LLC
- Jun 16, 2021
- 88 min read

Article 15 and article 16

Supreme Court of India

Mrs. Valsamma Paul vs Cochin University And Others on 4 January, 1996

33. However, the question is : Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities.

34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu and R. Chandevarappa v. State of Karnataka , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.

35. Further question is : Whether recognition by the community, as is envisaged by law and expressly recognised by this Court in Mohan Rao's case would give the benefit of reservation? In that case, parents of Mohan Rao originally belonged to a Scheduled Caste in A.P. Mohan Rao became a Christian but reconverted into Hinduism and claimed the status as a Scheduled Caste. The Constitution Bench had held that by reconversion, he could not become a Hindu but recognition by the community is a precondition. In that case, it was found that caste/community had recognised him after reconversion as a member of the Scheduled Caste. In Kailash Son/car's case (supra), this Court, in the context of election law, considered the question of reconversion into Hindu fold. On conversion to a Christianity or any other religion, the convertee would lose the said caste. Where a person belonging to the Scheduled Caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family law by which he was originally governed. Where the new religion does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In South India, if a person converts from Hindu religion to other religion, the original caste, without violating the tenants of the new order to which he has gone, as a matter of common practice continues to exist from times immemorial. If a person abjures his old religion and converts to a new one, there is no loss of caste. However, where the convertee exhibits by his actions and behavior his clear intention of abjuring the new religion, on his own volition without any persuasion and is not motivated by any benefits or gain; the community of the old order to which the convertee originally belonged, is gracious enough to admit him to the original caste either expressly or by necessary intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he becomes a member of that caste. However, this Court had held that "in our opinion the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste." In that case it was held from his conduct, the respondent established that she by her conduct became a member of the community entitled to contest the elections as a Scheduled Caste. In Mohan Rao's case (supra), this Court found as a fact that after conversion he was accepted as a member of the Dalits by the community. Similar are the facts in Hero case (supra). In CM. Arumugam v. S. Rajagopal and Ors. , this Court did not accept reconversion, though Rajagopal proclaimed by conduct of his becoming a member of Scheduled Caste and his relations treated him as a member of Dalits. In Hero case also the respondent was recognised as a member of the Scheduled Tribe. Further in election law the compulsion of political party nominating a candidate and voters' verdict may be looked into. In Soosai v. Union of India , Bhagwati, C.J. speaking for a three Judge Bench held that non-recognition of Scheduled Caste Christians as Dalits was not violative of Article 14 as by reason of p conversion they were not similarly handicapped as Dalits. In Madhuri's case and Laveti Giri's case, this Court directed procedure for issuance of social status certificates. As a part of it, the officer concerned should also verify, as a fact, whether a convert has totally abjured his old faith and adopted, as a fact, the new faith; whether he suffered all the handicaps as a Dalit or tribe; whether conversion is only a ruse to gain constitutional benefits under Article 15(4) or 16(4); and whether the community has in fact recognised his conversion and treated him as a member of the community and then issue such a certificate.

The recognition of the appellant as a member of the Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had an advantageous start in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class.

Supreme Court of India

The State Of Madras vs Srimathi Champakam Dorairajan ... on 9 April, 1951

Equivalent citations: 1951 AIR 226, 1951 SCR 525

Author: S R Das

Bench: Kania, Hiralal J. (Cj), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Mukherjea, B.K. & Das, S. R. Bose, Vivian

With regard to admission of students to the Engineering and Medical Colleges of the State, the Province of Madras had issued an order (known as the Communal G. O.) that seats should be filled in by the selection committee strictly on the following basis, i.e., out of every 14 seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2 to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian Christians and 1 to Muslims: Held by the Full Court (Kania C.J., Fazl Ali, PatanJali Sastri, Mehr Chand Mahajan, Mukherjea, S.R. Das and Vivian Bose JJ.).--that the Communal G.O. constituted a violation of the fundamental right guaranteed to the citi-zens of India by Art. 29 (2) of the Constitution, namely, that "no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them and was therefore void under Art. 13. The directive principles of State policy laid down in Part IV the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand they have to conform to and run as subsidiary to the fundamental rights laid down in Part III.

(This government order was held to be violative of the Constitution and constitutive of a clear breach of Article 29(2). Article 30 did not come up for consideration in that case.)

After the decision of Apex Court in The State Of Madras vs Srimathi Champakam Dorairajan, Article 15 was amended and Article 15 (4) was introduced. The term “socially and educationally backward class of citizens” was inserted, conferring power upon the State to make special provisions for their advancement. This term “socially and educationally backward” has been held to also provide colour the term “backward class” in the decision in Indra Sawhney – as indeed in the earlier decision in NM Thomas. This court noticed that ‘backward class’ of citizens, though wider in context, has to take colour from social backwardness, which also results in educational backwardness.

In the case of Dr. Jagdish Saran & Ors. v. Union of India ([1980] 2 SCC 768), reservation of 70% of seats for the local candidates in admissions to the Post Graduate Medical Courses by the Delhi University was struck down by this Court. While doing so, Krishna Iyer J. speaking for the Court spelt out the ambits of Articles 14 and 15. He said, (at page 778) "But it must be remembered that exceptions cannot overrule the rule itself by running riot or by making reservations as a matter of course in every university and every course. For instance, you cannot wholly exclude meritorious candidates as that will promote sub-standard candidates and bring about a fall in medical competence injurious in the long run to the very region..........Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. So, within these limitations without going into excesses there is room for play of the State's policy choices." He further observed, "The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation......A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potentials of the weak with the partial recognition of the presence of competitive merit - such is the dynamic of social justice which animates the three egalitarian articles of the Constitution."

"Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best scale or talent must be handpicked by selecting according to capability. At the level of P.H.D., M.D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expended upon as important, lose their potency, where equality measured by matching excellence has more meaning and cannot be diluted much without grave risk."

The same reasoning runs through Dr. Pradeep Jain & Ors. v. Union of India & Ors. ([1984] 3 SCC 654). It dealt with reservation of seats for the residents of the State or the students of the same university for admission to the medical colleges. The Court said, (at page 676) "Now, the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere ideal indentation but it must become a living reality for the large masses of people............ It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed in order to bring about real equality." The Court after considering institutional and residential preferences for admission to the M.B.S.S. course, said that different considerations would prevail in considering such reservations for admission to the Post Graduate Courses such as M.D., M.S. and the like. It said, (at page 691) "There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation." Quoting the observation of Justice Krishna Iyer in Dr. Jagdish Saran case (supra) the Court said, "This proposition has far greater importance when we reach the higher levels of education like Post Graduate Courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise."

