M. NAGARAJ AND ORS. v. UNION OF INDIA AND ORS

Citation: [2006] SUPP. 7 S.C.R. 336

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, K.G. BALAKRISHNAN, S.H. KAPADIA, C.K. THAKKER, P.K. BALASUBRAMANYAN

Case summary

M. NAGARAJ AND ORS. v. UNION OF INDIA AND ORS.pdf

Judgment text

M. NAGARAJ AND ORS. v. UNION OF INDIA AND ORS OCTOBER 19, 2006 [Y. K. SABHARWAL, CJ. , K. G. BALAKRISHNAN, S. H. KAPADIA, C. K. THAKKER AND P. K. BALASUBRAMANYAN, JJ. ] Constitution ofIndia, 1950; Articles 14, 16(/), (2), (3), (4), (4A) & (48), 47, 246, 335 and 368/Amendments Act 77th of 1995, 8/st of 2000 and 85th of 2001: Amendments in Constitution inserting Articles /6(4A) and 16(48)- Reservation in promotion-Extent of-Equality ofopportunity in employment- Altering ofbasic structure-Held: Principles set out in the Constitution should be interpreted by adopting a purposive approach- Secularism, democracy, reasonableness.

social justice are overarching principles providing linking factor for fundamental rights-Validity ofamendments in the Constitution is judged by app(ving the principle ofbasic structure-Equality is the essence of democracy and thus a basic feature ofthe Constitutio~Fundamental rights could be abridged but not destroyed-Object and purpose of the particular feature and consequences ofits denial on the integrity ofthe Constitution has to be determined/tested in order lo ascertain whether it forms part ofthe basic structure ofthe Constitutio~onjlicting claim ofindividual right under Article 16(! ) and preferential treatment given to a backward class have to be balanced-Application of concept of equality in public ef!

lployment depend upon quantifiable data in each case-Since backward class seeks justice and general class seeks equity in public employment, reservation has to be used in limited sense else it would perpetuate criticism-Exercise ofpower by the State may be arbitrary if it fails to identifY and measure backwardness and inadequacy keeping in view the efficiency ofservice in terms ofArticle 335 of the Constitution-Equality in terms of Article 16(2) is individual specific- However, reservation as provided under Articles 16(4), ! 6(4)(A) is enabling- State has to ensure that no class prospers at the cost of other class and no person suffers because of backwardness-Applying the necessary tests/ principles, amendments in question do not alter the structure ofArticles 14, 15 and 16 ofthe Constitution-Equality is not violated by mere conferment of M. NAGARAJ v. U. O. l.

337 discretionary power but it is violated by arbitrary exercise of the power- Enabling provisions are permissible in nature as they are enacted to balance equality and positive discrimination-Since efficiency is a valuable factor, the State has to decide about the overall efficiency ofthe system-Ifrelaxation is excessive/violates the substantive limits on the width of the power, such reservation falls and liable to be set aside-Articles 16(4), 16(4A) and 16(48) together form part ofthe same constitutional scheme and they have nexus with Articles 17 and 46 of the Constitution-Articles 16(4A) and 16(48) are classification within the principle of equality under Article 16(4) of the Constitution-Provided the Constitutional requirements in terms of ceiling limit of inadequacy of representation and overall administrative efficiency have been taken care ofby the State concerned and their existence shown in each case-Hence the classification envisaged by Articles /6(4A) and 16(48) upheld as lhe impugned amendments do not obliterate equality/alter the basic structure ofthe Constitution-Desirability ofreservation in terms ofReservation policy could be decided by the State, it could not be inte1fered by Supreme Court so long as parameters in terms ofArticle J6(4)(A) are maintained.

Catch up rule-Scope (){-Held: Concept of catch-up rule and consequential seniority are judicially evolved concepts to control the extent of reservation-Since catch-up rule is not implicit in Clauses (/) to (4) of Article 16, it cannot bind the amending power of the Parliament-State Government has to ascertain the cadre strength as a unit in the operation of the roster in order to ascertain adequacy of representation of a class/group in service-However, the upper ceiling limit of50% should not be exceeded- Article 16(4)(A) gives freedom to the State to provide for reservation in the matter ofpromotionfor Scheduled Castes and Scheduled Tribes-In the absence ofcompelling reasons ofbackwardness and inadequacy ofrepresentation, the State cannot make reservation-Besides, it should also keep in view overall efficiency in terms ofArticle 335. Amendments in the Constitution-Judicial Review-Scope ()(-Discussed.

Basic structure of the Constitution-Determination of-Width test and identity test-Applicability of-Discussed. 'Constituent power'-Meaning of 'Equality of opportunity'-Meaning of 'Fundamental rights'-Meaning and scope of limitation on the amending power of the Parliament-Held: Since . fundamental rights could be abridged but could not be destroyed. there exists no express limitation on the amending power of the Parliament. Limitation on Legislative power vis--a- -vis Judicial Revie11~Discussed. 'Merits', 'contents of reservation'-Meaning of Substantive limitation and Procedural Limitation-Meoning of in the context of exercise of constitutional power by legislature.

Doctrine: Doctrine of basic structure-Meaning and scope of Words and Phrases: 'Equality', 'formal equality', 'proportional equality', 'equality in law', 'equality in fact' and 'equality of opportunity'-Meaning of Petitioners have invoked Article 32 of the Constitution for issuing a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment) Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17. 6. 1995 providing for reservation in promotion with consequential seniority. Petitioners alleged that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution.

The questions which arose for consideration in these writ petitions were about the nature and extent of the judicial review required to be applied in judging the validity of the constitutional amendments in the context of the. doctrine of basic structure; as to whether there is any upper limit beyond which reservation is not permissible; as to whether there is any limit to which seats can be reserved in a particular year; as to whether the constitutional limitations on the :imending power of the Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution; and as to whether by virtue ofthe impugned constitutional amendments, the power of the Parliament is so enlarged so as to obliterate any or all of the constitutional limitations and requirements. M. NAGARAJ v. U. 0. 1.

