& Others Vs. Union of India & Ors  Insc 696
(19 October 2006)
Sabharwal, K.G. Balakrishnan & S.H. Kapadia C.K. Thakker P.K. Balasubramanyan
WP (C) Nos.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, W.P. (C) Nos.153/2003, C.P. (C) No. 404/2004 in W.P.(C) No. 255/2002,
C.P. (C) No.505/2002 in WP (C) No.61/2002, C.P. (C) No.553/2002 in WP (C)
No.266/2002, C.P. (C) No.570/2002 in WP (C) No.255/2002, C.P. (C) No.122/2003
in WP (C) No.61/2002, C.P. (C) No.127/2003 in WP (C) No.61/2002, C.P. (C)
No.85/2003 in WP (C) No.255/2002, W.P. (C) Nos. 313 and 381 of 2003, CIVIL
APPEAL Nos. 12501-12503/1996, SLP (C) No.754/1997, WP (C) No.460 of 2003, CIVIL
APPEAL Nos. 7802/2001 and 7803/2001, W.P. (C) No.469/2003, SLP (C)
No.19689/1996, WP (C) No. 563/2003, WP (C) No.2/2003, WP (C) Nos. 515, 519 and
562 of 2004, WP (C) No. 413 of 1997, WP (C) No.286 of 2004 and SLP (C) No.14518
of 2004. KAPADIA, J.
width and amplitude of the right to equal opportunity in public employment, in
the context of reservation, broadly falls for consideration in these writ
petitions under Article 32 of the Constitution.
IN WRIT PETITION (CIVIL) NO.61 OF 2002:
facts in the above writ petition, which is the lead petition, are as follows.
have invoked Article 32 of the Constitution for a writ in the nature of certiorari
to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article
16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation
in promotion with consequential seniority as being unconstitutional and violative
of the basic structure. According to the petitioners, the impugned amendment
reverses the decisions of this Court in the case of Union of India and others
v. Virpal Singh Chauhan and others , Ajit Singh Januja and others v. State of
Punjab and others (Ajit Singh-I), Ajit Singh and others
v. State of Punjab and others , Ajit Singh and others
v. State of Punjab and others , Indra Sawhney and
others v. Union of India , and M. G. Badappanavar and another v. State of Karnataka and others . Petitioners say that
the Parliament has appropriated the judicial power to itself and has acted as
an appellate authority by reversing the judicial pronouncements of this Court
by the use of power of amendment as done by the impugned amendment and is,
therefore, violative of the basic structure of the Constitution. The said
amendment is, therefore, constitutionally invalid and is liable to be set
have further pleaded that the amendment also seeks to alter the fundamental
right of equality which is part of the basic structure of the Constitution.
say that the equality in the context of Article 16(1) connotes
"accelerated promotion" so as not to include consequential seniority.
Petitioners say that by attaching consequential seniority to the accelerated
promotion, the impugned amendment violates equality in Article 14 read with
Article 16(1). Petitioners further say that by providing reservation in the
matter of promotion with consequential seniority, there is impairment of
efficiency. Petitioners say that in the case of Indra Sawhney5 decided on
16.11.1992, this Court has held that under Article 16(4), reservation to the
backward classes is permissible only at the time of initial recruitment and not
in promotion. Petitioners say that contrary to the said judgment delivered on
16.11.1992, the Parliament enacted the Constitution (Seventy- Seventh
Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which
reintroduced reservation in promotion. The Constitution (Seventy-Seventh
Amendment) Act, 1995 is also challenged by some of the petitioners. Petitioners
say that if accelerated seniority is given to the roster-point promotees, the
consequences would be disastrous. A roster-point promotee in the graduate
stream would reach the 4th level by the time he attains the age of 45 years. At
the age of 49, he would reach the highest level and stay there for nine years.
On the other hand, the general merit promotee would reach the 3rd level out of
6 levels at the age of 56 and by the time, he gets eligibility to the 4th
level, he would have retired from service.
say that the consequences of the impugned 85th Amendment which provides for
reservation in promotion, with consequential seniority, would result in reverse
discrimination in the percentage of representation of the reserved category
officers in the higher cadre.
ISSUES IN WRIT PETITION No.527 OF 2002:
broad issues that arise for determination in this case relate to the:
of (i) the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution
(Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment)
Act, 2000, and the Constitution (Eighty-Fifth Amendment) Act, 2001; and, (ii)
Action taken in pursuance thereof which seek to reverse decisions of the
Supreme Court in matters relating to promotion and their application with
substance of the arguments advanced on behalf of the petitioners briefly is as
is a part of the basic structure and it is impossible to conceive of the
Constitution without equality as one of its central components. That, equality
is the basic feature referred to in the preamble to our Constitution.
Petitioners further submit that Article 16 is integral to equality; that,
Article 16 has to be read with Article 14 and with several Articles in Part-IV.
According to the petitioners, the Constitution places an important significance
on public employment and the rule of equality, inasmuch as, a specific
guarantee is given under Article 16 protecting equality principles in public
employment. In this connection, reliance is also placed on the provisions of
Part XIV to show that the Constitution makers had given importance to public
employment by making a special provision in the form of Part XIV providing
certain rights and protection to the office holders in the services of the Union and the States.
provisions are Articles 309, 311, 315, 316, 317 and 318 to 323. Special
provisions have also been made in Article 323-A which permits establishment of
tribunals as special and adjudicatory mechanism. That, Article 335 recognizes
the importance of efficiency in administration and the various provisions of
the Constitution indicate that public employment was and is even today of
central concern to the Constitution. It is urged that equality in matters of
public employment cannot be considered as merely an abstract concept.
say that over the years, this Court has delivered many decisions laying down
that principles of 'equality' and 'affirmative action' are the pillars of our
Constitution. These judgments also provide conclusions based on principles
which gave meaning to equality both as an individual right and as group
expectations. It is submitted that clause (4) of Article 16 is an instance of
the classification implicit and permitted by Article 16(1) and that this view
of equality did not dilute the importance of Article 16(1) or Article 16(2) but
merely treated Article 16(4) as an instance of the classification; that this
relationship of sub-clauses within Article 16 is not an invitation for reverse
discrimination and that, equality of opportunity cannot be overruled by
affirmative action. It is submitted that "equality in employment"
consists of equality of opportunity [Article 16(1)], anti- discrimination
[Article 16(2)], special classification [Article 16(3)], affirmative action
[Article 16(4)] which does not obliterate equality but which stands for
classification within equality], and lastly, efficiency [Article 335]. As
regards the words 'nothing in this article' in Article 16(4), it is urged that
these words cannot wipe out Article 16(1) and, therefore, they have a limited
meaning. It is urged that the said words also occur in Articles 16(4A) and
16(4B). It is urged that equality in the Constitution conceives the individual
right to be treated fairly without discrimination in the matter of equality of
opportunity. It also conceives of affirmative action in Article 15(4) and
Article 16(4). It enables classification as a basis for enabling preferences
and benefits for specific beneficiary groups and that neither classification
nor affirmative action can obliterate the individual right to equal
opportunity. Therefore, a balance has to be evolved to promote equal
opportunities while protecting individual rights. It is urged that 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. It is submitted that if
the structural balance of equality in the light of the efficiency is disturbed
and if the individual right is encroached upon by excessive support for group expectations,
it would amount to reverse discrimination.
question of power of amendment, it is submitted that the limited power of
amendment cannot become an unlimited one. A limited amendment power is one of
the basic features of our Constitution and, therefore, limits on that power
cannot be destroyed.
submit that Parliament cannot under Article 368 expand its amending power so as
to acquire for itself the right to abrogate the Constitution and if the width
of the amendment invites abrogation of the basic structure then such amendment
must fail. Reliance is placed in this connection on the judgment in Minerva
Mills Ltd. and others v. Union of India and others . On the question of
balancing of fundamental rights vis-`-vis directive principles, it is submitted
that directive principles cannot be used to undermine the basic structure
principles underlying fundamental rights including principles of equality,
fundamental freedoms, due process, religious freedom and judicial enforcement.
question of balancing and structuring of equality in employment, it is urged
that quotas are subject to quantitative limits and qualitative exclusions;
that, there is a distinction between quota limits (example 15% to SCs) and
ceiling-limits/maximum permissible reservation limits (example 50%) which comes
under the category of quantitative limits. However, quotas are also subject to
qualitative exclusions like creamy layer. It is urged that in numerous
judgments and in particular in Indra Sawhney5, M.G. Badaappanavar6, Ajit Singh
(II)3, the equality of opportunity in public employment is clarified in order
to structure and balance Articles 16(1) and 16(4).
answer to the respondents' contentions that Articles 16(4A) and 16(4B) and the
changes to Article 335 are merely enabling provisions and that in a given case
if the exercise undertaken by the appropriate Government is found to be
arbitrary, this Court will set it right, it is contended that ingressing the
basic structure is a per se violation of the Constitution. In this connection,
it is alleged that the basis for impugned amendments is to overrule judicial
decisions based on holistic interpretation of the Constitution and its basic
values, concepts and structure. In this connection, it is urged that the 77th
Amendment introducing Article 16(4A) has the effect of nullifying the decision
in the case of Indra Sawhney5; that, the 81st Amendment introducing Article
16(4B) has been brought in to nullify the effect of the decision in R.K. Sabharwal
& Others v. State of Punjab and others, in which it has been held that
carry forward vacancies cannot be filled exceeding 50% of the posts.
Petitioners say that similarly the Constitution (Eighty-Second Amendment) Act,
2000 introducing the proviso to Article 335 has been introduced to nullify the
effect of the decision in the case of Indra Sawhney5 and a host of other cases,
which emphasize the importance of maintaining efficiency in administration. It
is submitted that, the 85th Amendment adding the words 'with consequential
seniority' in Article 16(4A) has been made to nullify the decision in Ajit
it is urged that 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;
they violate the fundamental postulates of equality, justice, rule of law and
secularism as enshrined in the Constitution and that they violate the
fundamental role of the Supreme Court as interpreter of the Constitution.
the impugned amendments create an untrammelled, unrestrained and
unconstitutional regime of reservations which destroys the judicial power and
which undermines the efficacy of judicial review which is an integral part of
rule of law. It is argued that, Articles 14 and 16 have to be read with Article
335 as originally promulgated; that, the impugned amendments invade the twin
principles of efficiency, merit and the morale of public services and the
foundation of good governance. It is urged vehemently that the impugned
amendments open the floodgates of disunity, disharmony and disintegration.
behalf of the respondents, following arguments were advanced. The power of
amendment under Article 368 is a 'constituent' power and not a 'constituted
power'; that, that there are no implied limitations on the constituent power
under Article 368; that, the power under Article 368 has to keep the
Constitution in repair as and when it becomes necessary and thereby protect and
preserve the basic structure. In such process of amendment, if it destroys the
basic feature of the Constitution, the amendment will be unconstitutional.
according to the respondents, is not merely what it says. It is what the last
interpretation of the relevant provision of the Constitution given by the
Supreme Court which prevails as a law. The interpretation placed on the
Constitution by the Court becomes part of the Constitution and, therefore, it
is open to amendment under Article 368. An interpretation placed by the Court
on any provision of the Constitution gets inbuilt in the provisions
interpreted. Such articles are capable of amendment under Article 368. Such
change of the law so declared by the Supreme Court will not merely for that
reason alone violate the basic structure of the Constitution or amount to
usurpation of judicial power. This is how Constitution becomes dynamic. Law has
to change. It requires amendments to the Constitution according to the needs of
time and needs of society. It is an ongoing process of judicial and constituent
powers, both contributing to change of law with the final say in the judiciary
to pronounce on the validity of such change of law effected by the constituent
power by examining whether such amendments violate the basic structure of the
Constitution. On every occasion when a constitutional matter comes before the
Court, the meaning of the provisions of the Constitution will call for
interpretation, but every interpretation of the Article does not become a basic
feature of the Constitution. That, there are no implied limitations on the
power of the Parliament under Article 368 when it seeks to amend the
Constitution. However, an amendment will be invalid, if it interferes with or
undermines the basic structure. The validity of the amendment is not to be
decided on the touchstone of Article 13 but only on the basis of violation of
the basic features of the Constitution.
further submitted that amendments for giving effect to the directive principles
cannot offend the basic structure of the Constitution. On the contrary, the
amendments which may abrogate individual rights but which promote
Constitutional ideal of 'justice, social, economic and political' and the ideal
of 'equality of status' are not liable to be struck down under Article 14 or
Article 16(1) and consequently, such amendments cannot violate the basic
structure of the Constitution. That, the amendments to the Constitution which
are aimed at removing social and economic disparities cannot offend the basic
structure. It is urged that the concepts flowing from the preamble to the
Constitution constitute the basic structure; that, basic structure is not found
in a particular Article of the Constitution; and except the fundamental right
to live in Article 21 read with Article 14, no particular Article in Part-III
is a basic feature.
it is submitted that equality mentioned in Articles 14 and 16 is not to be
equated to the equality which is a basic feature of the Constitution.
submitted that 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. It is submitted that basic feature consists of
constitutional axioms like constitutional supremacy, and democratic form of
government, secularism, separation of powers etc.
contend that Article 16(4) is a part of the Constitution as originally enacted.