HORIZONTAL AND VERTICAL RESERVATION:

The Honble Apex Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others [(2007) 8 SCC 785] considered the concept of vertical reservation and horizontal reservation. That was considered in the context of persons belonging to reserved category were appointed in non-reserved posts based on their merit, along with the further question whether they should be considered as persons appointed as forming part of reserved category. It was held that such reservation is horizontal reservation and such appointment cannot be taken as an appointment under reserved category. The Supreme Court held that while Article 16(4) of the Constitution of India contemplates vertical reservation, what is contemplated under Article 16(1) as well as Article 15(3) is horizontal reservation. Article 15(3) which is as follows:

" Article 15.Prohiition of discrimination on grounds of religion, race, caste, sex or place of birth.-

(1) xxx (2) xxx (3) Nothing in this article shall prevent the State from making any special provision for women and children."

and Article 16(4) which is as follows:

" Article 16.Equality of opportunity in matters of public employment.-

(1) to (3) xxxx (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."

are categorized as classes of horizontal reservation. Therefore, as per the said judgment, the special provision made for women enabling them to get 30% reservation, of course, in addition to that on merit in open category, has been held to be horizontal reservation. While explaining the difference between vertical and horizontal reservations, it was held by the Supreme Court in no uncertain terms, especially relating to the special provision of reservation for women, as follows:

" 6. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India 1992 Supp (3) 217, the principle of horizontal reservation was explained thus: (SCC pp. 735-36, para 812) [A]ll reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as vertical reservations and horizontal reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservationswhat is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of Backward Class of citizens remainsand should remainthe same.

7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. (1995) 5 SCC 173 thus: (SCC p. 185, para 18) The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfiedin case it is an overall horizontal reservationno further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.) (emphasis supplied)

8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: For SC: 30 posts, of which 9 posts are for women. We find that many a time this is wrongly described thus: For SC: 21 posts for men and 9 posts for women, in all 30 posts. Obviously, there is, and there can be, no reservation category of male or men.

9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are vertical reservations. Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are horizontal reservations. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745, Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ritesh R. Sah v. Dr.Y.L. Yamul (1996) 3 SCC 253.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of Scheduled Caste women. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that SC women have been selected in excess of the prescribed internal quota of four.)

10. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 woman candidates, which was equal to the quota for general category women. There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven woman candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the selection list) and another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) included under reservation quota for general category women. This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation."

( On the reading of the said judgment, it is clear and categorical that the provision given for women, of course, as a matter of right, for appointment is horizontal, applicable to each and everyone of the reserved categories viz., SC/ST/MBC. etc. and the provision cannot be said to be vertical reservation which is on social basis. In fact, the Supreme Court held that while reservation in favour of physically handicapped, women, etc., is horizontal in nature, the reservation made on the social basis viz., community-wise is vertical reservation. Therefore, in respect of horizontal reservation, there is no question of any separate zone of consideration required. It is relevant to point out that the said judgment was only a reproduction and explanation of the earlier judgment in Indra Sawhney vs. Union of India [1992 Suppl. (3) SCC 217], as it has been elicited in the said judgment itself. In such circumstances,any contention that different zone of consideration must be made for women candidates among the Scheduled Castes is totally misconceived and opposed to the established legal position.)

Supreme Court of India

Ashoka Kumar Thakur vs Union Of India And Ors on 10 April, 2008

we hold that the Ninety-Third Amendment to the Constitution does not violate the "basic structure" of the Constitution so far as it relates to aided educational institutions. Question whether reservation could be made for SCs, STs or SEBCs in private unaided educational institutions on the basis of the Ninety-Third Constitutional Amendment; or whether reservation could be given in such institutions; or whether any such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution; or whether the Ninety-Third Constitutional Amendment which enables the State Legislatures or Parliament to make such legislation - are all questions to be decided in a properly constituted lis between the affected parties and others who support such legislation.

Questions:

1. Whether the Ninety-Third Amendment of the Constitution is against the "basic structure" of the Constitution?

The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. (Paragraph 79)

2. Whether Articles 15(4) and 15(5) are mutually c ontradictory, hence Article 15(5) is to be held u ltra vires ?

Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory. (Paragraph 100)

3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution? Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions.

(Paragraph 102)

4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution? The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed.

(Paragraph 103)

5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of "Backward Class" and whether the identification of such "Backward Class" based on "caste" is constitutionally valid?

Identification of "backward class" is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore, Act 5 of 2007 is not invalid for this reason.

(Paragraph 142)

6. Whether "Creamy Layer" is to be excluded from SEBCs?

"Creamy Layer" is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of "creamy layer" such identification may not be valid under Article 15(1) of the Constitution. (Paragraph 152)

7. What should be the para-meters for determining the "creamy layer" group?

The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of "Other Backward Classes" under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer.

(Paragraphs 153 and 155)

8. Whether the "creamy layer" principle is applicable to Scheduled Tribes and Scheduled Castes?

"Creamy Layer" principle is not applicable to Scheduled Castes and Scheduled Tribes. (Paragraph 163)

9. Whether the principles laid down by the United States Supreme Court for affirmative action such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution?

The principles laid down by the United States Supreme Court such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution.

(Paragraphs 184)

10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?

The delegation of power to the Union Government to determine as to who shall be the "other backward classes" is not excessive delegation. Such delegation is constitutionally valid.

(Paragraph 186)

11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated?

The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years. (Paragraph 187)

12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward?

The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected. (Paragraph 189)

13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved?

27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation.

Supreme Court of India

Preeti Srivastava (Dr.)& Anr vs State Of Madhya Pradesh & Ors on 10 August, 1999

In the case of M.R. Balaji & Ors. v. State of Mysore ([1963] Suppl. 1 SCR 439 at pages 466-467), a Constitution Bench of this Court considered this very question relating to the extent of special provisions which it would be competent for the State to make, under Article 15(4). This Court accepted the submission that Article 15(4) must be read in the light of Article 46 and that under it, the educational and economic interests of the weaker sections of the people can be promoted properly and liberally, to establish social and economic equality. The Court said, "No one can dispute the proposition that political freedom and even fundamental rights can have very little meaning or significance for the backward classes and the Scheduled Castes and Scheduled Tribes unless the backwardness and inequality from which they suffer are immediately redressed".

