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The petitioners invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. The petitioners argued that:
- Parliament has appropriated the judicial power to itself and has acted as an Appellate Authority by reversing the judicial pronouncements of the Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside.
- The amendment also sought to alter the fundamental right of equality which is part of the basic structure of the Constitution. The equality in the context of Article 16(1) connotes “accelerated promotion” so as not to include consequential seniority.
- By attaching consequential seniority to the accelerated promotion, the impugned amendment violated equality in Article 14 read with Article 16(1).
- By providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency.
In Indra Sawhney [1992 Supp (3) SCC 217] decided on 16-11-1992, the Supreme Court had held that under Article 16(4), reservation to the Backward Classes is permissible only at the time of initial recruitment and not in promotion. According to the petitioners contrary to the said judgment, Parliament enacted the Constitution (Seventy-seventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. - The Constitution (Seventy-seventh Amendment) Act, 1995 was also challenged by some of the petitioners. According to them if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would have retired from service. The petitioners say that the consequences of the impugned 85th Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre. The Constitution (Seventy-seventh Amendment) Act, 1995: Clause (4A) to article 16 was inserted: “(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
The Constitution (Eighty-first Amendment) Act, 2000: Clause (4B) to article 16 was inserted:
“(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision of reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
The Constitution (Eighty-second Amendment) Act, 2000: A proviso was inserted at the end of Article 335 of the Constitution which reads:
“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”
The Constitution (Eighty-fifth Amendment) Act, 2001:
“(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
Broad issues in Writ Petition No. 527 of 2002:
The broad issues that arise for determination in this case related to: 1. Validity; 2. Interpretation; 3. Implementation, of (i) the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the Constitution (Eighty-second Amendment) Act, 2000, and the Constitution (Eighty-fifth Amendment) Act, 2001; and, (ii) action taken in pursuance thereof which seek to reverse decisions of the Supreme Court in matters relating to promotion and their application with retrospective effect.
S.H. KAPADIA, J. – The width and amplitude of the right to equal opportunity in public employment, in the context of reservation, broadly falls for consideration in these writ petitions under Article 32 of the Constitution.
Standards of judicial review of constitutional amendments
22. The question which arises before us is regarding the nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine has essentially
developed from the German Constitution. This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings.
25. For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, is the second step to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e., to form a part of the basic structure. The basic structure concept accordingly limits the amending power of Parliament. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending power of Parliament i.e., to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.
26. As stated above, the doctrine of basic structure has essentially emanated from the German Constitution. Therefore, we may have a look at common constitutional provisions under German law which deal with rights, such as, freedom of press or religion which are not mere values, they are justiciable and capable of interpretation. The values impose a positive duty on the State to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. They are to be informed. Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice, etc., are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. For example, under the German constitutional law, human dignity under Article 1 is inviolable. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give (sic be given). It simply is. Every human being has dignity by virtue of his existence. The constitutional courts in Germany, therefore, see human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of basic structure stands evolved under the German Constitution and by interpretation given to the concept by the constitutional courts.
27. Under the Indian Constitution, the word “federalism” does not exist in the Preamble. However, its principle (not in the strict sense as in USA) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the Seventh Schedule to the Constitution.
28. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. In Kesavananda Bharati v. State of Kerala it has been observed that “one cannot legally use the Constitution to destroy itself”. It is further observed “the personality of the Constitution must remain unchanged”. Therefore, this Court in Kesavananda Bharati while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word
“amendment” postulates that the old Constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. Secularism in India has acted as a balance between socio- economic reforms which limits religious options and communal developments. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.
29. Lastly, constitutionalism is about limits and aspirations. According to Justice Brennan, interpretation of the Constitution as a written text is concerned with aspirations and fundamental principles. In his article titled “Challenge to the Living Constitution” by Herman Belz, the author says that the Constitution embodies aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial decision-making. The tradition of the written constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine of unwritten living Constitution.
30. Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.
Is equality a part of the fundamental features or the basic structure of the Constitution?
31. At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things, justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and the State Legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and the State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by the courts of justice. Judicial review of legislation enacted by Parliament within limited powers under the controlled Constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our Constitution because it is necessary to give effect to the distribution of legislative power between Parliament and the State Legislatures, and is also necessary to give practicable
content to the objectives of the Constitution embodied in Part III and in several other articles of our Constitution.
32. In Minerva Mills Chandrachud, C.J., speaking for the majority, observed that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation, Article 32 will be rendered nugatory.
33. From these observations, which are binding on us, the principle which emerges is that “equality” is the essence of democracy and, accordingly a basic feature of the Constitution. This test is very important. Free and fair elections per se may not constitute a basic feature of the Constitution. On their own, they do not constitute basic feature. However, free and fair election as a part of representative democracy is an essential feature as held in Indira Nehru Gandhi v. Raj Narain (Election case). Similarly, federalism is an important principle of constitutional law. The word “federalism” is not in the Preamble. However, as stated above, its features are delineated over various provisions of the Constitution like Articles 245, 246 and 301 and the three lists in the Seventh Schedule to the Constitution.
