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CASE NO.: Writ Petition (civil)  61 of 2002

PETITIONER: M.Nagaraj & Others                                       

RESPONDENT: Union of India & Others                          

DATE OF JUDGMENT: 19/10/2006

BENCH: Y.K.SABHARWAL CJI & K.G.BALAKRISHNAN & S.H.KAPADIA & C.K.THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

with WP (C) Nos.62, 81, 111, 134, 135, 206, 226, 227, 255, 266,  269, 279, 299, 294, 295, 298, 250, 319, 375, 386, 387, 320,  322, 323, 338, 234, 340, 423, 440, 453, 460, 472, 482, 483,  484, 485, 550, 527 and 640 of 2002, SLP (C) Nos. 4915-4919  of 2003, 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 of 2003, 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.14518 of 2004.

DELIVERED BY: S.H.KAPADIA, J.

KAPADIA, J.

The width and amplitude of the 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) NO.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, 2001  inserting Article 16(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

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decisions of this Court in the case of Union of India and  others v. Virpal Singh Chauhan and others , Ajit  Singh Januja and others v. State of Punjab and  others  (Ajit Singh-I), Ajit Singh and others (II) v.  State of Punjab and others , Ajit Singh and others  (III) v. State of Punjab and others , Indra Sawhney  and others v. Union of India , and M. G.  Badappanavar and another v. State of Karnataka  and others .  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 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(1) 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  Sawhney5 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: 1.      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 of the Supreme Court in

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matters relating to promotion and their application 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(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 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(1) and, therefore, they have a  limited meaning.  It is urged that the said words also  occur in Articles 16(4A) and 16(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

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action in Article 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.  Therefore, a  balance has to be evolved to promote equal opportunities  while protecting individual rights.  It is urged 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.  It is submitted 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.          On the question of power of amendment, it is  submitted that the limited power of amendment cannot  become an unlimited one.  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 others v. Union of India and others .  On the  question of balancing of fundamental rights vis-‘-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 numerous judgments and in particular in  Indra Sawhney5, M.G. Badaappanavar6, Ajit Singh  (II)3, the equality of opportunity in public employment is  clarified in order to structure and balance Articles 16(1)  and 16(4). In answer to the respondents’ contentions that  Articles 16(4A) and 16(4B) 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 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(4B) has been brought in to nullify the effect of the  decision in R.K. Sabharwal & Others v. State of  Punjab and others , in which it has been held that carry

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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 (II)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  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 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.  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

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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.  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 of the 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 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-III 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(1) shall stand overruled.  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’.  It is urged that  jurisprudence relating to public services do not  constitute basic feature of the Constitution.  That, the  right to consideration for promotion in service matters is  not a basic feature.

It is lastly submitted 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 reference to the exercise of the power or  manner of exercise of such power and that the impugned

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amendments have maintained the structure of Articles  16(1) to 16(4) intact.  In this connection, it is submitted  that the impugned amendments have retained  reservations at the recruitment level inconformity with  the judgment in Indra Sawhney5, 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.  It is  urged that if SCs/STs and OBCs are lumped together,  OBCs will take away all the vacancies and, therefore,  Article 16(4A) has been inserted as a special provision.   That, in Indra Sawhney5, the focus was on Backward  Classes and not on SCs/STs and, therefore, there was no  balancing of rights of three groups, namely, general  category, other backward classes and scheduled  castes/scheduled tribes.  It is, therefore, contended that  under Article 16(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  Sawhney5 stands reduced.  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.   

It is next submitted 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.  The said 50% permitted by this  Court can be reserved in such manner as the appropriate  Government may deem fit.  It is urged that if it is valid to  make reservation at higher levels by direct recruitment, it  can also be done for promotion after taking into account  the mandate of Article 335.

It is next submitted that the amendment made by  Article 16(4B) makes an exception to 50% ceiling-limit  imposed by Indra Sawhney5, by providing that the  vacancies of previous years will not be considered with  the current year’s vacancies.  In this connection, it was  urged that Article 16(4B) applies to reservations under  Article 16(4) and, therefore, if reservation is found to be  within reasonable limits, the Court would uphold such  reservations depending upon the facts of the case and if  reservation suffers from excessiveness, it may be  invalidated.  Therefore, the enabling power under Article  16(4B) cannot be rendered invalid.   

For the above reasons, respondents submit that  there is no infirmity in the impugned constitutional  amendments.

KEY ISSUE:         It is not necessary for us to deal with the above  arguments serially.  The arguments are dealt with by us  in the following paragraphs subject-wise.   

The key issue, which arises for determination in this  case is \026 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 requirements?  

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STANDARDS OF JUDICIAL REVIEW OF  CONSTITUTIONAL AMENDMENTS:

       Constitution is not an ephermal legal document  embodying a set of legal rules for the passing hour.  It  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.  A  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.   

This principle of interpretation is particularly  apposite to the interpretation of fundamental rights.  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.  Every right has a content.  Every  foundational value is put in Part-III as fundamental right  as it has intrinsic value.  The converse does not apply.  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.  A 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.  In the case of  Sakal Papers (P) Ltd. & Others v. Union of India and  others  this Court has held that while considering the  nature and content of fundamental rights, the Court  must not be too astute to interpret the language in a  literal sense so as to whittle them down.  The Court must  interpret the Constitution in a manner which would  enable the citizens to enjoy the rights guaranteed by it in  the fullest measure.  An instance of literal and narrow  interpretation of a vital fundamental right in the Indian  Constitution is the early decision of the Supreme Court  in the case of A.K. Gopalan v. State of Madras .   Article 21 of the Constitution provides that no person  shall be deprived of his life and personal liberty except  according to procedure established by law.  The Supreme  Court by a majority held that ’procedure established by  law’ means any procedure established by law made by  the Parliament or the legislatures of the State.  The  Supreme Court refused to infuse the procedure with  principles of natural justice.  It concentrated solely upon  the existence of enacted law.  After three decades, the  Supreme Court overruled its previous decision in A.K.  Gopalan10 and held in its landmark judgment in

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Maneka Gandhi v. Union of India and another  that  the procedure contemplated by Article 21 must answer  the test of reasonableness.  The Court further held that  the procedure should also be in conformity with the  principles of natural justice.  This example is given to  demonstrate an instance of expansive interpretation of a  fundamental right.  The expression ’life’ in Article 21 does  not connote merely physical or animal existence.  The  right to life includes right to live with human dignity.   This Court has in numerous cases deduced fundamental  features which are not specifically mentioned in Part-III  on the principle that certain unarticulated rights are  implicit in the enumerated guarantees.  For example,  freedom of information has been held to be implicit in the  guarantee of freedom of speech and expression.  In India,  till recently, there is no legislation securing freedom of  information.  However, this Court by a liberal  interpretation deduced the right to know and right to  access information on the reasoning that the concept of  an open government is the direct result from the right to  know which is implicit in the right of free speech and  expression guaranteed under Article 19(1)(a).   The important point to be noted is that the content  of a right is defined by the Courts.  The final word on the  content of the right is of this Court.  Therefore,  constitutional adjudication plays a very important role in  this exercise.  The nature of constitutional adjudication  has been a subject matter of several debates.  At one  extreme, it is argued that judicial review of legislation  should be confined to the language of the constitution  and its original intent.  At the other end, non- interpretivism asserts that the way and indeterminate  nature of the constitutional text permits a variety of  standards and values.  Others claim that the purpose of  a Bill of Rights is to protect the process of decision  making.

       The question which arises before us is regarding  nature of the standards of judicial review required to be  applied in judging the validity of the constitutional  amendments in the context of the doctrine of basic  structure.  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.   

In S.R. Bommai & Others etc. v. Union of India  & Others etc. , the basic structure concept was  resorted to although no question of constitutional  amendment was involved in that case.  But this Court  held that policies of a State Government directed against  an element of the basic structure of the Constitution  would be a valid ground for the exercise of the central  power under Article 356, that is, imposition of the  President’s rule.  In that case, secularism was held to be  an essential feature of the Constitution and part of its  basic structure.  A State Government may be dismissed  not because it violates any particular provision of the  Constitution but because it acts against a vital principle  enacting and giving coherence to a number of particular  provisions, example: Articles 14, 15 and 25.  In S.R.  Bommai12, the Court clearly based its conclusion not so  much on violation of particular constitutional provision

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but on this generalized ground i.e. evidence of a pattern  of action directed against the principle of secularism.   Therefore, it is important to note that the recognition of a  basic structure in the context of amendment provides an  insight that there are, beyond the words of particular  provisions, systematic principles underlying and  connecting the provisions of the Constitution. These  principles give coherence to the Constitution and make it  an organic whole.  These principles are part of  Constitutional law even if they are not expressly stated in  the form of rules.  An instance is the principle of  reasonableness which connects Articles 14, 19 and 21.   Some of these principles may be so important and  fundamental, as to qualify as ’essential features’ or part  of the ’basic structure’ of the Constitution, that is to say,  they are not open to amendment.  However, it is only by  linking provisions to such overarching principles that one  would be able to distinguish essential from less essential  features of the Constitution.

       The point which is important to be noted is that  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 if they are not expressly  stated in the form of rules.   