The Court, however, rejected the argument that the absence of any limitation on the State's power to make an adequate special provision under Article 15(4) indicates that if the problem of backward classes of citizens and Scheduled Castes and Scheduled Tribes in any given State is of such a magnitude that it requires the reservation of all seats in the higher educational institutions, it would be open to the State to take that course. This Court said: "When Article 15(4) refers to the special provisions for the advancement of certain classes or Scheduled Castes or Scheduled Tribes, it must not be ignored that the provision which is authorised to be made is a special provision; it is not a provision which is exclusive in character so that, in looking after the advancement of those classes the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Article 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Article 15(4). It would be extremely unreasonable to assume that in enacting Article 15(4) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored." This Court struck down a reservation of 68% made for backward classes for admission to Medical and Engineering Courses in the university. This Court further observed, (at page 407) "A special provision contemplated by Article 15(4), like reservation of posts and appointments contemplated by Article 16(4), must be within reasonable limits. The interest of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interest of the community as a whole". The Court also said that while considering the reasonableness of the extent of reservation one could not lose sight of the fact that the admissions were to institutes of higher learning and involved professional and technical colleges. "The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seats in all technical, medical or engineering colleges or institutions of that kind." (Page 468) Therefore, consideration of national interest and the interests of the community or society as a whole cannot be ignored in determining the reasonableness of a special provision under Article 15(4).

217), where a Bench of nine Judges of this Court considered the nature, amplitude and scope of the constitutional provisions relating to reservations in the services of the State. Jeevan Reddy J. speaking for the majority (in paragraph 836) stated that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid if the constitutional promise of social justice is to be redeemed. We also formally believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with ? and may in some cases excel ? members on open competition. Having said this, the Court went on to add, (in paragraph 838) "We are of the opinion that there are certain services and positions where either on account of nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained herein above alone counts. In such situations it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical science and mathematics, in defence services and in the establishments connected therewith." (underlining ours) A similar view has been taken in Mohan Bir Singh Chawla v. Punjab University, Chandigarh & Anr. ([1997] 2 SCC 171) where this Court said that at higher levels of education it would be dangerous to depreciate merit and excellence. The higher you go in the ladder of education, the lesser should be the reservation. In Dr. Sadhna Devi's case (supra) also this Court has expressed a doubt as to whether there can be reservations at the Post Graduate level in Medicine.

We are, however, not directly concerned with the question of reservations at the Post Graduate level in Medicine. We are concerned with another special provision under Article 15(4) made at the stage of admission to the Post Graduate Medical Courses, namely, providing for lesser qualifying marks or no qualifying marks for the members of the Scheduled Castes and Scheduled Tribes for admission to the Post Graduate Medical Courses. Any special provision under Article 15(4) has to balance the importance of having, at the higher levels of education, students who are meritorious and who have secured admission on their merit, as against the social equity of giving compensatory benefit of admission to the Scheduled Caste and Scheduled Tribe candidates who are in a disadvantaged position. The same reasoning which propelled this Court to underline reasonableness of a special provision, and the national interest in giving at the highest level of education, the few seats at the top of the educational pyramid only on the basis of merit and excellence, applies equally to a special provision in the form of lower qualifying marks for the backward at the highest levels of education.

It is of course, important to provide adequate educational opportunities for all since it is education which ultimately shapes life. It is the source of that thin stream of reason which alone can nurture a nation's full potential. Moreover, in a democratic society, it is extremely important that the population is literate and is able to acquire information that shapes its decisions.

The spread of primary education has to be wide enough to cover all sections of the society whether forward or backward. A large percentage of reservations for the backward would be justified at this level. These are required in individual as well as national interest. A university level education upto graduation, also enables the individual concerned to secure better employment. It is permissible and necessary at this level to have reasonable reservations for the backward so that they may also be able to avail of these opportunities for betterment through education, to which they may not have access if the college admissions are entirely by merit as judged by the marks obtained in the qualifying examination. At the level of higher post-graduate university education, however, apart from the individual self interest of the candidate, or the national interest in promoting equality, a more important national interest comes into play. The facilities for training or education at this level, by their very nature, are not available in abundance. It is essential in the national interest that these special facilities are made available to persons of high calibre possessing the highest degree of merit so that the nation can shape their exceptional talent that is capable of contributing to the progress of human knowledge, creation and utilisation of new medical, technical or other techniques, extending the frontiers of knowledge through research work - in fact everything that gives to a nation excellence and ability to compete internationally in professional, technical and research fields.

This Court has repeatedly said that at the level of superspecialisation there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a super speciality, something more than a mere professional competence as a doctor is required. A super-specialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised areas, however, cannot be acquired by anyone or everyone. For example, specialised sophisticated knowledge and skill and ability to make right choices of treatment in critical medical conditions and even ability to innovate and device new lines of treatment in critical situations, requires high levels of intelligent understanding of medial knowledge or skill and a high ability to learn from technical literature and from experience. These high abilities are also required for absorbing highly specialised knowledge which is being imparted at this level. It is for this reason that it would be detrimental to the national interest to have reservations at this stage. Opportunities for such training are few and it is in the national interest that these are made available to those who can profit from them the most viz. the best brains in the country, irrespective of the class to which they belong.

At the next below stage of post-graduate education in medical specialities, similar considerations also prevail though perhaps to a slightly lesser extent than in the super specialities. But the element of public interest in having the most meritorious students at this level of education is present even at the stage of post-graduate teaching. Those who have specialised medical knowledge in their chosen branch are able to treat better and more effectively, patients who are sent to them for expert diagnosis and treatment in their specialised field. For a student who enrols for such speciality courses, an ability to assimilate and acquire special knowledge is required. Not everyone has this ability. Of course intelligence and abilities do not know any frontiers of caste or class or race or sex. They can be found anywhere, but not in everyone. Therefore, selection of the right calibre of students is essential in public interest at the level of specialised post-graduate education. In view of this supervening public interest which has to be balanced against the social equity of providing some opportunities to the backward who are not able to qualify on the basis of marks obtained by them for post-graduate learning, it is for an expert body such as the Medical Council of India, to lay down the extent of reservations, if any, and the lowering of qualifying marks, if any, consistent with the broader public interest in having the most competent people for specialised training, and the competing public interest in securing social justice and equality. The decision may perhaps, depend upon the expert body's assessment of the potential of the reserved category candidates at a certain level of minimum qualifying marks and whether those who secure admission on the basis of such marks to post-graduate courses, can be expected to be trained in two or three years to come up to the standards expected of those with post-graduate qualifications.