339 Petitioner contended that the amendments in question seek to alter the fundamental right of equality which is part of the basic structure of the Constitution; that the equality in the context of Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority; that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1); that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency; that in the decided case of Indra Sawhney, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion; that contrary to the said judgment, the Parliament enacted the Constitution (Seventy-Seventh Amendment) Act, 1995 and Article 16(4A) was inserted, which reintroduced reservation in promotion; that if accelerated seniorjty is given to the roster-point promotees, the consequences would be disastrous; that the consequences of the impugned Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre; that equality is a part of the basic structure; that Article 16 of the Constitution has to be read with Article 14 and with several Articles in Part-JV of the Constitution; that the Constitution places an important significance on public employment and the rule of equality, inasmuch as, a specific guarantee is given under Article 16 protecting equality principles in public employment; that the Constitution makers had given importance to public employment by making a special provision in the form of Part XIV providing certain rights and protection to the office holders in the services of the Union and the States; that Article 335 recognizes the importance of efficiency in administration and the various provisions of the Constitution indicate that public employment was and is even today of central concern to the Constitution; that clause (4) of Article 16 is an instance of the classification implicit and permitted by Article 16(1) and that this view of equality did not dilute the importance of Article 16(1) or Article 16(2) but merely treated Article 16(4) as an instance of the classification; that this relationship ofsub-clauses within Article 16 is not an invitation for reverse discrimination and that, equality of opportunity cannot be overruled by affirmative action; that "equality in employment" consists of equality of opportunity (Article 16(1)), anti-discrimination (Article 16(2)), special classification (Article 16(3)), affirmative action (Article 16(4)) which does not obliterate equality but which stands for classification within equality), and lastly, efficiency; that as regards the words 'nothing in this article' in Article 16(4), these words cannot wipe out Article 16(1) and, therefore, they have a limited meaning; that equality in the Constitution conceives the individual right to be treated fairly without discrimination in the matter of equality of opportunity, it also conceives of affirmative action in Articles 15(4) and Article 16(4).

It enables classification as a basis for enabling preferences and benefits for specific beneficiary groups and that neither classification nor affirmative action can obliterate the individual right to equal opportunity; that a balance has to be evolved to promote equal opportunities while protecting individual rights; that as an individual right in Article 16(1), enforceability is provided for whereas "group expectation" in Article 16(4) is not a fundamental right but it is an enabling power which is not coupled with duty; that if the structural balance of equality in the light of the efficiency is disturbed and if the individual right is encroached upon by excessive support for group expectations, it would amount to reverse discrimination; that the limited power of amendment cannot become an unlimited one; that a limited amendment power is one of the basic features of the Constitution and, therefore, limits on that power cannot be destroyed; that Parliament cannot under Article 368 expand its amending power so as to acquire for itself the right to abrogate the Constitution and if the width of the amendment invites abrogation of the basic structure then such amendment must fail; that directive principles cannot be used to undermine the basic structure principles underlying fundamental rights including principles of equality, fundamental freedoms, due process, religious freedom and judicial enforcement; that quotas are subject to quantitative limits and qualitative exclusions; that, there is a distinction between quota limits and ceiling-limits/maximum permissible reservation limits which comes under the category of quantitative limits; quotas are also subject to qualitative exclusions like creamy layer; that in numerous judgments and in particular in Indra Sawhney, M.

G. Badaappanavar, Ajit Singh (II), the equality of opportunity in public employment is clarified in order to structure and balance Articles 16(1) and 16(4~; that Articles 16(4A) and 16(48) and the changes to Article 335 are merely enabling provisions and that in a given case if the exercise undertaken by the appropriate Government is found to bt arbitrary, this Court will set it right; that ingressing the basic structure is a per se violation of the Constitution; that the basis for impugned amendments is to overrule judicial decisions based on holistic interpretation of the Constitution and its basic values, concepts and structure; that the 77th Amendment introducing Article 16(4A) has the effect of nullifying the decision in the M. NAGARAJ v. U. O. l. 341 case of Indra Sawhney; that, the 8Jst Amendment introducing Article 16(48) has been brought in to nullify the effect of the decision in R. K. Sabharwal & Ors. v.

State ofPunjab and Ors; that similarly the Constitution (Eighty-Second Amendment) Act introducing the proviso to Article 335 has been introduced to nullify the effect of the decision in the case of Indra Sawhney and a host of other cases, which emphasize the importance of maintaining efficiency in administration; that the 85th Amendment adding the words 'with consequential seniority' in Article 16(4A) has been made to nullify the decision in Ajit Singh (ff); that the impugned amendments are violative of the basic structure and the fundamental values of the Constitution articulated in the preamble and encapsulated in Articles 14, 16 and 19; that, they violate the fundamental postulates of equality, justice, rule of law and secularism as enshrined in the Constitution and that they violate the fundamental role of the Supreme Court as interpreter of the Constitution; that the impugned amendments create an untrammelled, unrestrained and unconstitutional regime of reservations which destroys the judicial power and which undermines the efficacy of judicial review which is an integral part of rule of law; that Articles 14 and 16 have to be read with Article 335 as originally promulgated; that the impugned amendments invade the twin principle of efficiency, merit and the morale of public services and the foundation of good governance; and that the impugned amendments open the floodgates of disunity, disharmony and disintegration relied on.