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

       As stated above, the doctrine of basic structure has  essentially emanated from the German Constitution.   Therefore, we may have a look at common constitutional  provisions under German Law which deal with rights,  such as, freedom of press or religion which are not mere  values, they are justiciable and capable of interpretation.   The values impose a positive duty on the State to ensure  their attainment as far as practicable.  The rights,  liberties and freedoms of the individual are not only to be  protected against the State, they should be facilitated by  it.  They are to be informed.  Overarching and informing  of these rights and values is the principle of human  dignity under the German basic law.  Similarly,  secularism is the principle which is the overarching  principle of several rights and values under the Indian  Constitution.  Therefore, axioms like secularism,  democracy, reasonableness, social justice etc. are

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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.  For example, under the German Constitutional  Law, human dignity under Article 1 is inviolable.   It is  the duty of the State not only to protect the human  dignity but to facilitate it by taking positive steps in that  direction.  No exact definition of human dignity exists.  It  refers to the intrinsic value of every human being, which  is to be respected.  It cannot be taken away.  It cannot  give.  It simply is.  Every human being has dignity by  virtue of his existence.  The Constitutional Courts in  Germany, therefore, see human dignity as a fundamental  principle within the system of the basic rights.  This is  how the doctrine of basic structure stands evolved under  the German Constitution and by interpretation given to  the concept by the Constitutional Courts.   

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

       To conclude, the theory of basic structure is based  on the concept of constitutional identity.  The basic  structure jurisprudence is a pre-occupation with  constitutional identity.  In Kesavananda Bharati  Sripadagalvaru and others v. State of Kerala and  another , it has been observed that ’one cannot legally  use the constitution to destroy itself’.  It is further  observed ’the personality of the constitution must remain  unchanged’. Therefore, this Court in Kesavananda  Bharati13, while propounding the theory of basic  structure, has relied upon the doctrine of constitutional  identity.  The word ’amendment’ postulates that the old  constitution survives without loss of its identity despite  the change and it continues even though it has been  subjected to alteration.  This is the constant theme of the  opinions in the majority decision in Kesavananda  Bharati13.  To destroy its identity is to abrogate the basic  structure of the Constitution.  This is the principle of  constitutional sovereignty.  Secularism in India has acted  as a balance between socio-economic reforms which  limits religious options and communal developments.   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.   

Lastly, constitutionalism is about limits and  aspirations.  According to Justice Brennan,  interpretation of the Constitution as a written text is  concerned with aspirations and fundamental principles.   In his Article titled ’Challenge to the Living Constitution’  by Herman Belz, the author says that the Constitution  embodies aspiration to social justice, brotherhood and  human dignity.  It is a text which contains fundamental  principles.  Fidelity to the text qua fundamental  principles did not limit judicial decision making.  The  tradition of the written constitutionalism makes it

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possible to apply concepts and doctrines not recoverable  under the doctrine of unwritten living constitution.  To  conclude, as observed by Chandrachud, CJ, in Minerva  Mills Ltd.7, ’the Constitution is a precious heritage and,  therefore, you cannot destroy its identity’.  

       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.

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

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

In the case of Minerva Mills7,  Chandrachud, C.J.,  speaking for the majority, observed that Articles 14 and  19 do not confer any fanciful rights.  They confer rights  which are elementary for the proper and effective  functioning of democracy.  They are universally regarded  by the universal Declaration of Human Rights.  If Articles  14 and 19 are put out of operation, Article 32 will be

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rendered nugatory.  In the said judgment, the majority  took the view that the principles enumerated in Part-IV  are not the proclaimed monopoly of democracies alone.   They are common to all polities, democratic or  authoritarian.  Every State is goal-oriented and every  State claims to strive for securing the welfare of its  people.  The distinction between different forms of  Government consists in the fact that a real democracy  will endeavour to achieve its objectives through the  discipline of fundamental freedoms like Articles 14 and  19.   Without these freedoms, democracy is impossible.  If  Article 14 is withdrawn, the political pressures exercised  by numerically large groups can tear the country apart  by leading it to the legislation to pick and choose  favoured areas and favourite classes for preferential  treatment.   

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

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

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

WORKING TEST IN THE MATTER OF APPLICATION  OF THE DOCTRINE OF BASIC STRUCTURE:  

       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 can not 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.   

A working test has been evolved by Chandrachud,

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J. in the Election Case14, in which the learned Judge  has rightly enunciated, with respect, that "for  determining whether a particular feature of the  Constitution 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.

CONCEPT OF RESERVATION:

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

Our Constitution has, however, incorporated the  word ’reservation’ in Article 16(4) which word is not there  in Article 15(4).  Therefore, the word ’reservation’ as a  subject of Article 16(4) is different from the word  ’reservation’ as a general concept.   Applying the above test, we have to consider the  word ’reservation’ in the context of Article 16(4) and it is  in that context that Article 335 of the Constitution which  provides for relaxation of the standards of evaluation has  to be seen.  We have to go by what the Constitution  framers intended originally and not by general concepts  or principles.  Therefore, schematic interpretation of the  Constitution has to be applied and this is the basis of the  working test evolved by Chandrachud, J. in the Election  Case14.

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

       India is constituted into a sovereign, democratic  republic to secure to all its citizens, fraternity assuring  the dignity of the individual and the unity of the nation.   The sovereign, democratic republic exists to promote  fraternity and the dignity of the individual citizen and to  secure to the citizens certain rights.  This is because the  objectives of the State can be realized only in and  through the individuals.  Therefore, rights conferred on  citizens and non-citizens are not merely individual or  personal rights.   They have a large social and political

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content, because the objectives of the Constitution  cannot be otherwise realized.  Fundamental rights  represent the claims of the individual and the restrictions  thereon are the claims of the society.  Article 38 in Part- IV is the only Article which refers to justice, social,  economic and political.  However, the concept of justice is  not limited only to directive principles.  There can be no  justice without equality.  Article 14 guarantees the  fundamental right to equality before the law on all  persons.  Great social injustice resulted from treating  sections of the Hindu community as ’untouchable’ and,  therefore, Article 17 abolished untouchability and Article  25 permitted the State to make any law providing for  throwing open all public Hindu religious temples to  untouchables.  Therefore, provisions of Part-III also  provide for political and social justice.   

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

EQUITY, JUSTICE AND MERIT:          The above three concepts are independent variable  concepts.  The application of these concepts in public  employment depends upon quantifiable data in each  case.  Equality in law is different from equality in fact.   When we construe Article 16(4), it is equality in fact  which plays the dominant role.  Backward classes seek  justice.  General class in public employment seeks  equity.  The difficulty comes in when the third variable  comes in, namely, efficiency in service.  In the issue of  reservation, we are being asked to find a stable  equilibrium between justice to the backwards, equity for  the forwards and efficiency for the entire system.  Equity  and justice in the above context are hard-concepts.    However, if you add efficiency to equity and justice, the

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problem arises in the context of the reservation.  This  problem has to be examined, therefore, on the facts of  each case.  Therefore, Article 16(4) has to be construed in  the light of Article 335 of the Constitution.  Inadequacy in  representation and backwardness of Scheduled Caste  and Scheduled Tribes are circumstances which enable  the State Government to act under Article 16(4) of the  Constitution.  However, as held by this Court the  limitations on the discretion of the government in the  matter of reservation under Article 16(4) as well as Article  16(4A) come in the form of Article 335 of the  Constitution.

       Merit is not a fixed absolute concept.  Amartya Sen,  in a book, Meritocracy and Economic Inequality,  edited by Kenneth Arrow, points out that merit is a  dependent idea and its meaning depends on how a  society defines a desirable act.  An act of merit in one  society may not be the same in another.  The difficulty is  that there is no natural order of ’merit’ independent of  our value system.  The content of merit is context- specific.  It derives its meaning from particular conditions  and purposes.  The impact of any affirmative action  policy on ’merit’ depends on how that policy is designed.   Unfortunately, in the present case, the debate before us  on this point has taken place in an empirical vacuum.   The basic presumption, however, remains that it is the  State who is in the best position to define and measure  merit in whatever ways they consider it to be relevant to  public employment because ultimately it has to bear the  costs arising from errors in defining and measuring  merit.  Similarly, the concept of "extent of reservation" is  not an absolute concept and like merit it is context- specific.    The point which we are emphasizing is that  ultimately the present controversy is regarding the  exercise of the power by the State Government depending  upon the fact-situation in each case.  Therefore, ’vesting  of the power’ by an enabling provision may be  constitutionally valid and yet ’exercise of the power’ by  the State in a given case may be arbitrary, particularly, if  the State fails to identify and measure backwardness and  inadequacy keeping in mind the efficiency of service as  required under Article 335.

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

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

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

EXTENT OF RESERVATION:

       Social justice is one of the sub-divisions of the  concept of justice.  It is concerned with the distribution of  benefits and burdens throughout a society as it results  from social institutions \026 property systems, public  organisations etc.

