Compensatory Discrimination / The Revival of Ray LXXXVII


Janhit Abhiyan v. Union of India, Writ Petition (Civil) No. 55 of 2019   

As laid down by this Court, just as equals cannot be treated unequally, unequals also cannot be treated equally. Treating economically weaker sections of citizens as a separate class would be a reasonable classification and could not be termed as an unreasonable or unjustifiable classification, much less a betrayal of basic feature or violative of Article 14.

– Hon’ble Justice Bela M. Trivedi.

What is so principally, so fundamentally wrong in singling out an economic criterion for reservation? 103rd Amendment does not alter, destroy or damage Basic Structure. It adds a new dimension to constitutional project of uplifting poorest segments of society.

Judging from past history one may doubt if any feature of law and society is unchangeable. What was considered fundamental by one society at one time was abandoned later as an outmoded impediment.

Hon’ble Justice J.B. Pardiwala.

There had been voices of concern about exact nature and implication of Doctrine of Basic Structure. Court had not worked out implications of Basic Structure Doctrine in all its applications. It was perhaps left in an amorphous state which could give rise to possible misunderstandings [State of Karnataka v. Union of India, (1977) 4 SCC 608].

Constitution, as it is often said is a living organic thing and must be applied to meet current needs and requirements [Association of Unified Tele Services v. Union of India, (2014) 6 SCC 110]. Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined” within traditional and doctrinaire limits [E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3].

Court has not put a blanket ban on providing reservation for other sections who are disadvantaged due to economic conditions. 103rd Amendment is essentially related to requirements of those economically weaker sections who have hitherto not been given benefit of an affirmative action (particularly of reservation), which was accorded to other classes of citizens; classes who are already recipient of compensatory discrimination, by virtue of Articles 15(4), 15(5) and 16(4), cannot justifiably grieve, they have been excluded in another set of compensatory discrimination for another class.

Hon’ble Justice Dinesh Maheshwari.

103rd Amendment creates paths, gateways, and opportunities to poorest segments of our society, enabling them multiple access points to spaces they were unable to go to, places and positions they were unable to fill, and opportunities they could not hope ever to ordinarily use, due to their destitution, economic deprivation, and penury. These: destitution, economic deprivation, poverty, are markers, or intelligible differentia, forming basis of classification on which 103rd Amendment is entirely premised. To that extent, 103rd Amendment is constitutionally indefeasible. However, by excluding a large section of equally poor and destitute individuals – based on their social backwardness and legally acknowledged caste stigmatization – from benefit of new opportunities created for poor, 103rd Amendment practices constitutionally prohibited forms of discrimination.

Doctrine of Classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master [Mohammad Shujat Ali v. Union of India, (1975) 3 SCC 76].

I cannot persuade myself to be sanguine about, poorest of poor do not comprise large sections of backward classes and even larger segments of SCs/STs [Sinho Commission Report].

– Hon’ble Mr. Justice S. Ravindra Bhat.

RaY



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