JARNAIL SINGH & OTHERS versus LACHHMI NARAIN GUPTA & OTHERS

[2018] 10 S.C.R. 663

JARNAIL SINGH & OTHERS

LACHHMI NARAIN GUPTA & OTHERS

(Special Leave Petition (Civil) No.30621 of 2011)

SEPTEMBER 26, 2018

[DIPAK MISRA, CJI, KURIAN JOSEPH, R. F. NARIMAN,SANJAY KISHAN KAUL AND INDU MALHOTRA, JJ.]

Constitution of India – Arts.16(4-A), 16(4-B), 335, 341 and342 – Interpretation of – Reservation in promotion – Judgment inM. Nagaraj case – Correctness of – Referred to five judgeConstitution Bench – Held: Judgment in M. Nagaraj case does notneed to be referred to seven–Judge Bench – However, the conclusionin M. Nagaraj case that the State has to collect quantifiable datashowing backwardness of the Scheduled Castes and the ScheduledTribes, being contrary to the nine-Judge Bench in Indra Sawhney(1) case, is held to be invalid to this extent.

Constitution of India – Reservation – Principle of CreamyLayer – Application to Schedules Castes (SCs) and Scheduled Tribes(STs) – Held: When Court applies the creamy layer principle toSCs and STs, it does not in any manner tinker with the PresidentialList u/Arts. 341 or 342 – Caste or group or sub-group named in thesaid List continues exactly as before – It is only those persons withinthat group or sub-group, who have come out of untouchability orbackwardness by virtue of belonging to the creamy layer, who areexcluded from the benefit of reservation.

Constitution of India – Arts.14 and 16(1) – Reservation –Principle of Creamy Layer – Held: Creamy Layer Principle soundsin Arts. 14 and 16(1), as unequals within the same class are beingtreated equally with other members of that class.

Interpretation of Statutes – Harmonious Interpretation – Held:Arts. 14 and 16 when harmoniously interpreted along with Arts.341and 342, makes it clear that Parliament has complete freedom toinclude or exclude persons from the Presidential Lists based onrelevant factors – Constitution of India – Arts. 14, 16, 341 and342.

AConstitution of India – Reservation – Object of – Held: Wholeobject of reservation is to see that backward classes of citizensmove forward so that they may march hand in hand with other citizensof India on an equal basis – This will not be possible if only thecreamy layer within class bag all the coveted jobs in the publicsector and perpetuate themselves, leaving the rest of the class asBbackward as they always were.

Answering the referred issue, the Court

HELD: 1.1 Though M.Nagaraj is later judgment, it doesnot refer to Chinnaiah case at all. The majority judgment ofCHegde, J. does not refer to the creamy layer principle at all.Chinnaiah’s judgment in essence held that the Andhra PradeshScheduled Castes (Rationalisation of Reservations) Act, 2000,which it considered, could not further sub-divide Scheduled Castesinto four categories, as that would be violative of Article 341(2)of the Constitution of India for the simple reason that it isDParliament alone that can make any change in the PresidentialList and not the State Legislatures. This is the true ratio of thejudgment. This being the case, as Chinnaiah does not in anymanner deal with any of the aspects on which the constitutionalamendments in M.Nagaraj’s case were upheld, it was notEnecessary for M.Nagaraj case to refer to Chinnaiah at all. Thetrue ratio of the judgment flows from construction of Article341. It is true that the Andhra Pradesh Scheduled Castes(Rationalisation of Reservations) Act, 2000 was also found to beviolative of Article 14. Chinnaiah case dealt with completelydifferent problem, apart from dealing with State statute and notFa constitutional amendment, as was dealt with in M.Nagaraj case.[Para 13] [694-F-G; 695-A-B, D]1.2 Insofar as the State having to show quantifiable data asfar as backwardness of the class is concerned, the reference to“class” in M.Nagaraj is to the Scheduled Castes and theGScheduled Tribes, and their inadequacy of representation in publicemployment. It is clear, therefore, that M.Nagaraj has, inunmistakable terms, stated that the State has to collectquantifiable data showing backwardness of the Scheduled Castesand the Scheduled Tribes. This portion of the judgment is directlyHcontrary to the nine-Judge Bench in Indra Sawhney (1) case.

Jeevan Reddy, J., speaking for himself and three other learnedJudges, had clearly held, “[t]he test or requirement of social andeducational backwardness cannot be applied to Scheduled Castesand Scheduled Tribes, who indubitably fall within the expression“backward class of citizens”. [Para 14] [695-E-H]

1.3 In fact, Chinnaiah case has referred to the ScheduledCastes as being the most backward among the backward classes.This is for the reason that the Presidential List contains onlythose castes or groups or parts thereof, which have been regardedas untouchables. Similarly, the Presidential List of ScheduledTribes only refers to those tribes in remote backward areas whoare socially extremely backward. Thus, it is clear that whenM.Nagaraj case requires the States to collect quantifiable dataon backwardness, insofar as Scheduled Castes and ScheduledTribes are concerned, this would clearly be contrary to the IndraSawhney (1) case and would have to be declared to be bad onthis ground. However, when it comes to the creamy layerprinciple, it is important to note that this principle sounds inArticles 14 and 16(1), as unequals within the same class are beingtreated equally with other members of that class. The whole objectof reservation is to see that backward classes of citizens moveforward so that they may march hand in hand with other citizensof India on an equal basis. This will not be possible if only thecreamy layer within that class bag all the coveted jobs in the publicsector and perpetuate themselves, leaving the rest of the classas backward as they always were. This being the case, it is clearthat when Court applies the creamy layer principle to ScheduledCastes and Scheduled Tribes, it does not in any manner tinkerwith the Presidential List under Articles 341 or 342 of theConstitution of India. The caste or group or sub-group named inthe said List continues exactly as before. It is only those personswithin that group or sub-group, who have come out ofuntouchability or backwardness by virtue of belonging to thecreamy layer, who are excluded from the benefit of reservation.Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists.It is only when it comes to the application of the reservationprinciple under Articles 14 and 16 that the creamy layer within

Athat sub-group is not given the benefit of such reservation.[Para 15] [696-D-F; 698-A-D]

1.4 It is not necessary to go into whether Parliament mayor may not exclude the creamy layer from the Presidential Listscontained under Articles 341 and 342. Even on the assumptionBthat Articles 341 and 342 empower Parliament to exclude thecreamy layer from the groups or sub-groups contained withinthese Lists, it is clear that Constitutional Courts, applying Articles14 and 16 of the Constitution to exclude the creamy layer cannotbe said to be thwarted in this exercise by the fact that personsstated to be within particular group or sub-group in theCPresidential List may be kept out by Parliament on application ofthe creamy layer principle. When Articles 14 and 16 areharmoniously interpreted along with other Articles 341 and 342,it is clear that Parliament will have complete freedom to includeor exclude persons from the Presidential Lists based on relevantDfactors. Similarly, Constitutional Courts, when applying theprinciple of reservation, will be well within their jurisdiction toexclude the creamy layer from such groups or sub-groups whenapplying the principles of equality under Articles 14 and 16 of theConstitution of India. Statement of Balakrishnan, C.J. in AshokaKumar Thakur case that the creamy layer principle is merely aEprinciple of identification and not principle of equality cannotbe agreed upon. [Para 16] [698-E-H; 699-A]

1.5 When M.Nagaraj applied the creamy layer test toScheduled Castes and Scheduled Tribes in exercise of applicationof the basic structure test to uphold the constitutionalFamendments leading to Articles 16(4-A) and 16(4-B), it did notin any manner interfere with Parliament’s power under Article341 or Article 342. Therefore, clearly this part of the judgmentdoes not need to be revisited, and consequently, there is no needto refer M.Nagaraj to seven-Judge Bench. M.Nagaraj is aGunanimous judgment of five learned Judges of this Court whichhas held sway since the year 2006. In fact, the tests laid down inM.Nagaraj case for judging whether constitutional amendmentviolates basic structure have been expressly approved by nine-Judge Bench of this Court in I.R. Coelho case. The entirety of

the decision, far from being clearly erroneous, correctly appliesthe basic structure doctrine to uphold constitutional amendmentson certain conditions which are based upon the equality principleas being part of basic structure. Thus, it is made clear thatquantifiable data shall be collected by the State, on the parametersas stipulated in M.Nagaraj case on the inadequacy ofrepresentation, which can be tested by the Courts. The data wouldbe relatable to the concerned cadre. [Para 17] [699-B-C;700-C-D]

1.6 Even without the help of the first part of Article 16(4-A)of the Constitution (One Hundred Seventeeth Amendment) Bill,2012, the providing of quantifiable data on backwardness when itcomes to Scheduled Castes and Scheduled Tribes, has been heldto be contrary to the majority in Indra Sawhney (1) case. So far asthe second part of the substituted Article 16(4-A) contained inthe Bill is concerned, it is noticed that the proportionality to thepopulation of Scheduled Castes and Scheduled Tribes is notsomething that occurs in Article 16(4-A) as enacted, which mustbe contrasted with Article 330. Article 46, which is provisionoccurring in the Directive Principles of State Policy, has alwaysmade the distinction between the Scheduled Castes and theScheduled Tribes and other weaker sections of the people. Thisbeing the case, it is easy to see the pattern of Article 46 beingfollowed in Article 16(4) and Article 16(4-A). Whereas “backwardclasses” in Article 16(4) is equivalent to the “weaker sections ofthe people” in Article 46, and is the overall genus, the species ofScheduled Castes and Scheduled Tribes is separately mentionedin the latter part of Article 46 and Article 16(4-A). This is for thereason that the Scheduled Castes and the Scheduled Tribes arethe most backward or the weakest of the weaker sections ofsociety, and are, therefore, presumed to be backward. Theargument that as member of Scheduled Caste or ScheduledTribe reaches the higher posts, he/she no longer has the taint ofeither untouchability or backwardness, as the case may be, andthat therefore, the State can judge the absence of backwardnessas the posts go higher, is an argument that goes to the validity ofArticle 16(4-A). If this argument is accepted, logically, Article16(4-A) would have to be struck down, as the necessity for

Acontinuing reservation for Scheduled Caste and/or ScheduledTribe member in the higher posts would then disappear. Sincethe object of Article 16(4-A) and 16(4-B) is to do away with thenine-Judge Bench in Indra Sawhney (1) case when it came toreservation in promotions in favour of the Scheduled Castes andScheduled Tribes, that object must be given effect to, and hasBbeen given effect by the judgment in M.Nagaraj case. This beingthe case, one cannot countenance an argument which wouldindirectly revisit the basis or foundation of the constitutionalamendments themselves in order that one small part of M.Nagarajcase be upheld, namely, that there be quantifiable data for judgingCbackwardness of the Scheduled Castes and the Scheduled Tribesin promotional posts. The concept of “creamy layer” applies topersons within the Scheduled Castes or the Scheduled Tribeswho no longer require reservation, as opposed to posts beyondthe entry stage, which may be occupied by members of the

