{"id":67211,"date":"2006-10-19T00:00:00","date_gmt":"2006-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-nagaraj-others-vs-union-of-india-others-on-19-october-2006"},"modified":"2019-02-25T06:47:12","modified_gmt":"2019-02-25T01:17:12","slug":"m-nagaraj-others-vs-union-of-india-others-on-19-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-nagaraj-others-vs-union-of-india-others-on-19-october-2006","title":{"rendered":"M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006<\/div>\n
Author: S.H.Kapadia<\/div>\n
Bench: Y.K.Sabharwal Cji, K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nWrit Petition (civil)  61 of 2002\n\nPETITIONER:\nM.Nagaraj & Others\t\t\t\t\t\n\nRESPONDENT:\nUnion of India & Others\t\t\t\t\n\nDATE OF JUDGMENT: 19\/10\/2006\n\nBENCH:\nY.K.SABHARWAL CJI & K.G.BALAKRISHNAN & S.H.KAPADIA & C.K.THAKKER & P.K. BALASUBRAMANYAN\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
with
\nWP (C) Nos.62, 81, 111, 134, 135, 206, 226, 227, 255, 266,
\n269, 279, 299, 294, 295, 298, 250, 319, 375, 386, 387, 320,
\n322, 323, 338, 234, 340, 423, 440, 453, 460, 472, 482, 483,
\n484, 485, 550, 527 and 640 of 2002, SLP (C) Nos. 4915-4919
\nof 2003, W.P. (C) Nos.153\/2003, C.P. (C) No. 404\/2004 in
\nW.P.(C) No. 255\/2002, C.P. (C) No.505\/2002 in WP (C)
\nNo.61\/2002, C.P. (C) No.553\/2002 in WP (C) No.266\/2002,
\nC.P. (C) No.570\/2002 in WP (C) No.255\/2002, C.P. (C)
\nNo.122\/2003 in WP (C) No.61\/2002, C.P. (C) No.127\/2003 in
\nWP (C) No.61\/2002, C.P. (C) No.85\/2003 in WP (C)
\nNo.255\/2002, W.P. (C) Nos. 313 and 381 of 2003, CIVIL
\nAPPEAL Nos. 12501-12503\/1996, SLP (C) No.754\/1997, WP
\n(C) No.460 of 2003, CIVIL APPEAL Nos. 7802\/2001 and
\n7803\/2001, W.P. (C) No.469\/2003, SLP (C) No.19689\/1996,
\nWP (C) No. 563\/2003,  WP (C) No.2\/2003,   WP (C) Nos.
\n515,   519   and   562   of   2004,       WP (C)  No. 413  of  1997,
\nWP (C) No.286 of 2004 and SLP (C) No.14518 of 2004.\n<\/p>\n
DELIVERED BY:\n<\/p>\n
S.H.KAPADIA, J.\n<\/p>\n
KAPADIA, J.\n<\/p>\n
The width and amplitude of the right to equal
\nopportunity in public employment, in the context of
\nreservation, broadly falls for consideration in these writ
\npetitions under Article 32 of the Constitution.\n<\/p>\n
FACTS IN WRIT PETITION (CIVIL) NO.61 OF 2002:\n<\/p>\n
\tThe facts in the above writ petition, which is the
\nlead petition, are as follows.\n<\/p>\n
Petitioners have invoked Article 32 of the
\nConstitution for a writ in the nature of certiorari to quash
\nthe Constitution (Eighty-Fifth Amendment] Act, 2001
\ninserting Article 16(4A) of the Constitution retrospectively
\nfrom 17.6.1995 providing reservation in promotion with
\nconsequential seniority as being unconstitutional and
\nviolative of the basic structure.   According to the
\npetitioners, the impugned amendment reverses the
\ndecisions of this Court in the case of Union of India and
\nothers v. Virpal Singh Chauhan and others<\/a> , Ajit
\nSingh Januja and others v. State of Punjab and
\nothers  (Ajit Singh-I), Ajit Singh and others (II)<\/a> v.
\nState of Punjab and others , Ajit Singh and others
\n(III) v. State of Punjab and others , Indra Sawhney
\nand others v. Union of India<\/a> , and M. G.\n<\/p>\n
Badappanavar and another v. State of Karnataka
\nand others .  Petitioners say that the Parliament has
\nappropriated the judicial power to itself and has acted as
\nan appellate authority by reversing the judicial
\npronouncements of this Court by the use of power of
\namendment as done by the impugned amendment and is,
\ntherefore, violative of the basic structure of the
\nConstitution.  The said amendment is, therefore,
\nconstitutionally invalid and is liable to be set aside.
\nPetitioners have further pleaded that the amendment also
\nseeks to alter the fundamental right of equality which is
\npart of the basic structure of the Constitution.
\nPetitioners say that the equality in the context of Article
\n16(1) connotes “accelerated promotion” so as not to
\ninclude consequential seniority.  Petitioners say that by
\nattaching consequential seniority to the accelerated
\npromotion, the impugned amendment violates equality in
\nArticle 14 read with Article 16(1).  Petitioners further say
\nthat by providing reservation in the matter of promotion
\nwith consequential seniority, there is impairment of
\nefficiency.  Petitioners say that in the case of Indra
\nSawhney5 decided on 16.11.1992, this Court has held
\nthat under Article 16(4), reservation to the backward
\nclasses is permissible only at the time of initial
\nrecruitment and not in promotion.  Petitioners say that
\ncontrary to the said judgment delivered on 16.11.1992,
\nthe Parliament enacted the Constitution (Seventy-
\nSeventh Amendment) Act, 1995.  By the said
\namendment, Article 16(4A) was inserted, which
\nreintroduced reservation in promotion.  The Constitution
\n(Seventy-Seventh Amendment) Act, 1995 is also
\nchallenged by some of the petitioners.  Petitioners say
\nthat if accelerated seniority is given to the roster-point
\npromotees, the consequences would be disastrous.  A
\nroster-point promotee in the graduate stream would
\nreach the 4th level by the time he attains the age of 45
\nyears.   At the age of 49, he would reach the highest level
\nand stay there for nine years.  On the other hand, the
\ngeneral merit promotee would reach the 3rd level out of 6
\nlevels at the age of 56 and by the time, he gets eligibility
\nto the 4th level, he would have retired from service.
\nPetitioners say that the consequences of the impugned
\n85th Amendment which provides for reservation in
\npromotion, with consequential seniority, would result in
\nreverse discrimination in the percentage of representation
\nof the reserved category officers in the higher cadre.
\nBROAD ISSUES IN WRIT PETITION No.527 OF 2002:
\n\tThe broad issues that arise for determination in this
\ncase relate to the:\n<\/p>\n
1.\tValidity\n<\/p>\n
2.\tInterpretation\n<\/p>\n
3.\tImplementation
\nof (i)\tthe Constitution (Seventy-Seventh Amendment) Act,
\n1995, the Constitution (Eighty-First Amendment) Act,
\n2000, the Constitution (Eighty-Second Amendment) Act,
\n2000, and the Constitution (Eighty-Fifth Amendment)
\nAct, 2001; and, (ii) Action taken in pursuance thereof
\nwhich seek to reverse decisions of the Supreme Court in
\nmatters relating to promotion and their application with
\nretrospective effect.\n<\/p>\n
ARGUMENTS:\n<\/p>\n
\tThe substance of the arguments advanced on behalf
\nof the petitioners briefly is as follows:\n<\/p>\n
\tEquality is a part of the basic structure and it is
\nimpossible to conceive of the Constitution without
\nequality as one of its central components.  That, equality
\nis the basic feature referred to in the preamble to our
\nConstitution.  Petitioners further submit that Article 16 is
\nintegral to equality;  that, Article 16 has to be read with
\nArticle 14 and with several Articles in Part-IV.  According
\nto the petitioners, the Constitution places an important
\nsignificance on public employment and the rule of
\nequality, inasmuch as, a specific guarantee is given
\nunder Article 16 protecting equality principles in public
\nemployment.  In this connection, reliance is also placed
\non the provisions of Part XIV to show that the
\nConstitution makers had given importance to public
\nemployment by making a special provision in the form of
\nPart XIV providing certain rights and protection to the
\noffice holders in the services of the Union and the States.
\nThese provisions are Articles 309, 311, 315, 316, 317
\nand 318 to 323.  Special provisions have also been made
\nin Article 323-A which permits establishment of tribunals
\nas special and adjudicatory mechanism.  That, Article
\n335 recognizes the importance of efficiency in
\nadministration and the various provisions of the
\nConstitution indicate that public employment was and is
\neven today of central concern to the Constitution.  It is
\nurged that equality in matters of public employment
\ncannot be considered as merely an abstract concept.
\nPetitioners say that over the years, this Court has
\ndelivered many decisions laying down that principles of
\n‘equality’ and ‘affirmative action’ are the pillars of our
\nConstitution.  These judgments also provide conclusions
\nbased on principles which gave meaning to equality both
\nas an individual right and as group expectations.  It is
\nsubmitted that clause (4) of Article 16 is an instance of
\nthe classification implicit and permitted by Article 16(1)
\nand that this view of equality did not dilute the
\nimportance of Article 16(1) or Article 16(2) but merely
\ntreated Article 16(4) as an instance of the classification;
\nthat this relationship of sub-clauses within Article 16 is
\nnot an invitation for reverse discrimination and that,
\nequality of opportunity cannot be overruled by affirmative
\naction.  It is submitted that “equality in employment”
\nconsists of equality of opportunity  [Article 16(1)], anti-
\ndiscrimination [Article 16(2)], special classification
\n[Article 16(3)], affirmative action [Article 16(4)] which
\ndoes not obliterate equality but which stands for
\nclassification within equality], and lastly, efficiency
\n[Article 335].  As regards the words ‘nothing in this
\narticle’ in Article 16(4), it is urged that these words
\ncannot wipe out Article 16(1) and, therefore, they have a
\nlimited meaning.  It is urged that the said words also
\noccur in Articles 16(4A) and 16(4B).   It is urged that
\nequality in the Constitution conceives the individual right
\nto be treated fairly without discrimination in the matter
\nof equality of opportunity.  It also conceives of affirmative
\naction in Article 15(4) and Article 16(4). It enables
\nclassification as a basis for enabling preferences and
\nbenefits for specific beneficiary groups and that neither
\nclassification nor affirmative action can obliterate the
\nindividual right to equal opportunity.  Therefore, a
\nbalance has to be evolved to promote equal opportunities
\nwhile protecting individual rights.  It is urged that as an
\nindividual right in Article 16(1), enforceability is provided
\nfor whereas “group expectation” in Article 16(4) is not a
\nfundamental right but it is an enabling power which is
\nnot coupled with duty.  It is submitted that if the
\nstructural balance of equality in the light of the efficiency
\nis disturbed and if the individual right is encroached
\nupon by excessive support for group expectations, it
\nwould amount to reverse discrimination.\n<\/p>\n
On the question of power of amendment, it is
\nsubmitted that the limited power of amendment cannot
\nbecome an unlimited one.  A limited amendment power is
\none of the basic features of our Constitution and,
\ntherefore, limits on that power cannot be destroyed.
\nPetitioners submit that Parliament cannot under Article
\n368 expand its amending power so as to acquire for itself
\nthe right to abrogate the Constitution and if the width of
\nthe amendment invites abrogation of the basic structure
\nthen such amendment must fail.  Reliance is placed in
\nthis connection on the judgment in Minerva Mills Ltd.
\nand others v. Union of India and others<\/a> .  On the
\nquestion of balancing of fundamental rights vis-`-vis
\ndirective principles, it is submitted that directive
\nprinciples cannot be used to undermine the basic
\nstructure principles underlying fundamental rights
\nincluding principles of equality, fundamental freedoms,
\ndue process, religious freedom and judicial enforcement.\n<\/p>\n
On the question of balancing and structuring of
\nequality in employment, it is urged that quotas are
\nsubject to quantitative limits and qualitative exclusions;
\nthat, there is a distinction between quota limits (example
\n15% to SCs) and ceiling-limits\/maximum permissible
\nreservation limits (example 50%) which comes under the
\ncategory of quantitative limits.  However, quotas are also
\nsubject to qualitative exclusions like creamy layer.  It is
\nurged that in numerous judgments and in particular in
\nIndra Sawhney5, M.G. Badaappanavar6, Ajit Singh
\n(II)3, the equality of opportunity in public employment is
\nclarified in order to structure and balance Articles 16(1)
\nand 16(4).\n<\/p>\n
In answer to the respondents’ contentions that
\nArticles 16(4A) and 16(4B) and the changes to Article 335
\nare merely enabling provisions and that in a given case if
\nthe exercise undertaken by the appropriate Government
\nis found to be arbitrary, this Court will set it right, it is
\ncontended that ingressing the basic structure is a per se
\nviolation of the Constitution.  In this connection, it is
\nalleged that the basis for impugned amendments is to
\noverrule judicial decisions based on holistic
\ninterpretation of the Constitution and its basic values,
\nconcepts and structure.  In this connection, it is urged
\nthat the 77th Amendment introducing Article 16(4A) has
\nthe effect of nullifying the decision in the case of Indra
\nSawhney5; that, the 81st Amendment introducing Article
\n16(4B) has been brought in to nullify the effect of the
\ndecision in R.K. Sabharwal & Others v. State of
\nPunjab and others<\/a> , in which it has been held that carry
\nforward vacancies cannot be filled exceeding 50% of the
\nposts.  Petitioners say that similarly the Constitution
\n(Eighty-Second Amendment) Act, 2000 introducing the
\nproviso to Article 335 has been introduced to nullify the
\neffect of the decision in the case of Indra Sawhney5 and
\na host of other cases, which emphasize the importance of
\nmaintaining efficiency in administration.  It is submitted
\nthat, the 85th Amendment adding the words ‘with
\nconsequential seniority’ in Article 16(4A) has been made
\nto nullify the decision in Ajit Singh (II)3.\n<\/p>\n
Accordingly it is urged that the impugned
\namendments are violative of the basic structure and the
\nfundamental values of the Constitution articulated in the
\npreamble and encapsulated in Articles 14, 16 and 19;
\nthat, they violate the fundamental postulates of equality,
\njustice, rule of law and secularism as enshrined in the
\nConstitution and that they violate the fundamental role
\nof the Supreme Court as interpreter of the Constitution.
\nThat, the impugned amendments create an
\nuntrammelled, unrestrained and unconstitutional regime
\nof reservations which destroys the judicial power and
\nwhich undermines the efficacy of judicial review which is
\nan integral part of rule of law.  It is argued that, Articles
\n14 and 16 have to be read with Article 335 as originally
\npromulgated; that, the impugned amendments invade the
\ntwin principles of efficiency, merit and the morale of
\npublic services and the foundation of good governance.  It
\nis urged vehemently that the impugned amendments
\nopen the floodgates of disunity, disharmony and
\ndisintegration.\n<\/p>\n
On behalf of the respondents, following arguments
\nwere advanced.  The power of amendment under Article
\n368 is a ‘constituent’ power and not a ‘constituted
\npower’;  that, that there are no implied limitations on the
\nconstituent power under Article 368; that, the power
\nunder Article 368 has to keep the Constitution in repair
\nas and when it becomes necessary and thereby protect
\nand preserve the basic structure.  In such process of
\namendment, if it destroys the basic feature of the
\nConstitution, the amendment will be unconstitutional.
\nConstitution, according to the respondents, is not merely
\nwhat it says.  It is what the last interpretation of the
\nrelevant provision of the Constitution given by the
\nSupreme Court which prevails as a law.  The
\ninterpretation placed on the Constitution by the Court
\nbecomes part of the Constitution and, therefore, it is
\nopen to amendment under Article 368.  An interpretation
\nplaced by the Court on any provision of the Constitution
\ngets inbuilt in the provisions interpreted.  Such articles
\nare capable of amendment under Article 368.  Such
\nchange of the law so declared by the Supreme Court will
\nnot merely for that reason alone violate the basic
\nstructure of the Constitution or amount to usurpation of
\njudicial power.  This is how Constitution becomes
\ndynamic.  Law has to change. It requires amendments to
\nthe Constitution according to the needs of time and
\nneeds of society.  It is an ongoing process of judicial and
\nconstituent powers, both contributing to change of law
\nwith the final say in the judiciary to pronounce on the
\nvalidity of such change of law effected by the constituent
\npower by examining whether such amendments violate
\nthe basic structure of the Constitution.  On every
\noccasion when a constitutional matter comes before the
\nCourt, the meaning of the provisions of the Constitution
\nwill call for interpretation, but every interpretation of the
\nArticle does not become a basic feature of the
\nConstitution.  That, there are no implied limitations on
\nthe power of the Parliament under Article 368 when it
\nseeks to amend the Constitution.  However, an
\namendment will be invalid, if it interferes with or
\nundermines the basic structure.  The validity of the
\namendment is not to be decided on the touchstone of
\nArticle 13 but only on the basis of violation of the basic
\nfeatures of the Constitution.\n<\/p>\n
It is further submitted that amendments for giving
\neffect to the directive principles cannot offend the basic
\nstructure of the Constitution.  On the contrary, the
\namendments which may abrogate individual rights but
\nwhich promote Constitutional ideal of ‘justice, social,
\neconomic and political’ and the ideal of ‘equality of status’
\nare not liable to be struck down under Article 14 or
\nArticle 16(1) and consequently, such amendments cannot
\nviolate the basic structure of the Constitution.  That, the
\namendments to the Constitution which are aimed at
\nremoving social and economic disparities cannot offend
\nthe basic structure.  It is urged that the concepts flowing
\nfrom the preamble to the Constitution constitute the
\nbasic structure; that, basic structure is not found in a
\nparticular Article of the Constitution; and except the
\nfundamental right to live in Article 21 read with Article
\n14, no particular Article in Part-III is a basic feature.