The exercise of the power by the delegate under Article 16(4) will override
Article 16(1). It is not by virtue of the power of the delegate, but it is by
virtue of constituent power itself having authorized such exercise by the
delegate under Article 16(4), that article 16(1) shall stand overruled. The
only limitation on the power of delegate is that it should act within four
corners of Article 16(4), namely, backward classes, which in the opinion of the
State are not adequately represented in public employment. If this condition
precedent is satisfied, a reservation will override Article 16(1) on account of
the words 'nothing in this Article shall prevent the State'. It is urged that
jurisprudence relating to public services do not constitute basic feature of
the Constitution. That, the right to consideration for promotion in service matters
is not a basic feature.
lastly submitted that Articles 16(4A) and 16(4B) are only enabling provisions;
that, the constitutionality of the enabling power in Articles 16(4A) and 16(4B)
is not to be tested with reference to the exercise of the power or manner of
exercise of such power and that the impugned amendments have maintained the
structure of Articles 16(1) to 16(4) intact. In this connection, it is
submitted that the impugned amendments have retained reservations at the
recruitment level inconformity with the judgment in Indra Sawhney5, which has
confined Article 16(4) only to initial appointments; that Article 16(4A) is a
special provision which provides for reservation for promotion only to SCs and STs.
It is urged that if SCs/STs and OBCs are lumped together, OBCs will take away
all the vacancies and, therefore, Article 16(4A) has been inserted as a special
in Indra Sawhney5, the focus was on Backward Classes and not on SCs/STs and,
therefore, there was no balancing of rights of three groups, namely, general
category, other backward classes and scheduled castes/scheduled tribes. It is,
therefore, contended that under Article 16(4A), reservation is limited. It is
not to the extent of 50% but it is restricted only to SCs and STs, and,
therefore, the "risk element" pointed out in Indra Sawhney5 stands
reduced. To carve out SCs/STs and make a separate classification is not only
constitutional, but it is a constitutional obligation to do so under Article
That, Article 16(4) is an overriding provision over Article 16(1) and if
Article 16(4) cannot be said to constitute reverse discrimination then Article
16(4A) also cannot constitute reverse discrimination.
next submitted that this Court has taken care of the interests of the general
category by placing a ceiling on filling-up of vacancies only to a maximum of
50% for reservation. The said 50% permitted by this Court can be reserved in
such manner as the appropriate Government may deem fit. It is urged that if it
is valid to make reservation at higher levels by direct recruitment, it can
also be done for promotion after taking into account the mandate of Article
next submitted that the amendment made by Article 16(4B) makes an exception to
50% ceiling-limit imposed by Indra Sawhney5, by providing that the vacancies of
previous years will not be considered with the current year's vacancies. In
this connection, it was urged that Article 16(4B) applies to reservations under
Article 16(4) and, therefore, if reservation is found to be within reasonable
limits, the Court would uphold such reservations depending upon the facts of
the case and if reservation suffers from excessiveness, it may be invalidated.
Therefore, the enabling power under Article 16(4B) cannot be rendered invalid.
the above reasons, respondents submit that there is no infirmity in the
impugned constitutional amendments.
not necessary for us to deal with the above arguments serially. The arguments
are dealt with by us in the following paragraphs subject-wise.
key issue, which arises for determination in this case is whether by virtue of
the impugned constitutional amendments, the power of the Parliament is so
enlarged so as to obliterate any or all of the constitutional limitations and
OF JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS:
is not an ephermal legal document embodying a set of legal rules for the
passing hour. It sets out principles for an expanding future and is intended to
endure for ages to come and consequently to be adapted to the various crisis of
a purposive rather than a strict literal approach to the interpretation should
be adopted. A Constitutional provision must be construed not in a narrow and
constricted sense but in a wide and liberal manner so as to anticipate and take
account of changing conditions and purposes so that constitutional provision
does not get fossilized but remains flexible enough to meet the newly emerging
problems and challenges.
principle of interpretation is particularly apposite to the interpretation of
fundamental rights. It is a fallacy to regard fundamental rights as a gift from
the State to its citizens. Individuals possess basic human rights independently
of any constitution by reason of basic fact that they are members of the human
fundamental rights are important as they possess intrinsic value. Part-III of
the Constitution does not confer fundamental rights. It confirms their
existence and gives them protection. Its purpose is to withdraw certain
subjects from the area of political controversy to place them beyond the reach
of majorities and officials and to establish them as legal principles to be
applied by the courts. Every right has a content. Every foundational value is
put in Part-III as fundamental right as it has intrinsic value. The converse
does not apply. A right becomes a fundamental right because it has foundational
value. Apart from the principles, one has also to see the structure of the
Article in which the fundamental value is incorporated. Fundamental right is a
limitation on the power of the State. A Constitution, and in particular that of
it which protects and which entrenches fundamental rights and freedoms to which
all persons in the State are to be entitled is to be given a generous and
purposive construction. In the case of Sakal Papers (P) Ltd. & Others v.
Union of India and others this Court has held that while considering the nature
and content of fundamental rights, the Court must not be too astute to
interpret the language in a literal sense so as to whittle them down. The Court
must interpret the Constitution in a manner which would enable the citizens to
enjoy the rights guaranteed by it in the fullest measure. An instance of
literal and narrow interpretation of a vital fundamental right in the Indian
Constitution is the early decision of the Supreme Court in the case of A.K. Gopalan
v. State of Madras.
21 of the Constitution provides that no person shall be deprived of his life
and personal liberty except according to procedure established by law. The
Supreme Court by a majority held that 'procedure established by law' means any
procedure established by law made by the Parliament or the legislatures of the
State. The Supreme Court refused to infuse the procedure with principles of
natural justice. It concentrated solely upon the existence of enacted law.
After three decades, the Supreme Court overruled its previous decision in A.K.
Gopalan10 and held in its landmark judgment in Maneka Gandhi v. Union of India
and another that the procedure contemplated by Article 21 must answer the test
of reasonableness. The Court further held that the procedure should also be in
conformity with the principles of natural justice. This example is given to
demonstrate an instance of expansive interpretation of a fundamental right. The
expression 'life' in Article 21 does not connote merely physical or animal
existence. The right to life includes right to live with human dignity.
Court has in numerous cases deduced fundamental features which are not
specifically mentioned in Part-III on the principle that certain unarticulated
rights are implicit in the enumerated guarantees. For example, freedom of
information has been held to be implicit in the guarantee of freedom of speech
and expression. In India, till recently, there is no
legislation securing freedom of information. However, this Court by a liberal
interpretation deduced the right to know and right to access information on the
reasoning that the concept of an open government is the direct result from the
right to know which is implicit in the right of free speech and expression
guaranteed under Article 19(1)(a).
important point to be noted is that the content of a right is defined by the
Courts. The final word on the content of the right is of this Court. Therefore,
constitutional adjudication plays a very important role in this exercise. The
nature of constitutional adjudication has been a subject matter of several
debates. At one extreme, it is argued that judicial review of legislation
should be confined to the language of the constitution and its original intent.
At the other end, non- interpretivism asserts that the way and indeterminate
nature of the constitutional text permits a variety of standards and values.
Others claim that the purpose of a Bill of Rights is to protect the process of
question which arises before us is regarding nature of the standards of
judicial review required to be applied in judging the validity of the
constitutional amendments in the context of the doctrine of basic structure.
The concept of a basic structure giving coherence and durability to a
Constitution has a certain intrinsic force. This doctrine has essentially
developed from the German Constitution. This development is the emergence of
the constitutional principles in their own right. It is not based on literal
S.R. Bommai & Others etc. v. Union of India & Others etc., the basic
structure concept was resorted to although no question of constitutional
amendment was involved in that case. But this Court held that policies of a
State Government directed against an element of the basic structure of the
Constitution would be a valid ground for the exercise of the central power
under Article 356, that is, imposition of the President's rule. In that case,
secularism was held to be an essential feature of the Constitution and part of
its basic structure. A State Government may be dismissed not because it
violates any particular provision of the Constitution but because it acts
against a vital principle enacting and giving coherence to a number of
particular provisions, example: Articles 14, 15 and 25. In S.R. Bommai12, the
Court clearly based its conclusion not so much on violation of particular
constitutional provision but on this generalized ground i.e. evidence of a
pattern of action directed against the principle of secularism.
it is important to note that the recognition of a basic structure in the
context of amendment provides an insight that there are, beyond the words of
particular provisions, systematic principles underlying and connecting the
provisions of the Constitution. These principles give coherence to the
Constitution and make it an organic whole. These principles are part of
Constitutional law even if they are not expressly stated in the form of rules.
An instance is the principle of reasonableness which connects Articles 14, 19
of these principles may be so important and fundamental, as to qualify as
'essential features' or part of the 'basic structure' of the Constitution, that
is to say, they are not open to amendment. However, it is only by linking
provisions to such overarching principles that one would be able to distinguish
essential from less essential features of the Constitution.
point which is important to be noted is that principles of federalism,
secularism, reasonableness and socialism etc. are beyond the words of a
particular provision. They are systematic and structural principles underlying
and connecting various provisions of the Constitution. They give coherence to
make the Constitution an organic whole. They are part of constitutional law
even if they are not expressly stated in the form of rules.
constitutional principle to qualify as an essential feature, it must be
established that the said principle is a part of the constitutional law binding
on the legislature. Only thereafter, the second step is to be taken, namely,
whether the principle is so fundamental as to bind even the amending power of
the Parliament, i.e. to form a part of the basic structure. The basic structure
concept accordingly limits the amending power of the Parliament. To sum up: in
order to qualify as an essential feature, a principle is to be first
established as part of the constitutional law and as such binding on the
legislature. Only then, it can be examined whether it is so fundamental as to
bind even the amending power of the Parliament i.e. to form part of the basic
structure of the Constitution. This is the standard of judicial review of
constitutional amendments in the context of the doctrine of basic structure.
stated above, the doctrine of basic structure has essentially emanated from the
we may have a look at common constitutional provisions under German Law which
deal with rights, such as, freedom of press or religion which are not mere
values, they are justiciable and capable of interpretation.
values impose a positive duty on the State to ensure their attainment as far as
practicable. The rights, liberties and freedoms of the individual are not only
to be protected against the State, they should be facilitated by it. They are
to be informed. Overarching and informing of these rights and values is the
principle of human dignity under the German basic law. Similarly, secularism is
the principle which is the overarching principle of several rights and values
under the Indian Constitution. Therefore, axioms like secularism, democracy,
reasonableness, social justice etc. are overarching principles which provide
linking factor for principle of fundamental rights like Articles 14, 19 and 21.
These principles are beyond the amending power of the Parliament. They pervade
all enacted laws and they stand at the pinnacle of the hierarchy of
constitutional values. For example, under the German Constitutional Law, human
dignity under Article 1 is inviolable. It is the duty of the State not only to
protect the human dignity but to facilitate it by taking positive steps in that
direction. No exact definition of human dignity exists. It refers to the
intrinsic value of every human being, which is to be respected. It cannot be
taken away. It cannot give. It simply is. Every human being has dignity by
virtue of his existence. The Constitutional Courts in Germany, therefore, see human dignity as a
fundamental principle within the system of the basic rights. This is how the
doctrine of basic structure stands evolved under the German Constitution and by
interpretation given to the concept by the Constitutional Courts.
the Indian Constitution, the word 'federalism' does not exist in the preamble.
However, its principle (not in the strict sense as in U.S.A.) is delineated over various
provisions of the Constitution. In particular, one finds this concept in
separation of powers under Articles 245 and 246 read with the three lists in
the seventh schedule to the Constitution.
conclude, the theory of basic structure is based on the concept of
constitutional identity. The basic structure jurisprudence is a pre-occupation
with constitutional identity. In Kesavananda Bharati Sripadagalvaru and others
v. State of Kerala and another, it has been observed
that 'one cannot legally use the constitution to destroy itself'. It is further
observed 'the personality of the constitution must remain unchanged'.
Therefore, this Court in Kesavananda Bharati13, while propounding the theory of
basic structure, has relied upon the doctrine of constitutional identity. The
word 'amendment' postulates that the old constitution survives without loss of
its identity despite the change and it continues even though it has been
subjected to alteration. This is the constant theme of the opinions in the
majority decision in Kesavananda Bharati13. To destroy its identity is to
abrogate the basic structure of the Constitution. This is the principle of
constitutional sovereignty. Secularism in India has acted as a balance between socio-economic reforms which limits
religious options and communal developments.
main object behind the theory of the constitutional identity is continuity and
within that continuity of identity, changes are admissible depending upon the
situation and circumstances of the day.
constitutionalism is about limits and aspirations. According to Justice
Brennan, interpretation of the Constitution as a written text is concerned with
aspirations and fundamental principles.
