This Case commentary is written by Kajal Kumari, a Fifth-Year law student of the Sardar Patel Subharti Institute Of Law

· COURT: SUPREME COURT OF INDIA

· EQUIVALENT CITATION: AIR 2007 SUPREME COURT 71

· DATE OF JUDGMENT: 19/10/2006

· BENCH INVOLVED: Y.K. Sabharwal CJI, K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan

PARTIES:

· PETITIONER: M.Nagaraj & Others

· RESPONDENT: Union of India & Others

STATUTE:

· The Constitution of India, 1950.

· General Clauses Act, 1897.

BOOKS: -

· V.N. SHUKLA’s Constitution of India, 13th edition,2019.

· PMBAKSHI's Constitution of India,17thedition.

· DURGADASBASU's Constitution of India,23thedition.

INTRODUCTION

The reservation has always been a dicey and volatile issue in Indian democracy. 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.

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 v. Union of India., where the idea of reservation in promotion in the government departments was challenged based on the policies on which it was based claiming such policies to be discriminatory and illegal. The Madhya Pradesh Government provided reservation in promotion to the Scheduled Castes and Scheduled Tribes in the public department. The decision was criticized for being an ultra-vires action and breaching the law of equality and provisions laid down in the Nagaraj case.

The Hon’ble Supreme Court of India (hereinafter referred to as Supreme Court) on October 19, 2006, through a five-judge constitution bench, delivered a landmark judgment, concerning various issues vis-à-vis the scope and magnitude of reservation of jobs in the public domain. The principle of the right to equality, liberty, and life are some of the basic human rights guaranteed by birth and need no formal document like the Constitution of India (hereafter referred to as Constitution) to ascertain them.

Equal opportunity, according to John Rawls, is a pre-requisite of a civilized society, however, society does not make everyone equal and thus, it is appropriate to presume that the most disadvantaged have the greatest needs.

In a Country as ostentatious as India, entailing tremendous pluralism, and humongous diversity, both ethnic and linguistic, which is known for its rich heritage also has a watermark on its collar in the form of a thousand-year-old practice of discrimination based on birth. The Varna system categorized humans based on the families they were born in and this led to a massive loss of human dignity in every form imaginable, which is intrinsic to every human being for an extremely long period, a period that cannot be calculated.

However, after the inception of our constitution and the explicit guarantee of equal status under Part III of the Constitution, and various attempts made by the government to uplift the downtrodden through the affirmative action doctrine, which led to the emergence of reservation, the Supreme Court in the year 2006 was faced with multiple questions and the most pertinent one was whether it is constitutionally valid to extend reservation to the job.

HISTORICAL BACKGROUND

• The Central and the State Governments since the 1950s have been following a policy of reserving seats in promotions in favour of SC and ST communities because they are not adequately represented at the decision-making level of public services.

• This policy was held to be unconstitutional and void by the Supreme Court in Indra Sawhney's case[1] On the ground that under Article 16(4) the State is provided with the power to make reservations in favour of backward classes of citizens only at the entry level that is at the time of recruitment into public services but not subsequently.

• The Parliament responded by enacting 77th Constitutional Amendment Act which introduced Article 16(4A). It confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment. This law was given retrospective effect in 1992.

• The Supreme Court in M. Nagaraj v. Union of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy to be constitutionally valid shall satisfy the following three constitutional requirements:

  • The SC and ST community should be socially and educationally backward.

  • The SC and ST communities are not adequately represented in public employment.

  • Such a reservation policy shall not affect the overall efficiency of the administration.

FACTS OF THE CASE

The facts of the present case involved a challenge to the insertion of Arts. 16 (4A) and 16 (4B) by the Parliament of India via the Constitution (Eighty-fifth Amendment) Act, 2001 (hereinafter referred to as the 85th Amendment Act), which inserted Art. 16 (4A) retrospectively for being in defiance of the basic structure doctrine and the judgment in the case of Indra Sawhney and Ors v. U.O.I. (hereinafter referred to as Indra Sawhney).

The Constitution from its very inception has Art. 16, which begins with a non-obstante clause, authorizing the State to make laws for the preservation of jobs or posts for the backward classes, which the State thinks have not been adequately represented. The Parliament, stemming its authority from the said provision, inserted arts. 16 (4A) and (4B) into the Constitution.

The Constitution (Seventy-seventh Amendment) Act, 1995 permitted the State to make reservations for the Scheduled Castes and Scheduled Tribes (hereinafter referred to as SCs and STs) in promotions, which led to a massive hue and cry as it was being claimed that the purpose of bringing such provision into force was to woo the people belonging to the said communities and therefore, attract the voters from the same.

