M.Nagaraj & Others Vs Union of India & Others
Supreme Court of India (Constitution Bench- Five Judge)
Writ Petition (Civil), 61 of 2002, Judgment Date: Oct 19, 2006
CONCLUSION:
The impugned constitutional amendments by which
Articles 16(4A) and 16(4B) have been inserted flow from
Article 16(4). They do not alter the structure of Article
16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and
inadequacy of representation which enables the States to
provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs
and STs. They do not obliterate any of the constitutional
requirements, namely, ceiling-limit of 50% (quantitative
limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBC on one
hand and SCs and STs on the other hand as held in
Indra Sawhney5 , the concept of post-based Roster
with in-built concept of replacement as held in R.K.
Sabharwal8.
We reiterate that the ceiling-limit of 50%, the
concept of creamy layer and the compelling reasons,
namely, backwardness, inadequacy of representation
and overall administrative efficiency are all
constitutional requirements without which the
structure of equality of opportunity in Article 16
would collapse.
However, in this case, as stated, the main issue
concerns the "extent of reservation". In this regard
the concerned State will have to show in each case
the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and
overall administrative efficiency before making
provision for reservation. As stated above, the
impugned provision is an enabling provision. The
State is not bound to make reservation for SC/ST in
matter of promotions. However if they wish to
exercise their discretion and make such provision,
the State has to collect quantifiable data showing
backwardness of the class and inadequacy of
representation of that class in public employment in
addition to compliance of Article 335. It is made
clear that even if the State has compelling reasons, as
stated above, the State will have to see that its
reservation provision does not lead to excessiveness
so as to breach the ceiling-limit of 50% or obliterate
the creamy layer or extend the reservation
indefinitely.
Subject to above, we uphold the constitutional
validity of the Constitution (Seventy-Seventh
Amendment) Act, 1995, the Constitution (Eighty-First
Amendment) Act, 2000, the Constitution (Eighty-Second
Amendment) Act, 2000 and the Constitution (Eighty-Fifth
Amendment) Act, 2001.
We have not examined the validity of individual
enactments of appropriate States and that question will
be gone into in individual writ petition by the appropriate
bench in accordance with law laid down by us in the
present case.
CASE NO.:
Writ Petition (civil) 61 of 2002
PETITIONER:
M.Nagaraj & Others
RESPONDENT:
Union of India & Others
DATE OF JUDGMENT: 19/10/2006
BENCH:
Y.K.SABHARWAL CJI & K.G.BALAKRISHNAN & S.H.KAPADIA & C.K.THAKKER & P.K. BALASUBRAMANYAN
JUDGMENT:
JUDGMENT
with
WP (C) Nos.62, 81, 111, 134, 135, 206, 226, 227, 255, 266,
269, 279, 299, 294, 295, 298, 250, 319, 375, 386, 387, 320,
322, 323, 338, 234, 340, 423, 440, 453, 460, 472, 482, 483,
484, 485, 550, 527 and 640 of 2002, SLP (C) Nos. 4915-4919
of 2003, W.P. (C) Nos.153/2003, C.P. (C) No. 404/2004 in
W.P.(C) No. 255/2002, C.P. (C) No.505/2002 in WP (C)
No.61/2002, C.P. (C) No.553/2002 in WP (C) No.266/2002,
C.P. (C) No.570/2002 in WP (C) No.255/2002, C.P. (C)
No.122/2003 in WP (C) No.61/2002, C.P. (C) No.127/2003 in
WP (C) No.61/2002, C.P. (C) No.85/2003 in WP (C)
No.255/2002, W.P. (C) Nos. 313 and 381 of 2003, CIVIL
APPEAL Nos. 12501-12503/1996, SLP (C) No.754/1997, WP
(C) No.460 of 2003, CIVIL APPEAL Nos. 7802/2001 and
7803/2001, W.P. (C) No.469/2003, SLP (C) No.19689/1996,
WP (C) No. 563/2003, WP (C) No.2/2003, WP (C) Nos.
515, 519 and 562 of 2004, WP (C) No. 413 of 1997,
WP (C) No.286 of 2004 and SLP (C) No.14518 of 2004.
DELIVERED BY:
S.H.KAPADIA, J.
KAPADIA, J.
The width and amplitude of the right to equal
opportunity in public employment, in the context of
reservation, broadly falls for consideration in these writ
petitions under Article 32 of the Constitution.
FACTS IN WRIT PETITION (CIVIL) NO.61 OF 2002:
The facts in the above writ petition, which is the
lead petition, are as follows.
Petitioners have invoked Article 32 of the
Constitution for a writ in the nature of certiorari to quash
the Constitution (Eighty-Fifth Amendment] Act, 2001
inserting Article 16(4A) of the Constitution retrospectively
from 17.6.1995 providing reservation in promotion with
consequential seniority as being unconstitutional and
violative of the basic structure. According to the
petitioners, the impugned amendment reverses the
decisions of this Court in the case of Union of India and
others v. Virpal Singh Chauhan and others , Ajit
Singh Januja and others v. State of Punjab and
others (Ajit Singh-I), Ajit Singh and others (II) v.
State of Punjab and others , Ajit Singh and others
(III) v. State of Punjab and others , Indra Sawhney
and others v. Union of India , and M. G.
Badappanavar and another v. State of Karnataka
and others . Petitioners say that the Parliament has
appropriated the judicial power to itself and has acted as
an appellate authority by reversing the judicial
pronouncements of this Court by the use of power of
amendment as done by the impugned amendment and is,
therefore, violative of the basic structure of the
Constitution. The said amendment is, therefore,
constitutionally invalid and is liable to be set aside.
Petitioners have further pleaded that the amendment also
seeks to alter the fundamental right of equality which is
part of the basic structure of the Constitution.
Petitioners say that the equality in the context of Article
16(1) connotes "accelerated promotion" so as not to
include consequential seniority. Petitioners say that by
attaching consequential seniority to the accelerated
promotion, the impugned amendment violates equality in
Article 14 read with Article 16(1). Petitioners further say
that by providing reservation in the matter of promotion
with consequential seniority, there is impairment of
efficiency. Petitioners say that in the case of Indra
Sawhney5 decided on 16.11.1992, this Court has held
that under Article 16(4), reservation to the backward
classes is permissible only at the time of initial
recruitment and not in promotion. Petitioners say that
contrary to the said judgment delivered on 16.11.1992,
the Parliament enacted the Constitution (Seventy-
Seventh Amendment) Act, 1995. By the said
amendment, Article 16(4A) was inserted, which
reintroduced reservation in promotion. The Constitution
(Seventy-Seventh Amendment) Act, 1995 is also
challenged by some of the petitioners. Petitioners say
that if accelerated seniority is given to the roster-point
promotees, the consequences would be disastrous. A
roster-point promotee in the graduate stream would
reach the 4th level by the time he attains the age of 45
years. At the age of 49, he would reach the highest level
and stay there for nine years. On the other hand, the
general merit promotee would reach the 3rd level out of 6
levels at the age of 56 and by the time, he gets eligibility
to the 4th level, he would have retired from service.
Petitioners say that the consequences of the impugned
85th Amendment which provides for reservation in
promotion, with consequential seniority, would result in
reverse discrimination in the percentage of representation
of the reserved category officers in the higher cadre.
BROAD ISSUES IN WRIT PETITION No.527 OF 2002:
The broad issues that arise for determination in this
case relate to the:
1. Validity
2. Interpretation
3. Implementation
of (i) the Constitution (Seventy-Seventh Amendment) Act,
1995, the Constitution (Eighty-First Amendment) Act,
2000, the Constitution (Eighty-Second Amendment) Act,
2000, and the Constitution (Eighty-Fifth Amendment)
Act, 2001; and, (ii) Action taken in pursuance thereof
which seek to reverse decisions of the Supreme Court in
matters relating to promotion and their application with
retrospective effect.
ARGUMENTS:
The substance of the arguments advanced on behalf
of the petitioners briefly is as follows:
Equality is a part of the basic structure and it is
impossible to conceive of the Constitution without
equality as one of its central components. That, equality
is the basic feature referred to in the preamble to our
Constitution. Petitioners further submit that Article 16 is
integral to equality; that, Article 16 has to be read with
Article 14 and with several Articles in Part-IV. According
to the petitioners, the Constitution places an important
significance on public employment and the rule of
equality, inasmuch as, a specific guarantee is given
under Article 16 protecting equality principles in public
employment. In this connection, reliance is also placed
on the provisions of Part XIV to show that the
Constitution makers had given importance to public
employment by making a special provision in the form of
Part XIV providing certain rights and protection to the
office holders in the services of the Union and the States.
These provisions are Articles 309, 311, 315, 316, 317
and 318 to 323. Special provisions have also been made
in Article 323-A which permits establishment of tribunals
as special and adjudicatory mechanism. That, Article
335 recognizes the importance of efficiency in
administration and the various provisions of the
Constitution indicate that public employment was and is
even today of central concern to the Constitution. It is
urged that equality in matters of public employment
cannot be considered as merely an abstract concept.
Petitioners say that over the years, this Court has
delivered many decisions laying down that principles of
'equality' and 'affirmative action' are the pillars of our
Constitution. These judgments also provide conclusions
based on principles which gave meaning to equality both
as an individual right and as group expectations. It is
submitted that clause (4) of Article 16 is an instance of
the classification implicit and permitted by Article 16(1)
and that this view of equality did not dilute the
importance of Article 16(1) or Article 16(2) but merely
treated Article 16(4) as an instance of the classification;
that this relationship of sub-clauses within Article 16 is
not an invitation for reverse discrimination and that,
equality of opportunity cannot be overruled by affirmative
action. It is submitted that "equality in employment"
consists of equality of opportunity [Article 16(1)], anti-
discrimination [Article 16(2)], special classification
[Article 16(3)], affirmative action [Article 16(4)] which
does not obliterate equality but which stands for
classification within equality], and lastly, efficiency
[Article 335]. As regards the words 'nothing in this
article' in Article 16(4), it is urged that these words
cannot wipe out Article 16(1) and, therefore, they have a
limited meaning. It is urged that the said words also
occur in Articles 16(4A) and 16(4B). It is urged that
equality in the Constitution conceives the individual right
to be treated fairly without discrimination in the matter
of equality of opportunity. It also conceives of affirmative
action in Article 15(4) and Article 16(4). It enables
classification as a basis for enabling preferences and
benefits for specific beneficiary groups and that neither
classification nor affirmative action can obliterate the
individual right to equal opportunity. Therefore, a
balance has to be evolved to promote equal opportunities
while protecting individual rights. It is urged that as an
individual right in Article 16(1), enforceability is provided
for whereas "group expectation" in Article 16(4) is not a
fundamental right but it is an enabling power which is
not coupled with duty. It is submitted that if the
structural balance of equality in the light of the efficiency
is disturbed and if the individual right is encroached
upon by excessive support for group expectations, it
would amount to reverse discrimination.
On the question of power of amendment, it is
submitted that the limited power of amendment cannot
become an unlimited one. A limited amendment power is
one of the basic features of our Constitution and,
therefore, limits on that power cannot be destroyed.
Petitioners submit that Parliament cannot under Article
368 expand its amending power so as to acquire for itself
the right to abrogate the Constitution and if the width of
the amendment invites abrogation of the basic structure
then such amendment must fail. Reliance is placed in
this connection on the judgment in Minerva Mills Ltd.
and others v. Union of India and others . On the
question of balancing of fundamental rights vis-`-vis
directive principles, it is submitted that directive
principles cannot be used to undermine the basic
structure principles underlying fundamental rights
including principles of equality, fundamental freedoms,
due process, religious freedom and judicial enforcement.
On the question of balancing and structuring of
equality in employment, it is urged that quotas are
subject to quantitative limits and qualitative exclusions;
that, there is a distinction between quota limits (example
15% to SCs) and ceiling-limits/maximum permissible
reservation limits (example 50%) which comes under the
category of quantitative limits. However, quotas are also
subject to qualitative exclusions like creamy layer. It is
urged that in numerous judgments and in particular in
Indra Sawhney5, M.G. Badaappanavar6, Ajit Singh
(II)3, the equality of opportunity in public employment is
clarified in order to structure and balance Articles 16(1)
and 16(4).
In answer to the respondents' contentions that
Articles 16(4A) and 16(4B) and the changes to Article 335
are merely enabling provisions and that in a given case if
the exercise undertaken by the appropriate Government
is found to be arbitrary, this Court will set it right, it is
contended that ingressing the basic structure is a per se
violation of the Constitution. In this connection, it is
alleged that the basis for impugned amendments is to
overrule judicial decisions based on holistic
interpretation of the Constitution and its basic values,
concepts and structure. In this connection, it is urged
that the 77th Amendment introducing Article 16(4A) has
the effect of nullifying the decision in the case of Indra
Sawhney5; that, the 81st Amendment introducing Article
16(4B) has been brought in to nullify the effect of the
decision in R.K. Sabharwal & Others v. State of
Punjab and others , in which it has been held that carry
forward vacancies cannot be filled exceeding 50% of the
posts. Petitioners say that similarly the Constitution
(Eighty-Second Amendment) Act, 2000 introducing the
proviso to Article 335 has been introduced to nullify the
effect of the decision in the case of Indra Sawhney5 and
a host of other cases, which emphasize the importance of
maintaining efficiency in administration. It is submitted
that, the 85th Amendment adding the words 'with
consequential seniority' in Article 16(4A) has been made
to nullify the decision in Ajit Singh (II)3.
Accordingly it is urged that the impugned
amendments are violative of the basic structure and the
fundamental values of the Constitution articulated in the
preamble and encapsulated in Articles 14, 16 and 19;
that, they violate the fundamental postulates of equality,
justice, rule of law and secularism as enshrined in the
Constitution and that they violate the fundamental role
of the Supreme Court as interpreter of the Constitution.