Article titled 'Challenge to the Living Constitution' by Herman Belz, the
author says that the Constitution embodies aspiration to social justice,
brotherhood and human dignity. It is a text which contains fundamental
principles. Fidelity to the text qua fundamental principles did not limit
judicial decision making. The tradition of the written constitutionalism makes
it possible to apply concepts and doctrines not recoverable under the doctrine
of unwritten living constitution. To conclude, as observed by Chandrachud, CJ,
in Minerva Mills Ltd.7, 'the Constitution is a precious heritage and,
therefore, you cannot destroy its identity'.
adjudication is like no other decision-making. There is a moral dimension to
every major constitutional case; the language of the text is not necessarily a
controlling factor. Our constitution works because of its generalities, and
because of the good sense of the Judges when interpreting it. It is that
informed freedom of action of the Judges that helps to preserve and protect our
basic document of governance.
EQUALITY A PART OF THE FUNDAMENTAL FEATURES OR THE BASIC STRUCTURE OF THE
the outset, it may be noted that equality, rule of law, judicial review and
separation of powers are distinct concepts. They have to be treated separately,
though they are intimately connected. There can be no rule of law if there is
no equality before the law; and rule of law and equality before the law would
be empty words if their violation was not a matter of judicial scrutiny or
judicial review and judicial relief and all these features would lose their
significance if judicial, executive and legislative functions were united in
only one authority, whose dictates had the force of law. The rule of law and
equality before the law are designed to secure among other things justice both
social and economic. Secondly, a federal Constitution with its distribution of
legislative powers between Parliament and State legislatures involves a
limitation on legislative powers and this requires an authority other than
Parliament and State Legislatures to ascertain whether the limits are
transgressed and to prevent such violation and transgression. As far back as
1872, Lord Selbourne said that the duty to decide whether the limits are
transgressed must be discharged by courts of justice.
review of legislation enacted by the Parliament within limited powers under the
controlled constitution which we have, has been a feature of our law and this
is on the ground that any law passed by a legislature with limited powers is
ultra vires if the limits are transgressed.
framers conferred on the Supreme Court the power to issue writs for the speedy
enforcement of those rights and made the right to approach the Supreme Court
for such enforcement itself a fundamental right. Thus, judicial review is an
essential feature of our constitution because it is necessary to give effect to
the distribution of legislative power between Parliament and State
legislatures, and is also necessary to give practicable content to the
objectives of the Constitution embodied in Part-III and in several other
Articles of our Constitution.
case of Minerva Mills7, Chandrachud, C.J., speaking for the majority, observed
that Articles 14 and 19 do not confer any fanciful rights. They confer rights
which are elementary for the proper and effective functioning of democracy.
They are universally regarded by the universal Declaration of Human Rights. If
Articles 14 and 19 are put out of operation, Article 32 will be rendered
nugatory. In the said judgment, the majority took the view that the principles
enumerated in Part-IV are not the proclaimed monopoly of democracies alone.
are common to all polities, democratic or authoritarian. Every State is
goal-oriented and every State claims to strive for securing the welfare of its
people. The distinction between different forms of Government consists in the
fact that a real democracy will endeavour to achieve its objectives through the
discipline of fundamental freedoms like Articles 14 and 19. Without these
freedoms, democracy is impossible. If Article 14 is withdrawn, the political
pressures exercised by numerically large groups can tear the country apart by
leading it to the legislation to pick and choose favoured areas and favourite
classes for preferential treatment.
these observations, which are binding on us, the principle which emerges is
that "equality" is the essence of democracy and, accordingly a basic
feature of the Constitution. This test is very important. Free and fair
elections per se may not constitute a basic feature of the Constitution. On
their own, they do not constitute basic feature. However, free and fair
election as a part of representative democracy is an essential feature as held
in the Indira Nehru Gandhi v. Raj Narain (Election case). Similarly, federalism
is an important principle of constitutional law. The word 'federalism' is not
in the preamble. However, as stated above, its features are delineated over
various provisions of the Constitution like Articles 245, 246 and 301 and the
three lists in the seventh schedule to the Constitution.
there is a difference between formal equality and egalitarian equality which
will be discussed later on.
theory of basic structure is based on the principle that a change in a thing
does not involve its destruction and destruction of a thing is a matter of
substance and not of form. Therefore, one has to apply the test of overarching
principle to be gathered from the scheme and the placement and the structure of
an Article in the Constitution. For example, the placement of Article 14 in the
equality code; the placement of Article 19 in the freedom code; the placement
of Article 32 in the code giving access to the Supreme Court. Therefore, the
theory of basic structure is the only theory by which the validity of impugned
amendments to the Constitution is to be judged.
TEST IN THE MATTER OF APPLICATION OF THE DOCTRINE OF BASIC STRUCTURE:
it is held that fundamental rights could be abridged but not destroyed and once
it is further held that several features of the Constitution can not be
destroyed, the concept of 'express limitation' on the amending power loses its
force for a precise formulation of the basic feature of the Constitution and
for the courts to pronounce on the validity of a constitutional amendment.
working test has been evolved by Chandrachud, J. in the Election Case14, in
which the learned Judge has rightly enunciated, with respect, that "for
determining whether a particular feature of the Constitution is a part of its
basic structure, one has per force to examine in each individual case the place
of the particular feature in the scheme of the Constitution, its object and
purpose and the consequences of its denial on the integrity of the Constitution
as a fundamental instrument of the country's governance." Applying the
above test to the facts of the present case, it is relevant to note that the
concept of 'equality' like the concept of 'representative democracy' or
'secularism' is delineated over various Articles. Basically, Part-III of the
Constitution consists of the equality code, the freedom code and the right to
move the courts. It is true that equality has several facets. However, each
case has to be seen in the context of the placement of an Article which
embodies the foundational value of equality.
as a concept is very wide. Different people understand reservation to mean
view of reservation as a generic concept is that reservation is anti-poverty
measure. There is a different view which says that reservation is merely
providing a right of access and that it is not a right to redressal.
affirmative action as a generic concept has a different connotation. Some say
that reservation is not a part of affirmative action whereas others say that it
is a part of affirmative action.
Constitution has, however, incorporated the word 'reservation' in Article 16(4)
which word is not there in Article 15(4). Therefore, the word 'reservation' as
a subject of Article 16(4) is different from the word 'reservation' as a
the above test, we have to consider the word 'reservation' in the context of
Article 16(4) and it is in that context that Article 335 of the Constitution
which provides for relaxation of the standards of evaluation has to be seen. We
have to go by what the Constitution framers intended originally and not by
general concepts or principles. Therefore, schematic interpretation of the
Constitution has to be applied and this is the basis of the working test
evolved by Chandrachud, J. in the Election Case14.
SOCIAL, ECONOMIC AND POLITICAL IS PROVIDED NOT ONLY IN PART-IV (DIRECTIVE
PRINCIPLES) BUT ALSO IN PART-III (FUNDAMENTAL RIGHTS):
India is constituted into a sovereign,
democratic republic to secure to all its citizens, fraternity assuring the
dignity of the individual and the unity of the nation.
sovereign, democratic republic exists to promote fraternity and the dignity of
the individual citizen and to secure to the citizens certain rights. This is
because the objectives of the State can be realized only in and through the
individuals. Therefore, rights conferred on citizens and non-citizens are not
merely individual or personal rights. They have a large social and political
content, because the objectives of the Constitution cannot be otherwise
realized. Fundamental rights represent the claims of the individual and the
restrictions thereon are the claims of the society. Article 38 in Part- IV is
the only Article which refers to justice, social, economic and political.
However, the concept of justice is not limited only to directive principles.
There can be no justice without equality. Article 14 guarantees the fundamental
right to equality before the law on all persons. Great social injustice
resulted from treating sections of the Hindu community as 'untouchable' and,
therefore, Article 17 abolished untouchability and Article 25 permitted the
State to make any law providing for throwing open all public Hindu religious
temples to untouchables. Therefore, provisions of Part-III also provide for
political and social justice.
discussion is important because in the present case, we are concerned with
reservation. Balancing a fundamental right to property vis-`-vis Articles 39(b)
and 39(c) as in Kesavananda Bharati13 and Minerva Mills7 cannot be equated with
the facts of the present case. In the present case, we are concerned with the
right of an individual of equal opportunity on one hand and preferential
treatment to an individual belonging to a backward class in order to bring
about equal level- playing field in the matter of public employment.
in the present case, we are concerned with conflicting claims within the
concept of 'justice, social, economic and political', which concept as stated
above exists both in Part-III and Part-IV of the Constitution.
employment is a scarce commodity in economic terms. As the supply is scarce,
demand is chasing that commodity. This is reality of life. The concept of
'public employment' unlike right to property is socialistic and, therefore,
falls within the preamble to the Constitution which states that WE, THE PEOPLE
OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC.
the preamble mentions the objective to be achieved, namely, justice, social,
economic and political.
the concept of 'equality of opportunity' in public employment concerns an
individual, whether that individual belongs to general category or backward
conflicting claim of individual right under Article 16(1) and the preferential
treatment given to a backward class has to be balanced. Both the claims have a
particular object to be achieved. The question is of optimization of these
conflicting interests and claims.
JUSTICE AND MERIT:
above three concepts are independent variable concepts. The application of
these concepts in public employment depends upon quantifiable data in each
case. Equality in law is different from equality in fact.
we construe Article 16(4), it is equality in fact which plays the dominant
role. Backward classes seek justice. General class in public employment seeks
equity. The difficulty comes in when the third variable comes in, namely,
efficiency in service. In the issue of reservation, we are being asked to find
a stable equilibrium between justice to the backwards, equity for the forwards
and efficiency for the entire system. Equity and justice in the above context
if you add efficiency to equity and justice, the problem arises in the context
of the reservation. This problem has to be examined, therefore, on the facts of
each case. Therefore, Article 16(4) has to be construed in the light of Article
335 of the Constitution. Inadequacy in representation and backwardness of
Scheduled Caste and Scheduled Tribes are circumstances which enable the State
Government to act under Article 16(4) of the Constitution. However, as held by
this Court the limitations on the discretion of the government in the matter of
reservation under Article 16(4) as well as Article 16(4A) come in the form of
Article 335 of the Constitution.
is not a fixed absolute concept. Amartya Sen, in a book, Meritocracy and
Economic Inequality, edited by Kenneth Arrow, points out that merit is a
dependent idea and its meaning depends on how a society defines a desirable
act. An act of merit in one society may not be the same in another. The
difficulty is that there is no natural order of 'merit' independent of our
value system. The content of merit is context- specific. It derives its meaning
from particular conditions and purposes. The impact of any affirmative action
policy on 'merit' depends on how that policy is designed.
in the present case, the debate before us on this point has taken place in an
basic presumption, however, remains that it is the State who is in the best
position to define and measure merit in whatever ways they consider it to be
relevant to public employment because ultimately it has to bear the costs
arising from errors in defining and measuring merit. Similarly, the concept of
"extent of reservation" is not an absolute concept and like merit it
is context- specific.
point which we are emphasizing is that ultimately the present controversy is
regarding the exercise of the power by the State Government depending upon the
fact-situation in each case. Therefore, 'vesting of the power' by an enabling
provision may be constitutionally valid and yet 'exercise of the power' by the
State in a given case may be arbitrary, particularly, if the State fails to
identify and measure backwardness and inadequacy keeping in mind the efficiency
of service as required under Article 335.
AND AFFIRMATIVE ACTION:
of opportunity has two different and distinct concepts. There is a conceptual
distinction between a non-discrimination principle and affirmative action under
which the State is obliged to provide level- playing field to the oppressed
classes. Affirmative action in the above sense seeks to move beyond the concept
of non-discrimination towards equalizing results with respect to various
groups. Both the conceptions constitute "equality of opportunity".
the equality "in fact" which has to be decided looking at the ground
reality. Balancing comes in where the question concerns the extent of
reservation. If the extent of reservation goes beyond cut-off point then it
results in reverse discrimination. Anti-discrimination legislation has a
tendency of pushing towards de facto reservation. Therefore, a numerical
benchmark is the surest immunity against charges of discrimination.
is necessary for transcending caste and not for perpetuating it. Reservation
has to be used in a limited sense otherwise it will perpetuate casteism in the
country. Reservation is under-written by a special justification. Equality in
Article 16(1) is individual- specific whereas reservation in Article 16(4) and
Article 16(4A) is enabling. The discretion of the State is, however, subject to
the existence of "backwardness" and "inadequacy of
representation" in public employment.
has to be based on objective factors whereas inadequacy has to factually exist.
