In his dissenting opinion, Supreme Court judge Justice S. Ravindra Bhat said that as per the 103rd Constitutional Amendment which grants 10 percent reservation to Economically Weaker Section (EWS) among the forward castes is unconstitutional for excluding the Scheduled Caste, Scheduled Tribe (SC/ST) and Other Backward Classes (OBCs) from reservation bracket.

The EWS reservation was upheld to be constitutionally valid on Monday by a bench comprising Chief Justice of India (CJI) UU Lalit,Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J.B. Pardiwala by a 3:2 majority.

Here’s the full text of Justice Ravindra Bhat’s verdict:

1. I regret my inability to concur with the views expressed by the majority opinion on the validity of the 103rd Amendment on Question No. 3, since I feel – for reasons set out elaborately in the following opinion – that this court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion. In my considered opinion, the amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the Basic Structure.
2. At the outset, I must state that I am in agreement that the addition, or insertion of the ‘economic criteria’ for affirmative action in aid of the section of population who face deprivation due to poverty, in furtherance of Article 46, does not per se stray from the Constitutional principles, so as to alter, violate, or destroy its basic structure. As long as the State addresses deprivation resulting from discriminatory social practices which have kept the largest number of our populace in the margins, and continues its ameliorative policies and laws, the introduction of such deprivation- based affirmative action, is consistent with constitutional goals. What, however, needs further scrutiny, (which this opinion proposes to address

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presently) is whether the manner of implementing – i.e., the implicit exclusion of those covered under Art. 15(4) and 16(4) [Scheduled Castes (“SC”), Scheduled Tribes (“ST”), and socially and educationally backward classes (“SEBC”)], cumulatively referred to as ‘backward classes’] violates, or damages the basic structure or essential features of the Constitution.
3. Therefore, I will first address the point of my disagreement – Question 3 [Part III] followed by a discussion on Question 1 [Part IV]; I have also separately considered economic criteria vis-a-vis Article 16, specifically [Part V]. I have given my additional reasoning on Question 2 [Part VI]. Since all three questions framed by this court, entail an examination under the doctrine of basic structure, I find it necessary to lay out the contours of this doctrine, the standard of review for identifying the essential feature or principle, and for application of the doctrine itself [Part II].
I. Context and history of reservations
4. Given that it has been exhaustively recounted in the judgment of Justice Dinesh Maheshwari – it is unnecessary for the purpose of this opinion to retrace the history of how affirmative action and reservations in India have been worked out; I have briefly outlined what is relevant to my analysis.
5. Aside from the allusion to Maharaja Chhatrapati Shahuji’s reservation of 50% (in 1902), the kind of affirmative action one sees today, can be traced to the 1931 census which separately determined the “depressed classes”. Premised on this, the Government of India (Scheduled Castes) Order, 19361 enlisted a large number of communities which faced the brunt of caste stigma and other socially evil practices. Parallelly, in several princely
1 Government of India (Scheduled Castes) Order, 1936 .

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states disparate efforts were made to ameliorate the lot of such communities and castes, that had been discriminated against and marginalised for centuries. This history informs a large part of the Constituent Assembly debates, during which, member after member, reiterated the fledgling nation’s determination not only to ensure equality before law, and equal protection of the law, but travelling beyond that, to ensuring substantive equality of opportunity and access to public places, goods, employment, etc.
6. One of the first cases that this court decided was State of Madras v. Champakam Dorairajan2, where this court held to be unconstitutional, a communal reservation which fixed quotas for different communities and castes – this led to insertion of Article 15(4) by the Constitution (First Amendment) Act. The next important case was M.R. Balaji v. State of Mysore3 where this court held that reservations cannot be solely based on caste, and rather would have to satisfy the test of social and educational backwardness, as per the (then) text of the Constitution. It was held that the result of poverty, to a large extent, was that the poor class of citizens automatically became socially backward. They did not enjoy a status in society and were therefore, forced to take a backward seat. Other decisions followed the law declared in M.R. Balaji – In T. Devadasan v. Union of India4, too, a rule enabling carrying forward of SC vacancies which resulted in almost 2/3rd of the vacancies being earmarked for SC candidates, was adversely commented upon and held to be unconstitutional. The majority remarked importantly that the reason for backwardness of SC/ST communities was due to “historical causes” and that the “purpose of Article 16(4) is to ensure that such people, because of
2 State of Madras v. Champakam Dorairajan, 1951 SCC 351, (hereinafter, “Champakam Dorairajan”). 3 M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439 (hereinafter, “M.R. Balaji”), See para 21.
4 T. Devadasan v. Union of India (1964) 4 SCR 680 (hereinafter, “T. Devadasan”).

