Janhit Abhiyan vs Union Of India on 5 August, 2020


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Supreme Court of India

Janhit Abhiyan vs Union Of India on 5 August, 2020

Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian

W.P.(C)No.55 of 2019 etc.


                                                                                REPORTABLE

                                              IN THE SUPREME COURT OF INDIA

                                                CIVIL ORIGINAL JURISDICTION

                                              WRIT PETITION (C) NO.55 OF 2019

                             Janhit Abhiyan                                     …..Petitioner

                                                          Versus

                             Union of India & Ors.                         …..Respondents

                                                          WITH

                             WRIT PETITION (C) NO.73 OF 2019; WRIT PETITION (C) NO.72 OF
                             2019; WRIT PETITION (C) NO.76 OF 2019; WRIT PETITION (C)
                             NO.69 OF 2019; WRIT PETITION (C) NO.80 OF 2019; WRIT
                             PETITION (C) NO.122 OF 2019; WRIT PETITION (C) NO.106 OF 2019;
                             WRIT PETITION (C) NO.95 OF 2019; WRIT PETITION (C) NO.222 OF
                             2019; WRIT PETITION (C) NO.133 OF 2019; WRIT PETITION (C)
                             NO.178 OF 2019; WRIT PETITION (C) NO.182 OF 2019; WRIT
                             PETITION (C) NO.249 OF 2019; WRIT PETITION (C) NO.146 OF 2019;
                             WRIT PETITION (C) NO.168 OF 2019; WRIT PETITION (C) NO.212 OF
                             2019; WRIT PETITION (C) NO.162 OF 2019; TRANSFER PETITION
                             (C) NO.341 OF 2019; TRANSFER PETITION (C) NO.323 OF 2019;
                             WRIT PETITION (C) NO.331 OF 2019; TRANSFER PETITION (C)
                             NO.357 OF 2019; TRANSFER PETITION (C) NO.539 OF 2019;
                             TRANSFER PETITION (C) NO.630 OF 2019; WRIT PETITION (C)
                             NO.341 OF 2019; WRIT PETITION (C) NO.343 OF 2019; TRANSFER
                             PETITION (C) NO.675 OF 2019; WRIT PETITION (C) NO.419 OF 2019;
                             WRIT PETITION (C) NO.427 OF 2019; WRIT PETITION (C) NO.446 OF
                             2019; WRIT PETITION (C) NO.493 OF 2019; WRIT PETITION (C)
                             NO.854 OF 2019; WRIT PETITION (C) NO.596 OF 2019; WRIT
                             PETITION (C) NO.732 OF 2019; AND WRIT PETITION (C) NO.798 OF
                             2019.

    Signature Not Verified

    Digitally signed by
    GULSHAN KUMAR
    ARORA
    Date: 2020.08.05
    17:07:28 IST
    Reason:




                                                             1
W.P.(C)No.55 of 2019 etc.




                                              ORDER

Writ Petition(C)No.55 of 2019 etc.

1. In this batch of writ petitions, petitioners have challenged the

constitutional validity of, The Constitution (One Hundred and Third

Amendment) Act, 2019 [for short, ‘the Amendment Act’]. By the

aforesaid amendment, Articles 15 and 16 of the Constitution of India

were amended by inserting clause (6), after clause (5), in Article 15 and

by inserting clause (6) after clause (5), in Article 16. The newly inserted

Articles 15(6) and 16(6) read as under :

“15(6). Nothing in this article or sub-clause (g) of
clause (1) of article 19 or clause (2) of article 29 shall
prevent the State from making, –

(a) any special provision for the advancement of any
economically weaker sections of citizens other than
the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any
economically weaker sections of citizens other than
the classes mentioned in clauses (4) and (5) in so
far as such special provisions relate to their
admission to educational institutions including
private educational institutions, whether aided or
unaided by the State, other than the minority
educational institutions referred to in clause (1) of
article 30, which in the case of reservation would be
in addition to the existing reservations and subject
to a maximum of ten per cent. of the total seats in
each category.

