Supreme Court of India
JARNAIL SINGH & OTHERSversusLACHHMI NARAIN GUPTA & OTHERS
- Citation
- 2018 INSC 881
- Decided
- 26 September 2018
- Disposal
- Reference answered
- Bench
- DIPAK MISRA
Holding
The Court held that the M. Nagaraj judgment need not be referred to a larger bench, but its directive that States collect quantifiable data on SC/ST backwardness is invalid to the extent it contradicts Indra Sawhney (1), while the creamy‑layer principle may be applied to SCs/STs under Articles 14 and 16 without altering Articles 341/342.
Summary
The Supreme Court examined a slew of petitions seeking a referral of the M. Nagaraj judgment to a larger bench, focusing on the validity of its requirement that States collect quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST) for promotion reservations. The Court held that while the Nagaraj decision does not need to be re‑examined by a larger bench, its holding that such data must be collected is inconsistent with the nine‑Judge Indra Sawhney (1) ruling and is therefore invalid to that extent. It clarified that the creamy‑layer principle can be applied to SCs and STs under Articles 14 and 16 without altering the Presidential Lists in Articles 341 and 342. The Court affirmed that the constitutional amendments inserting Articles 16(4‑A) and 16(4‑B) do not violate the basic structure of the Constitution. Consequently, the petition to refer the matter to a larger bench was dismissed and the validity of the Nagaraj judgment, apart from the quantifiable‑data requirement, was upheld.
Issues considered
- The necessity of referring the M. Nagaraj judgment to a larger Constitution Bench.
- Whether the requirement in Nagaraj that States collect quantifiable data on SC/ST backwardness conflicts with Indra Sawhney (1).
- The applicability of the creamy‑layer principle to SCs and STs and its impact on Articles 341 and 342.
- The constitutionality of Articles 16(4‑A) and 16(4‑B) inserted by constitutional amendments.
- Whether Parliament may exclude the creamy layer from the Presidential Lists.
- The appropriate test for adequacy of representation in promotions – quantifiable data versus proportionality to population.
Legislation cited
- Constitution (Eighty-fifth Amendment) Act, 2001
- Constitution (Eighty-first Amendment) Act, 2000
- Constitution (Eighty-second Amendment) Act, 2000
- Constitution (Ninety‑third Amendment) Act, 2005
- Constitution of Indias. Art.14, s. Art.16(1), s. Art.16(4), s. Art.16(4-A), s. Art.16(4-B), s. Art.330, s. Art.335, s. Art.341, s. Art.342, s. Art.46
- Constitution (Seventy-seventh Amendment) Act, 1995
Subjects
reservationpromotioncreamy layerScheduled CastesScheduled TribesArticle 16(4-A)basic structure doctrinequantifiable dataPresidential ListIndra SawhneyM. Nagaraj
Judgment
[2018] 10 S.C.R. 663 663
JARNAIL SINGH & OTHERS A
v.
LACHHMI NARAIN GUPTA & OTHERS
(Special Leave Petition (Civil) No.30621 of 2011)
SEPTEMBER 26, 2018 B
[DIPAK MISRA, CJI, KURIAN JOSEPH, R. F. NARIMAN,
SANJAY KISHAN KAUL AND INDU MALHOTRA, JJ.]
Constitution of India – Arts.16(4-A), 16(4-B), 335, 341 and
342 – Interpretation of – Reservation in promotion – Judgment in
C
M. Nagaraj case – Correctness of – Referred to five judge
Constitution Bench – Held: Judgment in M. Nagaraj case does not
need to be referred to seven–Judge Bench – However, the conclusion
in M. Nagaraj case that the State has to collect quantifiable data
showing backwardness of the Scheduled Castes and the Scheduled
Tribes, being contrary to the nine-Judge Bench in Indra Sawhney D
(1) case, is held to be invalid to this extent.