\nTherefore, it is submitted that equality mentioned in
\nArticles 14 and 16 is not to be equated to the equality
\nwhich is a basic feature of the Constitution.\n<\/p>\n
It is submitted that the principle of balancing of
\nrights of the general category and reserved category in
\nthe context of Article 16 has no nexus to the basic
\nfeature of the Constitution.  It is submitted that basic
\nfeature consists of constitutional axioms like
\nconstitutional supremacy, and democratic form of
\ngovernment, secularism, separation of powers etc.<\/p>\n
Respondents contend that Article 16(4) is a part of
\nthe Constitution as originally enacted.  The exercise of
\nthe power by the delegate under Article 16(4) will override
\nArticle 16(1).  It is not by virtue of the power of the
\ndelegate, but it is by virtue of constituent power itself
\nhaving authorized such exercise by the delegate under
\nArticle 16(4), that article 16(1) shall stand overruled.  The
\nonly limitation on the power of delegate is that it should
\nact within four corners of Article 16(4), namely, backward
\nclasses, which in the opinion of the State are not
\nadequately represented in public employment.  If this
\ncondition precedent is satisfied, a reservation will
\noverride Article 16(1) on account of the words ‘nothing in
\nthis Article shall prevent the State’.  It is urged that
\njurisprudence relating to public services do not
\nconstitute basic feature of the Constitution.  That, the
\nright to consideration for promotion in service matters is
\nnot a basic feature.\n<\/p>\n
It is lastly submitted that Articles 16(4A) and 16(4B)
\nare only enabling provisions; that, the constitutionality of
\nthe enabling power in Articles 16(4A) and 16(4B) is not to
\nbe tested with reference to the exercise of the power or
\nmanner of exercise of such power and that the impugned
\namendments have maintained the structure of Articles
\n16(1) to 16(4) intact.  In this connection, it is submitted
\nthat the impugned amendments have retained
\nreservations at the recruitment level inconformity with
\nthe judgment in Indra Sawhney5, which has confined
\nArticle 16(4) only to initial appointments; that Article
\n16(4A) is a special provision which provides for
\nreservation for promotion only to SCs and STs.  It is
\nurged that if SCs\/STs and OBCs are lumped together,
\nOBCs will take away all the vacancies and, therefore,
\nArticle 16(4A) has been inserted as a special provision.
\nThat, in Indra Sawhney5, the focus was on Backward
\nClasses and not on SCs\/STs and, therefore, there was no
\nbalancing of rights of three groups, namely, general
\ncategory, other backward classes and scheduled
\ncastes\/scheduled tribes.  It is, therefore, contended that
\nunder Article 16(4A), reservation is limited.  It is not to
\nthe extent of 50% but it is restricted only to SCs and STs,
\nand, therefore, the “risk element” pointed out in Indra
\nSawhney5 stands reduced.  To carve out SCs\/STs and
\nmake a separate classification is not only constitutional,
\nbut it is a constitutional obligation to do so under Article\n<\/p>\n
46.  That, Article 16(4) is an overriding provision over
\nArticle 16(1) and if Article 16(4) cannot be said to
\nconstitute reverse discrimination then Article 16(4A) also
\ncannot constitute reverse discrimination.\n<\/p>\n
It is next submitted that this Court has taken care
\nof the interests of the general category by placing a
\nceiling on filling-up of vacancies only to a maximum of
\n50% for reservation.  The said 50% permitted by this
\nCourt can be reserved in such manner as the appropriate
\nGovernment may deem fit.  It is urged that if it is valid to
\nmake reservation at higher levels by direct recruitment, it
\ncan also be done for promotion after taking into account
\nthe mandate of Article 335.\n<\/p>\n
It is next submitted that the amendment made by
\nArticle 16(4B) makes an exception to 50% ceiling-limit
\nimposed by Indra Sawhney5, by providing that the
\nvacancies of previous years will not be considered with
\nthe current year’s vacancies.  In this connection, it was
\nurged that Article 16(4B) applies to reservations under
\nArticle 16(4) and, therefore, if reservation is found to be
\nwithin reasonable limits, the Court would uphold such
\nreservations depending upon the facts of the case and if
\nreservation suffers from excessiveness, it may be
\ninvalidated.  Therefore, the enabling power under Article
\n16(4B) cannot be rendered invalid.\n<\/p>\n
For the above reasons, respondents submit that
\nthere is no infirmity in the impugned constitutional
\namendments.\n<\/p>\n
KEY ISSUE:\n<\/p>\n
\tIt is not necessary for us to deal with the above
\narguments serially.  The arguments are dealt with by us
\nin the following paragraphs subject-wise.\n<\/p>\n
The key issue, which arises for determination in this
\ncase is  whether by virtue of the impugned
\nconstitutional amendments, the power of the Parliament
\nis so enlarged so as to obliterate any or all of the
\nconstitutional limitations and requirements?\n<\/p>\n
STANDARDS OF JUDICIAL REVIEW OF
\nCONSTITUTIONAL AMENDMENTS:\n<\/p>\n
\tConstitution is not an ephermal legal document
\nembodying a set of legal rules for the passing hour.  It
\nsets out principles for an expanding future and is
\nintended to endure for ages to come and consequently to
\nbe adapted to the various crisis of human affairs.
\nTherefore, a purposive rather than a strict literal
\napproach to the interpretation should be adopted.  A
\nConstitutional provision must be construed not in a
\nnarrow and constricted sense but in a wide and liberal
\nmanner so as to anticipate and take account of changing
\nconditions and purposes so that constitutional provision
\ndoes not get fossilized but remains flexible enough to
\nmeet the newly emerging problems and challenges.\n<\/p>\n
This principle of interpretation is particularly
\napposite to the interpretation of fundamental rights.  It is
\na fallacy to regard fundamental rights as a gift from the
\nState to its citizens.  Individuals possess basic human
\nrights independently of any constitution by reason of
\nbasic fact that they are members of the human race.
\nThese fundamental rights are important as they possess
\nintrinsic value.  Part-III of the Constitution does not
\nconfer fundamental rights.  It confirms their existence
\nand gives them protection.  Its purpose is to withdraw
\ncertain subjects from the area of political controversy to
\nplace them beyond the reach of majorities and officials
\nand to establish them as legal principles to be applied by
\nthe courts.  Every right has a content.  Every
\nfoundational value is put in Part-III as fundamental right
\nas it has intrinsic value.  The converse does not apply.  A
\nright becomes a fundamental right because it has
\nfoundational value.  Apart from the principles, one has
\nalso to see the structure of the Article in which the
\nfundamental value is incorporated.  Fundamental right is
\na limitation on the power of the State.  A Constitution,
\nand in particular that of it which protects and which
\nentrenches fundamental rights and freedoms to which all
\npersons in the State are to be entitled is to be given a
\ngenerous and purposive construction.  In the case of
\nSakal Papers (P) Ltd. & Others v. Union of India and
\nothers<\/a>  this Court has held that while considering the
\nnature and content of fundamental rights, the Court
\nmust not be too astute to interpret the language in a
\nliteral sense so as to whittle them down.  The Court must
\ninterpret the Constitution in a manner which would
\nenable the citizens to enjoy the rights guaranteed by it in
\nthe fullest measure.  An instance of literal and narrow
\ninterpretation of a vital fundamental right in the Indian
\nConstitution is the early decision of the Supreme Court
\nin the case of A.K. Gopalan v. State of Madras<\/a> .
\nArticle 21 of the Constitution provides that no person
\nshall be deprived of his life and personal liberty except
\naccording to procedure established by law.  The Supreme
\nCourt by a majority held that ‘procedure established by
\nlaw’ means any procedure established by law made by
\nthe Parliament or the legislatures of the State.  The
\nSupreme Court refused to infuse the procedure with
\nprinciples of natural justice.  It concentrated solely upon
\nthe existence of enacted law.  After three decades, the
\nSupreme Court overruled its previous decision in A.K.
\nGopalan10 and held in its landmark judgment in
\nManeka Gandhi v. Union of India and<\/a> another  that
\nthe procedure contemplated by Article 21 must answer
\nthe test of reasonableness.  The Court further held that
\nthe procedure should also be in conformity with the
\nprinciples of natural justice.  This example is given to
\ndemonstrate an instance of expansive interpretation of a
\nfundamental right.  The expression ‘life’ in Article 21 does
\nnot connote merely physical or animal existence.  The
\nright to life includes right to live with human dignity.
\nThis Court has in numerous cases deduced fundamental
\nfeatures which are not specifically mentioned in Part-III
\non the principle that certain unarticulated rights are
\nimplicit in the enumerated guarantees.  For example,
\nfreedom of information has been held to be implicit in the
\nguarantee of freedom of speech and expression.  In India,
\ntill recently, there is no legislation securing freedom of
\ninformation.  However, this Court by a liberal
\ninterpretation deduced the right to know and right to
\naccess information on the reasoning that the concept of
\nan open government is the direct result from the right to
\nknow which is implicit in the right of free speech and
\nexpression guaranteed under Article 19(1)(a).
\nThe important point to be noted is that the content
\nof a right is defined by the Courts.  The final word on the
\ncontent of the right is of this Court.  Therefore,
\nconstitutional adjudication plays a very important role in
\nthis exercise.  The nature of constitutional adjudication
\nhas been a subject matter of several debates.  At one
\nextreme, it is argued that judicial review of legislation
\nshould be confined to the language of the constitution
\nand its original intent.  At the other end, non-
\ninterpretivism asserts that the way and indeterminate
\nnature of the constitutional text permits a variety of
\nstandards and values.  Others claim that the purpose of
\na Bill of Rights is to protect the process of decision
\nmaking.\n<\/p>\n
\tThe question which arises before us is regarding
\nnature of the standards of judicial review required to be
\napplied in judging the validity of the constitutional
\namendments in the context of the doctrine of basic
\nstructure.  The concept of a basic structure giving
\ncoherence and durability to a Constitution has a certain
\nintrinsic force.  This doctrine has essentially developed
\nfrom the German Constitution.  This development is the
\nemergence of the constitutional principles in their own
\nright.  It is not based on literal wordings.\n<\/p>\n
In S.R. Bommai & Others etc. v. Union of India
\n& Others etc. , the basic structure concept was
\nresorted to although no question of constitutional
\namendment was involved in that case.  But this Court
\nheld that policies of a State Government directed against
\nan element of the basic structure of the Constitution
\nwould be a valid ground for the exercise of the central
\npower under Article 356, that is, imposition of the
\nPresident’s rule.  In that case, secularism was held to be
\nan essential feature of the Constitution and part of its
\nbasic structure.  A State Government may be dismissed
\nnot because it violates any particular provision of the
\nConstitution but because it acts against a vital principle
\nenacting and giving coherence to a number of particular
\nprovisions, example: Articles 14, 15 and 25.  In S.R.
\nBommai12, the Court clearly based its conclusion not so
\nmuch on violation of particular constitutional provision
\nbut on this generalized ground i.e. evidence of a pattern
\nof action directed against the principle of secularism.
\nTherefore, it is important to note that the recognition of a
\nbasic structure in the context of amendment provides an
\ninsight that there are, beyond the words of particular
\nprovisions, systematic principles underlying and
\nconnecting the provisions of the Constitution. These
\nprinciples give coherence to the Constitution and make it
\nan organic whole.  These principles are part of
\nConstitutional law even if they are not expressly stated in
\nthe form of rules.  An instance is the principle of
\nreasonableness which connects Articles 14, 19 and 21.
\nSome of these principles may be so important and
\nfundamental, as to qualify as ‘essential features’ or part
\nof the ‘basic structure’ of the Constitution, that is to say,
\nthey are not open to amendment.  However, it is only by
\nlinking provisions to such overarching principles that one
\nwould be able to distinguish essential from less essential
\nfeatures of the Constitution.\n<\/p>\n
\tThe point which is important to be noted is that
\nprinciples of federalism, secularism, reasonableness and
\nsocialism etc. are beyond the words of a particular
\nprovision.  They are systematic and structural principles
\nunderlying and connecting various provisions of the
\nConstitution.  They give coherence to the Constitution.
\nThey make the Constitution an organic whole.  They are
\npart of constitutional law even if they are not expressly
\nstated in the form of rules.\n<\/p>\n
For a constitutional principle to qualify as an
\nessential feature, it must be established that the said
\nprinciple is a part of the constitutional law binding on the
\nlegislature.  Only thereafter, the second step is to be
\ntaken, namely, whether the principle is so fundamental
\nas to bind even the amending power of the Parliament,
\ni.e. to form a part of the basic structure.  The basic
\nstructure concept accordingly limits the amending power
\nof the Parliament.  To sum up: in order to qualify as an
\nessential feature, a principle is to be first established as
\npart of the constitutional law and as such binding on the
\nlegislature. Only then, it can be examined whether it is so
\nfundamental as to bind even the amending power of the
\nParliament i.e. to form part of the basic structure of the
\nConstitution.  This is the standard of judicial review of
\nconstitutional amendments in the context of the doctrine
\nof basic structure.\n<\/p>\n
\tAs stated above, the doctrine of basic structure has
\nessentially emanated from the German Constitution.
\nTherefore, we may have a look at common constitutional
\nprovisions under German Law which deal with rights,
\nsuch as, freedom of press or religion which are not mere
\nvalues, they are justiciable and capable of interpretation.
\nThe values impose a positive duty on the State to ensure
\ntheir attainment as far as practicable.  The rights,
\nliberties and freedoms of the individual are not only to be
\nprotected against the State, they should be facilitated by
\nit.  They are to be informed.  Overarching and informing
\nof these rights and values is the principle of human
\ndignity under the German basic law.  Similarly,
\nsecularism is the principle which is the overarching
\nprinciple of several rights and values under the Indian
\nConstitution.  Therefore, axioms like secularism,
\ndemocracy, reasonableness, social justice etc. are
\noverarching principles which provide linking factor for
\nprinciple of fundamental rights like Articles 14, 19 and\n<\/p>\n
21.  These principles are beyond the amending power of
\nthe Parliament.  They pervade all enacted laws and they
\nstand at the pinnacle of the hierarchy of constitutional
\nvalues.  For example, under the German Constitutional
\nLaw, human dignity under Article 1 is inviolable.   It is
\nthe duty of the State not only to protect the human
\ndignity but to facilitate it by taking positive steps in that
\ndirection.  No exact definition of human dignity exists.  It
\nrefers to the intrinsic value of every human being, which
\nis to be respected.  It cannot be taken away.  It cannot
\ngive.  It simply is.  Every human being has dignity by
\nvirtue of his existence.  The Constitutional Courts in
\nGermany, therefore, see human dignity as a fundamental
\nprinciple within the system of the basic rights.  This is
\nhow the doctrine of basic structure stands evolved under
\nthe German Constitution and by interpretation given to
\nthe concept by the Constitutional Courts.\n<\/p>\n
Under the Indian Constitution, the word ‘federalism’
\ndoes not exist in the preamble.  However, its principle
\n(not in the strict sense as in U.S.A.) is delineated over
\nvarious provisions of the Constitution. In particular, one
\nfinds this concept in separation of powers under Articles
\n245 and 246 read with the three lists in the seventh
\nschedule to the Constitution.\n<\/p>\n
\tTo conclude, the theory of basic structure is based
\non the concept of constitutional identity.  The basic
\nstructure jurisprudence is a pre-occupation with
\nconstitutional identity.  In Kesavananda Bharati
\nSripadagalvaru and others v. State of Kerala and<\/a>
\nanother , it has been observed that ‘one cannot legally
\nuse the constitution to destroy itself’.  It is further
\nobserved ‘the personality of the constitution must remain
\nunchanged’. Therefore, this Court in Kesavananda
\nBharati13, while propounding the theory of basic
\nstructure, has relied upon the doctrine of constitutional
\nidentity.  The word ‘amendment’ postulates that the old
\nconstitution survives without loss of its identity despite
\nthe change and it continues even though it has been
\nsubjected to alteration.  This is the constant theme of the
\nopinions in the majority decision in Kesavananda
\nBharati13.  To destroy its identity is to abrogate the basic
\nstructure of the Constitution.  This is the principle of
\nconstitutional sovereignty.  Secularism in India has acted
\nas a balance between socio-economic reforms which
\nlimits religious options and communal developments.