This is where judicial review comes in. However, whether reservation in a given
case is desirable or not, as a policy, is not for us to decide as long as the
parameters mentioned in Articles 16(4) and 16(4A) are maintained. As stated
above, equity, justice and merit (Article 335)/efficiency are variables which
can only be identified and measured by the State. Therefore, in each case, a
contextual case has to be made out depending upon different circumstances which
may exist Statewise.
justice is one of the sub-divisions of the concept of justice. It is concerned
with the distribution of benefits and burdens throughout a society as it
results from social institutions property systems, public organisations etc.
problem is what should be the basis of distribution? Writers like Raphael,
Mill and Hume define 'social justice' in terms of rights. Other writers like
Hayek and Spencer define 'social justice' in terms of deserts. Socialist
writers define 'social justice' in terms of need. Therefore, there are three
criteria to judge the basis of distribution, namely, rights, deserts or need.
three criteria can be put under two concepts of equality "formal
equality" and "proportional equality".
equality" means that law treats everyone equal and does not favour anyone
either because he belongs to the advantaged section of the society or to the
disadvantaged section of the society. Concept of "proportional
equality" expects the States to take affirmative action in favour of
disadvantaged sections of the society within the framework of liberal
the Indian Constitution, while basic liberties are guaranteed and individual
initiative is encouraged, the State has got the role of ensuring that no class
prospers at the cost of other class and no person suffers because of drawbacks
which is not his but social.
question of extent of reservation involves two questions:
Whether there is any upper limit beyond which reservation is not permissible?
Whether there is any limit to which seats can be reserved in a particular year;
in other words the issue is whether the percentage limit applies only on the
total number of posts in the cadre or to the percentage of posts advertised
every year as well? The question of extent of reservation is closely linked to
the issue whether Article 16(4) is an exception to Article 16(1) or is Article
16(4) an application of Article 16(1). If Article 16(4) is an exception to Article
16(1) then it needs to be given a limited application so as not to eclipse the
general rule in Article 16(1). But if Article 16(4) is taken as an application
of Article 16(1) then the two articles have to be harmonized keeping in view
the interests of certain sections of the society as against the interest of the
individual citizens of the society.
limit of reservation possible Word of caution against excess reservation was
first pointed out in The General Manager, Southern Railway and another v. Rangachari
Gajendragadkar, J. giving the majority judgment said that reservation under
Article 16(4) is intended merely to give adequate representation to backward
cannot be used for creating monopolies or for unduly or illegitimately disturbing
the legitimate interests of other employees. A reasonable balance must be
struck between the claims of backward classes and claims of other employees as
well as the requirement of efficiency of administration.
the question of extent of reservation was not directly involved in
Rangachari15. It was directly involved in M.R. Balaji & Ors. V. The State
of Mysore & Ors. with reference to Article 15(4). In this case, 60%
reservations under Article 15(4) was struck down as excessive and unconstitutional.
that special provision should be less than 50 per cent, how much less would
depend on the relevant prevailing circumstances of each case.
State of Kerala and another v. N.M. Thomas and
others Krishna Iyer, J. expressed his concurrence to the views of Fazal Ali, J.
who said that although reservation cannot be so excessive as to destroy the
principle of equality of opportunity under clause (1) of Article 16, yet it
should be noted that the Constitution itself does not put any bar on the power
of the Government under Article 16(4). If a State has 80% population which is
backward then it would be meaningless to say that reservation should not cross
in Indra Sawhney5 the majority held that the rule of 50% laid down in Balaji16
was a binding rule and not a mere rule of prudence.
the judgment of the Court in Indra Sawhney5, Reddy, J. stated that Article
16(4) speaks of adequate representation not proportionate representation
although proportion of population of backward classes to the total population
would certainly be relevant. He further pointed out that Article 16(4) which
protects interests of certain sections of society has to be balanced against
Article 16(1) which protects the interests of every citizen of the entire
society. They should be harmonised because they are restatements of principle
of equality under Article 14. (emphasis added) Are reserved category candidates
free to contest for vacancies in general category In Indra Sawhney5 Reddy, J.
noted that reservation under Article 16(4) do not operate on communal ground.
Therefore if a member from reserved category gets selected in general category,
his selection will not be counted against the quota limit provided to his
class. Similarly, in R.K. Sabharwal8 the Supreme Court held that while general
category candidates are not entitled to fill the reserved posts; reserved
category candidates are entitled to compete for the general category posts. The
fact that considerable number of members of backward class have been
appointed/promoted against general seats in the State services may be a
relevant factor for the State Government to review the question of continuing
reservation for the said class.
of vacancies that could be reserved Wanchoo, J. who had given dissenting
judgment in Rangachari15 observed that the requirement of Article 16(4) is only
to give adequate representation and since Constitution-makers intended it to be
a short-term measure it may happen that all the posts in a year may be
reserved. He opined that reserving a fixed percentage of seats every year may
take a long time before inadequacy of representation is overcome. Therefore,
the Government can decide to reserve the posts. After having reserved a fixed
number of posts the Government may decide that till those posts are filled up
by the backward classes all appointments will go to them if they fulfil the
minimum qualification. Once this number is reached the Government is deprived
of its power to make further reservations. Thus, according to Wanchoo, J. the
adequacy of representation has to be judged considering the total number of
posts even if in a single year or for few years all seats are reserved provided
the scheme is short-term.
idea given by Wanchoo, J. in Rangachari15 did not work out in practice because
most of the time even for limited number of reservations, every year qualified
backward class candidates were not available. This compelled the government to
adopt carry-forward rule.
carry-forward rule came in conflict with Balaji16 ruling. In cases where the
availability of reserved category candidates is less than the vacancies set
aside for them, the Government has to adopt either of the two alternatives:
the State may provide for carrying on the unfulfilled vacancies for the next
year or next to the next year, or (2) instead of providing for carrying over
the unfulfilled vacancies to the coming years, it may provide for filling of
the vacancies from the general quota candidates and carry forward the unfilled
posts by backward classes to the next year quota.
the problem arises when in a particular year due to carry forward rule more
than 50% of vacancies are reserved. In T. Devadasan v. Union of India and another
, this was the issue. Union Public Service Commission had provided for 17=%
reservation for Scheduled Castes and Scheduled Tribes. In case of non-
availability of reserved category candidates in a particular year the posts had
to be filled by general category candidates and the number of such vacancies
were to be carried forward to be filled by the reserved category candidate next
year. Due to this, the rule of carry forward reservation in a particular year
amounted to 65% of the total vacancies. The petitioner contended that reservation
was excessive which destroyed his right under Article 16(1) and Article 14. The
court on the basis of decision in Balaji16 held the reservation excessive and,
therefore, unconstitutional. It further stated that the guarantee of equality
under Article 16(1) is to each individual citizen and to appointments to any
office under the State. It means that on every occasion for recruitment the
State should see that all citizens are treated equally. In order to effectuate
the guarantee each year of recruitment will have to be considered by itself.
majority differed from Wanchoo's, J. decision in Rangachari15 holding that a
cent per cent reservation in a particular year would be unconstitutional in
view of Balaji16 decision.
J. gave dissenting judgment. He relied on Wanchoo's, J. judgment in
Rangachari15 and held that Article 16(4) provides for adequate representation
taking into consideration entire cadre strength. According to him, if it is
within the power of the State to make reservations then reservation made in one
selection or spread over many selections is only a convenient method of
implementing the provision of reservation. Unless it is established that an
unreasonably disproportionate part of the cadre strength is filled up with the
said castes and tribes, it is not possible to contend that the provision is not
one of reservation but amounts to an extinction of the fundamental right.
case of Thomas17 under the Kerala State and Subordinate Services Rules,
1950 certain relaxation was given to Scheduled Caste and Scheduled Tribe
candidates passing departmental tests for promotions.
promotion to upper division clerks from lower division clerks the criteria of
seniority-cum-merit was adopted. Due to relaxation in merit qualification in
1972, 34 out of 51 vacancies in upper division clerks went to Scheduled Caste
candidates. It appeared that the 34 members of SC/ST had become senior most in
the lower grade. The High Court quashed the promotions on the ground that it
was excessive. The Supreme Court upheld the promotions. Ray, C.J. held that the
promotions made in services as a whole is no where near 50% of the total number
of the posts. Thus, the majority differed from the ruling of the court in
Devadasan19 basically on the ground that the strength of the cadre as a whole
should be taken into account. Khanna, J. in his dissenting opinion made a
reference to it on the ground that such excessive concession would impair
efficiency in administration.
Sawhney5, the majority held that 50% rule should be applied to each year
otherwise it may happen that (if entire cadre strength is taken as a unit) the
open competition channel gets choked for some years and meanwhile the general
category candidates may become age barred and ineligible. The equality of
opportunity under Article 16(1) is for each individual citizen while special
provision under Article 16(4) is for socially disadvantaged classes. Both
should be balanced and neither should be allowed to eclipse the other.
in R.K. Sabharwal8 which was a case of promotion and the issue in this case was
operation of roster system, the Court stated that entire cadre strength should
be taken into account to determine whether reservation up to the required limit
has been reached.
regard to ruling in Indra Sawhney case5 that reservation in a year should not
go beyond 50% the Court held that it applied to initial appointments. The
operation of a roster, for filling the cadre strength, by itself ensures that
the reservation remains within the 50% limit. In substance the court said that
presuming that 100% of the vacancies have been filled, each post gets marked
for the particular category of candidate to be appointed against it and any
subsequent vacancy has to be filled by that category candidate. The Court was
concerned with the possibility that reservation in entire cadre may exceed 50%
limit if every year half of the seats are reserved. The Constitution
(Eighty-first Amendment) Act, 2000 added Article 16(4B) which in substance
gives legislative assent to the judgment in R.K. Sabharwal8.
RULE IS THE SAID RULE A CONSTITUTIONAL REQUIREMENT UNDER ARTICLE 16(4):
the contentions advanced on behalf of the petitioners is that the impugned
amendments, particularly, the Constitution (Seventy-Seventh Amendment) and
(Eight-Fifth Amendment) Acts, obliterate all constitutional limitations on the
amending power of the Parliament. That the width of these impugned amendments
is so wide that it violates the basic structure of equality enshrined in the
key issue which arises for determination is whether the above
"catch-up" rule and the concept of "consequential
seniority" are constitutional requirements of Article 16 and of equality,
so as to be beyond the constitutional amendatory process. In other words,
whether obliteration of the "catch-up" rule or insertion of the
concept of "consequential seniority code", would violate the basic
structure of the equality code enshrined in Articles 14, 15 and 16.
concept of "catch-up" rule appears for the first time in the case of Virpal
Singh Chauhan1 . In the category of Guards in the Railways, there were four
categories, namely, Grade 'C', Grade 'B', Grade 'A' and Grade 'A' Special. The
initial recruitment was made to Gr. 'C'. Promotion from one grade to another
was by seniority-cum-suitability. The rule of reservation was applied not only
at the initial stage of appointment to Grade 'C' but at every stage of
promotion. The percentage reserved for SC was 15% and for ST, it was 7.5%. To
give effect to the rule of reservation, a forty- point roster was prepared in
which certain points were reserved for SCs and STs respectively. Subsequently,
a hundred-point roster was prepared reflecting the same percentages. In 1986,
general candidates and members of SCs/STs came within Grade 'A' in
1.8.1986, the Chief Controller promoted certain general candidates on ad hoc
basis to Grade 'A' Special.
three months, they were reverted and SCs and STs were promoted. This action was
challenged by general candidates as arbitrary and unconstitutional before the
tribunal. The general candidates asked for three reliefs, namely,
restrain the Railways from filling-up the posts in higher grades in the category
of Guards by applying the rule of reservation;
restrain the Railway from acting upon the seniority list prepared by them; and
declare that the general candidates were alone entitled to be promoted and
confirmed in Grade 'A' Special on the strength of their seniority earlier to
the reserved category employees. The contention of the general candidates was
that once the quota prescribed for the reserved group is satisfied, the forty-
point roster cannot be applied because that roster was prepared to give effect
to the rule of reservation. It was contended by the general candidates that
accelerated promotion may be given but the Railways cannot give consequential
seniority to reserved category candidates in the promoted category. (Emphasis
added). In this connection, the general category candidates relied upon the
decisions of the Allahabad and Madhya Pradesh High Courts. It
was contended by the general candidates that giving consequential seniority in
addition to accelerated promotion constituted conferment of double benefit upon
the members of the reserved category and, therefore, violated the rule of
equality in Article 16(1). It was further urged that accelerated promotion-cum-
accelerated seniority is destructive of the efficiency of administration
inasmuch as by this means the higher echelons of administration would be
occupied entirely by members of reserved categories. This was opposed by the
reserved category candidates who submitted that for the purposes of promotion
to Grade 'A' Special, the seniority list pertaining to Grade 'A' alone should
be followed; that, the administration should not follow the seniority lists
maintained by the administration pertaining to Grade 'C' as urged by the
general candidates and since SCs and STs were senior to the general candidates
in Grade 'A', the seniority in Grade 'A' alone should apply. In short, the
general candidates relied upon the 'catch-up' rule, which was opposed by the
members of SC/ST. They also relied upon the judgment of this Court in R.K.
