Recently, the Supreme Court while hearing a batch of petitions challenging the Centre's decision to grant 10 per cent reservation to EWS in admissions and job, made a reference to the constitutional validity of the One Hundred and Third Amendment Act[1]. The constitution bench headed by Chief Justice U.U Lalit and comprising of justices Dinesh Maheshwari, S Ravindra, Bela M Trivedi and J B Pardiwala observed three pertinent issues to be dealt in this case.

1. Firstly, whether the 103rd Amendment Act is violating the basic structure doctrine of the Constitution by permitting the State to make special provisions based on economic criteria.
2. Secondly, whether the constitution amendment is in breach of the basic structure doctrine by permitting state to make special provision with respect to admissions in private unaided institutions.
3. Lastly, whether the amendment is in breach of the basic structure doctrine by excluding SEBCs/OBCs, SCs/STs from the ambit of EWS reservation.

In light of the current issue, the idea of basic structure and constitutionalism comes into picture highlighting the importance of limiting the powers of the state, in order to protect the rights of citizens, and for proper functioning of a healthy democratic nation.

What Is 103rd Constitutional Amendment Act?

This act provides for a 10% quota to economically weaker sections (EWS) other than SC/STs, OBCs in higher educational institutions and government jobs. It inserted Article15(6)[2] which propounds the reservation of seats for economically weaker sections of society other than SC/STs and OBCs in higher educational institutions aided or unaided for their upliftment. It also inserted Article 16(6)[3] which explains that nothing can prevent the state from making provisions for EWS other SC/STs and OBCs in respect for appointments in job, in addition to the existing reservation and which is subject to a maximum of ten per cent. of the posts in each category.

What Is The Basis Of Issue Challenging The Constitutionality Of 103rd Amendment Act?

The amendment is said to be unconstitutional, as it is violating the principles of social justice and equality leading to deviation from the path of the basic structure doctrine. The provisions of this amendment act as a Damocles sword hanging over to the ideals of constitutionalism, as it allows the state unlimited power to exercise their autonomy over forming the provisions relating to the quota. This amendment is seen as a source of protecting the privileged rather than the marginalised ones[4].

What Is The Concept Of Constitutionalism?

The term "constitutionalism" has evolved through various judicial pronouncements. Though there is no explicit mention of constitutionalism, it has been there in our constitution since its inception. Constitutionalism can be defined as an antithesis to the state's exercise of arbitrary power[5]. Absolute arbitrary power acts as a stumble block to the freedom of individuals. In other words, it is limited government or existence of limitations on government in exercising its powers.

The objective of constitutionalism is that the state must exercise its power for the welfare of the people without exceeding the power. The state is expected to work and protect certain principles such as rule of law, sovereignty, the separation of powers and democracy. A country may have a constitution, but not constitutionalism in its essence.

In the words of Carl Friedrich, " Constitutionalism is based on the proposition that the government is a set of activities organised by and operated on behalf of the people, but subject to a series of restraints which attempt to ensure that the power which is needed for such governance is not abused by those who are called upon to do the governing".[6]

How The Courts' Contributed To The Evolution Of Constitutionalism?

Our courts have played an important role, and contributed immensely in understanding the concept of constitutionalism. The case of Indra Sawhney v. Union of India[7], highlights the balance between the society and rights of the backward classes. It removed the economic criteria as the sole determinant for classification.

It was observed in this case that "people respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and cooperation for the value of democracy and survival of constitutionalism". In the case of Navtej Singh Johar v. Union of India [8] Justice Ramesh Thakur and Michael Kirby discussed that "constitutionalism is modern political equipment for Raj dharma which was based upon the welfare of the people".

In another pertinent case, Rajeev Suri v. Delhi Development Authority[9] It was observed that "the ideal of constitutionalism finds place in almost every constitutional discourse involving the state and the citizen and we need to reflect upon this ideal in the context in which it appears. Constitutionalism, therefore, is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach up to the ultimate goal of constitutionalization of governance and it cannot be deployed to present an alternative model of governance".

