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

- **Citation:** [2006] Supp. 7 S.C.R. 336
- **Court:** Supreme Court of India
- **Decided:** 2006-10-19
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-nagaraj-and-ors-v-union-of-india-and-ors-21753
- **Pages:** 79

## Headnote

A
M. NAGARAJ AND ORS.
v.
UNION OF INDIA AND ORS
OCTOBER 19, 2006
B [Y.K. SABHARWAL, CJ., K.G. BALAKRISHNAN, S.H. KAPADIA, C.K.
THAKKER AND P.K. BALASUBRAMANY AN, JJ.]
Constitution of India, 1950; Articles 14, 16(/), (2), (3), (4), (4A) & (48),
C 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 of opportunity in employmentAltering of basic structure-Held: Principles set out in the Constitution should
D be interpreted by adopting a purposive approach- Secularism, democracy,
reasonableness. social justice are overarching principles providing linking
factor for fundamental rights-Validity of amendments in the Constitution is
judged by app(ving the principle of basic structure-Equality is the essence of
democracy and thus a basic feature of the Constitutio~Fundamental rights
could be abridged but not destroyed-Object and purpose of the particular
E feature and consequences of its denial on the integrity of the Constitution has
to be determined/tested in order lo ascertain whether it forms part of the basic
structure of the Constitutio~onjlicting claim of individual 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
F 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 a limited sense else it would perpetuate criticism-Exercise of power by the
State may be arbitrary if it fails to identifY and measure backwardness and
inadequacy keeping in view the efficiency of service in terms of Article 335 of
the Constitution-Equality in terms of Article 16(2) is individual specificG However, reservation as provided under Articles 16(4), !6(4)(A) is enablingState 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 of Articles 14,
15 and 16 of the Constitution-Equality is not violated by mere conferment of
H
336
-
M. NAGARAJ v. U.O.l.
337
discretionary power but it is violated by arbitrary exercise of the power- A
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 of the system-If relaxation 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) B
together form part of the 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 of by the State concerned and their existence shown in C
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 of the Constitution-Desirability of reservation in terms of Reservation
policy could be decided by the State, it could not be inte1fered by Supreme
Court so long as parameters in terms of Article J 6(4)(A) are maintained.
D
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 E
the roster in order to ascertain adequacy of representation of a class/group