Explanation.-For the purposes of this article and
article 16, “economically weaker sections” shall be
such as may be notified by the State from time to

2
W.P.(C)No.55 of 2019 etc.

time on the basis of family income and other
indicators of economic disadvantage.

16(6). Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any economically
weaker sections of citizens other than the classes
mentioned in clause (4), in addition to the existing
reservation and subject to a maximum of ten per cent.
of the posts in each category.”

2. By virtue of Article 15(6) of the Constitution, States are

empowered to make a special provision for the advancement of any

economically weaker sections of citizens other than the classes

mentioned in clauses (4) and (5) and to make a special provision

relating to their admission to educational institutions including private

educational institutions, whether aided or unaided by the State, other

than the minority educational institutions referred to in clause (1) of

Article 30, in addition to existing reservations and subject to a maximum

of ten per cent of the total seats in each category. Similarly, Article 16(6)

empowers the State to make any provision for the reservation of

appointments or posts in favour of any economically weaker sections of

citizens other than the classes mentioned in clause (4), in addition to the

existing reservation and subject to a maximum of ten per cent of the

posts in each category.

3. The above said impugned constitutional amendments are

questioned in this batch of cases mainly on the ground that the

impugned amendments are ultra vires as they alter the basic structure of

3
W.P.(C)No.55 of 2019 etc.

the Constitution of India. Further, it is also the case of the petitioners

that the impugned amendments run contrary to the dictum in the

majority judgment, in the case of Indra Sawhney & Ors. V. Union of

India & Ors.1. It is the case of the petitioners that a backward class

cannot be determined only and exclusively with reference to economic

criterion. Petitioners have also pleaded that the reservation of ten per

cent of vacancies, in available vacancies/posts, in open competition on

the basis of economic criterion will exclude all other classes of those

above the demarcating line of such ten per cent seats. It is further

pleaded that reservation in unaided institutions violates the fundamental

right under under Article 19(1)(g) of the Constitution. It is their case that

the State cannot insist on private educational institutions which receive

no aid from the State to implement the State policy on reservation for

granting admission on lesser percentage of marks, i.e., on any criterion

except merit.

4. The counter affidavit is filed on behalf of respondent-Union of

India. In the counter affidavit filed by the Under Secretary to the Ministry

of Social Justice and Empowerment, the following averments are made :

 While denying various allegations made by the petitioners, it is

stated that, the Amendment Act was necessitated to benefit the

economically weaker sections of the society who are not covered

within the existing schemes of reservation, which as per statistics,

constitute a considerably large segment of Indian population. In

1 1992 Supp.(3) SCC 217
4
W.P.(C)No.55 of 2019 etc.

order to do justice across all the weaker sections of the society, it

was considered imperative that the Constitution be appropriately

amended to enable the State to extend various benefits, including

reservations in educational institutions and public employment, to

the economically weaker sections of the society, who are not

covered by existing schemes of reservation to enable them equal

opportunity to get access to educational institutions and also in

employment.

 Subsequent to the decision of this Court in the case of Indra

Sawhney1, the Government appointed an Expert Committee to

recommend the criteria for exclusion of advanced sections of

Socially and Educationally Backward Classes, i.e., the creamy

layer. The said Committee made certain recommendations for

exclusion of creamy layer and the Government, by accepting the

same, has issued Office Memorandum dated 08.09.1993 on the

exclusion criteria. Thereafter a Commission for Economically

Backward Classes, chaired by Maj. Gen. (Retd.) S.R. Sinho, was

constituted to suggest the criteria for identification of

Economically Backward Classes (EBC) as well as to recommend

welfare measures and quantum of reservation in education and

Government employment to the extent as appropriate. In its

report dated 02.07.2010, the Commission recommended that all

BPL (Below Poverty Line) families among general category as

notified from time to time and also all families whose annual
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W.P.(C)No.55 of 2019 etc.

income from all sources is below the taxable limit should be

identified as EBCs. In view of the report submitted by Sinho

Commission, it was deemed necessary that a constitutional

amendment be brought in to promote social equality by providing

opportunity in higher education and employment to those who

have been excluded by virtue of their economic status.

