This article has been written by Nimisha Dublish. The article is an in-depth analysis of the case of M. Nagraj vs. Union of India and how it played a significant role in determining the status of reservation policies in promotions in public employment. The article deals with the brief summary, facts, issues raised, arguments of the parties and the judgement of the Nagraj case. The author has made an effort to critically analyse the judgement and has also discussed the aftermath of the judgement.
Table of Contents
Introduction
In India, the topic of reservations has always been a sensitive one. It’s a topic that attracts a lot of explosive debates as well. The Constitution has enabling provisions to create reservations for disadvantaged groups. One group argues that it has faced numerous hardships since time immemorial and deserves certain relief as compensation for that. On the other hand, another group claims that India is a secular and democratic country, and its Constitution suggests that everyone is equal. They call it discrimination if any particular group enjoys any additional benefits. But the same Constitution also lays down provisions for reserving seats in different areas of life, such as education, government jobs, judiciary, etc. Hence, for a layman, this is a conflicting situation. Reservation Policy is a method to address issues that have been there since time immemorial, like the years of oppression on the basis of caste. Reservations were made to give a chance to the backward classes of society who have been suppressed and have faced historical injustices as well. Irrespective of the person’s social, educational and economic status, the current reservation system places them on a superior level. Only the caste of a person is seen to determine a person’s status under the Scheduled Castes (SCs) and Scheduled Tribes (STs) category. These reservations are based on the caste system alone and currently have nothing to do with their economic status in society.
The Hon’ble Supreme Court of India has, through various judgments, given its opinion on this matter. These decisions reflect the behaviour of the judiciary in such matters. One such important decision, which has been a landmark in the field of reservation, is the case of M. Nagaraj vs. Union of India (2006), where the idea of reservation in promotion in government departments was challenged on the basis of the policies on which it was based, claiming such policies to be discriminatory and illegal in nature. The Madhya Pradesh Government provided reservation and promotion to the Scheduled Castes and Scheduled Tribes in the public department. The decision was criticised for being an ultra-vires action and breaching the law of equality and provisions laid down in the Nagaraj case.
The case lays emphasis on the amendment provision given under Article 368 of the Constitution of India. It is said that the unamendable Constitution is the worst tyranny of all time. The Constitution of India states the general principles and framework of the law. So to maintain the rigidity and flexibility of the arrangement, the framers drafted Article 368 of the Constitution of India.
Details of the case
Case Name: M Nagraj & Ors. vs. Union of India
Equivalent citation: 2006 8 SCC 212; AIR 2007 SC 71; [2006] Supp (7) SCR 336
Date of Judgment: 19 October 2006
Court: Supreme Court of India
Case No.: Writ Petition (Civil) Nos. 61, 62, 81, 111, 134, 135, 206, 226, 227, 255, 266, 269, 279, 299, 294, 295, 298, 250, 319, 375, 386, 387, 320, 322, 323, 338, 234, 340, 423, 440, 453, 460, 472, 482, 483, 484, 485, 550, 527 and 640 of 2002, SLP (C) Nos. 4915-4919 of 2003, Writ Petition (Civil) Nos. 153/2003, C.P. (C) No. 404/2004 in Writ Petition (Civil) No. 255/2002, C.P. (C) No. 505/2002 in Writ Petition (Civil) No. 61/2002, C.P. (C) No. 553/2002 in Writ Petition (Civil) No. 266/2002, C.P. (C) No. 570/2002 in Writ Petition (Civil) No. 255/2002, C.P. (C) No. 122/2003 in Writ Petition (Civil) No. 61/2002, C.P. (C) No. 127/2003 in Writ Petition (Civil) No. 61/2002, C.P. (C) No. 85/2003 in Writ Petition (Civil) No. 255/2002, Writ Petition (Civil) Nos. 313 and 381 of 2003, CIVIL APPEAL Nos. 12501-12503/1996, SLP (C) No. 754/1997, Writ Petition (Civil) No. 460 of 2003, CIVIL APPEAL Nos. 7802/2001 and 7803/2001, Writ Petition (Civil) No. 469/2003, SLP (C) No. 19689/1996, Writ Petition (Civil) 2, 515, 519, 562 and 563 of 2004, Writ Petition (Civil) No. 413 of 1997, Writ Petition (Civil) No. 286 of 2004 and SLP (C) No. 14518 of 2004
Case Type: Writ Petition (Civil)
Petitioner: M. Nagraj & Ors.
Respondent: Union of India & Ors
Bench: Hon’ble the then Chief Justice Y.K. Sabharwal, Hon’ble Justice K.G. Balakrishnan, Hon’ble Justice S.H. Kapadia, Hon’ble Justice C.K. Thakker, and Hon’ble Justice P.K. Balasubramanyan.
Laws referred to: Articles 14, 16, 16(4A), 335 and 368 of the Constitution of India.
Evolution of the reservation system
Pre-independence era (before 1947)
When India was under British rule, society was divided based on caste, religion and ethnicity. The Britishers utilised the existing division to take over control and govern Indian communities to their benefit. Many groups were treated unfairly because of the existing division in society.
In the 19th and early 20th centuries, social reform movements took place, challenging caste-based discrimination. Leaders like Raja Ram Mohan Roy, Jyotirao Phule, and Dr. BR Ambedkar played a crucial role in the upliftment of lower caste communities.
Post-independence era (after 1947)
Reservation was primarily based on caste, with Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). The scope was further expanded to include women, Economically Weaker Sections (EWS), and Persons with Disabilities (PWDs). The Mandal Commission (1979) was also established to assess the status of these socially and educationally backward groups. They were also required to draft measures and recommendations for the upliftment of these groups. It was upon the Mandal Commission’s recommendation that OBCs be given reservations in government jobs and in educational institutes as well, through the Mandal Commission Report 1990. The system of reservation has been subject to many legal challenges and debates.
Constitutional aspect
The Constitution framers were of the view that there was a need to address the historical injustice faced by minority communities. They wanted to promote social equality. Articles 15 (4) and 16(4) provide for reservation in educational institutes and public employment for socially and economically backward classes, including Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). The legislative intent behind including the provisions for the reservation of backward classes was to protect their interests. This was because when the Constitution was in the process of being made, these backward classes were also economically backward. They also faced oppression from society due to the caste they were born with. Hence, the framers included the provisions for reservation in the course of employment for them in order to bring them at par with others.
Recent development
In recent years, there have been several discussions on the efficiency of the reservation system and a need has been felt to review and revise the reservation policy. The government has revised the percentage of reservations under different categories and has introduced new quotas as well, such as the EWS quota in 2019, which provides 10% reservation to economically weaker sections of the general category. Critics hold different views regarding on what basis reservations shall be given. Also, some believe that reservation policies require major changes because, in today’s time, the judgment criteria must shift from caste to the economic status of a person. However, the reservation system is still a topic of intense political debate.
