# JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA & OTHERS

- **Citation:** [2018] 10 S.C.R. 663
- **Court:** Supreme Court of India
- **Decided:** 2018-09-26
- **Bench:** Dipak Misra, Kurian Joseph, R. F. Nariman, Sanjay Kishan Kaul, Indu Malhotra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jarnail-singh-others-v-lachhmi-narain-gupta-others-32229
- **Pages:** 44

## Headnote

Constitution of India - Arts.16(4-A), 16(4-B), 335, 341 and
342 - Interpretation of - Reservation in promotion - Judgment in
M. Nagaraj case - Correctness of - Referred to five judge
Constitution Bench - Held: Judgment in M. Nagaraj case does not
need to be referred to seven-Judge Bench - However, the conclusion
in M. Nagaraj case 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
(1) case, is held to be invalid to this extent.
Constitution of India - Reservation - Principle of Creamy
Layer - Application to Schedules Castes (SCs) and Scheduled Tribes
(STs) - Held: When a Court applies the creamy layer principle to
SCs and STs, it does not in any manner tinker with the Presidential
List u/Arts. 341 or 342 - Caste or group or sub-group named in the
said List continues exactly as before - It is only those persons within
that group or sub-group, who have come out of untouchability or
backwardness by virtue of belonging to the creamy layer, who are
excluded from the benefit of reservation.
Constitution of India - Arts.14 and 16(1) - Reservation -
Principle of Creamy Layer - Held: Creamy Layer Principle sounds
in Arts. 14 and 16(1), as unequals within the same class are being
treated equally with other members of that class.
Interpretation of Statutes - Harmonious Interpretation - Held:
Arts. 14 and 16 when harmoniously interpreted along with Arts.341
and 342, makes it clear that Parliament has complete freedom to
include or exclude persons from the Presidential Lists based on
relevant factors - Constitution of India - Arts. 14, 16, 341 and
342.
 [2018] 10 S.C.R. 663
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[2018] 10 S.C.R.
Constitution of India - Reservation - Object of - Held: Whole
object of reservation is to see that backward classes of citizens
move forward so that they may march hand in hand with other citizens
of India on an equal basis - This will not be possible if only the
creamy layer within a class bag all the coveted jobs in the public
sector and perpetuate themselves, leaving the rest of the class as
backward as they always were.
Answering the referred issue, the Court
HELD: 1.1 Though M.Nagaraj is a later judgment, it does
not refer to Chinnaiah case at all. The majority judgment of
Hegde, J. does not refer to the creamy layer principle at all.
Chinnaiah's judgment in essence held that the Andhra Pradesh
Scheduled Castes (Rationalisation of Reservations) Act, 2000,
which it considered, could not further sub-divide Scheduled Castes
into four categories, as that would be violative of Article 341(2)
of the Constitution of India for the simple reason that it is
Parliament alone that can make any change in the Presidential
List and not the State Legislatures. This is the true ratio of the
judgment. This being the case, as Chinnaiah does not in any
manner deal with any of the aspects on which the constitutional
amendments in M.Nagaraj's case were upheld, it was not
necessary for M.Nagaraj case to refer to Chinnaiah at all. The
true ratio of the judgment flows from a construction of Article
341. It is true that the Andhra Pradesh Scheduled Castes
(Rationalisation of Reservations) Act, 2000 was also found to be
violative of Article 14. Chinnaiah case dealt with a completely
different problem, apart from dealing with a State statute and not
a constitutional amendment, as was dealt with in M.Nagaraj case.
[Para 13] [694-F-G; 695-A-B, D]
1.2 Insofar as the State having to show quantifiable data as
far as backwardness of the class is concerned, the reference to
"class" in M.Nagaraj is to the Scheduled Castes and the
Scheduled Tribes, and their inadequacy of representation in public
employment. It is clear, therefore, that M.Nagaraj has, in
unmistakable terms, stated that the State has to collect
quantifiable data showing backwardness of the Scheduled Castes
and the Scheduled Tribes. This portion o

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JARNAIL SINGH & OTHERS
v.
LACHHMI NARAIN GUPTA & OTHERS
(Special Leave Petition (Civil) No.30621 of 2011)
SEPTEMBER 26, 2018
[DIPAK MISRA, CJI, KURIAN JOSEPH, R. F. NARIMAN,
SANJAY KISHAN KAUL AND INDU MALHOTRA, JJ.]
Constitution of India - Arts.16(4-A), 16(4-B), 335, 341 and
342 - Interpretation of - Reservation in promotion - Judgment in
M. Nagaraj case - Correctness of - Referred to five judge
Constitution Bench - Held: Judgment in M. Nagaraj case does not
need to be referred to seven-Judge Bench - However, the conclusion
in M. Nagaraj case 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
(1) case, is held to be invalid to this extent.
Constitution of India - Reservation - Principle of Creamy
Layer - Application to Schedules Castes (SCs) and Scheduled Tribes
(STs) - Held: When a Court applies the creamy layer principle to
SCs and STs, it does not in any manner tinker with the Presidential
List u/Arts. 341 or 342 - Caste or group or sub-group named in the
said List continues exactly as before - It is only those persons within
that group or sub-group, who have come out of untouchability or
backwardness by virtue of belonging to the creamy layer, who are
excluded from the benefit of reservation.