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their backwardness should not be unduly handicapped in the matter of securing employment in the services of the State”. Reservations is therefore “in favour of backward classes who are not adequately represented in the services under the State”. The court also said that a rule for reservation and posts for such backward classes “cannot be said to have violated Article 14”, as advanced classes cannot be considered for appointment to such posts because “they may be equally or even more meritorious than the members of the backward classes”.
7. However, in an illuminating dissenting, Subba Rao, J, highlighted the linkages between Articles 14, 15 and 16, stressing on the fact that Article 16(4) was a facet of Article 16(1):
“26.
 Article 14 lays down the general rule of equality. Article 16 is an
 instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race—one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable
 section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Art. 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but
 has preserved a power untrammelled by the other provisions of the Article.”

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8. A majority of the 7-judge bench in State of Kerala v. N.M. Thomas5, accepted this dissenting view of K. Subba Rao, J. (in T. Devadasan). In N.M. Thomas, a rule exempting SC candidates from qualifying in a departmental examination for a longer duration than others, was upheld by the Supreme Court. The court noted that:
(i) The basic content of Articles 14, 15(1) and 16(1) constituted a code in that Articles 15(4) and 16(4) was to enable equality of opportunity for class which would otherwise have been excluded from appointment. Hence, any preferential rule for backward classes, could not be unconstitutional;
(ii) Article 16(1) permits classification and Article 16(4) is not an exception to Article 16(1);
(iii) A classification is reasonable if it includes all persons who are similarly situated with respect to the purpose6;
(iv) Article 16(1) sets out a positive aspect of equality of opportunity in matters of public employment and Article 16(2) negatively prohibits discrimination on the enumerated grounds in the area covered by Article 16(1);
(v) But for Article 16(4), 16(1) would have prevented preferential treatment for reservations for backward classes of citizens.
It was held that Article 16(4) was introduced to reconcile Article 16(1) [representing the dynamics of ‘justice’ conceived as ‘equality’, in conditions under which candidates actually competing for posts in the Government] and Articles 46 and 335 embodying the duties of the State so as to protect them from the inequities of social injustice. These
5 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 (hereinafter “N.M. Thomas”) 6 para 83 per Mathew, J.

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encroachments in the field of Article 16(1) can only be permitted if they
are warranted under Article 16(4).
9. The most authoritative decision on the point of reservations was the nine-
Judge ruling in Indra Sawhney v. Union of India7. The court also had the occasion to consider the validity of an office memorandum which introduced a 27% quota in favour of other backward classes in relation to Central Government posts and services. The verdict was not a unanimous one. There were six opinions. The broadest summary of those opinions:
(i) the reference to backward classes of citizens within Article 16(4)
refers to social and educational backwardness;
(ii) Article 16(4) is a facet and part of Article 16(1), and not an exception
to the latter. The judgment of Jeevan Reddy, J explains the ruling in N.M. Thomas on this point approvingly at paragraph 713 (SCC p. 672-674);
(iii) Caste alone cannot be the determining factor to decide social and educational backwardness and that a caste can be and can often be a social class in India;
(iv) The economic criterion alone for determining backwardness of classes or groups is impermissible, because the indicators are social and educational backwardness having regard to the express terms of Articles 15(4) and 16(4);
(v) There can be sub-classification amongst backward classes of citizens for the purpose of ensuring that most vulnerable groups benefit;
(vi) There can be no reservations in promotions under Article 16(4); and
(vii) The “creamy layer” or more affluent sections of other backward classes had to be identified by the state to ensure that the most
 7 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, (hereinafter, “Indra Sawhney”).