Brief summary of Nagaraj case
In the case of M. Nagraj vs. Union of India, the Supreme Court of India deliberated on the constitutional validity of the amendments to Article 16 of the Constitution of India. The main focus was on Articles 16(4A) and 16(4B). These amendments were issued by the various amendment Acts. This allowed reservations in promotions with consequential seniority for Scheduled Castes (SCs) and Scheduled Tribes (STs). The petitioners argued that the amendments violated the basic structure of the Constitution of India, particularly the principles of equality and non-discrimination as enshrined in Article 14 of the Constitution of India. It was contended that the Parliament exceeded its amending power by changing the fundamental principle under Article 16(4) of the Constitution of India.
In response, the respondents, who represented the government, defended the amendments and contended that they were a necessary measure to address the historical injustice towards the backward classes of Scheduled Tribes (STs) and Scheduled Castes (SCs). It was to be done to ensure that there is an equitable representation of Scheduled Castes (SCs) and Scheduled Tribes (STs) in higher positions in public employment. The amendments so made were in line with constitutional principles and both the efficiency of administration and socio-economic conditions of disadvantaged groups were considered under Article 335.
However, the Supreme Court upheld the Constitutional validity of Articles 16(4A) and 16(4B) of the Constitution of India. It reaffirmed the Parliament’s authority to amend while taking into consideration that the amendments would not be against the basic structure of the Constitution of India. The court clarified that reservations about the promotions must be supported by quantifiable data, including the backwardness and inadequate representation in society. Hence, measures must be taken to ensure that the intended purpose is served without compromising the administrative efficiency or the rights of other candidates who belong to other categories, like the general category.
Facts of M. Nagraj & Ors. vs. Union of India & Ors. (2006)
Petitioners filed a writ petition invoking Article 32 of the Constitution of India to quash the Constitution (Eighty-fifth Amendment) Act, 2001. The writ was in the nature of certiorari. The amendment under the said Amendment Act adds Clause (4A) to Article 16 of the Constitution of India. The said amendment held a retrospective effect. It provided for reservations for promotion with consequential seniority. They were of the view that this amendment is inconsistent with the Constitution of India and it violates the doctrine of basic structure and also affects the Supreme Court’s previous decisions in the cases of Union of India vs. Virpal Singh Chauhan (1995), Ajit Singh Januja vs. State of Punjab (1999), Ajit Singh and Ors. (II) vs. State of Punjab and Ors. (1999). , Ajit Singh and Ors. (III) vs. State of Punjab and Ors. (1999), M. G. Badappanavar and Anr. vs. State of Karnataka and Ors. (2000) and Indra Sawhney vs. Union of India (1992).
To place this in context, it should be remembered that, in the Indra Sawhney case, it had been held by the Supreme Court of India that Article 16(4), because it then stood, was not wide enough to bring inside the reservation in matters of promotion. However, the Court declared that this might not have an effect on promotions that had already been created and, in fact, granted the extra protection that wherever reservations have already been provided for in Central or State Services, a similar position might continue for an additional amount of five years. After that, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, which did offer reservations in promotions. To recapitulate, this provision presently reads:
“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
The petition asserts that by this amendment, the legislature has exercised beyond its powers and thereby violated the basic structure of the Constitution of India. The amendment fundamentally altered the right to equality, which is an essential part of the Constitution of India.
Issues of the case
Whether the action taken in pursuance thereof seeks to reverse decisions of the Supreme Court in matters relating to promotion and their application with retrospective effect or not.
What is the validity, interpretation and implementation of the following amendments-
The Constitution (Seventy-seventh Amendment) Act, 1995
The Constitution (Eighty-first Amendment) Act, 2000
The Constitution (Eighty-second Amendment) Act, 2000
The Constitution (Eighty-fifth Amendment) Act, 2001
Contentions from both parties in the case
Petitioners’ contentions
The petitioners contended that equality is a part of the basic structure of the Constitution of India as provided in Article 14. The principle of equity and fairness is one of its central and essential components and it is almost impossible to interpret the provisions of the Constitution without that. It was further contended that Article 16 should be read in accordance with Article 14. This is because Article 16 is also essential to equality.
The petitioners further contended that Article 16 of the Constitution of India provides a safeguard towards employment equity and places a great value on public sector employment. They also argued that, if we tilt the balance more towards favouring the groups over individuals, it could lead to discriminating against individuals in reverse. When it comes to repealing the provisions of the Constitution, the Parliament should not have the ability to rewrite the Constitution of India completely. We must understand the contrast between the quota limit and the maximum thresholds permitted for reservation. It is urged in numerous judgments that the equality of opportunity in public employment be clarified in order to structure and balance Articles 16(1) and 16(4), more particularly in the judgments of Indra Sawhney, M.G. Badaappanavar, and Ajit Singh (II).
It was urged by the petitioners to read Articles 14 and 16 in relation to Article 335 of the Constitution of India. It was further emphasised by the petitioners that the revisions violate dual ideals of efficiency, merit and public service morale, along with good governance.
It was further contended by the petitioners that, over the years, the Court has delivered various decisions laying down that principles of equality and affirmative action are pillars of our Indian Constitution. The petitioners urge that equality in employment encompasses various aspects. These include equality of opportunity [Article 16(1)], anti-discrimination [Article 16(2)], special classification [Article 16(3)], affirmative action [Article 16(4)], and efficiency [Article 335]. It was pointed out that affirmative action, as provided in Article 16(4), should be seen as a classification within the framework of equality. It should not be seen as a dilution of it. The individual right to equal opportunity should not be overridden by these classifications or affirmative action. The petitioners further argue on the point that Article 16(1) ensures that the individual right to equality of opportunity is given, whereas Article 16(4) ensures that group expectations are met through affirmative action but does not confer any fundamental right. However, excessive emphasis on group expectations over individual rights might lead to reverse discrimination.
Petitioners relied on the case of Minerva Mills Ltd. and Ors. vs. Union of India and Ors. (1980) for proving that the limited power of amendment cannot become an unlimited one. It is one of the basic features of the Constitution of India and the limits imposed on its power cannot be destroyed. If the scope of an amendment abrogates the basic structure of the Constitution, then such an amendment must fail.
Respondent’s contentions
The respondent contended that the authority of amendment is a constituent power rather than a constituted power. The Constitution of India grants the legislature the authority to amend it under Article 368 of the Constitution of India. Constituent power of amendment is considered to be more flexible and sovereign, whereas constituted powers are subject to the constraints and procedures outlined within the Constitution of India. While the authority to amend the Constitution is expansive in nature, it is not absolute. Hence, it must be exercised with due regard for the Constitution’s underlying principles. The law has to change in order to become dynamic. The amendments are to be made as and when the time and society require it. It is the judiciary that holds the final say in the validity of those amendments made in law by exercising constituent power. It was examined by the judiciary whether the amendment violates the basic structure of the Constitution of India or not. There exists no implied limitation on the power of the Parliament given under Article 368 while making amendments to the law. However, the amendment shall be invalid if it disturbs the basic structure of the Constitution of India.