Constitution of India - Arts.14 and 16(1) - Reservation -
Principle of Creamy Layer - Held: Creamy Layer Principle sounds
in Arts. 14 and 16(1), as unequals within the same class are being
treated equally with other members of that class.
Interpretation of Statutes - Harmonious Interpretation - Held:
Arts. 14 and 16 when harmoniously interpreted along with Arts.341
and 342, makes it clear that Parliament has complete freedom to
include or exclude persons from the Presidential Lists based on
relevant factors - Constitution of India - Arts. 14, 16, 341 and
342.
 [2018] 10 S.C.R. 663
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
Constitution of India - Reservation - Object of - Held: Whole
object of reservation is to see that backward classes of citizens
move forward so that they may march hand in hand with other citizens
of India on an equal basis - This will not be possible if only the
creamy layer within a class bag all the coveted jobs in the public
sector and perpetuate themselves, leaving the rest of the class as
backward as they always were.
Answering the referred issue, the Court
HELD: 1.1 Though M.Nagaraj is a later judgment, it does
not refer to Chinnaiah case at all. The majority judgment of
Hegde, J. does not refer to the creamy layer principle at all.
Chinnaiah's judgment in essence held that the Andhra Pradesh
Scheduled Castes (Rationalisation of Reservations) Act, 2000,
which it considered, could not further sub-divide Scheduled Castes
into four categories, as that would be violative of Article 341(2)
of the Constitution of India for the simple reason that it is
Parliament alone that can make any change in the Presidential
List and not the State Legislatures. This is the true ratio of the
judgment. This being the case, as Chinnaiah does not in any
manner deal with any of the aspects on which the constitutional
amendments in M.Nagaraj's case were upheld, it was not
necessary for M.Nagaraj case to refer to Chinnaiah at all. The
true ratio of the judgment flows from a construction of Article
341. It is true that the Andhra Pradesh Scheduled Castes
(Rationalisation of Reservations) Act, 2000 was also found to be
violative of Article 14. Chinnaiah case dealt with a completely
different problem, apart from dealing with a State statute and not
a constitutional amendment, as was dealt with in M.Nagaraj case.
[Para 13] [694-F-G; 695-A-B, D]
1.2 Insofar as the State having to show quantifiable data as
far as backwardness of the class is concerned, the reference to
"class" in M.Nagaraj is to the Scheduled Castes and the
Scheduled Tribes, and their inadequacy of representation in public
employment. It is clear, therefore, that M.Nagaraj has, in
unmistakable terms, stated that the State has to collect
quantifiable data showing backwardness of the Scheduled Castes
and the Scheduled Tribes. This portion of the judgment is directly
contrary to the nine-Judge Bench in Indra Sawhney (1) case.
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Jeevan Reddy, J., speaking for himself and three other learned
Judges, had clearly held, "[t]he test or requirement of social and
educational backwardness cannot be applied to Scheduled Castes
and Scheduled Tribes, who indubitably fall within the expression
"backward class of citizens". [Para 14] [695-E-H]
1.3 In fact, Chinnaiah case has referred to the Scheduled
Castes as being the most backward among the backward classes.
This is for the reason that the Presidential List contains only
those castes or groups or parts thereof, which have been regarded
as untouchables. Similarly, the Presidential List of Scheduled
Tribes only refers to those tribes in remote backward areas who
are socially extremely backward. Thus, it is clear that when
M.Nagaraj case requires the States to collect quantifiable data
on backwardness, insofar as Scheduled Castes and Scheduled
Tribes are concerned, this would clearly be contrary to the Indra
Sawhney (1) case and would have to be declared to be bad on
this ground. However, when it comes to the creamy layer
principle, it is important to note that this principle sounds in
Articles 14 and 16(1), as unequals within the same class are being
treated equally with other members of that class. The whole object
of reservation is to see that backward classes of citizens move
forward so that they may march hand in hand with other citizens
of India on an equal basis. This will not be possible if only the
creamy layer within that class bag all the coveted jobs in the public
sector and perpetuate themselves, leaving the rest of the class
as backward as they always were. This being the case, it is clear
that when a Court applies the creamy layer principle to Scheduled
Castes and Scheduled Tribes, it does not in any manner tinker
with the Presidential List under Articles 341 or 342 of the
Constitution of India. The caste or group or sub-group named in
the said List continues exactly as before. It is only those persons
within that group or sub-group, who have come out of
untouchability or backwardness by virtue of belonging to the
creamy layer, who are excluded from the benefit of reservation.
Even these persons who are contained within the group or subgroup in the Presidential Lists continue to be within those Lists.
It is only when it comes to the application of the reservation
principle under Articles 14 and 16 that the creamy layer within
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that sub-group is not given the benefit of such reservation.