The problem is \026 what should be the basis of  distribution?  Writers like Raphael, Mill and Hume define  ’social justice’ in terms of rights.  Other writers like  Hayek and Spencer define ’social justice’ in terms of  deserts.  Socialist writers define ’social justice’ in terms of  need.  Therefore, there are three criteria to judge the  basis of distribution, namely, rights, deserts or need.   These three criteria can be put under two concepts of  equality \026 "formal equality" and "proportional equality".   "Formal equality" means that law treats everyone equal  and does not favour anyone either because he belongs to  the advantaged section of the society or to the  disadvantaged section of the society.  Concept of  "proportional equality" expects the States to take  affirmative action in favour of disadvantaged sections of  the society within the framework of liberal democracy.

Under the Indian Constitution, while basic liberties  are guaranteed and individual initiative is encouraged,  the State has got the role of ensuring that no class  prospers at the cost of other class and no person suffers  because of drawbacks which is not his but social.         The question of extent of reservation involves two  questions:  1.      Whether there is any upper limit beyond which  reservation is not permissible?

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

The question of extent of reservation is closely  linked to the issue whether Article 16(4) is an exception

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to Article 16(1) or is Article 16(4) an application of Article  16(1).  If Article 16(4) is an exception to Article 16(1) then  it needs to be given a limited application so as not to  eclipse the general rule in Article 16(1). But if Article  16(4) is taken as an application of Article 16(1) then the  two articles have to be harmonized keeping in view the  interests of certain sections of the society as against the  interest of the individual citizens of the society.

Maximum limit of reservation possible Word of caution against excess reservation was first  pointed out in The General Manager, Southern  Railway and another v. Rangachari   Gajendragadkar, J. giving the majority judgment said  that reservation under Article 16(4) is intended merely to  give adequate representation to backward communities.  It cannot be used for creating monopolies or for unduly  or illegitimately disturbing the legitimate interests of  other employees. A reasonable balance must be struck  between the claims of backward classes and claims of  other employees as well as the requirement of efficiency  of administration.

However, the question of extent of reservation was  not directly involved in Rangachari15. It was directly  involved in M.R. Balaji & Ors. V. The State of Mysore  & Ors.  with reference to Article 15(4).  In this case,  60% reservations under Article 15(4) was struck down as  excessive and unconstitutional. Gajendragadkar, J.  observed that special provision should be less than 50  per cent, how much less would depend on the relevant  prevailing circumstances of each case.  

But in State of Kerala and another v. N.M.  Thomas and others  Krishna Iyer, J. expressed his  concurrence to the views of Fazal Ali, J. who said that  although reservation cannot be so excessive as to destroy  the principle of equality of opportunity under clause (1) of  Article 16, yet it should be noted that the Constitution  itself does not put any bar on the power of the  Government under Article 16(4). If a State has 80%  population which is backward then it would be  meaningless to say that reservation should not cross  50%.

However, in Indra Sawhney5 the majority held that  the rule of 50% laid down in Balaji16 was a binding rule  and not a mere rule of prudence. Giving the judgment of the Court in Indra  Sawhney5, Reddy, J.  stated that Article 16(4) speaks of  adequate representation not proportionate representation  although proportion of population of backward classes to  the total population would certainly be relevant. He  further pointed out that Article 16(4) which protects  interests of certain sections of society has to be balanced  against Article 16(1) which protects the interests of every  citizen of the entire society. They should be harmonised  because they are restatements of principle of equality  under Article 14.  (emphasis added)

Are reserved category candidates free to contest for  vacancies in general category

In Indra Sawhney5 Reddy, J. noted that  reservation under Article 16(4) do not operate on

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communal ground. Therefore if a member from reserved  category gets selected in general category, his selection  will not be counted against the quota limit provided to  his class. Similarly, in R.K. Sabharwal8 the Supreme  Court held that while general category candidates are not  entitled to fill the reserved posts; reserved category  candidates are entitled to compete for the general  category posts. The fact that considerable number of  members of backward class have been  appointed/promoted against general seats in the State  services may be a relevant factor for the State  Government to review the question of continuing  reservation for the said class.

Number of vacancies that could be reserved Wanchoo, J. who had given dissenting judgment in  Rangachari15 observed that the requirement of Article  16(4) is only to give adequate representation and since  Constitution-makers intended it to be a short-term  measure it may happen that all the posts in a year may  be reserved. He opined that reserving a fixed percentage  of seats every year may take a long time before  inadequacy of representation is overcome. Therefore, the  Government can decide to reserve the posts. After having  reserved a fixed number of posts the Government may  decide that till those posts are filled up by the backward  classes all appointments will go to them if they fulfil the  minimum qualification. Once this number is reached the  Government is deprived of its power to make further  reservations. Thus, according to Wanchoo, J. the  adequacy of representation has to be judged considering  the total number of posts even if in a single year or for  few years all seats are reserved provided the scheme is  short-term.

The idea given by Wanchoo, J. in Rangachari15 did  not work out in practice because most of the time even  for limited number of reservations, every year qualified  backward class candidates were not available. This  compelled the government to adopt carry-forward rule.  This carry-forward rule came in conflict with Balaji16  ruling. In cases where the availability of reserved  category candidates is less than the vacancies set aside  for them, the Government has to adopt either of the two  alternatives: (1) the State may provide for carrying on the  unfulfilled vacancies for the next year or next to the next  year, or (2) instead of providing for carrying over the  unfulfilled vacancies to the coming years, it may provide  for filling of the vacancies from the general quota  candidates and carry forward the unfilled posts by  backward classes to the next year quota.  

But the problem arises when in a particular year  due to carry forward rule more than 50% of vacancies are  reserved. In T. Devadasan v. Union of India and  another , this was the issue.  Union Public Service  Commission had provided for 17=% reservation for  Scheduled Castes and Scheduled Tribes. In case of non- availability of reserved category candidates in a particular  year the posts had to be filled by general category  candidates and the number of such vacancies were to be  carried forward to be filled by the reserved category  candidate next year. Due to this, the rule of carry forward

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reservation in a particular year amounted to 65% of the  total vacancies. The petitioner contended that reservation  was excessive which destroyed his right under Article  16(1) and Article 14. The court on the basis of decision in  Balaji16 held the reservation excessive and, therefore,  unconstitutional. It further stated that the guarantee of  equality under Article 16(1) is to each individual citizen  and to appointments to any office under the State. It  means that on every occasion for recruitment the State  should see that all citizens are treated equally. In order to  effectuate the guarantee each year of recruitment will  have to be considered by itself.

Thus, majority differed from Wanchoo’s, J. decision  in Rangachari15 holding that a cent per cent reservation  in a particular year would be unconstitutional in view of  Balaji16 decision. Subba Rao, J. gave dissenting judgment. He relied  on Wanchoo’s, J. judgment in Rangachari15 and held  that Article 16(4) provides for adequate representation  taking into consideration entire cadre strength. According  to him, if it is within the power of the State to make  reservations then reservation made in one selection or  spread over many selections is only a convenient method  of implementing the provision of reservation. Unless it is  established that an unreasonably disproportionate part  of the cadre strength is filled up with the said castes and  tribes, it is not possible to contend that the provision is  not one of reservation but amounts to an extinction of  the fundamental right.

In the case of Thomas17 under the Kerala State and  Subordinate Services Rules, 1950 certain relaxation was  given to Scheduled Caste and Scheduled Tribe  candidates passing departmental tests for promotions.  For promotion to upper division clerks from lower  division clerks the criteria of seniority-cum-merit was  adopted. Due to relaxation in merit qualification in 1972,  34 out of 51 vacancies in upper division clerks went to  Scheduled Caste candidates. It appeared that the 34  members of SC/ST had become senior most in the lower  grade. The High Court quashed the promotions on the  ground that it was excessive. The Supreme Court upheld  the promotions.  Ray, C.J. held that the promotions  made in services as a whole is no where near 50% of the  total number of the posts. Thus, the majority differed  from the ruling of the court in Devadasan19 basically on  the ground that the strength of the cadre as a whole  should be taken into account. Khanna, J. in his  dissenting opinion made a reference to it on the ground  that such excessive concession would impair efficiency in  administration.

In Indra Sawhney5, the majority held that 50%  rule should be applied to each year otherwise it may  happen that (if entire cadre strength is taken as a unit)  the open competition channel gets choked for some years  and meanwhile the general category candidates may  become age barred and ineligible. The equality of  opportunity under Article 16(1) is for each individual  citizen while special provision under Article 16(4) is for  socially disadvantaged classes. Both should be balanced  and neither should be allowed to eclipse the other.

However, in R.K. Sabharwal8 which was a case of

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promotion and the issue in this case was operation of  roster system, the Court stated that entire cadre strength  should be taken into account to determine whether  reservation up to the required limit has been reached.   With regard to ruling in Indra Sawhney case5 that  reservation in a year should not go beyond 50% the  Court held that it applied to initial appointments. The  operation of a roster, for filling the cadre strength, by  itself ensures that the reservation remains within the  50% limit.  In substance the court said that presuming  that 100% of the vacancies have been filled, each post  gets marked for the particular category of candidate to be  appointed against it and any subsequent vacancy has to  be filled by that category candidate. The Court was  concerned with the possibility that reservation in entire  cadre may exceed 50% limit if every year half of the seats  are reserved.  The Constitution (Eighty-first Amendment)  Act, 2000 added Article 16(4B) which in substance gives  legislative assent to the judgment in R.K. Sabharwal8.