The Constitution (Eighty-first Amendment) Act, 2000 (hereinafter referred to as the 81st Amendment) permitted the State under Art. 16 (4B) from carrying forward the vacancies from the past to any following years and that such posts shall not be coupled with the posts of that particular year, which implied that the cap of fifty percent, which the Supreme Court expounded in the Indra Sawhney case was negated and done away with by the Act of the Parliament.

The 85th Amendment Act went a step ahead and granted consequential seniority to the SCs and STs. It implied that those who had been conferred with the promotion would also be granted seniority as its consequence as was the issue in the present case.

The present case raised several issues before the Supreme Court, which went beyond the constitutional validity of the amendments in question and posed various questions as regards the scope of judicial review, which was held to be a basic feature in the case of L. Chandra Kumar v. U.O.I & Ors. along with other issues like the limitations, which the Parliament must observe while promulgating law bringing in the importance of the doctrine of basic structure.

Another issue raised was as regards the role of the Supreme Court as the ultimate interpreter of the provisions of the Constitution for the reason that it was contended in this particular case that the government deliberately overlooked all the previous decisions of the Supreme Court e.g., Badappanavar, Ajit Singh Januja, Virpal Singh and Indra Sawhney and defied its authority under Art. 141 of the Constitution, which clearly states that the pronouncements made by the Supreme Court shall be declared as the law of the land.

ISSUES RAISED

1. Whether Nagaraj, which upheld reservation in promotions for SC/STs, was correctly decided?

2. Whether Nagaraj violates the Indra Sawhney judgment by requiring SC/STs to be proved as backward afresh in questions of reservation in promotion.

ARGUMENTS BY THE PETITIONERS

In the present case, the petitioners contended that the doctrine of equality is a deep-seated, integral, and inherent part of the Constitution, and without the application of this doctrine; there may be a constitution but no constitutionalism. Not only has it been guaranteed under Part III but has also been provided for under the Preamble of the Constitution. The petitioners urged that the practical facet of the said doctrine is in the context of public employment, which has been provided for under Part XIV of the Constitution.

It was argued that employment in the public sector consists of equality of opportunity as has been laid down under Art. 16 (1), followed by Art. 16 (2), which implements the principle of zero discrimination, followed by Art. 16 (3), which further elaborates on the idea of equality and incorporates the classification followed by the doctrine of affirmation action under Art. 16 (4). It was argued that Art. 16 (4) is a corollary of Art. 16 (1) in specific and Art. 14 in general and that it must be read and understood in the light of the said provisions and cannot be said to conflict with them.

Another contention raised by the petitioners was that the Parliament had violated that basic structure doctrine by inserting arts. 16 (4A) and (4B) in the Constitution and has transgressed its authority and has entered into an area forbidden by the Constitution as was held in the case of Kesavananda Bharati v. State of Kerala. It was submitted that the Parliament’s power to amend the Constitution cannot be said to be unfettered as regards the basic structure is concerned and that it must observe its express limitations while bringing a change in the Constitution.

It was also contended that the Parliament has, by inserting Art. 16 (4B), negated the decision of the Supreme Court in Indra Sawhney, where the Supreme Court itself put a cap of fifty percent on the reservation and that the Parliament and has dishonoured the principle of quantitative limits and qualitative exclusion, which had demarcated a cover on the backward classes.

ARGUMENTS BY THE RESPONDENTS

On behalf of the Union of India, it was contended that the power under Art. 368 of the Constitution is exercised to keep the Constitution in consonance with the changing needs of society for the reason that the Constitution is not a stagnant piece of the document but rather a dynamic body of laws, that must cater to the needs of society and thus, to balance the same, it is required to keep it in repair.

The respondents also contended that the power under Art. 368 is not a constituted power but rather a constituent power and thus, it is unimaginable to impose any restrictions on constituent powers.

It was contended that the Constitutional courts have time and again managed to strike a balance between individual rights and on the other hand the Constitutional goals of attainment of justice, social, economic, and political, which in turn lead to the negation of socio-cultural and economic inequalities and thus, an amendment cannot be struck down on the basis that it violates the principle of equality if it serves the greater good for the reason that the purpose and object of formulating any policy is the attainment of the greatest good for the greatest number of people.

The respondents also argued that Art. 16 (4) has been present in the Constitution from its inception and that if the power is being delegated from the said provision, it is to override the authority under any other provision of the Constitution, including Art. 16 (1) and Art. 14 for that instance for the reason that the said authority is a constituent power delegated by Art. 16 (4), which holds equal authority as Art. 16 (1). If there is any limitation, it stands only to restrict the authority delegated from Art. 16 (4) within the bounds of the said provision and not transgress beyond the same.