[Para 15] [696-D-F; 698-A-D]
1.4 It is not necessary to go into whether Parliament 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. 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. Statement of Balakrishnan, C.J. in Ashoka
Kumar Thakur case that the creamy layer principle is merely a
principle of identification and not a principle of equality cannot
be agreed upon. [Para 16] [698-E-H; 699-A]
1.5 When M.Nagaraj 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. Therefore, clearly this part of the judgment
does not need to be revisited, and consequently, there is no need
to refer M.Nagaraj to a seven-Judge Bench. M.Nagaraj is a
unanimous judgment of five learned Judges of this Court which
has held sway since the year 2006. In fact, the tests laid down in
M.Nagaraj case for judging whether a constitutional amendment
violates basic structure have been expressly approved by a nineJudge Bench of this Court in I.R. Coelho case. The entirety of
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the decision, far from being clearly erroneous, correctly applies
the basic structure doctrine to uphold constitutional amendments
on certain conditions which are based upon the equality principle
as being part of basic structure. Thus, it is made clear that
quantifiable data shall be collected by the State, on the parameters
as stipulated in M.Nagaraj case on the inadequacy of
representation, which can be tested by the Courts. The data would
be relatable to the concerned cadre. [Para 17] [699-B-C;
700-C-D]
1.6 Even without the help of the first part of Article 16(4-A)
of the Constitution (One Hundred Seventeeth Amendment) Bill,
2012, the providing of quantifiable data on backwardness when it
comes to Scheduled Castes and Scheduled Tribes, has been held
to be contrary to the majority in Indra Sawhney (1) case. So far as
the second part of the substituted Article 16(4-A) contained in
the Bill is concerned, it is noticed that the proportionality to the
population of Scheduled Castes and Scheduled Tribes is not
something that occurs in Article 16(4-A) as enacted, which must
be contrasted with Article 330. Article 46, which is a provision
occurring in the Directive Principles of State Policy, has always
made the distinction between the Scheduled Castes and the
Scheduled Tribes and other weaker sections of the people. This
being the case, it is easy to see the pattern of Article 46 being
followed in Article 16(4) and Article 16(4-A). Whereas "backward
classes" in Article 16(4) is equivalent to the "weaker sections of
the people" in Article 46, and is the overall genus, the species of
Scheduled Castes and Scheduled Tribes is separately mentioned
in the latter part of Article 46 and Article 16(4-A). This is for the
reason that the Scheduled Castes and the Scheduled Tribes are
the most backward or the weakest of the weaker sections of
society, and are, therefore, presumed to be backward. The
argument that as a member of a Scheduled Caste or a Scheduled
Tribe reaches the higher posts, he/she no longer has the taint of
either untouchability or backwardness, as the case may be, and
that therefore, the State can judge the absence of backwardness
as the posts go higher, is an argument that goes to the validity of
Article 16(4-A). If this argument is accepted, logically, Article
16(4-A) would have to be struck down, as the necessity for
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continuing reservation for a Scheduled Caste and/or Scheduled
Tribe member in the higher posts would then disappear. Since
the object of Article 16(4-A) and 16(4-B) is to do away with the
nine-Judge Bench in Indra Sawhney (1) case when it came to
reservation in promotions in favour of the Scheduled Castes and
Scheduled Tribes, that object must be given effect to, and has
been given effect by the judgment in M.Nagaraj case. This being
the case, one cannot countenance an argument which would
indirectly revisit the basis or foundation of the constitutional
amendments themselves in order that one small part of M.Nagaraj
case be upheld, namely, that there be quantifiable data for judging
backwardness of the Scheduled Castes and the Scheduled Tribes
in promotional posts. The concept of "creamy layer" applies to
persons within the Scheduled Castes or the Scheduled Tribes
who no longer require reservation, as opposed to posts beyond
the entry stage, which may be occupied by members of the
Scheduled Castes or the Scheduled Tribes. [Para 19] [703-A-C,
E-H; 704-A-C]
1.7 The Attorney General requested that the proportion
of Scheduled Castes and Scheduled Tribes to the population of
India should be taken to be the test for determining whether
they are adequately represented in promotional posts for the
purpose of Article 16(4-A). He complained that M.Nagaraj case
ought to have stated this, but has said nothing on this aspect.
According to this Court, M.Nagaraj case has wisely left the test
for determining adequacy of representation in promotional posts
to the States for the simple reason that as the post gets higher, it
may be necessary, even if a proportionality test to the population
as a whole is taken into account, to reduce the number of
Scheduled Castes and Scheduled Tribes in promotional posts, as
one goes upwards. This is for the simple reason that efficiency of
administration has to be looked at every time promotions are
made. As has been pointed out by B.P. Jeevan Reddy, J.'s
judgment in Indra Sawhney (1) case, there may be certain posts
right at the top, where reservation is impermissible altogether.
For this reason, it is made clear that Article 16(4-A) has been
couched in language which would leave it to the States to
determine adequate representation depending upon the
promotional post that is in question. It can be seen that when
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seats are to be reserved in the House of the People for the
Scheduled Castes and Scheduled Tribes, the test of
proportionality to the population is mandated by the Constitution.
The difference in language between this provision and Article
16(4-A) is important. [Para 20] [704-D-G]
1.8 The judgment in M.Nagaraj case does not need to be
referred to a seven-Judge Bench. However, the conclusion in
the M.Nagaraj case 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 (1) case is held to be invalid to this extent.
