M. Nagaraj & ors. v. Union of India & ors.

BACKGROUND:

In India, Reservation has been one of the most aggressive and widely debated topic of public
discourse in India. Indian societal history is also ingrained with a systematic structure of social
oppression and isolation towards certain sections of the society. While the argument from a
layman’s perspective has always been the advocacy of the equality enshrined in the constitution,
the other facet of equality that, unequals should not be treated equally is often ignored. While
others argue, that reservation is against the ideas of merit, equality and competition.

The beneficiaries of reservation are largely citizens from certain castes which have been
classified as backward classes of society, are defined as Scheduled Caste , Scheduled Tribe and
Other Backward Classes, thus the process is largely caste based which implies an arbitrariness of
birth coupled with problem of natural lottery detering people from an equal start of life.
Reservation is the foremost affirmative action tool of the Indian government to uplift the
backward communities by ensuring an adequate representation for these communities. While
equality is enshrined in our constitution in the Preamble to the constitution, as well as a
fundamental right under Article 14, Article 15 and Article 16(1) of the constitution of India, the
reservation provided with respect to government jobs is an important facet of equality of
opportunity guaranteed by Article 16.

The judiciary of India through its various judgements has expressed their stand on this issue. The
case of M. Nagaraj & ors. v. Union of India & ors., 1 which is one of landmark cases expressing
judicial perspective on reservation in India. The petitioner claimed that certain constitutional
amendments, which were passed by the Parliament, enabling Reservation in Promotion amounts
to discrimination and is illegal , as it violates the principle of equality, which is a part of the basic
structure of the Indian Constitution.

1
M. Nagaraj & ors. v. Union of India & ors, (2006) 8 SCC 212.
The Supreme Court while deciding the case of Indra Sawhney v. Union of India 2 held, that the
scope of Article 16(4) allows for reservations at the stage of appointments , but not for
Reservation in matters of promotion, however it allowed for reservation in promotions to
continue for the next 5 years. However, the Government vide the 77th Constitution Amendment
Act, 1995, tried to nullify the ruling of the court in the Indira Sawhney case by inserting a new
Clause 4-A to the Constitution. the provision says ,

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion, with consequential seniority, to any class or classes of posts in the services
under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion
of the State, are not adequately represented in the services under the State.”3

The 85th Constitutional Amendment, 2001 further afforded consequential seniority to candidates
who have undergone accelerated promotion under Article 16 (4A). The 81st Amendment,2000
permitted the state to carry forward the vacancies of present year reserved under articles 16(4),
16(4A) into the next year and such carry forward vacancies will not be subject to the 50%
ceiling limit rule as laid down in the Indira Sawhney Case. The 82nd Amendment Act was
introduced in order to render the mandate of Indra Sawhney case void, where it was decided
that “relaxation of qualifying marks and standards of evaluation for reservation in promotion
was not permissible since that would compromise the efficiency of administration.”4

FACTS:

The petitioner approached the Supreme Court by filing a writ petition under Article 32. The
petitioner filed the writ of certiorari and seeked to quash the 85th Constitutional Amendment Act,
2001 which inserted Article 16(4A) in the Constitution retrospectively from June, 17, 1995. This
amendment provided for reservation in promotion coupled with consequential seniority. The
petitioner contended that this amendment violates the basic structure of the constitution and is
hence unconstitutional. It was contended that the said amendment nullifies various rulings of the
Supreme Court in Union of India v. Virpal Singh Chauhan5, Ajit Singh Januja v. State of

2
Indra Sawhney v. Union of India, (1992), AIR 1993 SC 477
3
Constitution of India,Article 16,Clause 4A.
4
Supra Note 2
5
Union of India v. Virpal Singh Chauhan, (1995), 1996 AIR 448, 1995 SCC (6) 684
Punjab6, Indra Sawhney v. Union of India 7amongst others. The petitioner submitted that the
Parliament had usurped the powers of judiciary to their own peruse and has stepped in the shoes
of judiciary as Appellate Judicial Authority by reversing the rulings of the Supreme Court vide
through the 85th Constitutional Amendment and consequently, such amendment should be struck
down for being violative of the basic structure of the constitution.