Court gave following reasons for upholding the decision of the tribunal.
Firstly, it was held that a rule of reservation as such does not violate
this Court opined, that there is no uniform method of providing reservation.
The extent and nature of reservation is a matter for the State to decide having
regards to the facts and requirements of each case. It is open to the State, if
so advised, to say that while the rule of reservation shall be applied, the candidate
promoted earlier by virtue of rule of reservation/roster shall not be entitled
to seniority over seniors in the feeder category and that it is open to the
State to interpret the 'catch-up' rule in the service conditions governing the
promotions [See: para 24]. Thirdly, this Court did not agree with the view
expressed by the tribunal [in Virpal Singh Chauhan1] that a harmonious reading
of clauses (1) to (4) of Article 16 should mean that a reserved category
candidate promoted earlier than his senior general category candidates in the
feeder grade shall necessarily be junior in the promoted category to such
general category. This Court categorically ruled, vide para 27, that such
catch-up principle cannot be said to be implicit in clauses (1) to (4) of
Article 16 (emphasis supplied).
this Court found on facts that for 11 vacancies, 33 candidates were considered
and they were all SC/ST candidates. Not a single candidate belonged to general
category. It was argued on behalf of the general candidates that all top grades
stood occupied exclusively by the reserved category members, which violated the
rule of equality underlying Articles 16(1), 16(4) and 14.
Court opined that the above situation arose on account of faulty implementation
of the rule of reservation, as the Railways did not observe the principle that
reservation must be in relation to 'posts' and not 'vacancies' and also for
applying the roster even after the attainment of the requisite percentage
reserved for SCs/STs. In other words, this Court based its decision only on the
faulty implementation of the rule by the Railways which the Court ordered to be
point which we need to emphasize is that the Court has categorically ruled in Virpal
Singh Chauhan1 that the 'catch-up' rule is not implicit in clauses (1) to (4)
of Article 16. Hence, the said rule cannot bind the amending power of the
Parliament. It is not beyond the amending power of the Parliament.
Singh (I)2, the controversy which arose for determination was whether after
the members of SCs/STs for whom specific percentage of posts stood reserved
having been promoted against those posts, was it open to the administration to
grant consequential seniority against general category posts in the higher
grade. The appellant took a clear stand that he had no objection if members of
SC/ST get accelerated promotions. The appellant objected only to the grant of
consequential seniority. Relying on the circulars issued by the administration
dated 19.7.1969 and 8.9.1969, the High Court held that the members of SCs/STs
can be promoted against general category posts on basis of seniority. This was
challenged in appeal before this Court. The High Court ruling was set aside by
this Court on the ground that if the 'catch-up' rule is not applied then the
equality principle embodied in Article 16(1) would stand violated. This Court
observed that the 'catch-up' rule was a process adopted while making
appointments through direct recruitment or promotion because merit cannot be ignored.
This Court held that for attracting meritorious candidate a balance has to be
struck while making provisions for reservation. It was held that the promotion
is an incident of service. It was observed that seniority is one of the
important factors in making promotion. It was held that right to equality is to
be preserved by preventing reverse discrimination.
it was held that the equality principle requires exclusion of extra-weightage
of roster-point promotion to a reserved category candidate (emphasis supplied).
This Court opined that without 'catch-up' rule giving weightage to earlier
promotion secured by roster-point promotee would result in reverse
discrimination and would violate equality under Articles 14, 15 and 16.
this Court took the view that the seniority between the reserved category
candidates and general candidates in the promoted category shall be governed by
their panel position. Therefore, this Court set aside the factor of extra-weightage
of earlier promotion to a reserved category candidate as violative of Articles
14 and 16(1) of the Constitution.
in Virpal Singh Chauhan1, this Court has said that the 'catch-up' rule insisted
upon by the Railways though not implicit in Articles 16(1) and 16(4), is constitutionally
valid as the said practice/process was made to maintain efficiency. On the
other hand, in Ajit Singh (I)2, this Court has held that the equality principle
excludes the extra-weightage given by the Government to roster-point promotees
as such weightage is against merit and efficiency of the administration and
that the Punjab Government had erred in not taking into account the said merit
and efficiency factors.
case of Ajit Singh (II)3, three interlocutory applications were filed by State
of Punjab for clarification of the judgment
of this Court in Ajit Singh (I)2. The limited question was whether there was
any conflict between the judgments of this Court in Virpal Singh Chauhan1 and Ajit
Singh (I)2 on one hand and vis-`-vis the judgment of this Court in Jagdish Lal
and others v. State of Haryana and others . The former cases were decided in favour
of general candidates whereas latter was a decision against the general
the facts for moving the interlocutory applications were as follows.
Indian Railways following the law laid down in Virpal Singh Chauhan1 issued a
circular on 28.2.1997 to the effect that the reserved candidates promoted on
roster-points could not claim seniority over the senior general candidates
promoted later on. The State of Punjab after following Ajit Singh (I)2 revised
their seniority list and made further promotions of the senior general
candidates following the 'catch-up' rule.
both the judgments were against the reserved candidates. However, in the later
judgment of this Court in the case of Jagdish Lal20, another three-Judge bench
took the view that under the general rule of service jurisprudence relating to
seniority, the date of continuous officiation has to be taken into account and
if so, the roster-point promotees were entitled to the benefit of continuous officiation.
In Jagdish Lal20, the bench observed that the right to promotion was a
statutory right while the rights of the reserved candidates under Article 16(4)
and Article 16(4A) were fundamental rights of the reserved candidates and,
therefore, the reserved candidates were entitled to the benefit of continuous officiation.
in Ajit Singh (II)3, three points arose for consideration:
Can the roster point promotees count their seniority in the promoted category
from the date of their continuous officiation vis-`-vis general candidates, who
were senior to them in the lower category and who were later promoted to the
Have Virpal1 and Ajit Singh (I)2 have been correctly decided and has Jagdish
Lal20 been correctly decided?
Whether the catch-up principles are tenable? At the outset, this Court stated
that it was not concerned with the validity of constitutional amendments and,
therefore, it proceeded on the assumption that Article 16(4A) is valid and is
the question decided was whether the 'catch- up' principle was tenable in the
context of Article 16(4).
held that the primary purpose of Article 16(4) and Article 16(4A) is to give
due representation to certain classes in certain posts keeping in mind Articles
14, 16(1) and 335; that, Articles 14 and 16(1) have prescribed permissive
limits to affirmative action by way of reservation under Articles 16(4) and
16(4A) of the Constitution; that, Article 335 is incorporated so that
efficiency of administration is not jeopardized and that Articles 14 and 16(1)
are closely connected as they deal with individual rights of the persons. They
give a positive command to the State that there shall be equality of
opportunity of all citizens in public employment. It was further held that
Article 16(1) flows from Article 14. It was held that the word 'employment' in
Article 16(1) is wide enough to include promotions to posts at the stage of
initial level of recruitment. It was observed that Article 16(1) provides to
every employee otherwise eligible for promotion fundamental right to be
considered for promotion. It was held that equal opportunity means the right to
be considered for promotion. The right to be considered for promotion was not a
statutory right. It was held that Articles 16(4) and 16(4A) did not confer any
fundamental right to reservation. That they are only enabling provisions.
Accordingly, in Ajit Singh (II)3, the judgment of this Court in Jagdish Lal20
case was overruled. However, in the context of balancing of fundamental rights
under Article 16(1) and the rights of reserved candidate under Articles 16(4)
and 16(4A), this Court opined that Article 16(1) deals with a fundamental right
whereas Articles 16(4) and 16(4A) are only enabling provisions and, therefore,
the interests of the reserved classes must be balanced against the interests of
other segments of society. As a remedial measure, the Court held that in
matters relating to affirmative action by the State, the rights under Articles
14 and 16 are required to be protected and a reasonable balance should be
struck so that the affirmative action by the State does not lead to reverse
the above judgments, we are of the view that the concept of 'catch-up' rule and
'consequential seniority' are judicially evolved concepts to control the extent
of reservation. The source of these concepts is in service jurisprudence. These
concepts cannot be elevated to the status of an axiom like secularism,
constitutional sovereignty etc. It cannot be said that by insertion of the
concept of 'consequential seniority' the structure of Article 16(1) stands
destroyed or abrogated.
cannot be said that 'equality code' under Article 14, 15 and 16 is violated by
deletion of the 'catch-up' rule.
concepts are based on practices. However, such practices cannot be elevated to
the status of a constitutional principle so as to be beyond the amending power
of the Parliament. Principles of service jurisprudence are different from
constitutional limitations. Therefore, in our view neither the 'catch-up' rule
nor the concept of 'consequential seniority' are implicit in clauses (1) and
(4) of Article 16 as correctly held in Virpal Singh Chauhan1.
concluding, we may refer to the judgment of this court in M.G. Badappanavar6.
In that case the facts were as follows. Appellants were general candidates.
contended that when they and the reserved candidates were appointed at Level-1
and junior reserved candidates got promoted earlier on the basis of roster-
points to Level-2 and again by way of roster-points to Level-3, and when the
senior general candidate got promoted to Level-3, then the general candidate
would become senior to the reserved candidate at Level-3. At Level-3, the
reserved candidate should have been considered along with the senior general
candidate for promotion to Level-4. In support of their contention, appellants
relied upon the judgment of the Constitution Bench in Ajit Singh (II)3. The
above contentions raised by the appellants were rejected by the tribunal.
the general candidates came to this Court in appeal. This Court found on facts
that the concerned Service Rule did not contemplate computation of seniority in
respect of roster promotions. Placing reliance on the judgment of this Court in
Ajit Singh (I)2 and in Virpal Singh1, this court held that roster promotions
were meant only for the limited purpose of due representation of backward
classes at various levels of service and, therefore, such roster promotions did
not confer consequential seniority to the roster-point promotee. In Ajit Singh
(II)3, the circular which gave seniority to the roster-point promotees was held
to be violative of Articles 14 and 16. It was further held in M. G.
Badappanavar6 that equality is the basic feature of the Constitution and any
treatment of equals as unequals or any treatment of unequals as equals violated
the basic structure of the Constitution. For this proposition, this Court
placed reliance on the judgment in Indra Sawhney5 while holding that if creamy
layer among backward classes were given some benefits as backward classes, it
will amount to equals being treated unequals. Applying the creamy layer test,
this Court held that if roster-point promotees are given consequential
seniority, it will violate the equality principle which is part of the basic
structure of the Constitution and in which event, even Article 16(4A) cannot be
of any help to the reserved category candidates. This is the only judgment of
this Court delivered by three-Judge bench saying that if roster-point promotees
are given the benefit of consequential seniority, it will result in violation
of equality principle which is part of the basic structure of the Constitution.
the judgment of the tribunal was set aside.
judgment in the case of M. G. Badappanavar6 was mainly based on the judgment in
Ajit Singh (I)'2 which had taken the view that the departmental circular which
gave consequential seniority to the 'roster-point promotee', violated Articles
14 and 16 of the Constitution. In none of the above cases, the question of the
validity of the constitutional amendments was involved. Ajit Singh (I)'2, Ajit
Singh (II)'3 and M. G. Badappanavar6 were essentially concerned with the
question of 'weightage'. Whether weightage of earlier accelerated promotion
with consequential seniority should be given or not to be given are matters
which would fall within the discretion of the appropriate Government, keeping
in mind the backwardness, inadequacy and representation in public employment
and overall efficiency of services. The above judgments, therefore, did not
touch the questions which are involved in the present case.
OF THE IMPUGNED AMENDMENTS
dealing with the scope of the constitutional amendments we need to recap the
judgments in Indra Sawhney5 and R.K. Sabharwal8. In the former case the
majority held that 50% rule should be applied to each year otherwise it may
happen that the open competition channel may get choked if the entire cadre
strength is taken as a unit. However in R.K. Sabharwal8, this court stated that
the entire cadre strength should be taken into account to determine whether the
reservation up to the quota-limit has been reached. It was clarified that the
judgment in Indra Sawhney5 was confined to initial appointments and not to
promotions. The operation of the roster for filling the cadre strength, by
itself, ensure that the reservation remains within the ceiling-limit of 50%.
view, appropriate Government has to apply the cadre strength as a unit in the
operation of the roster in order to ascertain whether a given class/group is
adequately represented in the service. The cadre strength as a unit also
ensures that upper ceiling-limit of 50% is not violated. Further, roster has to
be post- specific and not vacancy based.
these introductory facts, we may examine the scope of the impugned
Supreme Court in its judgment dated 16.11.92 in Indra Sawhney5 stated that
reservation of appointments or posts under Article 16(4) is confined to initial
appointment and cannot extend to reservation in the matter of promotion. Prior
to the judgment in Indra Sawhney5 reservation in promotion existed. The
Government felt that the judgment of this court in Indra Sawhney5 adversely
affected the interests of SCs and STs in services, as they have not reached the
required level. Therefore, the Government felt that it was necessary to
continue the existing policy of providing reservation in promotion confined to SCs
and STs alone.
quote hereinbelow Statement of Objects and Reasons with the text of the
Constitution (Seventy-Seventh Amendment) Act, 1995 introducing clause (4A) in
Article 16 of the Constitution:
CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995 STATEMENT OF OBJECTS AND
Scheduled Castes and the Scheduled Tribes have been enjoying the facility of
reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of Indra Sawhney v.