CATCH-UP RULE \026 IS THE SAID RULE A  CONSTITUTIONAL REQUIREMENT UNDER ARTICLE  16(4):

       One of the contentions advanced on behalf of the  petitioners is that the impugned amendments,  particularly, the Constitution (Seventy-Seventh  Amendment) and (Eight-Fifth Amendment) Acts,  obliterate all constitutional limitations on the amending  power of the Parliament.  That the width of these  impugned amendments is so wide that it violates the  basic structure of equality enshrined in the Constitution.   

       The key issue which arises for determination is \026 whether the above "catch-up" rule and the concept of  "consequential seniority" are constitutional requirements  of Article 16 and of equality, so as to be beyond the  constitutional amendatory process.  In other words,  whether obliteration of the "catch-up" rule or insertion of  the concept of "consequential seniority code", would  violate the basic structure of the equality code enshrined  in Articles 14, 15 and 16.

       The concept of "catch-up" rule appears for the first  time in the case of Virpal Singh Chauhan1 .  In the  category of Guards in the Railways, there were four  categories, namely, Grade ’C’, Grade ’B’, Grade ’A’ and  Grade ’A’ Special.  The initial recruitment was made to  Gr. ’C’.  Promotion from one grade to another was by  seniority-cum-suitability.  The rule of reservation was  applied not only at the initial stage of appointment to  Grade ’C’ but at every stage of promotion.  The  percentage reserved for SC was 15% and for ST, it was  7.5%.  To give effect to the rule of reservation, a forty- point roster was prepared in which certain points were  reserved for SCs and STs respectively.  Subsequently, a  hundred-point roster was prepared reflecting the same  percentages.  In 1986, general candidates and members  of SCs/STs came within Grade ’A’ in Northern-Railway.   On 1.8.1986, the Chief Controller promoted certain  general candidates on ad hoc basis to Grade ’A’ Special.   Within three months, they were reverted and SCs and  STs were promoted.  This action was challenged by  general candidates as arbitrary and unconstitutional

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before the tribunal.  The general candidates asked for  three reliefs, namely, (a) to restrain the Railways from  filling-up the posts in higher grades in the category of  Guards by applying the rule of reservation; (b) to restrain  the Railway from acting upon the seniority list prepared  by them; and (c) to declare that the general candidates  were alone entitled to be promoted and confirmed in  Grade ’A’ Special on the strength of their seniority earlier  to the reserved category employees.  The contention of  the general candidates was that once the quota  prescribed for the reserved group is satisfied, the forty- point roster cannot be applied because that roster was  prepared to give effect to the rule of reservation.  It was  contended by the general candidates that accelerated  promotion may be given but the Railways cannot give  consequential seniority to reserved category candidates  in the promoted category. (Emphasis added).  In this  connection, the general category candidates relied upon  the decisions of the Allahabad and Madhya Pradesh High  Courts.  It was contended by the general candidates that  giving consequential seniority in addition to accelerated  promotion constituted conferment of double benefit upon  the members of the reserved category and, therefore,  violated the rule of equality in Article 16(1).  It was  further urged that accelerated promotion-cum- accelerated seniority is destructive of the efficiency of  administration inasmuch as by this means the higher  echelons of administration would be occupied entirely by  members of reserved categories.  This was opposed by the  reserved category candidates who submitted that for the  purposes of promotion to Grade ’A’ Special, the seniority  list pertaining to Grade ’A’ alone should be followed; that,  the administration should not follow the seniority lists  maintained by the administration pertaining to Grade ’C’  as urged by the general candidates and since SCs and  STs were senior to the general candidates in Grade ’A’,  the seniority in Grade ’A’ alone should apply.  In short,  the general candidates relied upon the ’catch-up’ rule,  which was opposed by the members of SC/ST.  They also  relied upon the judgment of this Court in R.K.  Sabharwal8.  

This Court gave following reasons for upholding the  decision of the tribunal.  Firstly, it was held that a rule of  reservation as such does not violate Article 16(4).  Secondly, this Court opined, that there is no uniform  method of providing reservation.  The extent and nature  of reservation is a matter for the State to decide having  regards to the facts and requirements of each case.  It is  open to the State, if so advised, to say that while the rule  of reservation shall be applied, the candidate promoted  earlier by virtue of rule of reservation/roster shall not be  entitled to seniority over seniors in the feeder category  and that it is open to the State to interpret the ’catch-up’  rule in the service conditions governing the promotions  [See: para 24].  Thirdly, this Court did not agree with the  view expressed by the tribunal [in Virpal Singh  Chauhan1] that a harmonious reading of clauses (1) to  (4) of Article 16 should mean that a reserved category  candidate promoted earlier than his senior general  category candidates in the feeder grade shall necessarily  be junior in the promoted category to such general  category.  This Court categorically ruled, vide para 27,  that such catch-up principle cannot be said to be implicit  in clauses (1) to (4) of Article 16  (emphasis supplied).  

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Lastly, this Court found on facts that for 11 vacancies,  33 candidates were considered and they were all SC/ST  candidates.  Not a single candidate belonged to general  category.  It was argued on behalf of the general  candidates that all top grades stood occupied exclusively  by the reserved category members, which violated the  rule of equality underlying Articles 16(1), 16(4) and 14.   This Court opined that the above situation arose on  account of faulty implementation of the rule of  reservation, as the Railways did not observe the principle  that reservation must be in relation to ’posts’ and not  ’vacancies’ and also for applying the roster even after the  attainment of the requisite percentage reserved for  SCs/STs.  In other words, this Court based its decision  only on the faulty implementation of the rule by the  Railways which the Court ordered to be rectified.

The point which we need to emphasize is that the  Court has categorically ruled in Virpal Singh Chauhan1  that the ’catch-up’ rule is not implicit in clauses (1) to (4)  of Article 16.  Hence, the said rule cannot bind the  amending power of the Parliament.  It is not beyond the  amending power of the Parliament.  

In Ajit Singh (I)2, the controversy which arose for  determination was \026 whether after the members of  SCs/STs for whom specific percentage of posts stood  reserved having been promoted against those posts, was  it open to the administration to grant consequential  seniority against general category posts in the higher  grade.  The appellant took a clear stand that he had no  objection if members of SC/ST get accelerated  promotions.  The appellant objected only to the grant of  consequential seniority.  Relying on the circulars issued  by the administration dated 19.7.1969 and 8.9.1969, the  High Court held that the members of SCs/STs can be  promoted against general category posts on basis of  seniority.  This was challenged in appeal before this  Court.  The High Court ruling was set aside by this Court  on the ground that if the ’catch-up’ rule is not applied  then the equality principle embodied in Article 16(1)  would stand violated.  This Court observed that the  ’catch-up’ rule was a process adopted while making  appointments through direct recruitment or promotion  because merit cannot be ignored.  This Court held that  for attracting meritorious candidate a balance has to be  struck while making provisions for reservation.  It was  held that the promotion is an incident of service.  It was  observed that seniority is one of the important factors in  making promotion.  It was held that right to equality is to  be preserved by preventing reverse discrimination.   Further, it was held that the equality principle requires  exclusion of extra-weightage of roster-point promotion to  a reserved category candidate (emphasis supplied).  This  Court opined that without ’catch-up’ rule giving  weightage to earlier promotion secured by roster-point  promotee would result in reverse discrimination and  would violate equality under Articles 14, 15 and 16.   Accordingly, this Court took the view that the seniority  between the reserved category candidates and general  candidates in the promoted category shall be governed by  their panel position.   Therefore, this Court set aside the  factor of extra-weightage of earlier promotion to a  reserved category candidate as violative of Articles 14 and  16(1) of the Constitution.

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Therefore, in Virpal Singh Chauhan1, this Court  has said that the ’catch-up’ rule insisted upon by the  Railways though not implicit in Articles 16(1) and 16(4),  is constitutionally valid as the said practice/process was  made to maintain efficiency.  On the other hand, in Ajit  Singh (I)2, this Court has held that the equality principle  excludes the extra-weightage given by the Government to  roster-point promotees as such weightage is against  merit and efficiency of the administration and that the  Punjab Government had erred in not taking into account  the said merit and efficiency factors.   

In the case of Ajit Singh (II)3, three interlocutory  applications were filed by State of Punjab for clarification  of the judgment of this Court in Ajit Singh (I)2.  The  limited question was \026 whether there was any conflict  between the judgments of this Court in Virpal Singh  Chauhan1 and Ajit Singh (I)2 on one hand and vis-‘-vis  the judgment of this Court in Jagdish Lal and others   v. State of Haryana and others .  The former cases  were decided in favour of general candidates whereas  latter was a decision against the general candidates.   Briefly, the facts for moving the interlocutory applications  were as follows.  The Indian Railways following the law  laid down in Virpal Singh Chauhan1 issued a circular  on 28.2.1997 to the effect that the reserved candidates  promoted on roster-points could not claim seniority over  the senior general candidates promoted later on.  The  State of Punjab after following Ajit Singh (I)2 revised  their seniority list and made further promotions of the  senior general candidates following the ’catch-up’ rule.   Therefore, both the judgments were against the reserved  candidates.  However, in the later judgment of this Court  in the case of Jagdish Lal20, another three-Judge bench  took the view that under the general rule of service  jurisprudence relating to seniority, the date of  continuous officiation has to be taken into account and if  so, the roster-point promotees were entitled to the benefit  of continuous officiation. In Jagdish Lal20, the bench  observed that the right to promotion was a statutory right  while the rights of the reserved candidates under Article  16(4) and Article 16(4A) were fundamental rights of the  reserved candidates and, therefore, the reserved  candidates were entitled to the benefit of continuous  officiation.