Scheduled Castes or the Scheduled Tribes. [Para 19] [703-A-C,DE-H; 704-A-C]

1.7 The Attorney General requested that the proportionof Scheduled Castes and Scheduled Tribes to the population ofIndia should be taken to be the test for determining whetherthey are adequately represented in promotional posts for theEpurpose of Article 16(4-A). He complained that M.Nagaraj caseought to have stated this, but has said nothing on this aspect.According to this Court, M.Nagaraj case has wisely left the testfor determining adequacy of representation in promotional poststo the States for the simple reason that as the post gets higher, itFmay be necessary, even if proportionality test to the populationas whole is taken into account, to reduce the number ofScheduled Castes and Scheduled Tribes in promotional posts, asone goes upwards. This is for the simple reason that efficiency ofadministration has to be looked at every time promotions are

made. As has been pointed out by B.P. Jeevan Reddy, J.’sGjudgment in Indra Sawhney (1) case, there may be certain postsright at the top, where reservation is impermissible altogether.For this reason, it is made clear that Article 16(4-A) has beencouched in language which would leave it to the States todetermine adequate representation depending upon theHpromotional post that is in question. It can be seen that when

seats are to be reserved in the House of the People for theScheduled Castes and Scheduled Tribes, the test ofproportionality to the population is mandated by the Constitution.The difference in language between this provision and Article16(4-A) is important. [Para 20] [704-D-G]

1.8 The judgment in M.Nagaraj case does not need to bereferred to seven–Judge Bench. However, the conclusion inthe M.Nagaraj case that the State has to collect quantifiable datashowing backwardness of the Scheduled Castes and theScheduled Tribes, being contrary to the nine-Judge Bench inIndra Sawhney (1) case is held to be invalid to this extent.[Para 21] [706-B]

M. Nagaraj v. Union of India (2006) 8 SCC 212 :[2006] 7 Suppl. SCR 336 ; Indra Sawhney v. Union ofIndia (Indra Sawhney 1) (1992) Suppl. 3 SCC 217 :[1992] 2 Suppl. SCR 454 ; R.K. Sabharwal v. State ofPunjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ;E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 :[2004] 5 Suppl. SCR 972 ; Keshav Mills Co. Ltd. v.Commissioner of Income-Tax, Bombay North [1965] 2SCR 908 ; Indra Sawhney v. Union of India and Ors.(Indra Sawhney 2) (2000) 1 SCC 168 : [1999] 5 Suppl.SCR 229 ; Indira Nehru Gandhi v. Raj Narain & Anr.(1975) Suppl. SCC 1 : [1976] 2 SCR 347 ; AshokaKumar Thakur v. Union of India (2008) 6 SCC 1 :[2008] 4 SCR 1 ; State of Kerala & Anr. v. N.M. Thomasand Ors. (1976) 2 SCC 310 : [1976] 1 SCR 906 ;I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu andOrs. (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Anil Chandrav. Radha Krishna Gaur (2009) 9 SCC 454 : [2009] 14SCR 335 (two-Judges Bench) ; Suraj Bhan Meena &Anr. v. State of Rajasthan & Ors. (2011) 1 SCC 467 :[2010] 14 SCR 532 (two-Judges Bench) ; U.P. PowerCorporation v. Rajesh Kumar & Ors. (2012) 7 SCC 1 :[2012] 4 SCR 118 (two-Judges Bench) ; S. PanneerSelvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10SCC 292 (two-Judges Bench) ; Chairman & ManagingDirector, Central Bank of India & Ors. v. Central Bank

Aof India SC/ST Employees Welfare Association & Ors.(2015) 12 SCC 308 : [2015] 1 SCR 55 (two-JudgesBench) ; Suresh Chand Gautam v. State of U.P. & Ors.(2016) 11 SCC 113 : [2016] 1 SCR 727 (two-JudgesBench) ; B.K. Pavitra & Ors. v. Union of India & Ors.(2017) 4 SCC 620 : [2017] 1 SCR 631 (two-JudgesBBench) ; General Categories Welfare Federation v.Union of India (2012) 7 SCC 40 (three-JudgeBench) ; Rohtas Bhankar v. Union of India (2014) 8SCC 872 : [2014] 8 SCR 871 (five-Judge Bench) –referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Special Leave Petition(Civil) No. 30621 of 2011

From the Judgment and Order dated 15.07.2011 of the High Courtof Punjab and Haryana at Chandigarh in CWP No. 13218 of 2009

WITH

Special Leave Petition (Civil) No... CC No. 6821 of 2017

Special Leave Petition (Civil) Nos. 31735, 35000 of 2011, SpecialLeave Petition (Civil) Nos. 4831, 2839, 5860, 5859, 30841 of 2012,Special Leave Petition (Civil) Nos. 8327, 6915, 16710-16711, 33163,23344, 23339-23340 of 2014, Special Leave Petition (Civil) Nos. 21343,25191, 31191, 33688, 19765-19767 of 2015, Special Leave Petition (Civil)Nos. 10638, 17491, 18844, 19422-19423, 24681, 28446-28447, 28306,30942, 31288 of 2017, Special Leave Petition (Civil) Nos. 16469, 18925,and 22985 of 2018. Civil Appeal Nos. 5247, 11817, 11816, 11820, 11822-11825, 11837-11840, 11842-11845, 11829-11832, 11847-11850, 11828 OF2016, Civil Appeal Nos. 4562-4564, 4880, 4878-4879, 4876-4877, 4881,4882, 4833, 701-704 of 2017, Contempt Petition (Civil) No. 314 of 2016in Special Leave Petition (Civil) No. 4831 of 2012, Contempt Petition(Civil) No 11 of 2017 in Special Leave Petition (Civil) No. 19765 of2015 @ Special Leave Petition (Civil) Nos. 19765-19767 of 2015,Contempt Petition (Civil) No 13 of 2017 in Special Leave Petition (Civil)No 19767 of 2015 @ Special Leave Petition (Civil) Nos.19765-19767of 2015 and Transfer Petition (Civil) Nos. 608-609 of 2017,Special Leave Petition (Civil)... Diary Nos. 28776, 29066, 30189, 31145,33481, 33488, 34271, 34520, 35324, 35577, 35818, 36305, 36377, 38895,42413 of 2017, Special Leave Petition (Civil).. Diary Nos.619, 969, 971,1042, 1046, 1584, 2677, 7243, 22349 of 2018.

K. K. Venugopal, AG, Purushendra Kaurav, Adv. Gen., MananKumar Mishra, Saurabh Mishra, Ms. Aishwarya Bhati, AAGs,K. Radhakrishnan, P.S. Patwalia, A. Mariarputham, Ms. Indira Jaising,Sanjay R. Hegde, Rupinder Singh Suri, Nidhesh Gupta, Salman Khurshid,R.L. Vanjarani, Dr. Rajiv Dhawan, Soumya Chakraborty, AmarendraSharan, Dinesh Dwivedi, Ms. Kiran Suri, Ms. V. Lakshmi Narayan,Rakesh Dwivedi, Atul Yeshwant Chitale, Shekhar Naphade, Sr. Advs.Chandra Bhushan Prasad, Shantanu Krishna, Ajit Wagh, Apoorv Shukla,Ashok K. Mahajan, Mohan Pandey, K.N. Rai, Ms. Ruchi Kohli,P.K. Mullick, G.S. Makkar, Mrs. Anil Katiyar, Mukesh Kumar Maroria,

CDEF

AMs. Shraddha Deshmukh, Ankur Talwar, R. Balasubramanian, RohitBhatt, Ms. Kanika Saran, Prabhas Bajaj, Arvind Kumar Sharma,Subodeep Roy, Rituraj Biswas, Ms. Natasha Dalmia, Ms. HarishikaVerma, Sayooj Mohan Das, Dinesh Rattan Bhardwaj, Dr. Ashutosh Garg,Ms. Abha R. Sharma, D.S. Parmar, Ms. Sujeeta Srivastava, Ankit Mishra,Ms. Hanshika Verma, Ms. Natasha, Ms. Aruna Mathur, AvneeshBArputham, Ms. Anuradha Arputham, Yusuf Khan, Ms. Geetanjali,M/s. Arputham Aruna and Co., Som Raj Choudhury, Prashant Kumar,Krishan Singh Chauhan, Ajit Kumar Ekka, Ravi Prakash, Murari Lal,K.C. Lamba, Deepak Jain, Mrs. Jaspreet A., Ms. Prabhleen Kaur,Ms. A. Sumathi, Arjun Garg, Devansh Shrivastava, Ms. Ajita Sharma,CSumit Pachkhande, Nagesh Gajghate, Ms. Shashi Kiran, Satish Chandra,Sana Mujawar, Manoj Jain, Arjun Sain, Prakash Sharma, Mohd. Naved,Pankaj Sharma, Ms. Prerna Mehta, B. Krishna Prasad, Manoj Gorkela,Pranja Kishore, S. Nithin, M/s. Gorkela Law Office, Varun Khanna,Aditya Giri, Alok Singh, Sahil, Ms. Vriti Gujral, Ms. Pallavi Singhi, PrakashSharma (for M/s. Gorkela Law Office), Mohammad Ibrahim, Ms. LubnaDNaaz, Mrs. Kunika, Aniruddha P. Mayee, Hitesh Kumar Sharma,S.K. Rajora, Dr. (Mrs.) Vipin Gupta, Shreekant N. Terdal, Aakarsh K.,Pratik R. Bombarde, Pradeep S. Wthore, Abhishek Kumar, JitendraAshok, M/s. S.M. Jadhav & Co., S.B. Pawar, Shriram Pingale, SagarPawan, Pratik Gaurav, Ms. Sneha Iyer, Ms. Deepa Kulkarni, Ms. SuvrnaEGanu, Nishant Ramakantraw Katneshwarkar, Gurjyot Sethi, Ms. ShivangiKhanna, Ms. Tanvi Kakar, Abhijat P. Medh, Sunil Kumar, Gaya Prasad,Randhir Singh, Satya Prakash Gautam, Ms. Olivia Bang, D. Kumanan,Pulkit Tare, Satya Mitra, Arvind S. Avhad, P. K. Jayakrishnan, R. S. M.Kalky, Ramesh Kumar, Ram Kishan, Sat Narain, Dr. Gunratan Sadavarte,Dr. Jay Shree L. Patil, Pankaj Kumar Singh, Pankaj Kumar Shukla,FMakrand Pratap Singh, Mukesh Verma, Raj Singh Rana, Rakesh V.Rathod, Dinesh P. Rajbhar, Ms. Anzu K. Varkey, Prashant R. Dahat,T.R.B. Sivakumar, Shreyas G., Gopal Sankaranarayanan, Shobhit Tiwari,Lal Pratap Singh, Umesh Pratap Singh, Shrey Patnaik, Ms. AishwaryaKane, Ms. N. Annapoorani, Karan Khanna, Arjun Aggarwal, BhaskarGAditya, Aniket Bhattacharya, Pradeep Aggarwal, Paban Sharma, AnirudhSharma, Ram Niwas, R. S. Chauhan, Ms. Niranjana Singh, A. SubbaRao, K.L.D.S. Vinober, Chand Kiran, Anuj Saxena, Ms. Payal Gaikwad,Satpal Singh, S.N. Bhat, Prashant Bhushan, Amit Anand Tiwari,Ms. Shakun Sharma, Ms. Harshal Gupta, N. Raja Senthoor Pandian,Vivek Singh, Sushil Karanjkar, K.N. Rai, Kuldip Singh, P. SomaHSundaram, Chandan Kumar, Rituraj Choudhary, Ms. Sujaya Bardhan,Krishnam Mishra, Nishant Singh, Yasharth Kant, Kumar Parimal, PrakashPandey, Sanjeev Kumar Choudhary, S. J. Amith, Ms. Aishwarya Kumar,Krishan Kumar, Mrs. Vipin Gupta, Sailash Madiyal, Sudhanshu Prakash,Dinesh K. Garg, Abhishek Garg, Dhananjay Garg, Deepak Mishra,Sriniwas Babu, N. Premraj, Anil Kumar Mishra, Anuj Singh, Ms. AlkaSinha, Anuvrat Sharma, Ravindra Kumar, Fuzail Ahmad Ayyubi,Ms. Aditi Gupta, Ibad Mushtaq, Ms. Kauser Husain, Pranjal Kishore,Abdul Qadir, Samir Ali Khan, M. Shoeb Alam, Captain Gurvinder Singh,Ms. Vivya Nagpal, Gaurav Kejriwal, Sandeep Devashish Das, PrateekRusia, Gaurav Agrawal, B. Sridhar, Suyash Mohan Guru, Ms. SansritiPathak, Sarvesh Singh Baghel, K.B. Baghel, Ms. Lalita Kaushik,Vardhman Kaushik, Amol Srivastava, Eklavya Dwivedi, Naresh Kaushik,Nishant Gautam, Karn Deo Baghel, Omungraj Gupta, Manoj Joshi, DeviK. Singh, S.K. Gangele, Vivek Jaswal, Dhruv Joshi, K.K.L. Gautam,Abhishek Kr. Suman, Rahul M., R.R. Bag, Sanjeev Maolhotra, M.K.Dua, Gopal Singh, Ms. Amita Singh Kalkal, Puneet Jain, Abhinav Gupta,Harsh Jain, Ms. Christi Jain, Ms. Vineeta Meghrajani, Vishwa Pal Singh,Smarhar Singh, Ms. Priya Sharma, Prathvi Raj Chauhan, Ms. SuchitraAtul Chitale, Ravindra Keshavrao Adsure, Dr. M.P. Raju, M. VijayaBhaskar, S.P. Singh, Mrs. Suchitra A. Chitale, Nikhilesh Ramachandran,Sanjay Kharde, Samrat Shinde, Abhikalp Pratap Singh, Sunil KumarVerma, Avijit Bhattacharjee, Mrs. Upma Shrivastava, Ajoy Kr. Ghosh,Nitin Deorao Meshram, Ranbir Singh Yadav, Sagar Kushwah, ChandanRamamurthi, Manoj R. Sinha, Venkateswara Rao Anumolu, Sant RanjanDas, Anindo Mukherjee, Ms. Sarla Chandra, Advs. for the appearingparties.