[Para 21] [706-B]
M. Nagaraj v. Union of India (2006) 8 SCC 212 :
[2006] 7 Suppl. SCR 336 ; Indra Sawhney v. Union of
India (Indra Sawhney 1) (1992) Suppl. 3 SCC 217 :
[1992] 2 Suppl. SCR 454 ; R.K. Sabharwal v. State of
Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ;
E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 :
[2004] 5 Suppl. SCR 972 ; Keshav Mills Co. Ltd. v.
Commissioner of Income-Tax, Bombay North [1965] 2
SCR 908 ; Indra Sawhney v. Union of India and Ors.
(Indra Sawhney 2) (2000) 1 SCC 168 : [1999] 5 Suppl.
SCR 229 ; Indira Nehru Gandhi v. Raj Narain & Anr.
(1975) Suppl. SCC 1 : [1976] 2 SCR 347 ; Ashoka
Kumar Thakur v. Union of India (2008) 6 SCC 1 :
[2008] 4 SCR 1 ; State of Kerala & Anr. v. N.M. Thomas
and Ors. (1976) 2 SCC 310 : [1976] 1 SCR 906 ;
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and
Ors. (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Anil Chandra
v. Radha Krishna Gaur (2009) 9 SCC 454 : [2009] 14
SCR 335 (two-Judges Bench) ; Suraj Bhan Meena &
Anr. v. State of Rajasthan & Ors. (2011) 1 SCC 467 :
[2010] 14 SCR 532 (two-Judges Bench) ; U.P. Power
Corporation v. Rajesh Kumar & Ors. (2012) 7 SCC 1 :
[2012] 4 SCR 118 (two-Judges Bench) ; S. Panneer
Selvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10
SCC 292 (two-Judges Bench) ; Chairman & Managing
Director, Central Bank of India & Ors. v. Central Bank
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA
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of India SC/ST Employees Welfare Association & Ors.
(2015) 12 SCC 308 : [2015] 1 SCR 55 (two-Judges
Bench) ; Suresh Chand Gautam v. State of U.P. & Ors.
(2016) 11 SCC 113 : [2016] 1 SCR 727 (two-Judges
Bench) ; B.K. Pavitra & Ors. v. Union of India & Ors.
(2017) 4 SCC 620 : [2017] 1 SCR 631 (two-Judges
Bench) ; General Categories Welfare Federation v.
Union of India (2012) 7 SCC 40 (three-Judge
Bench) ; Rohtas Bhankar v. Union of India (2014) 8
SCC 872 : [2014] 8 SCR 871 (five-Judge Bench) -
referred to.
Case Law Reference
[2006] 7 Suppl. SCR 336
 referred to
Para 1
[1992] 2 Suppl. SCR 454
 referred to
Para 3
[1995] 2 SCR 35
 referred to
Para 3
[2004] 5 Suppl. SCR 972
 referred to
Para 3
[1965] 2 SCR 908
 referred to
Para 4
[1999] 5 Suppl. SCR 229
 referred to
Para 8
[1976] 2 SCR 347
 referred to
Para 11
[2008] 4 SCR 1
 referred to
Para 12
[1976] 1 SCR 906
 referred to
Para 15
[2007] 1 SCR 706
 referred to
Para 17
[2009] 14 SCR 335
 referred to
Para 17
[2010] 14 SCR 532
 referred to
Para 17
[2012] 4 SCR 118
 referred to
Para 17
(2015) 10 SCC 292
 referred to
 Para 17
[2015] 1 SCR 55
 referred to
Para 17
[2016] 1 SCR 727
 referred to
Para 17
[2017] 1 SCR 631
 referred to
Para 17
(2012) 7 SCC 40
 referred to
Para 17
[2014] 8 SCR 871
 referred to
Para 17
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CIVIL APPELLATE JURISDICTION : Special Leave Petition
(Civil) No. 30621 of 2011
From the Judgment and Order dated 15.07.2011 of the High Court
of Punjab and Haryana at Chandigarh in CWP No. 13218 of 2009
WITH
Special Leave Petition (Civil) No... CC No. 6821 of 2017
Special Leave Petition (Civil) Nos. 31735, 35000 of 2011, Special
Leave Petition (Civil) Nos. 4831, 2839, 5860, 5859, 30841 of 2012,
Special Leave Petition (Civil) Nos. 8327, 6915, 16710-16711, 33163,
23344, 23339-23340 of 2014, Special Leave Petition (Civil) Nos. 21343,
25191, 31191, 33688, 19765-19767 of 2015, Special Leave Petition (Civil)
Nos. 10638, 17491, 18844, 19422-19423, 24681, 28446-28447, 28306,
30942, 31288 of 2017, Special Leave Petition (Civil) Nos. 16469, 18925,
and 22985 of 2018. Civil Appeal Nos. 5247, 11817, 11816, 11820, 1182211825, 11837-11840, 11842-11845, 11829-11832, 11847-11850, 11828 OF
2016, Civil Appeal Nos. 4562-4564, 4880, 4878-4879, 4876-4877, 4881,
4882, 4833, 701-704 of 2017, Contempt Petition (Civil) No. 314 of 2016
in Special Leave Petition (Civil) No. 4831 of 2012, Contempt Petition
(Civil) No 11 of 2017 in Special Leave Petition (Civil) No. 19765 of
2015 @ Special Leave Petition (Civil) Nos. 19765-19767 of 2015,
Contempt Petition (Civil) No 13 of 2017 in Special Leave Petition (Civil)
No 19767 of 2015 @ Special Leave Petition (Civil) Nos.19765-19767
of 2015 and Transfer Petition (Civil) Nos. 608-609 of 2017,
Special Leave Petition (Civil)... Diary Nos. 28776, 29066, 30189, 31145,
33481, 33488, 34271, 34520, 35324, 35577, 35818, 36305, 36377, 38895,
42413 of 2017, Special Leave Petition (Civil).. Diary Nos.619, 969, 971,
1042, 1046, 1584, 2677, 7243, 22349 of 2018.