Respondents submitted that the power of amendment under Article 368 is a 'constituent' power and not a 'constituted power'; that that there are no implied limitations on the constituent power under Article 368; that the power under Article 368 has to keep tile Constitution in repair as and when it becomes necessary and thereby protect and preserve the basic structure of the Constitution; that an interpretation placed by the Supreme Court on any provision of the Constitution gets inbuilt in the provisions interpreted. Such articles are capable of amendment under Article 368. Such change of the law so declared by the Supreme Court will not merely for that reason alone violate the basic structure of the Constitution or amount to usurpation of judicial power; that law has to change. It requires amendments to the Constitution according to the needs of time and needs of society.

It is an ongoing process ofjudicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure of the Constitution; that on every occasion when a constitutional matter comes before the Court, the meaning of the provisions of the Constitution will call for interpretation, but every interpretation of the Article does not become a basic feature of the Constitution; that there are no implied limitations on the power of the Parliament under Article 368 when it seeks to amend the Constitution; that the validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the Constitution; that amendments for giving effect to the directive principles cannot offend the basic structure of the Constitution; that the amendments which may abrogate individual rights but which promote Constitutional ideal of 'justice, social, economic and political' and the ideal of 'equality of status' are not liable to be struck down under Article 14 or Article 16(1) and consequently, such amendments cannot violate the basic structure of the Constitution; that the amendments to the Constitution which are aimed at removing social and economic disparities cannot offend the basic structure; that the concepts flowing from the preamble to the Constitution constitute the basic structure; that, basic structure is not found in a particular Article of the Constitution; and except the fundamental right to live, in Article 21 read with Article 14, no particular Article in Part-III is a basic feature; that equality mentioned in Articles 14 and 16 is not to be equated to the equality which is a basic feature of the Constitution; that the principle of balancing of rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution; that basic feature of the Constitution consists of constitutional axioms like constitutional supremacy, and democratic form of Government, secularism, separation of powers etc.

; that Article 16(4) is a part of the Constitution as originally enacted; that the exercise of the power by the delegate under Article 16(4) will override Article 16(1); It is not by virtue of the power of the delegate, but it is by virtue of constituent power itself having authorized such exercise by the delegate under Article 16(4), that article 16(1) shall stand overruled; that the only limitation on the power of delegate is that it should act within four corners of Article 16(4), namely, backward classes, which in the opinion of the State are not adequately represented in public employment.

If this condition precedent is satisfied, a reservation will override Article 16(1) on account of the words 'nothing in this Article shall prevent the State'; that the right to consideration for promotion in service matters is not a basic feature; that Articles 16(4A) and 16(4B) are only enabling provisions; that, the constitutionality of the enabling power in Articles 16(4A) and 16(4B) is not to be tested with M. NAGARAJ v. U. 0. 1. 343 reference to the exercise of the power or manner of exercise ofsuch power and that the impugned amendments have maintained the structure of Articles 16(1) to 16(4) intact; that the impugned amendments have retained reservations at the recruitment level inconformity with the judgment in Indra Sawhney, which has confined Article 16(4) only to initial appointments; that Article 16(4A) is a special provision which provides for reservation for promotion only to SCs and STs. ; that under Article t6(4A), reservation is limited.

It is not to the extent of 50% but it is restricted only to SCs and STs, and, therefore, the "risk element" pointed out in Indra Sawhney stands reduced; that to carve out SCs/STs and make a separate classification is not only constitutional, but it is a constitutional obligation to do so under Article 46; that Article 16(4) is an overriding provision over Article 16(1) and if Article 16(4) cannot be said to constitute reverse discrimination then Article 16(4A) also cannot constitute reverse discrimination; that this Court has taken care of the interests of the general category by placing a ceiling on filling-up of vacancies only to a maximum of 50% for reservation; and that the amendment made by Article 16(4B) makes an exception to 50% ceiling-limit imposed by Indra Sawhney, by providing that the vacancies of previous years will not be considered with the current year's vacancies; Upholding the constitutional validity of the Constitutional Amendments Acts, as referred, the Court HELD: 1.

1. Constitution sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges. (369-B, CJ 1. 2. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights.

It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. 1369-D, El 1. 3. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. The Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. 1369-F, GI Sakal Papers (P) L! d & Ors. v. Union ofIndia and Ors. , AIR (1962) SC 305; A. K. Gopalan v. State of Madras AIR (1950) SC 27 and Maneka Gandhi v. Union ofIndia and Anr. , AIR (1978) SC 597, referred to. 2. 1.

The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine has essentially developed from the German Constitution. This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings. 1371-BI 2. 2. The principles of federalism, secularism, reasonableness and socialism etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even ifthey are not expressly stated in the form of rules. 1372-A, Bl S. R. Bommai & Ors etc. v. Union ofIndia & Ors. etc. AIR (1994) SC 1918, relied on. 2. 3. In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature.

Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i. e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure. 1372-C, DI 2. 4. The theory of basic structure is based on the concept of M. NAGARAJ v. U. 0. 1. 345 constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. 1373-CI 2. 5. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day. 1373-FI Kesavananda Bharati Sripadagalvaru and Ors. v. State ofKera/a and Anr. , 119731 4 SCC 225, followed. 3. 1. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. They are to be informed.

Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of the Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. 1372-E, F, GI 3. 2. Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our constitution works because of its generalities, and because of the good sense of the Judges when interpreting it.

It is that informed freedom of action of the Judges that helps to preserve and protect our basic document of governance. (374-B, q Minerva Mills Ltd. & Ors. v. Union ofIndia & Ors. , 11981[ 1SCR206, followed. 'Challenge to the Living Constitution' by Herman Belz, referred to. 3. 3. 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 ifjudicial, 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.

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. [374-D, E, Fl 3. 4. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution 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 the Constitution. "Equality" is the essence of democracy and, accordingly a basic feature of the Constitution. (374-F, G, H; 375-A, El Minerva Mills Ltd. & Ors. v. Union ofIndia & Ors. , (1981 J 1 SCR 206 and Indira Nehru Gandhi v. Raj Narain (Election Case) [19761 2 SCR 347, re. lied on. 3. 5. 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.

The theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged. [375-H; 376-A, Bl 3. 6. Once it is held that fundamental rights could be abridged but not destroyed and once it is further held that several features of the Constitution cannot be destroyed, the concept of 'express limitation' on the amending power loses its force for a precise formulation of the basic feature of the Constitution and for the courts to pronounce on the validity of a constitutional amendment. [376-C) 3. 7. For determining whether a particular feature of the Constitution M. NAGARA. I v. U. 0. 1. 347 is a part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country's governance.

Applying the above test to the facts of the present case, it is relevant to note that the concept of 'equality' like the concept of 'representative democracy' or 'secularism' is delineated over various Articles. Basically, Part-III of the Constitution consists of the equality code, the freedom code and the right to move the courts. It is true that equality has several facets. However, each case has to be seen in the context of the placement of an Article which embodies the foundational value of equality. [376-D, E, H] Indira Nehru Gandhi v. Raj Narain (Election Case) [1976] 2 SCR 347, relied on. 4. 1. Our Constitution has 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. [377-A, Bl 4. 2.

In the present case, this Court is 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. [378-A, B] 4. 3. 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 I,as to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims. [378-C, D, E] 5. 1. Equality, Justice and Merit 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 Article 16(4) is construed, 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 'efficiency in service' comes in. [378-E, F[ 5. 2. The content of merit is context-specific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on 'merit' depends on how that policy is designed. In the present case, the debate 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.

[379-C, DJ 'Meritocracy and Economic Inequality' by Amartya Sen, referred to. 5. 3. Exercise of the power by the State Government is 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 of the Constitution. [379-E, F] 5. 4. 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 levelplaying 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". [379-F, G) 5. 5. 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. [379-H; 380-AI 6. 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 M. NAGARAJ v. U. 0. l. 349 "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 this Court to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are maintained. [380-B, C, D[ 7. 1. 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. [380-E) - 7. 2. 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. [380-F, G, HJ 7. 3. 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. [381-A] 8. 1. 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 Articles 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, neither the 'catch-up' rule nor the concept of 'consequential seniority' are implicit in clauses (I) and (4) of Article 16 of the Constitution. [390-H; 391-A, B] Union ofIndia & Ors. v. Virpal Singh Chauhan & Ors. , (19951 6 SCC 684, relied on. The General Manager, Southern Railway and Anr. v. Rangachari, AIR (1961) SC 36; M. R. Balaji & Ors. v. The State ofMysore & Ors. , AIR (1963) SC 649; State ofKera/a and Anr. v. N. M. Thomas and Ors. , (1976) 2 SCC 310; Indra Sawhney & Ors. v. Union ofIndia, [19921Supp. 3 SCC 217; T. Devadasan v. Union ofIndia & Ors. , AIR (1964) SC 179; R. K. Sabharwal & Ors.

v. State of Punjab & Ors. , (19951 2 SCC 745; Ajit Singh Januja & Ors. v. State ofPunjab & Ors. (Ajit Singh-I) (1996) 2 SCC 715; Jagdish Lal & Ors. v. State ofHaryana & Ors. , (1997) 6 SCC 538 and Ajit Singh & Ors. (II) v. State ofPunjab & Ors. , [1999) 7 SCC 209, referred to. 8. 2. This Court has categorically ruled in the decided case of Virpal Singh Chauhan that the 'catch-up' rule is not implicit in clauses (1) to (4) of Article 16 of the Constitution. The said rule cannot bind the amending power of the Parliament. [391-B) Union ofIndia & Ors. v. Virpal Singh Chauhan & Ors. , (19951 6 SCC 684, referred to. 8. 3. Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and overall efficiency of services. (392-C, DI Ajit Singh Januja & Ors. v.

State ofPunjab & Ors. (Ajit Singh-I) (1996) 2 SCC 715; Ajit Singh & Ors. (II) v. State ofPunjab & Ors. , (1999) 7 SCC 209 and M. G. Badappanavar & Anr. v. State ofKarnataka & Ors. , [2001) 2 sec 666, distinguished. 8. 4. Appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling-limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. (392-G, HI Indra Sawhney & Ors. v. Union ofIndia, (19921 Supp. 3 SCC 217 and R. K. Sabhanval & Ors. v. State ofPunjab & Ors. , [1995) 2 SCC 745, referred to. M. NAGARAJ v. U. 0. 1. 351 8. 5. Clause (4A) of Article 16 of the Constitution is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion and applies only to SCs and STs. The said clause is carved out of Article 16(4).

Therefore, clause (4A) will be governed by the two compelling reasons "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further in the decided case of Ajit Singh (II), this court has held that apart from 'backwardness' and 'inadequacy of representation' the State shall also keep in mind 'overall efficiency' (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government by providing for reservation in promotion for SCs and STs. (394-F, G, H; 395-AJ =r-- Ajit Singh & Ors. (II) v. State of Punjab & Ors. , (1999) 7 SCC 209, relied on. 8. 6.

According to the Government, the decisions in Virpal Singh and Ajit Singh (I) bringing in the concept of "catch-up" rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade. In the circumstances, clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was an extension of clause (4A) of Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act, 2001. (395-C, D, El Union ofIndia & Ors. v. Virpal Singh Chauhan & Ors. , (1995) 6 SCC 684 and Ajit Singh Januja & Ors. v. State of Punjab & Ors. (Ajit Singh-I) [1996) 2 sec 715, referred to. 9. 1.

