the
36 Supra note 1

37 Secretary of State, Karnataka v. Umadevi (3)(2006) 4 SCC 1; See also Surinder

Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad (2006) 7 SCC 684, 699:
(2006) 8 JT 504

38 Supra note 15
test of identity, the court stated that through the impugned amendments, the constitution did not
lose its identity in the sense that there was no alteration in the existing structure of the equality
code and none of the overarching principles of the constitution like secularism, federalism,
democracy etc. have been violated39.

In the present case, to check if the amendment violates the Basic Structure, the twin tests can be
performed. By applying the 'width test', it is inferred that the power conferred to the parliament
to amend the parts of the constitution without violating the Basic Structure is lawful. Article 368
grants power to parliament to amend any part or provision of the constitution including the
Fundamental Rights provided such an amendment does not exceed the limits prescribed by the
judicial doctrine of Basic Structure40. Also, articles 338, 338A and 340 provide for establishment
of national commission for SC's, ST's and Backward classes. These commissions submit reports
annually to comment on the progress made by these communities and make suggestions for
inclusion or exclusion of SC's and ST's. Correlating this with facts of the present case proves that
there was no longer a need for reservation and the due process was followed without
circumventing the procedures. Thus, the amendment is within the ambit of the width test and
does not obliterate any constitutional or judicial limitations.

By applying the 'test of identity', it can be conclusively proved that none of the 'overarching
principles like democracy, secularism etc have been subverted. In fact, the court held in
Nagaraj41 that "the main objective behind the theory of constitutional identity is continuity, and
within the continuity of identity, changes are admissible depending upon the circumstances and
situation of the day" . Subsequently, it can also be proved that the "doctrine of guided power"
was complied with as the power conferred upon the parliament was exercised properly and not
arbitrarily.

[III.B] Fundamental Rights should be given preference over Directive Principles of State Policy
in case of direct conflict.

39 See Justice V.Dhanapalan, Basic Structure of the Indian Constitution- An Overview, C.Sitaram & Co.

40 Supra note 1

41 Supra note 15
The concept of reservations guaranteed by articles 15(4) and 16(4) are intended to implement
the Directives mentioned in articles 38(1) and 46 and not render the general rule mentioned in
15(1) meaningless42. The State cannot exclude the rest of the citizens and ignore their
Fundamental Rights altogether while granting affirmative action43. This is all the more relevant
in the case of Haden where discrimination no longer existed and there was no further
requirement of the implementation of affirmative action. It is to be noted that reservations by
themselves are not Fundamental rights as they do not grant any particular right on any member
of these depressed classes to compel the state to make such special provisions44. For the same
reason, no writ can be issued by any administrative body to effect reservation45 like other
Fundamental Rights.

H.M.Seervai criticizes the proposition that Directive Principles should be accorded the same
treatment with that of Fundamental Rights as being unfounded assumptions46. First, he argues
that directive principles cover one part of the very wide field covered by fundamental rights and
second, fundamental rights cannot be the means by which the ends prescribed in directive
principles can be achieved, because the ends are optional and have been ignored from time to
time by the legislature and executive. For the same reason, the draft article submitted by Dr.
B.N.Rau during the framing of the Constitution requesting to make directive principles
enforceable was rejected by the Constituent Assembly47.

42 State of Punjab v. Hiralal AIR 1971 SC 1777 (1780) : (1970) 3 SCC 567

43 Asis Kumar Maity v. State of West Bengal AIR 1995 Cal 160

44 Pranatosh Roy v. University of Calcutta AIR 1998 Cal 181

45 G.Rahan v. Bharat petroleum corpn. Ltd. 2004 AIHC 2213 (AP)

46 See H.M.Seervai, Constitutional law of India, Vol.2, 4 th edition, Universal law

Publishing Co., New Delhi

47 ibid
So, if there is a clash between affirmative action which are guided by the principles laid down in
Directive Principles of State Policy and the general rule of equality under articles 14, 15(1) and
16(1), the latter should prevail on the following grounds :

1. Limitations of the Doctrine of Harmonious Construction

The doctrine of Harmonious Construction used by courts in interpreting and giving effect to
multiple provisions has been applied widely in reconciling the differences between Fundamental
Rights and Directive Principles48. The presumption behind its usage is that no conflict or
repugnancy was intended by the framers between the various provisions of the constitution49.
However, the doctrine is applicable only to the extent that it can be applies only when it is
possible to do so, to construe provisions which appear to conflict50. If the court finds it
impossible to reconcile51 both the provisions, the provisions of one section of a statute can defeat
the other52. A familiar approach in all such cases is to find out which of the two apparently
conflicting provisions is more general and which is more specific and to construe the more
general one as to exclude the specific one53. The question as to the relative nature of the
provisions general or specific54 has to be determined with reference to the area and extent of their