It was further contended that the principle of equity given under Articles 14 and 16 should not be mixed with the equality that is a fundamental component of the Constitution of India. They further contended that basic structure is not given in any particular Article, except the fundamental right to live under Article 21 read with Article 14 of the Constitution of India; no other Article in Part III of the Constitution of India is a basic feature. Rather, it is the concepts that flow from the Preamble to the Constitution like a thread that form the basic structure. It was submitted by the respondents that the principle of balancing the rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution of India.
It was further contended that the public services domain, especially the right to consideration for promotion in services, is not a basic feature of the Constitution of India.
It was submitted by the respondents that Articles 16(4A) and 16(4B) of the Constitution of India are mere enabling provisions. Also, the constitutionality of these enabling provisions, as mentioned herein, is not to be tested with reference to how such power is exercised. Also, the impugned amendments have maintained the structure of Articles 16(1) to 16(4) intact. It was further argued by the respondents that the modifications in question retained the reservations at the recruitment level, thereby seemingly contravening the principles established in the Indra Sawhney ruling. The judgment of Indra Sawhney has confined Article 16(4) of the Constitution of India to only initial appointments. It is Article 16(4A) of the Constitution of India that provides for a special provision for reservation in promotion only for the Scheduled Castes (SCs) and Scheduled Tribes (STs). It was urged that if SCs, STs and OBCs are clubbed together, then in that case, the Other Backward Classes (OBCs) will take away all the vacancies. It is for this reason that Article 16(4A) has been inserted as a special provision in the Constitution of India. In this case, the focus was on the OBCs and not on SCs or STs. It was for this reason that there was no balance of rights between the general category, OBCs and SCs/STs. It was further contended that the extent of reservation was not to the cap of 50%; it was only limited to Scheduled Castes (SCs) and Scheduled Tribes (STs). This reduces the risk pointed out in the Indra Sawhney case.
The argument further extends to suggest that, if it is legally permissible to implement reservations at higher levels through direct recruitment, then similar provisions can also be extended to promotions in consonance with Article 335 of the Constitution of India. The Court has already taken care of the general category’s interest by limiting the vacancy filling to a maximum of 50% for reservation. The argument further says that Article 16(4B) makes an amendment to the 50% limit fixed by the Indra Sawhney case. It says that the vacancies of the previous year won’t be considered with the vacancies of the current year. Article 16(4B) applies to Article 16(4) and if the reservations are found to be reasonable, then the court would uphold such reservations. Therefore, the enabling power under Article 16(4B) cannot be held invalid.
Provisions of the Constitution of India involved in M. Nagraj vs. Union of India (2006)
Article 14 of the Constitution of India
Article 14 of the Constitution of India guarantees two fundamental principles, i.e., equality before the law and equal protection of the law. Equality before the law mandates that every individual, irrespective of their background or status, is subject to the same laws and treatment. It ensures that no one is above the law and that everyone is treated equally in the eyes of the law. This prohibits the arbitrary and discriminatory behaviour of the State and ensures that justice is delivered impartially. The second fundamental principle of equal protection of the laws requires the State to apply laws in uniformity to individuals falling under the same or similar circumstances. This ensures that similar situations are treated equally and that there is no discrimination on any basis whatsoever. The State cannot favour one individual or group of individuals over another without a valid rationale.
The essence of Article 14 of the Constitution of India lies in its guarantee of equality. This means that the State cannot discriminate on the basis of religion, caste, race, sex, place of birth, or any other such factor. The principle ensures that individuals, regardless of their background, shall be treated equally by the law.
Article 16(4A) and 16(4B) of the Constitution of India
Article 16(4A) of the Constitution of India provides for a specific exception to the general rule of equality of opportunity in the case of public employment. It allows the State to make certain provisions for the reservation of individuals or groups of individuals in the matter of promotion, along with consequential seniority, in favour of Scheduled Castes (SCs) and Scheduled Tribes (STs). The reservations shall be made only if the State believes that these groups are not represented properly in the service of employment.
Article 16 of the Constitution of India aims to acknowledge the historical discrimination and social disadvantages that were faced by Scheduled Castes (SCs) and Scheduled Tribes (STs). The provision provides for a solution for those individuals who are under-represented in government services. However, Article 16(4A) of the Constitution of India does not give an unfettered right to the State to provide reservations in promotions. The right is subject to the condition that Scheduled Castes (SCs) and Scheduled Tribes (STs) are not adequately represented in the concerned services.
Article 16(4B) of the Constitution of India provides the State with the flexibility to deal with vacancies that are not filled and are reserved for a particular year due to the operation of reservation policies under Article 16(4) or Article 16(4A) of the Constitution of India. This provision allows the State to treat these unfilled vacancies as a separate class of vacancy that is to be filled in subsequent years without being counted towards the total vacancies of the year in which they were originally reserved. This allows the State to implement the policies effectively. This Article of the Constitution of India enables the State to carry forward these unfilled reserved vacancies as a separate category. The provision makes sure that these vacancies are not lost or merged with the current vacancies of the year in which they were originally reserved.
77th Amendment Act, 1995
Through the Constitution (Seventy-seventh Amendment) Act, 1995, Article 16(4A) of the Constitution of India was embedded into the Constitution of India. The applicable part reads as:
“[The State can] make any arrangement for reservation in issues of advancement to any class or classes of posts for the Scheduled Castes or Scheduled Tribes.”
The amendment says that the State has the power to make reservations for the Scheduled Castes and Scheduled Tribes for advancement to any posts.
81st Amendment Act, 2000
Through the Constitution (Eighty-first Amendment) Act, 2000, Article 16(4B) of the Constitution of India was embedded into the Constitution of India. The applicable part reads:
“[The State may consider] any unfilled opportunities of a year which are saved for being topped off in that year as a different class of opening to be topped off in any succeeding year or years and such class of opening will not be viewed as together with the opening of the year in which they are being topped off for deciding the roof of 50% reservation on complete number of opportunities of that year.”
The amendment allows the State to treat the unfilled vacancies as a separate class of vacancy that is to be filled in subsequent years without being counted towards the total vacancies of the year in which they were originally reserved.
85th Amendment Act 2001
Through the Constitution (Eighty-fifth Amendment) Act, 2001, Article 16 of the Constitution of India has been amended. The wording in Article 16(4A) saying “in issues of advancement to any class” has been substituted with “in issues of advancement, with consequential seniority, to any class.”
Article 335 of the Constitution of India
Article 335 of the Constitution of India addresses the reservation policy for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government jobs. The reservation policy aims to address the historical discrimination faced by SCs and STs since time immemorial. Over the years, various laws and policies have been established, deriving their origin from Article 335 of the Constitution of India. The Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, lay down the communities that are recognised as SCs and STs, respectively. These lists are updated periodically based on socio-economic considerations.