Respondent-in-person.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. The present group of cases arises out oftwo reference orders – the first by two-Judge Bench referred to in asecond reference order, dated 15.11.2017, which is by three-JudgeBench, which has referred the correctness of the decision in M. Nagarajv. Union of India, (2006) 8 SCC 212, (“Nagaraj”), to ConstitutionBench.

2. The controversy in these matters revolves around theinterpretation of the following Articles of the Constitution of India:

CDE

“16. Equality of opportunity in matters of publicemployment.—

xxx xxx xxx

(4-A) Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion, withconsequential seniority, to any class or classes of posts in theservices under the State in favour of the Scheduled Castes andthe Scheduled Tribes which, in the opinion of the State, are notadequately represented in the services under the State.

(4-B) Nothing in this article shall prevent the State from consideringany unfilled vacancies of year which are reserved for beingfilled up in that year in accordance with any provision forreservation made under clause (4) or clause (4-A) as separateclass of vacancies to be filled up in any succeeding year or yearsand such class of vacancies shall not be considered together withthe vacancies of the year in which they are being filled up fordetermining the ceiling of fifty per cent reservation on total numberof vacancies of that year.”

xxx xxx xxx

“335. Claims of Scheduled Castes and Scheduled Tribes toservices and posts.—The claims of the members of theScheduled Castes and the Scheduled Tribes shall be taken intoconsideration, consistently with the maintenance of efficiency ofadministration, in the making of appointments to services and postsin connection with the affairs of the Union or of State:

Provided that nothing in this article shall prevent in making of anyprovision in favour of the members of the Scheduled Castes andthe Scheduled Tribes for relaxation in qualifying marks in anyexamination or lowering the standards of evaluation, for reservationin matters of promotion to any class or classes of services orposts in connection with the affairs of the Union or of State.”

xxx xxx xxx

“341. Scheduled Castes.—(1) The President may with respectto any State or Union Territory, and where it is State, afterconsultation with the Governor thereof, by public notification,specify the castes, races or tribes or parts of or groups within

castes, races or tribes which shall for the purposes of thisConstitution be deemed to be Scheduled Castes in relation to thatState or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list ofScheduled Castes specified in notification issued under clause(1) any caste, race or tribe or part of or group within any caste,race or tribe, but save as aforesaid notification issued under thesaid clause shall not be varied by any subsequent notification.”xxx xxx xxx

“342. Scheduled Tribes.—(1) The President may with respectto any State or Union territory, and where it is State, afterconsultation with the Governor thereof, by public notification,specify the tribes or tribal communities or parts of or groups withintribes or tribal communities which shall for the purposes of thisConstitution be deemed to be Scheduled Tribes in relation to thatState or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list ofScheduled Tribes specified in notification issued under clause(1) any tribe or tribal community or part of or group within anytribe or tribal community, but save as aforesaid notification issuedunder the said clause shall not be varied by any subsequentnotification.”

3. We have heard wide-ranging arguments on either side for acouple of days, raising several points. However, ultimately, we haveconfined arguments to two points which require serious consideration.The learned Attorney General for India, Shri K.K. Venugopal, led thecharge for reconsideration of Nagaraj (supra). According to the learnedAttorney General, Nagaraj (supra) needs to be revisited on these twopoints. First, when Nagaraj (supra) states that the State has to collectquantifiable data showing backwardness, such observation would becontrary to the nine-Judge Bench in Indra Sawhney v. Union of India,1992 Supp (3) SCC 217, (“Indra Sawhney (1)”), as it has been heldtherein that the Scheduled Castes and the Scheduled Tribes are the mostbackward among backward classes and it is, therefore, presumed thatonce they are contained in the Presidential List under Articles 341 and342 of the Constitution of India, there is no question of showingbackwardness of the Scheduled Castes and the Scheduled Tribes all

Aover again. Secondly, according to the learned Attorney General, thecreamy layer concept has not been applied in Indra Sawhney (1) (supra)to the Scheduled Castes and the Scheduled Tribes and Nagaraj (supra)has misread the aforesaid judgment to apply this concept to the ScheduledCastes and the Scheduled Tribes. According to the learned AttorneyGeneral, once the Scheduled Castes and the Scheduled Tribes have beenBset out in the Presidential List, they shall be deemed to be ScheduledCastes and Scheduled Tribes, and the said List cannot be altered byanybody except Parliament under Articles 341 and 342. The learnedAttorney General also argued that Nagaraj (supra) does not indicateany test for determining adequacy of representation in service. AccordingCto him, it is important that we lay down that the test be the test ofproportion of Scheduled Castes and Scheduled Tribes to the populationin India at all stages of promotion, and for this purpose, the roster thathas been referred to in R.K. Sabharwal v. State of Punjab, (1995) 2SCC 745 can be utilized. Other counsel who argued, apart from thelearned Attorney General, have, with certain nuances, reiterated the sameDarguments. Ms. Indira Jaising, learned senior advocate, appearing onbehalf of one of the Petitioners in C.A. No. 11816 of 2016, submittedthat Nagaraj (supra) needs to be revisited also on the ground that Article16(4-A) and 16(4-B) do not flow from Article 16(4), but instead flowfrom Articles 14 and 16(1) of the Constitution. She further argued thatEclaims of the Scheduled Castes and the Scheduled Tribes are based ona reading of Articles 14, 15, 16, 16(4-A), 16(4-B), and 335 of theConstitution. It was further submitted that further sub-classificationwithin Scheduled Castes and Scheduled Tribes is impermissible, as hasbeen held in Indira Sawhney (1) (supra) and in E.V. Chinnaiah v.State of A.P., (2005) 1 SCC 394 (“Chinnaiah”). She argued that theFdecision in Nagaraj (supra) would have the effect of amending thePresidential Order relating to Scheduled Castes and Scheduled Tribes,which would violate Articles 341 and 342 of the Constitution of India, asParliament alone can amend Presidential Order. She concluded herargument by saying that the exercise of reading down constitutionalGamendment to make it valid, conducted in Nagaraj (supra), wasconstitutionally impermissible. Shri P.S. Patwalia, learned senior advocate,appearing on behalf of the State of Tripura, reiterated some of thesubmissions and added that Nagaraj (supra) and Chinnaiah (supra)cannot stand together, which is why Nagaraj (supra) is per incuriam asit does not refer to the judgment in Chinnaiah (supra) at all.H4. On the other hand, Shri Shanti Bhushan has defended Nagaraj(supra) by stating that when Nagaraj (supra) speaks about backwardnessof the “class”, what is referred to is not Scheduled Castes and ScheduledTribes at all, but the class of posts. Hence, it is clear that backwardnessin relation to the class of posts spoken of would require quantifiabledata, and it is in that context that the aforesaid observation is made. Healso argued, relying upon Keshav Mills Co. Ltd. v. Commissionerof Income-Tax, Bombay North, (1965) 2 SCR 908, (“KeshavMills”), that Constitution Bench judgment which has stood the test oftime, ought not to be revisited, and if the parameters of Keshav Mills(supra) are to be applied, it is clear that Nagaraj (supra) ought not to berevisited. Shri Rajeev Dhavan, learned senior advocate, has argued beforeus that Nagaraj (supra) has to be understood as judgment which hasupheld the constitutional amendments adding Articles 16(4-A) and 16(4-B) on the ground that they do not violate the basic structure of theConstitution. According to him, since equality is part of the basic structure,and Nagaraj (supra) has applied the 50% cut-off criterion, creamy layer,and no indefinite extension of reservation, as facets of the equalityprinciple to uphold the said constitutional amendments, Nagaraj (supra)ought not to be revisited. According to the learned senior counsel, “creamylayer” is matter of applying the equality principle, as unequals withinthe same class are sought to be weeded out as they cannot be treated asequal to the others. The whole basis for application of the creamy layerprinciple is that those genuinely deserving of reservation would otherwisenot get the benefits of reservation and conversely, those who areundeserving, get the said benefits. According to the learned senioradvocate, the creamy layer principle applies to exclude certain individualsfrom the class and does not deal with group rights at all. This being thecase, Articles 341 and 342 are not attracted. Further, Articles 341 and342 do not concern themselves with reservation at all. They concernthemselves only with identification of those who can be called ScheduledCastes and Scheduled Tribes. On the other hand, the creamy layerprinciple is applied by Courts to exclude certain persons from reservationmade from within that class on the touchstone of Articles 14 and 16(1)of the Constitution of India. He argued that even if it be conceded thatcreamy layer can fall within Articles 341 and 342, yet the Court’s powerto enforce fundamental rights as part of the basic structure cannot betaken away. Indeed, Nagaraj (supra) was case pertaining to aconstitutional amendment and, therefore, Articles 341 and 342 cannot

Astand in the way of applying the basic structure test to constitutionalamendment.