K. K. Venugopal, AG, Purushendra Kaurav, Adv. Gen., Manan
Kumar Mishra, Saurabh Mishra, Ms. Aishwarya Bhati, AAGs,
K. Radhakrishnan, P.S. Patwalia, A. Mariarputham, Ms. Indira Jaising,
Sanjay R. Hegde, Rupinder Singh Suri, Nidhesh Gupta, Salman Khurshid,
R.L. Vanjarani, Dr. Rajiv Dhawan, Soumya Chakraborty, Amarendra
Sharan, Dinesh Dwivedi, Ms. Kiran Suri, Ms. V. Lakshmi Narayan,
Rakesh Dwivedi, Atul Yeshwant Chitale, Shekhar Naphade, Sr. Advs.
Chandra Bhushan Prasad, Shantanu Krishna, Ajit Wagh, Apoorv Shukla,
Ashok K. Mahajan, Mohan Pandey, K.N. Rai, Ms. Ruchi Kohli,
P.K. Mullick, G.S. Makkar, Mrs. Anil Katiyar, Mukesh Kumar Maroria,
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA
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Ms. Shraddha Deshmukh, Ankur Talwar, R. Balasubramanian, Rohit
Bhatt, Ms. Kanika Saran, Prabhas Bajaj, Arvind Kumar Sharma,
Subodeep Roy, Rituraj Biswas, Ms. Natasha Dalmia, Ms. Harishika
Verma, Sayooj Mohan Das, Dinesh Rattan Bhardwaj, Dr. Ashutosh Garg,
Ms. Abha R. Sharma, D.S. Parmar, Ms. Sujeeta Srivastava, Ankit Mishra,
Ms. Hanshika Verma, Ms. Natasha, Ms. Aruna Mathur, Avneesh
Arputham, Ms. Anuradha Arputham, Yusuf Khan, Ms. Geetanjali,
M/s. Arputham Aruna and Co., Som Raj Choudhury, Prashant Kumar,
Krishan Singh Chauhan, Ajit Kumar Ekka, Ravi Prakash, Murari Lal,
K.C. Lamba, Deepak Jain, Mrs. Jaspreet A., Ms. Prabhleen Kaur,
Ms. A. Sumathi, Arjun Garg, Devansh Shrivastava, Ms. Ajita Sharma,
Sumit Pachkhande, Nagesh Gajghate, Ms. Shashi Kiran, Satish Chandra,
Sana Mujawar, Manoj Jain, Arjun Sain, Prakash Sharma, Mohd. Naved,
Pankaj Sharma, Ms. Prerna Mehta, B. Krishna Prasad, Manoj Gorkela,
Pranja Kishore, S. Nithin, M/s. Gorkela Law Office, Varun Khanna,
Aditya Giri, Alok Singh, Sahil, Ms. Vriti Gujral, Ms. Pallavi Singhi, Prakash
Sharma (for M/s. Gorkela Law Office), Mohammad Ibrahim, Ms. Lubna
Naaz, Mrs. Kunika, Aniruddha P. Mayee, Hitesh Kumar Sharma,
S.K. Rajora, Dr. (Mrs.) Vipin Gupta, Shreekant N. Terdal, Aakarsh K.,
Pratik R. Bombarde, Pradeep S. Wthore, Abhishek Kumar, Jitendra
Ashok, M/s. S.M. Jadhav & Co., S.B. Pawar, Shriram Pingale, Sagar
Pawan, Pratik Gaurav, Ms. Sneha Iyer, Ms. Deepa Kulkarni, Ms. Suvrna
Ganu, Nishant Ramakantraw Katneshwarkar, Gurjyot Sethi, Ms. Shivangi
Khanna, Ms. Tanvi Kakar, Abhijat P. Medh, Sunil Kumar, Gaya Prasad,
Randhir Singh, Satya Prakash Gautam, Ms. Olivia Bang, D. Kumanan,
Pulkit Tare, Satya Mitra, Arvind S. Avhad, P. K. Jayakrishnan, R. S. M.
Kalky, Ramesh Kumar, Ram Kishan, Sat Narain, Dr. Gunratan Sadavarte,
Dr. Jay Shree L. Patil, Pankaj Kumar Singh, Pankaj Kumar Shukla,
Makrand Pratap Singh, Mukesh Verma, Raj Singh Rana, Rakesh V.