Accordingly, in Ajit Singh (II)3, three points arose  for consideration:  (i)     Can the roster point promotees count  their seniority in the promoted category  from the date of their continuous  officiation vis-‘-vis general candidates,  who were senior to them in the lower  category and who were later promoted to  the same level?

(ii)    Have Virpal1 and Ajit Singh (I)2 have  been correctly decided and has Jagdish  Lal20 been correctly decided?

(iii)   Whether the catch-up principles are  tenable?

       At the outset, this Court stated that it was not

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concerned with the validity of constitutional amendments  and, therefore, it proceeded on the assumption that  Article 16(4A) is valid and is not unconstitutional.   Basically, the question decided was whether the ’catch- up’ principle was tenable in the context of Article 16(4).   It was held that the primary purpose of Article 16(4) and  Article 16(4A) is to give due representation to certain  classes in certain posts keeping in mind Articles 14, 16(1)  and 335; that, Articles 14 and 16(1) have prescribed  permissive limits to affirmative action by way of  reservation under Articles 16(4) and 16(4A) of the  Constitution; that, Article 335 is incorporated so that  efficiency of administration is not jeopardized and that  Articles 14 and 16(1) are closely connected as they deal  with individual rights of the persons.  They give a positive  command to the State that there shall be equality of  opportunity of all citizens in public employment.  It was  further held that Article 16(1) flows from Article 14. It  was held that the word ’employment’ in Article 16(1) is  wide enough to include promotions to posts at the stage  of initial level of recruitment.  It was observed that Article  16(1) provides to every employee otherwise eligible for  promotion fundamental right to be considered for  promotion.  It was held that equal opportunity means the  right to be considered for promotion.  The right to be  considered for promotion was not a statutory right.  It  was held that Articles 16(4) and 16(4A) did not confer any  fundamental right to reservation.  That they are only  enabling provisions.  Accordingly, in Ajit Singh (II)3, the  judgment of this Court in Jagdish Lal20 case was  overruled.  However, in the context of balancing of  fundamental rights under Article 16(1) and the rights of  reserved candidate under Articles 16(4) and 16(4A), this  Court opined that Article 16(1) deals with a fundamental  right whereas Articles 16(4) and 16(4A) are only enabling  provisions and, therefore, the interests of the reserved  classes must be balanced against the interests of other  segments of society.  As a remedial measure, the Court  held that in matters relating to affirmative action by the  State, the rights under Articles 14 and 16 are required to  be protected and a reasonable balance should be struck  so that the affirmative action by the State does not lead  to reverse discrimination.  

       Reading the above judgments, we are of the view  that the concept of ’catch-up’ rule and ’consequential  seniority’ are judicially evolved concepts to control the  extent of reservation.  The source of these concepts is in  service jurisprudence.  These concepts cannot be  elevated to the status of an axiom like secularism,  constitutional sovereignty etc.  It cannot be said that by  insertion of the concept of ’consequential seniority’ the  structure of Article 16(1) stands destroyed or abrogated.   It cannot be said that ’equality code’ under Article 14, 15  and 16 is violated by deletion of the ’catch-up’ rule.   These concepts are based on practices.  However, such  practices cannot be elevated to the status of a  constitutional principle so as to be beyond the amending  power of the Parliament.  Principles of service  jurisprudence are different from constitutional  limitations.   Therefore, in our view neither the ’catch-up’  rule nor the concept of ’consequential seniority’ are  implicit in clauses (1) and (4) of Article 16 as correctly  held in Virpal Singh Chauhan1.

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Before concluding, we may refer to the judgment of  this court in M.G. Badappanavar6. In that case the facts  were as follows.  Appellants were general candidates.   They contended that when they and the reserved  candidates were appointed at Level-1 and junior reserved  candidates got promoted earlier on the basis of roster- points to Level-2 and again by way of roster-points to  Level-3, and when the senior general candidate got  promoted to Level-3, then the general candidate would  become senior to the reserved candidate at Level-3.  At  Level-3, the reserved candidate should have been  considered along with the senior general candidate for  promotion to Level-4.  In support of their contention,  appellants relied upon the judgment of the Constitution  Bench in Ajit Singh (II)3.  The above contentions raised  by the appellants were rejected by the tribunal.   Therefore, the general candidates came to this Court in  appeal.  This Court found on facts that the concerned  Service Rule did not contemplate computation of  seniority in respect of roster promotions.  Placing reliance  on the judgment of this Court in Ajit Singh (I)2  and in  Virpal Singh1, this court held that roster promotions  were meant only for the limited purpose of due  representation of backward classes at various levels of  service and, therefore, such roster promotions did not  confer consequential seniority to the roster-point  promotee.  In Ajit Singh (II)3, the circular which gave  seniority to the roster-point promotees was held to be  violative of Articles 14 and 16.  It was further held in M.  G. Badappanavar6 that equality is the basic feature of  the Constitution and any treatment of equals as  unequals or any treatment of unequals as equals violated  the basic structure of the Constitution.  For this  proposition, this Court placed reliance on the judgment  in Indra Sawhney5 while holding that if creamy layer  among backward classes were given some benefits as  backward classes, it will amount to equals being treated  unequals.  Applying the creamy layer test, this Court  held that if roster-point promotees are given  consequential seniority, it will violate the equality  principle which is part of the basic structure of the  Constitution and in which event, even Article 16(4A)  cannot be of any help to the reserved category  candidates.  This is the only judgment of this Court  delivered by three-Judge bench saying that if roster-point  promotees are given the benefit of consequential  seniority, it will result in violation of equality principle  which is part of the basic structure of the Constitution.   Accordingly, the judgment of the tribunal was set aside.

The judgment in the case of M. G. Badappanavar6  was mainly based on the judgment in Ajit Singh (I)’2  which had taken the view that the departmental circular  which gave consequential seniority to the ’roster-point  promotee’, violated Articles 14 and 16 of the  Constitution.  In none of the above cases, the question of  the validity of the constitutional amendments was  involved.  Ajit Singh (I)’2, Ajit Singh (II)’3 and M. G.  Badappanavar6 were essentially concerned with the  question of ’weightage’.  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

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and overall efficiency of services.  The above judgments,  therefore, did not touch the questions which are involved  in the present case.  

SCOPE OF THE IMPUGNED AMENDMENTS Before dealing with the scope of the constitutional  amendments we need to recap the judgments in Indra  Sawhney5 and R.K. Sabharwal8 .  In the former case  the majority held that 50% rule should be applied to each  year otherwise it may happen that the open competition  channel may get choked if the entire cadre strength is  taken as a unit.  However in R.K. Sabharwal8, this court  stated that the entire cadre strength should be taken into  account to determine whether the reservation up to the  quota-limit has been reached.  It was clarified that the  judgment in Indra Sawhney5 was confined to initial  appointments and not to promotions.  The operation of  the roster for filling the cadre strength, by itself, ensure  that the reservation remains within the ceiling-limit of  50%.   

In our view, 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.

With these introductory facts, we may examine the  scope of the impugned constitutional amendments.

The Supreme Court in its judgment dated 16.11.92  in Indra Sawhney5 stated that reservation of  appointments or posts under Article 16(4) is confined to  initial appointment and cannot extend to reservation in  the matter of promotion.  Prior to the judgment in Indra  Sawhney5 reservation in promotion existed.  The  Government felt that the judgment of this court in Indra  Sawhney5 adversely affected the interests of SCs and  STs in services, as they have not reached the required  level.  Therefore, the Government felt that it was  necessary to continue the existing policy of providing  reservation in promotion confined to SCs and STs alone.   We quote hereinbelow Statement of Objects and Reasons  with the text of the Constitution (Seventy-Seventh  Amendment) Act, 1995 introducing clause (4A) in Article  16 of the Constitution: "THE CONSTITUTION (SEVENTY-SEVENTH  AMENDMENT) ACT, 1995 STATEMENT OF OBJECTS AND REASONS The Scheduled Castes and the Scheduled  Tribes have been enjoying the facility of  reservation in promotion since 1955.  The  Supreme Court in its judgment dated 16th  November, 1992 in the case of  Indra Sawhney v. Union of India5,  however, observed that reservation of  appointments  or  posts under Article  16(4) of   the Constitution  is confined to initial  appointment and cannot extent  to  reservation  in  the matter of promotion.  This  ruling of the Supreme Court will adversely  affect the interests of the Scheduled Castes  and the Scheduled Tribes.  Since the

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representation of the Scheduled Castes and  the Scheduled Tribes in services in the  States have not reached the required level, it is  necessary to continue the existing  dispensation of providing reservation in  promotion in the case of the Scheduled Castes  and the Scheduled Tribes.  In view of the  commitment of the Government to protect the  interests of the Scheduled Castes and  the Scheduled Tribes, the Government have  decided to continue the existing policy of  reservation in promotion for the  Scheduled Castes and the Scheduled Tribes.   To carry out this, it is necessary to amend  Article 16 of the Constitution by inserting a  new clause (4A) in the said Article to provide  for reservation in promotion for the Scheduled  Castes and the Scheduled Tribes. 2. The Bill seeks to achieve the aforesaid  object.  THE CONSTITUTION (SEVENTY-SEVENTH  AMENDMENT) ACT, 1995 [Assented on 17th June, 1995, and came into force  on 17.6.1995] An Act further to amend the Constitution of India BE it enacted by Parliament in the Forty- sixth Year of the Republic of India as follows:-  1.    Short   title.\027- This Act may   be called the Constitution (Seventy-seventh  Amendment) Act, 1995.  2.   Amendment of Article 16. \027- In  Article 16 of the Constitution, after clause (4),  the following clause shall be inserted, namely:-  "(4A)   Nothing in this Article shall  prevent the State from making any  provision for reservation in matters of  promotion 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."