Once it is held that each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies do not arise. Therefore, in effect, Article 16(4B) as inserted by the Constitution (Eighty-First Amendment) Act, 2000 grants legislative assent to the judgment in R. K. Sabharwal. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within certain limitations. 1399-H; 400-A-B) R. K. Sabharwal & Ors. v. State ofPunjab & Ors. , 11995] 2 SCC 745, relied on. 9. 2. By the Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the end of Article 335 of the Constitution.

This proviso was inserted keeping in mind the judgment of this court in the case of Vinod Kumar which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4A). 1400-D; F, G] 9. 3. Article 16(48) lifts the 50% cap on carry-over vacancies (backlog vacancfos). The ceiling-limit of 50% on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor.

On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. (401-A, B, CJ 10. 1. 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'.

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 M. NAGARAJ v. U. 0. 1. 353 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. (401-E, F, G( 10. 2. 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. (402-A, B, Cf 10. 3. 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", this Court does not find obliteration of any of the constitutional limitations. Applying the test of "identity", no alteration in the existing structure of the equality p code is found. None of the axioms like secularism, federalism etc. which are overarching principles have been violated by the impugned constitutional amendments. (402-F, G] 10. 4. The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the lawmaking 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. 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. (403-B, C, DI Kihoto Hollohan v. Zachillhu & Ors. , (19921Supp. 2 SCC 651, relied on. 10. 5.

The field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4A) and Article 16(48) 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(48) are classifications within the principle of equality under Article 16(4) of the Constitution. (403-E, F( ti. I. 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. Every discretionary power is not necessarily discriminatory. 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(48). (404-A, 8, CJ Constitutional Law ofIndia, by H. M. Seervai, 4th Edu. 546, referred to. 11. 2. 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 M. NAGARA. I r. U. 0. 1. 355 identified and valued.

The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-a-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 of the Constitution. 1404-C, DI 11. 3. The object in enacting the enabling provisions like Articles 16(4), 16(4A) and 16(48) 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. 1404-F, Gf 11. 4. 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. Therefore, there is a basic difference between 'equality in law' and 'equality in fact'. If Articles 16(4A) and 16(48) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4A) and 16(48) 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(48) as controlling factors, constitutional invalidity cannot be attributed 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'. 1404-G, H; 405-A, 8, Cl 'Affirmative Action' by William Darity, referred to. 11. 5. Applying the doctrine of "Guided Power" to the proviso to Article 335 inserted by the Constitution (Eighty-Second Amendment) Act, 2000, it is found that the said proviso has a nexus with Articles 16(4A) and 16(48). Efficiency in administration is held to be a constitutional limitation. on the discretion vested in the State to provide for reservation in public employment. (405-E) 11. 6. Even after insertion of the 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. 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. (405-F, G, H; 406-A, BJ 12. 1. 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 certain constitutional limitations.

The boundaries of the width of the power, namely, the ceilinglimit 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, the law as enacted by various States providing for reservation has to be considered if challenged. At that time it has to be seen whether limitations on the exercise of power are violated. (406-C, D, E) 12. 2. It is made clear that even if the State has reasons to make reservation, 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. (406-FJ 12. 3. While judging the width and the ambit of Article 16(4A), it must be ascertained 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 the case of Indra Sawhney. It refers to sub-classification within the egalitarian equality. Therefore, Article 16(4A) follows the line suggested by this Court in the case of Indra Sawhney. In the same case, this Court has also 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-a-vis GC. Therefore, equality as a concept is retained even under M. NAGARAJ v. U. 0. 1. 357 Article 16(4A) which is carved out of Article 16(4) of the Constitution. 1410-E, F, GI Indra Sawhney & Ors. v. Union ofIndia, 119921 Supp. 3 SCC 217, relied on. 12. 4. Article 16(48) is 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(48), it must be kept in mind that following the judgment in R. K. Sabharwal the concept of postbased roster is introduced. Consequently, specific slots for 08C, 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(48) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. Articles 16(4A) and 16(48) form a composite part of the scheme envisaged. Thus, Articles 16(4), 16(4A) and 16(48) together form part of the same scheme. Articles 16(4A) and 16(48) are both inspired by observations of the Supreme Court in Indra Sawhney and R. K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution. Therefore, the classification envisaged by Articles 16(4A) and 16(48) is upheld.

The impugned constitutional amendments, therefore, do not obliterate equality. 1411-A, 8, CJ Indra Sawhney & Ors. v. Union ofIndia, [19921Supp. 3 SCC 217 and R. K. Sabharwal & Ors. v. State ofPunjab & Ors. , [199512 SCC 745, referred to. 12. 5. 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 the width of the power under the impugned amendments is required to be tested. Therefore, "the width test" has to be applied. In applying "the width test" it has to be seen whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4). However, these limitations are not obliterated by the impugned amendments. 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.

The extent of reservation has to be decided on facts of each case. (411-E, F, GI 13. 1. 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 Ruic 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. [412-B, q 13. 2. Existence of power cannot be denied on the ground that it is likely to be abused. 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. 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) of the Constitution. [412-C, D, E, . Fl 13. 3. 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 constitutional requirements. [412-F, G) 14. 1.

The impugned constitutional amendments by which Articles 16(4A) and 16(48) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). (413-E) 14. 2. 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, 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. 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 - M. NAGARAJ v. U. 0. 1.

359 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, 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, 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 is upheld. (413-G, H; 414-A, B, C, DJ 15. The question of validity of individual enactments of appropriate States will be gone into in individual writ petition by the appropriate Bench in accordance with law as laid down.