The petitioner submitted that the objective of the amendment was to change the understanding of
Fundamental Right to Equality under Article 16 and hence it violates the basic structure
doctrine. They claimed that equality under Article 16(1) elucidates “accelerated promotions”
but without granting of consequential seniority. It was contended that the inclusion of
consequential seniority with the acceleration promotion shall result in violation of equality as per
Article 14 of the constitution read with Article 16(1). The petitioner raised the contention that
such reservation and process of seniority will serious impair the administrative efficiency. This
court in the Indra Sawhney case explicitly held that reservation to Backward Classes, under
article 16(4), is only permissible at the time of initial recruitment and the same cannot apply in
promotion. The Government acted in clear contradiction of the said judgement and enacted the
Constitution (Seventy-seventh Amendment) Act, 1995. The said amendment inserted Article
16(4A) which empowered the government to reintroduce reservation in the field of promotion.
Some of the writ petitions clubbed in this matter together also challenged the validity of 77 th
Constitutional Amendment Act, 1995. It was submitted through the written submission that the
application of accelerated seniority for the roster-point promotes would yield disastrous
consequences. The petitioner lastly submitted that the said amendment would create a reserve
discrimination as for the percentage of representation of the reserved category officers in the
higher cadre of the departments thereby seriously violating the Right to Equality.

ISSUE:

Several critical and key aspects of constitutional law were raised before the five judge bench.
The most important of them being related to amending power of the parliament to amend the
Constitution. This is raised on the context that the amendments in a nutshell were an attempt to

6
Ajit Singh Januja v. State of Punjab, (1996), 1996 AIR 1189
7
Supra Note 2
nullify the verdict of the Supreme Court in the Indra Sawhney case. The second important
question was whether or not; Article 16(4B) is violative of the basic structure doctrine.

In total, three broad issues were raised which related to:

i) Validity

ii) Interpretation

iii) Implementation of :

a) The Constitution (77th Amendment) Act, 1995,

b) The Constitution (81st Amendment) Act, 2000,

c) The Constitution (82nd Amendment) Act, 2000

d) The Constitution (85th Amendment) Act, 2001; and

e) All the actions which were taken in pursuance of the above amendments which intended to
alter the verdict of the Supreme Court in its various rulings pertaining to reservations and
reservation in promotion and their implementation with retrospective effect.

REASONING:

On the question pertaining to the amending power of the parliament to amend the Constitution,
this court observed that, “Constitutional principles that constitute the constitutional identity and
stand at the pinnacle of the hierarchy of constitutional values constitute part of the basic
structure and are beyond the amending power of Parliament.” 8 The SC held that “while equality
was a facet of the basic structure the 'catch-up' rule that avoids consequential seniority by
putting general category candidates on par with those who have benefited from accelerated
promotion is not.” The latter one is just a judicially evolved concept that is evident in the service
jurisprudence and "cannot be elevated to the status of an axiom like secularism, constitutional
sovereignty, etc... It cannot be said that 'equality code' under Article 14, 15 and 16 is violated by
deletion of the 'catch-up' rule." Therefore, the court upheld article 16(4A) and justified the same

8
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 146.
stating that adding consequential seniority as a concept under Article 16 (4A) does not violate or
abrogate the basic structure of the constitution.

During enunciating on the equality code (which the court considered as an intrinsic part of the
basic structure according to their understanding) and its relation to the reservation it observed
that "The conflicting claim of individual right under Article 16(1) and the preferential treatment
given to a backward class has to be balanced... The question is of optimization of these
conflicting interests and claims".9 “It further cautioned that concerns of administrative
efficiency under article 355 are a limitation on reservation.”10

It was also observed by the court that, “In the case of Minerva Mills11, Chandrachud, C.J.,
speaking for the majority, observed that Articles 14 and 19 do not confer any fanciful rights.
They confer rights which are elementary for the proper and effective functioning of democracy.
They are universally regarded by the universal Declaration of Human Rights. If Articles 14 and
19 are put out of operation, Article 32 will be rendered nugatory. In the said judgment, the
majority took the view that the principles enumerated in Part-IV are not the proclaimed
monopoly of democracies alone. They are common to all polities, democratic or authoritarian.
Every State is goal-oriented and every State claims to strive for securing the welfare of its
people.”12

This implies that the fundamental rights which constitute part of the basic structure of the
constitution are not special privileges or rights but are instead rights which are of essential
nature. The court interestingly mentioned that removal of Article 14 and 19 will result in
nullification of Article 32. If there will be no fundamental right to protect, there would be no
reason to file a writ in court.