Union of India5, however, 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. This ruling of the
Supreme Court will adversely affect 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 have not reached the required level,
it is necessary to continue the existing dispensation of providing reservation
in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In
view of the commitment of the Government to protect the interests of the
Scheduled Castes and the Scheduled Tribes, the Government have decided to
continue the existing policy of reservation in promotion for the Scheduled
Castes and the Scheduled Tribes.
carry out this, it is necessary to amend Article 16 of the Constitution by
inserting a new clause (4A) in the said Article to provide for reservation in
promotion for the Scheduled Castes and the Scheduled Tribes.
Bill seeks to achieve the aforesaid object.
CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995
on 17th June, 1995, and came into force on 17.6.1995]
An Act further to amend the Constitution of India BE it enacted by Parliament
in the Forty- sixth Year of the Republic of India as follows:-
Short title.- This Act may be called the Constitution (Seventy-seventh
Amendment) Act, 1995.
Amendment of Article 16. - In Article 16 of the Constitution, after clause (4),
the following clause shall be inserted, namely:- "(4A) Nothing in this
Article shall prevent the State from making any provision for reservation in
matters of promotion 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 said clause (4A) was inserted after clause (4) of Article 16
to say that nothing in the said Article shall prevent the State from making any
provision for reservation in matters of promotion to any class(s) of posts in
the services under the State in favour of SCs and STs which, in the opinion of
the States, are not adequately represented in the services under the State.
(4A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause
(4A) of Article 16 emphasizes the opinion of the States in the matter of
adequacy of representation. It gives freedom to the State in an appropriate
case depending upon the ground reality to provide for reservation in matters of
promotion to any class or classes of posts in the services. The State has to
form its opinion on the quantifiable data regarding adequacy of representation.
Clause (4A) of Article 16 is an enabling provision. It gives freedom to the
State to provide for reservation in matters of promotion. Clause (4A) of
Article 16 applies only to SCs and STs. The said clause is carved out of
Article 16(4). Therefore, clause (4A) will be governed by the two compelling
reasons "backwardness" and "inadequacy of representation",
as mentioned in Article 16(4). If the said two reasons do not exist then the
enabling provision cannot come into force.
State can make provision for reservation only if the above two circumstances
exist. Further in Ajit Singh (II)3 , this court has held that apart from
'backwardness' and 'inadequacy of representation' the State shall also keep in
mind 'overall efficiency' (Article 335). Therefore, all the three factors have
to be kept in mind by the appropriate Government by providing for reservation
in promotion for SCs and STs.
the Constitution (Seventy-Seventh Amendment) Act, 1995, this court stepped in
to balance the conflicting interests. This was in the case of Virpal Singh
Chauhan1 in which it was held that a roster-point promotee getting the benefit
of accelerated promotion would not get consequential seniority. As such,
consequential seniority constituted additional benefit and, therefore, his
seniority will be governed by the panel position. According to the Government,
the decisions in Virpal Singh1 and Ajit Singh (I)2 bringing in the concept of
"catch-up" rule adversely affected the interests of SCs and STs in
the matter of seniority on promotion to the next higher grade.
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. Suffice it to state that, 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.
quote hereinbelow Statement of Objects and Reasons with the text of the
Constitution (Eighty-Fifth Amendment) Act, 2001:
CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001 STATEMENT OF OBJECTS AND
Government servants belonging to the Scheduled Castes and the Scheduled Tribes
had been enjoying the benefit of consequential seniority on their promotion on
the basis of rule of reservation. The judgments of the Supreme Court in the
case of Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh Januja
(No.1) v. State of Punjab AIR 1996 SC 1189, which led to the issue of the O.M.
dated 30th January, 1997, have adversely affected the interest of the
Government servants belonging to the Scheduled Castes and Scheduled Tribes
category in the matter of seniority on promotion to the next higher grade. This
has led to considerable anxiety and representations have also been received
from various quarters including Members of Parliament to protect the interest
of the Government servants belonging to Scheduled Castes and Scheduled Tribes.
Government has reviewed the position in the light of views received from
various quarters and in order to protect the interest of the Government
servants belonging to the Scheduled Castes and Scheduled Tribes, it has been
decided to negate the effect of O.M. dated 30th January 1997 immediately. Mere withdrawal of the
O.M. dated 30th will not meet the desired purpose and review or revision of
seniority of the Government servants and grant of consequential benefits to
such Government servants will also be necessary.
will require amendment to Article 16(4A) of the Constitution to provide for
consequential seniority in the case of promotion by virtue of rule of
reservation. It is also necessary to give retrospective effect to the proposed
constitutional amendment to Article 16(4A) with effect from the date of coming
into force of Article 16(4A) itself, that is, from the 17th day of June, 1995.
Bill seeks to achieve the aforesaid objects.
CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001
following Act of Parliament received the assent of the President on the 4th January, 2002 and is published for general
information:- An Act further to amend the Constitution of India.
enacted by Parliament in the Fifty- second Year of the Republic of India as follows:-
Short title and commencement.-
This Act may be called the Constitution (Eighty-fifth Amendment) Act, 2001.
shall be deemed to have come into force on the 17th day of June 1995.
Amendment of Article 16.- In Article 16 of the Constitution, in clause (4A),
for the words "in matters of promotion to any class", the words
"in matters of promotion, with consequential seniority, to any class"
shall be substituted." Reading the Constitution (Seventy-Seventh
Amendment) Act, 1995 with the Constitution (Eighty- Fifth Amendment) Act, 2001,
clause (4A) of Article 16 now reads as follows:
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 question in
the present case concerns the width of the amending powers of the Parliament.
The key issue is whether any constitutional limitation mentioned in Article
16(4) and Article 335 stand obliterated by the above constitutional amendments.
R.K. Sabharwal8, the issue was concerning operation of roster system. This
court stated that the entire cadre strength should be taken into account to
determine whether reservation up to the required limit has been reached. It was
held that if the roster is prepared on the basis of the cadre strength, that by
itself would ensure that the reservation would remain within the ceiling-limit
of 50%. In substance, the court said that in the case of hundred-point roster
each post gets marked for the category of candidate to be appointed against it
and any subsequent vacancy has to be filled by that category candidate alone
question which remained in controversy, however, was concerning the rule of
'carry-forward'. In Indra Sawhney5 this court held that the number of vacancies
to be filled up on the basis of reservation in a year including the
'carry-forward' reservations should in no case exceed the ceiling-limit of 50%.
the Government found that total reservation in a year for SCs, STs and OBCs
combined together had already reached 49=% and if the judgment of this court in
Indra Sawhney5 had to be applied it became difficult to fill "backlog
vacancies". According to the Government, in some cases the total of the
current and backlog vacancies was likely to exceed the ceiling- limit of 50%.
Therefore, the Government inserted clause (4B) after clause (4A) in Article 16
vide the Constitution (Eighty-First Amendment) Act, 2000.
clause (4B) the "carry-forward"/"unfilled vacancies" of a
year is kept out and excluded from the overall ceiling-limit of 50%
reservation. The clubbing of the backlog vacancies with the current vacancies
stands segregated by the Constitution (Eighty-First Amendment) Act, 2000.
Quoted hereinbelow is the Statement of Objects and Reasons with the text of the
Constitution (Eighty-First Amendment) Act, 2000:
CONSTITUTION (EIGHTY FIRST AMENDMENT) ACT, 2000
on 9th June, 2000 and came into force 9.6.2000)
STATEMENT OF OBJECTS AND REASONS 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 the Scheduled Castes or the Scheduled Tribes, were
treated as "Backlog Vacancies". These vacancies were treated as a
distinct group and were excluded from the ceiling of fifty per cent
reservation. The Supreme Court of India in its judgment in the Indra Sawhney
versus Union of India 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 fifty per cent. As total reservations in a year
for the Scheduled Castes, the Scheduled Tribes and the other Backward Classes
combined together had already reached forty-nine and a half per cent and the
total number of vacancies to be filled up in a year could not exceed fifty per
cent., it became difficult to fill the "Backlog Vacancies" and to
hold Special Recruitment Drives. Therefore, to implement the judgment of the
Supreme Court, an Official Memorandum dated August 29, 1997 was issued to provide that the fifty per cent limit shall
apply to current as well as "Backlog Vacancies" and for
discontinuation of the Special
the adverse effect of the aforesaid order dated August 29, 1997, various organisations including the Members of Parliament
represented to the central Government for protecting the interest of the
Scheduled castes and the Scheduled Tribes.
Government, after considering various representations, reviewed the position
and has decided to make amendment in the constitution 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 fifty percent,
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.
Bill seeks to achieve the aforesaid object.
CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000 (Assented on 9th June, 2000 and came into force 9.6.2000) An
Act further to amend the Constitution of India.
enacted by Parliament in the Fifty- first Year of the Republic of India as follows:-
Short title: This Act may be called the Constitution (Eighty-first Amendment)
Amendment of Article 16: In Article 16 of the Constitution, after clause (4A),
the following clause shall be inserted, namely: - "(4B) Nothing in this
Article shall prevent the State from 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 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 fifty per
cent reservation on total number of vacancies of that year." The Constitution
(Eighty-First Amendment) Act, 2000 gives, in substance, legislative assent to
the judgment of this Court in R.K. Sabharwal8. Once it is held that each point
in the roster indicates a post which on falling vacant has to be filled by the
particular category of candidate to be appointed against it and any subsequent
vacancy has to be filled by that category candidate alone then the question of
clubbing the unfilled vacancies with current vacancies do not arise.
in effect, Article 16(4B) grants legislative assent to the judgment in R.K.
Sabharwal8. If it is within the power of the State to make reservation then
whether it is made in one selection or deferred selections, is only a
convenient method of implementation as long as it is post based, subject to
replacement theory and within the limitations indicated hereinafter.
stated above, clause (4A) of Article 16 is carved out of clause (4) of Article
16. Clause (4A) provides benefit of reservation in promotion only to SCs and STs.
case of S. Vinod Kumar and another v. Union of India and others this court held
that relaxation of qualifying marks and standards of evaluation in matters of
reservation in promotion was not permissible under Article 16(4) in view of
Article 335 of the Constitution.
was also the view in Indra Sawhney5.
Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the
end of Article 335 of the Constitution which reads as under:
that nothing in this article shall prevent in making of any provision in favour
of the members of the Scheduled Castes and the Scheduled Tribes for relaxation
in qualifying marks in any examination or lowering the standards of evaluation,
for reservation in matters of promotion to any class or classes of services or
posts in connection with the affairs of the Union or of a State." This
proviso was added following the benefit of reservation in promotion conferred
upon SCs and STs alone. This proviso was inserted keeping in mind the judgment
of this court in Vinod Kumar21 which took 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. Once a separate category is carved out of
clause (4) of Article 16 then that category is being given relaxation in
matters of reservation in promotion. The proviso is confined to SCs and STs
alone. The said proviso is compatible with the scheme of Article 16(4A).
OF "TIME" FACTOR IN VIEW OF ARTICLE 16(4B):
stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog
vacancies). The ceiling- limit of 50% on current vacancies continues to remain.
working-out the carry-forward rule, two factors are required to be kept in
mind, namely, unfilled vacancies and the time factor. This position needs to be
hand of the spectrum, we have unfilled vacancies; on the other hand, we have a
time-spread over number of years over which unfilled vacancies are sought to be
carried-over. These two are alternating factors and, therefore, if the
ceiling-limit on the carry-over of unfilled vacancies is removed, the other
alternative time-factor comes in and in that event, the time-scale has to be
imposed in the interest of efficiency in administration as mandated by Article
335. If the time-scale is not kept then posts will continue to remain vacant
for years, which would be detrimental to the administration.
in each case, the appropriate Government will now have to introduce the
time-cap depending upon the fact-situation. What is stated hereinabove is borne
out by Service Rules in some of the States where the carry- over rule does not
extend beyond three years.