82nd Amendment Act 2000
Through the Constitution (Eighty-second Amendment) Act, 2000, Article 335 of the Constitution of India was amended. A proviso was added to Article 335 of the Constitution of India. The proviso states as follows-
“Nothing in this Article will avoid the creation of any arrangement in favor of the individuals from the Scheduled Castes and the Scheduled Tribes for unwinding in qualifying marks in any examination or bringing down the standards of assessment, for reservation in issues of advancement to any class or classes of administrations or posts.”
The proviso was added to Article 335 in order to provide relaxation in qualifying marks for reservation in matters of promotion of Scheduled Castes and Scheduled Tribes.
Article 368 of the Constitution of India
Article 368 of the Constitution of India outlines the procedure for amending the Constitution. The power is vested with the parliamentary authorities to amend various provisions of the Constitution, including fundamental rights, Directive Principles of State Policies (DPSPs), etc. However, this power is not an absolute one. It comes with certain limitations. The constraint is the doctrine of the basic structure. It acts as a safeguard against arbitrary changes that could undermine the basic principles of the Constitution of India.
Relationship between constitutional form and constitutional principle
The relationship between the constitutional form and constitutional principle is given in the Constitution of India in the form of “basic structure doctrine” and fundamental rights enshrined in Part III. The “Basic Structure Doctrine” pertains to the constitutional form and the fundamental rights pertain to constitutional principles. To ensure the well-being of the citizens of India, these principles highlight the significance of fundamental rights such as freedom of religion, equality before the law, protection of life and personal liberty.
These principles question whether the fundamental rights constitute the basic structure of the Constitution or not. However, these constitutional principles form the backbone of the constitutional form. These principles are reflected throughout the Constitution of India in various provisions and they tend to define the identity and character of the Constitution of India.
There may be different interpretations of realising these principles, however, it is upon the State’s ambit to determine the most effective means to achieve them. It is the duty of the State to ensure that it upholds the fundamental principles of justice and equality, that are intrinsic to the constitutional form. The table below provides a comparison between these two concepts.
| S. No. | Constitutional form | Constitutional principle |
| 1 | It refers to the structure and framework of the Constitution. | It refers to fundamental values and guiding doctrines of the Constitution. |
| 2 | It includes institutional design, division of powers, and procedural mechanisms. | It shapes the interpretation and application of the Constitution. |
| 3 | For exampleSeparation of powersFederalismParliamentary democracyJudicial review | For exampleJusticeEqualityRule of lawFundamental rights |
| 4 | It provides a framework within which governance operates and institutions function. | It serves as a moral and ethical foundation of the Constitution that makes sure that laws and policies align with the set core values. |
Judgment in the case
The Bench held that the amended provisions of Article 16(4A) and Article 16(4B) of the Constitution of India make no changes to the framework of Article 16(4) of the Constitution of India. It was further held that Article 335 of the Constitution of India highlights the importance of preserving certain criteria, such as backwardness and insufficiency of representation, and that the overall administration is not affected while implementing reservation policies. These criteria ensure that reservations are given to economically and socially disadvantaged groups. The reservations are made while keeping in mind the efficiency of government administration. The amendments that are challenged in this case are only applicable to the Scheduled Castes (SCs) and Scheduled Tribes (STs).
There are three crucial elements, i.e., the 50% reservation threshold, the creamy layer and the necessity of a reasonable justification. These prerequisites are important to ensure that the system of equal opportunity is being given to people in need. Firstly, the 50% threshold sets a limit on the total percentage of reserved seats in government jobs. This helps in balancing the interests of both reserved and general category candidates. This ensures that the candidates are given an equal opportunity and that the deserving candidate gets a fair chance to contest. Secondly, the creamy layer concept aims to prevent the benefits of reservation from being availed by those individuals who fall well within the criteria of the reserved category. This ensures that the reservation benefits are given to only those people who truly need upliftment. Thirdly, before making provisions for reservations, the concerned state authorities must look into the existing factors of backwardness, lack of participation and overall administration in each case. This ensures that reservation policies are made on the basis of genuine gaps in the socio-economic status of individuals. These provisions act as a safeguard to uphold the integrity of the reservation system in India.
The Hon’ble Bench further explained that the clauses that are challenged are just enabling clauses/provision and the government is not required to impose reservations for Scheduled Castes (SCs) or Scheduled Tribes (STs) in the promotion. The State must collect quantitative facts that clarify and portray the existence of a certain sort of backwardness and insufficiency of representation in public employment. This shall be done in order to establish the provision for reservations in promotions. The State, while doing so, must also comply with Article 335 of the Constitution of India.
It was pointed out that even if the State has valid reasons for implementing the reservation policies, it must ensure that the policies do not go overboard. This means that the reservation laws should not become excessive, eventually leading to the exclusion of serving candidates from the creamy layer. The Court also emphasised that the reservation benefits should not be extended indefinitely as it would hinder social mobility and perpetuate dependency amongst individuals. There shall be a balance maintained while making such reservation policies.
The State must mention in detail how the reservation in promotions will help and promote the backward classes without affecting the administrative efficiency of the government. The State shall submit a document outlining the reasons for the reservation in promotions and justifying the inadequacy of representation of the backward class in society.
As per the Hon’ble Bench, social justice is concerned with the allocation of advantages and obligations. The conflict between rights, needs and means serves as a basis for distribution. These requirements can be classified as formal equality or proportional equality. Equality here means that the law treats everyone equally.
The rationale behind this judgment
Standards of judicial review of constitutional amendments
The Constitution of India is not just a document containing rules and regulations for the passing hour. Rather, it sets out certain principles that bring in the scope of an expanding future and is drafted to endure for ages to come. Hence, there is a need for a purposive approach rather than a strictly literal approach to interpret the provisions of the Constitution that have more than just words to say. The provisions must be adapted in a wide and liberal manner. It must take into consideration the changing conditions. Each individual possesses some basic human rights independently of any constitution because of the simple fact that they are a part of the human race. The fundamental rights possessed by these individuals hold an intrinsic value. The fundamental rights are not conferred upon the people by Part III of the Constitution of India; rather, it just confirms their existence and protection. The purpose of this is to deviate certain topics from the political controversies. This is to be done to place them in a position where no majority or official can reach them and violate them and to regard them as legal principles that are to be applied by the courts. Every fundamental right holds a foundational value. A right is converted into a fundamental right because it holds that foundational value. The fundamental right acts as a limitation to the power of the State.