That, the impugned amendments create an
untrammelled, unrestrained and unconstitutional regime
of reservations which destroys the judicial power and
which undermines the efficacy of judicial review which is
an integral part of rule of law. It is argued that, Articles
14 and 16 have to be read with Article 335 as originally
promulgated; that, the impugned amendments invade the
twin principles of efficiency, merit and the morale of
public services and the foundation of good governance. It
is urged vehemently that the impugned amendments
open the floodgates of disunity, disharmony and
disintegration.
On behalf of the respondents, following arguments
were advanced. The power of amendment under Article
368 is a 'constituent' power and not a 'constituted
power'; that, that there are no implied limitations on the
constituent power under Article 368; that, the power
under Article 368 has to keep the Constitution in repair
as and when it becomes necessary and thereby protect
and preserve the basic structure. In such process of
amendment, if it destroys the basic feature of the
Constitution, the amendment will be unconstitutional.
Constitution, according to the respondents, is not merely
what it says. It is what the last interpretation of the
relevant provision of the Constitution given by the
Supreme Court which prevails as a law. The
interpretation placed on the Constitution by the Court
becomes part of the Constitution and, therefore, it is
open to amendment under Article 368. An interpretation
placed by the Court on any provision of the Constitution
gets inbuilt in the provisions interpreted. Such articles
are capable of amendment under Article 368. Such
change of the law so declared by the Supreme Court will
not merely for that reason alone violate the basic
structure of the Constitution or amount to usurpation of
judicial power. This is how Constitution becomes
dynamic. Law has to change. It requires amendments to
the Constitution according to the needs of time and
needs of society. It is an ongoing process of judicial and
constituent powers, both contributing to change of law
with the final say in the judiciary to pronounce on the
validity of such change of law effected by the constituent
power by examining whether such amendments violate
the basic structure of the Constitution. On every
occasion when a constitutional matter comes before the
Court, the meaning of the provisions of the Constitution
will call for interpretation, but every interpretation of the
Article does not become a basic feature of the
Constitution. That, there are no implied limitations on
the power of the Parliament under Article 368 when it
seeks to amend the Constitution. However, an
amendment will be invalid, if it interferes with or
undermines the basic structure. The validity of the
amendment is not to be decided on the touchstone of
Article 13 but only on the basis of violation of the basic
features of the Constitution.
It is further submitted that amendments for giving
effect to the directive principles cannot offend the basic
structure of the Constitution. On the contrary, the
amendments which may abrogate individual rights but
which promote Constitutional ideal of 'justice, social,
economic and political' and the ideal of 'equality of status'
are not liable to be struck down under Article 14 or
Article 16(1) and consequently, such amendments cannot
violate the basic structure of the Constitution. That, the
amendments to the Constitution which are aimed at
removing social and economic disparities cannot offend
the basic structure. It is urged that the concepts flowing
from the preamble to the Constitution constitute the
basic structure; that, basic structure is not found in a
particular Article of the Constitution; and except the
fundamental right to live in Article 21 read with Article
14, no particular Article in Part-III is a basic feature.
Therefore, it is submitted that equality mentioned in
Articles 14 and 16 is not to be equated to the equality
which is a basic feature of the Constitution.
It is submitted that the principle of balancing of
rights of the general category and reserved category in
the context of Article 16 has no nexus to the basic
feature of the Constitution. It is submitted that basic
feature consists of constitutional axioms like
constitutional supremacy, and democratic form of
government, secularism, separation of powers etc.
Respondents contend that Article 16(4) is a part of
the Constitution as originally enacted. The exercise of
the power by the delegate under Article 16(4) will override
Article 16(1). It is not by virtue of the power of the
delegate, but it is by virtue of constituent power itself
having authorized such exercise by the delegate under
Article 16(4), that article 16(1) shall stand overruled. The
only limitation on the power of delegate is that it should
act within four corners of Article 16(4), namely, backward
classes, which in the opinion of the State are not
adequately represented in public employment. If this
condition precedent is satisfied, a reservation will
override Article 16(1) on account of the words 'nothing in
this Article shall prevent the State'. It is urged that
jurisprudence relating to public services do not
constitute basic feature of the Constitution. That, the
right to consideration for promotion in service matters is
not a basic feature.
It is lastly submitted that Articles 16(4A) and 16(4B)
are only enabling provisions; that, the constitutionality of
the enabling power in Articles 16(4A) and 16(4B) is not to
be tested with reference to the exercise of the power or
manner of exercise of such power and that the impugned
amendments have maintained the structure of Articles
16(1) to 16(4) intact. In this connection, it is submitted
that the impugned amendments have retained
reservations at the recruitment level inconformity with
the judgment in Indra Sawhney5, which has confined
Article 16(4) only to initial appointments; that Article
16(4A) is a special provision which provides for
reservation for promotion only to SCs and STs. It is
urged that if SCs/STs and OBCs are lumped together,
OBCs will take away all the vacancies and, therefore,
Article 16(4A) has been inserted as a special provision.
That, in Indra Sawhney5, the focus was on Backward
Classes and not on SCs/STs and, therefore, there was no
balancing of rights of three groups, namely, general
category, other backward classes and scheduled
castes/scheduled tribes. It is, therefore, contended that
under Article 16(4A), reservation is limited. It is not to
the extent of 50% but it is restricted only to SCs and STs,
and, therefore, the "risk element" pointed out in Indra
Sawhney5 stands reduced. To carve out SCs/STs and
make a separate classification is not only constitutional,
but it is a constitutional obligation to do so under Article
46. That, Article 16(4) is an overriding provision over
Article 16(1) and if Article 16(4) cannot be said to
constitute reverse discrimination then Article 16(4A) also
cannot constitute reverse discrimination.
It is next submitted that this Court has taken care
of the interests of the general category by placing a
ceiling on filling-up of vacancies only to a maximum of
50% for reservation. The said 50% permitted by this
Court can be reserved in such manner as the appropriate
Government may deem fit. It is urged that if it is valid to
make reservation at higher levels by direct recruitment, it
can also be done for promotion after taking into account
the mandate of Article 335.
It is next submitted that the amendment made by
Article 16(4B) makes an exception to 50% ceiling-limit
imposed by Indra Sawhney5, by providing that the
vacancies of previous years will not be considered with
the current year's vacancies. In this connection, it was
urged that Article 16(4B) applies to reservations under
Article 16(4) and, therefore, if reservation is found to be
within reasonable limits, the Court would uphold such
reservations depending upon the facts of the case and if
reservation suffers from excessiveness, it may be
invalidated. Therefore, the enabling power under Article
16(4B) cannot be rendered invalid.
For the above reasons, respondents submit that
there is no infirmity in the impugned constitutional
amendments.
KEY ISSUE:
It is not necessary for us to deal with the above
arguments serially. The arguments are dealt with by us
in the following paragraphs subject-wise.
The key issue, which arises for determination in this
case is whether by virtue of the impugned
constitutional amendments, the power of the Parliament
is so enlarged so as to obliterate any or all of the
constitutional limitations and requirements?
STANDARDS OF JUDICIAL REVIEW OF
CONSTITUTIONAL AMENDMENTS:
Constitution is not an ephermal legal document
embodying a set of legal rules for the passing hour. It
sets out principles for an expanding future and is
intended to endure for ages to come and consequently to
be adapted to the various crisis of human affairs.
Therefore, a purposive rather than a strict literal
approach to the interpretation should be adopted. A
Constitutional provision must be construed not in a
narrow and constricted sense but in a wide and liberal
manner so as to anticipate and take account of changing
conditions and purposes so that constitutional provision
does not get fossilized but remains flexible enough to
meet the newly emerging problems and challenges.
This principle of interpretation is particularly
apposite to the interpretation of fundamental rights. It is
a fallacy to regard fundamental rights as a gift from the
State to its citizens. Individuals possess basic human
rights independently of any constitution by reason of
basic fact that they are members of the human race.
These fundamental rights are important as they possess
intrinsic value. Part-III of the Constitution does not
confer fundamental rights. It confirms their existence
and gives them protection. Its purpose is to withdraw
certain subjects from the area of political controversy to
place them beyond the reach of majorities and officials
and to establish them as legal principles to be applied by
the courts. Every right has a content. Every
foundational value is put in Part-III as fundamental right
as it has intrinsic value. The converse does not apply. A
right becomes a fundamental right because it has
foundational value. Apart from the principles, one has
also to see the structure of the Article in which the
fundamental value is incorporated. Fundamental right is
a limitation on the power of the State. A Constitution,
and in particular that of it which protects and which
entrenches fundamental rights and freedoms to which all
persons in the State are to be entitled is to be given a
generous and purposive construction. In the case of
Sakal Papers (P) Ltd. & Others v. Union of India and
others this Court has held that while considering the
nature and content of fundamental rights, the Court
must not be too astute to interpret the language in a
literal sense so as to whittle them down. The Court must
interpret the Constitution in a manner which would
enable the citizens to enjoy the rights guaranteed by it in
the fullest measure. An instance of literal and narrow
interpretation of a vital fundamental right in the Indian
Constitution is the early decision of the Supreme Court
in the case of A.K. Gopalan v. State of Madras .
Article 21 of the Constitution provides that no person
shall be deprived of his life and personal liberty except
according to procedure established by law. The Supreme
Court by a majority held that 'procedure established by
law' means any procedure established by law made by
the Parliament or the legislatures of the State. The
Supreme Court refused to infuse the procedure with
principles of natural justice. It concentrated solely upon
the existence of enacted law. After three decades, the
Supreme Court overruled its previous decision in A.K.
Gopalan10 and held in its landmark judgment in
Maneka Gandhi v. Union of India and another that
the procedure contemplated by Article 21 must answer
the test of reasonableness. The Court further held that
the procedure should also be in conformity with the
principles of natural justice. This example is given to
demonstrate an instance of expansive interpretation of a
fundamental right. The expression 'life' in Article 21 does
not connote merely physical or animal existence. The
right to life includes right to live with human dignity.
This Court has in numerous cases deduced fundamental
features which are not specifically mentioned in Part-III
on the principle that certain unarticulated rights are
implicit in the enumerated guarantees. For example,
freedom of information has been held to be implicit in the
guarantee of freedom of speech and expression. In India,
till recently, there is no legislation securing freedom of
information. However, this Court by a liberal
interpretation deduced the right to know and right to
access information on the reasoning that the concept of
an open government is the direct result from the right to
know which is implicit in the right of free speech and
expression guaranteed under Article 19(1)(a).
The important point to be noted is that the content
of a right is defined by the Courts. The final word on the
content of the right is of this Court. Therefore,
constitutional adjudication plays a very important role in
this exercise. The nature of constitutional adjudication
has been a subject matter of several debates. At one
extreme, it is argued that judicial review of legislation
should be confined to the language of the constitution
and its original intent. At the other end, non-
interpretivism asserts that the way and indeterminate
nature of the constitutional text permits a variety of
standards and values. Others claim that the purpose of
a Bill of Rights is to protect the process of decision
making.
The question which arises before us is regarding
nature of the standards of judicial review required to be
applied in judging the validity of the constitutional
amendments in the context of the doctrine of basic
structure. The concept of a basic structure giving
coherence and durability to a Constitution has a certain
intrinsic force. This doctrine has essentially developed
from the German Constitution. This development is the
emergence of the constitutional principles in their own
right. It is not based on literal wordings.
In S.R. Bommai & Others etc. v. Union of India
& Others etc. , the basic structure concept was
resorted to although no question of constitutional
amendment was involved in that case. But this Court
held that policies of a State Government directed against
an element of the basic structure of the Constitution
would be a valid ground for the exercise of the central
power under Article 356, that is, imposition of the
President's rule. In that case, secularism was held to be
an essential feature of the Constitution and part of its
basic structure. A State Government may be dismissed
not because it violates any particular provision of the
Constitution but because it acts against a vital principle
enacting and giving coherence to a number of particular
provisions, example: Articles 14, 15 and 25. In S.R.
Bommai12, the Court clearly based its conclusion not so
much on violation of particular constitutional provision
but on this generalized ground i.e. evidence of a pattern
of action directed against the principle of secularism.
Therefore, it is important to note that the recognition of a
basic structure in the context of amendment provides an
insight that there are, beyond the words of particular
provisions, systematic principles underlying and
connecting the provisions of the Constitution. These
principles give coherence to the Constitution and make it
an organic whole. These principles are part of
Constitutional law even if they are not expressly stated in
the form of rules. An instance is the principle of
reasonableness which connects Articles 14, 19 and 21.
Some of these principles may be so important and
fundamental, as to qualify as 'essential features' or part
of the 'basic structure' of the Constitution, that is to say,
they are not open to amendment. However, it is only by
linking provisions to such overarching principles that one
would be able to distinguish essential from less essential
features of the Constitution.
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.
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, the second step is to be
taken, namely, whether the principle is so fundamental
as to bind even the amending power of the Parliament,
i.e. to form a part of the basic structure. The basic
structure concept accordingly limits the amending power
of the 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, it can be examined whether it is so
fundamental as to bind even the amending power of the
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.
As stated above, the doctrine of basic structure has
essentially emanated from the German Constitution.
Therefore, we may have a look at common constitutional
provisions under German Law which deal with rights,
such as, freedom of press or religion which are not mere
values, they are justiciable and capable of interpretation.
The values impose a positive duty on the State to ensure
their attainment as far as practicable. The rights,
liberties and freedoms of the individual are not only to be
protected against the State, they should be facilitated by
it. They are to be informed. Overarching and informing
of these rights and values is the principle of human
dignity under the German basic law. Similarly,
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
the 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. 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.
Under the Indian Constitution, the word 'federalism'
does not exist in the preamble. However, its principle
(not in the strict sense as in U.S.A.) 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.