IMPUGNED CONSTITUTIONAL AMENDMENTS VIOLATES THE PRINCIPLE OF BASIC STRUCTURE:
key question which arises in the matter of the challenge to the constitutional
validity of the impugned amending Acts is - whether the constitutional
limitations on the amending power of the Parliament are obliterated by the
impugned amendments so as to violate the basic structure of the Constitution.
matter of application of the principle of basic structure, twin tests have to
be satisfied, namely, the 'width test' and the test of 'identity'. As stated
hereinabove, the concept of the 'catch-up' rule and 'consequential seniority'
are not constitutional requirements. They are not implicit in clauses (1) and
(4) of Article 16. They are not constitutional limitations.
are concepts derived from service jurisprudence.
are not constitutional principles. They are not axioms like, secularism,
federalism etc. Obliteration of these concepts or insertion of these concepts
do not change the equality code indicated by Articles 14, 15 and 16 of the
Constitution. Clause (1) of Article 16 cannot prevent the State from taking
cognizance of the compelling interests of backward classes in the society.
(1) and (4) of Article 16 are restatements of the principle of equality under
Article 14. Clause (4) of Article 16 refers to affirmative action by way of
reservation. Clause (4) of Article 16, however, states that the appropriate
Government is free to provide for reservation in cases where it is satisfied on
the basis of quantifiable data that backward class is inadequately represented
in the services. Therefore, in every case where the State decides to provide
for reservation there must exist two circumstances, namely, 'backwardness' and
'inadequacy of representation'. As stated above equity, justice and efficiency
are variable factors. These factors are context-specific. There is no fixed
yardstick to identify and measure these three factors, it will depend on the
facts and circumstances of each case. These are the limitations on the mode of
the exercise of power by the State. None of these limitations have been removed
by the impugned amendments. If the concerned State fails to identify and
measure backwardness, inadequacy and overall administrative efficiency then in
that event the provision for reservation would be invalid. These amendments do
not alter the structure of Articles 14, 15 and 16 (equity code). The parameters
mentioned in Article 16(4) are retained. Clause (4A) is derived from clause (4)
of Article 16. Clause (4A) is confined to SCs and STs alone. Therefore, the
present case does not change the identity of the Constitution. The word
"amendment" connotes change. The question is whether the impugned
amendments discard the original constitution. It was vehemently urged on behalf
of the petitioners that the Statement of Objects and Reasons indicate that the
impugned amendments have been promulgated by the Parliament to overrule the
decision of this court. We do not find any merit in this argument.
Article 141 of the Constitution the pronouncement of this court is the law of the
land. The judgments of this court in Virpal Singh1, Ajit Singh (I)2 , Ajit
Singh (II)3 and Indra Sawhney5, were judgments delivered by this court which
enunciated the law of the land. It is that law which is sought to be changed by
the impugned constitutional amendments. The impugned constitutional amendments
are enabling in nature. They leave it to the States to provide for reservation.
It is well- settled that the Parliament while enacting a law does not provide
content to the "right". The content is provided by the judgments of
the Supreme Court. If the appropriate Government enacts a law providing for
reservation without keeping in mind the parameters in Article 16(4) and Article
335 then this court will certainly set aside and strike down such legislation.
Applying the "width test", we do not find obliteration of any of the
constitutional limitations. Applying the test of "identity", we do
not find any alteration in the existing structure of the equality code. As
stated above, none of the axioms like secularism, federalism etc. which are
overarching principles have been violated by the impugned constitutional
amendments. Equality has two facets "formal equality" and
equality is equality "in fact" whereas formal equality is equality
"in law". Formal equality exists in the Rule of Law. In the case of
proportional equality the State is expected to take affirmative steps in favour
of disadvantaged sections of the society within the framework of liberal
democracy. Egalitarian equality is proportional equality.
criterion for determining the validity of a law is the competence of the
law-making authority. The competence of the law-making authority would depend
on the ambit of the legislative power, and the limitations imposed thereon as
also the limitations on mode of exercise of the power. Though the amending
power in Constitution is in the nature of a constituent power and differs in
content from the legislative power, the limitations imposed on the constituent power
may be substantive as well as procedural. Substantive limitations are those
which restrict the field of the exercise of the amending power. Procedural
limitations on the other hand are those which impose restrictions with regard
to the mode of exercise of the amending power. Both these limitations touch and
affect the constituent power itself, disregard of which invalidates its
exercise. [See: Kihoto Hollohan v. Zachillhu & Others].
the above tests to the present case, there is no violation of the basic
structure by any of the impugned amendments, including the Constitution
(Eighty-Second) Amendment Act, 2000. The constitutional limitation under
Article 335 is relaxed and not obliterated. As stated above, be it reservation
or evaluation, excessiveness in either would result in violation of the
constitutional mandate. This exercise, however, will depend on facts of each
case. In our view, the field of exercise of the amending power is retained by
the impugned amendments, as the impugned amendments have introduced merely
enabling provisions because, as stated above, merit, efficiency, backwardness
and inadequacy cannot be identified and measured in vacuum. Moreover, Article
16(4A) and Article 16(4B) fall in the pattern of Article 16(4) and as long as
the parameters mentioned in those articles are complied-with by the States, the
provision of reservation cannot be faulted. Articles 16(4A) and 16(4B) are
classifications within the principle of equality under Article 16(4).
conclusion, we may quote the words of Rubenfeld:
our commitments may make us rationale but not free. It cannot make us maintain
our constitutional identity".
OF ENABLING PROVISIONS IN THE CONTEXT OF ARTICLE 14:
of Article 14 is equality of treatment.
14 confers a personal right by enacting a prohibition which is absolute. By
judicial decisions, the doctrine of classification is read into Article 14.
Equality of treatment under Article 14 is an objective test. It is not the test
of intention. Therefore, the basic principle underlying Article 14 is that the
law must operate equally on all persons under like circumstances. [Emphasis
added]. Every discretionary power is not necessarily discriminatory. According
to the Constitutional Law of India, by H.M.
Seervai, 4th Edn. 546, equality is not violated by mere conferment of
discretionary power. It is violated by arbitrary exercise by those on whom it
is conferred. This is the theory of 'guided power'. This theory is based on the
assumption that in the event of arbitrary exercise by those on whom the power
is conferred would be corrected by the Courts. This is the basic principle
behind the enabling provisions which are incorporated in Articles 16(4A) and
16(4B). Enabling provisions are permissive in nature. They are enacted to
balance equality with positive discrimination. The constitutional law is the
law of evolving concepts. Some of them are generic others have to be identified
and valued. The enabling provisions deal with the concept, which has to be
identified and valued as in the case of access vis-`-vis efficiency which
depends on the fact- situation only and not abstract principle of equality in
Article 14 as spelt out in detail in Articles 15 and 16.
before the law, guaranteed by the first part of Article 14, is a negative
concept while the second part is a positive concept which is enough to validate
equalizing measures depending upon the fact-situation.
important to bear in mind the nature of constitutional amendments. They are
curative by nature.
16(4) provides for reservation for backward classes in cases of inadequate
representation in public employment. Article 16(4) is enacted as a remedy for
the past historical discriminations against a social class.
object in enacting the enabling provisions like Articles 16(4), 16(4A) and
16(4B) is that the State is empowered to identify and recognize the compelling
interests. If the State has quantifiable data to show backwardness and
inadequacy then the State can make reservations in promotions keeping in mind
maintenance of efficiency which is held to be a constitutional limitation on
the discretion of the State in making reservation as indicated by Article 335.
As stated above, the concepts of efficiency, backwardness, inadequacy of
representation are required to be identified and measured. That exercise
depends on availability of data. That exercise depends on numerous factors. It
is for this reason that enabling provisions are required to be made because
each competing claim seeks to achieve certain goals. How best one should
optimize these conflicting claims can only be done by the administration in the
context of local prevailing conditions in public employment. This is amply
demonstrated by the various decisions of this Court discussed hereinabove.
Therefore, there is a basic difference between 'equality in law' and 'equality
in fact' (See: 'Affirmative Action' by William Darity). If Articles 16(4A) and
16(4B) flow from Article 16(4) and if Article 16(4) is an enabling provision
then Articles 16(4A) and 16(4B) are also enabling provisions. As long as the
boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and
efficiency of administration are retained in Articles 16(4A) and 16(4B) as
controlling factors, we cannot attribute constitutional invalidity to these
enabling provisions. However, when the State fails to identify and implement
the controlling factors then excessiveness comes in, which is to be decided on
the facts of each case. In a given case, where excessiveness results in reverse
discrimination, this Court has to examine individual cases and decide the
matter in accordance with law. This is the theory of 'guided power'. We may
once again repeat that equality is not violated by mere conferment of power but
it is breached by arbitrary exercise of the power conferred.
OF DOCTRINE OF "GUIDED POWER" ARTICLE 335:
the above tests to the proviso to Article 335 inserted by the Constitution
(Eighty-Second Amendment) Act, 2000, we find that the said proviso has a nexus
with Articles 16(4A) and 16(4B). Efficiency in administration is held to be a
constitutional limitation on the discretion vested in the State to provide for
reservation in public employment. Under the proviso to Article 335, it is
stated that nothing in Article 335 shall prevent the State to relax qualifying
marks or standards of evaluation for reservation in promotion. This proviso is
also confined only to members of SCs and STs. This proviso is also conferring
discretionary power on the State to relax qualifying marks or standards of
evaluation. Therefore, the question before us is whether the State could be
empowered to relax qualifying marks or standards for reservation in matters of
promotion. In our view, even after insertion of this proviso, the limitation of
overall efficiency in Article 335 is not obliterated. Reason is that
"efficiency" is variable factor. It is for the concerned State to
decide in a given case, whether the overall efficiency of the system is
affected by such relaxation. If the relaxation is so excessive that it ceases
to be qualifying marks then certainly in a given case, as in the past, the
State is free not to relax such standards. In other cases, the State may evolve
a mechanism under which efficiency, equity and justice, all three variables,
could be accommodated.
Article 335 is to be read with Article 46 which provides that the State shall
promote with special care the educational and economic interests of the weaker
sections of the people and in particular of the scheduled castes and scheduled
tribes and shall protect them from social injustice. Therefore, where the State
finds compelling interests of backwardness and inadequacy, it may relax the
qualifying marks for SCs/STs. These compelling interests however have to be
identified by weighty and comparable data.
conclusion, we reiterate that the object behind the impugned Constitutional
amendments is to confer discretion on the State to make reservations for SCs/STs
in promotions subject to the circumstances and the constitutional limitations
TO JUDGE THE VALIDITY OF THE IMPUGNED STATE ACTS:
stated above, the boundaries of the width of the power, namely, the
ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer,
the compelling reasons, namely, backwardness, inadequacy of representation and
the overall administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider the law as enacted by
various States providing for reservation if challenged.
that time we have to see whether limitations on the exercise of power are
violated. The State is free to exercise its discretion of providing for
reservation subject to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation in a class of post(s)
keeping in mind the overall administrative efficiency. It is made clear that
even if the State has reasons to make reservation, as stated above, if the
impugned law violates any of the above substantive limits on the width of the
power the same would be liable to be set aside.
the impugned amendments making an inroad into the balance struck by the
judgment of this court in the case of Indra Sawhney5:
submitted that equality has been recognized to be a basic feature of our
Constitution. To preserve equality, a balance was struck in Indra Sawhney5 so
as to ensure that the basic structure of Articles 14, 15 and 16 remains intact
and at the same time social upliftment, as envisaged by the Constitution, stood
achieved. In order to balance and structure the equality, a ceiling-limit on
reservation was fixed at 50% of the cadre strength, reservation was confined to
initial recruitment and was not extended to promotion.
further submitted that in Indra Sawhney5, vide para 829 this Court has held
that reservation in promotion was not sustainable in principle. Accordingly,
petitioners submitted that the impugned constitutional amendments makes a
serious inroad into the said balance struck in the case of Indra Sawhney5 which
protected equality as a basic feature of our Constitution.
quote hereinbelow paragraph 829 of the majority judgment in the case of Indra
Sawhney5 which reads as follows:
It is true that Rangachari15 has been the law for more than 30 years and that
attempts to re-open the issue were repelled in Akhil Bharatiya Soshit Karamchari
Sangh (Railway) v. Union of India and others . It may equally be true that on
the basis of that decision, reservation may have been provided in the matter of
promotion in some of the Central and State services but we are convinced that
the majority opinion in Rangachari15, to the extent it holds, that Article
16(4) permits reservation even in the matter of promotion, is not sustainable
in principle and ought to be departed from.
taking into consideration all the circumstances, we direct that our decision on
this question shall operate only prospectively and shall not affect promotions
already made, whether on temporary, officiating or regular/permanent basis. It
is further directed that wherever reservations are already provided in the
matter of promotion - be it Central Services or State Services, or for that matter
services under any corporation, authority or body falling under the definition
of 'State' in Article 12-such reservations shall continue in operation for a
period of five years from this day. Within this period, it would be open to the
appropriate authorities to revise modify or re-issue the relevant Rules to
ensure the achievement of the objective of Article 16(4). If any authority
thinks that for ensuring adequate representation of 'backward class of
citizens' in any service, class or category, it is necessary to provide for
direct recruitment therein, it shall be open to it do so.