## Text

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A
M. NAGARAJ AND ORS.
v.
UNION OF INDIA AND ORS
OCTOBER 19, 2006
B [Y.K. SABHARWAL, CJ., K.G. BALAKRISHNAN, S.H. KAPADIA, C.K.
THAKKER AND P.K. BALASUBRAMANY AN, JJ.]
Constitution of India, 1950; Articles 14, 16(/), (2), (3), (4), (4A) & (48),
C 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 of opportunity in employmentAltering of basic structure-Held: Principles set out in the Constitution should
D be interpreted by adopting a purposive approach- Secularism, democracy,
reasonableness. social justice are overarching principles providing linking
factor for fundamental rights-Validity of amendments in the Constitution is
judged by app(ving the principle of basic structure-Equality is the essence of
democracy and thus a basic feature of the Constitutio~Fundamental rights
could be abridged but not destroyed-Object and purpose of the particular
E feature and consequences of its denial on the integrity of the Constitution has
to be determined/tested in order lo ascertain whether it forms part of the basic
structure of the Constitutio~onjlicting claim of individual 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
F 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 a limited sense else it would perpetuate criticism-Exercise of power by the
State may be arbitrary if it fails to identifY and measure backwardness and
inadequacy keeping in view the efficiency of service in terms of Article 335 of
the Constitution-Equality in terms of Article 16(2) is individual specificG However, reservation as provided under Articles 16(4), !6(4)(A) is enablingState 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 of Articles 14,
15 and 16 of the Constitution-Equality is not violated by mere conferment of
H
336
-
M. NAGARAJ v. U.O.l.
337
discretionary power but it is violated by arbitrary exercise of the power- A
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 of the system-If relaxation 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) B
together form part of the 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 of by the State concerned and their existence shown in C
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 of the Constitution-Desirability of reservation in terms of Reservation
policy could be decided by the State, it could not be inte1fered by Supreme
Court so long as parameters in terms of Article J 6(4)(A) are maintained.
D
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 E
the roster in order to ascertain adequacy of representation of a class/group
in service-However, the upper ceiling limit of 50% should not be exceededArticle 16(4)(A) gives freedom to the State to provide for reservation in the
matter of promotion for Scheduled Castes and Scheduled Tribes-In the absence
of compelling reasons of backwardness and inadequacy of representation, the
State cannot make reservation-Besides, it should also keep in view overall F
efficiency in terms of Article 335.
Amendments in the Constitution-Judicial Review-Scope ()(-Discussed.
Basic structure of the Constitution-Determination of-Width test and
identity test-Applicability of-Discussed.
G
'Constituent power'-Meaning of
'Equality of opportunity'-Meaning of
'Fundamental rights'-Meaning and scope of
H
338
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A
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.
B
'Merits', 'contents of reservation'-Meaning of
c
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',
D '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
E 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.
F
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
G 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 of the impugned
constitutional amendments, the power of the Parliament is so enlarged so
as to obliterate any or all of the constitutional limitations and
H requirements.
M. NAGARAJ v. U.0.1.
339
Petitioner contended that the amendments in question seek to alter A
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 B
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) C
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 D
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 E
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 F
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 of sub-clauses within Article 16 is not G
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 H
340
SUPREME COURT REPORTS [2006] ~UPP. 7 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H 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 A
16(48) has been brought in to nullify the effect of the decision in R.K.
Sabharwal & Ors. v. State of Punjab 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 B
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, C
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 D
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.
E
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 F
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 G
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 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 H
342
SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.
A 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
B 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
C 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
D
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
E 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
F 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,
G 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
H 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 of such power A
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 B
for reservation for promotion only to SCs and STs.; that under Article
t 6( 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 C
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 D
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
E
a strict literal approach to the interpretation should be adopted. A
Constitutional provision must be construed not in a narrow and F
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 G
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 H
344
SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.
A 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
B 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
c
Sakal Papers (P) L!d & Ors. v. Union of India and Ors., AIR (1962)
SC 305; A.K. Gopalan v. State of Madras AIR (1950) SC 27 and Maneka
Gandhi v. Union of India and Anr., AIR (1978) SC 597, referred to.
2.1. The concept of a basic structure giving coherence and durability
D 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
E 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 if they are not expressly stated in the form of rules.
F
1372-A, Bl
S.R. Bommai & Ors etc. v. Union of India & 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
G 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
H
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 pre- A
occupation 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 of Kera/a and
Anr., 119731 4 SCC 225, followed.
B
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 C
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 D
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 E
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 of India & Ors., 11981[ 1SCR206,
followed.
'Challenge to the Living Constitution' by Herman Belz, referred to.
F
3.3. There can be no rule of law if there is no equality before the G
law; and rule of law and equality before the law would be empty words if
their violation was not a matter of judicial scrutiny or judicial review and
judicial relief and all these features would lose their significance if judicial,
executive and legislative functions were united in only one authority, whose
dictates had the force of law. The rule of law and equality before the law H
346
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A 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
B 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
C 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
D 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 of India & Ors., ( 1981 J 1 SCR 206
and Indira Nehru Gandhi v. Raj Narain (Election Case) [19761 2 SCR 347,
E 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
F 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
G 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)
H
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 A
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 B
'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] C
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 D
'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]
E
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 F
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 G
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 H
348
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A 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
B consider it to be relevant to public employment because ultimately it has
to bear the costs arising from errors in defining and measuring merit.
c
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
D 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 levelE playing field to the oppressed classes. Affirmative action in the above sense
seeks to move beyond the concept of non-discrimination towards equalizing
results with respect to various groups. Both the conceptions constitute
"equality of opportunity". [379-F, G)
5.5. It is the equality "in fact" which has to be decided looking at
F 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.
G
[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
H 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 A
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)
B
7.2. There are three criteria to judge the basis of distribution, C
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 D
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 E
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 F
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 G
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]
H
350
SUPREME COURT REPORTS (2006] SUPP. ·, S.C.R.
A
Union of India & 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 of Mysore & Ors., AIR (1963)
SC 649; State of Kera/a and Anr. v. N.M. Thomas and Ors., (1976) 2 SCC
B 310; Indra Sawhney & Ors. v. Union of India, [19921Supp.3 SCC 217; T.
Devadasan v. Union of India & Ors., AIR (1964) SC 179; R.K. Sabharwal
& Ors. v. State of Punjab & Ors., (19951 2 SCC 745; Ajit Singh Januja &
Ors. v. State of Punjab & Ors. (Ajit Singh-I) (1996) 2 SCC 715; Jagdish Lal
& Ors. v. State of Haryana & Ors., (1997) 6 SCC 538 and Ajit Singh & Ors.
C (II) v. State of Punjab & Ors., [1999) 7 SCC 209, referred to.
D
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 of India & 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
E 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 of Punjab & Ors. (Ajit Singh-I) (1996)
F 2 SCC 715; Ajit Singh & Ors. (II) v. State of Punjab & Ors., (1999) 7 SCC
209 and M.G. Badappanavar & Anr. v. State of Karnataka & 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
G 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 of India, (19921 Supp. 3 SCC 217 and
R.K. Sabhanval & Ors. v. State of Punjab & Ors., [1995) 2 SCC 745, referred
H to.
=r--
M. NAGARAJ v. U.0.1.
351
8.5. Clause (4A) of Article 16 of the Constitution is an enabling A
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 B
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 C
Government by providing for reservation in promotion for SCs and STs.
(394-F, G, H; 395-AJ
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
D
in addition to accelerated promotion to the roster-point promotees. Suffice E
it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was
an extension of clause (4A) of Article 16.