To conclude, the theory of basic structure is based
on the concept of constitutional identity. The basic
structure jurisprudence is a pre-occupation with
constitutional identity. In Kesavananda Bharati
Sripadagalvaru and others v. State of Kerala and
another , 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
Bharati13, 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
Bharati13. 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.
Lastly, constitutionalism is about limits and
aspirations. According to Justice Brennan,
interpretation of the Constitution as a written text is
concerned with aspirations and fundamental principles.
In his Article titled 'Challenge to the Living Constitution'
by Herman Belz, the author says that the Constitution
embodies aspiration to social justice, brotherhood and
human dignity. It is a text which contains fundamental
principles. Fidelity to the text qua fundamental
principles did not limit judicial decision making. The
tradition of the written constitutionalism makes it
possible to apply concepts and doctrines not recoverable
under the doctrine of unwritten living constitution. To
conclude, as observed by Chandrachud, CJ, in Minerva
Mills Ltd.7, 'the Constitution is a precious heritage and,
therefore, you cannot destroy its identity'.
Constitutional adjudication is like no other
decision-making. There is a moral dimension to every
major constitutional case; the language of the text is not
necessarily a controlling factor. Our constitution works
because of its generalities, and because of the good sense
of the Judges when interpreting it. It is that informed
freedom of action of the Judges that helps to preserve
and protect our basic document of governance.
IS EQUALITY A PART OF THE FUNDAMENTAL
FEATURES OR THE BASIC STRUCTURE OF THE
CONSTITUTION?
At the outset, it may be noted that equality, rule of
law, judicial review and separation of powers are distinct
concepts. They have to be treated separately, though
they are intimately connected. There can be no rule of
law if there is no equality before the law; and rule of law
and equality before the law would be empty words if their
violation was not a matter of judicial scrutiny or judicial
review and judicial relief and all these features would lose
their significance if judicial, executive and legislative
functions were united in only one authority, whose
dictates had the force of law. The rule of law and
equality before the law are designed to secure among
other things justice both social and economic. Secondly,
a federal Constitution with its distribution of legislative
powers between Parliament and State legislatures
involves a limitation on legislative powers and this
requires an authority other than Parliament and State
Legislatures to ascertain whether the limits are
transgressed and to prevent such violation and
transgression. As far back as 1872, Lord Selbourne said
that the duty to decide whether the limits are
transgressed must be discharged by courts of justice.
Judicial review of legislation enacted by the Parliament
within limited powers under the controlled constitution
which we have, has been a feature of our law and this is
on the ground that any law passed by a legislature with
limited powers is ultra vires if the limits are transgressed.
The framers conferred on the Supreme Court the power
to issue writs for the speedy enforcement of those rights
and made the right to approach the Supreme Court for
such enforcement itself a fundamental right. Thus,
judicial review is an essential feature of our constitution
because it is necessary to give effect to the distribution of
legislative power between Parliament and State
legislatures, and is also necessary to give practicable
content to the objectives of the Constitution embodied in
Part-III and in several other Articles of our Constitution.
In the case of Minerva Mills7, Chandrachud, C.J.,
speaking for the majority, observed that Articles 14 and
19 do not confer any fanciful rights. They confer rights
which are elementary for the proper and effective
functioning of democracy. They are universally regarded
by the universal Declaration of Human Rights. If Articles
14 and 19 are put out of operation, Article 32 will be
rendered nugatory. In the said judgment, the majority
took the view that the principles enumerated in Part-IV
are not the proclaimed monopoly of democracies alone.
They are common to all polities, democratic or
authoritarian. Every State is goal-oriented and every
State claims to strive for securing the welfare of its
people. The distinction between different forms of
Government consists in the fact that a real democracy
will endeavour to achieve its objectives through the
discipline of fundamental freedoms like Articles 14 and
19. Without these freedoms, democracy is impossible. If
Article 14 is withdrawn, the political pressures exercised
by numerically large groups can tear the country apart
by leading it to the legislation to pick and choose
favoured areas and favourite classes for preferential
treatment.
From these observations, which are binding on us,
the principle which emerges is that "equality" is the
essence of democracy and, accordingly a basic feature of
the Constitution. This test is very important. Free and
fair elections per se may not constitute a basic feature of
the Constitution. On their own, they do not constitute
basic feature. However, free and fair election as a part of
representative democracy is an essential feature as held
in the Indira Nehru Gandhi v. Raj Narain (Election
case). Similarly, federalism is an important principle of
constitutional law. The word 'federalism' is not in the
preamble. However, as stated above, its features are
delineated over various provisions of the Constitution like
Articles 245, 246 and 301 and the three lists in the
seventh schedule to the Constitution.
However, there is a difference between formal
equality and egalitarian equality which will be discussed
later on.
The theory of basic structure is based on the
principle that a change in a thing does not involve its
destruction and destruction of a thing is a matter of
substance and not of form. Therefore, one has to apply
the test of overarching principle to be gathered from the
scheme and the placement and the structure of an Article
in the Constitution. For example, the placement of
Article 14 in the equality code; the placement of Article
19 in the freedom code; the placement of Article 32 in the
code giving access to the Supreme Court. Therefore, the
theory of basic structure is the only theory by which the
validity of impugned amendments to the Constitution is
to be judged.
WORKING TEST IN THE MATTER OF APPLICATION
OF THE DOCTRINE OF BASIC STRUCTURE:
Once it is held that fundamental rights could be
abridged but not destroyed and once it is further held
that several features of the Constitution can not be
destroyed, the concept of 'express limitation' on the
amending power loses its force for a precise formulation
of the basic feature of the Constitution and for the courts
to pronounce on the validity of a constitutional
amendment.
A working test has been evolved by Chandrachud,
J. in the Election Case14, in which the learned Judge
has rightly enunciated, with respect, that "for
determining whether a particular feature of the
Constitution is a part of its basic structure, one has per
force to examine in each individual case the place of the
particular feature in the scheme of the Constitution, its
object and purpose and the consequences of its denial on
the integrity of the Constitution as a fundamental
instrument of the country's governance."
Applying the above test to the facts of the present
case, it is relevant to note that the concept of 'equality'
like the concept of 'representative democracy' or
'secularism' is delineated over various Articles. Basically,
Part-III of the Constitution consists of the equality code,
the freedom code and the right to move the courts. It is
true that equality has several facets. However, each case
has to be seen in the context of the placement of an
Article which embodies the foundational value of
equality.
CONCEPT OF RESERVATION:
Reservation as a concept is very wide. Different
people understand reservation to mean different things.
One view of reservation as a generic concept is that
reservation is anti-poverty measure. There is a different
view which says that reservation is merely providing a
right of access and that it is not a right to redressal.
Similarly, affirmative action as a generic concept has a
different connotation. Some say that reservation is not a
part of affirmative action whereas others say that it is a
part of affirmative action.
Our Constitution has, however, incorporated the
word 'reservation' in Article 16(4) which word is not there
in Article 15(4). Therefore, the word 'reservation' as a
subject of Article 16(4) is different from the word
'reservation' as a general concept.
Applying the above test, we have to consider the
word 'reservation' in the context of Article 16(4) and it is
in that context that Article 335 of the Constitution which
provides for relaxation of the standards of evaluation has
to be seen. We have to go by what the Constitution
framers intended originally and not by general concepts
or principles. Therefore, schematic interpretation of the
Constitution has to be applied and this is the basis of the
working test evolved by Chandrachud, J. in the Election
Case14.
JUSTICE, SOCIAL, ECONOMIC AND POLITICAL IS
PROVIDED NOT ONLY IN PART-IV (DIRECTIVE
PRINCIPLES) BUT ALSO IN PART-III (FUNDAMENTAL
RIGHTS):
India is constituted into a sovereign, democratic
republic to secure to all its citizens, fraternity assuring
the dignity of the individual and the unity of the nation.
The sovereign, democratic republic exists to promote
fraternity and the dignity of the individual citizen and to
secure to the citizens certain rights. This is because the
objectives of the State can be realized only in and
through the individuals. Therefore, rights conferred on
citizens and non-citizens are not merely individual or
personal rights. They have a large social and political
content, because the objectives of the Constitution
cannot be otherwise realized. Fundamental rights
represent the claims of the individual and the restrictions
thereon are the claims of the society. Article 38 in Part-
IV is the only Article which refers to justice, social,
economic and political. However, the concept of justice is
not limited only to directive principles. There can be no
justice without equality. Article 14 guarantees the
fundamental right to equality before the law on all
persons. Great social injustice resulted from treating
sections of the Hindu community as 'untouchable' and,
therefore, Article 17 abolished untouchability and Article
25 permitted the State to make any law providing for
throwing open all public Hindu religious temples to
untouchables. Therefore, provisions of Part-III also
provide for political and social justice.
This discussion is important because in the present
case, we are concerned with reservation. Balancing a
fundamental right to property vis-`-vis Articles 39(b) and
39(c) as in Kesavananda Bharati13 and Minerva Mills7
cannot be equated with the facts of the present case. In
the present case, we are concerned with the right of an
individual of equal opportunity on one hand and
preferential treatment to an individual belonging to a
backward class in order to bring about equal level-
playing field in the matter of public employment.
Therefore, in the present case, we are concerned with
conflicting claims within the concept of 'justice, social,
economic and political', which concept as stated above
exists both in Part-III and Part-IV of the Constitution.
Public employment is a scarce commodity in economic
terms. As the supply is scarce, demand is chasing that
commodity. This is reality of life. The concept of 'public
employment' unlike right to property is socialistic and,
therefore, falls within the preamble to the Constitution
which states that WE, THE PEOPLE OF INDIA, having
solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC.
Similarly, the preamble mentions the objective to be
achieved, namely, justice, social, economic and political.
Therefore, the concept of 'equality of opportunity' in
public employment concerns an individual, whether that
individual belongs to general category or backward class.
The conflicting claim of individual right under Article
16(1) and the preferential treatment given to a backward
class has to be balanced. Both the claims have a
particular object to be achieved. The question is of
optimization of these conflicting interests and claims.
EQUITY, JUSTICE AND MERIT:
The above three concepts are independent variable
concepts. The application of these concepts in public
employment depends upon quantifiable data in each
case. Equality in law is different from equality in fact.
When we construe Article 16(4), it is equality in fact
which plays the dominant role. Backward classes seek
justice. General class in public employment seeks
equity. The difficulty comes in when the third variable
comes in, namely, efficiency in service. In the issue of
reservation, we are being asked to find a stable
equilibrium between justice to the backwards, equity for
the forwards and efficiency for the entire system. Equity
and justice in the above context are hard-concepts.
However, if you add efficiency to equity and justice, the
problem arises in the context of the reservation. This
problem has to be examined, therefore, on the facts of
each case. Therefore, Article 16(4) has to be construed in
the light of Article 335 of the Constitution. Inadequacy in
representation and backwardness of Scheduled Caste
and Scheduled Tribes are circumstances which enable
the State Government to act under Article 16(4) of the
Constitution. However, as held by this Court the
limitations on the discretion of the government in the
matter of reservation under Article 16(4) as well as Article
16(4A) come in the form of Article 335 of the
Constitution.
Merit is not a fixed absolute concept. Amartya Sen,
in a book, Meritocracy and Economic Inequality,
edited by Kenneth Arrow, points out that merit is a
dependent idea and its meaning depends on how a
society defines a desirable act. An act of merit in one
society may not be the same in another. The difficulty is
that there is no natural order of 'merit' independent of
our value system. The content of merit is context-
specific. It derives its meaning from particular conditions
and purposes. The impact of any affirmative action
policy on 'merit' depends on how that policy is designed.
Unfortunately, in the present case, the debate before us
on this point has taken place in an empirical vacuum.
The basic presumption, however, remains that it is the
State who is in the best position to define and measure
merit in whatever ways they consider it to be relevant to
public employment because ultimately it has to bear the
costs arising from errors in defining and measuring
merit. Similarly, the concept of "extent of reservation" is
not an absolute concept and like merit it is context-
specific.
The point which we are emphasizing is that
ultimately the present controversy is regarding the
exercise of the power by the State Government depending
upon the fact-situation in each case. Therefore, 'vesting
of the power' by an enabling provision may be
constitutionally valid and yet 'exercise of the power' by
the State in a given case may be arbitrary, particularly, if
the State fails to identify and measure backwardness and
inadequacy keeping in mind the efficiency of service as
required under Article 335.
RESERVATION AND AFFIRMATIVE ACTION:
Equality of opportunity has two different and
distinct concepts. There is a conceptual distinction
between a non-discrimination principle and affirmative
action under which the State is obliged to provide level-
playing field to the oppressed classes. Affirmative action
in the above sense seeks to move beyond the concept of
non-discrimination towards equalizing results with
respect to various groups. Both the conceptions
constitute "equality of opportunity".
It is the equality "in fact" which has to be decided
looking at the ground reality. Balancing comes in where
the question concerns the extent of reservation. If the
extent of reservation goes beyond cut-off point then it
results in reverse discrimination. Anti-discrimination
legislation has a tendency of pushing towards de facto
reservation. Therefore, a numerical benchmark is the
surest immunity against charges of discrimination.
Reservation is necessary for transcending caste and
not for perpetuating it. Reservation has to be used in a
limited sense otherwise it will perpetuate casteism in the
country. Reservation is under-written by a special
justification. Equality in Article 16(1) is individual-
specific whereas reservation in Article 16(4) and Article
16(4A) is enabling. The discretion of the State is,
however, subject to the existence of "backwardness" and
"inadequacy of representation" in public employment.
Backwardness has to be based on objective factors
whereas inadequacy has to factually exist. This is where
judicial review comes in. However, whether reservation
in a given case is desirable or not, as a policy, is not for
us to decide as long as the parameters mentioned in
Articles 16(4) and 16(4A) are maintained. As stated
above, equity, justice and merit (Article 335)/efficiency
are variables which can only be identified and measured
by the State. Therefore, in each case, a contextual case
has to be made out depending upon different
circumstances which may exist Statewise.
