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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 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 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.

6 (1963) Supp. 1 SCR 439 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 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 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.