 While referring to the duty of the State as per directive under

Article 46 of the Constitution and in view of the recommendations

made by the Committee, The Constitution (One Hundred and

Twenty Fourth Amendment) Bill, 2019 was introduced and same

was passed in the Lok Sabha on 08.01.2019 and on 09.01.2019.

By referring to the Statement of Objects and Reasons of the Bill,

it is stated that to ensure economically weaker sections of

citizens get a fair chance of receiving higher education and

participation in employment in the service of the State, the said

amendments were brought.

 While denying the allegation of the petitioners that the impugned

amendments alter the basic structure of the Constitution, it is

pleaded that, to sustain a challenge against a constitutional

amendment, it must be shown that the very identity of the

Constitution has been altered. It is stated that a mere

amendment to an Article of the Constitution, even if embodying a

basic feature, will not necessarily lead to a violation of basic

feature involved. By stating that the said newly inserted
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W.P.(C)No.55 of 2019 etc.

provisions, namely, Articles 15(6) and 16(6) are enabling

provisions for advancement of economically weaker sections and

such provisions are in fact in conformity with the principle of

reservation and affirmative action which are the touchstone of

protection of equality of citizens and also the basis under Articles

15(1); 15(2); 16(1) and 16(2).

 It is pleaded further that the economic criterion can be a relevant

criterion for affirmative action under the Constitution. Reference

is made in the counter affidavit, to the decision of this Court in the

case of Ashoka Kumar Thakur v. Union of India & Ors.2.

 While answering the allegation of the petitioners, that economic

backwardness cannot be the sole criterion for identifying

backward class, it is pleaded that the ratio decided by this Court

in the case of Indra Sawhney1 cannot be applied to judge the

validity of impugned amendments. It is stated that in the case of

Indra Sawhney1 memoranda issued by the Government of India

were under challenge and as much as the present challenge

relates to the constitutional amendment, said ratio decided

cannot be applied. It is also pleaded in the counter affidavit that

the limit of 50% of reservation is only applicable to reservations

made under Articles 15(4), 15(5) and 16(4) and does not apply to

Article 15(6).

2 (2008) 6 SCC 1
7
W.P.(C)No.55 of 2019 etc.

 While answering the allegation of the petitioners that imposing

reservation in unaided institutions is manifestly arbitrary and

illegal, it is pleaded that the impugned amendments do not violate

Article 19(1)(g) read with Article 19(6) of the Constitution as the

State is entitled to make any law imposing reasonable restrictions

on the exercise of right in Article 19(1)(g).

5. With the aforesaid pleadings, it is pleaded that there is no merit in

the petitions and they deserve dismissal by this Court.

6. We have heard Sri Rajeev Dhawan, learned senior counsel; Sri

M.N. Rao, learned senior counsel; Sri Gopal Sankaranarayanan,

learned senior counsel; and Ms. Meenakshi Arora, learned senior

counsel for the petitioners and Sri K.K. Venugopal, learned Attorney

General for India appearing for Union of India.