EXTENT OF RESERVATION:
Social justice is one of the sub-divisions of the
concept of justice. It is concerned with the distribution of
benefits and burdens throughout a society as it results
from social institutions property systems, public
organisations etc.
The problem is what should be the basis of
distribution? Writers like Raphael, Mill and Hume define
'social justice' in terms of rights. Other writers like
Hayek and Spencer define 'social justice' in terms of
deserts. Socialist writers define 'social justice' in terms of
need. Therefore, there are three criteria to judge the
basis of distribution, namely, rights, deserts or need.
These three criteria can be put under two concepts of
equality "formal equality" and "proportional equality".
"Formal equality" means that law treats everyone equal
and does not favour anyone either because he belongs to
the advantaged section of the society or to the
disadvantaged section of the society. Concept of
"proportional equality" expects the States to take
affirmative action in favour of disadvantaged sections of
the society within the framework of liberal democracy.
Under the Indian Constitution, while basic liberties
are guaranteed and individual initiative is encouraged,
the State has got the role of ensuring that no class
prospers at the cost of other class and no person suffers
because of drawbacks which is not his but social.
The question of extent of reservation involves two
questions:
1. Whether there is any upper limit beyond which
reservation is not permissible?
2. Whether there is any limit to which seats can
be reserved in a particular year; in other words
the issue is whether the percentage limit
applies only on the total number of posts in
the cadre or to the percentage of posts
advertised every year as well?
The question of extent of reservation is closely
linked to the issue whether Article 16(4) is an exception
to Article 16(1) or is Article 16(4) an application of Article
16(1). If Article 16(4) is an exception to Article 16(1) then
it needs to be given a limited application so as not to
eclipse the general rule in Article 16(1). But if Article
16(4) is taken as an application of Article 16(1) then the
two articles have to be harmonized keeping in view the
interests of certain sections of the society as against the
interest of the individual citizens of the society.
Maximum limit of reservation possible
Word of caution against excess reservation was first
pointed out in The General Manager, Southern
Railway and another v. Rangachari
Gajendragadkar, J. giving the majority judgment said
that reservation under Article 16(4) is intended merely to
give adequate representation to backward communities.
It cannot be used for creating monopolies or for unduly
or illegitimately disturbing the legitimate interests of
other employees. A reasonable balance must be struck
between the claims of backward classes and claims of
other employees as well as the requirement of efficiency
of administration.
However, the question of extent of reservation was
not directly involved in Rangachari15. It was directly
involved in M.R. Balaji & Ors. V. The State of Mysore
& Ors. with reference to Article 15(4). In this case,
60% reservations under Article 15(4) was struck down as
excessive and unconstitutional. Gajendragadkar, J.
observed that special provision should be less than 50
per cent, how much less would depend on the relevant
prevailing circumstances of each case.
But in State of Kerala and another v. N.M.
Thomas and others Krishna Iyer, J. expressed his
concurrence to the views of Fazal Ali, J. who said that
although reservation cannot be so excessive as to destroy
the principle of equality of opportunity under clause (1) of
Article 16, yet it should be noted that the Constitution
itself does not put any bar on the power of the
Government under Article 16(4). If a State has 80%
population which is backward then it would be
meaningless to say that reservation should not cross
50%.
However, in Indra Sawhney5 the majority held that
the rule of 50% laid down in Balaji16 was a binding rule
and not a mere rule of prudence.
Giving the judgment of the Court in Indra
Sawhney5, Reddy, J. stated that Article 16(4) speaks of
adequate representation not proportionate representation
although proportion of population of backward classes to
the total population would certainly be relevant. He
further pointed out that Article 16(4) which protects
interests of certain sections of society has to be balanced
against Article 16(1) which protects the interests of every
citizen of the entire society. They should be harmonised
because they are restatements of principle of equality
under Article 14. (emphasis added)
Are reserved category candidates free to contest for
vacancies in general category
In Indra Sawhney5 Reddy, J. noted that
reservation under Article 16(4) do not operate on
communal ground. Therefore if a member from reserved
category gets selected in general category, his selection
will not be counted against the quota limit provided to
his class. Similarly, in R.K. Sabharwal8 the Supreme
Court held that while general category candidates are not
entitled to fill the reserved posts; reserved category
candidates are entitled to compete for the general
category posts. The fact that considerable number of
members of backward class have been
appointed/promoted against general seats in the State
services may be a relevant factor for the State
Government to review the question of continuing
reservation for the said class.
Number of vacancies that could be reserved
Wanchoo, J. who had given dissenting judgment in
Rangachari15 observed that the requirement of Article
16(4) is only to give adequate representation and since
Constitution-makers intended it to be a short-term
measure it may happen that all the posts in a year may
be reserved. He opined that reserving a fixed percentage
of seats every year may take a long time before
inadequacy of representation is overcome. Therefore, the
Government can decide to reserve the posts. After having
reserved a fixed number of posts the Government may
decide that till those posts are filled up by the backward
classes all appointments will go to them if they fulfil the
minimum qualification. Once this number is reached the
Government is deprived of its power to make further
reservations. Thus, according to Wanchoo, J. the
adequacy of representation has to be judged considering
the total number of posts even if in a single year or for
few years all seats are reserved provided the scheme is
short-term.
The idea given by Wanchoo, J. in Rangachari15 did
not work out in practice because most of the time even
for limited number of reservations, every year qualified
backward class candidates were not available. This
compelled the government to adopt carry-forward rule.
This carry-forward rule came in conflict with Balaji16
ruling. In cases where the availability of reserved
category candidates is less than the vacancies set aside
for them, the Government has to adopt either of the two
alternatives:
(1) the State may provide for carrying on the
unfulfilled vacancies for the next year or next to the next
year, or
(2) instead of providing for carrying over the
unfulfilled vacancies to the coming years, it may provide
for filling of the vacancies from the general quota
candidates and carry forward the unfilled posts by
backward classes to the next year quota.
But the problem arises when in a particular year
due to carry forward rule more than 50% of vacancies are
reserved. In T. Devadasan v. Union of India and
another , this was the issue. Union Public Service
Commission had provided for 17=% reservation for
Scheduled Castes and Scheduled Tribes. In case of non-
availability of reserved category candidates in a particular
year the posts had to be filled by general category
candidates and the number of such vacancies were to be
carried forward to be filled by the reserved category
candidate next year. Due to this, the rule of carry forward
reservation in a particular year amounted to 65% of the
total vacancies. The petitioner contended that reservation
was excessive which destroyed his right under Article
16(1) and Article 14. The court on the basis of decision in
Balaji16 held the reservation excessive and, therefore,
unconstitutional. It further stated that the guarantee of
equality under Article 16(1) is to each individual citizen
and to appointments to any office under the State. It
means that on every occasion for recruitment the State
should see that all citizens are treated equally. In order to
effectuate the guarantee each year of recruitment will
have to be considered by itself.
Thus, majority differed from Wanchoo's, J. decision
in Rangachari15 holding that a cent per cent reservation
in a particular year would be unconstitutional in view of
Balaji16 decision.
Subba Rao, J. gave dissenting judgment. He relied
on Wanchoo's, J. judgment in Rangachari15 and held
that Article 16(4) provides for adequate representation
taking into consideration entire cadre strength. According
to him, if it is within the power of the State to make
reservations then reservation made in one selection or
spread over many selections is only a convenient method
of implementing the provision of reservation. Unless it is
established that an unreasonably disproportionate part
of the cadre strength is filled up with the said castes and
tribes, it is not possible to contend that the provision is
not one of reservation but amounts to an extinction of
the fundamental right.
In the case of Thomas17 under the Kerala State and
Subordinate Services Rules, 1950 certain relaxation was
given to Scheduled Caste and Scheduled Tribe
candidates passing departmental tests for promotions.
For promotion to upper division clerks from lower
division clerks the criteria of seniority-cum-merit was
adopted. Due to relaxation in merit qualification in 1972,
34 out of 51 vacancies in upper division clerks went to
Scheduled Caste candidates. It appeared that the 34
members of SC/ST had become senior most in the lower
grade. The High Court quashed the promotions on the
ground that it was excessive. The Supreme Court upheld
the promotions. Ray, C.J. held that the promotions
made in services as a whole is no where near 50% of the
total number of the posts. Thus, the majority differed
from the ruling of the court in Devadasan19 basically on
the ground that the strength of the cadre as a whole
should be taken into account. Khanna, J. in his
dissenting opinion made a reference to it on the ground
that such excessive concession would impair efficiency in
administration.
In Indra Sawhney5, the majority held that 50%
rule should be applied to each year otherwise it may
happen that (if entire cadre strength is taken as a unit)
the open competition channel gets choked for some years
and meanwhile the general category candidates may
become age barred and ineligible. The equality of
opportunity under Article 16(1) is for each individual
citizen while special provision under Article 16(4) is for
socially disadvantaged classes. Both should be balanced
and neither should be allowed to eclipse the other.
However, in R.K. Sabharwal8 which was a case of
promotion and the issue in this case was operation of
roster system, the Court stated that entire cadre strength
should be taken into account to determine whether
reservation up to the required limit has been reached.
With regard to ruling in Indra Sawhney case5 that
reservation in a year should not go beyond 50% the
Court held that it applied to initial appointments. The
operation of a roster, for filling the cadre strength, by
itself ensures that the reservation remains within the
50% limit. In substance the court said that presuming
that 100% of the vacancies have been filled, each post
gets marked for the particular category of candidate to be
appointed against it and any subsequent vacancy has to
be filled by that category candidate. The Court was
concerned with the possibility that reservation in entire
cadre may exceed 50% limit if every year half of the seats
are reserved. The Constitution (Eighty-first Amendment)
Act, 2000 added Article 16(4B) which in substance gives
legislative assent to the judgment in R.K. Sabharwal8.
CATCH-UP RULE IS THE SAID RULE A
CONSTITUTIONAL REQUIREMENT UNDER ARTICLE
16(4):
One of the contentions advanced on behalf of the
petitioners is that the impugned amendments,
particularly, the Constitution (Seventy-Seventh
Amendment) and (Eight-Fifth Amendment) Acts,
obliterate all constitutional limitations on the amending
power of the Parliament. That the width of these
impugned amendments is so wide that it violates the
basic structure of equality enshrined in the Constitution.
The key issue which arises for determination is
whether the above "catch-up" rule and the concept of
"consequential seniority" are constitutional requirements
of Article 16 and of equality, so as to be beyond the
constitutional amendatory process. In other words,
whether obliteration of the "catch-up" rule or insertion of
the concept of "consequential seniority code", would
violate the basic structure of the equality code enshrined
in Articles 14, 15 and 16.
The concept of "catch-up" rule appears for the first
time in the case of Virpal Singh Chauhan1 . In the
category of Guards in the Railways, there were four
categories, namely, Grade 'C', Grade 'B', Grade 'A' and
Grade 'A' Special. The initial recruitment was made to
Gr. 'C'. Promotion from one grade to another was by
seniority-cum-suitability. The rule of reservation was
applied not only at the initial stage of appointment to
Grade 'C' but at every stage of promotion. The
percentage reserved for SC was 15% and for ST, it was
7.5%. To give effect to the rule of reservation, a forty-
point roster was prepared in which certain points were
reserved for SCs and STs respectively. Subsequently, a
hundred-point roster was prepared reflecting the same
percentages. In 1986, general candidates and members
of SCs/STs came within Grade 'A' in Northern-Railway.
On 1.8.1986, the Chief Controller promoted certain
general candidates on ad hoc basis to Grade 'A' Special.
Within three months, they were reverted and SCs and
STs were promoted. This action was challenged by
general candidates as arbitrary and unconstitutional
before the tribunal. The general candidates asked for
three reliefs, namely, (a) to restrain the Railways from
filling-up the posts in higher grades in the category of
Guards by applying the rule of reservation; (b) to restrain
the Railway from acting upon the seniority list prepared
by them; and (c) to declare that the general candidates
were alone entitled to be promoted and confirmed in
Grade 'A' Special on the strength of their seniority earlier
to the reserved category employees. The contention of
the general candidates was that once the quota
prescribed for the reserved group is satisfied, the forty-
point roster cannot be applied because that roster was
prepared to give effect to the rule of reservation. It was
contended by the general candidates that accelerated
promotion may be given but the Railways cannot give
consequential seniority to reserved category candidates
in the promoted category. (Emphasis added). In this
connection, the general category candidates relied upon
the decisions of the Allahabad and Madhya Pradesh High
Courts. It was contended by the general candidates that
giving consequential seniority in addition to accelerated
promotion constituted conferment of double benefit upon
the members of the reserved category and, therefore,
violated the rule of equality in Article 16(1). It was
further urged that accelerated promotion-cum-
accelerated seniority is destructive of the efficiency of
administration inasmuch as by this means the higher
echelons of administration would be occupied entirely by
members of reserved categories. This was opposed by the
reserved category candidates who submitted that for the
purposes of promotion to Grade 'A' Special, the seniority
list pertaining to Grade 'A' alone should be followed; that,
the administration should not follow the seniority lists
maintained by the administration pertaining to Grade 'C'
as urged by the general candidates and since SCs and
STs were senior to the general candidates in Grade 'A',
the seniority in Grade 'A' alone should apply. In short,
the general candidates relied upon the 'catch-up' rule,
which was opposed by the members of SC/ST. They also
relied upon the judgment of this Court in R.K.
Sabharwal8.
This Court gave following reasons for upholding the
decision of the tribunal. Firstly, it was held that a rule of
reservation as such does not violate Article 16(4).
