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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.
4. 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
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.
6. 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
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)
7. 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 1983. 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
8. 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
of this Court. There were five separate judgments in this behalf which required the creamy layer to be identified and excluded.
14. 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.
11. 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?
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 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
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 ofArticle 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].
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 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
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.ǁ
12. 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
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.
13. 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 ofArticle 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.
14. 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:
―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 underArticle 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
15. 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
16. 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 342. 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
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.
17. 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.
18. 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
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 fromArticle 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
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
19. 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.
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.
20. 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.
(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.
21. 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.