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deprived sections were not kept out. Such categories could not claim the benefit of reservation.
10.M. Nagaraj v. Union of India8, Ashok Kumar Thakur v. Union of India9, K. Krishna Murthy v. Union of India10, Pramati Educational & Cultural Trust v. Union of India11, Chebrolu Leela Prasad Rao v. State of A.P12, and Jaishri Laxmanrao Patil v. State of Maharashtra13, are the other significant decisions, rendered by Constitution Benches, after Indra Sawhney on this. In M. Nagaraj, the court negatived a challenge to Article 16(4-A and B) introduced by a Constitutional amendment on the ground that it violated the basic structure principle. The court held that though facets of equality were part of the basic structure, the provision Article 16(4A) permitting reservations in promotion for SC/STs did not violate the basic structure. The amendment in fact, restored the situation which existed due to prior court rulings that such reservations in promotion were permissible. The court also held that the “catch-up rule”14 was not an rule of equality, or a constitutional principle that could not be overborne.15 The court, in M. Nagaraj, discussed the principles underlying the basic structure doctrine, as well as the applicable tests to determine it (which I have referred to in the following section).
8 M. Nagaraj v. Union of India, (2006) 8 SCC 212, (hereinafter, “M. Nagaraj”).
9 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (hereinafter, “Ashok Kumar Thakur”).
10 K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, (hereinafter as “K. Krishna Murthy”).
11 Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1, (“Pramati”).
12 Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401, (“Chebrolu Leela Prasad “).
13 Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1, (hereinafter, “Jaishri Laxmanrao Patil”).
14 So described, in view of the previous decisions of the court, which had declared that senior employees in a cadre, overlooked for promotion on account of quotas in promotion in favour of SC/STs were entitled to “catch up” their seniority in the lower cadre, when they were promoted. This was to balance their equities, or off-set the disadvantage they were placed in due to reservations in promotions, which enabled junior officials in a cadre to steal a march and secure promotions earlier.
15 The court stated that
  “As stated hereinabove, the concept of the ‘catch-up’ rule and ‘consequential seniority’ are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations.
 They are concepts derived from service jurisprudence. They are not constitutional principles.”

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II. Dealing with the basic structure
11.I agree with the judgment of Justice Dinesh Maheshwari in its tracing of the doctrine of basic structure, and its journey, through past precedents spanning nearly five decades. I will however, record a few additional conclusions based upon my reading.
A. Important cases on the doctrine
12.The court’s polyvocal majority in Kesavananda Bharati v. State of Kerala16, did not offer unanimity on the key elements of the constitution, or the values underlying it, as essential features. What however, the judges constituting the majority were clear, was that the power of amendment needed regulation, or control, through the basic structure doctrine. For the purpose of brevity – and compactness, it would be sufficient to notice the analysis and summary17 of the majority in Kesavananda Bharati, made by the majority opinion of Chandrachud, CJ, in Minerva Mills v. Union of India18 (paragraph 7-11, SCC).
13.In Indira Nehru Gandhi v. Raj Narain19, this court invalidated provisions of the 39th Constitutional Amendment (which resulted in taking away the court’s adjudicatory powers and vesting it in a tribunal, which was to decide legality of elections of four specified functionaries), as violative of
16 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; 1973 Supp SCR 1 (hereinafter, “Kesavananda Bharti”).
17 Salient aspects are that: Sikri, CJ stated that the “fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence” and enumerated some of the essential features – supremacy of the constitution, republican and democratic form of Government, secular character of the Constitution; separation of powers between the Legislature, the executive and the judiciary, and the federal character of the Constitution. Shelat and Grover, JJ too indicated that the Preamble contained the key to the basic structure, which rested on a harmony between Parts III and IV and that the amendments could not result in “changing the identity of the Constitution.” Hegde and Mukherjea, JJ stated similarly that the basic structure was “delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements or fundamental features”. Reddy, J draws analogy from the Preamble to say that the features “are justice, freedom of expression and equality of status and opportunity”. Khanna, J emphasises survival of the Constitution “without loss of its identity”.
18 Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, (hereinafter as “Minerva Mills”)
19 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. (“Indira Gandhi”).

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the basic structure doctrine – specifically the principle of rule of law, and the doctrine of separation of powers. Chandrachud, J. in his judgment made pertinent observations about what constitutes the basic structure, and how equality is an integral part of it. Speaking about the basic structure, he said:
 “664. I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are that: (i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own
 and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion and that (iv) the nation shall be governed by a Government of laws, not of men. These, in my opinion, are the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution.”
[…]
691. […] The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. “The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features — this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.”
14.K. K Mathew, J. made general observations with regard to the fact that the basic structure should be rooted in some provisions of the Constitution and also importantly, flagged the equality code as one of the basic features of the Constitution.
15. This court’s decision in Minerva Mills marks a watershed moment in the journey of the basic structure doctrine. The court had to decide on the validity of Sections 4 and 55 of the 42nd Amendment Act20 which sought to nullify the basic structure doctrine itself, by amending Article 36821; and
20 Constitution (Forty-second Amendment) Act 1976.
21 Introducing two clauses (4) and (5), which read as follows:
      “(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article”