Secondly, this Court opined, that there is no uniform
method of providing reservation. The extent and nature
of reservation is a matter for the State to decide having
regards to the facts and requirements of each case. It is
open to the State, if so advised, to say that while the rule
of reservation shall be applied, the candidate promoted
earlier by virtue of rule of reservation/roster shall not be
entitled to seniority over seniors in the feeder category
and that it is open to the State to interpret the 'catch-up'
rule in the service conditions governing the promotions
[See: para 24]. Thirdly, this Court did not agree with the
view expressed by the tribunal [in Virpal Singh
Chauhan1] that a harmonious reading of clauses (1) to
(4) of Article 16 should mean that a reserved category
candidate promoted earlier than his senior general
category candidates in the feeder grade shall necessarily
be junior in the promoted category to such general
category. This Court categorically ruled, vide para 27,
that such catch-up principle cannot be said to be implicit
in clauses (1) to (4) of Article 16 (emphasis supplied).
Lastly, this Court found on facts that for 11 vacancies,
33 candidates were considered and they were all SC/ST
candidates. Not a single candidate belonged to general
category. It was argued on behalf of the general
candidates that all top grades stood occupied exclusively
by the reserved category members, which violated the
rule of equality underlying Articles 16(1), 16(4) and 14.
This Court opined that the above situation arose on
account of faulty implementation of the rule of
reservation, as the Railways did not observe the principle
that reservation must be in relation to 'posts' and not
'vacancies' and also for applying the roster even after the
attainment of the requisite percentage reserved for
SCs/STs. In other words, this Court based its decision
only on the faulty implementation of the rule by the
Railways which the Court ordered to be rectified.
The point which we need to emphasize is that the
Court has categorically ruled in Virpal Singh Chauhan1
that the 'catch-up' rule is not implicit in clauses (1) to (4)
of Article 16. Hence, the said rule cannot bind the
amending power of the Parliament. It is not beyond the
amending power of the Parliament.
In Ajit Singh (I)2, the controversy which arose for
determination was whether after the members of
SCs/STs for whom specific percentage of posts stood
reserved having been promoted against those posts, was
it open to the administration to grant consequential
seniority against general category posts in the higher
grade. The appellant took a clear stand that he had no
objection if members of SC/ST get accelerated
promotions. The appellant objected only to the grant of
consequential seniority. Relying on the circulars issued
by the administration dated 19.7.1969 and 8.9.1969, the
High Court held that the members of SCs/STs can be
promoted against general category posts on basis of
seniority. This was challenged in appeal before this
Court. The High Court ruling was set aside by this Court
on the ground that if the 'catch-up' rule is not applied
then the equality principle embodied in Article 16(1)
would stand violated. This Court observed that the
'catch-up' rule was a process adopted while making
appointments through direct recruitment or promotion
because merit cannot be ignored. This Court held that
for attracting meritorious candidate a balance has to be
struck while making provisions for reservation. It was
held that the promotion is an incident of service. It was
observed that seniority is one of the important factors in
making promotion. It was held that right to equality is to
be preserved by preventing reverse discrimination.
Further, it was held that the equality principle requires
exclusion of extra-weightage of roster-point promotion to
a reserved category candidate (emphasis supplied). This
Court opined that without 'catch-up' rule giving
weightage to earlier promotion secured by roster-point
promotee would result in reverse discrimination and
would violate equality under Articles 14, 15 and 16.
Accordingly, this Court took the view that the seniority
between the reserved category candidates and general
candidates in the promoted category shall be governed by
their panel position. Therefore, this Court set aside the
factor of extra-weightage of earlier promotion to a
reserved category candidate as violative of Articles 14 and
16(1) of the Constitution.
Therefore, in Virpal Singh Chauhan1, this Court
has said that the 'catch-up' rule insisted upon by the
Railways though not implicit in Articles 16(1) and 16(4),
is constitutionally valid as the said practice/process was
made to maintain efficiency. On the other hand, in Ajit
Singh (I)2, this Court has held that the equality principle
excludes the extra-weightage given by the Government to
roster-point promotees as such weightage is against
merit and efficiency of the administration and that the
Punjab Government had erred in not taking into account
the said merit and efficiency factors.
In the case of Ajit Singh (II)3, three interlocutory
applications were filed by State of Punjab for clarification
of the judgment of this Court in Ajit Singh (I)2. The
limited question was whether there was any conflict
between the judgments of this Court in Virpal Singh
Chauhan1 and Ajit Singh (I)2 on one hand and vis-`-vis
the judgment of this Court in Jagdish Lal and others
v. State of Haryana and others . The former cases
were decided in favour of general candidates whereas
latter was a decision against the general candidates.
Briefly, the facts for moving the interlocutory applications
were as follows. The Indian Railways following the law
laid down in Virpal Singh Chauhan1 issued a circular
on 28.2.1997 to the effect that the reserved candidates
promoted on roster-points could not claim seniority over
the senior general candidates promoted later on. The
State of Punjab after following Ajit Singh (I)2 revised
their seniority list and made further promotions of the
senior general candidates following the 'catch-up' rule.
Therefore, both the judgments were against the reserved
candidates. However, in the later judgment of this Court
in the case of Jagdish Lal20, another three-Judge bench
took the view that under the general rule of service
jurisprudence relating to seniority, the date of
continuous officiation has to be taken into account and if
so, the roster-point promotees were entitled to the benefit
of continuous officiation. In Jagdish Lal20, the bench
observed that the right to promotion was a statutory right
while the rights of the reserved candidates under Article
16(4) and Article 16(4A) were fundamental rights of the
reserved candidates and, therefore, the reserved
candidates were entitled to the benefit of continuous
officiation.
Accordingly, in Ajit Singh (II)3, three points arose
for consideration:
(i) Can the roster point promotees count
their seniority in the promoted category
from the date of their continuous
officiation vis-`-vis general candidates,
who were senior to them in the lower
category and who were later promoted to
the same level?
(ii) Have Virpal1 and Ajit Singh (I)2 have
been correctly decided and has Jagdish
Lal20 been correctly decided?
(iii) Whether the catch-up principles are
tenable?
At the outset, this Court stated that it was not
concerned with the validity of constitutional amendments
and, therefore, it proceeded on the assumption that
Article 16(4A) is valid and is not unconstitutional.
Basically, the question decided was whether the 'catch-
up' principle was tenable in the context of Article 16(4).
It was held that the primary purpose of Article 16(4) and
Article 16(4A) is to give due representation to certain
classes in certain posts keeping in mind Articles 14, 16(1)
and 335; that, Articles 14 and 16(1) have prescribed
permissive limits to affirmative action by way of
reservation under Articles 16(4) and 16(4A) of the
Constitution; that, Article 335 is incorporated so that
efficiency of administration is not jeopardized and that
Articles 14 and 16(1) are closely connected as they deal
with individual rights of the persons. They give a positive
command to the State that there shall be equality of
opportunity of all citizens in public employment. It was
further held that Article 16(1) flows from Article 14. It
was held that the word 'employment' in Article 16(1) is
wide enough to include promotions to posts at the stage
of initial level of recruitment. It was observed that Article
16(1) provides to every employee otherwise eligible for
promotion fundamental right to be considered for
promotion. It was held that equal opportunity means the
right to be considered for promotion. The right to be
considered for promotion was not a statutory right. It
was held that Articles 16(4) and 16(4A) did not confer any
fundamental right to reservation. That they are only
enabling provisions. Accordingly, in Ajit Singh (II)3, the
judgment of this Court in Jagdish Lal20 case was
overruled. However, in the context of balancing of
fundamental rights under Article 16(1) and the rights of
reserved candidate under Articles 16(4) and 16(4A), this
Court opined that Article 16(1) deals with a fundamental
right whereas Articles 16(4) and 16(4A) are only enabling
provisions and, therefore, the interests of the reserved
classes must be balanced against the interests of other
segments of society. As a remedial measure, the Court
held that in matters relating to affirmative action by the
State, the rights under Articles 14 and 16 are required to
be protected and a reasonable balance should be struck
so that the affirmative action by the State does not lead
to reverse discrimination.
Reading the above judgments, we are of the view
that the concept of 'catch-up' rule and 'consequential
seniority' are judicially evolved concepts to control the
extent of reservation. The source of these concepts is in
service jurisprudence. These concepts cannot be
elevated to the status of an axiom like secularism,
constitutional sovereignty etc. It cannot be said that by
insertion of the concept of 'consequential seniority' the
structure of Article 16(1) stands destroyed or abrogated.
It cannot be said that 'equality code' under Article 14, 15
and 16 is violated by deletion of the 'catch-up' rule.
These concepts are based on practices. However, such
practices cannot be elevated to the status of a
constitutional principle so as to be beyond the amending
power of the Parliament. Principles of service
jurisprudence are different from constitutional
limitations. Therefore, in our view neither the 'catch-up'
rule nor the concept of 'consequential seniority' are
implicit in clauses (1) and (4) of Article 16 as correctly
held in Virpal Singh Chauhan1.
Before concluding, we may refer to the judgment of
this court in M.G. Badappanavar6. In that case the facts
were as follows. Appellants were general candidates.
They contended that when they and the reserved
candidates were appointed at Level-1 and junior reserved
candidates got promoted earlier on the basis of roster-
points to Level-2 and again by way of roster-points to
Level-3, and when the senior general candidate got
promoted to Level-3, then the general candidate would
become senior to the reserved candidate at Level-3. At
Level-3, the reserved candidate should have been
considered along with the senior general candidate for
promotion to Level-4. In support of their contention,
appellants relied upon the judgment of the Constitution
Bench in Ajit Singh (II)3. The above contentions raised
by the appellants were rejected by the tribunal.
Therefore, the general candidates came to this Court in
appeal. This Court found on facts that the concerned
Service Rule did not contemplate computation of
seniority in respect of roster promotions. Placing reliance
on the judgment of this Court in Ajit Singh (I)2 and in
Virpal Singh1, this court held that roster promotions
were meant only for the limited purpose of due
representation of backward classes at various levels of
service and, therefore, such roster promotions did not
confer consequential seniority to the roster-point
promotee. In Ajit Singh (II)3, the circular which gave
seniority to the roster-point promotees was held to be
violative of Articles 14 and 16. It was further held in M.
G. Badappanavar6 that equality is the basic feature of
the Constitution and any treatment of equals as
unequals or any treatment of unequals as equals violated
the basic structure of the Constitution. For this
proposition, this Court placed reliance on the judgment
in Indra Sawhney5 while holding that if creamy layer
among backward classes were given some benefits as
backward classes, it will amount to equals being treated
unequals. Applying the creamy layer test, this Court
held that if roster-point promotees are given
consequential seniority, it will violate the equality
principle which is part of the basic structure of the
Constitution and in which event, even Article 16(4A)
cannot be of any help to the reserved category
candidates. This is the only judgment of this Court
delivered by three-Judge bench saying that if roster-point
promotees are given the benefit of consequential
seniority, it will result in violation of equality principle
which is part of the basic structure of the Constitution.
Accordingly, the judgment of the tribunal was set aside.
The judgment in the case of M. G. Badappanavar6
was mainly based on the judgment in Ajit Singh (I)'2
which had taken the view that the departmental circular
which gave consequential seniority to the 'roster-point
promotee', violated Articles 14 and 16 of the
Constitution. In none of the above cases, the question of
the validity of the constitutional amendments was
involved. Ajit Singh (I)'2, Ajit Singh (II)'3 and M. G.
Badappanavar6 were essentially concerned with the
question of 'weightage'. Whether weightage of earlier
accelerated promotion with consequential seniority
should be given or not to be given are matters which
would fall within the discretion of the appropriate
Government, keeping in mind the backwardness,
inadequacy and representation in public employment
and overall efficiency of services. The above judgments,
therefore, did not touch the questions which are involved
in the present case.
SCOPE OF THE IMPUGNED AMENDMENTS
Before dealing with the scope of the constitutional
amendments we need to recap the judgments in Indra
Sawhney5 and R.K. Sabharwal8 . In the former case
the majority held that 50% rule should be applied to each
year otherwise it may happen that the open competition
channel may get choked if the entire cadre strength is
taken as a unit. However in R.K. Sabharwal8, this court
stated that the entire cadre strength should be taken into
account to determine whether the reservation up to the
quota-limit has been reached. It was clarified that the
judgment in Indra Sawhney5 was confined to initial
appointments and not to promotions. The operation of
the roster for filling the cadre strength, by itself, ensure
that the reservation remains within the ceiling-limit of
50%.
In our view, appropriate Government has to apply
the cadre strength as a unit in the operation of the roster
in order to ascertain whether a given class/group is
adequately represented in the service. The cadre
strength as a unit also ensures that upper ceiling-limit of
50% is not violated. Further, roster has to be post-
specific and not vacancy based.
With these introductory facts, we may examine the
scope of the impugned constitutional amendments.
The Supreme Court in its judgment dated 16.11.92
in Indra Sawhney5 stated that reservation of
appointments or posts under Article 16(4) is confined to
initial appointment and cannot extend to reservation in
the matter of promotion. Prior to the judgment in Indra
Sawhney5 reservation in promotion existed. The
Government felt that the judgment of this court in Indra
Sawhney5 adversely affected the interests of SCs and
STs in services, as they have not reached the required
level. Therefore, the Government felt that it was
necessary to continue the existing policy of providing
reservation in promotion confined to SCs and STs alone.
We quote hereinbelow Statement of Objects and Reasons
with the text of the Constitution (Seventy-Seventh
Amendment) Act, 1995 introducing clause (4A) in Article
16 of the Constitution:
"THE CONSTITUTION (SEVENTY-SEVENTH
AMENDMENT) ACT, 1995
STATEMENT OF OBJECTS AND REASONS
The Scheduled Castes and the Scheduled
Tribes have been enjoying the facility of
reservation in promotion since 1955. The
Supreme Court in its judgment dated 16th
November, 1992 in the case of
Indra Sawhney v. Union of India5,
however, observed that reservation of
appointments or posts under Article 16(4) of
the Constitution is confined to initial
appointment and cannot extent to
reservation in the matter of promotion. This
ruling of the Supreme Court will adversely
affect the interests of the Scheduled Castes
and the Scheduled Tribes. Since the
representation of the Scheduled Castes and
the Scheduled Tribes in services in the
States have not reached the required level, it is
necessary to continue the existing
dispensation of providing reservation in
promotion in the case of the Scheduled Castes
and the Scheduled Tribes. In view of the
commitment of the Government to protect the
interests of the Scheduled Castes and
the Scheduled Tribes, the Government have
decided to continue the existing policy of
reservation in promotion for the
Scheduled Castes and the Scheduled Tribes.