7. Sri Rajeev Dhawan, learned senior counsel appearing for the

petitioner in W.P.(C)No.122 of 2019 while referring to ‘Rules of Court

etc.’ under Article 145(3) of the Constitution, has submitted that as the

case involves a substantial question of law as to interpretation of the

constitutional amendment, the present batch of cases need to be heard

by a Constitution Bench of five Judges. Learned senior counsel also

placed reliance on Order XXXVIII of the Supreme Court Rules, 2013 and

submitted that as much as it is the case of the petitioners that the

impugned Amendment Act violates the basic structure doctrine with

particular reference to right to equality, as such, it constitutes a

8
W.P.(C)No.55 of 2019 etc.

substantial question of law within the meaning as referred above. It is

submitted that having regard to grounds on which the impugned

amendments are questioned, a substantial question of law, namely,

whether the Constitution (One Hundred and Third Amendment) Act,

2019 violates the basis structure of the Constitution, insofar as it relates

to the equality provisions of the Constitution and matters relating thereto,

is to be decided. It is submitted that by applying the tests of ‘width’ and

‘identity’ of equality provisions, the impugned amendments are to be

judged. Learned senior counsel has placed reliance on the judgment of

this Court in the case of M. Nagaraj & Ors. V. Union of India & Ors. 3, in

support of his argument that for examining amendments to equality

provisions of the Constitution, such a matter is to be heard by a

Constitution Bench. On the validity of the impugned Amendment Act,

learned senior counsel has submitted that by applying the tests of ‘width’

and ‘identity’ formulated by this Court in the case of M. Nagaraj3 which is

approved in the case of I.R. Coelho (Dead) by LRs. v. State of Tamil

Nadu4 and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors. 5, the

impugned amendments affect the ‘width’ and ‘identify’ of equality

provisions, as such same is fit to be declared as unconstitutional. It is

submitted that by applying the above said tests, if the impugned

amendments are examined, the impugned Articles are in violation of the

basic structure of the Constitution. Further, it is submitted that the

impugned Amendment Act violates the rule of 50% quota for affirmative
3 (2006) 8 SCC 212
4 (2007) 2 SCC 1
5 (2018) 10 SCC 396
9
W.P.(C)No.55 of 2019 etc.

action and reservation as enunciated by this Court in the case of Indra

Sawnhey1. Further, it is submitted by learned senior counsel that the

two-fold test for testing the validity of fundamental right under the basic

structure doctrine is to consider whether (a) identity and (b) width of

fundamental right is affected or not. It is submitted that if identity of the

right is distorted or taken away, such action will be in violation of basic

structure.

8. Sri M.N. Rao, learned senior counsel appearing for the petitioners

in W.P.(C)No.95 of 2019, by referring to various articles in the draft

Constitution prepared by the constitutional adviser and by referring to

debates of Constituent Assembly and by placing reliance on

observations made by this Court in the judgment in the case of Indra

Sawhney1, has submitted that the educational backwardness of

backward classes is on account of their social backwardness. It is

submitted that the social backwardness is the cause and not the

consequence of either of their economic or educational backwardness.

It is submitted that the reason for providing reservation under Articles

15(4) and 16(4) by carving out an exception to the equality clause is to

confine the benefits only to persons answering the description of

backward classes. It is further submitted that the economic criterion by

itself will not identify the backward class. Finally it is submitted by

learned senior counsel that if economically weaker sections are brought

within the purview of backward classes, it will destroy the ratio legis, the

10
W.P.(C)No.55 of 2019 etc.

very reason or foundation of law to carve out the exceptions to the

equality clause.

9. Sri Gopal Sankaranarayanan, learned senior counsel appearing

for the petitioners in W.P.(C)No.73 of 2019 submitted that the

fundamental balancing factor of the reservation policies has been the

ceiling limit of 50%. It is submitted that it has been consistently held by

this Court that if the reservations exceed such percentage the equality

code of the Constitution would be breached. It is submitted by learned

senior counsel that the ratio of 50% which is initially laid down in the

judgment of this Court in the case of M.R. Balaji & Ors. v. State of

Mysore6 is finally approved in the judgment of this Court in the case of

Indra Sawhney1. By referring to the aforesaid judgments of this Court,

it is submitted by learned senior counsel that the impugned Amendment

Act breaches the 50% ceiling limit and runs contrary to the judgments of

this Court as referred above. It is submitted that the petitioners have no

quarrel with the introduction of reservation for economically weaker

sections but at the same time the equality code of the Constitution ought

to be strictly observed and breach of 50% ceiling limit should not be

allowed. Learned senior counsel also submitted that as the questions

involved in this batch of cases amount to substantial questions of law

within the meaning of Article 145(3) of the Constitution, these cases

need to be heard by a Bench of five Judges.