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 amendment to Article 31C which sought to immunize all laws which declared that they were made to advance all or any of the provisions of Part IV of the Constitution. The court reiterated the basic structure doctrine, and held that the amendment to Article 368, which sought to fetter the court’s inquiry into the validity of constitutional amendments, violated the basic structure. By a majority decision of 4:1, the court held that the amendment to Article 31C too violated the basic structure.
16.Judicial review was the value, which the court held to be violated in other decisions as well – such as in P. Sambamurthy v. State of A.P22, Kihoto Hollohan v. Zachillhu 23, in L. Chandra Kumar v. Union of India24. In the latter, it was held that judicial review, through Articles 32 and 226 are part of the basic structure of the Constitution. Thus, here, for the first time, specific provisions were held to be part of the basic structure. Raghunathrao Ganpatrao v. Union of India25 held that the deletion of provisions – held to be an “integral” part of the constitution (by the judgment of a 11-judge bench, when the basic structure doctrine was not recognized), did not violate the basic structure, or lead to loss of its identity. The majority judgment in Kihoto Hollohon is narrowly premised26; it severed a part of the offending portion of the 52nd Amendment, to the extent it excluded judicial review, since its deletion was procedurally unsustainable, given the text of Article 368, which requires that such
22 P. Sambamurthy v. State of A.P., (1987) 1 SCC 362, (hereinafter as “P. Sambamurthy”).
23 Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, (hereinafter “Kihoto Hollohan”).
24 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, (hereinafter “L. Chandra Kumar”).
25 Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191, (hereinafter “Raghunathrao Ganpatrao”).
26 The minority opinion of Verma, J. (see para 181-182) struck down the provision on the ground that it violated the rule of law, which is a basic feature of the Constitution.26 The majority judgment, by Venkatachaliah, J also struck down the offending provision, but for different reasons (procedural lapses).

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 amendments need ratification by the legislatures of one half of the total states forming the Union.
  17.Next, in M. Nagaraj, this court tersely stated that the standard to be applied in evaluating whether an amendment has also modified the overarching principles, that inform each and every fundamental right and link them, is to find whether due to such change we have a completely different Constitution. In particular, after summarising various opinions
 in Kesavananda Bharati, the court observed that “[t]he basic structure jurisprudence is a preoccupation with constitutional identity.” The object of which is “continuity” within which “continuity of identity, changes are admissible”. The court, however refused to strike down Article 16(4B) [which had sought to overrule decisions of this court, to the effect that when reservations are resorted to in promotions, leading to accelerated promotions, the non-reserved category of employees, upon their promotions should be permitted to retain or “catch up” their previous seniority]. The court made certain general observations which are relevant, and are extracted below:
 “102 … Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets— “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
18. The other decisions in I.R. Coelho and Pramati, too dealt with facets of basic structure. I shall be discussing I.R. Coelho and M. Nagaraj, later,

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more elaborately, when dealing with the equality code, and its facets being intrinsic to the basic structure of the Constitution.
B. Test for determining basic structure
19.It was remarked in Indira Gandhi that:
“661….The subject-matter of constitutional amendments is a question of high policy and Courts are concerned with the implementation of laws, not with the wisdom of the policy underlying them….”27
It is axiomatic that a constitutional provision cannot be construed in the same manner as a legislative enactment, delegated legislation, or executive measure. All those can be subjected to judicial review on distinct heads such as legislative competence, constitutional limitations (such as in Part III or Part XI of the Constitution), ultra vires the parent enactment or constitutional limitation (delegated legislation), illegality, conflict with provisions of the constitution, Wednesbury unreasonableness, unfair procedure, proportionality, or other grounds of administrative law review (executive action).
20.Logically, then, the applicable standard of review of constitutional amendments should be higher – also because the procedure adopted to amend, under Article 368, is special, and requires two-third majority in favour of any proposed amendment, with the super-added provision in case of amendments to certain enumerated provisions, of resolutions approving the amendment by a majority of the legislatures of all states as well. This exercise of constituent power, therefore, cannot be subjected to the same standard of review, as in the case of legislative or executive actions. The clearest enunciation of this was in Chandrachud, J’s opinion in Indira Gandhi:
“691. […] Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution, and (2) it must not
 27 Indira Gandhi, para 661.

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offend against the provisions of Articles 13(1) and (2) of the Constitution. ‘Basic structure’, by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. … ‘The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features’—this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.”
At another place, the same learned judge (Chandrachud, J) observed that:
“663. […] For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance…”28
[…]
“692. […] There is no paradox, because certain limitations operate upon
the higher power for the reason that it is a higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations.”29
“24. The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism, etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules.
25. For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, is the second step to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of Parliament. To sum up : in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to
28 Indira Gandhi, para 663. 29 Indira Gandhi, para 692.
 21.In M. Nagaraj upon review of previous authorities, this court indicated the methodology of determining whether a constitutional amendment violates the basic structure:

