constitutional validity of, The Constitution (One Hundred and Third Amendment) Act, 2019 [for short, ‘the Amendment Act’]. By theaforesaid 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.

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
W I T H
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.
1
W.P.(C)No.55 of 2019 etc.
O R D E R
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
    5
    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
    6
    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.
    20