\nThe main object behind the theory of the constitutional
\nidentity is continuity and within that continuity of
\nidentity, changes are admissible depending upon the
\nsituation and circumstances of the day.\n<\/p>\n
Lastly, constitutionalism is about limits and
\naspirations.  According to Justice Brennan,
\ninterpretation of the Constitution as a written text is
\nconcerned with aspirations and fundamental principles.
\nIn his Article titled ‘Challenge to the Living Constitution’
\nby Herman Belz, the author says that the Constitution
\nembodies aspiration to social justice, brotherhood and
\nhuman dignity.  It is a text which contains fundamental
\nprinciples.  Fidelity to the text qua fundamental
\nprinciples did not limit judicial decision making.  The
\ntradition of the written constitutionalism makes it
\npossible to apply concepts and doctrines not recoverable
\nunder the doctrine of unwritten living constitution.  To
\nconclude, as observed by Chandrachud, CJ, in Minerva
\nMills Ltd.7, ‘the Constitution is a precious heritage and,
\ntherefore, you cannot destroy its identity’.\n<\/p>\n
\tConstitutional adjudication is like no other
\ndecision-making.  There is a moral dimension to every
\nmajor constitutional case; the language of the text is not
\nnecessarily a controlling factor.  Our constitution works
\nbecause of its generalities, and because of the good sense
\nof the Judges when interpreting it. It is that informed
\nfreedom of action of the Judges that helps to preserve
\nand protect our basic document of governance.\n<\/p>\n
IS EQUALITY A PART OF THE FUNDAMENTAL
\nFEATURES OR THE BASIC STRUCTURE OF THE
\nCONSTITUTION?\n<\/p>\n
\tAt the outset, it may be noted that equality, rule of
\nlaw, judicial review and separation of powers are distinct
\nconcepts.  They have to be treated separately, though
\nthey are intimately connected.  There can be no rule of
\nlaw if there is no equality before the law; and rule of law
\nand equality before the law would be empty words if their
\nviolation was not a matter of judicial scrutiny or judicial
\nreview and judicial relief and all these features would lose
\ntheir significance if judicial, executive and legislative
\nfunctions were united in only one authority, whose
\ndictates had the force of law.  The rule of law and
\nequality before the law are designed to secure among
\nother things justice both social and economic.  Secondly,
\na federal Constitution with its distribution of legislative
\npowers between Parliament and State legislatures
\ninvolves a limitation on legislative powers and this
\nrequires an authority other than Parliament and State
\nLegislatures to ascertain whether the limits are
\ntransgressed and to prevent such violation and
\ntransgression.  As far back as 1872, Lord Selbourne said
\nthat the duty to decide whether the limits are
\ntransgressed must be discharged by courts of justice.
\nJudicial review of legislation enacted by the Parliament
\nwithin limited powers under the controlled constitution
\nwhich we have, has been a feature of our law and this is
\non the ground that any law passed by a legislature with
\nlimited powers is ultra vires if the limits are transgressed.
\nThe framers conferred on the Supreme Court the power
\nto issue writs for the speedy enforcement of those rights
\nand made the right to approach the Supreme Court for
\nsuch enforcement itself a fundamental right.  Thus,
\njudicial review is an essential feature of our constitution
\nbecause it is necessary to give effect to the distribution of
\nlegislative power between Parliament and State
\nlegislatures, and is also necessary to give practicable
\ncontent to the objectives of the Constitution embodied in
\nPart-III and in several other Articles of our Constitution.\n<\/p>\n
In the case of Minerva Mills7,  Chandrachud, C.J.,
\nspeaking for the majority, observed that Articles 14 and
\n19 do not confer any fanciful rights.  They confer rights
\nwhich are elementary for the proper and effective
\nfunctioning of democracy.  They are universally regarded
\nby the universal Declaration of Human Rights.  If Articles
\n14 and 19 are put out of operation, Article 32 will be
\nrendered nugatory.  In the said judgment, the majority
\ntook the view that the principles enumerated in Part-IV
\nare not the proclaimed monopoly of democracies alone.
\nThey are common to all polities, democratic or
\nauthoritarian.  Every State is goal-oriented and every
\nState claims to strive for securing the welfare of its
\npeople.  The distinction between different forms of
\nGovernment consists in the fact that a real democracy
\nwill endeavour to achieve its objectives through the
\ndiscipline of fundamental freedoms like Articles 14 and\n<\/p>\n
19.   Without these freedoms, democracy is impossible.  If
\nArticle 14 is withdrawn, the political pressures exercised
\nby numerically large groups can tear the country apart
\nby leading it to the legislation to pick and choose
\nfavoured areas and favourite classes for preferential
\ntreatment.\n<\/p>\n
From these observations, which are binding on us,
\nthe principle which emerges is that “equality” is the
\nessence of democracy and, accordingly a basic feature of
\nthe Constitution.  This test is very important.  Free and
\nfair elections per se may not constitute a basic feature of
\nthe Constitution.  On their own, they do not constitute
\nbasic feature.  However, free and fair election as a part of
\nrepresentative democracy is an essential feature as held
\nin the Indira Nehru Gandhi v. Raj Narain  (Election<\/a>
\ncase).    Similarly, federalism is an important principle of
\nconstitutional law.  The word ‘federalism’ is not in the
\npreamble.  However, as stated above, its features are
\ndelineated over various provisions of the Constitution like
\nArticles 245, 246 and 301 and the three lists in the
\nseventh schedule to the Constitution.\n<\/p>\n
However, there is a difference between formal
\nequality and egalitarian equality which will be discussed
\nlater on.\n<\/p>\n
\tThe theory of basic structure is based on the
\nprinciple that a change in a thing does not involve its
\ndestruction and destruction of a thing is a matter of
\nsubstance and not of form.  Therefore, one has to apply
\nthe test of overarching principle to be gathered from the
\nscheme and the placement and the structure of an Article
\nin the Constitution.  For example, the placement of
\nArticle 14 in the equality code; the placement of Article
\n19 in the freedom code; the placement of Article 32 in the
\ncode giving access to the Supreme Court.  Therefore, the
\ntheory of basic structure is the only theory by which the
\nvalidity of impugned amendments to the Constitution is
\nto be judged.\n<\/p>\n
WORKING TEST IN THE MATTER OF APPLICATION
\nOF THE DOCTRINE OF BASIC STRUCTURE:\n<\/p>\n
\tOnce it is held that fundamental rights could be
\nabridged but not destroyed and once it is further held
\nthat several features of the Constitution can not be
\ndestroyed, the concept of ‘express limitation’ on the
\namending power loses its force for a precise formulation
\nof the basic feature of the Constitution and for the courts
\nto pronounce on the validity of a constitutional
\namendment.\n<\/p>\n
A working test has been evolved by Chandrachud,
\nJ. in the Election Case14, in which the learned Judge
\nhas rightly enunciated, with respect, that “for
\ndetermining whether a particular feature of the
\nConstitution is a part of its basic structure, one has per
\nforce to examine in each individual case the place of the
\nparticular feature in the scheme of the Constitution, its
\nobject and purpose and the consequences of its denial on
\nthe integrity of the Constitution as a fundamental
\ninstrument of the country’s governance.”\n<\/p>\n
\tApplying the above test to the facts of the present
\ncase, it is relevant to note that the concept of ‘equality’
\nlike the concept of ‘representative democracy’ or
\n‘secularism’ is delineated over various Articles.  Basically,
\nPart-III of the Constitution consists of the equality code,
\nthe freedom code and the right to move the courts.  It is
\ntrue that equality has several facets.  However, each case
\nhas to be seen in the context of the placement of an
\nArticle which embodies the foundational value of
\nequality.\n<\/p>\n
CONCEPT OF RESERVATION:\n<\/p>\n
\tReservation as a concept is very wide.  Different
\npeople understand reservation to mean different things.
\nOne view of reservation as a generic concept is that
\nreservation is anti-poverty measure.  There is a different
\nview which says that reservation is merely providing a
\nright of access and that it is not a right to redressal.
\nSimilarly, affirmative action as a generic concept has a
\ndifferent connotation.  Some say that reservation is not a
\npart of affirmative action whereas others say that it is a
\npart of affirmative action.\n<\/p>\n
Our Constitution has, however, incorporated the
\nword ‘reservation’ in Article 16(4) which word is not there
\nin Article 15(4).  Therefore, the word ‘reservation’ as a
\nsubject of Article 16(4) is different from the word
\n‘reservation’ as a general concept.\n<\/p>\n
Applying the above test, we have to consider the
\nword ‘reservation’ in the context of Article 16(4) and it is
\nin that context that Article 335 of the Constitution which
\nprovides for relaxation of the standards of evaluation has
\nto be seen.  We have to go by what the Constitution
\nframers intended originally and not by general concepts
\nor principles.  Therefore, schematic interpretation of the
\nConstitution has to be applied and this is the basis of the
\nworking test evolved by Chandrachud, J. in the Election
\nCase14.\n<\/p>\n
JUSTICE, SOCIAL, ECONOMIC AND POLITICAL IS
\nPROVIDED NOT ONLY IN PART-IV (DIRECTIVE
\nPRINCIPLES) BUT ALSO IN PART-III (FUNDAMENTAL
\nRIGHTS):\n<\/p>\n
\tIndia is constituted into a sovereign, democratic
\nrepublic to secure to all its citizens, fraternity assuring
\nthe dignity of the individual and the unity of the nation.
\nThe sovereign, democratic republic exists to promote
\nfraternity and the dignity of the individual citizen and to
\nsecure to the citizens certain rights.  This is because the
\nobjectives of the State can be realized only in and
\nthrough the individuals.  Therefore, rights conferred on
\ncitizens and non-citizens are not merely individual or
\npersonal rights.   They have a large social and political
\ncontent, because the objectives of the Constitution
\ncannot be otherwise realized.  Fundamental rights
\nrepresent the claims of the individual and the restrictions
\nthereon are the claims of the society.  Article 38 in Part-
\nIV is the only Article which refers to justice, social,
\neconomic and political.  However, the concept of justice is
\nnot limited only to directive principles.  There can be no
\njustice without equality.  Article 14 guarantees the
\nfundamental right to equality before the law on all
\npersons.  Great social injustice resulted from treating
\nsections of the Hindu community as ‘untouchable’ and,
\ntherefore, Article 17 abolished untouchability and Article
\n25 permitted the State to make any law providing for
\nthrowing open all public Hindu religious temples to
\nuntouchables.  Therefore, provisions of Part-III also
\nprovide for political and social justice.\n<\/p>\n
\tThis discussion is important because in the present
\ncase, we are concerned with reservation.  Balancing a
\nfundamental right to property vis-`-vis Articles 39(b) and
\n39(c) as in Kesavananda Bharati13 and Minerva Mills7
\ncannot be equated with the facts of the present case.  In
\nthe present case, we are concerned with the right of an
\nindividual of equal opportunity on one hand and
\npreferential treatment to an individual belonging to a
\nbackward class in order to bring about equal level-
\nplaying field in the matter of public employment.
\nTherefore, in the present case, we are concerned with
\nconflicting claims within the concept of ‘justice, social,
\neconomic and political’, which concept as stated above
\nexists both in Part-III and Part-IV of the Constitution.
\nPublic employment is a scarce commodity in economic
\nterms.  As the supply is scarce, demand is chasing that
\ncommodity.  This is reality of life.  The concept of ‘public
\nemployment’ unlike right to property is socialistic and,
\ntherefore, falls within the preamble to the Constitution
\nwhich states that WE, THE PEOPLE OF INDIA, having
\nsolemnly resolved to constitute India into a SOVEREIGN
\nSOCIALIST SECULAR DEMOCRATIC REPUBLIC.
\nSimilarly, the preamble mentions the objective to be
\nachieved, namely, justice, social, economic and political.
\nTherefore, the concept of ‘equality of opportunity’ in
\npublic employment concerns an individual, whether that
\nindividual belongs to general category or backward class.
\nThe conflicting claim of individual right under Article
\n16(1) and the preferential treatment given to a backward
\nclass has to be balanced.  Both the claims have a
\nparticular object to be achieved.  The question is of
\noptimization of these conflicting interests and claims.\n<\/p>\n
EQUITY, JUSTICE AND MERIT:\n<\/p>\n
\tThe above three concepts are independent variable
\nconcepts.  The application of these concepts in public
\nemployment depends upon quantifiable data in each
\ncase.  Equality in law is different from equality in fact.
\nWhen we construe Article 16(4), it is equality in fact
\nwhich plays the dominant role.  Backward classes seek
\njustice.  General class in public employment seeks
\nequity.  The difficulty comes in when the third variable
\ncomes in, namely, efficiency in service.  In the issue of
\nreservation, we are being asked to find a stable
\nequilibrium between justice to the backwards, equity for
\nthe forwards and efficiency for the entire system.  Equity
\nand justice in the above context are hard-concepts.
\nHowever, if you add efficiency to equity and justice, the
\nproblem arises in the context of the reservation.  This
\nproblem has to be examined, therefore, on the facts of
\neach case.  Therefore, Article 16(4) has to be construed in
\nthe light of Article 335 of the Constitution.  Inadequacy in
\nrepresentation and backwardness of Scheduled Caste
\nand Scheduled Tribes are circumstances which enable
\nthe State Government to act under Article 16(4) of the
\nConstitution.  However, as held by this Court the
\nlimitations on the discretion of the government in the
\nmatter of reservation under Article 16(4) as well as Article
\n16(4A) come in the form of Article 335 of the
\nConstitution.\n<\/p>\n
\tMerit is not a fixed absolute concept.  Amartya Sen,
\nin a book, Meritocracy and Economic Inequality,
\nedited by Kenneth Arrow, points out that merit is a
\ndependent idea and its meaning depends on how a
\nsociety defines a desirable act.  An act of merit in one
\nsociety may not be the same in another.  The difficulty is
\nthat there is no natural order of ‘merit’ independent of
\nour value system.  The content of merit is context-
\nspecific.  It derives its meaning from particular conditions
\nand purposes.  The impact of any affirmative action
\npolicy on ‘merit’ depends on how that policy is designed.
\nUnfortunately, in the present case, the debate before us
\non this point has taken place in an empirical vacuum.
\nThe basic presumption, however, remains that it is the
\nState who is in the best position to define and measure
\nmerit in whatever ways they consider it to be relevant to
\npublic employment because ultimately it has to bear the
\ncosts arising from errors in defining and measuring
\nmerit.  Similarly, the concept of “extent of reservation” is
\nnot an absolute concept and like merit it is context-
\nspecific.\n<\/p>\n
The point which we are emphasizing is that
\nultimately the present controversy is regarding the
\nexercise of the power by the State Government depending
\nupon the fact-situation in each case.  Therefore, ‘vesting
\nof the power’ by an enabling provision may be
\nconstitutionally valid and yet ‘exercise of the power’ by
\nthe State in a given case may be arbitrary, particularly, if
\nthe State fails to identify and measure backwardness and
\ninadequacy keeping in mind the efficiency of service as
\nrequired under Article 335.\n<\/p>\n
RESERVATION AND AFFIRMATIVE ACTION:\n<\/p>\n
 Equality of opportunity has two different and
\ndistinct concepts.  There is a conceptual distinction
\nbetween a non-discrimination principle and affirmative
\naction under which the State is obliged to provide level-
\nplaying field to the oppressed classes.  Affirmative action
\nin the above sense seeks to move beyond the concept of
\nnon-discrimination towards equalizing results with
\nrespect to various groups.  Both the conceptions
\nconstitute “equality of opportunity”.\n<\/p>\n
It is the equality “in fact” which has to be decided
\nlooking at the ground reality.  Balancing comes in where
\nthe question concerns the extent of reservation.  If the
\nextent of reservation goes beyond cut-off point then it
\nresults in reverse discrimination.  Anti-discrimination
\nlegislation has a tendency of pushing towards de facto
\nreservation.  Therefore, a numerical benchmark is the
\nsurest immunity against charges of discrimination.\n<\/p>\n
Reservation is necessary for transcending caste and
\nnot for perpetuating it.  Reservation has to be used in a
\nlimited sense otherwise it will perpetuate casteism in the
\ncountry.  Reservation is under-written by a special
\njustification.  Equality in Article 16(1) is individual-
\nspecific whereas reservation in Article 16(4) and Article
\n16(4A) is enabling.  The discretion of the State is,
\nhowever, subject to the existence of “backwardness” and
\n“inadequacy of representation” in public employment.
\nBackwardness has to be based on objective factors
\nwhereas inadequacy has to factually exist.  This is where
\njudicial review comes in.  However, whether reservation
\nin a given case is desirable or not, as a policy, is not for
\nus to decide as long as the parameters mentioned in
\nArticles 16(4) and 16(4A) are maintained.  As stated
\nabove, equity, justice and merit (Article 335)\/efficiency
\nare variables which can only be identified and measured
\nby the State.  Therefore, in each case, a contextual case
\nhas to be made out depending upon different
\ncircumstances which may exist Statewise.\n<\/p>\n
EXTENT OF RESERVATION:\n<\/p>\n
\tSocial justice is one of the sub-divisions of the
\nconcept of justice.  It is concerned with the distribution of
\nbenefits and burdens throughout a society as it results
\nfrom social institutions  property systems, public
\norganisations etc.<\/p>\n
The problem is  what should be the basis of
\ndistribution?  Writers like Raphael, Mill and Hume define
\n‘social justice’ in terms of rights.  Other writers like
\nHayek and Spencer define ‘social justice’ in terms of
\ndeserts.  Socialist writers define ‘social justice’ in terms of
\nneed.  Therefore, there are three criteria to judge the
\nbasis of distribution, namely, rights, deserts or need.