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bind even the amending power of Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.
26. […] secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice, etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. For example, under the German constitutional law, human dignity under Article 1 is inviolable. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give (sic be given). It simply is. Every human being has dignity by virtue of his existence. The constitutional courts in Germany, therefore, see human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of basic structure stands evolved under the German Constitution and by interpretation given to the concept by the constitutional courts.
27. Under the Indian Constitution, the word “federalism” does not exist in the Preamble. However, its principle (not in the strict sense as in USA) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the Seventh Schedule to the Constitution.
28. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225] it has been observed that “one cannot legally use the Constitution to destroy itself”. It is further observed “the personality of the Constitution must remain unchanged”. Therefore, this Court in Kesavananda Bharati [(1973) 4 SCC 225] while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati [(1973) 4 SCC 225] . To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. Secularism in India has acted as a balance between socio-economic reforms which limits religious options and communal developments. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.”
(emphasis supplied)
Thus, the test of “identity” which some of the judges in Kesavananda Bharati indicated, as of the core of the basic structure doctrine, was re-

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stated, and elaborated upon in M. Nagaraj as the concept or doctrine of ‘constitutional identity’. The standard of review, it was held was that firstly, the essential feature must be a constitutional law principle, which is binding on the legislature and secondly, the analysis is whether such principle is so fundamental that it must restrict even the Parliament’s amending power (see paragraph 25, extracted above).
22.This court has, in applying the test, followed the historical approach in conducting substantive basic structure review. This method was indicated by Chandrachud, J in Waman Rao v. Union of India30. In this case, Articles 31-A, 31-B, and 31-C which had been introduced to advance the land reform programmes were challenged as violations of the basic structure of the Constitution. Chandrachud, J observed that the “questions have a historical slant and content: and history can furnish a safe and certain clue to their answer”. After considering the history of the newly inserted provision (by the first Amendment Act, 1951) it was held that
“24. …Looking back over the past thirty years of constitutional history of our country, we as lawyers and Judges, must endorse the claim made … that if Article 31-A were not enacted, some of the main purposes of the Constitution would have been delayed and eventually defeated and that by the 1st Amendment, the constitutional edifice was not impaired but strengthened.”
23.An independent justification for the amendments was of implementing the constitutional purposes as outlined in Article 39(b) and (c), i.e., “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. The historical approach was also apparent, when this court considered the amendments which
 30 Waman Rao v. Union of India, (1981) 2 SCC 362, (hereinafter, “Waman Rao”).

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 deleted Articles 291 and 362 of the Constitution in Raghunathrao
Ganpatrao, as well as in Kihoto Hollohon.
24.Likewise, in R.C. Poudyal v. Union of India31, where this court, speaking
through three different judgments (one of them a dissenting judgment, by L.M. Sharma, CJ) used history of the amendment, and contrasted it with the history of the provisions of the Constitution. The impugned provision, Article 371F(f) enabled representation of members of the Buddhist Monasteries, in the Sikkim Legislature. The dissenting view held that the provisions for reservation in state assembly, based upon religion, violated the basic structure of the Constitution. The majority judgment upheld the amendment, as necessary because of historical continuity, and the need to assimilate Sikkimese society within the republic. However, the majority at the same time, also stated that such a conclusion might not have been the same, if such reservation were introduced elsewhere:
“128. […] These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium. The political and social maturity and of economic development might in course of time enable the people of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future — one hopes sooner — usher-in a more egalitarian dispensation. Indeed, the impugned provisions, in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character. 129. It is true that the reservation of seats of the kind and the extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass the Constitutional muster”. But in relation to a new territory admitted to the Union, the terms and conditions are not such as to fall outside the permissible constitutional limits. Historical considerations and compulsions do justify in equality and special treatment…”
(emphasis supplied) 25.Judicial review of legislation on the touchstone of their validity vis-à-vis fundamental rights, is an analogy closest to constitutional amendment review, on the ground of its conformity to the basic structure. It is an entirely different kind of review that “imposes substantive limits on the
           31 R. C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, (hereinafter “R.C. Poudyal”).

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scope of constitutional amendment. However, these limits or basic features are identified as constitutional principles which are distinct from the constitutional provisions which embody these principles” 32. Drawing from the remarks in Minerva Mills and Indira Gandhi. Dr. Krishnaswamy notes in his work that this form of basic structure review has to account for the distinction between
“ordinary democratic law making and higher level democratic law making, it must rightly identify the different limits on these two forms of law making. Only an independent model of basic structure review which ensures that constitutional amendments do not destroy core constitutional principles can fulfil this requirement.”33
26.It also needs to be noticed that when the court conducts a constitutional amendment validity review, to consider if it violates the basic structure, apart from the standard, the discussion is rooted in the lexicology of judicial review, developed from the jurisprudence of past precedents. In other words, the difference in standard which this court adopts does not result in a difference in the approach, to consider if the amendment violates the basic structure. In judicial review, of a legislation, which violates the provisions of the constitution, the court considers the law, its impact on the fundamental right, its object and its reasonableness or proportionality. In basic structure review, likewise, the subject of scrutiny is the amendment, its content, its impact on the overarching value or principle, which is part of the basic structure, and whether that impact destroys or violates the identity of the Constitution. Illustratively, in Kihoto Hollohon, the court dealt with the constitutionality of amendments, introducing the Xth Schedule to the Constitution and considered past cases, interpreting the Constitution to see if the newly added provisions accorded with the
32 Dr. Sudhir Krishnaswamy, ‘3 Applying Basic Structure Review: The Limits of State Action and the Standard of Review’,
  33
Democracy and Constitutionalism in India – A Study of the Basic Structure doctrine, Oxford
 University Press (2009).
 Ibid., p. 88.

