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[This case matters deals with the interpretation of Art 16 (4-A) and Art 16 (4-B) of the Constitution of India.]
R.F. NARIMAN, J. – 3. We have heard wide-ranging arguments on either side for a
couple of days, raising several points. However, ultimately, we have confined
arguments to two points which require serious consideration. The learned Attorney
General for India, Shri K.K. Venugopal, led the charge for reconsideration of
Nagaraj. According to the learned Attorney General, Nagaraj (supra) needs to be
revisited on two points. First, when Nagaraj states that the State has to collect
quantifiable data showing backwardness, such observation would be contrary to the
nine-Judge Bench in Indra Sawhney v. Union of India (1), 1992 Supp (3) SCC 217,
as it has been held therein that the Scheduled Castes and the Scheduled Tribes are the
most backward among backward classes and it is, therefore, presumed that once they
are contained in the Presidential List under Articles 341 and 342 of the Constitution
of India, there is no question of showing backwardness of the Scheduled Castes and
the Scheduled Tribes all over again. Secondly, according to the learned Attorney
General, the creamy layer concept has not been applied in Indra Sawhney (1) to the
Scheduled Castes and the Scheduled Tribes and Nagaraj has misread the aforesaid
judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes.
According to the learned Attorney General, once the Scheduled Castes and the
Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be
Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by
anybody except Parliament under Articles 341 and 342. The learned Attorney General
also argued that Nagaraj (supra) does not indicate any test for determining adequacy
of representation in service.
- On the other hand, Shri Shanti Bhushan has defended Nagaraj by stating that when
it speaks about backwardness of the class, what is referred to is not Scheduled Castes
and Scheduled Tribes at all, but the class of posts. Hence, it is clear that backwardness
in relation to the class of posts spoken of would require quantifiable data, and it is in
that context that the aforesaid observation is made. He also argued, relying upon
Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay North, (1965) 2
SCR 908, (“Keshav Mills”), that a Constitution Bench judgment which has stood the
test of time, ought not to be revisited, and if the parameters of Keshav Mills are to be
applied, it is clear that Nagaraj ought not to be revisited. Shri Rajeev Dhavan, learned
senior advocate, has argued before us that Nagaraj has to be understood as a
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judgment which has upheld the constitutional amendments adding Articles 16(4-A)
and 16(4-B) on the ground that they do not violate the basic structure of the
Constitution. According to him, since equality is part of the basic structure, and
Nagaraj (supra) has applied the 50% cut- off criterion, creamy layer, and no indefinite
extension of reservation, as facets of the equality principle to uphold the said
constitutional amendments, Nagaraj ought not to be revisited. According to the
learned senior counsel, creamy layer is a matter of applying the equality principle, as
unequals within the same class are sought to be weeded out as they cannot be treated
as equal to the others. The whole basis for application of the creamy layer principle is
that those genuinely deserving of reservation would otherwise not get the benefits of
reservation and conversely, those who are undeserving, get the said benefits.
According to the learned senior advocate, the creamy layer principle applies to
exclude certain individuals from the class and does not deal with group rights at all.
This being the case, Articles 341 and 342 are not attracted. Further, Articles 341 and
342 do not concern themselves with reservation at all. They concern themselves only
with identification of those who can be called Scheduled Castes and Scheduled
Tribes. On the other hand, the creamy layer principle is applied by Courts to exclude
certain persons from reservation made from within that class on the touchstone of
Articles 14 and 16(1) of the Constitution of India. - Since we are asked to revisit a unanimous Constitution Bench judgment, it is
important to bear in mind the admonition of the Constitution Bench judgment in
Keshav Mills. This Court said:
[I]n reviewing and revising its earlier decision, this Court should ask itself whether in
the interests of the public good or for any other valid and compulsive reasons, it is
necessary that the earlier decision should be revised. When this Court decides
questions of law, its decisions are, under Article 141, binding on all courts within the
territory of India, and so, it must be the constant endeavour and concern of this Court
to introduce and maintain an element of certainty and continuity in the interpretation
of law in the country. Frequent exercise by this Court of its power to review its earlier
decisions on the ground that the view pressed before it later appears to the Court to be
more reasonable, may incidentally tend to make law uncertain and introduce
confusion which must be consistently avoided. That is not to say that if on a
subsequent occasion, the Court is satisfied that its earlier decision was clearly
erroneous, it should hesitate to correct the error; but before a previous decision is
pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of
unanimity amongst its members that a revision of the said view is fully justified. It is
not possible or desirable, and in any case, it would be inexpedient to lay down any