\nThese three criteria can be put under two concepts of
\nequality  “formal equality” and “proportional equality”.
\n“Formal equality” means that law treats everyone equal
\nand does not favour anyone either because he belongs to
\nthe advantaged section of the society or to the
\ndisadvantaged section of the society.  Concept of
\n“proportional equality” expects the States to take
\naffirmative action in favour of disadvantaged sections of
\nthe society within the framework of liberal democracy.\n<\/p>\n
Under the Indian Constitution, while basic liberties
\nare guaranteed and individual initiative is encouraged,
\nthe State has got the role of ensuring that no class
\nprospers at the cost of other class and no person suffers
\nbecause of drawbacks which is not his but social.
\n\tThe question of extent of reservation involves two
\nquestions:\n<\/p>\n
1. \tWhether there is any upper limit beyond which
\nreservation is not permissible?\n<\/p>\n
2. \tWhether there is any limit to which seats can
\nbe reserved in a particular year; in other words
\nthe issue is whether the percentage limit
\napplies only on the total number of posts in
\nthe cadre or to the percentage of posts
\nadvertised every year as well?\n<\/p>\n
The question of extent of reservation is closely
\nlinked to the issue whether Article 16(4) is an exception
\nto Article 16(1) or is Article 16(4) an application of Article
\n16(1).  If Article 16(4) is an exception to Article 16(1) then
\nit needs to be given a limited application so as not to
\neclipse the general rule in Article 16(1). But if Article
\n16(4) is taken as an application of Article 16(1) then the
\ntwo articles have to be harmonized keeping in view the
\ninterests of certain sections of the society as against the
\ninterest of the individual citizens of the society.\n<\/p>\n
Maximum limit of reservation possible
\nWord of caution against excess reservation was first
\npointed out in The General Manager, Southern
\nRailway and another v. Rangachari
\nGajendragadkar, J. giving the majority judgment said
\nthat reservation under Article 16(4) is intended merely to
\ngive adequate representation to backward communities.
\nIt cannot be used for creating monopolies or for unduly
\nor illegitimately disturbing the legitimate interests of
\nother employees. A reasonable balance must be struck
\nbetween the claims of backward classes and claims of
\nother employees as well as the requirement of efficiency
\nof administration.\n<\/p>\n
However, the question of extent of reservation was
\nnot directly involved in Rangachari15. It was directly
\ninvolved in M.R. Balaji & Ors. V. The State of Mysore
\n& Ors.<\/a>  with reference to Article 15(4).  In this case,
\n60% reservations under Article 15(4) was struck down as
\nexcessive and unconstitutional. Gajendragadkar, J.
\nobserved that special provision should be less than 50
\nper cent, how much less would depend on the relevant
\nprevailing circumstances of each case.\n<\/p>\n
But in State of Kerala and another v. N.M.
\nThomas and others  Krishna Iyer, J. expressed his
\nconcurrence to the views of Fazal Ali, J. who said that
\nalthough reservation cannot be so excessive as to destroy
\nthe principle of equality of opportunity under clause (1) of
\nArticle 16, yet it should be noted that the Constitution
\nitself does not put any bar on the power of the
\nGovernment under Article 16(4). If a State has 80%
\npopulation which is backward then it would be
\nmeaningless to say that reservation should not cross
\n50%.\n<\/p>\n
However, in Indra Sawhney5 the majority held that
\nthe rule of 50% laid down in Balaji16 was a binding rule
\nand not a mere rule of prudence.\n<\/p>\n
Giving the judgment of the Court in Indra
\nSawhney5, Reddy, J.  stated that Article 16(4) speaks of
\nadequate representation not proportionate representation
\nalthough proportion of population of backward classes to
\nthe total population would certainly be relevant. He
\nfurther pointed out that Article 16(4) which protects
\ninterests of certain sections of society has to be balanced
\nagainst Article 16(1) which protects the interests of every
\ncitizen of the entire society. They should be harmonised
\nbecause they are restatements of principle of equality
\nunder Article 14.  (emphasis added)<\/p>\n
Are reserved category candidates free to contest for
\nvacancies in general category<\/p>\n
In Indra Sawhney5 Reddy, J. noted that
\nreservation under Article 16(4) do not operate on
\ncommunal ground. Therefore if a member from reserved
\ncategory gets selected in general category, his selection
\nwill not be counted against the quota limit provided to
\nhis class. Similarly, in R.K. Sabharwal8 the Supreme
\nCourt held that while general category candidates are not
\nentitled to fill the reserved posts; reserved category
\ncandidates are entitled to compete for the general
\ncategory posts. The fact that considerable number of
\nmembers of backward class have been
\nappointed\/promoted against general seats in the State
\nservices may be a relevant factor for the State
\nGovernment to review the question of continuing
\nreservation for the said class.\n<\/p>\n
Number of vacancies that could be reserved
\nWanchoo, J. who had given dissenting judgment in
\nRangachari15 observed that the requirement of Article
\n16(4) is only to give adequate representation and since
\nConstitution-makers intended it to be a short-term
\nmeasure it may happen that all the posts in a year may
\nbe reserved. He opined that reserving a fixed percentage
\nof seats every year may take a long time before
\ninadequacy of representation is overcome. Therefore, the
\nGovernment can decide to reserve the posts. After having
\nreserved a fixed number of posts the Government may
\ndecide that till those posts are filled up by the backward
\nclasses all appointments will go to them if they fulfil the
\nminimum qualification. Once this number is reached the
\nGovernment is deprived of its power to make further
\nreservations. Thus, according to Wanchoo, J. the
\nadequacy of representation has to be judged considering
\nthe total number of posts even if in a single year or for
\nfew years all seats are reserved provided the scheme is
\nshort-term.\n<\/p>\n
The idea given by Wanchoo, J. in Rangachari15 did
\nnot work out in practice because most of the time even
\nfor limited number of reservations, every year qualified
\nbackward class candidates were not available. This
\ncompelled the government to adopt carry-forward rule.
\nThis carry-forward rule came in conflict with Balaji16
\nruling. In cases where the availability of reserved
\ncategory candidates is less than the vacancies set aside
\nfor them, the Government has to adopt either of the two
\nalternatives:\n<\/p>\n
(1) the State may provide for carrying on the
\nunfulfilled vacancies for the next year or next to the next
\nyear, or
\n(2) instead of providing for carrying over the
\nunfulfilled vacancies to the coming years, it may provide
\nfor filling of the vacancies from the general quota
\ncandidates and carry forward the unfilled posts by
\nbackward classes to the next year quota.\n<\/p>\n
But the problem arises when in a particular year
\ndue to carry forward rule more than 50% of vacancies are
\nreserved. In T. Devadasan v. Union of India and<\/a>
\nanother , this was the issue.  Union Public Service
\nCommission had provided for 17=% reservation for
\nScheduled Castes and Scheduled Tribes. In case of non-
\navailability of reserved category candidates in a particular
\nyear the posts had to be filled by general category
\ncandidates and the number of such vacancies were to be
\ncarried forward to be filled by the reserved category
\ncandidate next year. Due to this, the rule of carry forward
\nreservation in a particular year amounted to 65% of the
\ntotal vacancies. The petitioner contended that reservation
\nwas excessive which destroyed his right under Article
\n16(1) and Article 14. The court on the basis of decision in
\nBalaji16 held the reservation excessive and, therefore,
\nunconstitutional. It further stated that the guarantee of
\nequality under Article 16(1) is to each individual citizen
\nand to appointments to any office under the State. It
\nmeans that on every occasion for recruitment the State
\nshould see that all citizens are treated equally. In order to
\neffectuate the guarantee each year of recruitment will
\nhave to be considered by itself.\n<\/p>\n
Thus, majority differed from Wanchoo’s, J. decision
\nin Rangachari15 holding that a cent per cent reservation
\nin a particular year would be unconstitutional in view of
\nBalaji16 decision.\n<\/p>\n
Subba Rao, J. gave dissenting judgment. He relied
\non Wanchoo’s, J. judgment in Rangachari15 and held
\nthat Article 16(4) provides for adequate representation
\ntaking into consideration entire cadre strength. According
\nto him, if it is within the power of the State to make
\nreservations then reservation made in one selection or
\nspread over many selections is only a convenient method
\nof implementing the provision of reservation. Unless it is
\nestablished that an unreasonably disproportionate part
\nof the cadre strength is filled up with the said castes and
\ntribes, it is not possible to contend that the provision is
\nnot one of reservation but amounts to an extinction of
\nthe fundamental right.\n<\/p>\n
In the case of Thomas17 under the Kerala State and
\nSubordinate Services Rules, 1950 certain relaxation was
\ngiven to Scheduled Caste and Scheduled Tribe
\ncandidates passing departmental tests for promotions.
\nFor promotion to upper division clerks from lower
\ndivision clerks the criteria of seniority-cum-merit was
\nadopted. Due to relaxation in merit qualification in 1972,
\n34 out of 51 vacancies in upper division clerks went to
\nScheduled Caste candidates. It appeared that the 34
\nmembers of SC\/ST had become senior most in the lower
\ngrade. The High Court quashed the promotions on the
\nground that it was excessive. The Supreme Court upheld
\nthe promotions.  Ray, C.J. held that the promotions
\nmade in services as a whole is no where near 50% of the
\ntotal number of the posts. Thus, the majority differed
\nfrom the ruling of the court in Devadasan19 basically on
\nthe ground that the strength of the cadre as a whole
\nshould be taken into account. Khanna, J. in his
\ndissenting opinion made a reference to it on the ground
\nthat such excessive concession would impair efficiency in
\nadministration.\n<\/p>\n
In Indra Sawhney5, the majority held that 50%
\nrule should be applied to each year otherwise it may
\nhappen that (if entire cadre strength is taken as a unit)
\nthe open competition channel gets choked for some years
\nand meanwhile the general category candidates may
\nbecome age barred and ineligible. The equality of
\nopportunity under Article 16(1) is for each individual
\ncitizen while special provision under Article 16(4) is for
\nsocially disadvantaged classes. Both should be balanced
\nand neither should be allowed to eclipse the other.\n<\/p>\n
However, in R.K. Sabharwal8 which was a case of
\npromotion and the issue in this case was operation of
\nroster system, the Court stated that entire cadre strength
\nshould be taken into account to determine whether
\nreservation up to the required limit has been reached.
\nWith regard to ruling in Indra Sawhney case5 that
\nreservation in a year should not go beyond 50% the
\nCourt held that it applied to initial appointments. The
\noperation of a roster, for filling the cadre strength, by
\nitself ensures that the reservation remains within the
\n50% limit.  In substance the court said that presuming
\nthat 100% of the vacancies have been filled, each post
\ngets marked for the particular category of candidate to be
\nappointed against it and any subsequent vacancy has to
\nbe filled by that category candidate. The Court was
\nconcerned with the possibility that reservation in entire
\ncadre may exceed 50% limit if every year half of the seats
\nare reserved.  The Constitution (Eighty-first Amendment)
\nAct, 2000 added Article 16(4B) which in substance gives
\nlegislative assent to the judgment in R.K. Sabharwal8.\n<\/p>\n
CATCH-UP RULE  IS THE SAID RULE A
\nCONSTITUTIONAL REQUIREMENT UNDER ARTICLE
\n16(4):\n<\/p>\n
\tOne of the contentions advanced on behalf of the
\npetitioners is that the impugned amendments,
\nparticularly, the Constitution (Seventy-Seventh
\nAmendment) and (Eight-Fifth Amendment) Acts,
\nobliterate all constitutional limitations on the amending
\npower of the Parliament.  That the width of these
\nimpugned amendments is so wide that it violates the
\nbasic structure of equality enshrined in the Constitution.\n<\/p>\n
\tThe key issue which arises for determination is
\nwhether the above “catch-up” rule and the concept of
\n“consequential seniority” are constitutional requirements
\nof Article 16 and of equality, so as to be beyond the
\nconstitutional amendatory process.  In other words,
\nwhether obliteration of the “catch-up” rule or insertion of
\nthe concept of “consequential seniority code”, would
\nviolate the basic structure of the equality code enshrined
\nin Articles 14, 15 and 16.\n<\/p>\n
\tThe concept of “catch-up” rule appears for the first
\ntime in the case of Virpal Singh Chauhan1 .  In the
\ncategory of Guards in the Railways, there were four
\ncategories, namely, Grade ‘C’, Grade ‘B’, Grade ‘A’ and
\nGrade ‘A’ Special.  The initial recruitment was made to
\nGr. ‘C’.  Promotion from one grade to another was by
\nseniority-cum-suitability.  The rule of reservation was
\napplied not only at the initial stage of appointment to
\nGrade ‘C’ but at every stage of promotion.  The
\npercentage reserved for SC was 15% and for ST, it was
\n7.5%.  To give effect to the rule of reservation, a forty-
\npoint roster was prepared in which certain points were
\nreserved for SCs and STs respectively.  Subsequently, a
\nhundred-point roster was prepared reflecting the same
\npercentages.  In 1986, general candidates and members
\nof SCs\/STs came within Grade ‘A’ in Northern-Railway.
\nOn 1.8.1986, the Chief Controller promoted certain
\ngeneral candidates on ad hoc basis to Grade ‘A’ Special.
\nWithin three months, they were reverted and SCs and
\nSTs were promoted.  This action was challenged by
\ngeneral candidates as arbitrary and unconstitutional
\nbefore the tribunal.  The general candidates asked for
\nthree reliefs, namely, (a) to restrain the Railways from
\nfilling-up the posts in higher grades in the category of
\nGuards by applying the rule of reservation; (b) to restrain
\nthe Railway from acting upon the seniority list prepared
\nby them; and (c) to declare that the general candidates
\nwere alone entitled to be promoted and confirmed in
\nGrade ‘A’ Special on the strength of their seniority earlier
\nto the reserved category employees.  The contention of
\nthe general candidates was that once the quota
\nprescribed for the reserved group is satisfied, the forty-
\npoint roster cannot be applied because that roster was
\nprepared to give effect to the rule of reservation.  It was
\ncontended by the general candidates that accelerated
\npromotion may be given but the Railways cannot give
\nconsequential seniority to reserved category candidates
\nin the promoted category. (Emphasis added).  In this
\nconnection, the general category candidates relied upon
\nthe decisions of the Allahabad and Madhya Pradesh High
\nCourts.  It was contended by the general candidates that
\ngiving consequential seniority in addition to accelerated
\npromotion constituted conferment of double benefit upon
\nthe members of the reserved category and, therefore,
\nviolated the rule of equality in Article 16(1).  It was
\nfurther urged that accelerated promotion-cum-
\naccelerated seniority is destructive of the efficiency of
\nadministration inasmuch as by this means the higher
\nechelons of administration would be occupied entirely by
\nmembers of reserved categories.  This was opposed by the
\nreserved category candidates who submitted that for the
\npurposes of promotion to Grade ‘A’ Special, the seniority
\nlist pertaining to Grade ‘A’ alone should be followed; that,
\nthe administration should not follow the seniority lists
\nmaintained by the administration pertaining to Grade ‘C’
\nas urged by the general candidates and since SCs and
\nSTs were senior to the general candidates in Grade ‘A’,
\nthe seniority in Grade ‘A’ alone should apply.  In short,
\nthe general candidates relied upon the ‘catch-up’ rule,
\nwhich was opposed by the members of SC\/ST.  They also
\nrelied upon the judgment of this Court in R.K.
\nSabharwal8.\n<\/p>\n
This Court gave following reasons for upholding the
\ndecision of the tribunal.  Firstly, it was held that a rule of
\nreservation as such does not violate Article 16(4).
\nSecondly, this Court opined, that there is no uniform
\nmethod of providing reservation.  The extent and nature
\nof reservation is a matter for the State to decide having
\nregards to the facts and requirements of each case.  It is
\nopen to the State, if so advised, to say that while the rule
\nof reservation shall be applied, the candidate promoted
\nearlier by virtue of rule of reservation\/roster shall not be
\nentitled to seniority over seniors in the feeder category
\nand that it is open to the State to interpret the ‘catch-up’
\nrule in the service conditions governing the promotions
\n[See: para 24].  Thirdly, this Court did not agree with the
\nview expressed by the tribunal [in Virpal Singh
\nChauhan1] that a harmonious reading of clauses (1) to
\n(4) of Article 16 should mean that a reserved category
\ncandidate promoted earlier than his senior general
\ncategory candidates in the feeder grade shall necessarily
\nbe junior in the promoted category to such general
\ncategory.  This Court categorically ruled, vide para 27,
\nthat such catch-up principle cannot be said to be implicit
\nin clauses (1) to (4) of Article 16  (emphasis supplied).
