M. Nagaraj and Ors. Vs. Union of India (UOI) and Ors.

Judges: Y.K. Sabharwal,C.J., K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, JJ.

Facts:

The government inserted Article 16(4A) by way of 77th Amendment in the Indian Constitution. As per this amendment, the State was empowered to make reservations in case of promotions to SC/STs, wherever it believed that there is no adequate representation of such groups in public services.

The 81st Constitution Amendment Act permitted the government to lift the 50% cap on regular reservations by introduction of the Carry Forward Rule as under Clause 4B of Article 16. Due to this, the backlog of unfulfilled vacancies could now be carried forward from the previous years to the current year.

The 82nd Constitution Amendment Act added a provision to Article 335. According to Article 335, all the reservations which are made for ST/SC have to be in accordance with efficiency of administration. By adding a provision to this article the government ensured nothing can withstand it from relaxing the standard of evaluation or reducing qualifying marks in matter of reservation/promotion for ST/SCs.

The 85th Constitution Amendment Act replaced the text \to any class\ to \consequential seniority to any class under Article 16 clause 4A for promotion and reservation. The purpose was to ensure the interests of government servants and the promotion to higher grade.

Hence, a writ under Article 32 of the Constitution was filed to question the vires of the Constitution (77th) Act, 1995, Constitution (81st) Act, 2000, Constitution (82nd) Act, 2000 and Constitution (85th) Act, 2001 on grounds, inter alia, that it violate the basic structure of the Constitution.

Issues:

i. Whether the Constitution (Seventy-Seventh Amendment) Act, 1995, which inserted clause 4A in Article 16 of the Constitution is valid?

ii. Whether the Constitution (Eighty-First Amendment) Act, 2000 which inserted clause 4B in Article 16 of the Constitution is valid?

iii. Whether the Constitution (Eighty-Second Amendment) Act, 2000 which inserted a proviso to Article 335 is valid?

iv. Whether the Constitution (Eighty-Fifth Amendment) Act, 2001 which changed the wording of Article 16(4A) is valid?

v. Whether the impugned constitutional amendments violate the principle of basic structure?

Laws:

Constitution of India - Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Constitution of India - Article 16(1) - There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Constitution of India - Article 16(4) - Empowers State for making provision for the reservation of appointments or posts in favour of any backward class of citizens.

Constitution of India - Article 16(4A) - Empowers State for making 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.

Constitution of India - Article 16(4B) - Empowers State for making provision for considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years.

Constitution of India - Article 335 - The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

Contentions:

Petitioner

i. Equality is a part of the basic structure and it is impossible to conceive of the Constitution without equality as one of its central components.

ii. Article 16 is integral to equality and has to be read with Article 14 and with several other Articles in Part-IV of the Constitution.

iii. A balance has to be evolved to promote equal opportunities while protecting individual rights.

iv. As an individual right in Article 16(1), enforceability is provided for whereas "group expectation" in Article 16(4) is not a fundamental right but it is an enabling power which is not coupled with duty.

v. Parliament cannot under Article 368 expand its amending power so as to acquire for itself the right to abrogate the Constitution. If the width of the amendment invites abrogation of the basic structure then such amendment must fail.

vi. The impugned amendments are violative of the basic structure and the fundamental values of the Constitution articulated in the preamble and encapsulated in Articles 14, 16 and 19 of Constitution They violate the fundamental postulates of equality, justice, rule of law and secularism as enshrined in the Constitution. They further violate the fundamental role of the Supreme Court as interpreter of the Constitution.

Respondent

i. The power of amendment under Article 368 is a 'constituent' power and not a 'constituted power'. There are no implied limitations on the constituent power under Article 368.

ii. The power under Article 368 has to keep the Constitution in repair as and when it becomes necessary and thereby protects and preserves the basic structure.

iii. The amendments to the Constitution which are aimed at removing social and economic disparities cannot offend the basic structure.

iv. The principle of balancing of rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution.

v. Articles 16(4A) and 16(4B) of Constitution are only enabling provisions. Impugned amendments have maintained the structure of Articles 16(1) to 16(4) intact.

vi. Article 16(4B) of Constitution applies to reservations under Article 16(4) and therefore reservation is found to be within reasonable limits

Analysis:

Constitution (Seventy-Seventh Amendment) Act, 1995 - Clause 4A validly inserted in Article 16 of Constitution

I. Supreme Court in Indra Sawhney and Ors. v. Union of India MANU/SC/0153/1997, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion.