The said clause (4A) was inserted after clause (4) of  Article 16 to say that nothing in the said Article shall  prevent the State from making any provision for  reservation in matters of promotion to any class(s) of  posts in the services under the State in favour of SCs and  STs which, in the opinion of the States, are not  adequately represented in the services under the State.

Clause (4A) follows the pattern specified in clauses  (3) and (4) of Article 16.  Clause (4A) of Article 16  emphasizes the opinion of the States in the matter of  adequacy of representation.  It gives freedom to the State  in an appropriate case depending upon the ground reality  to provide for reservation in matters of promotion to any  class or classes of posts in the services.  The State has to  form its opinion on the quantifiable data regarding  adequacy of representation.  Clause (4A) of Article 16 is  an enabling provision.  It gives freedom to the State to  provide for reservation in matters of promotion.  Clause  (4A) of Article 16 applies only to SCs and STs.  The said  clause is carved out of Article 16(4).  Therefore, clause

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(4A) will be governed by the two compelling reasons \026  "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 Ajit Singh  (II)3 , 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.

After the Constitution (Seventy-Seventh  Amendment) Act, 1995, this court stepped in to balance  the conflicting interests.  This was in the case of Virpal  Singh Chauhan1 in which it was held that a roster-point  promotee getting the benefit of accelerated promotion  would not get consequential seniority.  As such,  consequential seniority constituted additional benefit  and, therefore, his seniority will be governed by the panel  position.  According to the Government, the decisions in  Virpal Singh1 and Ajit Singh (I)2  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.

We quote hereinbelow Statement of Objects and  Reasons with the text of the Constitution (Eighty-Fifth  Amendment) Act, 2001: "THE CONSTITUTION (EIGHTY-FIFTH  AMENDMENT) ACT, 2001 STATEMENT OF OBJECTS AND REASONS         The Government servants belonging to  the Scheduled Castes and the Scheduled  Tribes had been enjoying the benefit of  consequential seniority on their promotion on  the basis of rule of reservation. The judgments  of the Supreme Court in the case of Union of  India v. Virpal Singh Chauhan (1995) 6 SCC  684 and Ajit Singh Januja (No.1) v. State of  Punjab AIR 1996 SC 1189, which led to the  issue of the O.M. dated 30th January, 1997,  have adversely affected the interest of the  Government servants belonging to the  Scheduled Castes and Scheduled Tribes  category in the matter of seniority on  promotion to the next higher grade.  This has  led to considerable anxiety and  representations have also been received from  various quarters including Members of  Parliament to protect the interest of the  Government servants belonging to Scheduled  Castes and Scheduled Tribes.         2.      The Government has reviewed the

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position in the light of views received from  various quarters and in order to protect the  interest of the Government servants belonging  to the Scheduled Castes and Scheduled Tribes,  it has been decided to negate the effect of O.M.  dated 30th January 1997 immediately.  Mere  withdrawal of the O.M. dated 30th will not meet  the desired purpose and review or revision of  seniority of the Government servants and  grant of consequential benefits to such  Government servants will also be necessary.   This will require amendment to Article 16(4A)  of the Constitution to provide for consequential  seniority in the case of promotion by virtue of  rule of reservation.  It is also necessary to give  retrospective effect to the proposed  constitutional amendment to Article 16(4A)  with effect from the date of coming into force of  Article 16(4A) itself, that is, from the 17th day  of June, 1995.         3.      The Bill seeks to achieve the  aforesaid objects. THE CONSTITUTION (EIGHTY-FIFTH  AMENDMENT) ACT, 2001 The following Act of Parliament received  the assent of the President on the 4th January,  2002 and is published for general  information:- An Act further to amend the Constitution of India.

        BE it enacted by Parliament in the Fifty- second Year of the Republic of India as  follows:-

1.   Short  title  and commencement.- (1)  This Act may  be  called  the Constitution  (Eighty-fifth Amendment) Act, 2001.

            (2) It shall be deemed to have come into  force on the 17th day of June 1995.

2.   Amendment of Article 16.-  In Article  16 of the  Constitution,  in clause (4A), for the  words "in matters of promotion to any class",  the words  "in matters of promotion, with  consequential seniority, to  any class" shall be  substituted."

Reading the Constitution (Seventy-Seventh  Amendment) Act, 1995 with the Constitution (Eighty- Fifth Amendment) Act, 2001, clause (4A) of Article 16  now reads as follows: "(4A) Nothing in this article shall prevent the  State from making any provision for  reservation in matters of promotion, with  consequential seniority, to any class or classes  of posts in the services under the State in  favour of the Scheduled Castes and the  Scheduled Tribes which in the opinion of the  State are not adequately represented in the  services under the State."

The question in the present case concerns the width

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of the amending powers of the Parliament.  The key issue  is \026 whether any constitutional limitation mentioned in  Article 16(4) and Article 335 stand obliterated by the  above constitutional amendments.

In R.K. Sabharwal8, the issue was concerning  operation of roster system.  This court stated that the  entire cadre strength should be taken into account to  determine whether reservation up to the required limit  has been reached.  It was held that if the roster is  prepared on the basis of the cadre strength, that by itself  would ensure that the reservation would remain within  the ceiling-limit of 50%.  In substance, the court said  that in the case of hundred-point roster each post gets  marked for the category of candidate to be appointed  against it and any subsequent vacancy has to be filled by  that category candidate alone (replacement theory).

The question which remained in controversy,  however, was concerning the rule of ’carry-forward’.  In  Indra Sawhney5 this court held that the number of  vacancies to be filled up on the basis of reservation in a  year including the ’carry-forward’ reservations should in  no case exceed the ceiling-limit of 50%.

However, the Government found that total  reservation in a year for SCs, STs and OBCs combined  together had already reached 49=% and if the judgment  of this court in Indra Sawhney5 had to be applied it  became difficult to fill "backlog vacancies".  According to  the Government, in some cases the total of the current  and backlog vacancies was likely to exceed the ceiling- limit of 50%.  Therefore, the Government inserted clause  (4B) after clause (4A) in Article 16 vide the Constitution  (Eighty-First Amendment) Act,  2000.

By clause (4B) the "carry-forward"/"unfilled  vacancies" of a year is kept out and excluded from the  overall ceiling-limit of 50% reservation.  The clubbing of  the backlog vacancies with the current vacancies stands  segregated by the Constitution (Eighty-First Amendment)  Act, 2000.  Quoted hereinbelow is the Statement of  Objects and Reasons with the text of the Constitution  (Eighty-First Amendment) Act, 2000: "THE CONSTITUTION (EIGHTY FIRST  AMENDMENT) ACT, 2000

(Assented on 9th June, 2000 and came into  force 9.6.2000)

STATEMENT OF OBJECTS AND REASONS Prior to August 29, 1997, the vacancies  reserved for the Scheduled Castes and the  Scheduled Tribes, which could not be filled up  by direct recruitment on account of non- availability of the candidates belonging to the  Scheduled Castes or the Scheduled Tribes,  were treated as "Backlog Vacancies". These  vacancies were treated as a distinct group and  were excluded from the ceiling of fifty per cent  reservation. The Supreme Court of India in its  judgment in the Indra Sawhney versus Union  of India held that the number of vacancies to  be filled up on the basis of reservations in a  year including carried forward reservations

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should in no case exceed the limit of fifty per  cent. As total reservations in a year for the  Scheduled Castes, the Scheduled Tribes and  the other Backward Classes combined together  had already reached forty-nine and a half per  cent and the total number of vacancies to be  filled up in a year could not exceed fifty per  cent., it became difficult to fill the "Backlog  Vacancies" and to hold Special Recruitment  Drives. Therefore, to implement the judgment  of the Supreme Court, an Official  Memorandum dated August 29, 1997 was  issued to provide that the fifty per cent limit  shall apply to current as well as "Backlog  Vacancies" and for discontinuation of the  Special Recruitment Drive. Due to the adverse effect of the aforesaid  order dated August 29, 1997, various  organisations including the Members of  Parliament represented to the central  Government for protecting the interest of the  Scheduled castes and the Scheduled Tribes.  The Government, after considering various  representations, reviewed the position and has  decided to make amendment in the  constitution so that the 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  (4A) of Article 16 of the Constitution, shall be  considered 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 percent,  reservation on total number of vacancies of  that year. This amendment in the Constitution  would enable the State to restore the position  as was prevalent before august 29, 1997. The Bill seeks to achieve the aforesaid  object. THE CONSTITUTION (EIGHTY-FIRST  AMENDMENT) ACT, 2000 (Assented on 9th June, 2000 and came into  force 9.6.2000) An Act further to amend the Constitution of  India. BE it enacted by Parliament in the Fifty- first Year of the Republic of India as follows:- 1. Short title: This Act may be called the  Constitution (Eighty-first Amendment) Act,  2000. 2. Amendment of Article 16: In Article  16 of the Constitution, after clause (4A), the  following clause shall be inserted, namely: - "(4B) 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 (4A) 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

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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."