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existing Constitution. In R.C. Poudyal, the court upheld reservation in favour of Buddhist monasteries, and explained that it was for continuity. The court drew upon the equality jurisprudence. The minority and dissenting views also relied heavily upon past judicial precedents to underscore the importance of prohibition against religion-based discrimination and reservation not necessarily dealing with the validity of constitutional amendments alone, but to bring out the idea of judicial review. The same goes for the five judge decision in Supreme Court Advocates on Record Association (SCAORA) v. Union of India34 in which the value of an independent judiciary, and what it is expected to achieve in a democracy was underlined, by reference to past cases which did not deal with constitutionality of amendments. Hence, even while judicial review of constitutional amendments carries with it a standard higher than judicial review of law or executive action, and uses a particular methodology or test to discern whether the amendment changes or damages the basic structure, the court at the same time, draws upon past precedents its exercise of judicial review, and the resulting interpretation of the Constitution, as it exists.
27.This idea – of a distinct category of judicial review, which deals with constitutional amendment review, was also voiced in M. Nagaraj.35 In basic structure review parlance, the legitimate role of the court is to evaluate whether, in the given case, the “identity” of the Constitution is
34 (2016) 5 SCC 1
35 “103. The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on the mode of exercise of the power. Though the amending power in the Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.” (SeeKihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] .)

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affected so as to violate the basic structure and to apply the “direct impact”
test (as propounded in I.R. Coelho).
28. It is evident that at different points in time, different values that underlie
the Constitution and are manifested – either directly in the form of express provisions, or what can be inferred as basic “overarching” principles (Nagaraj) or what impacts the identity (Kesavananda Bharati, Raghunathrao Ganpatrao, M. Nagaraj, and I.R. Coelho) or takes away the “essence” of certain core principles, through amendment were examined. Raghunathrao Ganpatrao echoed the idea of identity, and the idea of “basic form or in its character” of the Constitution. I.R. Coelho went on to say that “it cannot be held that essence of the principle behind Article 14 is not part of the basic structure” and also that “doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values” – which, if allowed to be altered, would change the “nature” of the Constitution. The court also stated that “in judging the validity of constitutional amendment we have to be guided by the impact test”.
29. It is therefore clear that the appropriate test or standard of judicial review of constitutional amendments is not the same as in the case of ordinary laws; the test is whether the amendment challenged destroys, abrogates, or damages the “identity”, or “nature” or “character” or “personality” of the Constitution, by directly impacting one or some of the “overarching principles” which inform its express provisions. Further in constitutional amendment judicial review, the court would consider the history of the

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provision amended, or the way the new provision impacts the identity, or character, or nature of the Constitution.
30.The standard of judicial review of constitutional amendments, draws upon distinct terminologies – identity, personality, nature and character to see if the constitutional identity undergoes a fundamental change, as to alter the Constitution into something it can never be. Or, differently put, the test is whether the impact of the amendment is to change the Constitution, into something it could never be considered to be. Each of the terms, i.e. identity, nature, personality, character, and so on, are methods of expressing the idea that some part of the Constitution, either through its express provisions, or its general scheme, and yet transcending those provisions, are embedded as overarching principles, which cannot be destroyed or damaged.
31.Having laid out the test of basic structure assessment in the paragraphs above, I will now apply this standard of review to the impugned amendment in the following sections.
III. Re Question 3: analyzing the exclusionary clause “other than” and whether it offends the basic structure
32.The insertion of clause (6) in Article 15 and 16, introduces a new class i.e., “economically weaker sections” which are defined to be “other than” the classes covered in Article 15(4) [i.e., other than socially and educationally backward classes including Scheduled Castes and Scheduled Tribes, which coincides with “backward class of citizens” covered in Article 16(4)]. The plain interpretation of this new expression, read along with the Statement of Objects and Reasons brings home the idea that this allusion to “special provision” – including reservations, is meant only for the newly created class and excludes the classes described under Article 15(4) and 16(4).