To carry out this, it is necessary to amend
Article 16 of the Constitution by inserting a
new clause (4A) in the said Article to provide
for reservation in promotion for the Scheduled
Castes and the Scheduled Tribes.
2. The Bill seeks to achieve the aforesaid
object.
THE CONSTITUTION (SEVENTY-SEVENTH
AMENDMENT) ACT, 1995
[Assented on 17th June, 1995, and came into force
on 17.6.1995]
An Act further to amend the Constitution of India
BE it enacted by Parliament in the Forty-
sixth Year of the Republic of India as follows:-
1. Short title.- This Act may
be called the Constitution (Seventy-seventh
Amendment) Act, 1995.
2. Amendment of Article 16. - In
Article 16 of the Constitution, after clause (4),
the following clause shall be inserted, namely:-
"(4A) Nothing in this Article shall
prevent the State from making any
provision for reservation in matters of
promotion to any class or classes of posts in
the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are
not adequately represented in the
services under the State."
The said clause (4A) was inserted after clause (4) of
Article 16 to say that nothing in the said Article shall
prevent the State from making any provision for
reservation in matters of promotion to any class(s) of
posts in the services under the State in favour of SCs and
STs which, in the opinion of the States, are not
adequately represented in the services under the State.
Clause (4A) follows the pattern specified in clauses
(3) and (4) of Article 16. Clause (4A) of Article 16
emphasizes the opinion of the States in the matter of
adequacy of representation. It gives freedom to the State
in an appropriate case depending upon the ground reality
to provide for reservation in matters of promotion to any
class or classes of posts in the services. The State has to
form its opinion on the quantifiable data regarding
adequacy of representation. Clause (4A) of Article 16 is
an enabling provision. It gives freedom to the State to
provide for reservation in matters of promotion. Clause
(4A) of Article 16 applies only to SCs and STs. The said
clause is carved out of Article 16(4). Therefore, clause
(4A) will be governed by the two compelling reasons
"backwardness" and "inadequacy of representation", as
mentioned in Article 16(4). If the said two reasons do not
exist then the enabling provision cannot come into force.
The State can make provision for reservation only if the
above two circumstances exist. Further in Ajit Singh
(II)3 , this court has held that apart from 'backwardness'
and 'inadequacy of representation' the State shall also
keep in mind 'overall efficiency' (Article 335). Therefore,
all the three factors have to be kept in mind by the
appropriate Government by providing for reservation in
promotion for SCs and STs.
After the Constitution (Seventy-Seventh
Amendment) Act, 1995, this court stepped in to balance
the conflicting interests. This was in the case of Virpal
Singh Chauhan1 in which it was held that a roster-point
promotee getting the benefit of accelerated promotion
would not get consequential seniority. As such,
consequential seniority constituted additional benefit
and, therefore, his seniority will be governed by the panel
position. According to the Government, the decisions in
Virpal Singh1 and Ajit Singh (I)2 bringing in the
concept of "catch-up" rule adversely affected the interests
of SCs and STs in the matter of seniority on promotion to
the next higher grade.
In the circumstances, clause (4A) of Article 16 was
once again amended and the benefit of consequential
seniority was given in addition to accelerated promotion
to the roster-point promotees. Suffice it to state that, the
Constitution (Eighty-Fifth Amendment) Act, 2001 was an
extension of clause (4A) of Article 16. Therefore, the
Constitution (Seventy-Seventh Amendment) Act, 1995
has to be read with the Constitution (Eighty-Fifth
Amendment) Act, 2001.
We quote hereinbelow Statement of Objects and
Reasons with the text of the Constitution (Eighty-Fifth
Amendment) Act, 2001:
"THE CONSTITUTION (EIGHTY-FIFTH
AMENDMENT) ACT, 2001
STATEMENT OF OBJECTS AND REASONS
The Government servants belonging to
the Scheduled Castes and the Scheduled
Tribes had been enjoying the benefit of
consequential seniority on their promotion on
the basis of rule of reservation. The judgments
of the Supreme Court in the case of Union of
India v. Virpal Singh Chauhan (1995) 6 SCC
684 and Ajit Singh Januja (No.1) v. State of
Punjab AIR 1996 SC 1189, which led to the
issue of the O.M. dated 30th January, 1997,
have adversely affected the interest of the
Government servants belonging to the
Scheduled Castes and Scheduled Tribes
category in the matter of seniority on
promotion to the next higher grade. This has
led to considerable anxiety and
representations have also been received from
various quarters including Members of
Parliament to protect the interest of the
Government servants belonging to Scheduled
Castes and Scheduled Tribes.
2. The Government has reviewed the
position in the light of views received from
various quarters and in order to protect the
interest of the Government servants belonging
to the Scheduled Castes and Scheduled Tribes,
it has been decided to negate the effect of O.M.
dated 30th January 1997 immediately. Mere
withdrawal of the O.M. dated 30th will not meet
the desired purpose and review or revision of
seniority of the Government servants and
grant of consequential benefits to such
Government servants will also be necessary.
This will require amendment to Article 16(4A)
of the Constitution to provide for consequential
seniority in the case of promotion by virtue of
rule of reservation. It is also necessary to give
retrospective effect to the proposed
constitutional amendment to Article 16(4A)
with effect from the date of coming into force of
Article 16(4A) itself, that is, from the 17th day
of June, 1995.
3. The Bill seeks to achieve the
aforesaid objects.
THE CONSTITUTION (EIGHTY-FIFTH
AMENDMENT) ACT, 2001
The following Act of Parliament received
the assent of the President on the 4th January,
2002 and is published for general
information:-
An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Fifty-
second Year of the Republic of India as
follows:-
1. Short title and commencement.- (1)
This Act may be called the Constitution
(Eighty-fifth Amendment) Act, 2001.
(2) It shall be deemed to have come into
force on the 17th day of June 1995.
2. Amendment of Article 16.- In Article
16 of the Constitution, in clause (4A), for the
words "in matters of promotion to any class",
the words "in matters of promotion, with
consequential seniority, to any class" shall be
substituted."
Reading the Constitution (Seventy-Seventh
Amendment) Act, 1995 with the Constitution (Eighty-
Fifth Amendment) Act, 2001, clause (4A) of Article 16
now reads as follows:
"(4A) Nothing in this article shall prevent the
State from making any provision for
reservation in matters of promotion, with
consequential seniority, to any class or classes
of posts in the services under the State in
favour of the Scheduled Castes and the
Scheduled Tribes which in the opinion of the
State are not adequately represented in the
services under the State."
The question in the present case concerns the width
of the amending powers of the Parliament. The key issue
is whether any constitutional limitation mentioned in
Article 16(4) and Article 335 stand obliterated by the
above constitutional amendments.
In R.K. Sabharwal8, the issue was concerning
operation of roster system. This court stated that the
entire cadre strength should be taken into account to
determine whether reservation up to the required limit
has been reached. It was held that if the roster is
prepared on the basis of the cadre strength, that by itself
would ensure that the reservation would remain within
the ceiling-limit of 50%. In substance, the court said
that in the case of hundred-point roster each post gets
marked for the category of candidate to be appointed
against it and any subsequent vacancy has to be filled by
that category candidate alone (replacement theory).
The question which remained in controversy,
however, was concerning the rule of 'carry-forward'. In
Indra Sawhney5 this court held that the number of
vacancies to be filled up on the basis of reservation in a
year including the 'carry-forward' reservations should in
no case exceed the ceiling-limit of 50%.
However, the Government found that total
reservation in a year for SCs, STs and OBCs combined
together had already reached 49=% and if the judgment
of this court in Indra Sawhney5 had to be applied it
became difficult to fill "backlog vacancies". According to
the Government, in some cases the total of the current
and backlog vacancies was likely to exceed the ceiling-
limit of 50%. Therefore, the Government inserted clause
(4B) after clause (4A) in Article 16 vide the Constitution
(Eighty-First Amendment) Act, 2000.
By clause (4B) the "carry-forward"/"unfilled
vacancies" of a year is kept out and excluded from the
overall ceiling-limit of 50% reservation. The clubbing of
the backlog vacancies with the current vacancies stands
segregated by the Constitution (Eighty-First Amendment)
Act, 2000. Quoted hereinbelow is the Statement of
Objects and Reasons with the text of the Constitution
(Eighty-First Amendment) Act, 2000:
"THE CONSTITUTION (EIGHTY FIRST
AMENDMENT) ACT, 2000
(Assented on 9th June, 2000 and came into
force 9.6.2000)
STATEMENT OF OBJECTS AND REASONS
Prior to August 29, 1997, the vacancies
reserved for the Scheduled Castes and the
Scheduled Tribes, which could not be filled up
by direct recruitment on account of non-
availability of the candidates belonging to the
Scheduled Castes or the Scheduled Tribes,
were treated as "Backlog Vacancies". These
vacancies were treated as a distinct group and
were excluded from the ceiling of fifty per cent
reservation. The Supreme Court of India in its
judgment in the Indra Sawhney versus Union
of India held that the number of vacancies to
be filled up on the basis of reservations in a
year including carried forward reservations
should in no case exceed the limit of fifty per
cent. As total reservations in a year for the
Scheduled Castes, the Scheduled Tribes and
the other Backward Classes combined together
had already reached forty-nine and a half per
cent and the total number of vacancies to be
filled up in a year could not exceed fifty per
cent., it became difficult to fill the "Backlog
Vacancies" and to hold Special Recruitment
Drives. Therefore, to implement the judgment
of the Supreme Court, an Official
Memorandum dated August 29, 1997 was
issued to provide that the fifty per cent limit
shall apply to current as well as "Backlog
Vacancies" and for discontinuation of the
Special Recruitment Drive.
Due to the adverse effect of the aforesaid
order dated August 29, 1997, various
organisations including the Members of
Parliament represented to the central
Government for protecting the interest of the
Scheduled castes and the Scheduled Tribes.
The Government, after considering various
representations, reviewed the position and has
decided to make amendment in the
constitution so that the unfilled vacancies of a
year, which are reserved for being filled up in
that year in accordance with any provision for
reservation made under clause (4) or clause
(4A) of Article 16 of the Constitution, shall be
considered as a separate class of vacancies to
be filled up in any succeeding year or years
and such class of vacancies shall not be
considered together with the vacancies of the
year in which they are being filled up for
determining the ceiling of fifty percent,
reservation on total number of vacancies of
that year. This amendment in the Constitution
would enable the State to restore the position
as was prevalent before august 29, 1997.
The Bill seeks to achieve the aforesaid
object.
THE CONSTITUTION (EIGHTY-FIRST
AMENDMENT) ACT, 2000
(Assented on 9th June, 2000 and came into
force 9.6.2000)
An Act further to amend the Constitution of
India.
BE it enacted by Parliament in the Fifty-
first Year of the Republic of India as follows:-
1. Short title: This Act may be called the
Constitution (Eighty-first Amendment) Act,
2000.
2. Amendment of Article 16: In Article
16 of the Constitution, after clause (4A), the
following clause shall be inserted, namely: -
"(4B) Nothing in this Article shall prevent
the State from considering any unfilled
vacancies of a year which are reserved for
being filled up in that year in accordance with
any provision for reservation made under
clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding
year or years and such class of vacancies shall
not be considered together with the vacancies
of the year in which they are being filled up for
determining the ceiling of fifty per cent
reservation on total number of vacancies of
that year."
The Constitution (Eighty-First Amendment) Act,
2000 gives, in substance, legislative assent to the
judgment of this Court in R.K. Sabharwal8. Once it is
held that each point in the roster indicates a post which
on falling vacant has to be filled by the particular
category of candidate to be appointed against it and any
subsequent vacancy has to be filled by that category
candidate alone then the question of clubbing the
unfilled vacancies with current vacancies do not arise.
Therefore, in effect, Article 16(4B) grants legislative
assent to the judgment in R.K. Sabharwal8. If it is
within the power of the State to make reservation then
whether it is made in one selection or deferred selections,
is only a convenient method of implementation as long as
it is post based, subject to replacement theory and within
the limitations indicated hereinafter.
As stated above, clause (4A) of Article 16 is carved
out of clause (4) of Article 16. Clause (4A) provides
benefit of reservation in promotion only to SCs and STs.
In the case of S. Vinod Kumar and another v. Union of
India and others this court held that relaxation of
qualifying marks and standards of evaluation in matters
of reservation in promotion was not permissible under
Article 16(4) in view of Article 335 of the Constitution.
This was also the view in Indra Sawhney5.
By the Constitution (Eighty-Second Amendment)
Act, 2000, a proviso was inserted at the end of Article
335 of the Constitution which reads as under:
"Provided that nothing in this article shall
prevent in making of any provision in favour of
the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying
marks in any examination or lowering the
standards of evaluation, for reservation in
matters of promotion to any class or classes of
services or posts in connection with the affairs
of the Union or of a State."
This proviso was added following the benefit of
reservation in promotion conferred upon SCs and STs
alone. This proviso was inserted keeping in mind the
judgment of this court in Vinod Kumar21 which took the
view that relaxation in matters of reservation in
promotion was not permissible under Article 16(4) in view
of the command contained in Article 335. Once a
separate category is carved out of clause (4) of Article 16
then that category is being given relaxation in matters of
reservation in promotion. The proviso is confined to SCs
and STs alone. The said proviso is compatible with the
scheme of Article 16(4A).