The speciality and super speciality courses in medicine also entail on-hand experience of treating or operating on patients in the attached teaching hospitals. Those undergoing these programmes are expected to occupy posts in the teaching hospitals or discharge duties attached to such posts. The elements of Article 335, therefore, colour the selection of candidates for these courses and the Rules framed for this purpose.

In the premises the special provisions for SC/ST candidates whether reservations or lower qualifying marks - at the speciality level have to be minimal. There cannot, however, be any such special provisions at the level of super specialities.

In Chitra Ghosh & Anr. v. Union of India & Ors. ([1970] 1 SCR 413), the Constitution Bench of this Court considered, inter alia, reservation of nine seats for the nominees of the Government of India in a Government Medical College under Article 14 of the Constitution. This Court upheld the reservation as a reasonable classification under Article 14 on the ground that the candidates for these seats had to be drawn from different sources and it would be difficult to have uniformity in the matter of selection from amongst them. The background and the course of studies undertaken by these candidates would be different and divergent and, therefore, the Central Government was the appropriate authority which could make a proper selection out of these categories. The questions before us, did not arise in that case.

Supreme Court of India

Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992

Equivalent citations: AIR 1993 SC 477, 1992 Supp 2 SCR 454

We may summarise our answers to the various questions dealt with and answered hereinabove:

(1)(a) It is not necessary that the 'provision' under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Para 55)

(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. (Para 56) (2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). (Para 57)

(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. (Para 58)

(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens' - as explained in this Judgment. (Para 60) (3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purposes of Article 16(4). (Paras 61 to 82)

(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (Paras 83 and 84)

(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 87 and 88)

(d) 'Creamy layer' can be, and must be excluded. (Para 86)

(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (Para 85)

(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (Para 89) (4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. (Para 90)

(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. (Para 91).

(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. (Para 92) (6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 96)

(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. (Paras 97 to 99) (7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. (Ahmadi, J. expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. (Paras 100 to 107).

(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 108 to 112) (9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between 'poorer sections' and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in para 114 of this Judgment (Para 114). (11) The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. (Para 115) (12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). (Para 113) (13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor. (Para 117) (14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. It is equally unnecessary to send the matters back to the Constitution Bench of Five Judges. (Paras 118 to 119) 122. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 26. Our answers question-wise are:

(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under Clause (1) of Article 16.

(2) The expression 'backward class' in Article 16(4) takes in 'Other Backward Classes', S.Cs., S.Ts. and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are inter-twined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and covered by Article 16(4).

(3) Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.

(4) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

To the extent, Devadasan is inconsistent herewith, it is over-ruled.

(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable - nay, necessary - to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.

For excluding 'creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement.

(6) A 'provision' under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature.

(7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4). It is not possible or necessary to say more than this under this question.

(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so.

Supreme Court of India

M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006

IS EQUALITY A PART OF THE FUNDAMENTAL FEATURES OR THE BASIC STRUCTURE OF THE CONSTITUTION?

At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by courts of justice. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our constitution because it is necessary to give effect to the distribution of legislative power between Parliament and State legislatures, and is also necessary to give practicable content to the objectives of the Constitution embodied in Part-III and in several other Articles of our Constitution.

In the case of Minerva Mills, 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. The distinction between different forms of Government consists in the fact that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like Articles 14 and

19. Without these freedoms, democracy is impossible. If Article 14 is withdrawn, the political pressures exercised by numerically large groups can tear the country apart by leading it to the legislation to pick and choose favoured areas and favourite classes for preferential treatment.

From these observations, which are binding on us, the principle which emerges is that "equality" is the essence of democracy and, accordingly a basic feature of the Constitution. This test is very important. Free and fair elections per se may not constitute a basic feature of the Constitution. On their own, they do not constitute basic feature. However, free and fair election as a part of representative democracy is an essential feature as held in the Indira Nehru Gandhi v. Raj Narain (Election case). Similarly, federalism is an important principle of constitutional law. The word 'federalism' is not in the preamble. However, as stated above, its features are delineated over various provisions of the Constitution like Articles 245, 246 and 301 and the three lists in the seventh schedule to the Constitution.

However, there is a difference between formal equality and egalitarian equality which will be discussed later on.

The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.

CONCEPT OF RESERVATION:

Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.

Our Constitution has, however, incorporated the word 'reservation' in Article 16(4) which word is not there in Article 15(4). Therefore, the word 'reservation' as a subject of Article 16(4) is different from the word 'reservation' as a general concept.

Applying the above test, we have to consider the word 'reservation' in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election Case14.

JUSTICE, SOCIAL, ECONOMIC AND POLITICAL IS PROVIDED NOT ONLY IN PART-IV (DIRECTIVE PRINCIPLES) BUT ALSO IN PART-III (FUNDAMENTAL RIGHTS):

India is constituted into a sovereign, democratic republic to secure to all its citizens, fraternity assuring the dignity of the individual and the unity of the nation. The sovereign, democratic republic exists to promote fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because the objectives of the State can be realized only in and through the individuals. Therefore, rights conferred on citizens and non-citizens are not merely individual or personal rights. They have a large social and political content, because the objectives of the Constitution cannot be otherwise realized. Fundamental rights represent the claims of the individual and the restrictions thereon are the claims of the society. Article 38 in Part- IV is the only Article which refers to justice, social, economic and political. However, the concept of justice is not limited only to directive principles. There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as 'untouchable' and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part-III also provide for political and social justice.

This discussion is important because in the present case, we are concerned with reservation. Balancing a fundamental right to property vis-`-vis Articles 39(b) and 39(c) as in Kesavananda Bharati13 and Minerva Mills7 cannot be equated with the facts of the present case. In the present case, we are concerned with the right of an individual of equal opportunity on one hand and preferential treatment to an individual belonging to a backward class in order to bring about equal level- playing field in the matter of public employment. Therefore, in the present case, we are concerned with conflicting claims within the concept of 'justice, social, economic and political', which concept as stated above exists both in Part-III and Part-IV of the Constitution. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of 'public employment' unlike right to property is socialistic and, therefore, falls within the preamble to the Constitution which states that WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. Similarly, the preamble mentions the objective to be achieved, namely, justice, social, economic and political. Therefore, the concept of 'equality of opportunity' in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims.

EQUITY, JUSTICE AND MERIT:

The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard-concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the government in the matter of reservation under Article 16(4) as well as Article 16(4A) come in the form of Article 335 of the Constitution.