It was also contended that Indra Sawhney was restricted to the jurisprudence about only one backward class, i.e., Other Backward Class (hereinafter referred to as OBCs), and not SCs and STs and to put SCs and STs on an equal footing with OBCs would be a constitutional blunder in itself and would do a historical injustice to these communities.

JUDGMENT OF THE CASE

Supreme Court's Judgement

• Application of the “Creamy layer” principle

  • Supreme Court ruled that the "creamy layer exclusion" principle, to date applied only to OBCs, can be extended to SCs and STs to deny reservation to the elite among the two communities.

  • It upheld the constitutional amendments leading to Article 16(4A).

  • Therefore, the Constitution Bench held that there was no necessity to revisit Nagaraj's judgment in so far as it applied the creamy layer test.

  • Giving a stamp of approval to the application of the creamy layer principle to SC/STs, the court asserted that the objective of reservation would not be fulfilled if only the creamy layer within that class bag all the coveted jobs in the public sector, leaving the rest of the class as backward as they always were.
    
    

• Proof Of Backwardness Of SC/STs

  • The Supreme Court held the conclusion in the Nagaraj case that the State has to collect quantifiable data showing the backwardness of the SCs and the STs as invalid. It opined that this was contrary to the finding arrived at by the nine-judge bench in Indra Sawhney v. Union of India.

  • It noted that the nine-judge Bench in the Indra Sawhney case had categorically ruled that test or requirement of social and educational backwardness cannot be applied to SCs and STs, who undoubtedly fall within the expression “backward class of citizens.”
    
    

• Reservation In Promotion Need Not Be in Proportion to Population

  • It noted that while the test of proportionality to the population is mandated by the Constitution in Article 330 (Reservation of seats for SCs & STs in the House of People), it does not do so in the provision of reservations in promotions (Article 16(4A)
    
    

CASE COMMENT

The constitutional validity of arts. 16 (4A) and (4B) were upheld and thus, the validity of the 77th, 81st, and 85th Amendments were upheld. The Court held that while the doctrine of equality was a part of the basic structure doctrine, the rule that prevented conferring seniority was not one, and thus, the doctrine of basic structure could not be attracted and that the tests laid down in various cases cannot be resorted to and made applicable in the present case for the reason that those tests are to try the violation of basic structure and something that does not constitute its violation cannot be tried keeping in mind the same principles and same tests.

The Court held that the idea of providing for ‘accelerated promotions and application of the said principle is merely an evolution of the service jurisprudence, which has been propounded by various Courts and thus, cannot be tried or tested on the same grounds and principles as that of the and various components of the basic structure doctrine. The Court has also provided for various tests in the present case to deal with any such issue of a similar nature shortly, whereby the Court had instructed and mandated the government to come up with quantifiable data to support their findings and only then such a benefit could be accorded on the applicants.

The bench deliberated on a variety of aspects in the present case ranging from the scope of judicial review to the doctrine of basic structure and the power of Parliament to exercise its power to amend under Art. 368. On the scope of judicial review, it was held that the power of judicial review is a part of the basic structure of the Constitution and that the Court is duty-bound to exercise this power whenever it is faced with questions about a transgression of basic structure.

On the issue of basic structure, it was held that the same is part of our constitution and cannot be violated at any cost, however, the idea of reservation in promotions cannot be equated with the concepts of equality and therefore, it must be understood that the same mode and structure of testing cannot be made applicable thereof. The Court also held that it is not bound to make a reservation for SCs and STs in promotion but if it so wishes to do, it must provide relevant data, which must show that the same must be conferred on the concerned applicants.

CONCLUSION

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, the 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 as held in Indra Sawhney, the concept of post-based Roster with the in-built concept of replacement as held in R.K. Sabharwal.

We reiterate that the ceiling limit of 50%, the concept of the creamy layer, and the compelling reasons, namely, backwardness, inadequacy of representation, and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard, 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. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservations for SC/ST in matters of promotions. However, if they wish to exercise their discretion and make such a provision, the State has to collect quantifiable data showing the 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 to breach the ceiling limit of 50% obliterate the creamy layer, or extend the reservation indefinitely.

REFERENCES

· Indra Sawhney v. Union of India and Ors. (1992): case analysis (ipleaders.in) (visited on 03 September 2024)

· Case study of L. Chandra Kumar v. Union of India - Academike (lawctopus.com) (visited on 03 September 3024)

· Case Brief: Keshavananda Bharati v. State of Kerala (lawbhoomi.com) (visited on 04 September 2024)

· M.Nagaraj & Others vs Union Of India & Others on 19 October 2006 (indiankanoon.org)

· Case Commentary On M Nagraj V UOI | PDF | Supreme Court Of India | Constitution (scribd.com) (visited on 05 September 2024)

· 28160.pdf (sci.gov.in)( visited on 02 September 2024 )