34. However, there is a difference between formal equality and egalitarian equality which will be discussed later on.
35. The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.
Working test in the matter of application of the doctrine of basic structure:
36. Once it is held that fundamental rights could be abridged but not destroyed and once it is further held that several features of the Constitution cannot be destroyed, the concept of “express limitation” on the amending power loses its force for a precise formulation of the basic features of the Constitution and for the courts to pronounce on the validity of a constitutional amendment.
37. A working test has been evolved by Chandrachud, J. (as he then was) in the Election case in which the learned Judge has rightly enunciated, with respect, that:
“For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance.”
38. Applying the above test to the facts of the present case, it is relevant to note that the concept of “equality” like the concept of “representative democracy” or “secularism” is delineated over various articles. Basically, Part III of the Constitution consists of the equality
code, the freedom code and the right to move the courts. It is true that equality has several facets. However, each case has to be seen in the context of the placement of an article which embodies the foundational value of equality.
Concept of reservation
39. Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.
40. Our Constitution has, however, incorporated the word “reservation” in Article 16(4) which word is not there in Article 15(4). Therefore, the word “reservation” as a subject of Article 16(4) is different from the word “reservation” as a general concept.
41. Applying the above test, we have to consider the word “reservation” in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election case.
Justice, social, economic and political is provided not only in Part IV (directive principles) but also in Part III (fundamental rights)
42. India is constituted into a sovereign, democratic republic to secure to all its citizens, fraternity assuring the dignity of the individual and the unity of the nation. The sovereign, democratic republic exists to promote fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because the objectives of the State can be realised only in and through the individuals. Therefore, rights conferred on citizens and non- citizens are not merely individual or personal rights. They have a large social and political content, because the objectives of the Constitution cannot be otherwise realised. Fundamental rights represent the claims of the individual and the restrictions thereon are the claims of the society. Article 38 in Part IV is the only article which refers to justice, social, economic and political. However, the concept of justice is not limited only to directive principles. There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as “untouchable” and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part III also provide for political and social justice.
43. This discussion is important because in the present case, we are concerned with reservation. Balancing a fundamental right to property vis-à-vis Articles 39(b) and 39(c) as in Kesavananda Bharati and Minerva Mills cannot be equated with the facts of the present case. In the present case, we are concerned with the right of an individual to equal opportunity on one hand and preferential treatment to an individual belonging to a Backward Class in order to bring about an equal level-playing field in the matter of public employment.
Therefore, in the present case, we are concerned with conflicting claims within the concept of “justice, social, economic and political”, which concept as stated above exists both in Part III and Part IV of the Constitution. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of “public employment” unlike the right to property is socialistic and, therefore, falls within the Preamble to the Constitution which states that WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. Similarly, the Preamble mentions the objective to be achieved, namely, justice, social, economic and political. Therefore, the concept of “equality of opportunity” in public employment concerns an individual, whether that individual belongs to the general category or Backward Class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimisation of these conflicting interests and claims.
Equity, justice and merit
44. The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward Classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution.
Reservation and affirmative action
47. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalising results with respect to various groups. Both the conceptions constitute “equality of opportunity”.
48. It is the equality “in fact” which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti- discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.
49. Reservation is necessary for transcending caste and not for perpetuating it.
Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article 16(4-A) is enabling. The discretion of the State is, however, subject to the existence of “backwardness” and “inadequacy of representation” in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4-A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise.
Extent of reservation
53. The question of extent of reservation involves two questions:
1. Whether there is any upper-limit beyond which reservation is not permissible?
2. Whether there is any limit to which seats can be reserved in a particular year; in other words the issue is whether the percentage limit applies only on the total number of posts in the cadre or to the percentage of posts advertised every year as well?
54. The question of extent of reservation is closely linked to the issue whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1). If Article 16(4) is an exception to Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article 16(1). But if Article 16(4) is taken as an application of Article 16(1) then the two articles have to be harmonised keeping in view the interests of certain sections of the society as against the interest of the individual citizens of the society.
Maximum limit of reservation possible
55. Word of caution against excess reservation was first pointed out in G.M., S. Rly. v. Rangachari. Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of Backward Classes and claims of other employees as well as the requirement of efficiency of administration.
56. However, the question of extent of reservation was not directly involved in Rangachari. It was directly involved in M.R. Balaji v. State of Mysore with reference to Article 15(4). In this case, 60% reservation under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case.
57. But in State of Kerala v. N.M. Thomas Krishna Iyer, J. expressed his concurrence with the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4). If a State has 80% population which is backward then it would be meaningless
to say that reservation should not cross 50%.
58. However, in Indra Sawhney the majority held that the rule of 50% laid down in Balaji was a binding rule and not a mere rule of prudence.