Merit is not a fixed absolute concept. Amartya Sen, in a book, Meritocracy and Economic Inequality, edited by Kenneth Arrow, points out that merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another. The difficulty is that there is no natural order of 'merit' independent of our value system. The content of merit is context- specific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on 'merit' depends on how that policy is designed. Unfortunately, in the present case, the debate before us on this point has taken place in an empirical vacuum. The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of "extent of reservation" is not an absolute concept and like merit it is context- specific.

The point which we are emphasizing is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact-situation in each case. Therefore, 'vesting of the power' by an enabling provision may be constitutionally valid and yet 'exercise of the power' by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.

RESERVATION AND AFFIRMATIVE ACTION:

Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide level- playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute "equality of opportunity".

It is the equality "in fact" which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.

Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual- specific whereas reservation in Article 16(4) and Article 16(4A) is enabling. The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise.

EXTENT OF RESERVATION:

Social justice is one of the sub-divisions of the concept of justice. It is concerned with the distribution of benefits and burdens throughout a society as it results from social institutions property systems, public organisations etc. The problem is what should be the basis of distribution? Writers like Raphael, Mill and Hume define 'social justice' in terms of rights. Other writers like Hayek and Spencer define 'social justice' in terms of deserts. Socialist writers define 'social justice' in terms of need. Therefore, there are three criteria to judge the basis of distribution, namely, rights, deserts or need. These three criteria can be put under two concepts of equality "formal equality" and "proportional equality". "Formal equality" means that law treats everyone equal and does not favour anyone either because he belongs to the advantaged section of the society or to the disadvantaged section of the society. Concept of "proportional equality" expects the States to take affirmative action in favour of disadvantaged sections of the society within the framework of liberal democracy.

Under the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not his but social. The question of extent of reservation involves two questions:

1. Whether there is any upper limit beyond which reservation is not permissible?

2. Whether there is any limit to which seats can be reserved in a particular year; in other words the issue is whether the percentage limit applies only on the total number of posts in the cadre or to the percentage of posts advertised every year as well?

Reading the above judgments, we are of the view that the concept of 'catch-up' rule and 'consequential seniority' are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of 'consequential seniority' the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that 'equality code' under Article 14, 15 and 16 is violated by deletion of the 'catch-up' rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the 'catch-up' rule nor the concept of 'consequential seniority' are implicit in clauses (1) and (4) of Article 16.

The key question which arises in the matter of the challenge to the constitutional validity of the impugned amending Acts is - whether the constitutional limitations on the amending power of the Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution.

In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the 'width test' and the test of 'identity'. As stated hereinabove, the concept of the 'catch-up' rule and 'consequential seniority' are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism etc. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, 'backwardness' and 'inadequacy of representation'. As stated above equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4A) is derived from clause (4) of Article 16. Clause (4A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word "amendment" connotes change. The question is whether the impugned amendments discard the original constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicate that the impugned amendments have been promulgated by the Parliament to overrule the decision of this court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this court is the law of the land. The judgments of this court in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3 and Indra Sawhney5, were judgments delivered by this court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well- settled that the Parliament while enacting a law does not provide content to the "right". The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this court will certainly set aside and strike down such legislation. Applying the "width test", we do not find obliteration of any of the constitutional limitations. Applying the test of "identity", we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets "formal equality" and "proportional equality". Proportional equality is equality "in fact" whereas formal equality is equality "in law". Formal equality exists in the Rule of Law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.

The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending power in Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise. [See: Kihoto Hollohan v. Zachillhu & Others ].

Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-Second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4A) and Article 16(4B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied-with by the States, the provision of reservation cannot be faulted. Articles 16(4A) and 16(4B) are classifications within the principle of equality under Article 16(4).

In conclusion, we may quote the words of Rubenfeld:

"ignoring our commitments may make us rationale but not free. It cannot make us maintain our constitutional identity".

ROLE OF ENABLING PROVISIONS IN THE CONTEXT OF ARTICLE 14:

The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. [Emphasis added]. Every discretionary power is not necessarily discriminatory. According to the Constitutional Law of India, by H.M. Seervai, 4th Edn. 546, equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of 'guided power'. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred would be corrected by the Courts. This is the basic principle behind the enabling provisions which are incorporated in Articles 16(4A) and 16(4B). Enabling provisions are permissive in nature. They are enacted to balance equality with positive discrimination. The constitutional law is the law of evolving concepts. Some of them are generic others have to be identified and valued. The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-`-vis efficiency which depends on the fact- situation only and not abstract principle of equality in Article 14 as spelt out in detail in Articles 15 and 16. Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the second part is a positive concept which is enough to validate equalizing measures depending upon the fact-situation.

It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for backward classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4A) and 16(4B) is that the State is empowered to identify and recognize the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between 'equality in law' and 'equality in fact' (See: 'Affirmative Action' by William Darity). If Articles 16(4A) and 16(4B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4A) and 16(4B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4A) and 16(4B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of 'guided power'. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.

APPLICATION OF DOCTRINE OF "GUIDED POWER" ARTICLE 335 :

Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-Second Amendment) Act, 2000, we find that the said proviso has a nexus with Articles 16(4A) and 16(4B). Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring discretionary power on the State to relax qualifying marks or standards of evaluation. Therefore, the question before us is whether the State could be empowered to relax qualifying marks or standards for reservation in matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in Article 335 is not obliterated. Reason is that "efficiency" is variable factor. It is for the concerned State to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.

In conclusion, we reiterate that the object behind the impugned Constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and the constitutional limitations indicated above.

TESTS TO JUDGE THE VALIDITY OF THE IMPUGNED STATE ACTS:

As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.

Are the impugned amendments making an inroad into the balance struck by the judgment of this court in the case of Indra Sawhney:

In Indra Sawhney5 the equality which was protected by the rule of 50%, was by balancing the rights of the general category vis-`-vis the rights of BC en bloc consisting of OBC, SC and ST. On the other hand, in the present case the question which we are required to answer is: whether within the egalitarian equality, indicated by Article 16(4), the sub-classification in favour of SC and ST is in principle constitutionally valid. Article 16(4A) is inspired by the observations in Indra Sawhney5 vide para 802 and 803 in which this Court has unequivocally observed that in order to avoid lumping of OBC, SC and ST which would make OBC take away all the vacancies leaving SC and ST high and dry, the concerned State was entitled to categorise and sub- classify SCs and STs on one hand vis-`-vis OBC on the other hand. We quote hereinbelow paragraphs 802 and 803 of the judgment in Indra Sawhney5 :

"802. We are of the opinion that there is no constitutional or legal bar to a State categorizing the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., gold-smiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that gold- smiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitably result would be that gold-smiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-classification is, however, a matter for the Commission and the State - and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group-A comprises "Aboriginal tribes, Vimukta jatis, Nomadic and semi-nomadic tribes etc.". Group-B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group-C pertains to "Scheduled Castes converts to Christianity and their progeny", while Group-D comprises all other classes/communities/groups, which are not included in groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Balram [1972] 3 S.C.R. 247 at

286. This is merely to show that even among backward classes, there can be a sub-

classification on a reasonable basis.