6 (1963) Supp. 1 SCR 439
11
W.P.(C)No.55 of 2019 etc.

10. Ms. Meenakshi Arora, learned senior counsel appearing for the

petitioners in W.P.(C)No.182 of 2019 has submitted that the impugned

Amendment Act violates the basic structure doctrine and also crosses

the limit of 50% which runs contrary to several judgments of this Court.

11. On the other hand, learned Attorney General for India – Sri K.K.

Venugopal – by referring to Preamble of the Constitution and Article 46

of the Constitution of India, submitted that an affirmative action by

making a provision for reservation can be made to the economically

weaker sections of society. It is submitted that to secure justice to all

citizens based on social, economic and political, as referred to in the

Preamble, it is always open for the State to bring a constitutional

amendment so as to promote such economically weaker sections, in

relation to admissions to educational institutions and also in making

appointments in public services. Learned Attorney General has

submitted that a three-Judge Bench of this Court in the case of Society

for Unaided Private Schools of Rajasthan v. Union of India & Anr.7

has approved the classification based on economic criteria as provided

under provisions of Right of Children to Free and Compulsory Education

Act, 2009. He has further submitted that in view of the same the

impugned Amendment Act cannot be said to be either illegal or in

violation of the basic structure of the Constitution. It is submitted that as

observed by this Court in the case of Indra Sawhney1 while 50% shall

be the rule but at the same time in a situation like this, which is an

7 (2012) 6 SCC 1
12
W.P.(C)No.55 of 2019 etc.

extraordinary situation, such limit can be exceeded. Learned Attorney

General has brought to our notice certain observations made in the

aforesaid judgment. Learned Attorney General, in support of his

argument that such percentage can be exceeded, placed reliance on a

judgment of this Court in the case of Voice (Consumer Care) Council

v. State of Tamil Nadu8. In the State of Tamil Nadu, the Tamil Nadu

Backward Classes, Scheduled Castes and Scheduled Tribes

(Reservation of Seats in Educational Institutions and of Appointments or

Posts in the Services under the State) Act, 1993 was brought into force

providing 69% reservation for BC, SC and ST. When the said Act was

upheld by the High Court, matter is carried to the Supreme Court and

this Court has passed interim order to create additional seats for general

category candidates, with a view to remove the grievance of the general

category candidates. The State of Tamil Nadu has filed application

requesting for modification of the order dated 22.07.1996. This Court

declined to modify such order and dismissed the interlocutory

application. At the same time it is kept open to the State of Tamil Nadu

to take steps for listing of the matters which have been referred to

Constitution Bench. Further relying on the judgment of this Court in the

case of Society of Unaided Private Schools for Rajasthan7, the

learned Attorney General, has submitted that the questions raised by the

petitioners can no more be considered as substantial questions of law

for being referred to a Bench of five Judges. It is submitted that there is

8 (1996) 11 SCC 740
13
W.P.(C)No.55 of 2019 etc.

no basis for the plea of the petitioners that the impugned Amendment

Act violates the basic structure doctrine. It is submitted by learned

Attorney General that the basic structure comprises of many features

like several pillars in a foundation some of which are enumerated in the

opinions rendered by this Court in the case of His Holiness

Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. 9. It is

submitted that the significance of these pillars is that if one of them is

removed the entire edifice of the Constitution will fall. Hence, it is

submitted that in judging the constitutional amendment, the question to

be addressed is whether the said amendment would lead to a collapse

of the edifice of the Constitution. It is submitted that to sustain a

challenge against a constitutional amendment, it must be shown that the

very identity of the Constitution has been altered. It is stated that as no

such grounds exist to show that the identity of the Constitution has been

altered by virtue of the impugned amendment, the plea of the petitioners

that the impugned amendment is in violation of basic structure doctrine

also has no legs to stand.

12. We have heard learned senior counsel for the petitioners and the

learned Attorney General for India for the Union of India.