59. Giving the judgment of the Court in Indra Sawhney, Jeevan Reddy, J. stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of Backward Classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14. (emphasis added)
Are reserved category candidates free to contest for vacancies in general category?
60. In Indra Sawhney, Jeevan Reddy, J. noted that reservation under Article 16(4) does not operate on communal ground. Therefore, if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal, the Supreme Court held that while general category candidates are not entitled to fill the reserved posts, reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of Backward Class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class.
Number of vacancies that could be reserved
61. Wanchoo, J. who had given dissenting judgment in Rangachari observed that the requirement of Article 16(4) is only to give adequate representation and since the Constitution-makers intended it to be a short-term measure it may happen that all the posts in a year may be reserved. He opined that reserving a fixed percentage of seats every year may take a long time before inadequacy of representation is overcome. Therefore, the Government can decide to reserve the posts. After having reserved a fixed number of posts the Government may decide that till those posts are filled up by the Backward Classes all appointments will go to them if they fulfil the minimum qualification. Once this number is reached the Government is deprived of its power to make further reservations. Thus, according to Wanchoo, J. the adequacy of representation has to be judged considering the total number of posts even if in a single year or for few years all seats are reserved, provided the scheme is short-term.
62. The idea given by Wanchoo, J. in Rangachari did not work out in practice because most of the time even for limited number of reservations, every year qualified Backward Class candidates were not available. This compelled the Government to adopt carry-forward rule. This carry-forward rule came in conflict with the Balaji ruling. In cases where the availability of reserved category candidates is less than the vacancies set aside for them, the Government has to adopt either of the two alternatives:
(1) the State may provide for carrying over the unfilled vacancies for the next year or next to the next year, or
(2) instead of providing for carrying over the unfilled vacancies to the coming years, it may provide for filling of the vacancies from the general quota candidates and carry forward the unfilled posts by Backward Classes to the next year quota.
63. But the problem arises when in a particular year due to carry-forward rule more than 50% of vacancies are reserved. In T. Devadasan v. Union of India, this was the issue. The Union Public Service Commission had provided for 171⁄2% reservation for the Scheduled Castes and Scheduled Tribes. In case of non-availability of reserved category candidates in a particular year the posts had to be filled by general category candidates and the number of such vacancies were to be carried forward to be filled by the reserved category candidates next year. Due to this, the rule of carry-forward reservation in a particular year amounted to 65% of the total vacancies. The petitioner contended that reservation was excessive which destroyed his right under Article 16(1) and Article 14. The Court on the basis of decision in Balaji held the reservation excessive and, therefore, unconstitutional. It further stated that the guarantee of equality under Article 16(1) is to each individual citizen and to appointments to any office under the State. It means that on every occasion for recruitment the State should see that all citizens are treated equally. In order to effectuate the guarantee, each year of recruitment will have to be considered by itself.
64. Thus, the majority differed from Wanchoo, J’s. decision in Rangachari holding that a cent per cent reservation in a particular year would be unconstitutional in view of Balaji decision.
65. Subba Rao, J. gave a dissenting judgment. He relied on Wanchoo, J.’s judgment in Rangachari and held that Article 16(4) provides for adequate representation taking into consideration the entire cadre strength. According to him, if it is within the power of the State to make reservations then reservation made in one selection or spread over many selections is only a convenient method of implementing the provision of reservation. Unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the said Castes and Tribes, it is not possible to contend that the provision is not one of reservation but amounts to an extinction of the fundamental right.
66. In Thomas under the Kerala State and Subordinate Services Rules, 1950 certain relaxation was given to the Scheduled Caste and Scheduled Tribe candidates passing departmental tests for promotions. For promotion to Upper Division Clerks from Lower Division Clerks the criterion of seniority-cum-merit was adopted. Due to relaxation in merit qualification in 1972, 34 out of 51 vacancies in Upper Division Clerks went to the Scheduled Caste candidates. It appeared that the 34 members of SC/ST had become senior-most in the lower grade. The High Court quashed the promotions on the ground that it was excessive. The Supreme Court upheld the promotions. Ray, C.J. held that the promotions made in services as a whole were nowhere near 50% of the total number of the posts. Thus, the majority differed from the ruling of the Court in Devadasan basically on the ground that the strength of the cadre as a whole should be taken into account. Khanna, J. in his dissenting opinion made a reference to it on the ground that such excessive concession would impair efficiency in administration.
67. In Indra Sawhney the majority held that 50% rule should be applied to each year otherwise it may happen that (if entire cadre strength is taken as a unit) the open competition channel gets choked for some years and meanwhile the general category candidates may become age-barred and ineligible. The equality of opportunity under Article 16(1) is for each individual citizen while special provision under Article 16(4) is for socially disadvantaged
classes. Both should be balanced and neither should be allowed to eclipse the other.