(414-E) CIVIL ORINGIAL JURISDICTION : Writ Petition (Civil) No. 61 of 2002. ]) (Under Article 32 of the Constitution of India. ) WITH WP (C) Nos. 62, 81, 111, 134, 135, 206, 226, 227, 255, 266, 269, 279, 299, 294, 295, 29t 250, 319,375, 386, 387,320, 322, 323, 338, 234, 340, 423, 440, 453, 460, 472, 482, 483, 484, 485, 550, 527 and 640 of2002, SLP (C) Nos. 4915-4919 of2003, W. P. (C) Nos. 153/2003, C. P. (C) No. 404/2004 in W. P. (C) No. 255/2002, C. P. (C) No. 505/2002 in WP (C) No. 61/2002, C. P. (C) No. 553/2002 in WP (C) No. 266/2002, C. P. (C) No. 570/2002 in WP (C) No. 255/2002, C. P. (C) No. 122/2003 in WP (C) No. 61/2002, C. P. (C) No. 127/ 2003 in WP (C) No. 61/2002, C. P. (C) No. 85/2003 in WP (C) No. 255/2002, W. P. (C) Nos. 313 and 381 of 2003, CIVIL APPEAL Nos. 12501-12503/ 1996, SLP (C) No. 754/1997, WP (C) No. 460 of2003, CIVIL APPEAL Nos. 7802/2001 and 7803/2001, W. P. (C) No. 469/2003, SLP (C) No. 19689/1996, WP (C) No. 563/2003, WP (C) No. 2/2003,'WP (C) Nos.

515, 519 and 562 of 2004, WP (C) No. 413 of 1997, WP (C) No. 286 of 2004 and SLP (C) No. 145 I8 of 2004. Mohan Parasaran, A. S. G. , K. K. Senthil Velan, Gaurav Dhingra, Chidananda D. L. , Sulakshna Jayaram and Bharadwaj for Attorney General of India. A. Sharan, A. S. G. , Aruneshwar Gupta, A. A. G. , Dr. L. M. Singhvi Harish N. Salve, Dr. Rajiv Dhavan, Prof, Ravivarma Kumar, Vivek K. Tankha, S. Ganesh, Jawahar Lal Gupta, K. Parasaran, P. P. Rao, P. N. Misra, R. G. Padia, Ravindra Shrivastava, Kiran Suri, Abhilasha Lalbhai, Himanshu Buttan, Amit SJ. , Dr. Vipin Gupta, S. B. Upadhyay, Raj Kumar Gupta, Sheo Kumar Gupta, Bhanu Pratap Gupta, A. N. Bardiyar Janaranjan Das, Swetaketu Mishra, Chandra Prakash, Prashant Venkatesh, Lakshmi Raman Singh, Meenakshi Arora, Pramod Dayal, P. K. Jain, Pratibha Jain, Sushi! Kumar Jain, Punit Jain, H. D. Thanvi, Sarad Singhania, A. P. Dhamija, Ram Niwas, S. N.

Bhat, Amit Pawan, Ugra Shankar Prasad, Manoj Saxena, Rajneesh Kumar Singh, Sameena Ahmad, Rahul Shukla, Pravir Choudhary, S. Muralidhar, Kirti Mishra, S. Janani, Jana Kalyan Das, Ashok Kumar Upadhyay, E. C. Vidya Sagar, Krishan Singh Chauhan, Chand Kiran, Dr. Indra Pratap Singh, K. C. Lamba, Sunil Kumar, Gyan Mitra, M. A. Chinnasamy·, Prashant Kumar, Anurag Sharma, Joseph Pookkatt, Rohan Thawani, Nikhil Majithia, Pooja Dhar, Sanjay R. Hegde, Anil K. Mishra, A. Rohen Singh, V. K. Monga, Rajesh Mahale, Tapesh Kumar Singh, Dinesh Chandra Pandey, Rajeev Kumar, Sanjay Jain, Parija V. Phatarpekar, V. K. Sidharthan, Naveen R. Nath, Lalit Mohini Bhat, Anitha Shenoy, Hetu Arora, Rameshwar Prasad Goyal, A. Subba Rao, Sushma Suri, A. Mariarputham, Aruna Mathur (for Arputham, Aruna & Co. ) Pradeep Ranjan Tiwary, Anirudh Sharma, P. Parmeswaran, D. P. Chaturvedi, N. P. S. Panwar, Bina Madhavan, S. U. K. Sagar, Pooja N. Gupta, S. Vallinayagam, (for Mis. Lawyer's Knit & Co.

), Naveen Kumar Singh, Rajesh Prasad Singh, Rajeev Singh, Sunita R. Singh, Sudhanshu Saran, Binu Tamta, Kiran Suri, Himanshu Bhutan, Buddy, A. Ranganadhan (for Mis. J. B. Dadachanji & Co. ), Sunil Kumar Jain, S. Borthakur, Ansar Ahmad Chaudhary, B. Barooah, Tara Chandra Sharma, Neelam Sharma, Shreekant N. Terdal, Sandhya Goswami, Gyan Mitra, S. K. Kulkarni, M. Gireesh Kumar, Khwairakpam Nobin Singh, Radha Shyam Jena, B. V. Balaram Das, P. Venu Gopal, E. Venu Kumar (for K. J. John & Co. ) Shibashish Misra, Mukesh Kumar Sinha, Arun Kumar Sinha, Rakesh Singh (for R. S. Suri) Dr. M. P. Raju, S. P. Sharma, P. George Giri, G. S. Chatterjee, Naresh K. Sharma, Lalit. a Kaushik, R. P. Wadhwani, S. K. Nandy, Bishwajit Kumar Shahi, Prakash Shrivastava, V. Mohana, S. W. A. Qadri, Shishir Pinaki, Amit Anand Tiwari, Saliance Ranjan Feranandes, B. K. Prasad, Pinky Anand, Gopal Prasad, Rajesh Pathak, Virula Sinha, Gopal Singh, Manish Kumar, Kavita Wadia, Manjita Singh, Harikesh Singh, T. V.