In the case of Sakal Papers (P) Ltd. vs. Union of India (1961), the Court held that the courts must not be too rigid to interpret the language in the literal sense. The Constitution should be interpreted in a manner that would enable individuals to enjoy their guaranteed rights to the fullest. Back in 1950, the Supreme Court gave a narrow and literal interpretation in the case of A.K. Gopalan vs. State of Madras (1950). As per Article 21 of the Constitution of India, no individual should be deprived of his life and personal liberty except by procedures established by law. Herein, the Supreme Court refused to incorporate the principles of natural justice. By a majority, the Court held that the procedure established by law means the procedure established by Parliament or the legislature of the State. After a period of three decades, it was overruled by the landmark judgment of Maneka Gandhi vs. Union of India (1978). It was held, in this case, that the procedure given by Article 21 of the Constitution of India must answer the test of reasonableness. The procedure must be in conformity with the principles of natural justice. The right to live is not only restricted to mere physical or animal existence but also to living the human life with dignity. The Court has made certain observations that certain fundamental features are implicit in the Articles. For example, freedom of information falls under freedom of expression. The Court took a liberal approach in interpreting the right to know and the right to access information under the right to free speech and expression guaranteed under Article 19(1)(a).
It is important to understand that the final word on the content of a right is of the Court. There have been several debates on the nature of constitutional adjudication. On one hand, it is argued that the judicial review of legislation should be literal and to its original intent. Whereas, on the other hand, there are a variety of standards and values permitted in cases where the constitutional text is indeterminate in nature. The question that stands relevant for the Court is to determine the standards of determination that need to be applied in judging the validity of constitutional amendments with reference to basic structure doctrine. The concept of basic structure grants certain durability to the Constitution by giving it an intrinsic value. The doctrine has been taken from the German Constitution.
In S.R. Bommai and Ors. vs. Union of India and Ors. (1994), the Court held that the policies of a State Government against the element of the basic structure of the Constitution would be valid grounds for the exercise of central power under Article 356 of the Constitution of India, i.e., the imposition of the President’s rule. It was also declared that secularism is an essential feature of the Constitution of India and forms a part of the basic structure as well. The Court further held that the State Government’s acts can be dismissed if they act against the basic principles of enacting provisions.
The point that the Supreme Court is trying to make is that the principles of federalism, secularism, reasonableness, socialism, etc are beyond the words of a particular provision. These principles give coherence to the Constitution of a nation. They are a part of the Constitutional law, even if they are not stated explicitly. In order to make the constitutional principles eligible for being considered as basic features of the Constitution, it must be established that they are a part of Constitutional law that is binding on the legislature. Then, it is essential to determine whether the principle forms part of the basic structure of doctrine. Therefore, if a principle needs to qualify as a basic feature, it first has to be established as a part of the constitutional law. Only after this can it be further scrutinised whether it is fundamental enough to bind even the amending power of the Parliament. The basic structure doctrine has been taken from the German Constitution. It can be seen from various similar provisions under both the Constitutions relating to freedom of the press or religion. These are not only just values but are capable of interpretation. There is a positive duty imposed on a State to not only protect the rights, liberty and freedoms of an individual but also to facilitate these as well. Certain axioms, like secularism, democracy, reasonableness, etc., are principles that provide a link to Articles 14, 19 and 21. However, these are beyond the amending power of Parliament. Human dignity must be protected by the State. Though there is no such definition of human dignity defined by law, it commonly refers to the intrinsic value of human beings, which must always be respected. This is the reason why German courts see human dignity as a fundamental principle and this is how the basic structure doctrine has evolved itself under the German Constitution.
Under the Indian Constitution, federalism is not mentioned in the preamble. However, its principle is delineated over various provisions of the Constitution of India. The concept finds its origin in the separation of powers under Articles 245 and 246 read with the three lists in Schedule VII of the Constitution of India. The Court relied on the doctrine of constitutional identity as explained in the case of Kesavananda Bharati Sripadagalvaru vs. State of Kerala (1973). In this case, it was observed that no one can legally use the Constitution to destroy itself. It was observed by the Court that the personality of the Constitution must remain unchanged. This is the reason why the Court relied on the doctrine of constitutional identity while giving the judgment. The old legislation that has been altered or amended stands to exist even though it has been subject to alterations. To destroy the identity would mean to abrogate the basic structure of the Constitution. The Court concluded with the then Chief Justice of India, Y.V. Chandrachud’s statement in the Minerva Mills Ltd. case that “the Constitution is a precious heritage and, therefore, you cannot destroy its identity.”
Is equality a fundamental feature or part of the basic structure of the Constitution of India
Equality, judicial review, rule of law and separation of powers are intimately connected with each other, but they are separate from each other and must be treated separately. There cannot be any one of them without the other. For example, there would be no rule of law without equality before the law.
In the case of Minerva Mills, it was observed that Articles 14 and 19 of the Constitution of India do not amount to any fanciful rights. The rights that are conferred are elementary for the proper functioning of a democracy. The Universal Declaration of Human Rights (UDHR) has regarded these rights universally. The majority in this case said that the principles given in Part IV of the Indian Constitution are common to all polities, whether democratic or authoritarian economies. Without these freedoms, democracy is impossible to sustain. Hence, equality is the essence of democracy and a basic feature of the Constitution. As held in Indira Nehru Gandhi vs. Raj Narain (1975), free and fair elections are a part of representative democracy. The principle that comes out of all the observations is that of equality. It is the essence of democracy and, hence, a basic feature of the Constitution of India. However, free and fair elections might not contribute to the basic features but they are an essential part of representative democracy. Just like equality and representative democracy, federalism is also an important part of constitutional law. Federalism is not mentioned in the preamble. The essence of federalism can be seen in various provisions, like Articles 245, 246 and 301, and three lists of the Seventh Schedule of the Constitution of India.
The Supreme Court was of the view that the theory of basic structure is the only theory by which the validity of the impugned amendments to the Constitution can be judged. The theory says that it is based on the principle that a change in a thing does not involve its destruction or that the destruction of a thing is a matter of substance and not of form. Therefore, the principle of overarching must be applied to gather information from the scheme, placement and structure of an Article in the Constitution of India. For example, the inclusion of Articles 14, 19 and 32 in equality, freedom and access to the Supreme Court, respectively.
Concepts of justice, social, economic and political, are also provided in Part III of the Constitution of India
The rights conferred upon citizens and non-citizens are not merely individual or personal rights. These rights have a huge impact on society at large and also on political content. This is because the objectives of the Constitution cannot be realised without them. Article 38 in Part IV of the Constitution of India is the only provision that talks about justice, social, economic and political. However, justice is not only limited to these DPSPs. There can be no justice without equality. Article 17 of the Constitution of India abolishes untouchability by promoting equality. Article 25 of the Constitution of India allows the States to open public temples for untouchables. Therefore, it can be seen that Part III also provides for political and social justice.
In the present case, the concern is that the right of an individual to equal opportunity is on the one hand and preferential treatment on the other. There are conflicting claims in the present case within the concepts of justice, social, economic and political. Public employment is a scarce commodity and demand is chasing that commodity. The concept of equality of opportunity concerns an individual, whether he belongs to a general category or any other backward class. The issue has to be optimised for these conflicting interests and claims.