13. Learned senior counsel for the petitioners at first instance argued

by seeking reference to a larger Bench of five Judges by placing

reliance on Article 145(3) of the Constitution and Order XXXVIII of the

Supreme Court Rules, 2013, which is opposed by learned Attorney

9 (1973) 4 SCC 225
14
W.P.(C)No.55 of 2019 etc.

General appearing for the Union of India on the ground that in view of

the decisions relied on by him no reference need be made.

14. Although we have heard learned senior counsels for the

petitioners and learned Attorney General appearing for the Union of

India, on the issue of reference, as well as on merits of the matter, as we

are in agreement with the submissions made by the learned counsels

appearing for the petitioners that these matters involve substantial

questions of law, as such, they are required to be heard by a Bench of

five Judges in view of the provision under Article 145(3) of the

Constitution of India and Order XXXVIII of the Supreme Court Rules,

2013, we are not entering into the merits of the matter on the validity of

impugned Amendment Act.

15. To refer the matter to a Bench of five Judges, we deem it

appropriate to refer to the provision under Article 145(3) as well as Order

XXXVIII Rule 1(1) of the Supreme Court Rules, 2013. The said relevant

provisions read as under :

“145. Rules of Court, etc.-(1) … … …
(2) … … …
(3) The minimum number of Judges who are to sit for
the purpose of deciding any case involving a
substantial question of law as to the interpretation of
this Constitution or for the purpose of hearing any
reference under article 143 shall be five:

Provided that, where the Court hearing an appeal
under any of the provisions of this Chapter other than
article 132 consists of less than five Judges and in the
course of the hearing of the appeal the Court is
satisfied that the appeal involves a substantial question
of law as to the interpretation of this Constitution the
determination of which is necessary for the disposal of
15
W.P.(C)No.55 of 2019 etc.

the appeal, such Court shall refer the question for
opinion to a Court constituted as required by this
clause for the purpose of deciding any case involving
such a question and shall on receipt of the opinion
dispose of the appeal in conformity with such opinion.”

Similarly, Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013

reads as under :

“1(1). Every petition under article 32 of the Constitution
shall be in writing and shall be heard by a Division
Court of not less than five Judges provided that a
petition which does not raise a substantial question of
law as to the interpretation of the Constitution may be
heard and decided by a Division Court of less than five
Judges, and, during vacation, by a Vacation Judge
sitting singly.”

16. In view of the aforesaid provisions, it is clear that for the purpose

of deciding any case involving a substantial question of law as to

interpretation of the Constitution it is to be heard by a Bench of five

Judges. Thus it is to be examined whether the question raised in the

writ petitions will involve a substantial question of law or not. It is the

case of the petitioners that the impugned amendments violate the basic

structure of the Constitution mainly on the ground that the existing

provisions of the Constitution empower to provide affirmative action only

in favour of socially backward classes. It is for the first time that by the

impugned amendments in the Constitution itself the new clauses are

incorporated enabling the State to provide affirmative action by way of

reservation to the extent of 10% in educational institutions and for

appointment in services to economically weaker sections of society. The

main plank of the argument from the side of the petitioners is that the

16
W.P.(C)No.55 of 2019 etc.

economic criteria alone cannot be the basis to determine backwardness.