George, Ravi Prakash Mehrotra, Amit Sharma, KG. Gopala Krishnan, Somiran Sharma, Pallau Shishodia, D. N. Mishra, A. Subhashini, K. N. Tripathy, Abishth Kumar, Rekha Pandey, Anil Katiyar, Pradeep Misra, Vibha Datta Makhija, Musharraf M. NAGARAJ v. U. 0. 1. [KAPADIA. J. ) 361 Choudhary, Arjun Kunak Verma, Sandeep Singh, C. D. Singh, Kiran, Suvarna and Dhrupad, Kashyap, for the appearing parties and Sishir Kumar Bandyopadhyay-In-Person. The Judgment of the Court was delivered by KAPADIA, J. The width and amplitude ofthe right to equal opportunity in public employment, in the context of reservation, broadly falls for consideration in these writ petitions under Article 32 of the Constitution. FACTS IN WRIT PETITION (CIVIL) N0. 61 OF 2002: The facts in the above writ petition, which is the lead petition, are as follows.

Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 200 I inserting Article l 6(4A) of the Constitution retrospectively from 17. 6. 1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union ofIndia and Ors. v. Virpai Singh Chauhan and Ors', Ajit 2 Singh Januja and Ors. v. State ofPunjab and Ors . , (Ajit Singh-/), Ajit Singh 3 and others (//) v. State ofPunjab and Ors , Ajit Singh and Ors. (III) v. State 4 5 ofPunjab and Ors , Indra Sawhney and Ors. v. Union oflndia , and M G. Badappanavar and Anr. v. State ofKamataka and Ors•.

Petitioners say that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have further pleaded that the amendment also seeks to alter the I. [1995) 6 sec 684. 2. (1996) 2 sec 115. 3. (19991 1 sec 209. 4. r20001 1sec 430. 5. [1992) Supp. 3 sec 211. 6. c200112sec666. fundamental right of equality which is part of the basic structure of the Constitution. Petitioners say that the equality in the context of Article 16( I) connotes "accelerated promotion" so as not to include consequential seniority.

Petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1 ). Petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. Petitioners say that in the case of Indra Saw/111ey5 decided on 16. 11. 1992, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion. Petitioners say that contrary to the said judgment delivered on 16. 11. 1992, the Parliament enacted the Constitution (Seventy-Seventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy- Seventh Amendment) Act, 1995 is also challenged by some of the petitioners.

Petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would have retired from service. Petitioners say that the consequences of the impugned 85th Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre. BROAD ISSUES IN WRIT PETITION No. 527 OF 2002: The broad issues that arise for determination in this case relate to the: I. Validity 2. Interpretation 3.

Implementation of (i) the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty- Second Amendment) Act, 2000, and the Constitution (Eighty-Fifth Amendment) Act, 2001; and, (ii) Action taken in pursuance thereof which seek to reverse decisions ofthe Supreme Court in matters relating to promotion M. NAGARA. I v. U. 0. 1. [KAPADIA. . I. ] 363 and their app! ication with retrospective effect. ARGUMENTS: The substance of the arguments advanced on behalf of the petitioners briefly is as follows: Equality is a part of the basic structure and it is impossible to conceive of the Constitution without equality as one of its central components. That, equality is the basic feature referred to in the preamble to our Constitution. Petitioners further submit that Article 16 is integral to equality; that, Article 16 has to be read with Article 14 and with several Articles in Part-IV.

According to the petitioners, the Constitution places an important significance on public employment and the rule of equality, inasmuch as, a specific guarantee is given under Article 16 protecting equality principles in public employment. In this connection, reliance is also placed on the provisions of Part XIV to show that the Constitution makers had given importance to public employment by making a special provision in the form of Part XIV providing certain rights and protection to the office holders in the services of the Union and the States. These provisions are Articles 309, 311, 315, 316, 317 and 318 to 323. Special provisions have also been made in Article 323- A which permits establishment of tribunals as special and adjudicatory mechanism. That, Article 335 recognizes the importance of efficiency in administration and the various provisions of the Constitution indicate that public employment was and is even today of central concern to the Constitution.

It is urged that equality in matters of public employment cannot be considered as merely an abstract concept. Petitioners say that over the years, this Court has delivered many decisions laying down that principles of 'equality' and 'affirmative action' are the pillars of our Constitution. These judgments also provide conclusions based on principles which gave meaning to equality both as an individual right and as group expectations. It is submitted that clause (4) of Article 16 is an instance of the classification implicit and permitted by Article 16(1) and that this view of equality did not dilute the importance of Article 16(I) or Article 16(2) but merely treated Article 16(4) as an instance of the classification; that this relationship of sub-clauses within Article I6 is not an invitation for reverse discrimination and that, equality of opportunity cannot be overruled by affirmative action.

It is submitted that "equality in employment" consists of equality of opportunity [Article 16(1)], anti-discrimination [Article 16(2)], special classification [Article 16(3)], affirmative action [Article 16(4)] which does not obliterate equality but which stands for classification within equality], and lastly, efficiency [Article 335]. As regards the words 'nothing in this article' in Article 16(4), it is urged that these words cannot wipe out Article 16( I) and, therefore, they have a limited meaning. It is urged that the said words also occur in Articles 16(4A) and I6(4B). It is urged that equality in the Constitution conceives the individual right to be treated fairly without discrimination in the matter of equality of opportunity. It also conceives of affirmative action in Article 15(4) and Article 16(4).

A limited amendment power is one of the basic features of our Constitution and, therefore, limits on that power cannot be destroyed. Petitioners submit that Parliament cannot under Article 368 expand its amending power so as to acquire for itself the right to abrogate the Constitution and if the width of the amendment invites abrogation of the basic structure then such amendment must fail. Reliance is placed in this connection on the judgment in Minerva Mills Ltd and Ors. v. 7 Union ofIndia and Ors • On the question of balancing of fundamental rights vis-a-vis directive principles, it is submitted that directive principles cannot be used to undermine the basic structure principles underlying fundamental rights including principles of equality, fundamental freedoms, due process, religious freedom and judicial enforcement.