INTRODUCTION OF "TIME" FACTOR IN VIEW OF
ARTICLE 16(4B):
As stated above, Article 16(4B) lifts the 50% cap on
carry-over vacancies (backlog vacancies). The ceiling-
limit of 50% on current vacancies continues to remain.
In working-out the carry-forward rule, two factors are
required to be kept in mind, namely, unfilled vacancies
and the time factor. This position needs to be explained.
On one hand of the spectrum, we have unfilled
vacancies; on the other hand, we have a time-spread over
number of years over which unfilled vacancies are sought
to be carried-over. These two are alternating factors and,
therefore, if the ceiling-limit on the carry-over of unfilled
vacancies is removed, the other alternative time-factor
comes in and in that event, the time-scale has to be
imposed in the interest of efficiency in administration as
mandated by Article 335. If the time-scale is not kept
then posts will continue to remain vacant for years,
which would be detrimental to the administration.
Therefore, in each case, the appropriate Government will
now have to introduce the time-cap depending upon the
fact-situation. What is stated hereinabove is borne out
by Service Rules in some of the States where the carry-
over rule does not extend beyond three years.
WHETHER IMPUGNED CONSTITUTIONAL
AMENDMENTS VIOLATES THE PRINCIPLE OF BASIC
STRUCTURE:
The key question which arises in the matter of the
challenge to the constitutional validity of the impugned
amending Acts is - whether the constitutional limitations
on the amending power of the Parliament are obliterated
by the impugned amendments so as to violate the basic
structure of the Constitution.
In the matter of application of the principle of basic
structure, twin tests have to be satisfied, namely, the
'width test' and the test of 'identity'. 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. They are not
axioms like, secularism, federalism etc. Obliteration of
these concepts or insertion of these concepts do not
change the equality code indicated by Articles 14, 15 and
16 of the Constitution. Clause (1) of Article 16 cannot
prevent the State from taking cognizance of the
compelling interests of backward classes in the society.
Clauses (1) and (4) of Article 16 are restatements of the
principle of equality under Article 14. Clause (4) of
Article 16 refers to affirmative action by way of
reservation. Clause (4) of Article 16, however, states that
the appropriate Government is free to provide for
reservation in cases where it is satisfied on the basis of
quantifiable data that backward class is inadequately
represented in the services. Therefore, in every case
where the State decides to provide for reservation there
must exist two circumstances, namely, 'backwardness'
and 'inadequacy of representation'. As stated above
equity, justice and efficiency are variable factors. These
factors are context-specific. There is no fixed yardstick to
identify and measure these three factors, it will depend
on the facts and circumstances of each case. These are
the limitations on the mode of the exercise of power by
the State. None of these limitations have been removed
by the impugned amendments. If the concerned State
fails to identify and measure backwardness, inadequacy
and overall administrative efficiency then in that event
the provision for reservation would be invalid. These
amendments do not alter the structure of Articles 14, 15
and 16 (equity code). The parameters mentioned in
Article 16(4) are retained. Clause (4A) is derived from
clause (4) of Article 16. Clause (4A) is confined to SCs
and STs alone. Therefore, the present case does not
change the identity of the Constitution. The word
"amendment" connotes change. The question is
whether the impugned amendments discard the original
constitution. It was vehemently urged on behalf of the
petitioners that the Statement of Objects and Reasons
indicate that the impugned amendments have been
promulgated by the Parliament to overrule the decision of
this court. We do not find any merit in this argument.
Under Article 141 of the Constitution the pronouncement
of this court is the law of the land. The judgments of this
court in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3
and Indra Sawhney5, were judgments delivered by this
court which enunciated the law of the land. It is that law
which is sought to be changed by the impugned
constitutional amendments. The impugned
constitutional amendments are enabling in nature. They
leave it to the States to provide for reservation. It is well-
settled that the Parliament while enacting a law does not
provide content to the "right". The content is provided by
the judgments of the Supreme Court. If the appropriate
Government enacts a law providing for reservation
without keeping in mind the parameters in Article 16(4)
and Article 335 then this court will certainly set aside
and strike down such legislation. 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.
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 mode of
exercise of the power. Though the amending power in
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. [See: Kihoto Hollohan v. Zachillhu &
Others ].
Applying the above tests to the present case, there
is no violation of the basic structure by any of the
impugned amendments, including the Constitution
(Eighty-Second) Amendment Act, 2000. The
constitutional limitation under Article 335 is relaxed and
not obliterated. As stated above, be it reservation or
evaluation, excessiveness in either would result in
violation of the constitutional mandate. This exercise,
however, will depend on facts of each case. In our view,
the field of exercise of the amending power is retained by
the impugned amendments, as the impugned
amendments have introduced merely enabling provisions
because, as stated above, merit, efficiency, backwardness
and inadequacy cannot be identified and measured in
vacuum. Moreover, Article 16(4A) and Article 16(4B) fall
in the pattern of Article 16(4) and as long as the
parameters mentioned in those articles are complied-with
by the States, the provision of reservation cannot be
faulted. Articles 16(4A) and 16(4B) are classifications
within the principle of equality under Article 16(4).
In conclusion, we may quote the words of
Rubenfeld:
"ignoring our commitments may make us
rationale but not free. It cannot make us
maintain our constitutional identity".
ROLE OF ENABLING PROVISIONS IN THE CONTEXT
OF ARTICLE 14:
The gravamen of Article 14 is equality of treatment.
Article 14 confers a personal right by enacting a
prohibition which is absolute. By judicial decisions, the
doctrine of classification is read into Article 14. Equality
of treatment under Article 14 is an objective test. It is
not the test of intention. Therefore, the basic principle
underlying Article 14 is that the law must operate equally
on all persons under like circumstances. [Emphasis
added]. Every discretionary power is not necessarily
discriminatory. According to the Constitutional Law of
India, by H.M. Seervai, 4th Edn. 546, equality is not
violated by mere conferment of discretionary power. It is
violated by arbitrary exercise by those on whom it is
conferred. This is the theory of 'guided power'. This
theory is based on the assumption that in the event of
arbitrary exercise by those on whom the power is
conferred would be corrected by the Courts. This is the
basic principle behind the enabling provisions which are
incorporated in Articles 16(4A) and 16(4B). Enabling
provisions are permissive in nature. They are enacted to
balance equality with positive discrimination. The
constitutional law is the law of evolving concepts. Some
of them are generic others have to be identified and
valued. The enabling provisions deal with the concept,
which has to be identified and valued as in the case of
access vis-`-vis efficiency which depends on the fact-
situation only and not abstract principle of equality in
Article 14 as spelt out in detail in Articles 15 and 16.
Equality before the law, guaranteed by the first part of
Article 14, is a negative concept while the second part is
a positive concept which is enough to validate equalizing
measures depending upon the fact-situation.
It is important to bear in mind the nature of
constitutional amendments. They are curative by nature.
Article 16(4) provides for reservation for backward classes
in cases of inadequate representation in public
employment. Article 16(4) is enacted as a remedy for the
past historical discriminations against a social class.
The object in enacting the enabling provisions like
Articles 16(4), 16(4A) and 16(4B) is that the State is
empowered to identify and recognize the compelling
interests. If the State has quantifiable data to show
backwardness and inadequacy then the State can make
reservations in promotions keeping in mind maintenance
of efficiency which is held to be a constitutional limitation
on the discretion of the State in making reservation as
indicated by Article 335. As stated above, the concepts of
efficiency, backwardness, inadequacy of representation
are required to be identified and measured. That exercise
depends on availability of data. That exercise depends on
numerous factors. It is for this reason that enabling
provisions are required to be made because each
competing claim seeks to achieve certain goals. How best
one should optimize these conflicting claims can only be
done by the administration in the context of local
prevailing conditions in public employment. This is
amply demonstrated by the various decisions of this
Court discussed hereinabove. Therefore, there is a basic
difference between 'equality in law' and 'equality in fact'
(See: 'Affirmative Action' by William Darity). If Articles
16(4A) and 16(4B) flow from Article 16(4) and if Article
16(4) is an enabling provision then Articles 16(4A) and
16(4B) are also enabling provisions. As long as the
boundaries mentioned in Article 16(4), namely,
backwardness, inadequacy and efficiency of
administration are retained in Articles 16(4A) and 16(4B)
as controlling factors, we cannot attribute constitutional
invalidity to these enabling provisions. However, when
the State fails to identify and implement the controlling
factors then excessiveness comes in, which is to be
decided on the facts of each case. In a given case, where
excessiveness results in reverse discrimination, this
Court has to examine individual cases and decide the
matter in accordance with law. This is the theory of
'guided power'. We may once again repeat that equality
is not violated by mere conferment of power but it is
breached by arbitrary exercise of the power conferred.
APPLICATION OF DOCTRINE OF "GUIDED POWER"
ARTICLE 335 :
Applying the above tests to the proviso to Article
335 inserted by the Constitution (Eighty-Second
Amendment) Act, 2000, we find that the said proviso has
a nexus with Articles 16(4A) and 16(4B). Efficiency in
administration is held to be a constitutional limitation on
the discretion vested in the State to provide for
reservation in public employment. Under the proviso to
Article 335, it is stated that nothing in Article 335 shall
prevent the State to relax qualifying marks or standards
of evaluation for reservation in promotion. This proviso
is also confined only to members of SCs and STs. This
proviso is also conferring discretionary power on the
State to relax qualifying marks or standards of
evaluation. Therefore, the question before us is
whether the State could be empowered to relax qualifying
marks or standards for reservation in matters of
promotion. In our view, even after insertion of this
proviso, the limitation of overall efficiency in Article 335
is not obliterated. Reason is that "efficiency" is variable
factor. It is for the concerned State to decide in a given
case, whether the overall efficiency of the system is
affected by such relaxation. If the relaxation is so
excessive that it ceases to be qualifying marks then
certainly in a given case, as in the past, the State is free
not to relax such standards. In other cases, the State
may evolve a mechanism under which efficiency, equity
and justice, all three variables, could be accommodated.
Moreover, Article 335 is to be read with Article 46 which
provides that the State shall promote with special care
the educational and economic interests of the weaker
sections of the people and in particular of the scheduled
castes and scheduled tribes and shall protect them from
social injustice. Therefore, where the State finds
compelling interests of backwardness and inadequacy, it
may relax the qualifying marks for SCs/STs. These
compelling interests however have to be identified by
weighty and comparable data.
In conclusion, we reiterate that the object behind
the impugned Constitutional amendments is to confer
discretion on the State to make reservations for SCs/STs
in promotions subject to the circumstances and the
constitutional limitations indicated above.
TESTS TO JUDGE THE VALIDITY OF THE IMPUGNED
STATE ACTS:
As stated above, the boundaries of the width of the
power, namely, the ceiling-limit of 50% (the numerical
benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of
representation and the overall administrative efficiency
are not obliterated by the impugned amendments. At the
appropriate time, we have to consider the law as enacted
by various States providing for reservation if challenged.
At that time we have to see whether limitations on the
exercise of power are violated. The State is free to
exercise its discretion of providing for reservation subject
to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation
in a class of post(s) keeping in mind the overall
administrative efficiency. It is made clear that even if the
State has reasons to make reservation, as stated above, if
the impugned law violates any of the above substantive
limits on the width of the power the same would be liable
to be set aside.
Are the impugned amendments making an inroad
into the balance struck by the judgment of this court
in the case of Indra Sawhney5:
Petitioners submitted that equality has been
recognized to be a basic feature of our Constitution. To
preserve equality, a balance was struck in Indra
Sawhney5 so as to ensure that the basic structure of
Articles 14, 15 and 16 remains intact and at the same
time social upliftment, as envisaged by the Constitution,
stood achieved. In order to balance and structure the
equality, a ceiling-limit on reservation was fixed at 50% of
the cadre strength, reservation was confined to initial
recruitment and was not extended to promotion.
Petitioners further submitted that in Indra Sawhney5,
vide para 829 this Court has held that reservation in
promotion was not sustainable in principle. Accordingly,
petitioners submitted that the impugned constitutional
amendments makes a serious inroad into the said
balance struck in the case of Indra Sawhney5 which
protected equality as a basic feature of our Constitution.
We quote hereinbelow paragraph 829 of the majority
judgment in the case of Indra Sawhney5 which reads as
follows:
"829. It is true that Rangachari15 has been
the law for more than 30 years and that
attempts to re-open the issue were repelled in
Akhil Bharatiya Soshit Karamchari Sangh
(Railway) v. Union of India and others . It
may equally be true that on the basis of that
decision, reservation may have been provided
in the matter of promotion in some of the
Central and State services but we are
convinced that the majority opinion in
Rangachari15, to the extent it holds, that
Article 16(4) permits reservation even in the
matter of promotion, is not sustainable in
principle and ought to be departed from.
However, taking into consideration all the
circumstances, we direct that our decision on
this question shall operate only prospectively
and shall not affect promotions already made,
whether on temporary, officiating or
regular/permanent basis. It is further directed
that wherever reservations are already
provided in the matter of promotion - be it
Central Services or State Services, or for that
matter services under any corporation,
authority or body falling under the definition of
'State' in Article 12-such reservations shall
continue in operation for a period of five years
from this day. Within this period, it would be
open to the appropriate authorities to revise
modify or re-issue the relevant Rules to ensure
the achievement of the objective of Article
16(4). If any authority thinks that for ensuring
adequate representation of 'backward class of
citizens' in any service, class or category, it is
necessary to provide for direct recruitment
therein, it shall be open to it do so.
(emphasis supplied)
What are the outer boundaries of the amendment
process in the context of Article 16 is the question which
needs to be answered. Equality is the basic feature of the
Constitution as held in Indra Sawhney5. The content of
Article 14 was originally interpreted by this Court as a
concept of equality confined to the aspects of
discrimination and classification. It is only after the
rulings of this Court in Maneka Gandhi11 and Ajay
Hasia and others v. Khalid Mujib Sehravardi and
others , that the content of Article 14 got expanded
conceptually so as to comprehend the doctrine of
promissory estoppel, non arbitrariness, compliance with
rules of natural justice, eschewing irrationality etc.