(emphasis supplied) "803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., "backward class of citizens". It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression "backward class of citizens" and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, O.B.Cs. will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say - we may reiterate - that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law."

(emphasis supplied) Therefore, while judging the width and the ambit of Article 16(4A) we must ascertain whether such sub- classification is permissible under the Constitution. The sub-classification between "OBC" on one hand and "SC and ST" on the other hand is held to be constitutionally permissible in Indra Sawhney5. In the said judgment it has been held that the State could make such sub- classification between SCs and STs vis-`-vis OBC. It refers to sub-classification within the egalitarian equality (vide paras 802 and 803). Therefore, Article 16(4A) follows the line suggested by this Court in Indra Sawhney5 . In Indra Sawhney5 on the other hand vide para 829 this Court has struck a balance between formal equality and egalitarian equality by laying down the rule of 50% (ceiling-limit) for the entire BC as "a class apart" vis-`-vis GC. Therefore, in our view, equality as a concept is retained even under Article 16(4A) which is carved out of Article 16(4).

As stated above, Article 14 enables classification. A classification must be founded on intelligible differential which distinguishes those that are grouped together from others. The differential must have a rational relation to the object sought to be achieved by the law under challenge. In Indra Sawhney5 an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to making of classification. Article 16(4B) is also an enabling provision. It seeks to make classification on the basis of the differential between current vacancies and carry-forward vacancies. In the case of Article 16(4B) we must keep in mind that following the judgment in R.K. Sabharwal8 the concept of post-based roster is introduced. Consequently, specific slots for OBC, SC and ST as well as GC have to be maintained in the roster. For want of candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category. Therefore, by Article 16(4B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. Article 16(4B) is a direct consequence of the judgment of this court in R.K. Sabharwal8 by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4A) and 16(4B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4A) and 16(4B) together form part of the same scheme. As stated above, Articles 16(4A) and 16(4B) are both inspired by observations of the Supreme Court in Indra Sawhney5 and R.K. Sabharwal8. They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4A) and 16(4B). The impugned constitutional amendments, therefore, do not obliterate equality.

The test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply "the width test". In applying "the width test" we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the concerned State has identified and valued the circumstances justifying it to make reservation. This question has to be decided case- wise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on facts of each case. The judgment in Indra Sawhney5 does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the concerned State will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/ STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.

The constitutional principle of equality is inherent in the Rule of Law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The Rule of Law is satisfied when laws are applied or enforced equally, that is, evenhandedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on case to case basis.

Existence of power cannot be denied on the ground that it is likely to be abused. As against this, it has been held vide para 650 of Kesavananda Bharati13 that where the nature of the power granted by the Constitution is in doubt then the Court has to take into account the consequences that might ensue by interpreting the same as an unlimited power. However, in the present case there is neither any dispute about the existence of the power nor is there any dispute about the nature of the power of amendment. The issue involved in the present case is concerning the width of the power. The power to amend is an enumerated power in the Constitution and, therefore, its limitations, if any, must be found in the Constitution itself. The concept of reservation in Article 16(4) is hedged by three constitutional requirements, namely, backwardness of a class, inadequacy of representation in public employment of that class and overall efficiency of the administration. These requirements are not obliterated by the impugned constitutional amendments. Reservation is not in issue. What is in issue is the extent of reservation. If the extent of reservation is excessive then it makes an inroad into the principle of equality in Article 16(1). Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements.

At this stage, one aspect needs to be mentioned. Social justice is concerned with the distribution of benefits and burdens. The basis of distribution is the area of conflict between rights, needs and means. These three criteria can be put under two concepts of equality, namely, "formal equality" and "proportional equality". Formal equality means that law treats everyone equal. Concept of egalitarian equality is the concept of proportional equality and it expects the States to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity. In Indra Sawhney5 all the judges except Pandian, J. held that the "means test" should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney5 this Court has, therefore, accepted caste as determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above, we are bound by the decision in Indra Sawhney5. The question as to the "determinant" of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in Indra Sawhney has evolved numerical benckmarks like ceiling-limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination.

CONCLUSION:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.

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

However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

Supreme Court of India

Jarnail Singh vs Lachhmi Narain Gupta . on 26 September, 2018 (five-judge bench )

We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that Constitutional Courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub- group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. One of the most important principles that has been frequently applied in constitutional law is the doctrine of harmonious interpretation. When Articles 14 and 16 are harmoniously interpreted along with other Articles 341 and 342, it is clear that Parliament will have complete freedom to include or exclude persons from the Presidential Lists based on relevant factors. Similarly, Constitutional Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India. We do not agree with Balakrishnan, C.J.’s statement in Ashoka Kumar Thakur (supra) that the creamy layer principle is merely a principle of identification and not a principle of equality.

Therefore, when Nagaraj (supra) applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’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 be revisited, and consequently, there is no need to refer Nagaraj (supra) to a seven-Judge Bench. We may also add at this juncture that Nagaraj (supra) is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006.

Thus, we conclude that the judgment in Nagaraj (supra) does not need to be referred to a seven–Judge Bench. However, the conclusion in Nagaraj (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (supra) is held to be invalid to this extent.

Supreme Court of India

Jaishri Laxmanrao Patil vs The Chief Minister And Ors. on 5 May, 2021

Bench: Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta, S. Ravindra Bhat

Maratha reservation struck down:

A bench comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat reiterated that the 50% ceiling limit on reservation was based on the principle of equality under Article 14 and refused to revisit the dictum laid down in the Indra Sawhney case.

"To change the 50% limit is to have a society which is not founded on equality but based on caste-rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus,answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets", Justice Bhushan's judgment said.

On the question of power of states to identify SEBCs , the position is a bit different:

Supreme Court has held by 3:2 majority that the 102nd Constitution Amendment has abrogated the power of states to identify "Socially and Educationally Backward Classes(SEBCs)".