5. Shri Rakesh Dwivedi, learned senior advocate, appearing inC.A. No. 5247 of 2016, submitted that the crucial language contained inArticle 16(4-A) is that the word “which” would show that ScheduledBCastes and Scheduled Tribes have to continue to be “backward”. If theexpression “the Scheduled Castes and the Scheduled Tribes” in Article16(4-A) would be read as “the Scheduled Castes and the ScheduledTribes employees”, this would become even clearer. Therefore, accordingto the learned senior advocate, continued social backwardness of theScheduled Castes/Scheduled Tribes employees has necessarily to beCassessed. While making promotions to higher level posts, it becomesclear that Scheduled Caste/Scheduled Tribe employee may have castoff his backwardness when he/she reaches fairly high stage in service,for example, the post of Deputy Chief Engineer, at which stage, it wouldbe open for the State to say that having regard to the absence of anyDbackwardness of the Scheduled Caste/Scheduled Tribe employee at thisstage, it would be expedient not to reserve anything further in postsabove this stage. Shri Naphade, Shri Gopal Sankaranarayanan and othercounsel followed suit and broadly supported the arguments of Shri Dhavanand Shri Dwivedi.

E6. Since we are asked to revisit unanimous Constitution Benchjudgment, it is important to bear in mind the admonition of the ConstitutionBench judgment in Keshav Mills (supra). This Court said:

“[I]n reviewing and revising its earlier decision, this Court shouldask itself whether in the interests of the public good or for anyFother valid and compulsive reasons, it is necessary that the earlierdecision should be revised. When this Court decides questions oflaw, its decisions are, under Article 141, binding on all courts withinthe territory of India, and so, it must be the constant endeavourand concern of this Court to introduce and maintain an element ofcertainty and continuity in the interpretation of law in the country.GFrequent exercise by this Court of its power to review its earlierdecisions on the ground that the view pressed before it laterappears to the Court to be more reasonable, may incidentally tendto make law uncertain and introduce confusion which must beconsistently avoided. That is not to say that if on subsequentoccasion, the Court is satisfied that its earlier decision was clearly

erroneous, it should hesitate to correct the error; but before aprevious decision is pronounced to be plainly erroneous, the Courtmust be satisfied with fair amount of unanimity amongst itsmembers that revision of the said view is fully justified. It is notpossible or desirable, and in any case it would be inexpedient tolay down any principles which should govern the approach of theCourt in dealing with the question of reviewing and revising itsearlier decisions. It would always depend upon several relevantconsiderations: — What is the nature of the infirmity or error onwhich plea for review and revision of the earlier view is based?On the earlier occasion, did some patent aspects of the questionremain unnoticed, or was the attention of the Court not drawn toany relevant and material statutory provision, or was any previousdecision of this Court bearing on the point not noticed? Is theCourt hearing such plea fairly unanimous that there is such anerror in the earlier view? What would be the impact of the erroron the general administration of law or on public good? Has theearlier decision been followed on subsequent occasions either bythis Court or by the High Courts? And, would the reversal of theearlier decision lead to public inconvenience, hardship or mischief?These and other relevant considerations must be carefully bornein mind whenever this Court is called upon to exercise itsjurisdiction to review and revise its earlier decisions. Theseconsiderations become still more significant when the earlierdecision happens to be unanimous decision of Bench of fivelearned Judges of this Court.”

(at pp. 921-922)

7. We may begin with the nine-Judge Bench in Indra Sawhney(1) (supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J.,speaking on behalf of himself and three other learned Judges, with Pandianand Sawant, JJ., broadly concurring in the result by their separatejudgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The boneof contention in this landmark judgment was the Mandal CommissionReport of 1980, which was laid before Parliament on two occasions –once in 1982, and again in 1983. However, no action was taken on thebasis of this Report until 13.08.1990, when an Office Memorandum statedthat after considering the said Report, 27% of the vacancies in civilposts and services under the Government of India shall be reserved for

Athe Socially and Economically Backward Classes. This was followed byan Office Memorandum of 25.09.1991, by which, within the 27% ofvacancies, preference was to be given to candidates belonging to thepoorer sections of the Socially and Economically Backward Classes;and 10% vacancies were to be reserved for Other EconomicallyBackward Sections who were not covered by any of the existing schemesBof reservation. The majority judgments upheld the reservation of 27% infavour of backward classes, and the further sub-division of morebackward within the backward classes who were to be given preference,but struck down the reservation of 10% in favour of Other EconomicallyBackward categories. In arriving at this decision, the judgment of JeevanCReddy, J., referred to and contrasted Article 16(4) with Article 15(4),and stated that when Article 16(4) refers to backward class of citizens,it refers primarily to social backwardness (See paragraph 774). ScheduledCastes and Scheduled Tribes, not being the subject matter before theCourt, were kept aside as follows:

D“781. At the outset, we may state that for the purpose of thisdiscussion, we keep aside the Scheduled Tribes and ScheduledCastes (since they are admittedly included within the backwardclasses), except to remark that backward classes contemplatedby Article 16(4) do comprise some castes — for it cannot bedenied that Scheduled Castes include quite few castes.”EIn dealing with the creamy layer concept insofar as it is applicableto backward classes, the last sentence of paragraph 792 also states:

“792. …… (This discussion is confined to Other BackwardClasses only and has no relevance in the case of Scheduled TribesFand Scheduled Castes).”

In the summary of the discussion contained in paragraphs 796-797, it is stated, “the test or requirement of social and educationalbackwardness cannot be applied to Scheduled Castes and ScheduledTribes, who indubitably fall within the expression “backward class ofGcitizens”.” Jeevan Reddy, J. then went on to state that in certain posts,of specialities and super-specialities, provisions for reservation wouldnot be advisable (See paragraph 838). Ultimately, the judgment decidedthat reservation would apply at the stage of initial entry only and wouldnot apply at the stage of promotion.

8. It is important to note that eight of the nine learned Judges inIndra Sawhney (1) (supra) applied the creamy layer principle as facetof the larger equality principle. In fact, in Indra Sawhney v. Union ofIndia and Ors., (2000) 1 SCC 168 (“Indra Sawhney (2)”), this Courtneatly summarized the judgments in Indra Sawhney (1) (supra), on theaspect of creamy layer as follows:

“13. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC(L&S) Supp 1 : (1992) 22 ATC 385] on the question of exclusionof the “creamy layer” from the backward classes, there wasagreement among eight out of the nine learned Judges of thisCourt. There were five separate judgments in this behalf whichrequired the “creamy layer” to be identified and excluded.

14. The judgment of Jeevan Reddy, J. was rendered for himselfand on behalf of three other learned Judges, Kania, C.J. and M.N.Venkatachaliah, A.M. Ahmadi, JJ. (as they then were). The saidjudgment laid emphasis on the relevance of caste and also statedthat upon member of the backward class reaching an “advancedsocial level or status”, he would no longer belong to the backwardclass and would have to be weeded out. Similar views wereexpressed by Sawant, Thommen, Kuldip Singh, and Sahai, JJ. intheir separate judgments.

15. It will be necessary to refer to and summarise briefly theprinciples laid down in these five separate judgments for that wouldprovide the basis for decision on Points 2 to 5.

16. While considering the concept of “means-test” or “creamylayer”, which signifies imposition of an income limit, for the purposeof excluding the persons (from the backward class) whose incomeis above the said limit, in para 791, the Court has noted that counselfor the States of Bihar, Tamil Nadu, Kerala and other counsel forthe respondents strongly opposed any such distinction andsubmitted that once class is identified as backward class afterapplying the relevant criteria including the economic one, it is notpermissible to apply the economic criterion once again and sub-divide backward class into two sub-categories. The Courtnegatived the said contention by holding that exclusion of such(creamy layer) socially advanced members will make the “class”a truly backward class and would more appropriately serve thepurpose and object of clause (4).

17. Jeevan Reddy, J. dealt with the “creamy layer” under Question3(d) (paras 790, 792, 793 of SCC) and under Question 10 (paras843, 844). This is what the learned Judge declared: there aresections among the backward classes who are highly advanced,socially and educationally and they constitute the forwardsection of that community. These advanced sections do not belongto the true backward class. They are (para 790) “as forward asany other forward class member”.

“If some of the members are far too advanced socially (whichin the context, necessarily means economically and, may alsomean educationally) the connecting thread between them andthe remaining class snaps. They would be misfits in the class.”(SCC p. 724, para 792).

(emphasis supplied)

The learned Judge said: (SCC p. 724, para 792)

“After excluding them alone, would the class be compactclass. In fact, such exclusion benefits the truly backward.”

(emphasis supplied)

line has to be drawn, said the learned Judge, between the forwardin the backward and the rest of the backward but it is to be ensuredthat what is given with one hand is not taken away by the other.The basis of exclusion of the “creamy layer” must not be merelyeconomic, unless economic advancement is so high that itnecessarily means social advancement, such as where memberbecomes owner of factory and is himself able to give employmentto others. In such case, his income is measure of his socialstatus. In the case of agriculturists, the line is to be drawn withreference to the agricultural landholding. While fixing income asa measure, the limit is not to be such as to result in taking awaywith one hand what is given with the other. The income limit mustbe such as to mean and signify social advancement. There areagain some offices in various walks of life — the occupants ofwhich can be treated as socially advanced, without furtherinquiry”, such as IAS and IPS officers or others in All Indiaservices. In the case of these persons, their social status in societyrises quite high and the person is no longer socially disadvantaged.Their children get full opportunity to realise their potential. Theyare in no way handicapped in the race of life. Their income is alsosuch that they are above want. It is but logical that children ofsuch persons are not given the benefits of reservation. If thecategories or sections above-mentioned are not excluded, the trulydisadvantaged members of the backward class to which theybelong will be deprived of the benefits of reservation. The CentralGovernment is, therefore, directed (para 793) to identify and notifythe “creamy layer” within four months and after such notification,the “creamy layer” within the backward class shall “cease” to becovered by the reservations under Article 16(4). Jeevan Reddy,J. finally directed (see Question 10) that the exclusion of thecreamy layer must be on the basis of social advancement and noton the basis of economic interest alone. Income or the extent ofproperty-holding of person is to be taken as measure of socialadvancement — and on that basis — the “creamy layer” within agiven caste, community or occupational group is to be excluded toarrive at the true backward class. There is to be constituted abody which can go into these questions as follows: (SCC p. 757,para 847)

“We direct that such body be constituted both at Centrallevel and at the level of the States within four months fromtoday. … There should be periodic revision of these lists toexclude those who have ceased to be backward or for inclusionof new classes, as the case may be.”