68. However, in R.K. Sabharwal which was a case of promotion and the issue in this case was operation of roster system, the Court stated that the entire cadre strength should be taken into account to determine whether reservation up to the required limit had been reached. With regard to ruling in Indra Sawhney case that reservation in a year should not go beyond 50% the Court held that it applied to initial appointments. The operation of a roster, for filling the cadre strength, by itself ensures that the reservation remains within the 50% limit. In substance the Court said that presuming that 100% of the vacancies have been filled, each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate. The Court was concerned with the possibility that reservation in the entire cadre may exceed 50% limit if every year half of the seats are reserved. The Constitution (Eighty-first Amendment) Act, 2000 added Article 16(4-B) which in substance gives legislative assent to the judgment in R.K. Sabharwal.
Catch-up rule – Is the said rule a constitutional requirement under Article 16(4)?
69. One of the contentions advanced on behalf of the petitioners is that the impugned amendments, particularly, the Constitution (Seventy-seventh Amendment) and (Eighty-fifth Amendment) Acts, obliterate all constitutional limitations on the amending power of Parliament. That the width of these impugned amendments is so wide that it violates the basic structure of equality enshrined in the Constitution.
70. The key issue which arises for determination is – whether the above “catch-up” rule and the concept of “consequential seniority” are constitutional requirements of Article 16 and of equality, so as to be beyond the constitutional amendatory process. In other words, whether obliteration of the “catch-up” rule or insertion of the concept of “consequential seniority code”, would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16.
71. The concept of “catch-up” rule appears for the first time in Virpal Singh Chauhan. In the category of Guards in the Railways, there were four categories, namely, Grade C, Grade B, Grade A and Grade A Special. The initial recruitment was made to Grade C. Promotion from one grade to another was by seniority-cum-suitability. The rule of reservation was applied not only at the initial stage of appointment to Grade C but at every stage of promotion. The percentage reserved for SCs was 15% and for STs, it was 7.5%. To give effect to the rule of reservation, a forty-point roster was prepared in which certain points were reserved for SCs and STs respectively. Subsequently, a hundred-point roster was prepared reflecting the same percentages. In 1986, general candidates and members of SCs/STs came within Grade A in Northern Railway. On 1-8-1986, the Chief Controller promoted certain general candidates on ad hoc basis to Grade A Special. Within three months, they were reverted and SCs and STs were promoted. This action was challenged by general candidates as arbitrary and unconstitutional before the Tribunal. The general candidates asked for three reliefs, namely, (a) to restrain the Railways from filling up the posts in higher grades in the category of Guards by applying the rule of reservation; (b) to restrain the Railways from acting upon the seniority list prepared by them; and (c) to declare that the general candidates were alone entitled to be promoted and confirmed in Grade A Special on the strength of their seniority earlier to the reserved category employees. The contention of the general candidates was that once the quota prescribed for the reserved group is satisfied, the forty-point roster
cannot be applied because that roster was prepared to give effect to the rule of reservation. It was contended by the general candidates that accelerated promotion may be given but the Railways cannot give consequential seniority to reserved category candidates in the promoted category. In this connection, the general category candidates relied upon decisions of the Allahabad and Madhya Pradesh High Courts. It was contended by the general candidates that giving consequential seniority in addition to accelerated promotion constituted conferment of double benefit upon the members of the reserved category and, therefore, violated the rule of equality in Article 16(1). It was further urged that accelerated promotion- cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration would be occupied entirely by members of reserved categories. This was opposed by the reserved category candidates who submitted that for the purposes of promotion to Grade A Special, the seniority list pertaining to Grade A alone should be followed that, the administration should not follow the seniority lists maintained by the administration pertaining to Grade C as urged by the general candidates and since SCs and STs were senior to the general candidates in Grade A, the seniority in Grade A alone should apply. In short, the general candidates relied upon the “catch-up” rule, which was opposed by the members of SCs/STs. They also relied upon the judgment of this Court in R.K. Sabharwal.
72. This Court gave the following reasons for upholding the decision of the Tribunal. Firstly, it was held that a rule of reservation as such does not violate Article 16(4). Secondly, this Court opined that there is no uniform method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regard to the facts and requirements of each case. It is open to the State, if so advised, to say that while the rule of reservation shall be applied, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over seniors in the feeder category and that it is open to the State to interpret the “catch-up” rule in the service conditions governing the promotions. Thirdly, this Court did not agree with the view expressed by the Tribunal that a harmonious reading of clauses (1) to (4) of Article 16 should mean that a reserved category candidate promoted earlier than his senior general category candidates in the feeder grade shall necessarily be junior in the promoted category to such general category. This Court categorically ruled, that such catch-up principle cannot be said to be implicit in clauses (1) to (4) of Article 16. Lastly, this Court found on facts that for 11 vacancies, 33 candidates were considered and they were all SC/ST candidates. Not a single candidate belonged to general category. It was argued on behalf of the general candidates that all top grades stood occupied exclusively by the reserved category members, which violated the rule of equality underlying Articles 16(1), 16(4) and 14. This Court opined that the above situation arose on account of faulty implementation of the rule of reservation, as the Railways did not observe the principle that reservation must be in relation to “posts” and not “vacancies” and also for applying the roster even after the attainment of the requisite percentage reserved for SCs/STs. In other words, this Court based its decision only on the faulty implementation of the rule by the Railways which the Court ordered to be rectified.