\nLastly, this Court found on facts that for 11 vacancies,
\n33 candidates were considered and they were all SC\/ST
\ncandidates.  Not a single candidate belonged to general
\ncategory.  It was argued on behalf of the general
\ncandidates that all top grades stood occupied exclusively
\nby the reserved category members, which violated the
\nrule of equality underlying Articles 16(1), 16(4) and 14.
\nThis Court opined that the above situation arose on
\naccount of faulty implementation of the rule of
\nreservation, as the Railways did not observe the principle
\nthat reservation must be in relation to ‘posts’ and not
\n‘vacancies’ and also for applying the roster even after the
\nattainment of the requisite percentage reserved for
\nSCs\/STs.  In other words, this Court based its decision
\nonly on the faulty implementation of the rule by the
\nRailways which the Court ordered to be rectified.\n<\/p>\n
The point which we need to emphasize is that the
\nCourt has categorically ruled in Virpal Singh Chauhan1
\nthat the ‘catch-up’ rule is not implicit in clauses (1) to (4)
\nof Article 16.  Hence, the said rule cannot bind the
\namending power of the Parliament.  It is not beyond the
\namending power of the Parliament.\n<\/p>\n
In Ajit Singh (I)2, the controversy which arose for
\ndetermination was  whether after the members of
\nSCs\/STs for whom specific percentage of posts stood
\nreserved having been promoted against those posts, was
\nit open to the administration to grant consequential
\nseniority against general category posts in the higher
\ngrade.  The appellant took a clear stand that he had no
\nobjection if members of SC\/ST get accelerated
\npromotions.  The appellant objected only to the grant of
\nconsequential seniority.  Relying on the circulars issued
\nby the administration dated 19.7.1969 and 8.9.1969, the
\nHigh Court held that the members of SCs\/STs can be
\npromoted against general category posts on basis of
\nseniority.  This was challenged in appeal before this
\nCourt.  The High Court ruling was set aside by this Court
\non the ground that if the ‘catch-up’ rule is not applied
\nthen the equality principle embodied in Article 16(1)
\nwould stand violated.  This Court observed that the
\n‘catch-up’ rule was a process adopted while making
\nappointments through direct recruitment or promotion
\nbecause merit cannot be ignored.  This Court held that
\nfor attracting meritorious candidate a balance has to be
\nstruck while making provisions for reservation.  It was
\nheld that the promotion is an incident of service.  It was
\nobserved that seniority is one of the important factors in
\nmaking promotion.  It was held that right to equality is to
\nbe preserved by preventing reverse discrimination.
\nFurther, it was held that the equality principle requires
\nexclusion of extra-weightage of roster-point promotion to
\na reserved category candidate (emphasis supplied).  This
\nCourt opined that without ‘catch-up’ rule giving
\nweightage to earlier promotion secured by roster-point
\npromotee would result in reverse discrimination and
\nwould violate equality under Articles 14, 15 and 16.
\nAccordingly, this Court took the view that the seniority
\nbetween the reserved category candidates and general
\ncandidates in the promoted category shall be governed by
\ntheir panel position.   Therefore, this Court set aside the
\nfactor of extra-weightage of earlier promotion to a
\nreserved category candidate as violative of Articles 14 and
\n16(1) of the Constitution.\n<\/p>\n
Therefore, in Virpal Singh Chauhan1, this Court
\nhas said that the ‘catch-up’ rule insisted upon by the
\nRailways though not implicit in Articles 16(1) and 16(4),
\nis constitutionally valid as the said practice\/process was
\nmade to maintain efficiency.  On the other hand, in Ajit
\nSingh (I)2, this Court has held that the equality principle
\nexcludes the extra-weightage given by the Government to
\nroster-point promotees as such weightage is against
\nmerit and efficiency of the administration and that the
\nPunjab Government had erred in not taking into account
\nthe said merit and efficiency factors.\n<\/p>\n
In the case of Ajit Singh (II)3, three interlocutory
\napplications were filed by State of Punjab for clarification
\nof the judgment of this Court in Ajit Singh (I)2.  The
\nlimited question was  whether there was any conflict
\nbetween the judgments of this Court in Virpal Singh
\nChauhan1 and Ajit Singh (I)2 on one hand and vis-`-vis
\nthe judgment of this Court in Jagdish Lal and others
\nv. State of Haryana and others<\/a> .  The former cases
\nwere decided in favour of general candidates whereas
\nlatter was a decision against the general candidates.
\nBriefly, the facts for moving the interlocutory applications
\nwere as follows.  The Indian Railways following the law
\nlaid down in Virpal Singh Chauhan1 issued a circular
\non 28.2.1997 to the effect that the reserved candidates
\npromoted on roster-points could not claim seniority over
\nthe senior general candidates promoted later on.  The
\nState of Punjab after following Ajit Singh (I)2 revised
\ntheir seniority list and made further promotions of the
\nsenior general candidates following the ‘catch-up’ rule.
\nTherefore, both the judgments were against the reserved
\ncandidates.  However, in the later judgment of this Court
\nin the case of Jagdish Lal20, another three-Judge bench
\ntook the view that under the general rule of service
\njurisprudence relating to seniority, the date of
\ncontinuous officiation has to be taken into account and if
\nso, the roster-point promotees were entitled to the benefit
\nof continuous officiation. In Jagdish Lal20, the bench
\nobserved that the right to promotion was a statutory right
\nwhile the rights of the reserved candidates under Article
\n16(4) and Article 16(4A) were fundamental rights of the
\nreserved candidates and, therefore, the reserved
\ncandidates were entitled to the benefit of continuous
\nofficiation.\n<\/p>\n
Accordingly, in Ajit Singh (II)3, three points arose
\nfor consideration:\n<\/p>\n
(i)\tCan the roster point promotees count
\ntheir seniority in the promoted category
\nfrom the date of their continuous
\nofficiation vis-`-vis general candidates,
\nwho were senior to them in the lower
\ncategory and who were later promoted to
\nthe same level?\n<\/p>\n
(ii)\tHave Virpal1 and Ajit Singh (I)2 have
\nbeen correctly decided and has Jagdish
\nLal20 been correctly decided?\n<\/p>\n
(iii)\tWhether the catch-up principles are
\ntenable?\n<\/p>\n
\tAt the outset, this Court stated that it was not
\nconcerned with the validity of constitutional amendments
\nand, therefore, it proceeded on the assumption that
\nArticle 16(4A) is valid and is not unconstitutional.
\nBasically, the question decided was whether the ‘catch-
\nup’ principle was tenable in the context of Article 16(4).
\nIt was held that the primary purpose of Article 16(4) and
\nArticle 16(4A) is to give due representation to certain
\nclasses in certain posts keeping in mind Articles 14, 16(1)
\nand 335; that, Articles 14 and 16(1) have prescribed
\npermissive limits to affirmative action by way of
\nreservation under Articles 16(4) and 16(4A) of the
\nConstitution; that, Article 335 is incorporated so that
\nefficiency of administration is not jeopardized and that
\nArticles 14 and 16(1) are closely connected as they deal
\nwith individual rights of the persons.  They give a positive
\ncommand to the State that there shall be equality of
\nopportunity of all citizens in public employment.  It was
\nfurther held that Article 16(1) flows from Article 14. It
\nwas held that the word ’employment’ in Article 16(1) is
\nwide enough to include promotions to posts at the stage
\nof initial level of recruitment.  It was observed that Article
\n16(1) provides to every employee otherwise eligible for
\npromotion fundamental right to be considered for
\npromotion.  It was held that equal opportunity means the
\nright to be considered for promotion.  The right to be
\nconsidered for promotion was not a statutory right.  It
\nwas held that Articles 16(4) and 16(4A) did not confer any
\nfundamental right to reservation.  That they are only
\nenabling provisions.  Accordingly, in Ajit Singh (II)3, the
\njudgment of this Court in Jagdish Lal20 case was
\noverruled.  However, in the context of balancing of
\nfundamental rights under Article 16(1) and the rights of
\nreserved candidate under Articles 16(4) and 16(4A), this
\nCourt opined that Article 16(1) deals with a fundamental
\nright whereas Articles 16(4) and 16(4A) are only enabling
\nprovisions and, therefore, the interests of the reserved
\nclasses must be balanced against the interests of other
\nsegments of society.  As a remedial measure, the Court
\nheld that in matters relating to affirmative action by the
\nState, the rights under Articles 14 and 16 are required to
\nbe protected and a reasonable balance should be struck
\nso that the affirmative action by the State does not lead
\nto reverse discrimination.\n<\/p>\n
\tReading the above judgments, we are of the view
\nthat the concept of ‘catch-up’ rule and ‘consequential
\nseniority’ are judicially evolved concepts to control the
\nextent of reservation.  The source of these concepts is in
\nservice jurisprudence.  These concepts cannot be
\nelevated to the status of an axiom like secularism,
\nconstitutional sovereignty etc.  It cannot be said that by
\ninsertion of the concept of ‘consequential seniority’ the
\nstructure of Article 16(1) stands destroyed or abrogated.
\nIt cannot be said that ‘equality code’ under Article 14, 15
\nand 16 is violated by deletion of the ‘catch-up’ rule.
\nThese concepts are based on practices.  However, such
\npractices cannot be elevated to the status of a
\nconstitutional principle so as to be beyond the amending
\npower of the Parliament.  Principles of service
\njurisprudence are different from constitutional
\nlimitations.   Therefore, in our view neither the ‘catch-up’
\nrule nor the concept of ‘consequential seniority’ are
\nimplicit in clauses (1) and (4) of Article 16 as correctly
\nheld in Virpal Singh Chauhan1.\n<\/p>\n
Before concluding, we may refer to the judgment of
\nthis court in M.G. Badappanavar6. In that case the facts
\nwere as follows.  Appellants were general candidates.
\nThey contended that when they and the reserved
\ncandidates were appointed at Level-1 and junior reserved
\ncandidates got promoted earlier on the basis of roster-
\npoints to Level-2 and again by way of roster-points to
\nLevel-3, and when the senior general candidate got
\npromoted to Level-3, then the general candidate would
\nbecome senior to the reserved candidate at Level-3.  At
\nLevel-3, the reserved candidate should have been
\nconsidered along with the senior general candidate for
\npromotion to Level-4.  In support of their contention,
\nappellants relied upon the judgment of the Constitution
\nBench in Ajit Singh (II)3.  The above contentions raised
\nby the appellants were rejected by the tribunal.
\nTherefore, the general candidates came to this Court in
\nappeal.  This Court found on facts that the concerned
\nService Rule did not contemplate computation of
\nseniority in respect of roster promotions.  Placing reliance
\non the judgment of this Court in Ajit Singh (I)2  and in
\nVirpal Singh1, this court held that roster promotions
\nwere meant only for the limited purpose of due
\nrepresentation of backward classes at various levels of
\nservice and, therefore, such roster promotions did not
\nconfer consequential seniority to the roster-point
\npromotee.  In Ajit Singh (II)3, the circular which gave
\nseniority to the roster-point promotees was held to be
\nviolative of Articles 14 and 16.  It was further held in M.
\nG. Badappanavar6 that equality is the basic feature of
\nthe Constitution and any treatment of equals as
\nunequals or any treatment of unequals as equals violated
\nthe basic structure of the Constitution.  For this
\nproposition, this Court placed reliance on the judgment
\nin Indra Sawhney5 while holding that if creamy layer
\namong backward classes were given some benefits as
\nbackward classes, it will amount to equals being treated
\nunequals.  Applying the creamy layer test, this Court
\nheld that if roster-point promotees are given
\nconsequential seniority, it will violate the equality
\nprinciple which is part of the basic structure of the
\nConstitution and in which event, even Article 16(4A)
\ncannot be of any help to the reserved category
\ncandidates.  This is the only judgment of this Court
\ndelivered by three-Judge bench saying that if roster-point
\npromotees are given the benefit of consequential
\nseniority, it will result in violation of equality principle
\nwhich is part of the basic structure of the Constitution.
\nAccordingly, the judgment of the tribunal was set aside.\n<\/p>\n
The judgment in the case of M. G. Badappanavar6
\nwas mainly based on the judgment in Ajit Singh (I)’2
\nwhich had taken the view that the departmental circular
\nwhich gave consequential seniority to the ‘roster-point
\npromotee’, violated Articles 14 and 16 of the
\nConstitution.  In none of the above cases, the question of
\nthe validity of the constitutional amendments was
\ninvolved.  Ajit Singh (I)’2, Ajit Singh (II)’3 and M. G.
\nBadappanavar6 were essentially concerned with the
\nquestion of ‘weightage’.  Whether weightage of earlier
\naccelerated promotion with consequential seniority
\nshould be given or not to be given are matters which
\nwould fall within the discretion of the appropriate
\nGovernment, keeping in mind the backwardness,
\ninadequacy and representation in public employment
\nand overall efficiency of services.  The above judgments,
\ntherefore, did not touch the questions which are involved
\nin the present case.\n<\/p>\n
SCOPE OF THE IMPUGNED AMENDMENTS
\nBefore dealing with the scope of the constitutional
\namendments we need to recap the judgments in Indra
\nSawhney5 and R.K. Sabharwal8 .  In the former case
\nthe majority held that 50% rule should be applied to each
\nyear otherwise it may happen that the open competition
\nchannel may get choked if the entire cadre strength is
\ntaken as a unit.  However in R.K. Sabharwal8, this court
\nstated that the entire cadre strength should be taken into
\naccount to determine whether the reservation up to the
\nquota-limit has been reached.  It was clarified that the
\njudgment in Indra Sawhney5 was confined to initial
\nappointments and not to promotions.  The operation of
\nthe roster for filling the cadre strength, by itself, ensure
\nthat the reservation remains within the ceiling-limit of
\n50%.\n<\/p>\n
In our view, appropriate Government has to apply
\nthe cadre strength as a unit in the operation of the roster
\nin order to ascertain whether a given class\/group is
\nadequately represented in the service.  The cadre
\nstrength as a unit also ensures that upper ceiling-limit of
\n50% is not violated. Further, roster has to be post-
\nspecific and not vacancy based.\n<\/p>\n
With these introductory facts, we may examine the
\nscope of the impugned constitutional amendments.\n<\/p>\n
The Supreme Court in its judgment dated 16.11.92
\nin Indra Sawhney5 stated that reservation of
\nappointments or posts under Article 16(4) is confined to
\ninitial appointment and cannot extend to reservation in
\nthe matter of promotion.  Prior to the judgment in Indra
\nSawhney5 reservation in promotion existed.  The
\nGovernment felt that the judgment of this court in Indra
\nSawhney5 adversely affected the interests of SCs and
\nSTs in services, as they have not reached the required
\nlevel.  Therefore, the Government felt that it was
\nnecessary to continue the existing policy of providing
\nreservation in promotion confined to SCs and STs alone.
\nWe quote hereinbelow Statement of Objects and Reasons
\nwith the text of the Constitution (Seventy-Seventh
\nAmendment) Act, 1995 introducing clause (4A) in Article
\n16 of the Constitution:\n<\/p>\n
“THE CONSTITUTION (SEVENTY-SEVENTH
\nAMENDMENT) ACT, 1995
\nSTATEMENT OF OBJECTS AND REASONS
\nThe Scheduled Castes and the Scheduled
\nTribes have been enjoying the facility of
\nreservation in promotion since 1955.  The
\nSupreme Court in its judgment dated 16th
\nNovember, 1992 in the case of
\nIndra Sawhney v. Union of India5,<\/a>
\nhowever, observed that reservation of
\nappointments  or  posts under Article  16(4) of
\nthe Constitution  is confined to initial
\nappointment and cannot extent  to
\nreservation  in  the matter of promotion.  This
\nruling of the Supreme Court will adversely
\naffect the interests of the Scheduled Castes
\nand the Scheduled Tribes.  Since the
\nrepresentation of the Scheduled Castes and
\nthe Scheduled Tribes in services in the
\nStates have not reached the required level, it is
\nnecessary to continue the existing
\ndispensation of providing reservation in
\npromotion in the case of the Scheduled Castes
\nand the Scheduled Tribes.  In view of the
\ncommitment of the Government to protect the
\ninterests of the Scheduled Castes and
\nthe Scheduled Tribes, the Government have
\ndecided to continue the existing policy of
\nreservation in promotion for the
\nScheduled Castes and the Scheduled Tribes.