(emphasis supplied)

The creamy layer [see para 859, sub-para (3)(d)] can be, andmust be excluded. Creamy layer has to be excluded and “economiccriterion” is to be adopted as an indicium or measure of socialadvancement [para 860, sub-para (5)]. The socially advancedpersons must be excluded [para 861(b)]. That is how JeevanReddy, J. summarised the position.

18. Sawant, J. too accepted (p. 553 of SCC) that “at least someindividuals and families in the backward classes, — however smallin number, — gain sufficient means to develop capacities tocompete with others in every field. That is an undeniable fact”.(emphasis supplied) Social advancement is to be judged by the

“capacity to compete” with forward castes, achieved by themembers or sections of the backward classes. Legally, therefore,these persons or sections who reached that level are not entitledany longer to be called as part of the backward class, whatevertheir original birthmark. Taking out these “forwards” from the“backwards” is “obligatory” as these persons have crossed theRubicon (pp. 553-54). On the crucial question as to what is meantby “capacity to compete”, the learned Judge explained (para 522)that if person moves from Class IV service to Class III, that isno indication that he has reached such stage of socialadvancement but if the person has successfully competed for“higher level posts” or at least “near those levels”, he has reachedsuch state.

19. Thommen, J. (paras 287, 295, 296, 323) observed that if somemembers in backward class acquire the necessary financialstrength to raise themselves, the Constitution does not extend tothem the protection of reservation. The creamy layer has to be“weeded out” and excluded, if it has attained “certainpredetermined economic level”.

20. Kuldip Singh, J. (para 385) referred to the “affluent” sectionof the backward class. Comparatively “such (sic rich) persons inthe backward class — though they may not have acquired higherlevel of education — are able to move in the society without beingdiscriminated socially”. These persons practise discriminationagainst others in that group who are comparatively less rich. Itmust be ensured that these persons do not “chew up” the benefitsmeant for the true backward class. “Economic ceiling” is to befixed to cut off these persons from the benefits of reservation. Inthe result, the “means-test” is imperative to skim off the “affluent”sections of backward classes.21. Sahai, J. (para 629) observed that the individuals among thecollectivity or the group who may have achieved “social status”or “economic affluence”, are disentitled to claim reservation.Candidates who apply for selection must be made to disclose theannual income of their parents which if it is beyond level, theycannot be allowed to claim to be part of the backward class.

What is to be the limit must be decided by the State. Incomeapart, provision is to be made that wards of those backward classesof persons who have achieved particular status in society, be itpolitical or economic or if their parents are in higher servicesthen such individuals must be precluded from availing the benefitsof reservation. Exclusion of “creamy layer” achieves socialpurpose. Any legislative or executive action to remove suchpersons individually or collectively cannot be constitutionallyinvalid.”

In paragraph 27 of the said judgment, the three-Judge Bench ofthis Court clearly held that the creamy layer principle sounds in Articles14 and 16(1) as follows:

“(i) Equals and unequals, twin aspects

27. As the “creamy layer” in the backward class is to be treated“on par” with the forward classes and is not entitled to benefitsof reservation, it is obvious that if the “creamy layer” is notexcluded, there will be discrimination and violation of Articles 14and 16(1) inasmuch as equals (forwards and creamy layer ofbackward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14,16(1) and 16(4) of the Constitution of India since unequals (thecreamy layer) cannot be treated as equals, that is to say, equalto the rest of the backward class. These twin aspects ofdiscrimination are specifically elucidated in the judgment of Sawant,J. where the learned Judge stated as follows: (SCC p. 553, para520)

“[T]o continue to confer upon such advanced sections …special benefits, would amount to treating equals unequally….Secondly, to rank them with the rest of the backward classeswould … amount to treating the unequals equally.”

(emphasis supplied)

Thus, any executive or legislative action refusing to exclude thecreamy layer from the benefits of reservation will be violative ofArticles 14 and 16(1) and also of Article 16(4). We shall examinethe validity of Sections 3, 4 and 6 in the light of the above principle.…”

A9. The next judgment with which we are directly concerned is thejudgment in Chinnaiah (supra). In this case, the validity of the AndhraPradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000,was challenged, and dismissed by five-Judge Bench of the AndhraPradesh High Court by majority of 4:1. The 15% reservation that wasmade in favour of the Scheduled Castes was further apportioned amongBfour groups in varying percentages – Group to the extent of 1%;Group to the extent of 7%; Group to the extent of 6%; and Group Dto the extent of 1%. In the lead judgment on behalf of the ConstitutionBench, Hegde, J. set out three questions for consideration as follows:

“12. From the pleadings on record and arguments addressed beforeCus three questions arise for our consideration:

(1) Whether the impugned Act is violative of Article 341(2) ofthe Constitution of India?

(2) Whether the impugned enactment is constitutionally invalidDfor lack of legislative competence?

(3) Whether the impugned enactment creates subclassificationor micro-classification of Scheduled Castes so as to violateArticle 14 of the Constitution of India?”

Article 341 was then referred to, in which the Presidential List ofEScheduled Castes is to be notified. Any inclusion or exclusion from thesaid list thereafter can only be done by Parliament under Article 341(2)(See paragraph 13). The Court then rejected the splitting up of ScheduledCastes on the basis of backwardness into groups, and distinguished IndraSawhney (1) (supra) (See paragraphs 19 to 21). It was then held:

F“26. Thus from the scheme of the Constitution, Article 341 andabove opinions of this Court in the case of N.M. Thomas [(1976)2 SCC 310 : 1976 SCC (L&S) 227] it is clear that the castes onceincluded in the Presidential List, form class by themselves. Ifthey are one class under the Constitution, any division of theseclasses of persons based on any consideration would amount toGtinkering with the Presidential List.”Indra Sawhney (1) (supra) was then referred to and distinguishedas follows:

“38. On behalf of the respondents, it was pointed out that in IndraSawhney case [1992 Supp (3) SCC 217] the Court had permittedsubclassification of Other Backward Communities, as backwardand more backward based on their comparative underdevelopment,therefore, the similar classification amongst the class enumeratedin the Presidential List of Scheduled Castes is permissible in law.We do not think the principles laid down in Indra Sawhney case(supra) for subclassification of Other Backward Classes can beapplied as precedent law for subclassification or subgroupingScheduled Castes in the Presidential List because that veryjudgment itself has specifically held that subdivision of OtherBackward Classes is not applicable to Scheduled Castes andScheduled Tribes. This we think is for the obvious reason i.e. theConstitution itself has kept the Scheduled Castes and ScheduledTribes List out of interference by the State Governments.

39. Legal constitutional policy adumbrated in statute must answerthe test of Article 14 of the Constitution. Classification whetherpermissible or not must be judged on the touchstone of the objectsought to be achieved. If the object of reservation is to takeaffirmative action in favour of class which is socially, educationallyand economically backward, the State’s jurisdiction while exercisingits executive or legislative function is to decide as to what extentreservation should be made for them either in public service orfor obtaining admission in educational institutions. In our opinion,such class cannot be subdivided so as to give more preferenceto minuscule proportion of the Scheduled Castes in preferenceto other members of the same class.

40. Furthermore, the emphasis on efficient administration placedby Article 335 of the Constitution must also be considered whenthe claims of Scheduled Castes and Scheduled Tribes toemployment in the services of the Union are to be considered.”

Finally, the Court held:

“43. The very fact that the members of the Scheduled Castes aremost backward amongst the backward classes and the impugnedlegislation having already proceeded on the basis that they are notadequately represented both in terms of clause (4) of Article 15

Aand clause (4) of Article 16 of the Constitution, furtherclassification by way of micro-classification is not permissible.Such classification of the members of different classes of peoplebased on their respective castes would also be violative of thedoctrine of reasonableness. Article 341 provides that exclusioneven of part or group of castes from the Presidential List canBbe done only by Parliament. The logical corollary thereof wouldbe that the State Legislatures are forbidden from doing that. Auniform yardstick must be adopted for giving benefits to themembers of the Scheduled Castes for the purpose of theConstitution. The impugned legislation being contrary to the aboveCconstitutional scheme cannot, therefore, be sustained.44. For the reasons stated above, we are of the considered opinionthat the impugned legislation apart from being beyond the legislativecompetence of the State is also violative of Article 14 of theConstitution and hence is liable to be declared as ultra vires theConstitution.”

In separate concurring judgment, Sinha, J., after referring toIndra Sawhney (1) (supra) and the creamy layer concept in paragraph95, went on to state:

“96. But we must state that whenever such situation arises inrespect of Scheduled Caste, it will be Parliament alone to take thenecessary legislative steps in terms of clause (2) of Article 341 ofthe Constitution. The States concededly do not have the legislativecompetence therefor.”

It was then concluded:F

“111. The Constitution provides for declaration of certain castesand tribes as Scheduled Castes and Scheduled Tribes in terms ofArticles 341 and 342 of the Constitution. The object of the saidprovisions is to provide for grant of protection to the backwardclass of citizens who are specified in the Scheduled Castes Orderand Scheduled Tribes Order having regard to the economic andeducational backwardness wherefrom they suffer. The Presidentof India alone in terms of Article 341(1) of the Constitution isauthorised to issue an appropriate notification therefor. TheConstitution (Scheduled Castes) Order, 1950 made in terms ofArticle 341(1) is exhaustive.”

Thus, the Court struck down the Andhra Pradesh ScheduledCastes (Rationalisation of Reservations) Act, 2000.

10. The judgment in Chinnaiah (supra) has been referred by athree-Judge Bench to larger Bench by an order dated 20.08.2014.This is because, according to the three-Judge Bench, Chinnaiah (supra)is contrary to Article 338 of the Constitution of India and Indra Sawhney(1) (supra). Since the correctness of Chinnaiah (supra) does not arisebefore us, we need say no more about this reference which will bedecided on its own merits.