The above discussions are important for the present case because herein we are concerned with the reservation policy. Balancing fundamental rights, as done in the cases of Kesavananda Bharati and Minerva Mills, cannot be equated with the facts of the present case.
Concepts of equity, justice and merit, and reservation and its extent
There are three independent variables that play crucial roles in public employment, i.e., equity, justice and merit. Their application depends on the quantifiable data present in each case. There exists a contrast between equality in law and equality in fact. Article 16(4) is equality, in fact. The general class looks for equity, the backward class looks for justice and it is the third variable that is the most difficult to decide, i.e., efficiency in service. These principles are hard to understand when compared to each other. This is the reason why the State shall see it on a case-to-case basis. The Court has observed that certain restrictions on the power of the State under Article 16(4) are to be read with Article 335 of the Constitution of India.
Equality has two aspects. There is a conceptual distinction between a non-discrimination principle and affirmative action. Both concepts constitute equality of opportunity. If the quota of reservation goes beyond the cut-off point, then it results in reverse discrimination. The surest immunity against charges of discrimination is the numerical benchmark. The provision of reservation should be used in a limited sense; otherwise, it will lead to casteism in the country. The backwardness shall be based on objective factors. However, inadequacy also exists factually. This is where judicial review plays its role. The Court cannot decide on the matter of reservation as long as the parameters of Articles 16(4) and 16(4A) are maintained.
The extent of reservation involves two questions. Firstly, whether there is any upper limit beyond which reservation is not permissible. Secondly, whether there is any limit to which seats can be reserved in a particular year.
In order to understand the extent of reservation, it is essential to know whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1) of the Constitution of India. The Court observed that, if Article 16(4) is an exception to Article 16(1), then it has to be seen with a limited scope. This shall be done to prevent it from eclipsing the general rule in Article 16(1). If both of these Articles are taken into consideration as part of each other, then they shall be harmonised keeping in mind the interests of certain sections of society.
Maximum limit of reservation possible
In the case of General Manager, Southern Railway vs. Rangachari Gajendragadkar (1961), the word of caution against excessive reservation was first pointed out. It was emphasised by the majority of judges that the reservation under Article 16(4) of the Constitution of India is merely for the adequate representation of backward communities. There has to be a reasonable balance between the claims of backward classes and the claims of other employees. However, the question of the extent of reservation was not addressed in this case. But the same was directly involved in M.R. Balaji vs. the State of Mysore (1962), where the question of the extent of reservation was addressed with reference to Article 15(4). The 60% reservations under Article 15(4) of the Constitution of India were struck down as excessive and unconstitutional. The special provision should be less than 50%. In State of Kerala vs. N.M. Thomas (1975), it was observed that, although reservation cannot be so excessive as to destroy the principle of equality of opportunity under Article 16(1), it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4).
It was further held in the case of Indra Sawhney that the rule of 50% as laid down in the case of Balaji was a binding rule and not merely a rule of prudence. Justice Reddy stated that Article 16(4) comprises adequate representation and not proportionate representation. However, the proportion of the population of backward classes to the total population of the nation would be certainly relevant. Emphasis was laid on balancing the rights given in Article 16(4) and Article 16(1). Both provisions shall be read in harmony because they are restatements of the principle of equality as given under Article 14 of the Constitution of India.
Can the reserved category contest a vacancy in the general category
It was noted in the case of Indra Sawhney that the reservations given under Article 16(4) of the Constitution of India do not work on a communal basis. The selection of a reserved category person in the general category would not be counted against the quota limit provided under his class. A similar view was taken by the Supreme Court in the case of R.K. Sabharwal vs. State of Punjab & Ors. (1995). It was noted that general candidates are not allowed to fill the vacancies of a reserved post but the reserved category is entitled to compete for the posts in the general category.
How many vacancies could be reserved
The catch-up rule is a practice of carrying forward the unfilled reserved vacancies from one year to the next in order to make sure that backward candidates eventually fill up the reserved positions over time. As per Article 16(4) of the Constitution of India, if in a particular year the number of qualified candidates from backward classes falls short, the government can adopt the catch-up rule. However, this has led to situations where more than 50% of the vacancies were reserved i.e., in excess of the constitutional principle.
In the Rangachari case, it was seen that the carry forward rule for reservation became obsolete and in conflict with itself. This was because the availability of reserved category candidates was less than the vacancies reserved for them. In such cases, the government had to adopt either of the two measures. First, the State may provide for carrying on unfulfilled vacancies for further years. Second, Instead of giving carried forward vacancies, it may fill up the vacancies from the general category and eventually carry forward the unfilled post by the reserved category to next year.
The main conflict arises when, by the way of carry forward rule, more than 50% of vacancies get reserved. In T. Devadasan vs Union of India (1963), the Union Public Services Commission (UPSC) provided for 17.5% reservation for SCs and STs. The unfilled vacancy was to be filled by general category candidates and the number of such vacancies was to be carried forward to next year. Due to this practice of carry-forwarding the reserved vacancies, the reservation amounted to 65% in a year. The petitioner contended that this violated their rights under Articles 14 and 16(1) of the Constitution of India. The Court, on the basis of the Balaji case, held such kinds of reservations unconstitutional because they were in excess of the required provision. It was held that, as per the provisions of Article 16(1) of the Constitution of India, the State shall see that citizens are to be treated equally in the case of recruitment to any office under the State.
In the Indra Sawhney case, the Court was of the view that the 50% rule should apply in order to save the opportunity under the Constitution for the general category. Article 16(4) and Article 16(1) of the Constitution of India should both be balanced and should not be allowed to eclipse each other. The entire cadre strength shall be considered in order to determine reservation in cases of promotions, as per the case of RK Sabharwal.
The concept of strength of cadre is the total number of positions or posts available for people in a particular department or service. To determine the proportion of reservations, it should be related to the total strength of the cadre. Justice Subba Rao, in his dissenting opinion in the case of Rangachari, emphasised that the State while implementing reservations, must focus on the strength of the entire cadre. As per him, the key factor is whether the reservation disproportionately fills up an important part of cadre strength or not. If it does not, then reservations shall be applied to ensure the backward classes get adequate representation.
Catch-up rule: a constitutional requirement under Article 16(4) of the Constitution of India
The petitioners were of the view that the 77th and 85th Amendments to the Constitution of India were so wide that they violated the basic structure of equality. The main issue arising out of the case was whether the catch-up rule and the concept of consequential seniority are part of the basic structure of the Constitution of India under Articles 14, 15 and 16.