The majority (Justices S. Ravindra Bhat, with whom Justices L. Nageswara Rao and Hemant Gupta agreed with) observed that the power of identification of SEBCs hitherto exercised by the states now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A and that it does not in any manner violate the essential features or basic structure of the Constitution.

Justice Bhushan(with Justice Nazeer) and Justice Bhat(with whom Justices Rao and Gupta agreed) expressed different views regarding interpretation of the said Amendment.

The majority judgment interprets the 102nd Amendment as follows:

(i) By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.

(ii) The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1).

(iii) The reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term "the Central List" is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2). (iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).

(v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.

(vi) The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.

(vii) Till the publication of the notification mentioned in direction

(vi), the existing lists operating in all states and union territories, and for the purposes 132 of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.

(ACADEMIC READ on this judgment , see on what points they agree and on what they disagree)

Below is the conclusion of Justice Bhushan concurred by Justice Abdul Nazeer:

Para 444. From our foregoing discussion and finding we arrive at following conclusions:

(1) The greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is:

(i)Reservation under Article 16(4) should not exceed 50%.

(ii)For exceeding reservation beyond 50%, extra-ordinary circumstances as indicated in paragraph 810 of Justice Jeevan Reddy should exist for which extreme caution is to be exercised.

(2) The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.

(3) We are of the considered opinion that the cap on percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4) . The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable. (4) Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational facilities to the members of backward class free of cost giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant.

(5) There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.

(6) When the Constitution Bench in Indra

Sawhney held that 50% is upper limit of

reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.

(7) We find that the Constitution Bench judgment in Indra Sawhney is also fully applicable in reference to Article 15(4) of the Constitution of India.

(8) The setting aside of 50% ceiling by eleven- Judge Bench in T.M.A. Pai Foundation case as was laid down by St. Stephen’s case i.e. 50% ceiling in admission in aided Minority Instructions has no bearing on the principle of 50% ceiling laid down by Indra Sawhney with respect to reservation. The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for Reservation under Articles 16(4) and 15(4) of the Constitution. (9) The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”. (10) We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression “on being out of the main stream of national life”, is a social test, which also needs to be fulfilled for a case to be covered by exception.

(11) We do not find any substance in any of the 10 grounds urged by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring the judgment of Indra Sawhney to a larger Bench.

(12) What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration.

(13) The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness. The Commission has completely misread the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached.

(14) The Commission and the High Court found existence of the extra-ordinary situations with regard to exceeding 50% ceiling in respect to grant of separate reservation to Maratha because the population of backward class is 80% and reservation limit is only 50%, containing the Maratha in pre-existing reservation for OBC shall not be justice to them, which circumstances is not covered under the para meters indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling.

(15) We have found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 per cent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any extra-or- dinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.

(16) The proposition is well settled that Commissions’ reports are to be looked into with deference. However, one of the parameter of scrutiny of Commission’s report as approved by this Court is that on the basis of data and materials referred to in the report whether conclusions arrived by the Commission are justified.

(17) The measures taken under Article 15(4) and 16(4) can be examined as to whether they violate any constitutional principle, and are in conformity with the rights under Article 14, 15 and 16 of the Constitution. The scrutiny of measures taken by the State, either executive or legislative, thus, has to pass test of the constitutional scrutiny.

(18) The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream to enable to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance.

(19) We have examined the issues regarding representation of Marathas in State services on the basis of facts and materials compiling by Commission and obtained from States and other sources. The representation of Marathas in public services in Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53% computed from out of the open category filled posts, is adequate and satisfactory representation of Maratha community. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not adequate in public services.

(20) The Constitution pre-condition for

providing reservation as mandated by Article

16(4) is that the backward class is not

adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented.

Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation.

(21) The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable.

(22) We having disapproved the grant of

reservation under Article 16(4) to Maratha

community, the said decision becomes relevant and shall certainly have effect on the decision of the Commission holding Maratha to be socially and educationally backward. Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward.

From the facts and figures as noted by

Gaikwad Commission in its report regarding

representation of Marathas in public services, the percentage of Marathas in admission to Engineering, Medical Colleges and other disciplines, their representation in higher academic posts, we are of the view that conclusion drawn by the Commission is not supportable from the data collected. The data collected and tabled by the Commission as noted in the report clearly proves that Marathas are not socially and educationally backward class. (23) The elementary principle of interpreting the Constitution or statute is to look into the words used in the statute, when the language is clear, the intention of the Legislature is to be gathered from the language used. The aid to interpretation is resorted to only when there is some ambiguity in words or expression used in the statute. The rule of harmonious construction, the rule of reading of the provisions together as also rule of giving effect to the purpose of the statute, and few other principles of interpretation are called in question when aids to construction are necessary in particular context.

(24)The shift from literal rule to purposive and objective interpretation of a constitutional document is adopted since the Constitution is not to be interpreted in static and rigid manner, the Constitution is an organic and living document which needs to be interpreted with cardinal principals and objectives of the Constitution. The shift from literal to purposive method of interpretation has been now more and more, being adopted for interpreting a constitutional document. (25)The law is well settled in this county that Parliamentary Committee reports including speech given by the Minister in the Parliament are relevant materials to ascertain the intention of Parliament while construing constitutional provisions.

(26) We are of the considered opinion that the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per sub- clause(9) of Article 338B which mandatory requirement cannot be by-passed by any State while the State takes any major policy decision.

Sub-clause (9) of Article 338B uses the expression ‘consultation’. It is true that the expression ‘consultation’ is not to be read as concurrence but the ‘consultation’ has to be effective and meaningful. The object of consultation is that ‘consultee’ shall place the relevant material before person from whom ‘consultation’ is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation.

(27) It is, thus, clear as sun light that Parliamentary intention discernible from Select Committee report and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State.

(28) When the Parliamentary intention is discernable and admissible as aid to statutory interpretation, we see no reason not to interpret Article 342A in manner as per the intention of the Parliament noticed above. (29) We are of the view that word ‘Central’ in Article 342A (2) was used for purpose and object. The use of ‘Central’ was only with the intent to limit the list issued by the President to Central services. It is well settled rule of interpretation that no word in a statute or Constitution is used without any purpose. Word ‘Central’ has to be given meaning and purpose. (30) When we have interpreted Article 342A to mean that Article 342A refers to 'Central List' which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since, the (26C) has been inserted in the context of Article 342A, if the context is list prepared by the State and it is State List, definition under (26C) shall not govern.