11. Close on the heels of this judgment is the judgment in Nagaraj(supra). In this case, the addition of Articles 16(4-A) and 16(4-B) wereunder challenge on the ground that they violated the basic structure ofthe Constitution. After referring to the arguments of counsel for bothsides, the Court held that equality is the essence of democracy andaccordingly, part of the basic structure of the Constitution (See paragraph33). The working test in the matter of application of this doctrine wasthen applied, referring to Chandrachud, J.’s judgment in Indira NehruGandhi v. Raj Narain & Anr., 1975 Supp SCC 1 (See paragraphs 37and 38). After dealing with reservation and its extent, the Court thenwent into the nitty-gritty of the constitutional amendments and held asfollows:

“Whether the impugned constitutional amendments violate theprinciple of basic structure?

101. The key question which arises in the matter of the challengeto the constitutional validity of the impugned amending Acts is —whether the constitutional limitations on the amending power ofParliament are obliterated by the impugned amendments so as toviolate the basic structure of the Constitution.

102. In the matter of application of the principle of basic structure,twin tests have to be satisfied, namely, the “width test” and thetest of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutionalrequirements. They are not implicit in clauses (1) and (4) of Article16. They are not constitutional limitations. They are conceptsderived from service jurisprudence. They are not constitutionalprinciples. They are not axioms like, secularism, federalism, etc.Obliteration of these concepts or insertion of these concepts does

not change the equality code indicated by Articles 14, 15 and 16of the Constitution. Clause (1) of Article 16 cannot prevent theState from taking cognizance of the compelling interests ofBackward Classes in the society. Clauses (1) and (4) of Article16 are restatements of the principle of equality under Article 14.Clause (4) of Article 16 refers to affirmative action by way ofreservation. Clause (4) of Article 16, however, states that theappropriate Government is free to provide for reservation in caseswhere it is satisfied on the basis of quantifiable data that BackwardClass is inadequately represented in the services. Therefore, inevery case where the State decides to provide for reservationthere must exist two circumstances, namely, “backwardness” and“inadequacy of representation”. As stated above, equity, justiceand efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure thesethree factors, it will depend on the facts and circumstances ofeach case. These are the limitations on the mode of the exerciseof power by the State. None of these limitations have been removedby the impugned amendments. If the State concerned fails toidentify and measure backwardness, inadequacy and overalladministrative efficiency then in that event the provision forreservation would be invalid. These amendments do not alter thestructure of Articles 14, 15 and 16 (equity code). The parametersmentioned in Article 16(4) are retained. Clause (4-A) is derivedfrom clause (4) of Article 16. Clause (4-A) is confined to SCsand STs alone. Therefore, the present case does not change theidentity of the Constitution. The word “amendment” connoteschange. The question is—whether the impugned amendmentsdiscard the original Constitution. It was vehemently urged on behalfof the petitioners that the Statement of Objects and Reasonsindicates that the impugned amendments have been promulgatedby Parliament to overrule the decisions of this Court. We do notfind any merit in this argument. Under Article 141 of theConstitution the pronouncement of this Court is the law of theland. The judgments of this Court in Virpal Singh [(1995) 6 SCC684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813], Ajit Singh (I)[(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 :AIR 1996 SC 1189], Ajit Singh (II) [(1999) 7 SCC 209 : 1999SCC (L&S) 1239] and Indra Sawhney [1992 Supp (3) SCC 217

: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] were judgmentsdelivered by this Court which enunciated the law of the land. It isthat law which is sought to be changed by the impugnedconstitutional amendments. The impugned constitutionalamendments are enabling in nature. They leave it to the States toprovide for reservation. It is well settled that Parliament whileenacting law does not provide content to the “right”. The contentis provided by the judgments of the Supreme Court. If theappropriate Government enacts law providing for reservationwithout keeping in mind the parameters in Article 16(4) and Article335 then this Court will certainly set aside and strike down suchlegislation. Applying the “width test”, we do not find obliterationof any of the constitutional limitations. Applying the test of“identity”, we do not find any alteration in the existing structure ofthe equality code. As stated above, none of the axioms likesecularism, federalism, etc. which are overarching principles havebeen violated by the impugned constitutional amendments. Equalityhas two facets — “formal equality” and “proportional equality”.Proportional equality is equality “in fact” whereas formal equalityis equality “in law”. Formal equality exists in the rule of law. Inthe case of proportional equality the State is expected to takeaffirmative steps in favour of disadvantaged sections of the societywithin the framework of liberal democracy. Egalitarian equality isproportional equality.”

xxx xxx xxx

“104. Applying the above tests to the present case, there is noviolation of the basic structure by any of the impugnedamendments, including the Constitution (Eighty-second)Amendment Act, 2000. The constitutional limitation under Article335 is relaxed and not obliterated. As stated above, be it reservationor evaluation, excessiveness in either would result in violation ofthe constitutional mandate. This exercise, however, will dependon the facts of each case. In our view, the field of exercise of theamending power is retained by the impugned amendments, as theimpugned amendments have introduced merely enabling provisionsbecause, as stated above, merit, efficiency, backwardness andinadequacy cannot be identified and measured in vacuum.Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern

ABCDE

of Article 16(4) and as long as the parameters mentioned in thosearticles are complied with by the States, the provision of reservationcannot be faulted. Articles 16(4-A) and 16(4-B) are classificationswithin the principle of equality under Article 16(4).”

The Court then concluded as follows:

“121. The impugned constitutional amendments by which Articles16(4-A) and 16(4-B) have been inserted flow from Article 16(4).They do not alter the structure of Article 16(4). They retain thecontrolling factors or the compelling reasons, namely,backwardness and inadequacy of representation which enablesthe States to provide for reservation keeping in mind the overallefficiency of the State administration under Article 335. Theseimpugned amendments are confined only to SCs and STs. Theydo not obliterate any of the constitutional requirements, namely,ceiling limit of 50% (quantitative limitation), the concept of creamylayer (qualitative exclusion), the sub-classification between OBCson one hand and SCs and STs on the other hand as held in IndraSawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :(1992) 22 ATC 385], the concept of post-based roster with inbuiltconcept of replacement as held in R.K. Sabharwal [(1995) 2SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481].

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

123. However, in this case, as stated above, the main issueconcerns the “extent of reservation”. In this regard the Stateconcerned will have to show in each case the existence of thecompelling reasons, namely, backwardness, inadequacy ofrepresentation and overall administrative efficiency before makingprovision for reservation. As stated above, the impugned provisionis an enabling provision. The State is not bound to make reservationfor SCs/STs in matters of promotions. However, if they wish toexercise their discretion and make such provision, the State hasto collect quantifiable data showing backwardness of the classand inadequacy of representation of that class in public

employment in addition to compliance with Article 335. It is madeclear that even if the State has compelling reasons, as stated above,the State will have to see that its reservation provision does notlead to excessiveness so as to breach the ceiling limit of 50% orobliterate the creamy layer or extend the reservation indefinitely.

124. Subject to the above, we uphold the constitutional validity ofthe Constitution (Seventy-seventh Amendment) Act, 1995; theConstitution (Eighty-first Amendment) Act, 2000; the Constitution(Eighty-second Amendment) Act, 2000 and the Constitution(Eighty-fifth Amendment) Act, 2001.”

12. We now come to the Constitution Bench judgment in AshokaKumar Thakur v. Union of India, (2008) 6 SCC 1. In this case, Article15(5) inserted by the Constitution (Ninety-third Amendment) Act, 2005,was under challenge. Balakrishnan, C.J., after referring to variousjudgments of this Court dealing with reservation, specifically held thatthe “creamy layer” principle is inapplicable to Scheduled Castes andScheduled Tribes as it is merely principle of identification of thebackward class and not applied as principle of equality (See paragraphs177 to 186). Pasayat, J., speaking for himself and Thakker, J., statedthat the focus in the present case was not on Scheduled Castes andScheduled Tribes but on Other Backward Classes (See paragraph 293).Bhandari, J., in paragraphs 395 and 633 stated as follows:

“395. In Sawhney (1) [1992 Supp (3) SCC 217 : 1992 SCC (L&S)Supp 1 : (1992) 22 ATC 385] the entire discussion was confinedonly to Other Backward Classes. Similarly, in the instant case,the entire discussion was confined only to Other BackwardClasses. Therefore, I express no opinion with regard to theapplicability of exclusion of creamy layer to the Scheduled Castesand Scheduled Tribes.”

xxx xxx xxx

“633. In Indra Sawhney (1) [1992 Supp (3) SCC 217 : 1992SCC (L&S) Supp 1 : (1992) 22 ATC 385], creamy layer exclusionwas only in regard to OBC. Reddy, J. speaking for the majority atSCC p. 725, para 792, stated that “[t]his discussion is confined toOther Backward Classes only and has no relevance in the caseof Scheduled Tribes and Scheduled Castes”. Similarly, in the instantcase, the entire discussion was confined only to Other Backward

Classes. Therefore, I express no opinion with regard to theapplicability of exclusion of creamy layer to the Scheduled Castesand Scheduled Tribes……”

Raveendran, J., in separate judgment, while referring to Nagaraj(supra), held as follows:

“665. The need for exclusion of creamy layer is reiterated in thesubsequent decisions of this Court in Ashoka Kumar Thakur v.State of Bihar [(1995) 5 SCC 403 : 1995 SCC (L&S) 1248 :(1995) 31 ATC 159], Indra Sawhney v. Union of India [(1996)6 SCC 506 : 1996 SCC (L&S) 1477] and M. Nagaraj v. Unionof India [(2006) 8 SCC 212]. When Indra Sawhney [1992 Supp(3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] hasheld that creamy layer should be excluded for purposes of Article16(4), dealing with “backward class” which is much wider than“socially and educationally backward class” occurring in Articles15(4) and (5), it goes without saying that without the removal ofcreamy layer there cannot be socially and educationally backwardclass. Therefore, when caste is identified as socially andeducationally backward caste, it becomes “socially andeducationally backward class” only when it sheds its creamylayer.”

The Court ultimately upheld the Constitution (Ninety-thirdAmendment) Act, 2005, subject to the creamy layer test to be applied toOther Backward Classes. Bhandari, J. held that the amendment wasnot constitutionally valid so far as “private unaided” educational institutionswere concerned.