principles which should govern the approach of the Court in dealing with the question
of reviewing and revising its earlier decisions. It would always depend upon several
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relevant considerations: — What is the nature of the infirmity or error on which a plea
for a review and revision of the earlier view is based? On the earlier occasion, did
some patent aspects of the question remain unnoticed, or was the attention of the
Court not drawn to any relevant and material statutory provision, or was any previous
decision of this Court bearing on the point not noticed? Is the Court hearing such plea
fairly unanimous that there is such an error in the earlier view? What would be the
impact of the error on the general administration of law or on public good? Has the
earlier decision been followed on subsequent occasions either by this Court or by the
High Courts? And, would the reversal of the earlier decision lead to public
inconvenience, hardship or mischief? These and other relevant considerations must be
carefully borne in mind whenever this Court is called upon to exercise its jurisdiction
to review and revise its earlier decisions. These considerations become still more
significant when the earlier decision happens to be a unanimous decision of a Bench
of five learned Judges of this Court. (at pp. 921-922) - We may begin with the nine-Judge Bench in Indra Sawhney (1). In this case, the
lead judgment is of B.P. Jeevan Reddy, J., speaking on behalf of himself and three
other learned Judges, with Pandian and Sawant, JJ., broadly concurring in the result
by their separate judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The
bone of contention in this landmark judgment was the Mandal Commission Report of
1980, which was laid before Parliament on two occasions – once in 1982, and again in - However, no action was taken on the basis of this Report until 13.08.1990,
when an Office Memorandum stated that after considering the said Report, 27% of
the vacancies in civil posts and services under the Government of India shall be
reserved for the Socially and Economically Backward Classes. This was followed by
an Office Memorandum of 25.09.1991, by which, within the 27% of vacancies,
preference was to be given to candidates belonging to the poorer sections of the
Socially and Economically Backward Classes; and 10% vacancies were to be reserved
for Other Economically Backward Sections who were not covered by any of the
existing schemes of reservation. The majority judgments upheld the reservation of
27% in favour of backward classes, and the further sub- division of more backward
within the backward classes who were to be given preference, but struck down the
reservation of 10% in favour of Other Economically Backward categories - It is important to note that eight of the nine learned Judges in Indra Sawhney (1)
(supra) applied the creamy layer principle as a facet of the larger equality principle. In
fact, in Indra Sawhney v. Union of India and Ors., (2000) 1 SCC 168 (“Indra
Sawhney (2)”), this Court neatly summarized the judgments in Indra Sawhney (1), on
the aspect of creamy layer as follows:
―13. In Indra Sawhney (1), on the question of exclusion of the creamy layer from
the backward classes, there was agreement among eight out of the nine learned Judges
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of this Court. There were five separate judgments in this behalf which required the
creamy layer to be identified and excluded. - The judgment of Jeevan Reddy, J. was rendered for himself and on behalf of three
other learned Judges, Kania, C.J. and M.N. Venkatachaliah, A.M.Ahmadi, JJ. (as they
then were). The said judgment laid emphasis on the relevance of caste and also stated
that upon a member of the backward class reaching an ―advanced social level or
status, he would no longer belong to the backward class and would have to be weeded
out. Similar views were expressed by Sawant, Thommen, Kuldip Singh, and Sahai, JJ.
in their separate judgments. - In Nagaraj, the addition of Articles 16(4-A) and 16(4-B) were under challenge on
the ground that they violated the basic structure of the Constitution. After referring to
the arguments of counsel for both sides, the Court held that equality is the essence of
democracy and accordingly, part of the basic structure of the Constitution (See
paragraph 33). The working test in the matter of application of this doctrine was then
applied, referring to Chandrachud, J.’s judgment in Indira Nehru Gandhi v. Raj
Narain & Anr., 1975 Supp SCC 1 (See paragraphs 37 and 38). After dealing with
reservation and its extent, the Court then went into the nitty-gritty of the constitutional
amendments and held as follows:
―Whether the impugned constitutional amendments violate the principle of basic
structure? - The key question which arises in the matter of the challenge to the constitutional
validity of the impugned amending Acts is — whether the constitutional limitations
on the amending power of Parliament are obliterated by the impugned amendments so
as to violate the basic structure of the Constitution. - In the matter of application of the principle of basic structure, twin tests have to
be satisfied, namely, the width test and the test of identity. As stated hereinabove, the
concept of the catch-up rule and consequential seniority are not constitutional
requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not
constitutional limitations. They are concepts derived from service jurisprudence. They
are not constitutional principles. They are not axioms like, secularism, federalism, etc.