Constitution of India – Reservation – Principle of Creamy
Layer – Application to Schedules Castes (SCs) and Scheduled Tribes
(STs) – Held: When a Court applies the creamy layer principle to
SCs and STs, it does not in any manner tinker with the Presidential E
List u/Arts. 341 or 342 – Caste or group or sub-group named in the
said List continues exactly as before – It is only those persons within
that group or sub-group, who have come out of untouchability or
backwardness by virtue of belonging to the creamy layer, who are
excluded from the benefit of reservation.
F
Constitution of India – Arts.14 and 16(1) – Reservation –
Principle of Creamy Layer – Held: Creamy Layer Principle sounds
in Arts. 14 and 16(1), as unequals within the same class are being
treated equally with other members of that class.
Interpretation of Statutes – Harmonious Interpretation – Held: G
Arts. 14 and 16 when harmoniously interpreted along with Arts.341
and 342, makes it clear that Parliament has complete freedom to
include or exclude persons from the Presidential Lists based on
relevant factors – Constitution of India – Arts. 14, 16, 341 and
342.
H
663
664 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Constitution of India – Reservation – Object of – Held: Whole
object of reservation is to see that backward classes of citizens
move forward so that they may march hand in hand with other citizens
of India on an equal basis – This will not be possible if only the
creamy layer within a class bag all the coveted jobs in the public
sector and perpetuate themselves, leaving the rest of the class as
B
backward as they always were.
Answering the referred issue, the Court
HELD: 1.1 Though M.Nagaraj is a later judgment, it does
not refer to Chinnaiah case at all. The majority judgment of
C Hegde, J. does not refer to the creamy layer principle at all.
Chinnaiah’s judgment in essence held that the Andhra Pradesh
Scheduled Castes (Rationalisation of Reservations) Act, 2000,
which it considered, could not further sub-divide Scheduled Castes
into four categories, as that would be violative of Article 341(2)
of the Constitution of India for the simple reason that it is
D Parliament alone that can make any change in the Presidential
List and not the State Legislatures. This is the true ratio of the
judgment. This being the case, as Chinnaiah does not in any
manner deal with any of the aspects on which the constitutional
amendments in M.Nagaraj’s case were upheld, it was not
E necessary for M.Nagaraj case to refer to Chinnaiah at all. The
true ratio of the judgment flows from a construction of Article
341. It is true that the Andhra Pradesh Scheduled Castes
(Rationalisation of Reservations) Act, 2000 was also found to be
violative of Article 14. Chinnaiah case dealt with a completely
different problem, apart from dealing with a State statute and not
F a constitutional amendment, as was dealt with in M.Nagaraj case.
[Para 13] [694-F-G; 695-A-B, D]
1.2 Insofar as the State having to show quantifiable data as
far as backwardness of the class is concerned, the reference to
“class” in M.Nagaraj is to the Scheduled Castes and the
G Scheduled Tribes, and their inadequacy of representation in public
employment. It is clear, therefore, that M.Nagaraj has, in
unmistakable terms, stated that the State has to collect
quantifiable data showing backwardness of the Scheduled Castes
and the Scheduled Tribes. This portion of the judgment is directly
H contrary to the nine-Judge Bench in Indra Sawhney (1) case.
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 665
Jeevan Reddy, J., speaking for himself and three other learned A
Judges, had clearly held, “[t]he test or requirement of social and
educational backwardness cannot be applied to Scheduled Castes
and Scheduled Tribes, who indubitably fall within the expression
“backward class of citizens”. [Para 14] [695-E-H]
1.3 In fact, Chinnaiah case has referred to the Scheduled B
Castes as being the most backward among the backward classes.