13. At this stage, it is necessary to deal with the argument thatNagaraj (supra) needs to be revisited as it conflicts with Chinnaiah(supra). It will be noticed that though Nagaraj (supra) is later judgment,it does not refer to Chinnaiah (supra) at all. Much was made of this bysome of the learned counsel appearing on behalf of the Appellants. It isimportant to notice that the majority judgment of Hegde, J. does notrefer to the creamy layer principle at all. Chinnaiah’s judgment (supra)in essence held that the Andhra Pradesh Scheduled Castes(Rationalisation of Reservations) Act, 2000, which it considered, couldnot further sub-divide Scheduled Castes into four categories, as that

would be violative of Article 341(2) of the Constitution of India for thesimple reason that it is Parliament alone that can make any change inthe Presidential List and not the State Legislatures. That this is the trueratio of the judgment is clear from reading of the paragraphs thathave been set out hereinabove. This being the case, as Chinnaiah (supra)does not in any manner deal with any of the aspects on which theconstitutional amendments in Nagaraj’s case (supra) were upheld, weare of the view that it was not necessary for Nagaraj (supra) to refer toChinnaiah (supra) at all. However, it was further contended that apartfrom this ratio, Chinnaiah (supra) also decided that the sub-classificationof Scheduled Castes, created by the Andhra Pradesh Scheduled Castes(Rationalisation of Reservations) Act, 2000, also violated Article 14 ofthe Constitution of India. This was stated by Chinnaiah (supra) to beviolative of Article 14 as the same would amount to tinkering with theList, which, as was held, could be done only by Parliament and not byState Legislatures. In our opinion, the true ratio of the judgment flowsfrom construction of Article 341. It is true that the Andhra PradeshAct in question was also found to be violative of Article 14. We mayonly state that Chinnaiah (supra) dealt with completely differentproblem, apart from dealing with State statute and not constitutionalamendment, as was dealt with in Nagaraj (supra).

14. This brings us to whether the judgment in Nagaraj (supra)needs to be revisited on the other grounds that have been argued beforeus. Insofar as the State having to show quantifiable data as far asbackwardness of the class is concerned, we are afraid that we mustreject Shri Shanti Bhushan’s argument. The reference to “class” is tothe Scheduled Castes and the Scheduled Tribes, and their inadequacy ofrepresentation in public employment. It is clear, therefore, that Nagaraj(supra) has, in unmistakable terms, stated that the State has to collectquantifiable data showing backwardness of the Scheduled Castes andthe Scheduled Tribes. We are afraid that this portion of the judgment isdirectly contrary to the nine-Judge Bench in Indra Sawhney (1) (supra).Jeevan Reddy, J., speaking for himself and three other learned Judges,had clearly held, “[t]he test or requirement of social and educationalbackwardness cannot be applied to Scheduled Castes and ScheduledTribes, who indubitably fall within the expression “backward class ofcitizens”.” (See paragraphs 796 to 797). Equally, Dr. Justice Thommen,in his conclusion at paragraph 323(4), had held as follows:

A“323. Summary

xxx xxx xxx

(4) Only such classes of citizens who are socially and educationallybackward are qualified to be identified as backward classes. Tobe accepted as backward classes for the purpose of reservationunder Article 15 or Article 16, their backwardness must have beeneither recognised by means of notification by the President underArticle 341 or Article 342 declaring them to be Scheduled Castesor Scheduled Tribes, or, on an objective consideration, identifiedby the State to be socially and educationally so backward by reasonof identified prior discrimination and its continuing ill effects as tobe comparable to the Scheduled Castes or the Scheduled Tribes.In the case of the Scheduled Castes or the Scheduled Tribes,these conditions are, in view of the notifications, presumed to besatisfied……”

D15.In fact, Chinnaiah (supra) has referred to the ScheduledCastes as being the most backward among the backward classes (Seeparagraph 43). This is for the reason that the Presidential List containsonly those castes or groups or parts thereof, which have been regardedas untouchables. Similarly, the Presidential List of Scheduled Tribes onlyrefers to those tribes in remote backward areas who are sociallyEextremely backward. Thus, it is clear that when Nagaraj (supra) requiresthe States to collect quantifiable data on backwardness, insofar asScheduled Castes and Scheduled Tribes are concerned, this would clearlybe contrary to the Indra Sawhney (1) (supra) and would have to bedeclared to be bad on this ground.

However, when it comes to the creamy layer principle, it isimportant to note that this principle sounds in Articles 14 and 16(1), asunequals within the same class are being treated equally with othermembers of that class. The genesis of this principle is to be found inState of Kerala & Anr. v. N.M. Thomas and Ors., (1976) 2 SCCG310. This case was concerned with test-relaxation rule in promotionsfrom lower division clerks to upper division clerks. By 5:2 majorityjudgment, the said rule was upheld as rule that could be justified on thebasis that it became necessary as means of generally giving leg-upto backward classes. In paragraph 124, Krishna Iyer, J. opined:“124. word of sociological caution. In the light of experience,here and elsewhere, the danger of “reservation”, it seems to me,is threefold. Its benefits, by and large, are snatched away by thetop creamy layer of the “backward” caste or class, thus keepingthe weakest among the weak always weak and leaving thefortunate layers to consume the whole cake. Secondly, this claimis overplayed extravagantly in democracy by large and vocal groupswhose burden of backwardness has been substantially lightenedby the march of time and measures of better education and moreopportunities of employment, but wish to wear the “weakersection” label as means to score over their near-equals formallycategorised as the upper brackets. Lastly, lasting solution to theproblem comes only from improvement of social environment,added educational facilities and cross-fertilisation of castes byinter-caste and inter-class marriages sponsored as massive Stateprogramme, and this solution is calculatedly hidden from view bythe higher “backward” groups with vested interest in the plumsof backwardism. But social science research, not judicialimpressionism, will alone tell the whole truth and constant processof objective re-evaluation of progress registered by the “underdog”categories is essential lest once deserving “reservation” shouldbe degraded into “reverse discrimination”. Innovations inadministrative strategy to help the really untouched, mostbackward classes also emerge from such socio-legal studies andaudit exercises, if dispassionately made. In fact, researchconducted by the A.N. Sinha Institute of Social Studies, Patna,has revealed dual society among harijans, tiny elite gobblingup the benefits and the darker layers sleeping distances awayfrom the special concessions. For them, Articles 46 and 335 remaina “noble romance” [As Huxley called it in “AdministrativeNihilism” (Methods and Results, Vol. 4 of Collected Essays).],the bonanza going to the “higher” harijans. I mention this in thepresent case because lower division clerks are likely to be drawnfrom the lowest levels of harijan humanity and promotion prospectsbeing accelerated by withdrawing, for time, “test” qualificationsfor this category may perhaps delve deeper. An equalitarianbreakthrough in hierarchical structure has to use many weaponsand Rule 13-AA perhaps is one.”

CDEFG

AThe whole object of reservation is to see that backward classesof citizens move forward so that they may march hand in hand withother citizens of India on an equal basis. This will not be possible if onlythe creamy layer within that class bag all the coveted jobs in the publicsector and perpetuate themselves, leaving the rest of the class asbackward as they always were. This being the case, it is clear thatBwhen Court applies the creamy layer principle to Scheduled Castesand Scheduled Tribes, it does not in any manner tinker with the PresidentialList under Articles 341 or 342 of the Constitution of India. The caste orgroup or sub-group named in the said List continues exactly as before. Itis only those persons within that group or sub-group, who have come outCof untouchability or backwardness by virtue of belonging to the creamylayer, who are excluded from the benefit of reservation. Even thesepersons who are contained within the group or sub-group in thePresidential Lists continue to be within those Lists. It is only when itcomes to the application of the reservation principle under Articles 14

and 16 that the creamy layer within that sub-group is not given the benefitDof such reservation.

16. We do not think it necessary to go into whether Parliamentmay or may not exclude the creamy layer from the Presidential Listscontained under Articles 341 and 342. Even on the assumption thatArticles 341 and 342 empower Parliament to exclude the creamy layerEfrom the groups or sub-groups contained within these Lists, it is clearthat Constitutional Courts, applying Articles 14 and 16 of the Constitutionto exclude the creamy layer cannot be said to be thwarted in this exerciseby the fact that persons stated to be within particular group or sub-group in the Presidential List may be kept out by Parliament on applicationFof the creamy layer principle. One of the most important principles thathas been frequently applied in constitutional law is the doctrine ofharmonious interpretation. When Articles 14 and 16 are harmoniouslyinterpreted along with other Articles 341 and 342, it is clear thatParliament will have complete freedom to include or exclude personsfrom the Presidential Lists based on relevant factors. Similarly,GConstitutional Courts, when applying the principle of reservation, will bewell within their jurisdiction to exclude the creamy layer from such groupsor sub-groups when applying the principles of equality under Articles 14and 16 of the Constitution of India. We do not agree with Balakrishnan,

C.J.’s statement in Ashoka Kumar Thakur (supra) that the creamylayer principle is merely principle of identification and not principle ofequality.

17. Therefore, when Nagaraj (supra) applied the creamy layertest to Scheduled Castes and Scheduled Tribes in exercise of applicationof the basic structure test to uphold the constitutional amendments leadingto Articles 16(4-A) and 16(4-B), it did not in any manner interfere withParliament’s power under Article 341 or Article 342. We are, therefore,clearly of the opinion that this part of the judgment does not need to berevisited, and consequently, there is no need to refer Nagaraj (supra) toa seven-Judge Bench. We may also add at this juncture that Nagaraj(supra) is unanimous judgment of five learned Judges of this Courtwhich has held sway since the year 2006. This judgment has beenrepeatedly followed and applied by number of judgments of this Court,namely:

a. Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC 454(two-Judges Bench) (See paragraphs 17 and 18).

b. Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors.,(2011) 1 SCC 467 (two-Judges Bench) (See paragraphs 10,50, and 67).

c. U.P. Power Corporation v. Rajesh Kumar & Ors., (2012)7 SCC 1 (two-Judges Bench) (See paragraphs 61, 81(ix), and86).

d. S. Panneer Selvam & Ors. v. State of Tamil Nadu & Ors.,(2015) 10 SCC 292 (two-Judges Bench) (See paragraphs 18,19, and 36).

e. Chairman & Managing Director, Central Bank of India& Ors. v. Central Bank of India SC/ST EmployeesWelfare Association & Ors., (2015) 12 SCC 308 (two-JudgesBench) (See paragraphs 9 and 26).

f. Suresh Chand Gautam v. State of U.P. & Ors., (2016) 11GSCC 113 (two-Judges Bench) (See paragraphs 2 and 45).

g. B.K. Pavitra & Ors. v. Union of India & Ors., (2017) 4SCC 620 (two-Judges Bench) (See paragraphs 17 to 22).

AFurther, Nagaraj (supra) has been approved by larger Benchesof this Court in:

a. General Categories Welfare Federation v. Union of India,(2012) 7 SCC 40 (three-Judge Bench) (See paragraphs 2and 3).

Bb. Rohtas Bhankar v. Union of India, (2014) 8 SCC 872(five-Judge Bench) (See paragraphs 6 and 7).

In fact, the tests laid down in Nagaraj (supra) for judging whethera constitutional amendment violates basic structure have been expresslyapproved by nine-Judge Bench of this Court in I.R. Coelho (Dead)Cby LRs. v. State of Tamil Nadu and Ors., (2007) 2 SCC 1 (Seeparagraphs 61, 105, and 142). The entirety of the decision, far frombeing clearly erroneous, correctly applies the basic structure doctrine touphold constitutional amendments on certain conditions which are basedupon the equality principle as being part of basic structure. Thus, weDmay make it clear that quantifiable data shall be collected by the State,on the parameters as stipulated in Nagaraj (supra) on the inadequacy ofrepresentation, which can be tested by the Courts. We may further addthat the data would be relatable to the concerned cadre.