Obliteration of these concepts or insertion of these concepts 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
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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 as to 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 [(1995) 6 SCC 684], Ajit Singh (I) [(1996) 2 SCC 715],
Ajit Singh (II) [(1999) 7 SCC 209] and Indra Sawhney (1) [1992 Supp (3) SCC]
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 viz. 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. xxx xxx xxx ―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
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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). The Court then concluded as follows:
―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 (1), the concept of post-based roster with inbuilt
concept of replacement as held in R.K. Sabharwal [(1995) 2 SCC 745]. - We reiterate that the ceiling limit of 50%, the concept of creamy layer and the
compelling reasons, namely, backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements without which the
structure of equality of opportunity in Article 16 would collapse. - However, in this case, as stated above, the main issue concerns the extent of
reservationǁ. 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
226
excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or
extend the reservation indefinitely. - 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.ǁ - We now come to the Constitution Bench judgment in Ashoka Kumar Thakur v.
Union of India, (2008) 6 SCC 1. In this case, Article 15(5)inserted by the
Constitution (Ninety-third Amendment) Act, 2005, was under challenge.
Balakrishnan, C.J., after referring to various judgments of this Court dealing with
reservation, specifically held that the creamy layer principle is inapplicable to
Scheduled Castes and Scheduled Tribes as it is merely a principle of identification of
the backward class and not applied as a principle of equality (See paragraphs 177 to
186). Pasayat, J., speaking for himself and Thakker, J., stated that the focus in the
present case was not on Scheduled Castes and Scheduled Tribes but on Other
Backward Classes (See paragraph 293). Bhandari, J., in paragraphs 395 and 633
stated as follows:
―395. In Indira Sawhney (1), the entire discussion was confined only to Other
Backward Classes. Similarly, in the instant case, the entire discussion was confined
only to Other Backward Classes. Therefore, I express no opinion with regard to the
applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled
Tribes.ǁ xxx xxx xxx ―633. In Indira Sawhney (1), creamy layer exclusion was only
in regard to OBC.
Reddy, J. speaking for the majority at SCC p. 725, para 792, stated that ―[t]his
discussion is confined to Other Backward Classes only and has no relevance in the
case of Scheduled Tribes and Scheduled Castesǁ. Similarly, in the instant case, the
entire discussion was confined only to Other Backward Classes. Therefore, I express
no opinion with regard to the applicability of exclusion of creamy layer to the
Scheduled Castes and Scheduled Tribes……Raveendran, J., in a separate judgment,
while referring to Nagaraj, held as follows:
―665. The need for exclusion of creamy layer is reiterated in the subsequent
decisions of this Court in Ashoka Kumar Thakur v. State of Bihar [(1995) 5 SCC
403], Indira Sawhney v. Union of India [(1996) 6 SCC] and M. Nagaraj v. Union of
India [(2006) 8 SCC 212]. When Indira Sawhney [1992 Supp (3) SCC 217] has held
that creamy layer should be excluded for purposes of Article 16(4), dealing with
backward class which is much wider than socially and educationally backward class
227
occurring in Articles 15(4) and (5), it goes without saying that without the removal of
creamy layer there cannot be a socially and educationally backward class. Therefore,
when a caste is identified as a socially and educationally backward caste, it becomes a
socially and educationally backward class only when it sheds its creamy layer. The
Court ultimately upheld the Constitution (Ninety-third Amendment) Act, 2005,
subject to the creamy layer test to be applied to Other Backward Classes. Bhandari, J.