Moreover, in the case of State (NCT Delhi) v. Union Of India[10] Justice Deepak Misra remarked that "the constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution."[11]

Thus, in the broadest sense, constitutionalism requires proper sovereignty, supremacy of the constitution, democracy, limited government, proper checks and balance, and an independent judiciary.

Where Do We Find The Traces Of Constitutionalism In India?

Our forefathers created the constitution keeping in mind the enormous diversity in cultures, religion and language. The basic idea behind the creation of the Indian constitution has been beautifully articulated in the core of the constitution i.e. the preamble. The preamble serves as an introduction to the Indian constitution that sets out guiding principles, purpose, and philosophy behind the working of the constitution.

For the functioning of a healthy democracy, the purpose of the constitution should not only be in the papers but it should be implemented equally and properly by the power holders. As Dr. B.R Ambedkar during the constituent assembly's final session said, " however good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.

However bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot".[12] Thus, the principle of constitutionalism is a work in progress, which is meant to infuse life and blood into an existing scheme which has stood the test of constitutionality.

Are There Any Instances Highlighting The Blot On Indian Constitutionalism?

Let's delve into the past of India, wherein our guiding lamp was turned off and the road appeared dark and misty as the citizens felt helpless and hopeless during those days. The first instance is the emergency period which happened during the reign of Indira Gandhi's tenure in 1975. On June 26,1975, prime minister Indira Gandhi officially announced the proclamation of emergency[13].

It was a 21 months long dark period, in which the Indians went through suspension of fundamental rights, power cuts to ensure that printing activities were not carried out, freedom of speech was snatched away from the citizens, hundreds of politicians, journalists, activists and trade unions opposed to the ruling party were incarcerated without any reason.

One of the noteworthy cases which led to gross violation of human rights is ADM Jabalpur v. Shivkant Shukla[14] which is also known as a 'blot on paper of Indian Judicial System'. It was a case dealing with illegal detention under the Maintenance of internal security act,1971.

The major question which lay before the benches was whether the order of the president given under Article 359(1)[15] of the constitution suspends the right of a person to move to the courts to enforce their fundamental right to life under Article21[16]. The ruling pronounced by the majority of benches was the most unfortunate as it was held that with the proclamation of emergency and subsequent suspension of Article 21[17], no habeas corpus writ shall be entertained in the courts.

The only dissenting opinion was given by Justice H.R Khanna who held that if the right to enforce fundamental right to life is itself suspended then there would be no remedies available with citizens against the state's overarching powers. Another ground-breaking case is Kesavananda Bharati vs Union of India,(1973)[18] which laid down the basic structure doctrine of the Indian constitution.

This case majorly challenged the 29th constitutional amendment act,1972[19] which consisted of two major Kerala land reform acts. This case put forth the question regarding the power of parliament to amend the constitution, especially fundamental rights. Apart from the 29th amendment, he also challenged 24th[20], 25th[21],and 26th[22] constitutional amendment acts.

The court held that the parliament can amend the constitution, but it cannot amend the basic structure of the constitution. The basic structure doctrine since then, has been regarded as sacred to the rights of people. However, the major fallacy is that the court did not define the basic structure, and only listed some principles such as federalism, secularism, and democracy to be part of it. This case serves as a landmark case against the overarching powers of the state and protects the democratic essence of the constitution.

How To Uphold The Values Of Constitutionalism?

In India, the constitution prescribes that it should have a dual government with the center and the regional states. Federalism is one of the most important features of our constitution. It states that there should be division of power between center and states. However, India is not a complete federal state as sometimes the center does involve itself into the matter of the state which violates the principle of federalism[23].

It's disturbing to descry that many times political parties violate the ideals of constitutionalism by overarching their powers and meddling into state affairs. During last year in West Bengal, meddling of Centre raised serious legal questions which prima facie appear to strike at cooperative federalism[24].

The commitment to the constitution does not lay solely on reading the preamble, but reverberates on the narratives of unity and integrity of India. To nurture our constitution, we need to first understand our constitutional values. The citizens and political institutions ought to follow the spirit of constitutionalism for a healthy democracy. The Constitution of India ensures equal participation in democratic process of all nooks and corners of the society which is considered as a better guarantee of constitutionalism than mere enumeration of certain rights to the people in the constitution.