In Union of India and Ors. vs. Virpal Singh Chauhan (1995), the catch-up rule was addressed and discussed for the very first time. The rule of reservation was applied at every stage of promotion. Due to certain circumstances, the general candidates were promoted on an ad hoc basis and within a period of 3 months, they were reverted and both SCs and STs were promoted instead. The general candidates challenged this act of controller as being arbitrary and unconstitutional. The general candidates contended that the accelerated promotion may be granted to the reserved candidates but the railways cannot give the consequential seniority to the reserved category for promotions. The Court held that the rule of reservation does not violate Article 16(4) of the Constitution of India. The Court held that there cannot be a uniform method for reservations and this is for the State to decide based on the facts and requirements of each case. The Court stated that the catch-up rule cannot be said to be implicit in Articles 16(1) and 16(4) of the Constitution of India. The situation of having 11 vacancies with 33 candidates from the reserved category arose from the faulty application of the rule of reservation. The Court ordered such a faulty application of the rule to be rectified.
The Court, after referring to the above judgment and the case of Ajit Singh, was of the view that both the rules of catch-up rule and consequential seniority have evolved judicially and are in service of jurisprudence. These are based on practices and cannot be elevated to the status of constitutional principles. Both concepts are not implicit in Articles 16(1) and 16(4) of the Constitution of India, as held in the Virpal Singh Chauhan case.
Scope of impugned constitutional amendments
The Court primarily addressed the reservations in promotions and consequential seniority to address the carry-forward vacancies. The Court applied the width and identity test to determine whether these changes undermine the fundamental principles enshrined in Articles 14, 15 and 16 of the Constitution of India. The width test is related to the assessment of the scope or extent to which the power given by law is applicable. It checks whether the constitutional amendments that are made herein are permissible as per the Constitution of India. The test checks whether the reservations given under the impugned amendments obliterate the limitations of backwardness and inadequacy of representation. Whereas the identity test focuses on the specific function or exercise of power by the concerned State/authority. It checks whether the State has properly identified the circumstances that justify the reservation. However, this test can be done on a case-to-case basis based on the quantifiable data.
In the Indra Sawhney case, the concept of consequential seniority was not held to be inherent in constitutional principles like secularism and federalism. But it was derived from jurisprudential principles. Therefore, its incorporation does not violate the basic structure of the Constitution of India.
The legislative intent behind these amendments was to characterise them as enabling provisions that empower the State to implement reservations while conforming to the principles enshrined in the Constitution. As long as the parameters mentioned in Article 16(4) of the Constitution of India are complied with by the States, the provision of reservation cannot be faulted. Article 16(4A) and 16(4B) of the Constitution of India are further classifications within the principle of equality enshrined in Article 16(4) of the Constitution of India.
Application of the doctrine of guided power under Article 335 of the Constitution of India
After applying the tests to Article 335 of the Constitution of India introduced by the 82nd Amendment, it was found that the provision forms a nexus with Articles 16(4A) and 16(4B). Article 335 of the Constitution of India does not pose any restriction on the State from providing relaxation in the qualifying marks or standards of evaluation for reservation in promotion. The provision is only confined to the Scheduled Castes (SCs) and Scheduled Tribes (STs). A discretionary power is given to the State to relax the qualifying marks or the standards of evaluation. The issue was, hence, whether the State be given such powers or not. The Court was of the view that the introduction of the proviso to Article 335 of the Constitution of India does not obliterate its overall efficiency. The reason behind this is that efficiency is a variable factor. It is for the State to decide, as per the case and circumstances, whether the overall efficiency of the system is affected by such relaxation. If the relaxations are given in excess and ceases to be qualifying marks, then the State is not free to take such actions. The State shall not provide such relaxations. It may develop a system wherein efficiency, equity and justice could be accommodated. It is essential to read Article 335 with Article 46 of the Constitution of India. It says that the State shall promote the educational and economic interests of the people with due care. Scheduled Castes (SCs) and Scheduled Tribes (STs) must be protected from social injustice in society.
Hence, the State may relax the qualifying marks in the interest of Scheduled Castes (SCs) and Scheduled Tribes (STs) when it finds a compelling interest in backwardness and inadequacy. However, the compelling interest must be scrutinised by comparable data. The Court, hence, reiterated the fact that the main objective behind the impugned constitutional amendment was to confer a discretionary power on the State to make reservations for SCs/STs in promotions, subject to the circumstances and the constitutional limitations indicated above.
Impact of amendments on the framework established in Indra Sawhney case
In order to preserve equality, a balance was maintained in the case of Indra Sawhney. This was done to make sure that Articles 14, 15 and 16 of the Constitution of India remain intact and are not violated. Also, social upliftment as enshrined in the Constitution of India shall be achieved. The cadre strength was limited by the 50% ceiling limit and reservation was confined to the initial recruitment and not to the promotions. The petitioners relied on this case to highlight that equality is a basic feature of the Constitution of India. In this case, equality was protected by the 50% ceiling limit and the rights of the general category, Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs), were balanced. In the present case, the issue is whether the sub-classification in favour of SCs and STs is constitutionally valid or not. The division of OBS on one hand and SCs and STs on the other was held permissible. The reservations made for the sub-categories of Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) were held well within the framework of egalitarian equality. Therefore, it was opined that equality is a concept enshrined and retained in Article 16(4A), which flows from the main Article 16(4) of the Constitution of India.
Article 14 of the Constitution of India enables classification on the basis of intelligible differentia. There must be a rational relation with the object that is to be achieved by the law. Similarly, in the present situation, the classification shall be made on the basis of the differential between the current vacancies and carry-forward vacancies. The Court upheld the classifications given in Articles 16(4A) and 16(4B) of the Constitution of India. The constitutional amendments do not obliterate equality.
The Court mentioned the concept of social justice. It is related to the distribution of benefits and burdens. Under this comes the concept of formal equality and proportional equality, which cover the three criteria of rights, needs and means. Formal equality means that the law treats everyone equally and proportional equality is based on egalitarian equality. The Court has long taken the view that caste should not be a determinant of backwardness. Instead, only economic criteria should be the factor determining the backwardness. The Court was bound by the decision of the Indra Sawhney case. The Court has evolved the numerical benchmark of 50% along with the concept of replacement to provide immunity against the charge of discrimination.
Critical analysis of M. Nagraj vs. Union of India (2006)
It can now be clearly seen that the impugned constitutional amendments, i.e., with respect to Articles 16(4A) and 16(4B), flow from Article 16(4) itself, as held by the Supreme Court in the case of M. Nagraj & Ors. vs. Union of India & Ors. (2006). The said amendments do not alter the basic structure of the Constitution of India. The provisions are only concentrated on benefits for the Scheduled Castes and Scheduled Tribes by way of providing reservations. They do not mandate the provisions of a ceiling limit of 50%, the concept of creamy layer and sub-classification of OBC, SCs and STs, as held in the case of Indra Sawhney, or the post-based roster with the in-built concept of replacement, as held in RK Sabharwal. The five-judge Bench of the Supreme Court unanimously upheld the impugned constitutional amendments, i.e., the 77th, 81st, 82nd and 88th Constitutional Amendment Acts. These constitutional amendments retain the controlling factors of backwardness and inadequacy of representation that enable a State to give reservations while keeping in mind the overall efficiency of the State administration provided under Article 335 of the Constitution of India.