held that the amendment was not constitutionally valid so far as private unaided
educational institutions were concerned. - At this stage, it is necessary to deal with the argument that Nagaraj needs to be
revisited as it conflicts with Chinnaiah. It will be noticed that though Nagaraj is a
later judgment, it does not refer to Chinnaiah at all. Much was made of this by some
of the learned counsel appearing on behalf of the Appellants. It is important to notice
that the majority judgment of Hegde, J. does not refer to the creamy layer principle at
all. The judgment in Chinnaiah, in essence, held that the Andhra Pradesh Scheduled
Castes (Rationalisation of Reservations) Act, 2000, which it considered, could not
further sub-divide Scheduled Castes into four categories, as that would be violative
of Article 341(2) of the Constitution of India for the simple reason that it is
Parliament alone that can make any change in the Presidential List and not the State
Legislatures. That this is the true ratio of the judgment is clear from a reading of the
paragraphs that have been set out hereinabove. This being the case, as Chinnaiah
does not in any manner deal with any of the aspects on which the constitutional
amendments in Nagaraj were upheld, we are of the view that it was not necessary for
Nagaraj to refer to Chinnaiah at all. - This brings us to whether the judgment in Nagaraj (supra) needs to be revisited on
the other grounds that have been argued before us. Insofar as the State having to show
quantifiable data as far as backwardness of the class is concerned, we are afraid that
we must reject Shri Shanti Bhushan’s argument. The reference to “class” is to the
Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in
public employment. It is clear, therefore, that Nagaraj has, in unmistakable terms,
stated that the State has to collect quantifiable data showing backwardness of the
Scheduled Castes and the Scheduled Tribes. We are afraid that this portion of the
judgment is directly contrary to the nine-Judge Bench in Indra Sawhney (1). Jeevan
Reddy, J., speaking for himself and three other learned Judges, had clearly held,
―[t]he test or requirement of social and educational backwardness cannot be applied
to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression
“backward class of citizens”. (See paragraphs 796 to 797). Equally, Dr. Justice
Thommen, in his conclusion at paragraph 323(4), had held as follows:
228
―323. Summary xxx xxx xxx (4) Only such classes of citizens who are socially and
educationally backward are qualified to be identified as backward classes. To be
accepted as backward classes for the purpose of reservation under Article
15 or Article 16, their backwardness must have been either recognised by means of a
notification by the President under Article 341 or Article 342 declaring them to be
Scheduled Castes or Scheduled Tribes, or, on an objective consideration, identified by
the State to be socially and educationally so backward by reason of identified prior
discrimination and its continuing ill effects as to be comparable to the Scheduled
Castes or the Scheduled Tribes. In the case of the Scheduled Castes or the Scheduled
Tribes, these conditions are, in view of the notifications, presumed to be
satisfied……ǁ - In fact, Chinnaiah has referred to the Scheduled Castes as being the most
backward among the backward classes (See paragraph 43). This is for the reason that
the Presidential List contains only those castes or groups or parts thereof, which have
been regarded as untouchables. Similarly, the Presidential List of Scheduled Tribes
only refers to those tribes in remote backward areas who are socially extremely
backward. Thus, it is clear that when Nagaraj (supra) requires the States to collect
quantifiable data on backwardness, insofar as Scheduled Castes and Scheduled Tribes
are concerned, this would clearly be contrary to the Indra Sawhney (1) (supra) and
would have to be declared to be bad on this ground.
However, when it comes to the creamy layer principle, it is important to note that this
principle sounds in Articles 14 and 16(1), as unequals within the same class are being
treated equally with other members of that class. The genesis of this principle is to be
found in State of Kerala & Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310. This
case was concerned with a test-relaxation rule in promotions from lower division
clerks to upper division clerks. By a 5:2 majority judgment, the said rule was upheld
as a rule that could be justified on the basis that it became necessary as a means of
generally giving a leg-up to backward classes - We do not think it necessary to go into whether Parliament may or may not
exclude the creamy layer from the Presidential Lists contained under Articles 341 and - Even on the assumption that Articles 341 and 342 empower Parliament to
exclude the creamy layer from the groups or sub-groups contained within these Lists,
it is clear that Constitutional Courts, applying Articles 14 and 16 of the Constitution
to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact
that persons stated to be within a particular group or sub- group in the Presidential
List may be kept out by Parliament on application of the creamy layer principle. One
of the most important principles that has been frequently applied in constitutional law
is the doctrine of harmonious interpretation. When Articles 14 and 16 are
229
harmoniously interpreted along with other Articles 341 and 342, it is clear that
Parliament will have complete freedom to include or exclude persons from the
Presidential Lists based on relevant factors. Similarly, Constitutional Courts, when
applying the principle of reservation, will be well within their jurisdiction to exclude
the creamy layer from such groups or sub-groups when applying the principles of
equality under Articles 14 and 16 of the Constitution of India. We do not agree with
Balakrishnan, C.J.’s statement in Ashoka Kumar Thakur (supra) that the creamy
layer principle is merely a principle of identification and not a principle of equality. - Therefore, when Nagaraj applied the creamy layer test to Scheduled Castes and
Scheduled Tribes in exercise of application of the basic structure test to uphold the
constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any
manner interfere with Parliament’s power under Article 341 or Article 342. We are,
therefore, clearly of the opinion that this part of the judgment does not need to be
revisited, and consequently, there is no need to refer Nagaraj to a seven-Judge Bench.