The Constitution (Eighty-First Amendment) Act,  2000 gives, in substance, legislative assent to the  judgment of this Court in R.K. Sabharwal8.   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) grants legislative  assent to the judgment in R.K. Sabharwal8.  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  the limitations indicated hereinafter.   

As stated above, clause (4A) of Article 16 is carved  out of clause (4) of Article 16.  Clause (4A) provides  benefit of reservation in promotion only to SCs and STs.   In the case of S. Vinod Kumar and another v. Union of  India and others  this court held that relaxation of  qualifying marks and standards of evaluation in matters  of reservation in promotion was not permissible under  Article 16(4) in view of Article 335 of the Constitution.   This was also the view in Indra Sawhney5.

By the Constitution (Eighty-Second Amendment)  Act, 2000, a proviso was inserted at the end of Article  335 of the Constitution which reads as under: "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."

This proviso was added following the benefit of  reservation in promotion conferred upon SCs and STs  alone.  This proviso was inserted keeping in mind the  judgment of this court in Vinod Kumar21  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).

INTRODUCTION OF "TIME" FACTOR IN VIEW OF  ARTICLE 16(4B):

        As stated above, Article 16(4B) lifts the 50% cap on  carry-over vacancies (backlog vacancies).  The ceiling-

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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.  This position needs to be explained.   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.         What is stated hereinabove is borne out  by Service Rules in some of the States where the carry- over rule does not extend beyond three years.

WHETHER IMPUGNED CONSTITUTIONAL  AMENDMENTS VIOLATES THE PRINCIPLE OF BASIC  STRUCTURE:

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

In the matter of application of the principle of basic  structure, twin tests have to be satisfied, namely, the  ’width test’ and the test of ’identity’.  As stated  hereinabove, the concept of the ’catch-up’ rule and  ’consequential seniority’ are not constitutional  requirements.  They are not implicit in clauses (1) and (4)  of Article 16.  They are not constitutional limitations.   They are concepts derived from service jurisprudence.   They are not constitutional principles.  They are not  axioms like, secularism, federalism etc.  Obliteration of  these concepts or insertion of these concepts do not  change the equality code indicated by Articles 14, 15 and  16 of the Constitution.  Clause (1) of Article 16 cannot  prevent the State from taking cognizance of the  compelling interests of backward classes in the society.   Clauses (1) and (4) of Article 16 are restatements of the  principle of equality under Article 14.  Clause (4) of  Article 16 refers to affirmative action by way of  reservation.  Clause (4) of Article 16, however, states that  the appropriate Government is free to provide for  reservation in cases where it is satisfied on the basis of  quantifiable data that backward class is inadequately  represented in the services.  Therefore, in every case  where the State decides to provide for reservation there  must exist two circumstances, namely, ’backwardness’  and ’inadequacy of representation’.  As stated above \026  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

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by the impugned amendments. If the concerned State  fails to identify and measure backwardness, inadequacy  and overall administrative efficiency then in that event  the provision for reservation would be invalid. These  amendments do not alter the structure of Articles 14, 15  and 16 (equity code).  The parameters mentioned in  Article 16(4) are retained.  Clause (4A) is derived from  clause (4) of Article 16.  Clause (4A) is confined to SCs  and STs alone.  Therefore, the present case does not  change the identity of the Constitution.  The word  "amendment" connotes change.  The question is \026  whether the impugned amendments discard the original  constitution.   It was vehemently urged on behalf of the  petitioners that the Statement of Objects and Reasons  indicate that the impugned amendments have been  promulgated by the Parliament to overrule the decision of  this court.  We do not find any merit in this argument.   Under Article 141 of the Constitution the pronouncement  of this court is the law of the land.  The judgments of this  court in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3  and Indra Sawhney5, were judgments delivered by this  court which enunciated the law of the land.  It is that law  which is sought to be changed by the impugned  constitutional amendments.  The impugned  constitutional amendments are enabling in nature.  They  leave it to the States to provide for reservation.  It is well- settled that the Parliament while enacting a law does not  provide content to the "right".  The content is provided by  the judgments of the Supreme Court.  If the appropriate  Government enacts a law providing for reservation  without keeping in mind the parameters in Article 16(4)  and Article 335 then this court will certainly set aside  and strike down such legislation.  Applying the "width  test", we do not find obliteration of any of the  constitutional limitations.  Applying the test of "identity",  we do not find any alteration in the existing structure of  the equality code.  As stated above, none of the axioms  like secularism, federalism etc. which are overarching  principles have been violated by the impugned  constitutional amendments.  Equality has two facets \026  "formal equality" and "proportional equality".   Proportional equality is equality "in fact" whereas formal  equality is equality "in law".  Formal equality exists in the  Rule of Law.  In the case of proportional equality the  State is expected to take affirmative steps in favour of  disadvantaged sections of the society within the  framework of liberal democracy.  Egalitarian equality is  proportional equality.    

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

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exercise. [See: Kihoto Hollohan v. Zachillhu &  Others ].

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

In conclusion, we may quote the words of  Rubenfeld:  "ignoring our commitments may make us  rationale but not free.  It cannot make us  maintain our constitutional identity".

ROLE OF ENABLING PROVISIONS IN THE CONTEXT  OF ARTICLE 14:

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

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a positive concept which is enough to validate equalizing  measures depending upon the fact-situation.

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

APPLICATION OF DOCTRINE OF "GUIDED POWER" \026  ARTICLE 335 :

       Applying the above tests to the proviso to Article  335 inserted by the Constitution (Eighty-Second  Amendment) Act, 2000, we find that the said proviso has  a nexus with Articles 16(4A) and 16(4B).  Efficiency in  administration is held to be a constitutional limitation on  the discretion vested in the State to provide for  reservation in public employment.  Under the proviso to  Article 335, it is stated that nothing in Article 335 shall  prevent the State to relax qualifying marks or standards  of evaluation for reservation in promotion.  This proviso  is also confined only to members of SCs and STs.  This  proviso is also conferring discretionary power on the  State to relax qualifying marks or standards of

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evaluation.  Therefore, the question before us is \026  whether the State could be empowered to relax qualifying  marks or standards for reservation in matters of  promotion.  In our view, even after insertion of this  proviso, the limitation of overall efficiency in Article 335  is not obliterated.   Reason is that "efficiency" is variable  factor.  It is for the concerned State to decide in a given  case, whether the overall efficiency of the system is  affected by such relaxation.  If the relaxation is so  excessive that it ceases to be qualifying marks then  certainly in a given case, as in the past, the State is free  not to relax such standards.  In other cases, the State  may evolve a mechanism under which efficiency, equity  and justice, all three variables, could be accommodated.   Moreover, Article 335 is to be read with Article 46 which  provides that the State shall promote with special care  the educational and economic interests of the weaker  sections of the people and in particular of the scheduled  castes and scheduled tribes and shall protect them from  social injustice.  Therefore, where the State finds  compelling interests of backwardness and inadequacy, it  may relax the qualifying marks for SCs/STs.  These  compelling interests however have to be identified by  weighty and comparable data.