supplied) What are the outer boundaries of the amendment process in the context
of Article 16 is the question which needs to be answered. Equality is the basic
feature of the Constitution as held in Indra Sawhney5. The content of Article
14 was originally interpreted by this Court as a concept of equality confined
to the aspects of discrimination and classification. It is only after the
rulings of this Court in Maneka Gandhi11 and Ajay Hasia and others v. Khalid Mujib
Sehravardi and others , that the content of Article 14 got expanded
conceptually so as to comprehend the doctrine of promissory estoppel, non
arbitrariness, compliance with rules of natural justice, eschewing
is a difference between "formal equality" and "egalitarian
equality". At one point of time Article 16(4) was read by the Supreme
Court as an exception to Article 16(1). That controversy got settled in Indra
"nothing in this Article" in Article 16(4) represents a legal device
allowing positive discrimination in favour of a class. Therefore, Article 16(4)
relates to "a class apart". Article 16(4), therefore, creates a field
which enables a State to provide for reservation provided there exists
backwardness of a class and inadequacy of representation in employment. These
are compelling reasons. They do not exist in Article 16(1). It is only when
these reasons are satisfied that a State gets the power to provide for
reservation in matters of employment. Therefore, Article 16(1) and Article
16(4) operate in different fields. Backwardness and inadequacy of
representation, therefore, operate as justifications in the sense that the
State gets the power to make reservation only if backwardness and inadequacy of
representation exist. These factors are not obliterated by the impugned
question still remains as to whether any of the constitutional limitations are
obliterated by way of the impugned constitutional amendments. By way of the
impugned amendments Articles 16(4A) and 16(4B) have been introduced.
Sawhney5 the equality which was protected by the rule of 50%, was by balancing
the rights of the general category vis-`-vis the rights of BC en bloc
consisting of OBC, SC and ST. On the other hand, in the present case the question which we
are required to answer is: whether within the egalitarian equality, indicated
by Article 16(4), the sub-classification in favour of SC and ST is in principle
constitutionally valid. Article 16(4A) is inspired by the observations in Indra
Sawhney5 vide para 802 and 803 in which this Court has unequivocally observed
that in order to avoid lumping of OBC, SC and ST which would make OBC take away
all the vacancies leaving SC and ST high and dry, the concerned State was
entitled to categorise and sub- classify SCs and STs on one hand vis-`-vis OBC
on the other hand. We quote hereinbelow paragraphs 802 and 803 of the judgment
in Indra Sawhney5 :
We are of the opinion that there is no constitutional or legal bar to a State
categorizing the backward classes as backward and more backward. We are not
saying that it ought to be done. We are concerned with the question if a State
makes such a categorisation, whether it would be invalid? We think not. Let us
take the criteria evolved by Mandal Commission. Any caste, group or class which
scored eleven or more points was treated as a backward class. Now, it is not as
if all the several thousands of castes/groups/classes scored identical points.
may be some castes/groups/classes which have scored points between 20 to 22 and
there may be some who have scored points between eleven and thirteen. It cannot
reasonably be denied that there is no difference between these two sets of
castes/groups/classes. To give an illustration, take two occupational groups
viz., gold-smiths and vaddes (traditional stone-cutters in Andhra Pradesh) both
included within Other Backward Classes. None can deny that gold- smiths are far
less backward than vaddes. If both of them are grouped together and reservation
provided, the inevitably result would be that gold-smiths would take away all
the reserved posts leaving none for vaddes. In such a situation, a State may
think it advisable to make a categorisation even among other backward classes
so as to ensure that the more backward among the backward classes obtain the
benefits intended for them.
to draw the line and how to effect the sub-classification is, however, a matter
for the Commission and the State - and so long as it is reasonably done, the
Court may not intervene. In this connection, reference may be made to the categorisation
obtaining in Andhra Pradesh. The Backward Classes have been divided into four
categories. Group-A comprises "Aboriginal tribes, Vimukta jatis, Nomadic
and semi-nomadic tribes etc.".
comprises professional group like tappers, weavers, carpenters, ironsmiths,
goldsmiths, kamsalins etc. Group-C pertains to "Scheduled Castes converts
to Christianity and their progeny", while Group-D comprises all other
classes/communities/groups, which are not included in groups A, B and C. The
25% vacancies reserved for backward classes are sub-divided between them in
proportion to their respective population. This categorisation was justified in
Balram  3 S.C.R. 247 at 286. This is merely to show that even among
backward classes, there can be a sub- classification on a reasonable basis.
supplied) "803. There is another way of looking at this issue. Article
16(4) recognises only one class viz., "backward class of citizens".
It does not speak separately of Scheduled Castes and Scheduled Tribes, as does
Article 15(4). Even so, it is beyond controversy that Scheduled Castes and
Scheduled Tribes are also included in the expression "backward class of
citizens" and that separate reservations can be provided in their favour.
It is a well-accepted phenomenon throughout the country. What is the logic
behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward
Classes are lumped together, O.B.Cs. will take away all the vacancies leaving
Scheduled Castes and Scheduled Tribes high and dry.
same logic also warrants categorisation as between more backward and backward.
We do not mean to say - we may reiterate - that this should be done. We are
only saying that if a State chooses to do it, it is not impermissible in
law." (emphasis supplied) Therefore, while judging the width and the ambit
of Article 16(4A) we must ascertain whether such sub- classification is
permissible under the Constitution. The sub-classification between
"OBC" on one hand and "SC and ST" on the other hand is held
to be constitutionally permissible in Indra Sawhney5. In the said judgment it
has been held that the State could make such sub- classification between SCs
and STs vis-`-vis OBC. It refers to sub-classification within the egalitarian
equality (vide paras 802 and 803). Therefore, Article 16(4A) follows the line
suggested by this Court in Indra Sawhney5 . In Indra Sawhney5 on the other hand
vide para 829 this Court has struck a balance between formal equality and
egalitarian equality by laying down the rule of 50% (ceiling-limit) for the
entire BC as "a class apart" vis-`-vis GC. Therefore, in our view,
equality as a concept is retained even under Article 16(4A) which is carved out
of Article 16(4).
stated above, Article 14 enables classification. A classification must be
founded on intelligible differential which distinguishes those that are grouped
together from others. The differential must have a rational relation to the
object sought to be achieved by the law under challenge. In Indra Sawhney5 an
opinion was expressed by this Court vide para 802 that there is no
constitutional or legal bar to making of classification.
16(4B) is also an enabling provision. It seeks to make classification on the
basis of the differential between current vacancies and carry-forward
case of Article 16(4B) we must keep in mind that following the judgment in R.K.
Sabharwal8 the concept of post-based roster is introduced. Consequently,
specific slots for OBC, SC and ST as well as GC have to be maintained in the roster. For want of
candidate in a particular category the post may remain unfilled.
that slot has to be filled only by the specified category. Therefore, by
Article 16(4B) a classification is made between current vacancies on one hand
and carry-forward/backlog vacancies on the other hand. Article 16(4B) is a
direct consequence of the judgment of this court in R.K. Sabharwal8 by which
the concept of post-based roster is introduced. Therefore, in our view Articles
16(4A) and 16(4B) form a composite part of the scheme envisaged. Therefore, in
our view Articles 16(4), 16(4A) and 16(4B) together form part of the same
scheme. As stated above, Articles 16(4A) and 16(4B) are both inspired by
observations of the Supreme Court in Indra Sawhney5 and R.K. Sabharwal8. They
have nexus with Articles 17 and 46 of the Constitution.
we uphold the classification envisaged by Articles 16(4A) and 16(4B). The
impugned constitutional amendments, therefore, do not obliterate equality.
test for judging the width of the power and the test for adjudicating the
exercise of power by the concerned State are two different tests which warrant
two different judicial approaches. In the present case, as stated above, we are
required to test the width of the power under the impugned amendments.
Therefore, we have to apply "the width test". In applying "the
width test" we have to see whether the impugned amendments obliterate the
constitutional limitations mentioned in Article 16(4), namely, backwardness and
inadequacy of representation. As stated above, these limitations are not
obliterated by the impugned amendments. However, the question still remains
whether the concerned State has identified and valued the circumstances
justifying it to make reservation. This question has to be decided case- wise.
There are numerous petitions pending in this Court in which reservations made
under State enactments have been challenged as excessive. The extent of
reservation has to be decided on facts of each case. The judgment in Indra
Sawhney5 does not deal with constitutional amendments. In our present judgment,
we are upholding the validity of the constitutional amendments subject to the
in each case the Court has got to be satisfied that the State has exercised its
opinion in making reservations in promotions for SCs and STs and for which the
concerned State will have to place before the Court the requisite quantifiable
data in each case and satisfy the Court that such reservations became necessary
on account of inadequacy of representation of SCs/ STs in a particular class or
classes of posts without affecting general efficiency of service as mandated
under Article 335 of the Constitution.
constitutional principle of equality is inherent in the Rule of Law. However,
its reach is limited because its primary concern is not with the content of the
law but with its enforcement and application. The Rule of Law is satisfied when
laws are applied or enforced equally, that is, evenhandedly, free of bias and
without irrational distinction. The concept of equality allows differential
treatment but it prevents distinctions that are not properly justified.
Justification needs each case to be decided on case to case basis.
of power cannot be denied on the ground that it is likely to be abused. As
against this, it has been held vide para 650 of Kesavananda Bharati13 that
where the nature of the power granted by the Constitution is in doubt then the
Court has to take into account the consequences that might ensue by
interpreting the same as an unlimited power. However, in the present case there
is neither any dispute about the existence of the power nor is there any
dispute about the nature of the power of amendment. The issue involved in the
present case is concerning the width of the power.
power to amend is an enumerated power in the Constitution and, therefore, its
limitations, if any, must be found in the Constitution itself. The concept of
reservation in Article 16(4) is hedged by three constitutional requirements,
namely, backwardness of a class, inadequacy of representation in public
employment of that class and overall efficiency of the administration.
requirements are not obliterated by the impugned constitutional amendments.
Reservation is not in issue.
is in issue is the extent of reservation. If the extent of reservation is
excessive then it makes an inroad into the principle of equality in Article
16(1). Extent of reservation, as stated above, will depend on the facts of each
case. Backwardness and inadequacy of representation are compelling reasons for
the State Governments to provide representation in public employment.
Therefore, if in a given case the court finds excessive reservation under the
State enactment then such an enactment would be liable to be struck down since
it would amount to derogation of the above constitutional requirements.
this stage, one aspect needs to be mentioned.
justice is concerned with the distribution of benefits and burdens. The basis
of distribution is the area of conflict between rights, needs and means. These
three criteria can be put under two concepts of equality, namely, "formal
equality" and "proportional equality".
equality means that law treats everyone equal.
of egalitarian equality is the concept of proportional equality and it expects
the States to take affirmative action in favour of disadvantaged sections of
society within the framework of democratic polity. In Indra Sawhney5 all the
judges except Pandian, J. held that the "means test" should be
adopted to exclude the creamy layer from the protected group earmarked for
reservation. In Indra Sawhney5 this Court has, therefore, accepted caste as
determinant of backwardness and yet it has struck a balance with the principle
of secularism which is the basic feature of the Constitution by bringing in the
concept of creamy layer.
have often been expressed in this Court that caste should not be the
determinant of backwardness and that the economic criteria alone should be the
determinant of backwardness. As stated above, we are bound by the decision in Indra
Sawhney5. The question as to the "determinant" of backwardness cannot
be gone into by us in view of the binding decision. In addition to the above
requirements this Court in Indra Sawhney5 has evolved numerical benckmarks like
ceiling-limit of 50% based on post-specific roster coupled with the concept of
replacement to provide immunity against the charge of discrimination.
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.
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 as held in Indra Sawhney5 , the concept of post-based Roster with in-built
concept of replacement as held in R.K. Sabharwal8.
reiterate that the ceiling-limit of 50%, the concept of creamy layer and the
compelling reasons, namely, backwardness, inadequacy of representation and
overall administrative efficiency are all constitutional requirements without
which the structure of equality of opportunity in Article 16 would collapse.
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 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. It is made clear that even if the
State has compelling reasons, as stated above, the State will have to see that
its reservation provision does not lead to excessiveness so as to breach the
ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
to above, we uphold the constitutional validity of the Constitution
(Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First
Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and
the Constitution (Eighty-Fifth Amendment) Act, 2001.
have not examined the validity of individual enactments of appropriate States
and that question will be gone into in individual writ petition by the
appropriate bench in accordance with law laid down by us in the present case.
is answered accordingly.