Rathod, Dinesh P. Rajbhar, Ms. Anzu K. Varkey, Prashant R. Dahat,
T.R.B. Sivakumar, Shreyas G., Gopal Sankaranarayanan, Shobhit Tiwari,
Lal Pratap Singh, Umesh Pratap Singh, Shrey Patnaik, Ms. Aishwarya
Kane, Ms. N. Annapoorani, Karan Khanna, Arjun Aggarwal, Bhaskar
Aditya, Aniket Bhattacharya, Pradeep Aggarwal, Paban Sharma, Anirudh
Sharma, Ram Niwas, R. S. Chauhan, Ms. Niranjana Singh, A. Subba
Rao, K.L.D.S. Vinober, Chand Kiran, Anuj Saxena, Ms. Payal Gaikwad,
Satpal Singh, S.N. Bhat, Prashant Bhushan, Amit Anand Tiwari,
Ms. Shakun Sharma, Ms. Harshal Gupta, N. Raja Senthoor Pandian,
Vivek Singh, Sushil Karanjkar, K.N. Rai, Kuldip Singh, P. Soma
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Sundaram, Chandan Kumar, Rituraj Choudhary, Ms. Sujaya Bardhan,
Krishnam Mishra, Nishant Singh, Yasharth Kant, Kumar Parimal, Prakash
Pandey, Sanjeev Kumar Choudhary, S. J. Amith, Ms. Aishwarya Kumar,
Krishan Kumar, Mrs. Vipin Gupta, Sailash Madiyal, Sudhanshu Prakash,
Dinesh K. Garg, Abhishek Garg, Dhananjay Garg, Deepak Mishra,
Sriniwas Babu, N. Premraj, Anil Kumar Mishra, Anuj Singh, Ms. Alka
Sinha, Anuvrat Sharma, Ravindra Kumar, Fuzail Ahmad Ayyubi,
Ms. Aditi Gupta, Ibad Mushtaq, Ms. Kauser Husain, Pranjal Kishore,
Abdul Qadir, Samir Ali Khan, M. Shoeb Alam, Captain Gurvinder Singh,
Ms. Vivya Nagpal, Gaurav Kejriwal, Sandeep Devashish Das, Prateek
Rusia, Gaurav Agrawal, B. Sridhar, Suyash Mohan Guru, Ms. Sansriti
Pathak, Sarvesh Singh Baghel, K.B. Baghel, Ms. Lalita Kaushik,
Vardhman Kaushik, Amol Srivastava, Eklavya Dwivedi, Naresh Kaushik,
Nishant Gautam, Karn Deo Baghel, Omungraj Gupta, Manoj Joshi, Devi
K. Singh, S.K. Gangele, Vivek Jaswal, Dhruv Joshi, K.K.L. Gautam,
Abhishek Kr. Suman, Rahul M., R.R. Bag, Sanjeev Maolhotra, M.K.
Dua, Gopal Singh, Ms. Amita Singh Kalkal, Puneet Jain, Abhinav Gupta,
Harsh Jain, Ms. Christi Jain, Ms. Vineeta Meghrajani, Vishwa Pal Singh,
Smarhar Singh, Ms. Priya Sharma, Prathvi Raj Chauhan, Ms. Suchitra
Atul Chitale, Ravindra Keshavrao Adsure, Dr. M.P. Raju, M. Vijaya
Bhaskar, S.P. Singh, Mrs. Suchitra A. Chitale, Nikhilesh Ramachandran,
Sanjay Kharde, Samrat Shinde, Abhikalp Pratap Singh, Sunil Kumar
Verma, Avijit Bhattacharjee, Mrs. Upma Shrivastava, Ajoy Kr. Ghosh,
Nitin Deorao Meshram, Ranbir Singh Yadav, Sagar Kushwah, Chandan
Ramamurthi, Manoj R. Sinha, Venkateswara Rao Anumolu, Sant Ranjan
Das, Anindo Mukherjee, Ms. Sarla Chandra, Advs. for the appearing
parties.
Respondent-in-person.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. The present group of cases arises out of
two reference orders - the first by a two-Judge Bench referred to in a
second reference order, dated 15.11.2017, which is by a three-Judge
Bench, which has referred the correctness of the decision in M. Nagaraj
v. Union of India, (2006) 8 SCC 212, ("Nagaraj"), to a Constitution
Bench.
2. The controversy in these matters revolves around the
interpretation of the following Articles of the Constitution of India:
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"16. Equality of opportunity in matters of public
employment.-
xxx xxx xxx
(4-A) Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
(4-B) Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being
filled up in that year in accordance with any provision for
reservation made under clause (4) or clause (4-A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number
of vacancies of that year."
xxx xxx xxx
"335. Claims of Scheduled Castes and Scheduled Tribes to
services and posts.-The claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts
in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and
the Scheduled Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation, for reservation
in matters of promotion to any class or classes of services or
posts in connection with the affairs of the Union or of a State."
xxx xxx xxx
"341. Scheduled Castes.-(1) The President may with respect
to any State or Union Territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the castes, races or tribes or parts of or groups within
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castes, races or tribes which shall for the purposes of this
Constitution be deemed to be Scheduled Castes in relation to that
State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause
(1) any caste, race or tribe or part of or group within any caste,
race or tribe, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification."
xxx xxx xxx
"342. Scheduled Tribes.-(1) The President may with respect
to any State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that
State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause
(1) any tribe or tribal community or part of or group within any
tribe or tribal community, but save as aforesaid a notification issued
under the said clause shall not be varied by any subsequent
notification."