On the question of balancing and structuring of equality in employment, it is urged that quotas are subject to quantitative limits and qualitative exclusions; that, there is a distinction between quota limits (example 15% to SCs) and ceiling-limits/maximum permissible reservation limits (example 50%) which comes under the category of quantitative limits. However, quotas are also subject to qualitative exclusions like creamy layer. It is urged that in 7. [1981] l SCR 206. M. NAGARA. I v. U. O. l. [KAPADIA, . 1. J 365 numerous j1. 1dgments and in particular in Indra Sawhney;, M. C. 6 3 Badaappanavar , Ajit Singh (11) , the equality of cpportunity in public employment is clarified in order to structure and balance Articles I6(1) and 16(4).

In answer to the respondents' contentions that Articles 16(4A) and 16(48) and the changes to Article 335 are merely enabling provisions and that in a given case ifthe exercise undertaken by the appropriate Government is found to be arbitrary, this Court will set it right, it is contended that ingressing the basic structure is a per se violation of the Constitution. In this connection, it is alleged that the basis for impugned amendments is to overrule judicial decisions based on holistic interpretation of the Constitution and its basic values, concepts and structure. In this connection, it is urged that the 77th Amendment introducing Article 16(4A) has the effect of nullifying the decision in the case of Indra Sawhney5; that, the 81st Amendment introducing Article 16(48) has been brought in to nullify the effect of the decision in R. K. Sabharwal & Ors. v. State ofPunjab and Ors', in which it has been held that carry forward vacancies cannot be filled exceeding 50% of the posts.

Petitioners say that similarly the Constitution (Eighty-Second Amendment) Act, 2000 introducing the proviso to Article 335 has been introduced to nullify the effect of the decision in the case of Indra Sawhney5 and a host of other cases, which emphasize the importance of maintaining efficiency in administration. It is submitted that, the 85th Amendment adding the words 'with consequential seniority' in Article 16(4A) has been made to nullify the decision in Ajit Singh (11)3. Accordingly it is urged that the impugned amendments are violative of the basic structure and the fundamental values of the Constitution articulated in the preamble and encapsulated in Articles 14, 16 and 19; that, they violate the fundamental postulates of equality, justice, rule of law and secularism as enshrined in the Constitution and that they violate the fundamental role of the Supreme Court as interpreter of the Constitution.

That, the impugned amendments create an untrammelled, unrestrained and unconstitutional regime of reservations which destroys the judicial power and which undermines the efficacy of judicial review which is an integral part of rule of law. It is argued that, Articles 14 and 16 have to be read with Article 335 as originally promulgated; that, the impugned amendments invade the twin principles of efficiency, merit and the morale of public services and the foundation of good governance. It is urged vehemently that the impugned amendments 8. [199512 sec 745. open the floodgates of disunity, disharmony and disintegration. On behalf of the respondents, following arguments were advanced. The power of amendment under Article 368 is a 'constituent' power.

and not a 'constituted power'; that, that there are no implied limitations on the constituent power under Article 368; that, the power under Article 368 has to keep the Constitution in repair as and when it becomes necessary and thereby protect and preserve the basic structure. In such process of amendment, if it destroys the basic feature of the Constitution, the amendment will be unconstitutional. Constitution, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed by the Court on any provision of the Constitution gets in built in the provisions interpreted. Such articles are capable of amendment under Article 368.

Such change of the law so declared by the Supreme Court will not merely for that reason alone violate the basic structure of the Constitution or amount to usurpation of judicial power. This is how Constitution becomes dynamic. Law has to change. It requires amendments to the Constitution according to the needs of time and needs of society. It is an ongoing process of judicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure of the Constitution. On every occasion when a constitutional matter comes before the Court, the meaning of the provisions of the Constitution will call for interpretation, but every interpretation of the Article .. :. does not become a basic feature ofthe Constitution.

That, there are no implied limitations on the power of the Parliament under Article 368 when it seeks to amend the Constitution. However, an amendment will be invalid, if it interferes with or undermines the basic structure. The validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the Constitution. It is further submitted that amendments for giving effect to the directive principles cannot offend the basic structure ofthe Constitution. On the contrary, the amendments which may abrogate individual rights but which promote Constitutional ideal of 'justice, social, economic and political' and the ideal of 'equality of status' are not liable to be struck down under Article 14 or Article 16(1) and consequently, such amendments cannot violate the basic M. NAGARAJ '" U. 0. 1. [KAPADIA. J. ) 367 structure of the Constitution.

That, the amendments to the Constitution which are aimed at removing social and economic disparities cannot offend the basic structure. It is urged that the concepts flowing from the preamble to the Constitution constitute the basic structure; that. basic structure is not found in a particular Article of the Constitution; and except the fundamental right to live in Article 21 read with Article 14, no particular Article in Part-Ill is a basic feature. Therefore, it is submitted that equality mentioned in Articles 14 and 16 is not to be equated to the equality which is a basic feature of the Constitution. It is submitted that the principle of balancing of rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution. It is submitted that basic feature consists of constitutional axioms like constitutional supremacy, and democratic form of government, secularism, separation of powers etc.

Respondents contend that Article 16(4) is a part of the Constitution as originally enacted. The exercise of the power by the delegate under Article 16(4) will override Article 16(1). It is not by virtue of the power of the delegate, but it is by virtue of constituent power itself having authorized such exercise by the delegate under Article 16(4), that article 16(I) shall stand overruled. The only limitation on the power of delegate is that fr should act withi