How the Supreme Court used the Basic Structure Doctrine in the EWS judgement

The 103rd  Constitution Amendment Act, 2019, introduced amendments to Articles 15 and 16 of the Constitution, empowering the State to make special provisions for ‘economically weaker sections (EWS)’, including reservation. This Amendment provided for reservations based solely on economic criteria for the first time in Indian constitutional history. Notably, the Amendment did not extend the benefit of reservation on economic criteria for the Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC). 

The petitioners argued that this violated the basic feature of equality in the Constitution. The economic status of a person was argued to be transient in nature, whereas the inclusion of backward classes under reservation policies was due to historical and social injustice. Reservations were not devised as a poverty alleviation programme. Hence, it was argued that the exclusion of backward classes from the benefit of reservation based on economic criteria destroys the constitutional scheme, as an eligible class was excluded. Oddly, it was also suggested that this was a violation of the Article 14 equality guarantee.

In a 3:2 majority, the Supreme Court upheld the amendment in Janhit Abhiyan v. Union of India. Significantly, all five judges agreed that a reservation based on economic criteria was valid. Justice Dinesh Maheshwari developed a generic justification for all forms of affirmative action: “…if an egalitarian socio-economic order is the goal so as to make the social and economic rights a meaningful reality, which indeed is the goal of our Constitution, the deprivations arising from economic disadvantages, including those of discrimination and exclusion, need to be addressed to by the State; and for that matter, every affirmative action has the sanction of our Constitution”. If this is true, then no constitutional Amendment that proposes affirmative action would fail basic structure review for damaging the basic feature of equality.

Justice Ravindra Bhat joined Justice Maheshwari on this issue. However, he was narrower in scope and found “[t]hat reservation or special provisions have so far been provided in favour of historically disadvantaged communities, cannot be the basis for contending that other disadvantaged groups who have not been able to progress due to the ill effects of abject poverty, should remain so and the special provisions should not be made by way of affirmative action or even reservation on their behalf. Therefore, special provisions based on objective economic criteria (for the purpose of Article 15), is per se not violative of the basic structure.” By qualifying his conclusion to the case at hand – reservations based on economic criteria – Justice Bhat left open future challenges to affirmative action amendments on basic structure review grounds.

The core of the disagreement between the majority and minority views  in this case was on the exclusion of the SCs, STs and OBCs from the EWS category. It was argued that backward classes are more likely to be poor and socially disadvantaged. Their poverty was described as multi-dimensional, i.e. deeper, more intense and persistent. 

Justice Maheshwari concluded that the exclusion of SCs, STs and OBCs from EWS reservation would not attract basic structure review as reservation was not a basic feature of the Constitution. He noted that the “the reason that the provisions contained in Articles 15 and 16 of the Constitution of India, providing for reservation by way of affirmative action, being of exception to the general rule of equality, cannot be treated as a basic feature. Moreover, even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution.” 

In other words, since reservation was an exception to the general rule of equality, it cannot be treated as a basic feature. Hence, the majority concluded that the exclusion of the backward classes does not damage or destroy the basic structure, as it is a separate class. A reasonable classification between the economically weaker sections and other weaker sections was plausible and the identification of the SC, ST and OBC already took economic considerations as a factor. While the first part of Justice Maheshwari’s reasons for identifying basic features is convincing, the latter part of the argument resembles reasonable classification analysis under Article 14. Irrespective of the conclusion in the case, it is useful to avoid a conflation of fundamental rights analysis and basic structure analysis, as this produces significant confusion in the application of judicial review.

Justice Ravindra Bhat, in his minority opinion, found that the amendment violated the basic structure for excluding the poorest sections of society that are socially and educationally backward. However, he advanced a version of Article 14’s reasonable classification analysis. He explained that “[w]ithin the narrative of the classification jurisprudence, the differentia (or marker) distinguishing one person from another is deprivation alone. The exclusion, however, is not based on deprivation but on social origin or identity. This strikes at the essence of the non-discriminatory rule. Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens – and more acutely, SC and ST communities, is nothing but discrimination which reaches the level of undermining, and destroying the equality code, and particularly the principle of non-discrimination”.

However, he rightly identified the basic feature at stake, namely equality. He observed that the amendment violates the principle of non-discrimination and non-exclusion, which formed an “inextricable part of the basic structure of the Constitution”. As the impact of the amendment radically damages the identity of the Constitution, he concluded that it fails the basic structure review test.

This is an excerpt from Dr. Sudhir Krishnaswamy’s essay “The Supreme Court’s Interrogation Of The Basic Structure Doctrine In The Last Five Years” in ‘Supreme Court at 75: The Journey So Far’. The Book was produced by the Bar Association of India in collaboration with the Supreme Court Observer and published by Mohan Law House in August 2025.