Concluding, political parties may come and go but what majorly remains unchanged is the constitution. It should be honoured with passion that we have such an articulative and lucidly written constitution. Let us vow that we will strive our souls to protect the constitutional values and never let the spirit of constitutionalism die.

End-Notes:

1. Supreme Court's three-question test for validity of 10% EWS quota, The Indian Express (2022), available at
   https://indianexpress.com/article/explained/supreme-courts-three-question-test-for-validity-of-10-ews-quota-8147285/#:~:text=What%20is%20the%20103rd%20Amendment (last visited Sep 13, 2022).
2. India Constitution. art 15(6), amended by The Constitution (One Hundred Third Amendment) Act, 2019.
3. India Constitution. art 16(6), amended by The Constitution (One Hundred Amendment) Act, 2019.
4. Livelaw News Network, Ews Quota - 103rd Amendment Negates Concept of Reservation As Tool Of Representation, Violates Equality : ..., Livelaw.in (2022), available at
   https://www.livelaw.in/top-stories/ews-quota-103rd-amendment-negates-concept-of-reservation-as-tool-of-representation-violates-equality-drmohan-gopal-to-supreme-court-day-1-209158 (last visited Sep 13, 2022).
5. M.P. Jain, Indian Constitutional Law 3-4 (4th ed. 1994).
6. Prof. (Dr.) Mahendra Pal Singh, Constitutionalism in India in Comparative Perspective, 11 NUJS L.Rev. 643, 646-647 (2018).
7. Indra Sawhney v. Union of India, A.I.R 1993 S.C 477, 1992 Supp 2 SCR 454
8. Navtej Singh Johar v. Union of India, A.I.R. 2018 S.C 4321
9. Rajeev Suri v. Delhi Development Authority 2021 SCC Online SC 7.
10. State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.
11. Id.
12. Meera Emmanuel, If hereafter things go wrong, we will have nobody to blame, Dr. Ambedkar's final speech in Constituent Assembly, BAR AND BENCH - (Bar and Bench - Indian Legal news, 2008)available at:
    https://www.barandbench.com/columns/dr-ambedkar-1949-constituent-assembly-speech (last visited Aug. 10, 2022).
13. Vrijendra, Remembering the Emergency, 1975, THE LEAFLET – An independent platform for cutting-edge, progressive, legal, and political opinion, 2020available at
    https://theleaflet.in/remembering-the-emergency-1975/ (last visited Aug. 12, 2022).
14. ADM Jabalpur v. S.S Shukla, A.I.R. 1976 S.C 172.
15. India Constitution. art. 359(1).
16. India Constitution. art. 21
17. Ibid.
18. Kesavananda Bharati vs Union of India, A.I.R. 1973 S.C 1461, 225.
19. The Constitutional Amendment (Twenty-Ninth Amendment) Act, 1972- Amendment of the ninth schedule to the constitution.
20. The Constitution (Twenty Fourth Amendment) Act, 1971|Legislative Department | Ministry of Law and Justice | GoI, Legislative.gov.in, 2016available at
    https://legislative.gov.in/constitution-twenty-fourth-amendment-act-1971 (last visited Sept. 9, 2022).
21. The Constitution (Twenty Fifth Amendment ) Act, 1971|Legislative Department | Ministry of Law and Justice | GoI, Legislative.gov.in, 2016available at
    https://legislative.gov.in/constitution-twenty-fifth-amendment-act-1971 (last visited Sept. 9, 2022).
22. The Constitution (Twenty-sixth Amendment) Act, 1971| National Portal Of India, India.gov.in, 2012available at: https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-twenty-sixth-amendment-act-1971 (last visited Sept. 9, 2022).
23. The nature of Indian Constitution, Times Of India Blog, 2019available at https://timesofindia.indiatimes.com/readersblog/the-girl-who-writes/the-nature-of-indian-constitution-9537/ (last visited Aug. 27, 2022).
24. Centre's Tussle With Bengal Over Chief Secretary Reeks of Uncooperative Federalism, THE WIRE, 2018available at https://thewire.in/politics/centres-tussle-with-bengal-over-chief-secretary-reeks-of-uncooperative-federalism (last visited Aug. 27, 2022).