\nTo carry out this, it is necessary to amend
\nArticle 16 of the Constitution by inserting a
\nnew clause (4A) in the said Article to provide
\nfor reservation in promotion for the Scheduled
\nCastes and the Scheduled Tribes.\n<\/p>\n
2. The Bill seeks to achieve the aforesaid
\nobject.\n<\/p>\n
 THE CONSTITUTION (SEVENTY-SEVENTH
\nAMENDMENT) ACT, 1995
\n[Assented on 17th June, 1995, and came into force
\non 17.6.1995]
\nAn Act further to amend the Constitution of India
\nBE it enacted by Parliament in the Forty-
\nsixth Year of the Republic of India as follows:-\n<\/p>\n
1.    Short   title.- This Act may
\n be called the Constitution (Seventy-seventh
\nAmendment) Act, 1995.\n<\/p>\n
2.   Amendment of Article 16. – In
\nArticle 16 of the Constitution, after clause (4),
\nthe following clause shall be inserted, namely:-
\n“(4A) \tNothing in this Article shall
\nprevent the State from making any
\nprovision for reservation in matters of
\npromotion to any class or classes of posts in
\nthe services under the State in favour of the
\nScheduled Castes and the Scheduled Tribes
\nwhich, in the opinion of the State, are
\nnot adequately represented in the
\nservices under  the State.”\n<\/p>\n
The said clause (4A) was inserted after clause (4) of
\nArticle 16 to say that nothing in the said Article shall
\nprevent the State from making any provision for
\nreservation in matters of promotion to any class(s) of
\nposts in the services under the State in favour of SCs and
\nSTs which, in the opinion of the States, are not
\nadequately represented in the services under the State.\n<\/p>\n
Clause (4A) follows the pattern specified in clauses
\n(3) and (4) of Article 16.  Clause (4A) of Article 16
\nemphasizes the opinion of the States in the matter of
\nadequacy of representation.  It gives freedom to the State
\nin an appropriate case depending upon the ground reality
\nto provide for reservation in matters of promotion to any
\nclass or classes of posts in the services.  The State has to
\nform its opinion on the quantifiable data regarding
\nadequacy of representation.  Clause (4A) of Article 16 is
\nan enabling provision.  It gives freedom to the State to
\nprovide for reservation in matters of promotion.  Clause
\n(4A) of Article 16 applies only to SCs and STs.  The said
\nclause is carved out of Article 16(4).  Therefore, clause
\n(4A) will be governed by the two compelling reasons
\n“backwardness” and “inadequacy of representation”, as
\nmentioned in Article 16(4).  If the said two reasons do not
\nexist then the enabling provision cannot come into force.
\nThe State can make provision for reservation only if the
\nabove two circumstances exist.  Further in Ajit Singh
\n(II)3 , this court has held that apart from ‘backwardness’
\nand ‘inadequacy of representation’ the State shall also
\nkeep in mind ‘overall efficiency’ (Article 335).  Therefore,
\nall the three factors have to be kept in mind by the
\nappropriate Government by providing for reservation in
\npromotion for SCs and STs.\n<\/p>\n
After the Constitution (Seventy-Seventh
\nAmendment) Act, 1995, this court stepped in to balance
\nthe conflicting interests.  This was in the case of Virpal
\nSingh Chauhan1 in which it was held that a roster-point
\npromotee getting the benefit of accelerated promotion
\nwould not get consequential seniority.  As such,
\nconsequential seniority constituted additional benefit
\nand, therefore, his seniority will be governed by the panel
\nposition.  According to the Government, the decisions in
\nVirpal Singh1 and Ajit Singh (I)2  bringing in the
\nconcept of “catch-up” rule adversely affected the interests
\nof SCs and STs in the matter of seniority on promotion to
\nthe next higher grade.\n<\/p>\n
In the circumstances, clause (4A) of Article 16 was
\nonce again amended and the benefit of consequential
\nseniority was given in addition to accelerated promotion
\nto the roster-point promotees.  Suffice it to state that, the
\nConstitution (Eighty-Fifth Amendment) Act, 2001 was an
\nextension of clause (4A) of Article 16.  Therefore, the
\nConstitution (Seventy-Seventh Amendment) Act, 1995
\nhas to be read with the Constitution (Eighty-Fifth
\nAmendment) Act, 2001.\n<\/p>\n
We quote hereinbelow Statement of Objects and
\nReasons with the text of the Constitution (Eighty-Fifth
\nAmendment) Act, 2001:\n<\/p>\n
“THE CONSTITUTION (EIGHTY-FIFTH
\nAMENDMENT) ACT, 2001
\nSTATEMENT OF OBJECTS AND REASONS
\n\tThe Government servants belonging to
\nthe Scheduled Castes and the Scheduled
\nTribes had been enjoying the benefit of
\nconsequential seniority on their promotion on
\nthe basis of rule of reservation. The judgments
\nof the Supreme Court in the case of Union of
\nIndia v. Virpal Singh Chauhan<\/a> (1995) 6 SCC
\n684 and Ajit Singh Januja (No.1) v. State of
\nPunjab AIR<\/a> 1996 SC 1189, which led to the
\nissue of the O.M. dated 30th January, 1997,
\nhave adversely affected the interest of the
\nGovernment servants belonging to the
\nScheduled Castes and Scheduled Tribes
\ncategory in the matter of seniority on
\npromotion to the next higher grade.  This has
\nled to considerable anxiety and
\nrepresentations have also been received from
\nvarious quarters including Members of
\nParliament to protect the interest of the
\nGovernment servants belonging to Scheduled
\nCastes and Scheduled Tribes.\n<\/p>\n
\t2.\tThe Government has reviewed the
\nposition in the light of views received from
\nvarious quarters and in order to protect the
\ninterest of the Government servants belonging
\nto the Scheduled Castes and Scheduled Tribes,
\nit has been decided to negate the effect of O.M.
\ndated 30th January 1997 immediately.  Mere
\nwithdrawal of the O.M. dated 30th will not meet
\nthe desired purpose and review or revision of
\nseniority of the Government servants and
\ngrant of consequential benefits to such
\nGovernment servants will also be necessary.
\nThis will require amendment to Article 16(4A)
\nof the Constitution to provide for consequential
\nseniority in the case of promotion by virtue of
\nrule of reservation.  It is also necessary to give
\nretrospective effect to the proposed
\nconstitutional amendment to Article 16(4A)
\nwith effect from the date of coming into force of
\nArticle 16(4A) itself, that is, from the 17th day
\nof June, 1995.\n<\/p>\n
\t3.\tThe Bill seeks to achieve the
\naforesaid objects.\n<\/p>\n
THE CONSTITUTION (EIGHTY-FIFTH
\nAMENDMENT) ACT, 2001
\nThe following Act of Parliament received
\nthe assent of the President on the 4th January,
\n2002 and is published for general
\ninformation:-\n<\/p>\n
An Act further to amend the Constitution of India.\n<\/p>\n
         BE it enacted by Parliament in the Fifty-
\nsecond Year of the Republic of India as
\nfollows:-\n<\/p>\n
1.   Short  title  and commencement.- (1)
\nThis Act may  be  called  the Constitution
\n(Eighty-fifth Amendment) Act, 2001.\n<\/p>\n
\t     (2) It shall be deemed to have come into
\nforce on the 17th day of June 1995.\n<\/p>\n
2.   Amendment of Article 16.-\tIn Article
\n16 of the  Constitution,  in clause (4A), for the
\nwords “in matters of promotion to any class”,
\nthe words  “in matters of promotion, with
\nconsequential seniority, to  any class” shall be
\nsubstituted.”\n<\/p>\n
Reading the Constitution (Seventy-Seventh
\nAmendment) Act, 1995 with the Constitution (Eighty-
\nFifth Amendment) Act, 2001, clause (4A) of Article 16
\nnow reads as follows:\n<\/p>\n
“(4A) Nothing in this article shall prevent the
\nState from making any provision for
\nreservation in matters of promotion, with
\nconsequential seniority, to any class or classes
\nof posts in the services under the State in
\nfavour of the Scheduled Castes and the
\nScheduled Tribes which in the opinion of the
\nState are not adequately represented in the
\nservices under the State.”\n<\/p>\n
The question in the present case concerns the width
\nof the amending powers of the Parliament.  The key issue
\nis  whether any constitutional limitation mentioned in
\nArticle 16(4) and Article 335 stand obliterated by the
\nabove constitutional amendments.\n<\/p>\n
In R.K. Sabharwal8, the issue was concerning
\noperation of roster system.  This court stated that the
\nentire cadre strength should be taken into account to
\ndetermine whether reservation up to the required limit
\nhas been reached.  It was held that if the roster is
\nprepared on the basis of the cadre strength, that by itself
\nwould ensure that the reservation would remain within
\nthe ceiling-limit of 50%.  In substance, the court said
\nthat in the case of hundred-point roster each post gets
\nmarked for the category of candidate to be appointed
\nagainst it and any subsequent vacancy has to be filled by
\nthat category candidate alone (replacement theory).\n<\/p>\n
The question which remained in controversy,
\nhowever, was concerning the rule of ‘carry-forward’.  In
\nIndra Sawhney5 this court held that the number of
\nvacancies to be filled up on the basis of reservation in a
\nyear including the ‘carry-forward’ reservations should in
\nno case exceed the ceiling-limit of 50%.\n<\/p>\n
However, the Government found that total
\nreservation in a year for SCs, STs and OBCs combined
\ntogether had already reached 49=% and if the judgment
\nof this court in Indra Sawhney5 had to be applied it
\nbecame difficult to fill “backlog vacancies”.  According to
\nthe Government, in some cases the total of the current
\nand backlog vacancies was likely to exceed the ceiling-
\nlimit of 50%.  Therefore, the Government inserted clause
\n(4B) after clause (4A) in Article 16 vide the Constitution
\n(Eighty-First Amendment) Act,  2000.\n<\/p>\n
By clause (4B) the “carry-forward”\/”unfilled
\nvacancies” of a year is kept out and excluded from the
\noverall ceiling-limit of 50% reservation.  The clubbing of
\nthe backlog vacancies with the current vacancies stands
\nsegregated by the Constitution (Eighty-First Amendment)
\nAct, 2000.  Quoted hereinbelow is the Statement of
\nObjects and Reasons with the text of the Constitution
\n(Eighty-First Amendment) Act, 2000:\n<\/p>\n
“THE CONSTITUTION (EIGHTY FIRST
\nAMENDMENT) ACT, 2000<\/p>\n
(Assented on 9th June, 2000 and came into
\nforce 9.6.2000)<\/p>\n
STATEMENT OF OBJECTS AND REASONS
\nPrior to August 29, 1997, the vacancies
\nreserved for the Scheduled Castes and the
\nScheduled Tribes, which could not be filled up
\nby direct recruitment on account of non-
\navailability of the candidates belonging to the
\nScheduled Castes or the Scheduled Tribes,
\nwere treated as “Backlog Vacancies”. These
\nvacancies were treated as a distinct group and
\nwere excluded from the ceiling of fifty per cent
\nreservation. The Supreme Court of India in its
\njudgment in the Indra Sawhney versus Union
\nof India held that the number of vacancies to
\nbe filled up on the basis of reservations in a
\nyear including carried forward reservations
\nshould in no case exceed the limit of fifty per
\ncent. As total reservations in a year for the
\nScheduled Castes, the Scheduled Tribes and
\nthe other Backward Classes combined together
\nhad already reached forty-nine and a half per
\ncent and the total number of vacancies to be
\nfilled up in a year could not exceed fifty per
\ncent., it became difficult to fill the “Backlog
\nVacancies” and to hold Special Recruitment
\nDrives. Therefore, to implement the judgment
\nof the Supreme Court, an Official
\nMemorandum dated August 29, 1997 was
\nissued to provide that the fifty per cent limit
\nshall apply to current as well as “Backlog
\nVacancies” and for discontinuation of the
\nSpecial Recruitment Drive.\n<\/p>\n
Due to the adverse effect of the aforesaid
\norder dated August 29, 1997, various
\norganisations including the Members of
\nParliament represented to the central
\nGovernment for protecting the interest of the
\nScheduled castes and the Scheduled Tribes.
\nThe Government, after considering various
\nrepresentations, reviewed the position and has
\ndecided to make amendment in the
\nconstitution so that the unfilled vacancies of a
\nyear, which are reserved for being filled up in
\nthat year in accordance with any provision for
\nreservation made under clause (4) or clause
\n(4A) of Article 16 of the Constitution, shall be
\nconsidered as a separate class of vacancies to
\nbe filled up in any succeeding year or years
\nand such class of vacancies shall not be
\nconsidered together with the vacancies of the
\nyear in which they are being filled up for
\ndetermining the ceiling of fifty percent,
\nreservation on total number of vacancies of
\nthat year. This amendment in the Constitution
\nwould enable the State to restore the position
\nas was prevalent before august 29, 1997.
\nThe Bill seeks to achieve the aforesaid
\nobject.\n<\/p>\n
THE CONSTITUTION (EIGHTY-FIRST
\nAMENDMENT) ACT, 2000
\n(Assented on 9th June, 2000 and came into
\nforce 9.6.2000)
\nAn Act further to amend the Constitution of
\nIndia.\n<\/p>\n
BE it enacted by Parliament in the Fifty-
\nfirst Year of the Republic of India as follows:-\n<\/p>\n
1. Short title: This Act may be called the
\nConstitution (Eighty-first Amendment) Act,
\n2000.\n<\/p>\n
2. Amendment of Article 16: In Article
\n16 of the Constitution, after clause (4A), the
\nfollowing clause shall be inserted, namely: –
\n“(4B) Nothing in this Article shall prevent
\nthe State from considering any unfilled
\nvacancies of a year which are reserved for
\nbeing filled up in that year in accordance with
\nany provision for reservation made under
\nclause (4) or clause (4A) as a separate class of
\nvacancies to be filled up in any succeeding
\nyear or years and such class of vacancies shall
\nnot be considered together with the vacancies
\nof the year in which they are being filled up for
\ndetermining the ceiling of fifty per cent
\nreservation on total number of vacancies of
\nthat year.”\n<\/p>\n
The Constitution (Eighty-First Amendment) Act,
\n2000 gives, in substance, legislative assent to the
\njudgment of this Court in R.K. Sabharwal8.   Once it is
\nheld that each point in the roster indicates a post which
\non falling vacant has to be filled by the particular
\ncategory of candidate to be appointed against it and any
\nsubsequent vacancy has to be filled by that category
\ncandidate alone then the question of clubbing the
\nunfilled vacancies with current vacancies do not arise.
\nTherefore, in effect, Article 16(4B) grants legislative
\nassent to the judgment in R.K. Sabharwal8.  If it is
\nwithin the power of the State to make reservation then
\nwhether it is made in one selection or deferred selections,
\nis only a convenient method of implementation as long as
\nit is post based, subject to replacement theory and within
\nthe limitations indicated hereinafter.\n<\/p>\n
As stated above, clause (4A) of Article 16 is carved
\nout of clause (4) of Article 16.  Clause (4A) provides
\nbenefit of reservation in promotion only to SCs and STs.
\nIn the case of S. Vinod Kumar and another v. Union of
\nIndia and others  this court held that relaxation of
\nqualifying marks and standards of evaluation in matters
\nof reservation in promotion was not permissible under
\nArticle 16(4) in view of Article 335 of the Constitution.
\nThis was also the view in Indra Sawhney5.\n<\/p>\n
By the Constitution (Eighty-Second Amendment)
\nAct, 2000, a proviso was inserted at the end of Article
\n335 of the Constitution which reads as under:
\n“Provided that nothing in this article shall
\nprevent in making of any provision in favour of
\nthe members of the Scheduled Castes and the
\nScheduled Tribes for relaxation in qualifying
\nmarks in any examination or lowering the
\nstandards of evaluation, for reservation in
\nmatters of promotion to any class or classes of
\nservices or posts in connection with the affairs
\nof the Union or of a State.”\n<\/p>\n
This proviso was added following the benefit of
\nreservation in promotion conferred upon SCs and STs
\nalone.  This proviso was inserted keeping in mind the
\njudgment of this court in Vinod Kumar21  which took the
\nview that relaxation in matters of reservation in
\npromotion was not permissible under Article 16(4) in view
\nof the command contained in Article 335.  Once a
\nseparate category is carved out of clause (4) of Article 16
\nthen that category is being given relaxation in matters of
\nreservation in promotion.  The proviso is confined to SCs
\nand STs alone.  The said proviso is compatible with the
\nscheme of Article 16(4A).\n<\/p>\n
INTRODUCTION OF “TIME” FACTOR IN VIEW OF
\nARTICLE 16(4B):\n<\/p>\n
As stated above, Article 16(4B) lifts the 50% cap on
\ncarry-over vacancies (backlog vacancies).  The ceiling-
\nlimit of 50% on current vacancies continues to remain.
\nIn working-out the carry-forward rule, two factors are
\nrequired to be kept in mind, namely, unfilled vacancies
\nand the time factor.  This position needs to be explained.
\nOn one hand of the spectrum, we have unfilled
\nvacancies; on the other hand, we have a time-spread over
\nnumber of years over which unfilled vacancies are sought
\nto be carried-over.  These two are alternating factors and,
\ntherefore, if the ceiling-limit on the carry-over of unfilled
\nvacancies is removed, the other alternative time-factor
\ncomes in and in that event, the time-scale has to be
\nimposed in the interest of efficiency in administration as
\nmandated by Article 335.  If the time-scale is not kept
\nthen posts will continue to remain vacant for years,
\nwhich would be detrimental to the administration.