This is for the reason that the Presidential List contains only
those castes or groups or parts thereof, which have been regarded
as untouchables. Similarly, the Presidential List of Scheduled
Tribes only refers to those tribes in remote backward areas who
are socially extremely backward. Thus, it is clear that when C
M.Nagaraj case requires the States to collect quantifiable data
on backwardness, insofar as Scheduled Castes and Scheduled
Tribes are concerned, this would clearly be contrary to the Indra
Sawhney (1) case and would have to be declared to be bad on
this ground. However, when it comes to the creamy layer D
principle, it is important to note that this principle sounds in
Articles 14 and 16(1), as unequals within the same class are being
treated equally with other members of that class. The whole object
of reservation is to see that backward classes of citizens move
forward so that they may march hand in hand with other citizens
of India on an equal basis. This will not be possible if only the E
creamy layer within that class bag all the coveted jobs in the public
sector and perpetuate themselves, leaving the rest of the class
as backward as they always were. This being the case, it is clear
that when a Court applies the creamy layer principle to Scheduled
Castes and Scheduled Tribes, it does not in any manner tinker F
with the Presidential List under Articles 341 or 342 of the
Constitution of India. The caste or group or sub-group named in
the said List continues exactly as before. It is only those persons
within that group or sub-group, who have come out of
untouchability or backwardness by virtue of belonging to the
creamy layer, who are excluded from the benefit of reservation. G
Even these persons who are contained within the group or sub-
group in the Presidential Lists continue to be within those Lists.
It is only when it comes to the application of the reservation
principle under Articles 14 and 16 that the creamy layer within
H
666 SUPREME COURT REPORTS [2018] 10 S.C.R.
A that sub-group is not given the benefit of such reservation.
[Para 15] [696-D-F; 698-A-D]
1.4 It is not necessary to go into whether Parliament may
or may not exclude the creamy layer from the Presidential Lists
contained under Articles 341 and 342. Even on the assumption
B that Articles 341 and 342 empower Parliament to exclude the
creamy layer from the groups or sub-groups contained within
these Lists, it is clear that Constitutional Courts, applying Articles
14 and 16 of the Constitution to exclude the creamy layer cannot
be said to be thwarted in this exercise by the fact that persons
stated to be within a particular group or sub-group in the
C Presidential List may be kept out by Parliament on application of
the creamy layer principle. When Articles 14 and 16 are
harmoniously interpreted along with other Articles 341 and 342,
it is clear that Parliament will have complete freedom to include
or exclude persons from the Presidential Lists based on relevant
D factors. Similarly, Constitutional Courts, when applying the
principle of reservation, will be well within their jurisdiction to
exclude the creamy layer from such groups or sub-groups when
applying the principles of equality under Articles 14 and 16 of the
Constitution of India. Statement of Balakrishnan, C.J. in Ashoka
Kumar Thakur case that the creamy layer principle is merely a
E principle of identification and not a principle of equality cannot
be agreed upon. [Para 16] [698-E-H; 699-A]
1.5 When M.Nagaraj applied the creamy layer test to
Scheduled Castes and Scheduled Tribes in exercise of application
of the basic structure test to uphold the constitutional
F amendments leading to Articles 16(4-A) and 16(4-B), it did not
in any manner interfere with Parliament’s power under Article
341 or Article 342. Therefore, clearly this part of the judgment
does not need to be revisited, and consequently, there is no need
to refer M.Nagaraj to a seven-Judge Bench. M.Nagaraj is a
G unanimous judgment of five learned Judges of this Court which
has held sway since the year 2006. In fact, the tests laid down in
M.Nagaraj case for judging whether a constitutional amendment
violates basic structure have been expressly approved by a nine-
Judge Bench of this Court in I.R. Coelho case. The entirety of
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 667
the decision, far from being clearly erroneous, correctly applies A
the basic structure doctrine to uphold constitutional amendments
on certain conditions which are based upon the equality principle
as being part of basic structure. Thus, it is made clear that
quantifiable data shall be collected by the State, on the parameters
as stipulated in M.Nagaraj case on the inadequacy of
B
representation, which can be tested by the Courts. The data would
be relatable to the concerned cadre. [Para 17] [699-B-C;
700-C-D]
1.6 Even without the help of the first part of Article 16(4-A)