48 Venkataramana v. State of Mysore AIR 1958 SC 255 : 1958 SCR 895

49 See M.P.Jain, Indian Constitutional law, 7th edition, LexisNexis, New Delhi

50 Sultana Begum v. Premchand Jain AIR 1997 SC 1006 : 1997 (1) SCC 373; See
also Kailash Chandra v. Mukandi Lal AIR 2002 SC 829 : (2002) 2 SCC 678

51 Mohammad Sher Khan v. Raja Seth Swami Dayal AIR 1922 PC 17; See also
Sanjeevayya v. Election Tribunal, Andhra Pradesh AIR 1967 SC 1211 : 1967 (2) SCR
489

52 See Avtar Singh and Harpreet Kaur, Introduction to interpretation of statutes,

Lexis Nexis, 4th edition, Lexis Nexis, New Delhi

53 South India corporation (P) Ltd. V. Secretary, Board of revenue, Trivandrum AIR
1964 SC 207 : 1964(4) SCR 280; See also Corporation of India v. D.J.Bahadur AIR
1980 SC 2181
application either generally or specially in particular situations55. In this case, reservations which
depend on the Directive Principles, also being temporary in nature are relatively specific when
compared to the general rules of article 14 and other Fundamental Rights. Thus, articles 14,
15(1) and 16(1) which are general and applicable to each and every one, contrary to affirmative
action which is applicable to just the disadvantaged sections should be given preference.

There are two premises to be noted: 1) Directive Principles have no legal enforceability despite
complementing and supplementing Fundamental Rights. This aspect was rightly acknowledged
by Dr. Ambedkar when he conceded to the fact that they have no legal force56 and serve as just
moral precepts in governing the country. 2) Equality was the norm in Haden and there was no
discrimination and therefore, affirmative action which derived its legitimacy from Directive
Principles should not be prioritized over Fundamental Rights granted to the entire population.
Also, the courts have often held that Part III of the constitution should be interpreted
progressively57 in the light of the purpose they seek to achieve. The courts are not bound to
accept an interpretation which retards the progress or impedes social integration58. Thus, granting
affirmative action when it is no longer needed impairs social progress.

2. Fundamental Rights are ends in themselves and not means to the ends prescribed in Part IV

The verdicts in Minerva Mills and Unnikrishnans case decisively proved that Fundamental
Rights are not an end in themselves, but are the means to an end specified in Directive
Principles. On further introspection, it can be found that directive principles are being
incorporated into the provisions of Part III to make them legally enforceable. For e.g., Right to
54 See Justice G.P.Singh, Principles of Statutory Interpretation, 14 th edition,
LexisNexis, New Delhi

55 Collector of Central Excise Jaipur v. Raghuvar (India) Ltd. JT 2000 (7) SC 99:
(2000) 5 SCC 299 : AIR 2000 SC 2027

56 See Constitution Assembly Debates, Vol. VII, p. 41

57 Life Insurance corpn. V. Prof. Manubhai D Shah (1992) 3 SCC 637

58 See N.S.Bindra, Interpretation of Statutes, 11 th edition, LexisNexis , New Delhi

education which is a Directive Principle under article 41 has merged into being a part of
Fundamental Rights under Article 21A of the constitution59 and made enforceable. Also, under
Article 21, a plethora of rights have been incorporated from the Directive principles and made
enforceable. For e.g., Right to live with human dignity enshrined in Article 21 derives its life
breath from Article 39 and 43 of the constitution which constitute Directive Principles60. Right to
life has been held to include right to pollution free water, air and environment61, which are
various aspects of articles 47 and 49. Right to shelter in light of article 47 which mandates the
State to raise the standard of living of its subjects has held to be a part of article 2162. Thus, there
is a fine line separating the two of them and Directive Principles are eventually being induced to
be a part of Part III in order to make them legal mandates and truly achieve the status of a
welfare state.

The 101st Constitutional amendment has therefore not violated the Basic Structure, but rather has
upheld and promoted all of its elements.

59 See Constitution (Eighty-sixth) Amendment Act, 2002

60 Bandhua Mukthi Morcha v. Union of India AIR 1984 SC 802 : (1984) 3 SCC 161

61 Subash Kumar v. State of Bihar AIR 1991 SC 420 : (1991) 1 SCC 598

62 Chameli Singh v. State of Uttar Pradesh AIR 1996 SC 1051 : (1996) 2 SCC 549