II. This ruling of the Supreme Court adversely affected the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States did not reach the required level, it was necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes.

III. To carry out this, it was necessary to amend Article 16 of the Constitution by inserting a new Clause (4A) to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.

Constitution (Eighty-Fifth Amendment) Act, 2001 - Changed wording of Article 16 (4A), whether valid

I. After the Constitution (Seventy-Seventh Amendment) Act, 1995, the Court stepped in, to balance the conflicting interests. In Union of India and Ors. vs. Virpal Singh Chauhan and Ors. MANU/SC/0113/1996, Court held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority.

II. In these circumstances, Clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees.

III. The Constitution (Eighty-Fifth Amendment) Act, 2001 was an extension of Clause (4A) of Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act, 2001 and hence, is valid.

Constitution (Eighty-First Amendment) Act, 2000 - Clause 4B validly inserted in Article 16 of Constitution

i. Prior to August 29, 1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non-availability of the candidates belonging to these classes, were treated as "Backlog Vacancies". These vacancies were treated as a distinct group and were excluded from the ceiling of 50% reservation.

ii. Supreme Court in Indra Sawhney v. Union of India MANU/SC/0153/1997, held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of 50%.

iii. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes combined together had already reached 49.5% and the total number of vacancies to be filled up in a year could not exceed 50%, it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives.

iv. Therefore, to implement the judgment of the Supreme Court, an Official Memorandum dated August 29, 1997 was issued to provide that the 50% limit shall apply to current as well as "Backlog Vacancies" and for discontinuation of the Special Recruitment Drive.

v. Due to the adverse effect of the aforesaid order dated August 29, 1997, the Government, after considering various representations, reviewed the position and decided to make amendment in the constitution. This was done so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before August 29, 1997.

Constitution (Eighty-Second Amendment) Act, 2000 - Validly inserted a proviso to Article 335

i. By the Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the end of Article 335 of the Constitution. This Proviso was inserted keeping in mind the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335.

ii. Once a separate category is carved out of Article 16(4) then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone, and hence, is compatible with the scheme of Article 16(4A) and therefore, is valid.

Impugned Constitutional Amendments - Whether violates basic structure of Constitution - 'Width test' and 'Test of identity'

i. 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'.

ii. The width test means expanding an amendment to its widest possible meaning to see if it violates any constitutional provision. The identity test, on the other hand, would check whether the amendment seeks to alter the identity of the Constitution as a whole.

iii. 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.

iv. 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. Article 16(1) cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society.

v. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14 of the Constitution. Article 16(4) refers to affirmative action by way of reservation. It, 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.

vi. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, 'backwardness' and 'inadequacy of representation'. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments.

Conclusion:

i. Constitution (77th Amendment) Act, 1995 and Constitution (81st Amendment) Act, 2000 by which Articles 16(4A) and 16(4B) have been inserted respectively flow from Article 16(4). They do not alter the structure of Article 16(4).

ii. 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 OBC on one hand and SCs and STs on the other hand.

iii. 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.

iv. The State is not bound to make reservation for SC/ST in matter 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 of Article 335.

v. The Court upheld the constitutional validity of the Constitution (77th Amendment) Act, 1995, the Constitution (81st Amendment) Act, 2000, the Constitution (82nd Amendment) Act, 2000 and the Constitution (85th Amendment) Act, 2001.

Important Precedent:

i. Union of India and Ors. v. Virpal Singh Chauhan and Ors. MANU/SC/0113/1996 

ii. Ajit Singh Januja and Ors. v. State of Punjab and Ors. MANU/SC/0319/1996

iii. Indra Sawhney and Ors. v. Union of India MANU/SC/0153/1997 

iv. A.K. Gopalan v. State of Madras MANU/SC/0012/1950