3. We have heard wide-ranging arguments on either side for a
couple of days, raising several points. However, ultimately, we have
confined arguments to two points which require serious consideration.
The learned Attorney General for India, Shri K.K. Venugopal, led the
charge for reconsideration of Nagaraj (supra). According to the learned
Attorney General, Nagaraj (supra) needs to be revisited on these two
points. First, when Nagaraj (supra) states that the State has to collect
quantifiable data showing backwardness, such observation would be
contrary to the nine-Judge Bench in Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217, ("Indra Sawhney (1)"), as it has been held
therein that the Scheduled Castes and the Scheduled Tribes are the most
backward among backward classes and it is, therefore, presumed that
once they are contained in the Presidential List under Articles 341 and
342 of the Constitution of India, there is no question of showing
backwardness of the Scheduled Castes and the Scheduled Tribes all
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over again. Secondly, according to the learned Attorney General, the
creamy layer concept has not been applied in Indra Sawhney (1) (supra)
to the Scheduled Castes and the Scheduled Tribes and Nagaraj (supra)
has misread the aforesaid judgment to apply this concept to the Scheduled
Castes and the Scheduled Tribes. According to the learned Attorney
General, once the Scheduled Castes and the Scheduled Tribes have been
set out in the Presidential List, they shall be deemed to be Scheduled
Castes and Scheduled Tribes, and the said List cannot be altered by
anybody except Parliament under Articles 341 and 342. The learned
Attorney General also argued that Nagaraj (supra) does not indicate
any test for determining adequacy of representation in service. According
to him, it is important that we lay down that the test be the test of
proportion of Scheduled Castes and Scheduled Tribes to the population
in India at all stages of promotion, and for this purpose, the roster that
has been referred to in R.K. Sabharwal v. State of Punjab, (1995) 2
SCC 745 can be utilized. Other counsel who argued, apart from the
learned Attorney General, have, with certain nuances, reiterated the same
arguments. Ms. Indira Jaising, learned senior advocate, appearing on
behalf of one of the Petitioners in C.A. No. 11816 of 2016, submitted
that Nagaraj (supra) needs to be revisited also on the ground that Article
16(4-A) and 16(4-B) do not flow from Article 16(4), but instead flow
from Articles 14 and 16(1) of the Constitution. She further argued that
claims of the Scheduled Castes and the Scheduled Tribes are based on
a reading of Articles 14, 15, 16, 16(4-A), 16(4-B), and 335 of the
Constitution. It was further submitted that a further sub-classification
within Scheduled Castes and Scheduled Tribes is impermissible, as has
been held in Indira Sawhney (1) (supra) and in E.V. Chinnaiah v.
State of A.P., (2005) 1 SCC 394 ("Chinnaiah"). She argued that the
decision in Nagaraj (supra) would have the effect of amending the
Presidential Order relating to Scheduled Castes and Scheduled Tribes,
which would violate Articles 341 and 342 of the Constitution of India, as
Parliament alone can amend a Presidential Order. She concluded her
argument by saying that the exercise of reading down a constitutional
amendment to make it valid, conducted in Nagaraj (supra), was
constitutionally impermissible. Shri P.S. Patwalia, learned senior advocate,
appearing on behalf of the State of Tripura, reiterated some of the
submissions and added that Nagaraj (supra) and Chinnaiah (supra)
cannot stand together, which is why Nagaraj (supra) is per incuriam as
it does not refer to the judgment in Chinnaiah (supra) at all.
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4. On the other hand, Shri Shanti Bhushan has defended Nagaraj
(supra) by stating that when Nagaraj (supra) speaks about backwardness
of the "class", what is referred to is not Scheduled Castes and Scheduled
Tribes at all, but the class of posts. Hence, it is clear that backwardness
in relation to the class of posts spoken of would require quantifiable
data, and it is in that context that the aforesaid observation is made. He
also argued, relying upon Keshav Mills Co. Ltd. v. Commissioner
of Income-Tax, Bombay North, (1965) 2 SCR 908, ("Keshav
Mills"), that a Constitution Bench judgment which has stood the test of
time, ought not to be revisited, and if the parameters of Keshav Mills
(supra) are to be applied, it is clear that Nagaraj (supra) ought not to be
revisited. Shri Rajeev Dhavan, learned senior advocate, has argued before
us that Nagaraj (supra) has to be understood as a judgment which has
upheld the constitutional amendments adding Articles 16(4-A) and 16(4B) on the ground that they do not violate the basic structure of the
Constitution. According to him, since equality is part of the basic structure,
and Nagaraj (supra) has applied the 50% cut-off criterion, creamy layer,
and no indefinite extension of reservation, as facets of the equality
principle to uphold the said constitutional amendments, Nagaraj (supra)
ought not to be revisited. According to the learned senior counsel, "creamy
layer" is a matter of applying the equality principle, as unequals within
the same class are sought to be weeded out as they cannot be treated as
equal to the others. The whole basis for application of the creamy layer
principle is that those genuinely deserving of reservation would otherwise
not get the benefits of reservation and conversely, those who are
undeserving, get the said benefits. According to the learned senior
advocate, the creamy layer principle applies to exclude certain individuals
from the class and does not deal with group rights at all. This being the
case, Articles 341 and 342 are not attracted. Further, Articles 341 and
342 do not concern themselves with reservation at all. They concern
themselves only with identification of those who can be called Scheduled
Castes and Scheduled Tribes. On the other hand, the creamy layer
principle is applied by Courts to exclude certain persons from reservation
made from within that class on the touchstone of Articles 14 and 16(1)
of the Constitution of India. He argued that even if it be conceded that
creamy layer can fall within Articles 341 and 342, yet the Court's power
to enforce fundamental rights as part of the basic structure cannot be
taken away. Indeed, Nagaraj (supra) was a case pertaining to a
constitutional amendment and, therefore, Articles 341 and 342 cannot
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stand in the way of applying the basic structure test to a constitutional
amendment.