In support of the same, learned counsels for the petitioners strongly rely

on nine-Judge Bench judgment of this Court in the case of Indra

Sawhney1. Thus it is pleaded that the impugned amendments run

contrary to the above said judgment. It is also the case of the petitioners

that exceeding the ceiling cap of 50% is also in violation of the very

same judgment of this Court. Though learned Attorney General

appearing for the Union of India has strongly relied on the judgment of

this Court in the case of Society for Unaided Private Schools of

Rajasthan7 where the provisions of Right of Children to Free and

Compulsory Education Act, 2009 are upheld. By virtue of the impugned

amendments, very Constitution is amended by inserting new clauses in

Articles 15 and 16 thereof, which empower the State to make

reservations by way of affirmative action to the extent of 10% to

economically weaker sections. It is the case of the petitioners, that the

very amendments run contrary to the constitutional scheme, and no

segment of available seats/posts can be reserved, only on the basis of

economic criterion. As such, we are of the view that such questions do

constitute substantial questions of law to be considered by a Bench of

five Judges. It is clear from the language of Article 145(3) of the

Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules,

2013, the matters which involve substantial questions of law as to

interpretation of constitutional provisions they are required to be heard a

Bench of five Judges. Whether the impugned Amendment Act violates

17
W.P.(C)No.55 of 2019 etc.

basic structure of the Constitution, by applying the tests of ‘width’ and

‘identity’ with reference to equality provisions of the Constitution, is a

matter which constitutes substantial question of law within the meaning

of the provisions as referred above. Further, on the plea of ceiling of

50% for affirmative action, it is the case of the respondent-Union of India

that though ordinarily 50% is the rule but same will not prevent to amend

the Constitution itself in view of the existing special circumstances to

uplift the members of the society belonging to economically weaker

sections. Even such questions also constitute as substantial questions

of law to be examined by a Bench of five Judges as per Article 145(3) of

the Constitution read with Order XXXVIII Rule 1(1) of the Supreme Court

of Rules, 2013.

T.P.(C)Nos.341 of 2019; 323 of 2019; 357 of 2019;

539 of 2019; 630 of 2019; and 675 of 2019

17. These transfer petitions are filed by and/or on behalf of Union of

India, under Article 139A(1) of the Constitution of India read with Order

XLI Rules 1 to 5 of the Supreme Court Rules, 2013 seeking transfer of

writ petitions filed before various High Courts to this Court. Writ Petition

involving the very same question, i.e., challenge to the validity of The

Constitution (One Hundred and Third Amendment) Act, 2019 has been

filed before this Court in W.P.(C)No.55 of 2019 titled, ‘Janhit Abhiyan v.

Union of India & Ors.’ and this Court, by order dated 25.01.2019, has

already issued notice in such writ petition. It is submitted by learned

Attorney General that, as the very same amendment is subject matter of

18
W.P.(C)No.55 of 2019 etc.

challenge in the writ petitions pending before various High Courts and to

avoid conflicting findings by different High Courts, such writ petitions are

required to be transferred to this Court. As much as this Court has

already issued notice in a writ petition wherein validity of very same

Amendment Act is questioned before this Court, we deem it appropriate

that these transfer petitions are fit to be allowed. Accordingly, transfer

petitions are allowed and W.P.(C)|No.1475/2019 titled as ‘R.S. Bharati v.

Union of India’; W.P.(C)No.2099/2019 titled as ‘Desiya Makkal Sakthi

Katchi v. Principal Secretary & Ors.’; W.P.(C)No.1629/2019 titled as ‘Kali

Poongundran v. Union of India & Ors.’; W.P.No.3209/2019 titled as

‘A.S.A. Umar Farooq v. Union of India & Ors.’ pending before High Court

of Madras; W.P.(C)No.884/2019 titled as ‘Telangana State Backward

Classes Welfare Association & Anr. v. Union of India & Ors.’ pending

before the High Court for the State of Telangana; and

C.W.P.No.3220/2019 titled as ‘Rakesh Dhundhara v. Union of India &

Ors.’ pending before the High Court of Punjab and Haryana at

Chandigarh are ordered to be transferred to this Court for being listed

along with W.P.(C)No.55 of 2019 etc. Registry to take necessary steps

by requesting the concerned High Courts to transmit the record of the

abovementioned writ petitions.

All the matters

18. For the aforesaid reasons, we allow the transfer petitions and

refer this batch of cases, including the cases covered by transfer

applications, to a Bench of five Judges. Registry to place the matter

19
W.P.(C)No.55 of 2019 etc.

before Hon’ble the Chief Justice, for obtaining appropriate orders in this

regard.

………….………………………………CJI.

[S.A. BOBDE]

….…………………………………………J.

[R. SUBHASH REDDY]

….…………………………………………J.

[B.R. GAVAI]

New Delhi.

August 05, 2020.

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