73. The point which we need to emphasise is that the Court has categorically ruled in Virpal Singh Chauhan that the “catch-up” rule is not implicit in clauses (1) to (4) of Article 16. Hence, the said rule cannot bind the amending power of Parliament. It is not beyond the amending power of Parliament.
74. In Ajit Singh (I) the controversy which arose for determination was – whether after the members of SCs/STs for whom specific percentage of posts stood reserved having been promoted against those posts, was it open to the administration to grant consequential seniority against general category posts in the higher grade. The appellant took a clear stand that he had no objection if members of SCs/STs get accelerated promotions. The appellant objected only to the grant of consequential seniority. Relying on the circulars issued by the administration dated 19-7-1969 and 8-9-1969, the High Court held that the members of SCs/STs can be promoted against general category posts on the basis of seniority. This was challenged in appeal before this Court. The High Court’s ruling was set aside by this Court on the ground that if the “catch-up” rule is not applied then the equality principle embodied in Article 16(1) would stand violated. This Court observed that the “catch-up” rule was a process adopted while making appointments through direct recruitment or promotion because merit cannot be ignored. This Court held that for attracting meritorious candidates a balance has to be struck while making provisions for reservation. It was held that the promotion is an incident of service. It was observed that seniority is one of the important factors in making promotion. It was held that the right to equality is to be preserved by preventing reverse discrimination. Further, it was held that the equality principle requires exclusion of extra weightage of roster-point promotion to a reserved category candidate. (emphasis supplied) This Court opined that without “catch-up” rule, giving weightage to earlier promotion secured by roster-point promotee would result in reverse discrimination and would violate equality under Articles 14, 15 and 16. Accordingly, this Court took the view that the seniority between the reserved category candidates and general candidates in the promoted category shall be governed by their panel position. Therefore, this Court set aside the factor of extra weightage of earlier promotion to a reserved category candidate as violative of Articles 14 and 16(1) of the Constitution.
75. Therefore, in Virpal Singh Chauhan this Court has said that the “catch-up” rule insisted upon by the Railways though not implicit in Articles 16(1) and 16(4), is constitutionally valid as the said practice/process was made to maintain efficiency. On the other hand, in Ajit Singh (I) this Court has held that the equality principle excludes the extra weightage given by the Government to roster-point promotees as such weightage is against merit and efficiency of the administration and that the Punjab Government had erred in not taking into account the said merit and efficiency factors.
76. In Ajit Singh (II) three interlocutory applications were filed by the State of Punjab for clarification of the judgment of this Court in Ajit Singh (I). The limited question was– whether there was any conflict between the judgments of this Court in Virpal Singh Chauhan and Ajit Singh (I) on one hand and vis-à-vis the judgment of this Court in Jagdish Lal v. State of Haryana. The former cases were decided in favour of general candidates whereas the latter was a decision against the general candidates. Briefly, the facts for moving the interlocutory applications were as follows: the Indian Railways following the law laid down in Virpal Singh Chauhan issued a circular on 28-2-1997 to the effect that the reserved candidates promoted on roster-points could not claim seniority over the senior general candidates promoted later on. The State of Punjab after following Ajit Singh (I) revised their seniority list and made further promotions of the senior general candidates following the “catch-up” rule. Therefore, both the judgments were against the reserved candidates. However, in the later judgment of this Court in Jagdish Lal another three-Judge Bench took
the view that under the general rule of service jurisprudence relating to seniority, the date of continuous officiation has to be taken into account and if so, the roster-point promotees were entitled to the benefit of continuous officiation. In Jagdish Lal the Bench observed that the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4-A) were fundamental rights of the reserved candidates and, therefore, the reserved candidates were entitled to the benefit of continuous officiation.
77. Accordingly, in Ajit Singh (II) three points arose for consideration:
(i) Can the roster-point promotees count their seniority in the promoted category from the date of their continuous officiation vis-à-vis general candidates, who were senior to them in the lower category and who were later promoted to the same level?
(ii) Have Virpal and Ajit Singh (I) been correctly decided and has Jagdish Lal been correctly decided?
(iii) Whether the catch-up principles are tenable?