18. Dr. Dhavan referred to the judgment in U.P. PowerECorporation Ltd. (supra), and placed before us the Constitution (OneHundred Seventeeth Amendment) Bill, 2012. This Bill was passed bythe Rajya Sabha on 17.12.2012 but failed to get sufficient number ofvotes in the Lok Sabha and, therefore, could not become an Act. ThisBill was tabled close upon the judgment in U.P. Power CorporationLtd. (supra), and would have substituted Article 16(4-A) as follows:F

“(4A) Notwithstanding anything contained elsewhere in theConstitution, the Scheduled Castes and the Scheduled Tribesnotified under article 341 and article 342, respectively, shall bedeemed to be backward and nothing in this article shall preventthe State from making any provision for reservation in matters ofGpromotions, with consequential seniority, to any class or classesof posts in the services under the State in favour of the ScheduledCastes and the Scheduled Tribes to the extent of the percentageof reservation provided to the Scheduled Castes and the ScheduledTribes in the services of the State.”

The Statement of Objects and Reasons for the said Bill read asfollows:

“The validity of the constitutional amendments was challengedbefore the Supreme Court. The Supreme Court while deliberatingon the issue of validity of Constitutional amendments in the caseof M. Nagaraj v. UOI & Ors., observed that the concerned Statewill have to show in each case the existence of the compellingreasons, namely, backwardness, inadequacy of representation andoverall administrative efficiency before making provision forreservation in promotion.

Relying on the judgment of the Supreme Court in M. Nagarajcase, the High Court of Rajasthan and the High Court of Allahabadhave struck down the provisions for reservation in promotion inthe services of the State of Rajasthan and the State of UttarPradesh, respectively. Subsequently, the Supreme Court has upheldthe decisions of these High Courts striking down provisions forreservation in respective States.

It has been observed that there is difficulty in collection ofquantifiable data showing backwardness of the class andinadequacy of representation of that class in public employment.Moreover, there is uncertainty on the methodology of thisexercise.”

It will be seen that this Bill contains two things that are differentfrom Article 16(4-A) as already enacted. First and foremost, it clarifiesthat the Scheduled Castes and the Scheduled Tribes that are notifiedunder Articles 341 and 342 shall be deemed to be backward, whichmakes it clear that no quantifiable data is necessary to determinebackwardness. Secondly, instead of leaving it to the States to determineon case to case basis whether the Scheduled Castes and the ScheduledTribes are adequately represented in any class or classes of posts in theservices under the State, the substituted provision does not leave this tothe discretion of the State, but specifies that it shall be to the extent ofthe percentage of reservation provided to Scheduled Castes andScheduled Tribes in the services of the State. This amendment wasnecessitated because Division Bench of this Court in U.P. PowerCorporation Ltd. (supra) had struck down Section 3(7) of the UttarPradesh Public Services (Reservation for Scheduled Castes, Scheduled

ATribes and Other Backward Classes) Act, 1994 and Rule 8A of the U.P.Government Servants Seniority Rules, 1991, which read as under:

“3. Reservation in favour of Scheduled Castes, ScheduledTribes and Other Backward Classes.—

(1)-(6)xxx xxx xxx

(7) If, on the date of commencement of this Act, reservationwas in force under government orders for appointment toposts to be filled by promotion, such government orders shallcontinue to be applicable till they are modified or revoked.”

Cxxx xxx xxx

“8-A. Entitlement of consequential seniority to personbelonging to Scheduled Castes or Scheduled Tribes.—Notwithstanding anything contained in Rules 6, 7 or 8 of theseRules, person belonging to the Scheduled Castes or ScheduledTribes shall, on his promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also.”

This Court considered Nagaraj (supra) in detail and in paragraph81, culled out various principles which Nagaraj (supra) had laid down.We are concerned here with principles (ix) and (x) in particular, whichread as under:E

“(ix) The concepts of efficiency, backwardness and inadequacyof representation are required to be identified and measured. Thatexercise depends on the availability of data. That exercisedepends on numerous factors. It is for this reason that theenabling provisions are required to be made because eachcompeting claim seeks to achieve certain goals. How best oneshould optimise these conflicting claims can only be done by theadministration in the context of local prevailing conditions inpublic employment.

(x) Article 16(4), therefore, creates field which enables Stateto provide for reservation provided there exists backwardness ofa class and inadequacy of representation in employment. Theseare compelling reasons. They do not exist in Article 16(1). It isonly when these reasons are satisfied that State gets the powerto provide for reservation in the matter of employment.”

19. We have already seen that, even without the help of the firstpart of Article 16(4-A) of the 2012 Amendment Bill, the providing ofquantifiable data on backwardness when it comes to Scheduled Castesand Scheduled Tribes, has already been held by us to be contrary to themajority in Indra Sawhney (1) (supra). So far as the second part of thesubstituted Article 16(4-A) contained in the Bill is concerned, we maynotice that the proportionality to the population of Scheduled Castes andScheduled Tribes is not something that occurs in Article 16(4-A) asenacted, which must be contrasted with Article 330. We may only addthat Article 46, which is provision occurring in the Directive Principlesof State Policy, has always made the distinction between the ScheduledCastes and the Scheduled Tribes and other weaker sections of the people.Article 46 reads as follows:

“46. Promotion of educational and economic interests ofScheduled Castes, Scheduled Tribes and other weakersections.—The State shall promote with special care theeducational and economic interests of the weaker sections of thepeople, and, in particular, of the Scheduled Castes and theScheduled Tribes, and shall protect them from social injustice andall forms of exploitation.”

This being the case, it is easy to see the pattern of Article 46being followed in Article 16(4) and Article 16(4-A). Whereas “backwardclasses” in Article 16(4) is equivalent to the “weaker sections of thepeople” in Article 46, and is the overall genus, the species of ScheduledCastes and Scheduled Tribes is separately mentioned in the latter part ofArticle 46 and Article 16(4-A). This is for the reason, as has been pointedout by us earlier, that the Scheduled Castes and the Scheduled Tribesare the most backward or the weakest of the weaker sections of society,and are, therefore, presumed to be backward. Shri Dwivedi’s argumentthat as member of Scheduled Caste or Scheduled Tribe reachesthe higher posts, he/she no longer has the taint of either untouchability orbackwardness, as the case may be, and that therefore, the State canjudge the absence of backwardness as the posts go higher, is an argumentthat goes to the validity of Article 16(4-A). If we were to accept thisargument, logically, we would have to strike down Article 16(4-A), asthe necessity for continuing reservation for Scheduled Caste and/orScheduled Tribe member in the higher posts would then disappear. Since

Athe object of Article 16(4-A) and 16(4-B) is to do away with the nine-Judge Bench in Indra Sawhney (1) (supra) when it came to reservationin promotions in favour of the Scheduled Castes and Scheduled Tribes,that object must be given effect to, and has been given effect by thejudgment in Nagaraj (supra). This being the case, we cannot countenancean argument which would indirectly revisit the basis or foundation of theBconstitutional amendments themselves, in order that one small part ofNagaraj (supra) be upheld, namely, that there be quantifiable data forjudging backwardness of the Scheduled Castes and the Scheduled Tribesin promotional posts. We may hasten to add that Shri Dwivedi’s argumentcannot be confused with the concept of “creamy layer” which, as hasCbeen pointed out by us hereinabove, applies to persons within theScheduled Castes or the Scheduled Tribes who no longer requirereservation, as opposed to posts beyond the entry stage, which may beoccupied by members of the Scheduled Castes or the Scheduled Tribes.20. The learned Attorney General also requested us to lay downDthat the proportion of Scheduled Castes and Scheduled Tribes to thepopulation of India should be taken to be the test for determining whetherthey are adequately represented in promotional posts for the purpose ofArticle 16(4-A). He complained that Nagaraj (supra) ought to havestated this, but has said nothing on this aspect. According to us, Nagaraj(supra) has wisely left the test for determining adequacy of representationEin promotional posts to the States for the simple reason that as the postgets higher, it may be necessary, even if proportionality test to thepopulation as whole is taken into account, to reduce the number ofScheduled Castes and Scheduled Tribes in promotional posts, as onegoes upwards. This is for the simple reason that efficiency ofFadministration has to be looked at every time promotions are made. Ashas been pointed out by B.P. Jeevan Reddy, J.’s judgment in IndraSawhney (1) (supra), there may be certain posts right at the top, wherereservation is impermissible altogether. For this reason, we make it clearthat Article 16(4-A) has been couched in language which would leave it

to the States to determine adequate representation depending upon theGpromotional post that is in question. For this purpose, the contrast ofArticle 16(4-A) and 16(4-B) with Article 330 of the Constitution isimportant. Article 330 reads as follows:

“330. Reservation of seats for Scheduled Castes andScheduled Tribes in the House of the People.—(1) Seatsshall be reserved in the House of the People for—

(a) the Scheduled Castes;

(b) the Scheduled Tribes except the Scheduled Tribes in theautonomous districts of Assam; and]

(c) the Scheduled Tribes in the autonomous districts of Assam.

(2) The number of seats reserved in any State or Union territoryfor the Scheduled Castes or the Scheduled Tribes under clause(1) shall bear, as nearly as may be, the same proportion to thetotal number of seats allotted to that State or Union territory in theHouse of the People as the population of the Scheduled Castes inthe State or Union territory or of the Scheduled Tribes in the Stateor Union territory or part of the State or Union territory, as thecase may be, in respect of which seats are so reserved, bears tothe total population of the State or Union territory.

(3) Notwithstanding anything contained in clause (2), the numberof seats reserved in the House of the People for the ScheduledTribes in the autonomous districts of Assam shall bear to the totalnumber of seats allotted to that State proportion not less thanthe population of the Scheduled Tribes in the said autonomousdistricts bears to the total population of the State.

Explanation.—In this article and in Article 332, the expression“population” means the population as ascertained at the lastpreceding census of which the relevant figures have beenpublished:

Provided that the reference in this Explanation to the last precedingcensus of which the relevant figures have been published shall,until the relevant figures for the first census taken after the year2026 have been published, be construed as reference to the2001 census.”

It can be seen that when seats are to be reserved in the House ofthe People for the Scheduled Castes and Scheduled Tribes, the test ofproportionality to the population is mandated by the Constitution. The

Adifference in language between this provision and Article 16(4-A) isimportant, and we decline the invitation of the learned Attorney Generalto say any more in this behalf.

21. Thus, we conclude that the judgment in Nagaraj (supra) doesnot need to be referred to seven–Judge Bench. However, the conclusionBin Nagaraj (supra) that the State has to collect quantifiable data showingbackwardness of the Scheduled Castes and the Scheduled Tribes, beingcontrary to the nine-Judge Bench in Indra Sawhney (1) (supra) is heldto be invalid to this extent.

CDivya Pandey

Referred issue answered.