5. Shri Rakesh Dwivedi, learned senior advocate, appearing in
C.A. No. 5247 of 2016, submitted that the crucial language contained in
Article 16(4-A) is that the word "which" would show that Scheduled
Castes and Scheduled Tribes have to continue to be "backward". If the
expression "the Scheduled Castes and the Scheduled Tribes" in Article
16(4-A) would be read as "the Scheduled Castes and the Scheduled
Tribes employees", this would become even clearer. Therefore, according
to the learned senior advocate, continued social backwardness of the
Scheduled Castes/Scheduled Tribes employees has necessarily to be
assessed. While making promotions to higher level posts, it becomes
clear that a Scheduled Caste/Scheduled Tribe employee may have cast
off his backwardness when he/she reaches a fairly high stage in a service,
for example, the post of Deputy Chief Engineer, at which stage, it would
be open for the State to say that having regard to the absence of any
backwardness of the Scheduled Caste/Scheduled Tribe employee at this
stage, it would be expedient not to reserve anything further in posts
above this stage. Shri Naphade, Shri Gopal Sankaranarayanan and other
counsel followed suit and broadly supported the arguments of Shri Dhavan
and Shri Dwivedi.
6. Since we are asked to revisit a unanimous Constitution Bench
judgment, it is important to bear in mind the admonition of the Constitution
Bench judgment in Keshav Mills (supra). This Court said:
"[I]n reviewing and revising its earlier decision, this Court should
ask itself whether in the interests of the public good or for any
other valid and compulsive reasons, it is necessary that the earlier
decision should be revised. When this Court decides questions of
law, its decisions are, under Article 141, binding on all courts within
the territory of India, and so, it must be the constant endeavour
and concern of this Court to introduce and maintain an element of
certainty and continuity in the interpretation of law in the country.
Frequent exercise by this Court of its power to review its earlier
decisions on the ground that the view pressed before it later
appears to the Court to be more reasonable, may incidentally tend
to make law uncertain and introduce confusion which must be
consistently avoided. That is not to say that if on a subsequent
occasion, the Court is satisfied that its earlier decision was clearly
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erroneous, it should hesitate to correct the error; but before a
previous decision is pronounced to be plainly erroneous, the Court
must be satisfied with a fair amount of unanimity amongst its
members that a revision of the said view is fully justified. It is not
possible or desirable, and in any case it would be inexpedient to
lay down any principles which should govern the approach of the
Court in dealing with the question of reviewing and revising its
earlier decisions. It would always depend upon several relevant
considerations: - What is the nature of the infirmity or error on
which a plea for a review and revision of the earlier view is based?
On the earlier occasion, did some patent aspects of the question
remain unnoticed, or was the attention of the Court not drawn to
any relevant and material statutory provision, or was any previous
decision of this Court bearing on the point not noticed? Is the
Court hearing such plea fairly unanimous that there is such an
error in the earlier view? What would be the impact of the error
on the general administration of law or on public good? Has the
earlier decision been followed on subsequent occasions either by
this Court or by the High Courts? And, would the reversal of the
earlier decision lead to public inconvenience, hardship or mischief?
These and other relevant considerations must be carefully borne
in mind whenever this Court is called upon to exercise its
jurisdiction to review and revise its earlier decisions. These
considerations become still more significant when the earlier
decision happens to be a unanimous decision of a Bench of five
learned Judges of this Court."
 (at pp. 921-922)
7. We may begin with the nine-Judge Bench in Indra Sawhney
(1) (supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J.,
speaking on behalf of himself and three other learned Judges, with Pandian
and Sawant, JJ., broadly concurring in the result by their separate
judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The bone
of contention in this landmark judgment was the Mandal Commission
Report of 1980, which was laid before Parliament on two occasions -
once in 1982, and again in 1983. However, no action was taken on the
basis of this Report until 13.08.1990, when an Office Memorandum stated
that after considering the said Report, 27% of the vacancies in civil
posts and services under the Government of India shall be reserved for
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