All these mentioned concepts are constitutional requirements without which the structure of equality of opportunity under Article 16 of the Constitution of India would collapse. The main issue that arose in this case was the extent of the reservation. To determine the extent of reservation, it is upon the State to determine the reservation criteria as per the facts and circumstances in a case. The factors on which the reservation would rely are the existence of compelling reasons like backwardness, the inadequacy of representation and overall administrative efficiency. The State is not under the obligation to make reservations for SCs and STs in cases of promotions. It is their discretion and they have to provide quantifiable data to showcase the existence of such backwardness and inadequacy of representation in public employment in compliance with Article 335 of the Constitution of India. Even if the State has its reasons for reservations, it shall also see that these reservations do not breach the ceiling limit.
It was because of all the above-mentioned reasons that the 77th, 81st, 82nd and 85th Constitutional Amendment Acts were held to be valid. These are not beyond the amending power of Parliament. In order to apply the basic structure doctrine, the twin tests of width and identity must be satisfied. The Court held that neither of the tests were violated and, hence, there is no violation of the basic structure of the Constitution of India.
As per Article 16(4), the Government is free to give reservations to the candidates if they are satisfied on the basis of quantifiable data. This data must indicate that these backward classes are inadequately represented in the service. It is for these reasons that whenever the State decides to provide reservation, there must be two circumstances, i.e., backwardness and inadequacy of representation. Also, these limitations have not been removed by the impugned amendments. It is only when the State fails to apply the twin tests that the reservations become invalid. Otherwise, these amendments do not violate the structure of Articles 14, 15 and 16.
The Supreme Court herein in this case gave its decision, upholding the Parliament’s action to broaden the reservation for SCs and STs to also include the promotional aspect. This marked a significant change in the development of the weaker section of society and the laws made provided reservation in promotions, which helped to encourage individuals from backward classes like SCs and STs to participate more efficiently.
A close reading of the Supreme Court’s verdict in the Nagaraj case reveals the fact that the Court used the expression “creamy layer” while interpreting Articles 16(4), 16(4A) and 16(4B) and in the process of specifying limitations on the amending power of Parliament regarding social reservations.
Aftermath development in the case
Facts of the case
In this case, the petitioner challenged the Nagraj judgment. After the case’s decision in 2006, various states and the centre were challenging it. In this case, the petitioner was of the view that the Nagraj Case has made it difficult to provide reservations in promotion for government jobs and public services. The case was further referred to a seven-judge bench of the Supreme Court.
There were certain observations that were made in the case. Those were that Article 16(4) grants the power to the State to make reservations in appointments and posts in backward classes but the same is not applicable to promotions. Article 16(4A) was introduced with the aim that nothing in the mentioned article would prevent the State from taking the decision to make reservations in the matter of promotions. The said clause was added through the 81st Constitutional Amendment. The fact that the State was required to collect quantifiable data and the concept of the creamy layer mentioned in the Nagraj case raised questions on equality, hence the petition was filed to review the Nagraj case.
Issues involved
Whether there was a requirement to re-assess the Nagraj judgment by a seven-judge bench?
Whether the State is required to collect quantifiable data in order to prove the existence of backwardness and inadequacy of class while being promoted?
Whether the creamy layer in the SCs and STs should be barred from getting promotions through reservations?
Judgment
The Court held that there is no requirement to refer the Nagraj case to a seven-judge bench. Also, the issue of whether the State has to collect quantifiable data to show the backwardness and inadequacy of SCs and STs is contrary to the nine-judge bench decision of the Indra Sawhney case, making it invalid. It was clearly held in the Indra Sawhney case that any discussions on the concept of the creamy layer have no relevance with reference to the SCs and STs. The Supreme Court further held that the application of the creamy layer to the promotions for SCs and STs as held in Nagraj is fair. The Court saw the principle of the creamy layer as a principle of identification and not of equality.
Conclusion
Reservation is a hot topic in any democracy. Though the laws have been laid down in this regard, the procedural requirements and workability of the provisions must be carefully scrutinised before awarding reservations. The grounds, like inadequacy in representation and backwardness, are to be carefully examined. Due to the inadequacy of representation, the text of Article 16 clearly states that it is a matter of the State to determine to what extent a reservation can be given. While it must base its determination on some materials, the importance is given to the empirical evidence that is required. The proper studies must be conducted by the State to determine the correct number of candidates who need reservations.
There is a legal framework to govern and regulate reservations but it is more important to check the procedural aspects and the practical feasibility of the provisions before actually implementing them. The grounds must be rigorously evaluated before coming to a decision. The evaluation demands a deep understanding of the socio-economic disparities that coexist in society. The critics argue that reservations made solely on the basis of caste lead to certain stereotypes and fail to address the disadvantages that one faces due to belonging to a backward class. Therefore, factors beyond the caste shall also be taken into consideration, such as gender, disability, economic status and any other relevant criteria as per the situation.
While these reservations are crucial for addressing historical injustices, a balanced approach must be taken to protect the interests of those who do not belong to any such reserved category. This is important to ensure the effectiveness and fairness of reservation policies in a society.
Frequently Asked Questions (FAQs)
What was the M. Nagraj vs. Union of India case all about?
The case primarily challenged the constitutionality of the reservations in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government jobs.
What are the key provisions of Article 16 of the Constitution of India?
Article 16 of the Constitution of India provides for equality of opportunity in the matter of public employment and allows reservations in favour of certain categories, like Scheduled Castes, Scheduled Tribes and Other Backward Classes.
What is the significance of Article 335 of the Constitution of India in the context of reservations?
Article 335 of the Constitution of India aims at preserving certain criteria, such as backwardness and insufficiency of representation. At the same time, it implements reservation policies to ensure the efficiency of the government administration.
How did the judgement impact the reservation policies in India?
The Supreme Court’s judgment provided clarity in the constitutional validity of the reservations in promotions and also highlighted the need to maintain a balance between the injustices and efficiency of the government administration.
Which Constitutional amendment was challenged mainly in this case?
The petition challenged the constitutionality of the Constitution (Eighty-Fifth Amendment) Act, 2001. It provided reservations in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs).
Can the case potentially lead to a reverse discrimination scenario in India?
The judgment aims to address the injustice that has been present in society since time immemorial. However, some argue that it might inadvertently discriminate against individuals not covered in the reservation policies. However, the court has emphasised maintaining a balance to prevent such scenarios.
References
- https://indiankanoon.org/doc/102852/
- https://www.jstor.org/stable/43952109
- https://blog.ipleaders.in/jarnail-singh-vs-lachhmi-narain-gupta-case-study/
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