“If  Article 14 is withdrawn, the political pressures exercised by numerically large groups can
tear the country apart by leading it to the legislation to pick and choose favored areas and
favorite classes for preferential treatment. From these observations, which are binding on us,
the principle which emerges is that "equality" is the essence of democracy and, accordingly a

9
Supra Note 1.
10
Id.
11
Minerva Mills v. Union of India, (1980), AIR 1980 SC 1789
12
Supra Note 1.
basic feature of the Constitution. This test is very important. Free and fair elections per se may
not constitute a basic feature of the Constitution. On their own, they do not constitute basic
feature.”13

However, it is ironical that after these crucial observations, the court failed to analyze on the
question that, “Whether a 50 % ceiling included in the support of the carry forward rule which
was proposed by Article 16(4B), disturbs the necessary balance between the need of backwards
classes for such reservation and the principles of equality at large, The court also failed to
analyze that whether such limit affects administrative efficiency or not. Even though the court
decided in the favour of the state, the court put certain limitations on the government of state in
case they wish to formulate such law.,The court in the verdict held that:

“The State is free to exercise its discretion of providing for reservation subject to limitation,
namely, that there must exist compelling reasons of backwardness, inadequacy of representation
in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that
even if the State has reasons to make reservation, as stated above, if the impugned law violates
any of the above substantive limits on the width of the power the same would be liable to be set
aside.”14

Additionally the court held that, "Reservation has to be used in a limited sense otherwise it will
perpetuate casteism in the country... if the creamy layer among backward classes were given
some benefits as backward classes, it will amount to equals being treated as unequal.”15

DISPOSITION

The court observed that the concerned amendments flows from Article 16(4). It does not alter the
provisions of Article 16(4). It was held that the proposed compelling reasons such as
backwardness and inadequacy of representation and controlling factors are retained in order to
maintain the administrative efficiency as proposed under Article 335 of the Constitution. The
court observed that these impugned amendments are restricted to the Schedule Caste and
Schedule Tribes only. The court held that none of the amendments in question obliterate any of

13
Id.
14
Id.
15
Id.
the constitutional requirements which are the mandated ceiling limit of 50%, the incorporation of
the creamy layer, and the further classification between OBC’s and the Scheduled casts and
Scheduled Tribes, in matters relating to reservations and their implementation.

The court mentioned again that the permissible limit of 50%, the concept of creamy layer and the
compelling reasons such as backwardness and inadequacy of representation are mandated
constitutional requirements and they form the structure of equality of opportunity as provided
under Article 16 and that Article 16 would collapse without the incorporation of these principles.
The court highlighted that the main issue in this matter was related to the extent of reservations
Dealing with this aspect, the court decided that in every instance where any state wishes to
formulate such reservation in promotion, the existence of the aforementioned compelling reasons
before making provisions for reservation will be a pre-requisite and the state shall prove the
same in the court by providing quantifiable data. The court mentioned that, “The provision in
question in this matter is an enabling provision. The state under any constitutional provision is
not obligated to provide for reservation in promotion for the scheduled caste and schedule
tribes. If any state wishes to provide for any such promotion, then they are mandated to provide
quantifiable data with respect to the compelling reasons for enabling such provision and the
same should comply with Article 335 also. It was mentioned that even the state enabling such
provision should cautiously follow the permissible limit of 50%. They should also not obliterate
the creamy layer or extend the reservation indefinitely.”16

Considering the submissions, arguments advanced and issues raised, the court upheld the validity
of the 77th Constitutional Amendment Act, 81st Constitutional Amendment Act, 82nd
Constitutional Amendment Act, 85th Constitutional Amendment Act amongst other questions of
law.

It is pertinent to note that the judgement was written in era of the post Indira Sawhney
Judgement era, whereby there was a significant change in social mobility and social status of the
backward communities, and with much enhancement in the jurisprudence of affirmative action,
which might have influenced the view of the judges on the bench, the bench itself included
Justice K.G.Balakrishnan, who rose to become the first Schedule Caste, Chief Justice of India.

16
Supra Note 1.
ANALYSIS:

Ideally, this decision of the Supreme Court should have provided the government an opportunity
for celebration. However, there were some pertinent flaws in the way the apex Court analyzed
the issue and adjudicated it. The Supreme Court dismissed the contention of petitioners that the
parliament exceeded their role by amending the constitution which contradicts the ruling of the
Supreme Court in the Indra Sawhney case. However, it was strange that the court dismissed the
contentions of the petitioners on the matter of the amending power of the Constitution, there lies
a well established jurisprudence which discusses the power of the parliament to amend the
Constitution or to nullify the effects of a court’s verdict. The court failed to delve into such
jurisprudence and discuss this vital contentions. The supreme court in various cases has decided
that legislature can only nullify the judgement of the court by attacking the very basis on which
the said judgement of the court was founded. There exists no other way for the
parliament/legislature to overrule a judgement in their capacity. This was held by the court
explicitly in the Sundar Dass v. Ram Prakash case 17, but this court failed to acknowledge all
these in the instant matter.

The author opines that while examining Article 16(4B), the court should have tested it on the
touchstone of the necessary balance between the principles of equality at large and the needs of
the backward classes as it was intrinsic for determining whether the 81 st amendment of the
constitution violated the basic structure doctrine or not , but the court failed to do so.