of the Constitution (One Hundred Seventeeth Amendment) Bill,
2012, the providing of quantifiable data on backwardness when it C
comes to Scheduled Castes and Scheduled Tribes, has been held
to be contrary to the majority in Indra Sawhney (1) case. So far as
the second part of the substituted Article 16(4-A) contained in
the Bill is concerned, it is noticed that the proportionality to the
population of Scheduled Castes and Scheduled Tribes is not D
something that occurs in Article 16(4-A) as enacted, which must
be contrasted with Article 330. Article 46, which is a provision
occurring in the Directive Principles of State Policy, has always
made the distinction between the Scheduled Castes and the
Scheduled Tribes and other weaker sections of the people. This
being the case, it is easy to see the pattern of Article 46 being E
followed in Article 16(4) and Article 16(4-A). Whereas “backward
classes” in Article 16(4) is equivalent to the “weaker sections of
the people” in Article 46, and is the overall genus, the species of
Scheduled Castes and Scheduled Tribes is separately mentioned
in the latter part of Article 46 and Article 16(4-A). This is for the F
reason that the Scheduled Castes and the Scheduled Tribes are
the most backward or the weakest of the weaker sections of
society, and are, therefore, presumed to be backward. The
argument that as a member of a Scheduled Caste or a Scheduled
Tribe reaches the higher posts, he/she no longer has the taint of
either untouchability or backwardness, as the case may be, and G
that therefore, the State can judge the absence of backwardness
as the posts go higher, is an argument that goes to the validity of
Article 16(4-A). If this argument is accepted, logically, Article
16(4-A) would have to be struck down, as the necessity for
H
668 SUPREME COURT REPORTS [2018] 10 S.C.R.
A continuing reservation for a Scheduled Caste and/or Scheduled
Tribe member in the higher posts would then disappear. Since
the object of Article 16(4-A) and 16(4-B) is to do away with the
nine-Judge Bench in Indra Sawhney (1) case when it came to
reservation in promotions in favour of the Scheduled Castes and
Scheduled Tribes, that object must be given effect to, and has
B
been given effect by the judgment in M.Nagaraj case. This being
the case, one cannot countenance an argument which would
indirectly revisit the basis or foundation of the constitutional
amendments themselves in order that one small part of M.Nagaraj
case be upheld, namely, that there be quantifiable data for judging
C backwardness of the Scheduled Castes and the Scheduled Tribes
in promotional posts. The concept of “creamy layer” applies to
persons within the Scheduled Castes or the Scheduled Tribes
who no longer require reservation, as opposed to posts beyond
the entry stage, which may be occupied by members of the
Scheduled Castes or the Scheduled Tribes. [Para 19] [703-A-C,
D
E-H; 704-A-C]
1.7 The Attorney General requested that the proportion
of Scheduled Castes and Scheduled Tribes to the population of
India should be taken to be the test for determining whether
they are adequately represented in promotional posts for the
E purpose of Article 16(4-A). He complained that M.Nagaraj case
ought to have stated this, but has said nothing on this aspect.
According to this Court, M.Nagaraj case has wisely left the test
for determining adequacy of representation in promotional posts
to the States for the simple reason that as the post gets higher, it
F may be necessary, even if a proportionality test to the population
as a whole is taken into account, to reduce the number of
Scheduled Castes and Scheduled Tribes in promotional posts, as
one goes upwards. This is for the simple reason that efficiency of
administration has to be looked at every time promotions are
made. As has been pointed out by B.P. Jeevan Reddy, J.’s
G judgment in Indra Sawhney (1) case, there may be certain posts
right at the top, where reservation is impermissible altogether.
For this reason, it is made clear that Article 16(4-A) has been
couched in language which would leave it to the States to
determine adequate representation depending upon the
H promotional post that is in question. It can be seen that when
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 669
seats are to be reserved in the House of the People for the A
Scheduled Castes and Scheduled Tribes, the test of
proportionality to the population is mandated by the Constitution.
The difference in language between this provision and Article
16(4-A) is important. [Para 20] [704-D-G]
1.8 The judgment in M.Nagaraj case does not need to be B
referred to a seven–Judge Bench. However, the conclusion in
the M.Nagaraj case that the State has to collect quantifiable data
showing backwardness of the Scheduled Castes and the
Scheduled Tribes, being contrary to the nine-Judge Bench in
Indra Sawhney (1) case is held to be invalid to this extent.