78. At the outset, this Court stated that it was not concerned with the validity of constitutional amendments and, therefore, it proceeded on the assumption that Article 16(4- A) is valid and not unconstitutional. Basically, the question decided was whether the “catch- up” principle was tenable in the context of Article 16(4). It was held that the primary purpose of Article 16(4) and Article 16(4-A) is to give due representation to certain classes in certain posts keeping in mind Articles 14, 16(1) and 335; that, Articles 14 and 16(1) have prescribed permissive limits to affirmative action by way of reservation under Articles 16(4) and 16(4- A) of the Constitution; that, Article 335 is incorporated so that efficiency of administration is not jeopardised and that Articles 14 and 16(1) are closely connected as they deal with individual rights of the persons. They give a positive command to the State that there shall be equality of opportunity to all citizens in public employment. It was further held that Article 16(1) flows from Article 14. It was held that the word “employment” in Article 16(1) is wide enough to include promotions to posts at the stage of initial level of recruitment. It was observed that Article 16(1) provides to every employee otherwise eligible for promotion fundamental right to be considered for promotion. It was held that equal opportunity means the right to be considered for promotion. The right to be considered for promotion was not a statutory right. It was held that Articles 16(4) and 16(4-A) did not confer any fundamental right to reservation. That they are only enabling provisions. Accordingly, in Ajit Singh (II) the judgment of this Court in Jagdish Lal case was overruled. However, in the context of balancing of fundamental rights under Article 16(1) and the rights of reserved candidates under Articles 16(4) and 16(4-A), this Court opined that Article 16(1) deals with a fundamental right whereas Articles 16(4) and 16(4-A) are only enabling provisions and, therefore, the interests of the reserved classes must be balanced against the interests of other segments of society. As a remedial measure, the Court held that in matters relating to affirmative action by the State, the rights under Articles 14 and 16 are required to be protected and a reasonable balance should be struck so that the affirmative action by the State does not lead to reverse discrimination.
79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and “consequential seniority” are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot
be said that by insertion of the concept of “consequential seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that “equality code” under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.
80. Before concluding, we may refer to the judgment of this Court in M.G. Badappanavar. In that case the facts were as follows: the appellants were general candidates. They contended that when they and the reserved candidates were appointed at Level 1 and junior reserved candidates got promoted earlier on the basis of roster points to Level 2 and again by way of roster points to Level 3, and when the senior general candidate got promoted to Level 3, then the general candidate would become senior to the reserved candidate at Level 3. At Level 3, the reserved candidate should have been considered along with the senior general candidate for promotion to Level 4. In support of their contention, the appellants relied upon the judgment of the Constitution Bench in Ajit Singh (II). The above contentions raised by the appellants were rejected by the Tribunal. Therefore, the general candidates came to this Court in appeal. This Court found on the facts that the service rule concerned did not contemplate computation of seniority in respect of roster promotions. Placing reliance on the judgments of this Court in Ajit Singh (I) and in Virpal Singh this Court held that roster promotions were meant only for the limited purpose of due representation of Backward Classes at various levels of service and, therefore, such roster promotions did not confer consequential seniority to the roster-point promotee. In Ajit Singh (II) the circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16. It was further held in M.G. Badappanavar that equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals violated the basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Indra Sawhney while holding that if creamy layer among Backward Classes were given some benefits as Backward Classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if roster-point promotees are given consequential seniority, it will violate the equality principle which is part of the basic structure of the Constitution and in which event, even Article 16(4-A) cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by a three-Judge Bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is a part of the basic structure of the Constitution. Accordingly, the judgment of the Tribunal was set aside.
81. The judgment in M.G. Badappanavar was mainly based on the judgment in Ajit Singh (I) which had taken the view that the departmental circular which gave consequential seniority to the “roster-point promotee”, violated Articles 14 and 16 of the Constitution. In none of the above cases, was the question of the validity of the constitutional amendments involved. Ajit Singh (I), Ajit Singh (II) and M.G. Badappanavar were essentially concerned with the question of “weightage”. Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy
and representation in public employment and overall efficiency of services. The above judgments, therefore, did not touch the questions which are involved in the present case.
Scope of the impugned amendments
82. Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawhney and R.K. Sabharwal. In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However, in R.K. Sabharwal this Court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota limit has been reached. It was clarified that the judgment in Indra Sawhney was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensures that the reservation remains within the ceiling limit of 50%.
83. In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based.
84. With these introductory facts, we may examine the scope of the impugned constitutional amendments.
85. The Supreme Court in its judgment dated 16-11-1992 in Indra Sawhney stated that reservation in appointments or posts under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matter of promotion. Prior to the judgment in Indra Sawhney reservation in promotion existed. The Government felt that the judgment of this Court in Indra Sawhney adversely affected the interests of SCs and STs in services, as they had not reached the required level. Therefore, the Government felt that it was necessary to continue the existing policy of providing reservation in promotion confined to SCs and STs alone. The Constitution (Seventy-seventh Amendment) Act, 1995 introduced clause (4-A) in Article 16 of the Constitution. The said clause (4-A) was inserted after clause (4) of Article 16 to say that nothing in the said article shall prevent the State from making any provision for reservation in matters of promotion to any class(es) of posts in the services under the State in favour of SCs and STs which, in the opinion of the States, are not adequately represented in the services under the State.