\nTherefore, in each case, the appropriate Government will
\nnow have to introduce the time-cap depending upon the
\nfact-situation. \tWhat is stated hereinabove is borne out
\nby Service Rules in some of the States where the carry-
\nover rule does not extend beyond three years.\n<\/p>\n
WHETHER IMPUGNED CONSTITUTIONAL
\nAMENDMENTS VIOLATES THE PRINCIPLE OF BASIC
\nSTRUCTURE:\n<\/p>\n
The key question which arises in the matter of the
\nchallenge to the constitutional validity of the impugned
\namending Acts is – whether the constitutional limitations
\non the amending power of the Parliament are obliterated
\nby the impugned amendments so as to violate the basic
\nstructure of the Constitution.\n<\/p>\n
In the matter of application of the principle of basic
\nstructure, twin tests have to be satisfied, namely, the
\n‘width test’ and the test of ‘identity’.  As stated
\nhereinabove, the concept of the ‘catch-up’ rule and
\n‘consequential seniority’ are not constitutional
\nrequirements.  They are not implicit in clauses (1) and (4)
\nof Article 16.  They are not constitutional limitations.
\nThey are concepts derived from service jurisprudence.
\nThey are not constitutional principles.  They are not
\naxioms like, secularism, federalism etc.  Obliteration of
\nthese concepts or insertion of these concepts do not
\nchange the equality code indicated by Articles 14, 15 and
\n16 of the Constitution.  Clause (1) of Article 16 cannot
\nprevent the State from taking cognizance of the
\ncompelling interests of backward classes in the society.
\nClauses (1) and (4) of Article 16 are restatements of the
\nprinciple of equality under Article 14.  Clause (4) of
\nArticle 16 refers to affirmative action by way of
\nreservation.  Clause (4) of Article 16, however, states that
\nthe appropriate Government is free to provide for
\nreservation in cases where it is satisfied on the basis of
\nquantifiable data that backward class is inadequately
\nrepresented in the services.  Therefore, in every case
\nwhere the State decides to provide for reservation there
\nmust exist two circumstances, namely, ‘backwardness’
\nand ‘inadequacy of representation’.  As stated above
\nequity, justice and efficiency are variable factors.  These
\nfactors are context-specific.  There is no fixed yardstick to
\nidentify and measure these three factors, it will depend
\non the facts and circumstances of each case.  These are
\nthe limitations on the mode of the exercise of power by
\nthe State.  None of these limitations have been removed
\nby the impugned amendments. If the concerned State
\nfails to identify and measure backwardness, inadequacy
\nand overall administrative efficiency then in that event
\nthe provision for reservation would be invalid. These
\namendments do not alter the structure of Articles 14, 15
\nand 16 (equity code).  The parameters mentioned in
\nArticle 16(4) are retained.  Clause (4A) is derived from
\nclause (4) of Article 16.  Clause (4A) is confined to SCs
\nand STs alone.  Therefore, the present case does not
\nchange the identity of the Constitution.  The word
\n“amendment” connotes change.  The question is
\nwhether the impugned amendments discard the original
\nconstitution.   It was vehemently urged on behalf of the
\npetitioners that the Statement of Objects and Reasons
\nindicate that the impugned amendments have been
\npromulgated by the Parliament to overrule the decision of
\nthis court.  We do not find any merit in this argument.
\nUnder Article 141 of the Constitution the pronouncement
\nof this court is the law of the land.  The judgments of this
\ncourt in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3
\nand Indra Sawhney5, were judgments delivered by this
\ncourt which enunciated the law of the land.  It is that law
\nwhich is sought to be changed by the impugned
\nconstitutional amendments.  The impugned
\nconstitutional amendments are enabling in nature.  They
\nleave it to the States to provide for reservation.  It is well-
\nsettled that the Parliament while enacting a law does not
\nprovide content to the “right”.  The content is provided by
\nthe judgments of the Supreme Court.  If the appropriate
\nGovernment enacts a law providing for reservation
\nwithout keeping in mind the parameters in Article 16(4)
\nand Article 335 then this court will certainly set aside
\nand strike down such legislation.  Applying the “width
\ntest”, we do not find obliteration of any of the
\nconstitutional limitations.  Applying the test of “identity”,
\nwe do not find any alteration in the existing structure of
\nthe equality code.  As stated above, none of the axioms
\nlike secularism, federalism etc. which are overarching
\nprinciples have been violated by the impugned
\nconstitutional amendments.  Equality has two facets
\n“formal equality” and “proportional equality”.
\nProportional equality is equality “in fact” whereas formal
\nequality is equality “in law”.  Formal equality exists in the
\nRule of Law.  In the case of proportional equality the
\nState is expected to take affirmative steps in favour of
\ndisadvantaged sections of the society within the
\nframework of liberal democracy.  Egalitarian equality is
\nproportional equality.\n<\/p>\n
The criterion for determining the validity of a law is
\nthe competence of the law-making authority.  The
\ncompetence of the law-making authority would depend
\non the ambit of the legislative power, and the limitations
\nimposed thereon as also the limitations on mode of
\nexercise of the power.  Though the amending power in
\nConstitution is in the nature of a constituent power and
\ndiffers in content from the legislative power, the
\nlimitations imposed on the constituent power may be
\nsubstantive as well as procedural.  Substantive
\nlimitations are those which restrict the field of the
\nexercise of the amending power.  Procedural limitations
\non the other hand are those which impose restrictions
\nwith regard to the mode of exercise of the amending
\npower.  Both these limitations touch and affect the
\nconstituent power itself, disregard of which invalidates its
\nexercise. [See: Kihoto Hollohan v. Zachillhu &
\nOthers<\/a> ].\n<\/p>\n
Applying the above tests to the present case, there
\nis no violation of the basic structure by any of the
\nimpugned amendments, including the Constitution
\n(Eighty-Second) Amendment Act, 2000.  The
\nconstitutional limitation under Article 335 is relaxed and
\nnot obliterated.  As stated above, be it reservation or
\nevaluation, excessiveness in either would result in
\nviolation of the constitutional mandate. This exercise,
\nhowever, will depend on facts of each case.  In our view,
\nthe field of exercise of the amending power is retained by
\nthe impugned amendments, as the impugned
\namendments have introduced merely enabling provisions
\nbecause, as stated above, merit, efficiency, backwardness
\nand inadequacy cannot be identified and measured in
\nvacuum.  Moreover, Article 16(4A) and Article 16(4B) fall
\nin the pattern of Article 16(4) and as long as the
\nparameters mentioned in those articles are complied-with
\nby the States, the provision of reservation cannot be
\nfaulted.  Articles 16(4A) and 16(4B) are classifications
\nwithin the principle of equality under Article 16(4).\n<\/p>\n
In conclusion, we may quote the words of
\nRubenfeld:\n<\/p>\n
“ignoring our commitments may make us
\nrationale but not free.  It cannot make us
\nmaintain our constitutional identity”.\n<\/p>\n
ROLE OF ENABLING PROVISIONS IN THE CONTEXT
\nOF ARTICLE 14:\n<\/p>\n
The gravamen of Article 14 is equality of treatment.
\nArticle 14 confers a personal right by enacting a
\nprohibition which is absolute.  By judicial decisions, the
\ndoctrine of classification is read into Article 14.  Equality
\nof treatment under Article 14 is an objective test.  It is
\nnot the test of intention.  Therefore, the basic principle
\nunderlying Article 14 is that the law must operate equally
\non all persons under like circumstances. [Emphasis
\nadded]. Every discretionary power is not necessarily
\ndiscriminatory.  According to the Constitutional Law of
\nIndia, by H.M. Seervai, 4th Edn.  546, equality is not
\nviolated by mere conferment of discretionary power.  It is
\nviolated by arbitrary exercise by those on whom it is
\nconferred.   This is the theory of ‘guided power’.  This
\ntheory is based on the assumption that in the event of
\narbitrary exercise by those on whom the power is
\nconferred would be corrected by the Courts.  This is the
\nbasic principle behind the enabling provisions which are
\nincorporated in Articles 16(4A) and 16(4B).  Enabling
\nprovisions are permissive in nature.  They are enacted to
\nbalance equality with positive discrimination.  The
\nconstitutional law is the law of evolving concepts.  Some
\nof them are generic others have to be identified and
\nvalued.  The enabling provisions deal with the concept,
\nwhich has to be identified and valued as in the case of
\naccess vis-`-vis efficiency which depends on the fact-
\nsituation only and not abstract principle of equality in
\nArticle 14 as spelt out in detail in Articles 15 and 16.
\nEquality before the law, guaranteed by the first part of
\nArticle 14, is a negative concept while the second part is
\na positive concept which is enough to validate equalizing
\nmeasures depending upon the fact-situation.\n<\/p>\n
It is important to bear in mind the nature of
\nconstitutional amendments.  They are curative by nature.
\nArticle 16(4) provides for reservation for backward classes
\nin cases of inadequate representation in public
\nemployment.  Article 16(4) is enacted as a remedy for the
\npast historical discriminations against a social class.
\nThe object in enacting the enabling provisions like
\nArticles 16(4), 16(4A) and 16(4B) is that the State is
\nempowered to identify and recognize the compelling
\ninterests.  If the State has quantifiable data to show
\nbackwardness and inadequacy then the State can make
\nreservations in promotions keeping in mind maintenance
\nof efficiency which is held to be a constitutional limitation
\non the discretion of the State in making reservation as
\nindicated by Article 335.  As stated above, the concepts of
\nefficiency, backwardness, inadequacy of representation
\nare required to be identified and measured.  That exercise
\ndepends on availability of data.  That exercise depends on
\nnumerous factors.  It is for this reason that enabling
\nprovisions are required to be made because each
\ncompeting claim seeks to achieve certain goals.  How best
\none should optimize these conflicting claims can only be
\ndone by the administration in the context of local
\nprevailing conditions in public employment.  This is
\namply demonstrated by the various decisions of this
\nCourt discussed hereinabove.  Therefore, there is a basic
\ndifference between ‘equality in law’ and ‘equality in fact’
\n(See:  ‘Affirmative Action’ by William Darity).  If Articles
\n16(4A) and 16(4B) flow from Article 16(4) and if Article
\n16(4) is an enabling provision then Articles 16(4A) and
\n16(4B) are also enabling provisions.  As long as the
\nboundaries mentioned in Article 16(4), namely,
\nbackwardness, inadequacy and efficiency of
\nadministration are retained in Articles 16(4A) and 16(4B)
\nas controlling factors, we cannot attribute constitutional
\ninvalidity to these enabling provisions.  However, when
\nthe State fails to identify and implement the controlling
\nfactors then excessiveness comes in, which is to be
\ndecided on the facts of each case.  In a given case, where
\nexcessiveness results in reverse discrimination, this
\nCourt has to examine individual cases and decide the
\nmatter in accordance with law.  This is the theory of
\n‘guided power’.  We may once again repeat that equality
\nis not violated by mere conferment of power but it is
\nbreached by arbitrary exercise of the power conferred.\n<\/p>\n
APPLICATION OF DOCTRINE OF “GUIDED POWER”
\nARTICLE 335 :\n<\/p>\n
\tApplying the above tests to the proviso to Article
\n335 inserted by the Constitution (Eighty-Second
\nAmendment) Act, 2000, we find that the said proviso has
\na nexus with Articles 16(4A) and 16(4B).  Efficiency in
\nadministration is held to be a constitutional limitation on
\nthe discretion vested in the State to provide for
\nreservation in public employment.  Under the proviso to
\nArticle 335, it is stated that nothing in Article 335 shall
\nprevent the State to relax qualifying marks or standards
\nof evaluation for reservation in promotion.  This proviso
\nis also confined only to members of SCs and STs.  This
\nproviso is also conferring discretionary power on the
\nState to relax qualifying marks or standards of
\nevaluation.  Therefore, the question before us is
\nwhether the State could be empowered to relax qualifying
\nmarks or standards for reservation in matters of
\npromotion.  In our view, even after insertion of this
\nproviso, the limitation of overall efficiency in Article 335
\nis not obliterated.   Reason is that “efficiency” is variable
\nfactor.  It is for the concerned State to decide in a given
\ncase, whether the overall efficiency of the system is
\naffected by such relaxation.  If the relaxation is so
\nexcessive that it ceases to be qualifying marks then
\ncertainly in a given case, as in the past, the State is free
\nnot to relax such standards.  In other cases, the State
\nmay evolve a mechanism under which efficiency, equity
\nand justice, all three variables, could be accommodated.
\nMoreover, Article 335 is to be read with Article 46 which
\nprovides that the State shall promote with special care
\nthe educational and economic interests of the weaker
\nsections of the people and in particular of the scheduled
\ncastes and scheduled tribes and shall protect them from
\nsocial injustice.  Therefore, where the State finds
\ncompelling interests of backwardness and inadequacy, it
\nmay relax the qualifying marks for SCs\/STs.  These
\ncompelling interests however have to be identified by
\nweighty and comparable data.\n<\/p>\n
In conclusion, we reiterate that the object behind
\nthe impugned Constitutional amendments is to confer
\ndiscretion on the State to make reservations for SCs\/STs
\nin promotions subject to the circumstances and the
\nconstitutional limitations indicated above.\n<\/p>\n
TESTS TO JUDGE THE VALIDITY OF THE IMPUGNED
\nSTATE ACTS:\n<\/p>\n
\tAs stated above, the boundaries of the width of the
\npower, namely, the ceiling-limit of 50% (the numerical
\nbenchmark), the principle of creamy layer, the compelling
\nreasons, namely, backwardness, inadequacy of
\nrepresentation and the overall administrative efficiency
\nare not obliterated by the impugned amendments.  At the
\nappropriate time, we have to consider the law as enacted
\nby various States providing for reservation if challenged.
\nAt that time we have to see whether limitations on the
\nexercise of power are violated.  The State is free to
\nexercise its discretion of providing for reservation subject
\nto limitation, namely, that there must exist compelling
\nreasons of backwardness, inadequacy of representation
\nin a class of post(s) keeping in mind the overall
\nadministrative efficiency.  It is made clear that even if the
\nState has reasons to make reservation, as stated above, if
\nthe impugned law violates any of the above substantive
\nlimits on the width of the power the same would be liable
\nto be set aside.\n<\/p>\n
Are the impugned amendments making an inroad
\ninto the balance struck by the judgment of this court
\nin the case of Indra Sawhney5:\n<\/p>\n
Petitioners submitted that equality has been
\nrecognized to be a basic feature of our Constitution.  To
\npreserve equality, a balance was struck in Indra
\nSawhney5 so as to ensure that the basic structure of
\nArticles 14, 15 and 16 remains intact and at the same
\ntime social upliftment, as envisaged by the Constitution,
\nstood achieved.  In order to balance and structure the
\nequality, a ceiling-limit on reservation was fixed at 50% of
\nthe cadre strength, reservation was confined to initial
\nrecruitment and was not extended to promotion.
\nPetitioners further submitted that in Indra Sawhney5,
\nvide para 829 this Court has held that reservation in
\npromotion was not sustainable in principle.  Accordingly,
\npetitioners submitted that the impugned constitutional
\namendments makes a serious inroad into the said
\nbalance struck in the case of Indra Sawhney5  which
\nprotected equality  as a basic feature of our Constitution.
\nWe quote hereinbelow paragraph 829 of the majority
\njudgment in the case of Indra Sawhney5  which reads as
\nfollows:\n<\/p>\n
“829. It is true that Rangachari15 has been
\nthe law for more than 30 years and that
\nattempts to re-open the issue were repelled in
\nAkhil Bharatiya Soshit Karamchari Sangh
\n(Railway) v. Union of India and others<\/a> . It
\nmay equally be true that on the basis of that
\ndecision, reservation may have been provided
\nin the matter of promotion in some of the
\nCentral and State services but we are
\nconvinced that the majority opinion in
\nRangachari15, to the extent it holds, that
\nArticle 16(4) permits reservation even in the
\nmatter of promotion, is not sustainable in
\nprinciple and ought to be departed from.
\nHowever, taking into consideration all the
\ncircumstances, we direct that our decision on
\nthis question shall operate only prospectively
\nand shall not affect promotions already made,
\nwhether on temporary, officiating or
\nregular\/permanent basis. It is further directed
\nthat wherever reservations are already
\nprovided in the matter of promotion – be it
\nCentral Services or State Services, or for that
\nmatter services under any corporation,
\nauthority or body falling under the definition of
\n‘State’ in Article 12-such reservations shall
\ncontinue in operation for a period of five years
\nfrom this day. Within this period, it would be
\nopen to the appropriate authorities to revise
\nmodify or re-issue the relevant Rules to ensure
\nthe achievement of the objective of Article
\n16(4). If any authority thinks that for ensuring
\nadequate representation of ‘backward class of
\ncitizens’ in any service, class or category, it is
\nnecessary to provide for direct recruitment
\ntherein, it shall be open to it do so.\n<\/p>\n
(emphasis supplied)<\/p>\n
What are the outer boundaries of the amendment
\nprocess in the context of Article 16 is the question which
\nneeds to be answered.  Equality is the basic feature of the
\nConstitution as held in Indra Sawhney5.  The content of
\nArticle 14 was originally interpreted by this Court as a
\nconcept of equality confined to the aspects of
\ndiscrimination and classification.  It is only after the
\nrulings of this Court in Maneka Gandhi11 and Ajay
\nHasia and others v. Khalid Mujib Sehravardi and
\nothers<\/a> , that the content of Article 14 got expanded
\nconceptually so as to comprehend the doctrine of
\npromissory estoppel, non arbitrariness, compliance with
\nrules of natural justice, eschewing irrationality etc.