There is a difference between "formal equality" and
"egalitarian equality". At one point of time Article 16(4)
was read by the Supreme Court as an exception to Article
16(1). That controversy got settled in Indra Sawhney5.
The words "nothing in this Article" in Article 16(4)
represents a legal device allowing positive discrimination
in favour of a class. Therefore, Article 16(4) relates to "a
class apart". Article 16(4), therefore, creates a field which
enables a State to provide for reservation provided there
exists backwardness of a class and inadequacy of
representation in employment. These are compelling
reasons. They do not exist in Article 16(1). It is only
when these reasons are satisfied that a State gets the
power to provide for reservation in matters of
employment. Therefore, Article 16(1) and Article 16(4)
operate in different fields. Backwardness and
inadequacy of representation, therefore, operate as
justifications in the sense that the State gets the power to
make reservation only if backwardness and inadequacy
of representation exist. These factors are not obliterated
by the impugned amendments.
The question still remains as to whether any of the
constitutional limitations are obliterated by way of the
impugned constitutional amendments. By way of the
impugned amendments Articles 16(4A) and 16(4B) have
been introduced.
In Indra Sawhney5 the equality which was
protected by the rule of 50%, was by balancing the rights
of the general category vis-`-vis the rights of BC en bloc
consisting of OBC, SC and ST. On the other hand, in the
present case the question which we are required to
answer is: whether within the egalitarian equality,
indicated by Article 16(4), the sub-classification in favour
of SC and ST is in principle constitutionally valid. Article
16(4A) is inspired by the observations in Indra
Sawhney5 vide para 802 and 803 in which this Court
has unequivocally observed that in order to avoid
lumping of OBC, SC and ST which would make OBC take
away all the vacancies leaving SC and ST high and dry,
the concerned State was entitled to categorise and sub-
classify SCs and STs on one hand vis-`-vis OBC on the
other hand. We quote hereinbelow paragraphs 802 and
803 of the judgment in Indra Sawhney5 :
"802. We are of the opinion that there is no
constitutional or legal bar to a State
categorizing the backward classes as backward
and more backward. We are not saying that it
ought to be done. We are concerned with the
question if a State makes such a
categorisation, whether it would be invalid? We
think not. Let us take the criteria evolved by
Mandal Commission. Any caste, group or class
which scored eleven or more points was
treated as a backward class. Now, it is not as if
all the several thousands of
castes/groups/classes scored identical points.
There may be some castes/groups/classes
which have scored points between 20 to 22
and there may be some who have scored
points between eleven and thirteen. It cannot
reasonably be denied that there is no
difference between these two sets of
castes/groups/classes. To give an illustration,
take two occupational groups viz., gold-smiths
and vaddes (traditional stone-cutters in
Andhra Pradesh) both included within Other
Backward Classes. None can deny that gold-
smiths are far less backward than vaddes. If
both of them are grouped together and
reservation provided, the inevitably result
would be that gold-smiths would take away all
the reserved posts leaving none for vaddes. In
such a situation, a State may think it
advisable to make a categorisation even among
other backward classes so as to ensure that
the more backward among the backward
classes obtain the benefits intended for them.
Where to draw the line and how to effect the
sub-classification is, however, a matter for the
Commission and the State - and so long as it
is reasonably done, the Court may not
intervene. In this connection, reference may be
made to the categorisation obtaining in Andhra
Pradesh. The Backward Classes have been
divided into four categories. Group-A
comprises "Aboriginal tribes, Vimukta jatis,
Nomadic and semi-nomadic tribes etc.".
Group-B comprises professional group like
tappers, weavers, carpenters, ironsmiths,
goldsmiths, kamsalins etc. Group-C pertains
to "Scheduled Castes converts to Christianity
and their progeny", while Group-D comprises
all other classes/communities/groups, which
are not included in groups A, B and C. The
25% vacancies reserved for backward classes
are sub-divided between them in proportion to
their respective population. This categorisation
was justified in Balram [1972] 3 S.C.R. 247 at
286. This is merely to show that even among
backward classes, there can be a sub-
classification on a reasonable basis.
(emphasis supplied)
"803. There is another way of looking at
this issue. Article 16(4) recognises only one
class viz., "backward class of citizens". It does
not speak separately of Scheduled Castes and
Scheduled Tribes, as does Article 15(4). Even
so, it is beyond controversy that Scheduled
Castes and Scheduled Tribes are also included
in the expression "backward class of citizens"
and that separate reservations can be provided
in their favour. It is a well-accepted
phenomenon throughout the country. What is
the logic behind it? It is that if Scheduled
Tribes, Scheduled Castes and Other Backward
Classes are lumped together, O.B.Cs. will take
away all the vacancies leaving Scheduled
Castes and Scheduled Tribes high and dry.
The same logic also warrants categorisation as
between more backward and backward. We do
not mean to say - we may reiterate - that this
should be done. We are only saying that if a
State chooses to do it, it is not impermissible
in law."
(emphasis supplied)
Therefore, while judging the width and the ambit of
Article 16(4A) we must ascertain whether such sub-
classification is permissible under the Constitution. The
sub-classification between "OBC" on one hand and "SC
and ST" on the other hand is held to be constitutionally
permissible in Indra Sawhney5. In the said judgment it
has been held that the State could make such sub-
classification between SCs and STs vis-`-vis OBC. It
refers to sub-classification within the egalitarian equality
(vide paras 802 and 803). Therefore, Article 16(4A)
follows the line suggested by this Court in Indra
Sawhney5 . In Indra Sawhney5 on the other hand vide
para 829 this Court has struck a balance between formal
equality and egalitarian equality by laying down the rule
of 50% (ceiling-limit) for the entire BC as "a class apart"
vis-`-vis GC. Therefore, in our view, equality as a
concept is retained even under Article 16(4A) which is
carved out of Article 16(4).
As stated above, Article 14 enables classification. A
classification must be founded on intelligible differential
which distinguishes those that are grouped together from
others. The differential must have a rational relation to
the object sought to be achieved by the law under
challenge. In Indra Sawhney5 an opinion was
expressed by this Court vide para 802 that there is no
constitutional or legal bar to making of classification.
Article 16(4B) is also an enabling provision. It seeks to
make classification on the basis of the differential
between current vacancies and carry-forward vacancies.
In the case of Article 16(4B) we must keep in mind that
following the judgment in R.K. Sabharwal8 the concept
of post-based roster is introduced. Consequently,
specific slots for OBC, SC and ST as well as GC have to
be maintained in the roster. For want of candidate in a
particular category the post may remain unfilled.
Nonetheless, that slot has to be filled only by the
specified category. Therefore, by Article 16(4B) a
classification is made between current vacancies on one
hand and carry-forward/backlog vacancies on the other
hand. Article 16(4B) is a direct consequence of the
judgment of this court in R.K. Sabharwal8 by which the
concept of post-based roster is introduced. Therefore, in
our view Articles 16(4A) and 16(4B) form a composite
part of the scheme envisaged. Therefore, in our view
Articles 16(4), 16(4A) and 16(4B) together form part of the
same scheme. As stated above, Articles 16(4A) and
16(4B) are both inspired by observations of the Supreme
Court in Indra Sawhney5 and R.K. Sabharwal8. They
have nexus with Articles 17 and 46 of the Constitution.
Therefore, we uphold the classification envisaged by
Articles 16(4A) and 16(4B). The impugned constitutional
amendments, therefore, do not obliterate equality.
The test for judging the width of the power and the
test for adjudicating the exercise of power by the
concerned State are two different tests which warrant two
different judicial approaches. In the present case, as
stated above, we are required to test the width of the
power under the impugned amendments. Therefore, we
have to apply "the width test". In applying "the width
test" we have to see whether the impugned amendments
obliterate the constitutional limitations mentioned in
Article 16(4), namely, backwardness and inadequacy of
representation. As stated above, these limitations are not
obliterated by the impugned amendments. However, the
question still remains whether the concerned State has
identified and valued the circumstances justifying it to
make reservation. This question has to be decided case-
wise. There are numerous petitions pending in this
Court in which reservations made under State
enactments have been challenged as excessive. The
extent of reservation has to be decided on facts of each
case. The judgment in Indra Sawhney5 does not deal
with constitutional amendments. In our present
judgment, we are upholding the validity of the
constitutional amendments subject to the limitations.
Therefore, in each case the Court has got to be satisfied
that the State has exercised its opinion in making
reservations in promotions for SCs and STs and for
which the concerned State will have to place before the
Court the requisite quantifiable data in each case and
satisfy the Court that such reservations became
necessary on account of inadequacy of representation of
SCs/ STs in a particular class or classes of posts without
affecting general efficiency of service as mandated under
Article 335 of the Constitution.
The constitutional principle of equality is inherent
in the Rule of Law. However, its reach is limited because
its primary concern is not with the content of the law but
with its enforcement and application. The Rule of Law is
satisfied when laws are applied or enforced equally, that
is, evenhandedly, free of bias and without irrational
distinction. The concept of equality allows differential
treatment but it prevents distinctions that are not
properly justified. Justification needs each case to be
decided on case to case basis.
Existence of power cannot be denied on the ground
that it is likely to be abused. As against this, it has been
held vide para 650 of Kesavananda Bharati13 that
where the nature of the power granted by the
Constitution is in doubt then the Court has to take into
account the consequences that might ensue by
interpreting the same as an unlimited power. However,
in the present case there is neither any dispute about the
existence of the power nor is there any dispute about the
nature of the power of amendment. The issue involved
in the present case is concerning the width of the power.
The power to amend is an enumerated power in the
Constitution and, therefore, its limitations, if any, must
be found in the Constitution itself. The concept of
reservation in Article 16(4) is hedged by three
constitutional requirements, namely, backwardness of a
class, inadequacy of representation in public employment
of that class and overall efficiency of the administration.
These requirements are not obliterated by the impugned
constitutional amendments. Reservation is not in issue.
What is in issue is the extent of reservation. If the extent
of reservation is excessive then it makes an inroad into
the principle of equality in Article 16(1). Extent of
reservation, as stated above, will depend on the facts of
each case. Backwardness and inadequacy of
representation are compelling reasons for the State
Governments to provide representation in public
employment. Therefore, if in a given case the court finds
excessive reservation under the State enactment then
such an enactment would be liable to be struck down
since it would amount to derogation of the above
constitutional requirements.
At this stage, one aspect needs to be mentioned.
Social justice is concerned with the distribution of
benefits and burdens. The basis of distribution is the
area of conflict between rights, needs and means. These
three criteria can be put under two concepts of equality,
namely, "formal equality" and "proportional equality".
Formal equality means that law treats everyone equal.
Concept of egalitarian equality is the concept of
proportional equality and it expects the States to take
affirmative action in favour of disadvantaged sections of
society within the framework of democratic polity. In
Indra Sawhney5 all the judges except Pandian, J. held
that the "means test" should be adopted to exclude the
creamy layer from the protected group earmarked for
reservation. In Indra Sawhney5 this Court has,
therefore, accepted caste as determinant of
backwardness and yet it has struck a balance with the
principle of secularism which is the basic feature of the
Constitution by bringing in the concept of creamy layer.
Views have often been expressed in this Court that caste
should not be the determinant of backwardness and that
the economic criteria alone should be the determinant of
backwardness. As stated above, we are bound by the
decision in Indra Sawhney5. The question as to the
"determinant" of backwardness cannot be gone into by us
in view of the binding decision. In addition to the above
requirements this Court in Indra Sawhney5 has evolved
numerical benckmarks like ceiling-limit of 50% based
on post-specific roster coupled with the concept of
replacement to provide immunity against the charge
of discrimination.
CONCLUSION:
The impugned constitutional amendments by which
Articles 16(4A) and 16(4B) have been inserted flow from
Article 16(4). They do not alter the structure of Article
16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and
inadequacy of representation which enables the States to
provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs
and STs. They do not obliterate any of the constitutional
requirements, namely, ceiling-limit of 50% (quantitative
limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBC on one
hand and SCs and STs on the other hand as held in
Indra Sawhney5 , the concept of post-based Roster
with in-built concept of replacement as held in R.K.
Sabharwal8.
We reiterate that the ceiling-limit of 50%, the
concept of creamy layer and the compelling reasons,
namely, backwardness, inadequacy of representation
and overall administrative efficiency are all
constitutional requirements without which the
structure of equality of opportunity in Article 16
would collapse.
However, in this case, as stated, the main issue
concerns the "extent of reservation". In this regard
the concerned State will have to show in each case
the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and
overall administrative efficiency before making
provision for reservation. As stated above, the
impugned provision is an enabling provision. The
State is not bound to make reservation for SC/ST in
matter of promotions. However if they wish to
exercise their discretion and make such provision,
the State has to collect quantifiable data showing
backwardness of the class and inadequacy of
representation of that class in public employment in
addition to compliance of Article 335. It is made
clear that even if the State has compelling reasons, as
stated above, the State will have to see that its
reservation provision does not lead to excessiveness
so as to breach the ceiling-limit of 50% or obliterate
the creamy layer or extend the reservation
indefinitely.
Subject to above, we uphold the constitutional
validity of the Constitution (Seventy-Seventh
Amendment) Act, 1995, the Constitution (Eighty-First
Amendment) Act, 2000, the Constitution (Eighty-Second
Amendment) Act, 2000 and the Constitution (Eighty-Fifth
Amendment) Act, 2001.
We have not examined the validity of individual
enactments of appropriate States and that question will
be gone into in individual writ petition by the appropriate
bench in accordance with law laid down by us in the
present case.
Reference is answered accordingly.
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