86. Clause (4-A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4-A) of Article 16 emphasises the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the two compelling reasons – “backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further, in Ajit Singh (II) this Court has held that apart
from “backwardness” and “inadequacy of representation” the State shall also keep in mind “overall efficiency” (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government in providing for reservation in promotion for SCs and STs.
87. After the Constitution (Seventy-seventh Amendment) Act, 1995 this Court stepped in to balance the conflicting interests. This was in Virpal Singh Chauhan in which it was held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position. According to the Government, the decisions in Virpal Singh and Ajit Singh (I) bringing in the concept of “catch-up” rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade.
88. In the circumstances, clause (4-A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that the Constitution (Eighty-fifth Amendment) Act, 2001 was an extension of clause (4-A) of Article 16. Therefore, the Constitution (Seventy- seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-fifth Amendment) Act, 2001.
91. The question in the present case concerns the width of the amending powers of Parliament. The key issue is – whether any constitutional limitation mentioned in Article 16(4) and Article 335 stands obliterated by the above constitutional amendments.
92. In R.K. Sabharwal the issue was concerning operation of roster system. This Court stated that the entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. It was held that if the roster is prepared on the basis of the cadre strength, that by itself would ensure that the reservation would remain within the ceiling limit of 50%. In substance, the Court said that in the case of hundred-point roster each post gets marked for the category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone (replacement theory).
93. The question which remained in controversy, however, was concerning the rule of “carry-forward”. In Indra Sawhney this Court held that the number of vacancies to be filled up on the basis of reservation in a year including the “carry-forward” reservations should in no case exceed the ceiling limit of 50%.
94. However, the Government found that total reservation in a year for SCs, STs and OBCs combined together had already reached 491⁄2% and if the judgment of this Court in Indra Sawhney had to be applied it became difficult to fill “backlog vacancies”. According to the Government, in some cases the total of the current and backlog vacancies was likely to exceed the ceiling limit of 50%. Therefore, the Government inserted clause (4-B) after clause (4-A) in Article 16 vide the Constitution (Eighty-first Amendment) Act, 2000.
95. By clause (4-B) the “carry-forward”/“unfilled vacancies” of a year are kept out and excluded from the overall ceiling limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-first Amendment) Act, 2000. Quoted hereinbelow is the Statement of Objects and Reasons with the text of the Constitution (Eighty-first Amendment) Act, 2000:
96. The Constitution (Eighty-first Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R.K. Sabharwal. Once it is held that each point in the roster indicates a post which on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies does not arise. Therefore, in effect, Article 16(4-B) grants legislative assent to the judgment in R.K. Sabharwal. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter.
97. As stated above, clause (4-A) of Article 16 is carved out of clause (4) of Article 16. Clause (4-A) provides benefit of reservation in promotion only to SCs and STs. In S. Vinod Kumar v. Union of India this Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney.
98. By the Constitution (Eighty-second Amendment) Act, 2000 a proviso was inserted at the end of Article 335 of the Constitution.
99. This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this Court in Vinod Kumar which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4-A).
Introduction of “time” factor in view of Article 16(4-B)
100. As stated above, Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling limit of 50% on current vacancies continues to remain. In working out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by the service rules in some of the States where the carry-over rule does not extend beyond three years.
Whether the impugned constitutional amendments violate the principle of basic structure?
101. The key question which arises in the matter of the challenge to the constitutional validity of the impugned amending Acts is – whether the constitutional limitations on the amending power of Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution.
102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is – whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets – “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional
equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
103. The criterion for determining the validity of a law is the competence of the law- making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on the mode of exercise of the power. Though the amending power in the Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.
104. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4).
Role of enabling provisions in the context of Article 14
106. The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. Every discretionary power is not necessarily discriminatory. According to the Constitutional Law of India, by H.M. Seervai, 4th Edn., p. 546, equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of “guided power”. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred, would be corrected by the courts. This is the basic principle behind the enabling provisions which are incorporated in Articles 16(4-A) and 16(4-B). Enabling provisions are permissive in nature. They are enacted to balance equality with positive discrimination. The constitutional law is the law of evolving concepts. Some of them are generic, others have to be identified and valued. The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-à-vis efficiency which depends on the fact situation only and not abstract principle of equality in Article 14 as spelt out in detail in Articles 15 and 16. Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the second part is a positive concept
which is enough to validate equalising measures depending upon the fact situation.
107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between “equality in law” and “equality in fact”. If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.
Application of the doctrine of “guided power”– Article 335
108. Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-second Amendment) Act, 2000 we find that the said proviso has a nexus with Articles 16(4-A) and 16(4-B). Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring discretionary power on the State to relax qualifying marks or standards of evaluation. Therefore, the question before us is – whether the State could be empowered to relax qualifying marks or standards for reservation in matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in Article 335 is not obliterated. Reason is that “efficiency” is a variable factor. It is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the
State may evolve a mechanism under which efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.