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

TESTS TO JUDGE THE VALIDITY OF THE IMPUGNED  STATE ACTS:          

       As stated above, the boundaries of the width of the  power, namely, the ceiling-limit of 50% (the numerical  benchmark), the principle of creamy layer, the compelling  reasons, namely, backwardness, inadequacy of  representation and the overall administrative efficiency  are not obliterated by the impugned amendments.  At the  appropriate time, we have to consider the law as enacted  by various States providing for reservation if challenged.   At that time we have to see whether limitations on the  exercise of power are violated.  The State is free to  exercise its discretion of providing for reservation subject  to limitation, namely, that there must exist compelling  reasons of backwardness, inadequacy of representation  in a class of post(s) keeping in mind the overall  administrative efficiency.  It is made clear that even if the  State has reasons to make reservation, as stated above, if  the impugned law violates any of the above substantive  limits on the width of the power the same would be liable  to be set aside. Are the impugned amendments making an inroad  into the balance struck by the judgment of this court  in the case of Indra Sawhney5:

Petitioners submitted that equality has been  recognized to be a basic feature of our Constitution.  To  preserve equality, a balance was struck in Indra  Sawhney5 so as to ensure that the basic structure of  Articles 14, 15 and 16 remains intact and at the same

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time social upliftment, as envisaged by the Constitution,  stood achieved.  In order to balance and structure the  equality, a ceiling-limit on reservation was fixed at 50% of  the cadre strength, reservation was confined to initial  recruitment and was not extended to promotion.   Petitioners further submitted that in Indra Sawhney5,  vide para 829 this Court has held that reservation in  promotion was not sustainable in principle.  Accordingly,  petitioners submitted that the impugned constitutional  amendments makes a serious inroad into the said  balance struck in the case of Indra Sawhney5  which  protected equality  as a basic feature of our Constitution.   We quote hereinbelow paragraph 829 of the majority  judgment in the case of Indra Sawhney5  which reads as  follows:

"829. It is true that Rangachari15 has been  the law for more than 30 years and that  attempts to re-open the issue were repelled in  Akhil Bharatiya Soshit Karamchari Sangh  (Railway) v. Union of India and others . It  may equally be true that on the basis of that  decision, reservation may have been provided  in the matter of promotion in some of the  Central and State services but we are  convinced that the majority opinion in  Rangachari15, to the extent it holds, that  Article 16(4) permits reservation even in the  matter of promotion, is not sustainable in  principle and ought to be departed from.  However, taking into consideration all the  circumstances, we direct that our decision on  this question shall operate only prospectively  and shall not affect promotions already made,  whether on temporary, officiating or  regular/permanent basis. It is further directed  that wherever reservations are already  provided in the matter of promotion - be it  Central Services or State Services, or for that  matter services under any corporation,  authority or body falling under the definition of  ’State’ in Article 12-such reservations shall  continue in operation for a period of five years  from this day. Within this period, it would be  open to the appropriate authorities to revise  modify or re-issue the relevant Rules to ensure  the achievement of the objective of Article  16(4). If any authority thinks that for ensuring  adequate representation of ’backward class of  citizens’ in any service, class or category, it is  necessary to provide for direct recruitment  therein, it shall be open to it do so. (emphasis supplied)

What are the outer boundaries of the amendment  process in the context of Article 16 is the question which  needs to be answered.  Equality is the basic feature of the  Constitution as held in Indra Sawhney5.  The content of  Article 14 was originally interpreted by this Court as a  concept of equality confined to the aspects of  discrimination and classification.  It is only after the  rulings of this Court in Maneka Gandhi11 and Ajay  Hasia and others v. Khalid Mujib Sehravardi and  others , that the content of Article 14 got expanded  conceptually so as to comprehend the doctrine of

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promissory estoppel, non arbitrariness, compliance with  rules of natural justice, eschewing irrationality etc.   There is a difference between "formal equality" and  "egalitarian equality".  At one point of time Article 16(4)  was read by the Supreme Court as an exception to Article  16(1).  That controversy got settled in Indra Sawhney5.   The words "nothing in this Article" in Article 16(4)  represents a legal device allowing positive discrimination  in favour of a class.  Therefore, Article 16(4) relates to "a  class apart".  Article 16(4), therefore, creates a field which  enables a State to provide for reservation provided there  exists backwardness of a class and inadequacy of  representation in employment.  These are compelling  reasons.  They do not exist in Article 16(1).  It is only  when these reasons are satisfied that a State gets the  power to provide for reservation in matters of  employment.  Therefore, Article 16(1) and Article 16(4)  operate in different fields.  Backwardness and  inadequacy of representation, therefore, operate as  justifications in the sense that the State gets the power to  make reservation only if backwardness and inadequacy  of representation exist.  These factors are not obliterated  by the impugned amendments.

The question still remains as to whether any of the  constitutional limitations are obliterated by way of the  impugned constitutional amendments.  By way of the  impugned amendments Articles 16(4A) and 16(4B) have  been introduced.

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

"802. We are of the opinion that there is no  constitutional or legal bar to a State  categorizing the backward classes as backward  and more backward. We are not saying that it  ought to be done. We are concerned with the  question if a State makes such a  categorisation, whether it would be invalid? We  think not. Let us take the criteria evolved by  Mandal Commission. Any caste, group or class  which scored eleven or more points was  treated as a backward class. Now, it is not as if  all the several thousands of  castes/groups/classes scored identical points.  There may be some castes/groups/classes  which have scored points between 20 to 22  and there may be some who have scored  points between eleven and thirteen. It cannot

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reasonably be denied that there is no  difference between these two sets of  castes/groups/classes. To give an illustration,  take two occupational groups viz., gold-smiths  and vaddes (traditional stone-cutters in  Andhra Pradesh) both included within Other  Backward Classes. None can deny that gold- smiths are far less backward than vaddes. If  both of them are grouped together and  reservation provided, the inevitably result  would be that gold-smiths would take away all  the reserved posts leaving none for vaddes. In  such a situation, a State may think it  advisable to make a categorisation even among  other backward classes so as to ensure that  the more backward among the backward  classes obtain the benefits intended for them.  Where to draw the line and how to effect the  sub-classification is, however, a matter for the  Commission and the State - and so long as it  is reasonably done, the Court may not  intervene. In this connection, reference may be  made to the categorisation obtaining in Andhra  Pradesh. The Backward Classes have been  divided into four categories. Group-A  comprises  "Aboriginal tribes, Vimukta jatis,  Nomadic and semi-nomadic tribes etc.".  Group-B comprises professional group like  tappers, weavers, carpenters, ironsmiths,  goldsmiths, kamsalins etc. Group-C pertains  to "Scheduled Castes converts to Christianity  and their progeny", while Group-D comprises  all other classes/communities/groups, which  are not included in groups A, B and C. The  25% vacancies reserved for backward classes  are sub-divided between them in proportion to  their respective population. This categorisation  was justified in Balram [1972] 3 S.C.R. 247 at  286. This is merely to show that even among  backward classes, there can be a sub- classification on a reasonable basis.

(emphasis supplied)

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

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should be done. We are only saying that if a  State chooses to do it, it is not impermissible  in law." (emphasis supplied)

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

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

The test for judging the width of the power and the  test for adjudicating the exercise of power by the  concerned State are two different tests which warrant two  different judicial approaches.  In the present case, as  stated above, we are required to test the width of the  power under the impugned amendments.  Therefore, we

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

       The constitutional principle of equality is inherent  in the Rule of Law.  However, its reach is limited because  its primary concern is not with the content of the law but  with its enforcement and application.  The Rule of Law is  satisfied when laws are applied or enforced equally, that  is, evenhandedly, free of bias and without irrational  distinction.  The concept of equality allows differential  treatment but it prevents distinctions that are not  properly justified.  Justification needs each case to be  decided on case to case basis.          Existence of power cannot be denied on the ground  that it is likely to be abused.  As against this, it has been  held vide para 650 of Kesavananda Bharati13 that  where the nature of the power granted by the  Constitution is in doubt then the Court has to take into  account the consequences that might ensue by  interpreting the same as an unlimited power.  However,  in the present case there is neither any dispute about the  existence of the power nor is there any dispute about the  nature of the power of amendment.   The issue involved  in the present case is concerning the width of the power.   The power to amend is an enumerated power in the  Constitution and, therefore, its limitations, if any, must  be found in the Constitution itself.  The concept of  reservation in Article 16(4) is hedged by three  constitutional requirements, namely, backwardness of a  class, inadequacy of representation in public employment  of that class and overall efficiency of the administration.   These requirements are not obliterated by the impugned  constitutional amendments.  Reservation is not in issue.   What is in issue is the extent of reservation.  If the extent  of reservation is excessive then it makes an inroad into  the principle of equality in Article 16(1).  Extent of  reservation, as stated above, will depend on the facts of  each case.  Backwardness and inadequacy of  representation are compelling reasons for the State

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Governments to provide representation in public  employment.  Therefore, if in a given case the court finds  excessive reservation under the State enactment then  such an enactment would be liable to be struck down  since it would amount to derogation of the above  constitutional requirements.

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

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

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constitutional requirements without which the  structure of equality of opportunity in Article 16  would collapse.

However, in this case, as stated, the main issue  concerns the "extent of reservation".  In this regard  the concerned State will have to show in each case  the existence of the compelling reasons, namely,  backwardness, inadequacy of representation and  overall administrative efficiency before making  provision for reservation.  As stated above, the  impugned provision is an enabling provision.  The  State is not bound to make reservation for SC/ST in  matter of promotions.  However if they wish to  exercise their discretion and make such provision,  the State has to collect quantifiable data showing  backwardness of the class and inadequacy of  representation of that class in public employment in  addition to compliance of Article 335.  It is made  clear that even if the State has compelling reasons, as  stated above, the State will have to see that its  reservation provision does not lead to excessiveness  so as to breach the ceiling-limit of 50% or obliterate  the creamy layer or extend the reservation  indefinitely.           Subject to above, we uphold the constitutional  validity of the Constitution (Seventy-Seventh  Amendment) Act, 1995, the Constitution (Eighty-First  Amendment) Act, 2000, the Constitution (Eighty-Second  Amendment) Act, 2000 and the Constitution (Eighty-Fifth  Amendment) Act, 2001.  

       We have not examined the validity of individual  enactments of appropriate States and that question will  be gone into in individual writ petition by the appropriate  bench in accordance with law laid down by us in the  present case.         Reference is answered accordingly.