One of the most controversial spectrums of the judgement was the observation of the court on the
‘creamy layer’ principle. The principle of the creamy layer enunciates that the affluent persons of
the backward sections of the societies should be kept outside the ambit of such reservation. The
bench in this case observed that the state’s power to reserve posts for the Schedule caste and
Schedule Tribe in promotion depended on the essential implementation of the creamy layer
principle, whereas the ‘creamy layer’ principle itself was derived from the Indira Sawhney case,
where the court had itself held, that the said principle of creamy layer was applicable only for the
purpose of identifying the beneficiaries of reservation under the category of Other Backward
Classes.

17
Sundar Das v. Ram Prakash, (1977), 1977 AIR 1201
The court limited the scope of state in extending reservation in the matters of promotion by
enabling certain positive restrictions on it, the court mandated that any such reservation can only
be afforded by providing quantifiable data pertaining to the compelling reasons as laid down in
the judgement itself. Additionally, all such reservations must be in consonance with the
provisions of the Article 335. In furtherance, such reservation in no circumstances can be
exceeded more than the permissible limit of the 50% (the ceiling limit) or in no case can
obliterate the application of the creamy layer.

Many scholars however, have argued that the restrictions put on states to enable promotions in
reservations have failed to address the centuries of discrimination the backward societies were
subjected to. Furthermore, they claim that the bench erroneously overruled the Indra Sawhney
judgement which held that Scheduled casts and Scheduled tribes are homogenous classes and
could not be sub categorized.

They argued that this judgement will allow the state to deny reservation to those people of the
Schedule Caste and Schedule Tribe community who will fail to clear their criteria of
backwardness, and their representation in efficiency. They also pointed out that the creamy layer
principle ignores the systematic history of social discrimination faced by the people belonging to
Schedule Caste and Schedule Tribe communities, and the difference between the Schedule Caste,
Schedule Tribe against the Other Backward Classes, in matters relating to reservations. The
critics of the judgement claim that the ruling of the Supreme Court is in clear violation of the
rules laid down in the nine-judge bench decision of the Indra Sawhney. They say that inclusion
of creamy layer was not part of the Indra Sawhney judgement and the mandatory inclusion of
such creamy layer by Supreme Court violates the Fundamental Right to Equality under Article
14 and 16, and inconsistent with the nine bench ruling.

However, if the people who are not explicitly disadvantaged socially or economically but are
only part of the backward social group like Schedule Caste or Schedule Tribe would be allowed
to avail the benefits of reservation in promotion, it will actually be detrimental for the benefits of
those who are actually deserving of such benefits, via reservation policies, Affluent sections of
the backward classes having access to resources might be better off than those in the community
with lack of any such access. This in turn will undeniably violate the bar of administrative
efficiency as laid down in the present judgement. It would amount to violation of rights of
people of other communities which are not classified as a part of the Backward Classes for the
purpose for reservation and also who dont have access to such resources .It is important to
observe that the right of an individual, who belongs to backward classes, for a preferential
treatment does not exist in abstraction, to the Right to Equality of the rest of the population, at
large, It will cause serious ramifications on the equality of opportunity of other individuals in the
matter of public employment. The same right is protected under Article 16(1) of the constitution.
The court on this subject analyzed three important aspects of reservation and their relations
namely, equity, justice and merit. The people of Schedule Caste and Schedule Tribe seek justice
while rest of the people in the public employment seek equity. And merit in employment and
promotion ensure the administrative efficiency. Hence, it is of utmost importance to maintain a
equilibrium balance between the requirement of justice for backward classes, equity for the rest
of the communities and efficiency for the better functioning of the public sector. The
fundamental right of the people of the non backward classs can only be ‘compromised’ when
there exists a compelling need to provide backward classes with exceptional benefits, in rare
situations. The constant balancing of special benefits and essential requirements to create a level
playing field is essential.

Lastly, to maintain administrative efficiency, Article 335 of the Constitution of India explicitly
mandates the state to maintain efficiency while providing reservations to people belonging to the
Schedule Caste and Schedule Tribe categories. The Government has to maintain administrative
efficiency while providing reservations , while there is no explicit data to explain that the court
relied while ruling , that administrative efficiency will be seriously hampered by inclusion of
those who belong to the backward classes , but may have achieved a certain degree of social and
economic mobility, while providing benefits of reservation in matters of promotion.

This ruling of the supreme court has explicitly provided a line of reasoning, which provides for
presence of creamy layer as a precursor for determining the legality of laws relating to matters of
reservation.