109. In conclusion, we reiterate that the object behind the impugned constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and the constitutional limitations indicated above.
Tests to judge the validity of the impugned State Acts
110. As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.
Are the impugned amendments making an inroad into the balance struck by the judgment of this Court in Indra Sawhney?
111. The petitioners submitted that equality has been recognised to be a basic feature of our Constitution. To preserve equality, a balance was struck in Indra Sawhney so as to ensure that the basic structure of Articles 14, 15 and 16 remains intact and at the same time social upliftment, as envisaged by the Constitution, stood achieved. In order to balance and structure the equality, a ceiling limit on reservation was fixed at 50% of the cadre strength, reservation was confined to initial recruitment and was not extended to promotion. The petitioners further submitted that in Indra Sawhney this Court has held that reservation in promotion was not sustainable in principle. Accordingly, the petitioners submitted that the impugned constitutional amendments make a serious inroad into the said balance struck in Indra Sawhney which protected equality as a basic feature of our Constitution.
112. What are the outer boundaries of the amendment process in the context of Article 16 is the question which needs to be answered. Equality is the basic feature of the Constitution as held in Indra Sawhney. The content of Article 14 was originally interpreted by this Court as a concept of equality confined to the aspects of discrimination and classification. It is only after the rulings of this Court in Maneka Gandhi and Ajay Hasia v. Khalid Mujib Sehravardi that the content of Article 14 got expanded conceptually so as to comprehend the doctrine of promissory estoppel, non-arbitrariness, compliance with rules of natural justice, eschewing
irrationality, etc. There is a difference between “formal equality” and “egalitarian equality”. At one point of time Article 16(4) was read by the Supreme Court as an exception to Article 16(1). That controversy got settled in Indra Sawhney. The words “nothing in this article” in Article 16(4) represent a legal device allowing positive discrimination in favour of a class. Therefore, Article 16(4) relates to “a class apart”. Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a Class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in matters of employment. Therefore, Article 16(1) and Article 16(4) operate in different fields. Backwardness and inadequacy of representation, therefore, operate as justifications in the sense that the State gets the power to make reservation only if backwardness and inadequacy of representation exist. These factors are not obliterated by the impugned amendments.
113. The question still remains as to whether any of the constitutional limitations are obliterated by way of the impugned constitutional amendments. Articles 16(4-A) and 16(4-B) have been introduced by way of the impugned amendments.
114. In Indra Sawhney the equality which was protected by the rule of 50%, was by balancing the rights of the general category vis-à-vis the rights of BCs en bloc consisting of OBCs, SCs and STs. On the other hand, in the present case the question which we are required to answer is: whether within the egalitarian equality, indicated by Article 16(4), the sub-classification in favour of SCs and STs is in principle constitutionally valid. Article 16(4- A) is inspired by the observations in Indra Sawhney in which this Court has unequivocally observed that in order to avoid lumping of OBCs, SCs and STs which would make OBCs take away all the vacancies leaving SCs and STs high and dry, the State concerned was entitled to categorise and sub-classify SCs and STs on one hand vis-à-vis OBCs on the other hand.
115. Therefore, while judging the width and the ambit of Article 16(4-A) we must ascertain whether such sub-classification is permissible under the Constitution. The sub- classification between “OBCs” on one hand and “SCs and STs” on the other hand is held to be constitutionally permissible in Indra Sawhney. In the said judgment it has been held that the State could make such sub-classification between SCs and STs vis-à-vis OBCs. It refers to sub-classification within the egalitarian equality. Therefore, Article 16(4-A) follows the line suggested by this Court in Indra Sawhney. In Indra Sawhney on the other hand vide para 829 this Court has struck a balance between formal equality and egalitarian equality by laying down the rule of 50% (ceiling limit) for the entire BCs as “a class apart” vis-à-vis GC. Therefore, in our view, equality as a concept is retained even under Article 16(4-A) which is carved out of Article 16(4).
116. As stated above, Article 14 enables classification. A classification must be founded on intelligible differentia which distinguishes those that are grouped together from others. The differentia must have a rational relation to the object sought to be achieved by the law under challenge. In Indra Sawhney an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to the making of classification. Article 16(4-B) is also an enabling provision. It seeks to make classification on the basis of the differentia between current vacancies and carry-forward vacancies. In the case of Article 16(4-B) we must keep in
mind that following the judgment in R.K. Sabharwal, the concept of post-based roster is introduced. Consequently, specific slots for OBCs, SCs and STs as well as GC have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category. Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry- forward/backlog vacancies on the other hand. Article 16(4-B) is a direct consequence of the judgment of this Court in R.K. Sabharwal by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) together form part of the same scheme. As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court in Indra Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional amendments, therefore, do not obliterate equality.
Conclusion
121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy- seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.