We may also add at this juncture that Nagaraj is a unanimous judgment of five
learned Judges of this Court which has held sway since the year 2006. This judgment
has been repeatedly followed and applied by a number of judgments of this Court.
Further, Nagaraj has been approved by larger Benches of this Court in:
a. General Categories Welfare Federation v. Union of India, (2012) 7 SCC 40
(three-Judge Bench) (See paragraphs 2 and 3).
b. Rohtas Bhankar v. Union of India, (2014) 8 SCC 872 (five-Judge Bench) (See
paragraphs 6 and 7).
In fact, the tests laid down in Nagaraj for judging whether a constitutional
amendment violates basic structure have been expressly approved by a nine-Judge
Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and Ors.,
(2007) 2 SCC 1 (See paragraphs 61, 105, and 142). The entirety of the decision, far
from being clearly erroneous, correctly applies the basic structure doctrine to uphold
constitutional amendments on certain conditions which are based upon the equality
principle as being part of basic structure. Thus, we may make it clear that quantifiable
data shall be collected by the State, on the parameters as stipulated in Nagaraj on the
inadequacy of representation, which can be tested by the Courts. We may further add
that the data would be relatable to the concerned cadre. - Dr. Dhavan referred to the judgment in U.P. Power Corporation Ltd, and placed
before us the Constitution (One Hundred Seventeeth Amendment) Bill, 2012. This
Bill was passed by the Rajya Sabha on 17.12.2012 but failed to get sufficient number
of votes in the Lok Sabha and, therefore, could not become an Act. This Bill was
230
tabled close upon the judgment in U.P. Power Corporation Ltd. (supra), and would
have substituted Article 16(4-A) as follows:
―(4A) Notwithstanding anything contained elsewhere in the Constitution, the
Scheduled Castes and the Scheduled Tribes notified under Article 341 and Article
342, respectively, shall be deemed to be backward and nothing in this article shall
prevent the State from making any provision for reservation in matters of promotions,
with consequential seniority, to any class or classes of posts in the services under the
State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the
percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes
in the services of the State. The Statement of Objects and Reasons for the said Bill
read as follows:
―The validity of the constitutional amendments was challenged before the Supreme
Court. The Supreme Court while deliberating on the issue of validity of Constitutional
amendments in the case of Nagaraj observed that the concerned State will have to
show in each case the existence of the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency before making
provision for reservation in promotion.
Relying on the judgment of the Supreme Court in Nagaraj, the High Court of
Rajasthan and the High Court of Allahabad have struck down the provisions for
reservation in promotion in the services of the State of Rajasthan and the State of
Uttar Pradesh, respectively. Subsequently, the Supreme Court has upheld the
decisions of these High Courts striking down provisions for reservation in respective
States.
It has been observed that there is difficulty in collection of quantifiable data showing
backwardness of the class and inadequacy of representation of that class in public
employment.
Moreover, there is uncertainty on the methodology of this exercise. It will be seen that
this Bill contains two things that are different from Article 16(4-A) as already
enacted. First and foremost, it clarifies that the Scheduled Castes and the Scheduled
Tribes that are notified under Articles 341 and 342 shall be deemed to be backward,
which makes it clear that no quantifiable data is necessary to determine
backwardness.
Secondly, instead of leaving it to the States to determine on a case-to-case basis
whether the Scheduled Castes and the Scheduled Tribes are adequately represented in
any class or classes of posts in the services under the State, the substituted provision
does not leave this to the discretion of the State, but specifies that it shall be to the
extent of the percentage of reservation provided to Scheduled Castes and Scheduled
Tribes in the services of the State. This amendment was necessitated because a
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Division Bench of this Court in U.P. Power Corporation Ltd. had struck down
Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994 and Rule 8A of the U.P.
Government Servants Seniority Rules, 1991, which read as under:
―3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other
Backward Classes.— (1)-(6) xxx xxx xxx (7) If, on the date of commencement of this
Act, reservation was in force under government orders for appointment to posts to be
filled by promotion, such government orders shall continue to be applicable till they
are modified or revoked. xxx xxx xxx ―8-A. Entitlement of consequential seniority
to a person belonging to Scheduled Castes or Scheduled Tribes.—Notwithstanding
anything contained in Rules 6, 7 or 8 of these Rules, a person belonging to the
Scheduled Castes or Scheduled Tribes shall, on his promotion by virtue of rule of
reservation/roster, be entitled to consequential seniority also. This Court considered
Nagaraj in detail and in paragraph 81, culled out various principles which Nagaraj
had laid down. We are concerned here with principles (ix) and (x) in particular, which
read as under:
―(ix) The concepts of efficiency, backwardness and inadequacy of representation are
required to be identified and measured. That exercise depends on the availability of
data. That exercise depends on numerous factors. It is for this reason that the 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.