\nThere is a difference between “formal equality” and
\n“egalitarian equality”.  At one point of time Article 16(4)
\nwas read by the Supreme Court as an exception to Article
\n16(1).  That controversy got settled in Indra Sawhney5.
\nThe words “nothing in this Article” in Article 16(4)
\nrepresents a legal device allowing positive discrimination
\nin favour of a class.  Therefore, Article 16(4) relates to “a
\nclass apart”.  Article 16(4), therefore, creates a field which
\nenables a State to provide for reservation provided there
\nexists backwardness of a class and inadequacy of
\nrepresentation in employment.  These are compelling
\nreasons.  They do not exist in Article 16(1).  It is only
\nwhen these reasons are satisfied that a State gets the
\npower to provide for reservation in matters of
\nemployment.  Therefore, Article 16(1) and Article 16(4)
\noperate in different fields.  Backwardness and
\ninadequacy of representation, therefore, operate as
\njustifications in the sense that the State gets the power to
\nmake reservation only if backwardness and inadequacy
\nof representation exist.  These factors are not obliterated
\nby the impugned amendments.\n<\/p>\n
The question still remains as to whether any of the
\nconstitutional limitations are obliterated by way of the
\nimpugned constitutional amendments.  By way of the
\nimpugned amendments Articles 16(4A) and 16(4B) have
\nbeen introduced.\n<\/p>\n
In Indra Sawhney5  the equality which was
\nprotected by the rule of 50%, was by balancing the rights
\nof the general category vis-`-vis the rights of BC en bloc
\nconsisting of OBC, SC and ST.  On the other hand, in the
\npresent case the question which we are required to
\nanswer is: whether within the egalitarian equality,
\nindicated by Article 16(4), the sub-classification in favour
\nof SC and ST is in principle constitutionally valid.  Article
\n16(4A) is inspired by the observations in Indra
\nSawhney5  vide para 802 and 803 in which this Court
\nhas unequivocally observed that in order to avoid
\nlumping of OBC, SC and ST which would make OBC take
\naway all the vacancies leaving SC and ST high and dry,
\nthe concerned State was entitled to categorise and sub-
\nclassify SCs and STs on one hand vis-`-vis OBC on the
\nother hand.  We quote hereinbelow paragraphs 802 and
\n803 of the judgment in Indra Sawhney5 :\n<\/p>\n
“802. We are of the opinion that there is no
\nconstitutional or legal bar to a State
\ncategorizing the backward classes as backward
\nand more backward. We are not saying that it
\nought to be done. We are concerned with the
\nquestion if a State makes such a
\ncategorisation, whether it would be invalid? We
\nthink not. Let us take the criteria evolved by
\nMandal Commission. Any caste, group or class
\nwhich scored eleven or more points was
\ntreated as a backward class. Now, it is not as if
\nall the several thousands of
\ncastes\/groups\/classes scored identical points.
\nThere may be some castes\/groups\/classes
\nwhich have scored points between 20 to 22
\nand there may be some who have scored
\npoints between eleven and thirteen. It cannot
\nreasonably be denied that there is no
\ndifference between these two sets of
\ncastes\/groups\/classes. To give an illustration,
\ntake two occupational groups viz., gold-smiths
\nand vaddes (traditional stone-cutters in
\nAndhra Pradesh) both included within Other
\nBackward Classes. None can deny that gold-
\nsmiths are far less backward than vaddes. If
\nboth of them are grouped together and
\nreservation provided, the inevitably result
\nwould be that gold-smiths would take away all
\nthe reserved posts leaving none for vaddes. In
\nsuch a situation, a State may think it
\nadvisable to make a categorisation even among
\nother backward classes so as to ensure that
\nthe more backward among the backward
\nclasses obtain the benefits intended for them.
\nWhere to draw the line and how to effect the
\nsub-classification is, however, a matter for the
\nCommission and the State – and so long as it
\nis reasonably done, the Court may not
\nintervene. In this connection, reference may be
\nmade to the categorisation obtaining in Andhra
\nPradesh. The Backward Classes have been
\ndivided into four categories. Group-A
\ncomprises  “Aboriginal tribes, Vimukta jatis,
\nNomadic and semi-nomadic tribes etc.”.
\nGroup-B comprises professional group like
\ntappers, weavers, carpenters, ironsmiths,
\ngoldsmiths, kamsalins etc. Group-C pertains
\nto “Scheduled Castes converts to Christianity
\nand their progeny”, while Group-D comprises
\nall other classes\/communities\/groups, which
\nare not included in groups A, B and C. The
\n25% vacancies reserved for backward classes
\nare sub-divided between them in proportion to
\ntheir respective population. This categorisation
\nwas justified in Balram [1972] 3 S.C.R. 247 at\n<\/p>\n
286. This is merely to show that even among
\nbackward classes, there can be a sub-\n<\/p>\n
classification on a reasonable basis.\n<\/p>\n
(emphasis supplied)<\/p>\n
“803. There is another way of looking at
\nthis issue. Article 16(4) recognises only one
\nclass viz., “backward class of citizens”. It does
\nnot speak separately of Scheduled Castes and
\nScheduled Tribes, as does Article 15(4). Even
\nso, it is beyond controversy that Scheduled
\nCastes and Scheduled Tribes are also included
\nin the expression “backward class of citizens”
\nand that separate reservations can be provided
\nin their favour. It is a well-accepted
\nphenomenon throughout the country. What is
\nthe logic behind it? It is that if Scheduled
\nTribes, Scheduled Castes and Other Backward
\nClasses are lumped together, O.B.Cs. will take
\naway all the vacancies leaving Scheduled
\nCastes and Scheduled Tribes high and dry.
\nThe same logic also warrants categorisation as
\nbetween more backward and backward. We do
\nnot mean to say – we may reiterate – that this
\nshould be done. We are only saying that if a
\nState chooses to do it, it is not impermissible
\nin law.”\n<\/p>\n
(emphasis supplied)<\/p>\n
Therefore, while judging the width and the ambit of
\nArticle 16(4A) we must ascertain whether such sub-
\nclassification is permissible under the Constitution.  The
\nsub-classification between “OBC” on one hand and “SC
\nand ST” on the other hand is held to be constitutionally
\npermissible in Indra Sawhney5.  In the said judgment it
\nhas been held that the State could make such sub-
\nclassification between SCs and STs vis-`-vis OBC.  It
\nrefers to sub-classification within the egalitarian equality
\n(vide paras 802 and 803).  Therefore, Article 16(4A)
\nfollows the line suggested by this Court in Indra
\nSawhney5 .  In Indra Sawhney5 on the other hand vide
\npara 829 this Court has struck a balance between formal
\nequality and egalitarian equality by laying down the rule
\nof 50% (ceiling-limit) for the entire BC as “a class apart”
\nvis-`-vis GC.  Therefore, in our view, equality as a
\nconcept is retained even under Article 16(4A) which is
\ncarved out of Article 16(4).\n<\/p>\n
As stated above, Article 14 enables classification.  A
\nclassification must be founded on intelligible differential
\nwhich distinguishes those that are grouped together from
\nothers.  The differential must have a rational relation to
\nthe object sought to be achieved by the law under
\nchallenge.  In Indra Sawhney5  an opinion was
\nexpressed by this Court vide para 802 that there is no
\nconstitutional or legal bar to making of classification.
\nArticle 16(4B) is also an enabling provision.  It seeks to
\nmake classification on the basis of the differential
\nbetween current vacancies and carry-forward vacancies.
\nIn the case of Article 16(4B) we must keep in mind that
\nfollowing the judgment in R.K. Sabharwal8 the concept
\nof post-based roster is introduced.  Consequently,
\nspecific slots for OBC, SC and ST as well as GC have to
\nbe maintained in the roster.  For want of candidate in a
\nparticular category the post may remain unfilled.
\nNonetheless, that slot has to be filled only by the
\nspecified category.  Therefore, by Article 16(4B) a
\nclassification is made between current vacancies on one
\nhand and carry-forward\/backlog vacancies on the other
\nhand.  Article 16(4B) is a direct consequence of the
\njudgment of this court in R.K. Sabharwal8 by which the
\nconcept of post-based roster is introduced.  Therefore, in
\nour view Articles 16(4A) and 16(4B) form a composite
\npart of the scheme envisaged.  Therefore, in our view
\nArticles 16(4), 16(4A) and 16(4B) together form part of the
\nsame scheme.  As stated above, Articles 16(4A) and
\n16(4B) are both inspired by observations of the Supreme
\nCourt in Indra Sawhney5 and R.K. Sabharwal8.  They
\nhave nexus with Articles 17 and 46 of the Constitution.
\nTherefore, we uphold the classification envisaged by
\nArticles 16(4A) and 16(4B).  The impugned constitutional
\namendments, therefore, do not obliterate equality.\n<\/p>\n
The test for judging the width of the power and the
\ntest for adjudicating the exercise of power by the
\nconcerned State are two different tests which warrant two
\ndifferent judicial approaches.  In the present case, as
\nstated above, we are required to test the width of the
\npower under the impugned amendments.  Therefore, we
\nhave to apply “the width test”.  In applying “the width
\ntest” we have to see whether the impugned amendments
\nobliterate the constitutional limitations mentioned in
\nArticle 16(4), namely, backwardness and inadequacy of
\nrepresentation.  As stated above, these limitations are not
\nobliterated by the impugned amendments.  However, the
\nquestion still remains whether the concerned State has
\nidentified and valued the circumstances justifying it to
\nmake reservation.  This question has to be decided case-
\nwise.  There are numerous petitions pending in this
\nCourt in which reservations made under State
\nenactments have been challenged as excessive.  The
\nextent of reservation has to be decided on facts of each
\ncase.  The judgment in Indra Sawhney5 does not deal
\nwith constitutional amendments.  In our present
\njudgment, we are upholding the validity of the
\nconstitutional amendments subject to the limitations.
\nTherefore, in each case the Court has got to be satisfied
\nthat the State has exercised its opinion in making
\nreservations in promotions for SCs and STs and for
\nwhich the concerned State will have to place before the
\nCourt the requisite quantifiable data in each case and
\nsatisfy the Court that such reservations became
\nnecessary on account of inadequacy of representation of
\nSCs\/ STs in a particular class or classes of posts without
\naffecting general efficiency of service as mandated under
\nArticle 335 of the Constitution.\n<\/p>\n
\tThe constitutional principle of equality is inherent
\nin the Rule of Law.  However, its reach is limited because
\nits primary concern is not with the content of the law but
\nwith its enforcement and application.  The Rule of Law is
\nsatisfied when laws are applied or enforced equally, that
\nis, evenhandedly, free of bias and without irrational
\ndistinction.  The concept of equality allows differential
\ntreatment but it prevents distinctions that are not
\nproperly justified.  Justification needs each case to be
\ndecided on case to case basis.\n<\/p>\n
Existence of power cannot be denied on the ground
\nthat it is likely to be abused.  As against this, it has been
\nheld vide para 650 of Kesavananda Bharati13 that
\nwhere the nature of the power granted by the
\nConstitution is in doubt then the Court has to take into
\naccount the consequences that might ensue by
\ninterpreting the same as an unlimited power.  However,
\nin the present case there is neither any dispute about the
\nexistence of the power nor is there any dispute about the
\nnature of the power of amendment.   The issue involved
\nin the present case is concerning the width of the power.
\nThe power to amend is an enumerated power in the
\nConstitution and, therefore, its limitations, if any, must
\nbe found in the Constitution itself.  The concept of
\nreservation in Article 16(4) is hedged by three
\nconstitutional requirements, namely, backwardness of a
\nclass, inadequacy of representation in public employment
\nof that class and overall efficiency of the administration.
\nThese requirements are not obliterated by the impugned
\nconstitutional amendments.  Reservation is not in issue.
\nWhat is in issue is the extent of reservation.  If the extent
\nof reservation is excessive then it makes an inroad into
\nthe principle of equality in Article 16(1).  Extent of
\nreservation, as stated above, will depend on the facts of
\neach case.  Backwardness and inadequacy of
\nrepresentation are compelling reasons for the State
\nGovernments to provide representation in public
\nemployment.  Therefore, if in a given case the court finds
\nexcessive reservation under the State enactment then
\nsuch an enactment would be liable to be struck down
\nsince it would amount to derogation of the above
\nconstitutional requirements.\n<\/p>\n
At this stage, one aspect needs to be mentioned.
\nSocial justice is concerned with the distribution of
\nbenefits and burdens.  The basis of distribution is the
\narea of conflict between rights, needs and means.  These
\nthree criteria can be put under two concepts of equality,
\nnamely, “formal equality” and “proportional equality”.
\nFormal equality means that law treats everyone equal.
\nConcept of egalitarian equality is the concept of
\nproportional equality and it expects the States to take
\naffirmative action in favour of disadvantaged sections of
\nsociety within the framework of democratic polity.  In
\nIndra Sawhney5 all the judges except Pandian, J. held
\nthat the “means test” should be adopted to exclude the
\ncreamy layer from the protected group earmarked for
\nreservation.  In Indra Sawhney5 this Court has,
\ntherefore, accepted caste as determinant of
\nbackwardness and yet it has struck a balance with the
\nprinciple of secularism which is the basic feature of the
\nConstitution by bringing in the concept of creamy layer.
\nViews have often been expressed in this Court that caste
\nshould not be the determinant of backwardness and that
\nthe economic criteria alone should be the determinant of
\nbackwardness.  As stated above, we are bound by the
\ndecision in Indra Sawhney5.  The question as to the
\n“determinant” of backwardness cannot be gone into by us
\nin view of the binding decision.  In addition to the above
\nrequirements this Court in Indra Sawhney5 has evolved
\nnumerical benckmarks like ceiling-limit of 50% based
\non post-specific roster coupled with the concept of
\nreplacement to provide immunity against the charge
\nof discrimination.\n<\/p>\n
CONCLUSION:\n<\/p>\n
\tThe impugned constitutional amendments by which
\nArticles 16(4A) and 16(4B) have been inserted flow from
\nArticle 16(4).  They do not alter the structure of Article
\n16(4).  They retain the controlling factors or the
\ncompelling reasons, namely, backwardness and
\ninadequacy of representation which enables the States to
\nprovide for reservation keeping in mind the overall
\nefficiency of the State administration under Article 335.
\nThese impugned amendments are confined only to SCs
\nand STs.  They do not obliterate any of the constitutional
\nrequirements, namely, ceiling-limit of 50% (quantitative
\nlimitation), the concept of creamy layer (qualitative
\nexclusion), the sub-classification between OBC on one
\nhand and SCs and STs on the other hand as held in
\nIndra Sawhney5 , the concept of post-based Roster
\nwith in-built concept of replacement as held in R.K.
\nSabharwal8.\n<\/p>\n
\tWe reiterate that the ceiling-limit of 50%, the
\nconcept of creamy layer and the compelling reasons,
\nnamely, backwardness, inadequacy of representation
\nand overall administrative efficiency are all
\nconstitutional requirements without which the
\nstructure of equality of opportunity in Article 16
\nwould collapse.\n<\/p>\n
However, in this case, as stated, the main issue
\nconcerns the “extent of reservation”.  In this regard
\nthe concerned State will have to show in each case
\nthe existence of the compelling reasons, namely,
\nbackwardness, inadequacy of representation and
\noverall administrative efficiency before making
\nprovision for reservation.  As stated above, the
\nimpugned provision is an enabling provision.  The
\nState is not bound to make reservation for SC\/ST in
\nmatter of promotions.  However if they wish to
\nexercise their discretion and make such provision,
\nthe State has to collect quantifiable data showing
\nbackwardness of the class and inadequacy of
\nrepresentation of that class in public employment in
\naddition to compliance of Article 335.  It is made
\nclear that even if the State has compelling reasons, as
\nstated above, the State will have to see that its
\nreservation provision does not lead to excessiveness
\nso as to breach the ceiling-limit of 50% or obliterate
\nthe creamy layer or extend the reservation
\nindefinitely.\n<\/p>\n
Subject to above, we uphold the constitutional
\nvalidity of the Constitution (Seventy-Seventh
\nAmendment) Act, 1995, the Constitution (Eighty-First
\nAmendment) Act, 2000, the Constitution (Eighty-Second
\nAmendment) Act, 2000 and the Constitution (Eighty-Fifth
\nAmendment) Act, 2001.\n<\/p>\n
\tWe have not examined the validity of individual
\nenactments of appropriate States and that question will
\nbe gone into in individual writ petition by the appropriate
\nbench in accordance with law laid down by us in the
\npresent case.\n<\/p>\n
\tReference is answered accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006 Author: S.H.Kapadia Bench: Y.K.Sabharwal Cji, K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker, P.K. Balasubramanyan 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 & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-67211","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM.Nagaraj & Others vs Union Of India & Others on 19 October, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-nagaraj-others-vs-union-of-india-others-on-19-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006 - 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