(31) We, thus, hold that Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.

(32) The Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold the constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018.

(16)O R D E R In view of the foregoing discussions and conclusions, we decide all the Civil Appeals and Writ Petitions in this batch of cases in following manner:

(1) C.A.No.3123 of 2020 and other civil appeals challenging the impugned judgment of the High Court dated 27.06.2019 are allowed. The impugned judgment of the High Court dated 27.06.2019 is set aside. The writ petitions filed by the appellants in the High Court are allowed with following effect:

(a) Section 2(j) of the Act, 2018 insofar as it declares Maratha community Education-

ally and Socially Backward Category is

held to be ultra vires to the Constitu-

tion and struck down.

(b) Section 4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it grants reservation under Article 15(4) to the extent of 12% of total seats in educational institutions including pri- vate institutions whether aided or unaided by the State, other than minority

educational institutions, is declared

ultra vires to the Constitution and

struck down.

(c) Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down.

(d) That admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue.

(e) The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha community in public services after the judgment of the High Court dated

27.06.2019 till order passed by this

Court on 09.09.2020 are saved. How-

ever, no further benefit can be claimed

by such Maratha students admitted in

different course or Maratha students who were appointed in public services in the State under Act, 2018.

(f) After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.

(2) The Writ Petition (C)No.914 of 2020, Writ Petition (C)No.915 of 2020, Writ Petition (C)No.504 of 2020 filed under Article 32 of the Constitution are disposed of as per above directions.

(3) Writ Petition No.938 of 2020 challenging the Constitutional validity of Constitution 102nd Amendment Act, 2018 is dismissed in view of the interpretation of Constitution 102nd Amendment Act, 2018 as above.

Below judgment is of Justice [S. RAVINDRA BHAT] in the same case:

Two issues arise with respect to the validity of provisions inserted by the 102nd Amendment Act. The first is a facial challenge inasmuch as the petitioner urges that without following the procedure indicated in the proviso to Article 368(2), i.e. seeking approval or ratification of atleast one half of the legislative assemblies of all the States, the amendment is void. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2).

In Sajjan Singh (supra), this Court held as follows:

The majority judgment, therefore decisively held that an interpretation which hinges on indirect impact of a provision, the amendment of which needs ratification of the states, does not violate the Constitution and that unless the amendment actually deletes or alters any of the Entries in the three lists of the Seventh Schedule, or directly amends an Article for which ratification is necessary, recourse to the proviso to Article 368 (2) was not necessary.

More recently, this issue was gone into in Kihoto Hollohan, where a challenge on the ground that all provisions of an amendment which introduced the Tenth Schedule were void for not following the procedure under the proviso to Article 368, were questioned. The Court proceeded to analyse every provision of the Tenth Schedule and held that para 7, which excluded the jurisdiction of all Courts, had the effect of divesting the jurisdiction of Courts under Articles 226 and 32 of the Constitution. In other words, the direct result of the amendment was to bar the jurisdiction of High Courts and thus, it directly impacted Chapter 5 of Part VI; a ratification was required by a majority of the States. Since that procedure was not followed, para 7 was held to be violative of the basic structure of the Constitution. The Court applied the doctrine of severability and held that the other parts of the amendment, contained in the Tenth Schedule did not need any such ratification and that para 7 alone would be severed on the ground of its being contrary to express constitutional provisions. This court ruled as follows:

“59. In Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC 845] a similar contention was raised against the validity of the Constitution (Seventeenth Amendment) Act, 1964 by which Article 31-A was again amended and 44 statutes were added to the Ninth Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. This Court noticed the question thus: (SCR p. 940) xxxxxx xxxxxx xxxxxx

76. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the ‘Committee on Defections’ as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic. The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

77. We accordingly hold on contentions (C) and (D): That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that ‘thereupon the Constitution shall stand amended’ the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.

That accordingly, the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (Fifty-second Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.

184. As far as the question of whether the amendment has the effect of violating the basic or essential features so far as it impacts the federal structure of the Constitution is concerned, what is noticeable is that past decisions have emphasized that a mere change brought about through amendments howsoever serious the impact, cannot per se be regarded as violative of the basic structure. In Raghunathrao Ganpatrao (supra)138 the deletion of Articles 291 and 362 of the Constitution, by amendment, was questioned on the ground that they affected the basic structure, or essential features of the Constitution. This court rejected the argument and held that:

“107. On a deep consideration of the entire scheme and content of the Constitution, we do not see any force in the above submissions. In the present case, there is no question of change of identity on account of the Twenty-sixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme or in its basic features, or in its basic form or in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of the writ petitioners and interveners, remains the same and unchanged.”

185. In N. Nagaraj (supra), this aspect was analysed in the following terms:

“For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending power of the Parliament, i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament……………………….

xxxxxx xxxxxx xxxxxx ……………..The values impose a positive duty on the State to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. They are to be informed.

Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like 138Ref. f.n. 104 secularism, democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and These principles are beyond the amending power of the Parliament.

Under the Indian Constitution, the word 'federalism' does not exist in the preamble. However, its principle (not in the strict sense as in U.S.A.) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the seventh schedule to the Constitution.

To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a pre- occupation with constitutional identity.

The word 'amendment' postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty.”

Conclusions

188. In view of the above discussion, my conclusions are as follows:

(1) Re Point No. 1: Indra Sawhney (supra) does not require to be referred to a larger bench nor does it require reconsideration in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society, for the reasons set out by Ashok Bhushan, J. and my reasons, in addition.

(2) Re Point No 2: The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case. I agree with the reasoning and conclusions of Ashok Bhushan, J. on this point. (3) Re Point No. 3: I agree with Ashok Bhushan, J. that the State Government, on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has not made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in Indra Sawhney. (4) Re Point No 4:Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?; and (5) Re. Point No. 5 Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India. On these two interrelated points of reference, my conclusions are as follows:

(i) By introduction of Articles 366 (26C) and 342A through the 102 nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.

(iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).

(v) The states’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.

(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India. (6) Re Point No. 6: Article 342A of the Constitution by denuding States power to legislate or classify in respect of “any backward class of citizens” does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India.

The reference is answered in the above terms.The appeals and writ petitions are therefore, disposed of in terms of the operative order of Bhushan, J. in para 444 of his Judgment.

Supreme Court of India

National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. (4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. (8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables. (9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

04. Article 15 & 16

.pdf

Download PDF • 1.03MB

Article 15 and article 16

CLASS TIMINGS

contact us

Menu