(x) 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 the matter of employment.ǁ - We have already seen that, even without the help of the first part of Article 16(4-
A) of the 2012 Amendment Bill, the providing of quantifiable data on backwardness
when it comes to Scheduled Castes and Scheduled Tribes, has already been held by us
to be contrary to the majority in Indra Sawhney (1) (supra). So far as the second part
of the substituted Article 16(4-A) contained in the Bill is concerned, we may notice
that the proportionality to the population of Scheduled Castes and Scheduled Tribes is
not something that occurs in Article 16(4-A) as enacted, which must be contrasted
with Article 330. We may only add that Article 46, which is a provision occurring in
the Directive Principles of State Policy, has always made the distinction between the
Scheduled Castes and the Scheduled Tribes and other weaker sections of the people.
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Since the object of Articles 16(4-A) and 16(4-B) is to do away with the nine-Judge
Bench in Indra Sawhney (1)when it came to reservation in promotions in favour of
the Scheduled Castes and Scheduled Tribes, that object must be given effect to, and
has been given effect by the judgment in Nagaraj. This being the case, we cannot
countenance an argument which would indirectly revisit the basis or foundation of the
constitutional amendments themselves, in order that one small part of Nagaraj be
upheld, namely, that there be quantifiable data for judging backwardness of the
Scheduled Castes and the Scheduled Tribes in promotional posts. We may hasten to
add that Shri Dwivedi’s argument cannot be confused with the concept of “creamy
layer” which, as has been pointed out by us hereinabove, applies to persons within the
Scheduled Castes or the Scheduled Tribes who no longer require reservation, as
opposed to posts beyond the entry stage, which may be occupied by members of the
Scheduled Castes or the Scheduled Tribes. - The learned Attorney General also requested us to lay down that the proportion of
Scheduled Castes and Scheduled Tribes to the population of India should be taken to
be the test for determining whether they are adequately represented in promotional
posts for the purpose of Article 16(4-A). He complained that Nagaraj ought to have
stated this, but has said nothing on this aspect. According to us, Nagaraj has wisely
left the test for determining adequacy of representation in promotional posts to the
States for the simple reason that as the post gets higher, it may be necessary, even if a
proportionality test to the population as a whole is taken into account, to reduce the
number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes
upwards. This is for the simple reason that efficiency of administration has to be
looked at every time promotions are made. As has been pointed out by B.P. Jeevan
Reddy, J.’s judgment in Indra Sawhney (1), there may be certain posts right at the
top, where reservation is impermissible altogether. For this reason, we make it clear
that Article 16(4-A) has been couched in language which would leave it to the States
to determine adequate representation depending upon the promotional post that is in
question. For this purpose, the contrast of Article 16(4-A) and 16(4-B) with Article
330 of the Constitution is important. Article 330 reads as follows:
―330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House
of the People.—(1) Seats shall be reserved in the House of the People for—
(a) the Scheduled Castes;
(b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of
Assam; and]
(c) the Scheduled Tribes in the autonomous districts of Assam.
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(2) The number of seats reserved in any State or Union territory for the Scheduled
Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the
same proportion to the total number of seats allotted to that State or Union territory in
the House of the People as the population of the Scheduled Castes in the State or
Union territory or of the Scheduled Tribes in the State or Union territory or part of the
State or Union territory, as the case may be, in respect of which seats are so reserved,
bears to the total population of the State or Union territory.
(3) Notwithstanding anything contained in clause (2), the number of seats reserved in
the House of the People for the Scheduled Tribes in the autonomous districts of
Assam shall bear to the total number of seats allotted to that State a proportion not
less than the population of the Scheduled Tribes in the said autonomous districts bears
to the total population of the State.
It can be seen that when seats are to be reserved in the House of the People for the
Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is
mandated by the Constitution. The difference in language between this provision
and Article 16(4-A) is important, and we decline the invitation of the learned
Attorney General to say any more in this behalf. - Thus, we conclude that the judgment in Nagaraj does not need to be referred to a
seven Judge Bench. However, the conclusion in Nagaraj that the State has to collect
quantifiable data showing backwardness of the Scheduled Castes and the Scheduled
Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) is held to be
invalid to this extent.
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