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This is the base on which the petitioners’ mount their challenge, contending that the exclusion falls foul of the equality code and amounts to a violation of basic structure.
33.The Union’s position was that objections to the exclusion of SC/ST/OBC communities could not be countenanced; at any rate, such exclusion did not reach to the level of damaging the basic structure of the Constitution. It was contended that the mechanism of reservation itself per se, carries within it the idea of exclusion. Consequently, the “set apart” by way of reservation for SC/ST/OBC collectively to the tune of 50% by itself, implies that others are kept apart and cannot question such reservation for the weaker sections of society (as settled in Indra Sawhney). It was submitted that the exclusion of all categories except the target groups [i.e, exclusion of SC/ST/OBC and the general category who do not fulfil the economic criteria] was not discriminatory, let alone violative of the basic structure of the Constitution.
34.Clearly there is no dispute, in the manner that the phrase “other than” appearing in Articles 15(6) and 16(6), is to be read – either on the side of the petitioners, or the respondents. That exclusion is implicit, is agreed upon – the point of divergence is only on whether such an exclusion is permissible or not. To examine this, it is necessary to trace the history of the provisions that constitute the Equality Code and its content, and the cases that have interpreted them, in order to cull out the principle(s), relevant for a basic structure assessment. For this, I will firstly trace the history of the provisions that constitute the Equality Code, secondly discuss the content of this Code; thirdly, how this Equality Code is in itself, a part of the basic structure; and lastly how the impugned amendment violates the basic structure on the ground of exclusion.

Historical analysis of the Equality Code
(i) Article 15
35.The original draft Constitution contained a provision that comprehensively encompassed the idea of non-discrimination, in draft Article 9, which later emerged as Article 15. This article, and more specifically Article 15(2), prohibited discrimination in various spheres and commended that access be made available to a range of facilities, spaces, and resources on a non- discriminatory basis.
36.The history and evolution of this Article as it stands today, is revealing. The Motilal Nehru Report 192836, had recommended, in the demand for self-rule a charter of governance and basic human rights. The relevant provision, Clause 4 (v), (vi), (xiii) and (xiv) read as follows:
  (v) All citizens in the Commonwealth of India have the right to free elementary education without any distinction of caste or creed in the matter of admission into any educational institutions, maintained or aided by the state, and such right shall be enforceable as soon as due arrangements shall have been made by competent authority. Provided that adequate provisions shall be made by the State for imparting public instruction in primary schools to the children of members of minorities of considerable strength in the population through the medium of their own language and in such script as in vogue among them.
 Explanation:- This provision will not prevent the State from making the teaching of the language of the Commonwealth obligatory in the said schools.
 (vi) All citizens are equal be for the law and possess equal civic rights.
**********                          ************
 (xiii) No person shall by reason of his religion, caste or creed be prejudiced in any way in regard to public employment, office of power or honour and the exercise of any’ trade or calling.
(xiv) All citizens have an equal right of access to, and use of, public roads, public wells and all other places of public resort.”
  37. Similarly, the historic Poona Pact37 contained the seeds of what are now Articles 15 and 16:
 36 Motilal Nehru Report, 1928
37Poona Pact, Agreed to by Leaders of Caste-Hindus and of Dalits, at Poona on 24-1932

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 “…8. There shall be no disabilities attached to any one on the ground of his being a member of the Depressed Classes in regard to any election to local bodies or appointment to the public services. Every endeavour shall be made to secure a fair representation of the Depressed Classes in these respects, subject to such educational qualifications as may be laid down for appointment to the Public Services.
9. In every province out of the educational grant an adequate sum shall be ear-marked for providing educational facilities to the members of Depressed Classes,”
  38.Dr. Ambedkar38 and Sh. K.M. Munshi39, had drafted two versions, on similar lines. These two drafts were discussed by the Sub-Committee on
 Fundamental Rights and an amended form, was included in their draft report:
(1) All persons within the Union shall be equal before the law. No personal shall be denied the equal protection of the laws within the territories of the Union. There shall be no discrimination against any person on grounds of religion, race, caste, language or sex.
In particular –
(a) There shall be no discrimination against any person on any of the grounds aforesaid
in regard to the use of wells, tanks, roads, schools and places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public.40
38 Art. II(1)(4) in Dr. B. R. Ambedkar’s draft, available in B. Shiva Rao, ‘The Framing of India’s Constitution: Select Documents’, vol. II, 4(ii)(d), p. 86:
“Whoever denies to any person, except for reasons by law applicable to persons of all classes and regardless of their social status, the full enjoyment of any of the accommodations, advantages, facilities, privileges of inns, educational institutions, roads, paths, streets, tanks, wells, and other watering places, public conveyances on land, air or water, theatres, or other places of public amusement, resort or convenience, where they are dedicated to or maintained or licensed for the use of the public, shall be guilty of an offence”.
39 Art. III (1), (3), (4)(b) in K.M. Munshi’s draft available in B. Shiva Rao, ‘The Framing of India’s Constitution: Select Documents’, vol. II, 4(ii)(b), p. 74-75.
“All persons irrespective of religion, race, colour, caste, language, or sex are equal before the law and are entitled to the same rights and are subject to the same duties.
Women citizens are the equal of men citizens in all spheres of political, economic, social and cultural life and are entitled to the same civil rights and are subject to the same civil duties unless where exception is made in such rights or duties by the law of the Union on account of sex.
***
All persons shall have the right to the enjoyment of equal facilities in public places subject only to such laws as impose limitations on all persons, irrespective of religion, race, colour, caste or language.”
40 Draft report, Annexure, clause 4 available in B. Shiva Rao, ‘The Framing of India’s Constitution: Select Documents’, vol. II, 4(iv), p. 138.
 39. After discussions, the Advisory Committee recommended that the non- discrimination provision would be an independent clause protecting a ‘citizen’, and the ground of ‘language’ was dropped. Members of the

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 Minority Sub-Committee, then considered this clause and made further recommendations – including, that education and schools should not be within the purview of this provision. A four-member sub-committee including Dr. Ambedkar was constituted and tasked to draw a specific provision in this regard. This resulted in a general provision which reads as follows: “the State shall make no discrimination against any citizens on grounds of religion, race, caste or sex”, but it was clarified that with regard
 to access to trading establishments, restaurants, etc., ‘sex’ would not be a prohibited ground. This too, did not pass muster and therefore, the re- drafted clause41 had a general principle prohibiting discrimination, with a separate articulation within the provision which allowed for separate amenities for the benefit of women and children. With minor changes, this was included as clause 11 in the Draft Constitution of October 1947, and was later accepted by the Drafting Committee without change, as Article 9. The debates in the Constituent Assembly leading to the framing of Articles 15(1) and 15(2) clearly point to the overarching idea of non- discrimination as one of the basic facets of equality [which is reflected clearly in the jurisprudence of this court; elaborated more in Part III (A)].
40.Laws or executive action that further discrimination, directly or indirectly, on proscribed grounds, have also been recognised as violative of the right to equality, and consequently have been struck down, routinely by this court42.
 41 “(1) The State shall make no discrimination against any citizen on the grounds of religion, race, caste or sex. (2) There shall be no discrimination against any citizen on any ground of religion, race, caste, or sex in regard
to –
(a) Access to trading establishments including public restaurants and hotels;
(b) The use of wells, tanks, roads, and places of public resort maintained wholly or partly out of public
funds or dedicated to the use of the general public:
Provided that nothing contained in this clause shall prevent separate provision being made for women and children”.
Advisory Committee Proceedings, April 21-22, 1947; and Interim Report of the Advisory Committee, Annexure. Select Documents, vol. II, 6(iv) and 7(i), p. 221, 253, 254-4, 296
42 Air India v. Nargesh Mirza (1981) SC 1829, 1982 SCR (1) 438; Vishaka v. State of Rajasthan (1997) 6 SCC 241: 1997 SCC (Cri) 932; Anuj Garg and Others v. Hotel Association of India and Others, (2008) 3 SCC 1;

(ii)Article 16
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  41.As far as Article 16 goes, the idea behind that provision was to achieve the goal of equal opportunity (as appearing in the Preamble) in matters of public employment. The difference between Articles 15(1) and 16(1) is that the former applies generally and prohibits the State from discriminating on enumerated grounds in diverse activities – including access to educational institutions, amenities, and other public goods, which
 are to be made available without regard to caste, religion, or sex, etc. Article 16(1) is a positive right declaring that all are equal in terms of opportunity for public employment. Article 16(2) goes on to enumerate grounds such as caste, race, religion, caste, sex, descent, place of birth and residence [few of which are different from the proscribed ground under Article 15(1)] as grounds on which the state cannot discriminate. Article 16(3) empowers Parliament (to the exclusion of State legislatures) to enact law, prescribing requirements as to residence within a State or Union Territory, for a class or classes of employment or appointment to local or other authorities, within a State or Union Territory. The Constitution makers did not wish to arm the State legislature with the power of prescribing local residential qualifications for employment within the State or local authorities and preferred to entrust that power with the Parliament which were expected to lay down principles of general application in that regard. Article 16(4) is the only provisi