[Para 21] [706-B] C
M. Nagaraj v. Union of India (2006) 8 SCC 212 :
[2006] 7 Suppl. SCR 336 ; Indra Sawhney v. Union of
India (Indra Sawhney 1) (1992) Suppl. 3 SCC 217 :
[1992] 2 Suppl. SCR 454 ; R.K. Sabharwal v. State of
Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ; D
E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 :
[2004] 5 Suppl. SCR 972 ; Keshav Mills Co. Ltd. v.
Commissioner of Income-Tax, Bombay North [1965] 2
SCR 908 ; Indra Sawhney v. Union of India and Ors.
(Indra Sawhney 2) (2000) 1 SCC 168 : [1999] 5 Suppl. E
SCR 229 ; Indira Nehru Gandhi v. Raj Narain & Anr.
(1975) Suppl. SCC 1 : [1976] 2 SCR 347 ; Ashoka
Kumar Thakur v. Union of India (2008) 6 SCC 1 :
[2008] 4 SCR 1 ; State of Kerala & Anr. v. N.M. Thomas
and Ors. (1976) 2 SCC 310 : [1976] 1 SCR 906 ;
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and F
Ors. (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Anil Chandra
v. Radha Krishna Gaur (2009) 9 SCC 454 : [2009] 14
SCR 335 (two-Judges Bench) ; Suraj Bhan Meena &
Anr. v. State of Rajasthan & Ors. (2011) 1 SCC 467 :
[2010] 14 SCR 532 (two-Judges Bench) ; U.P. Power G
Corporation v. Rajesh Kumar & Ors. (2012) 7 SCC 1 :
[2012] 4 SCR 118 (two-Judges Bench) ; S. Panneer
Selvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10
SCC 292 (two-Judges Bench) ; Chairman & Managing
Director, Central Bank of India & Ors. v. Central Bank
H
670 SUPREME COURT REPORTS [2018] 10 S.C.R.
A of India SC/ST Employees Welfare Association & Ors.
(2015) 12 SCC 308 : [2015] 1 SCR 55 (two-Judges
Bench) ; Suresh Chand Gautam v. State of U.P. & Ors.
(2016) 11 SCC 113 : [2016] 1 SCR 727 (two-Judges
Bench) ; B.K. Pavitra & Ors. v. Union of India & Ors.
(2017) 4 SCC 620 : [2017] 1 SCR 631 (two-Judges
B
Bench) ; General Categories Welfare Federation v.
Union of India (2012) 7 SCC 40 (three-Judge
Bench) ; Rohtas Bhankar v. Union of India (2014) 8
SCC 872 : [2014] 8 SCR 871 (five-Judge Bench) –
referred to.
C Case Law Reference
[2006] 7 Suppl. SCR 336 referred to Para 1
[1992] 2 Suppl. SCR 454 referred to Para 3
[1995] 2 SCR 35 referred to Para 3
D [2004] 5 Suppl. SCR 972 referred to Para 3
[1965] 2 SCR 908 referred to Para 4
[1999] 5 Suppl. SCR 229 referred to Para 8
[1976] 2 SCR 347 referred to Para 11
E [2008] 4 SCR 1 referred to Para 12
[1976] 1 SCR 906 referred to Para 15
[2007] 1 SCR 706 referred to Para 17
[2009] 14 SCR 335 referred to Para 17
[2010] 14 SCR 532 referred to Para 17
F
[2012] 4 SCR 118 referred to Para 17
(2015) 10 SCC 292 referred to Para 17
[2015] 1 SCR 55 referred to Para 17
[2016] 1 SCR 727 referred to Para 17
G
[2017] 1 SCR 631 referred to Para 17
(2012) 7 SCC 40 referred to Para 17
[2014] 8 SCR 871 referred to Para 17
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 671
CIVIL APPELLATE JURISDICTION : Special Leave Petition A
(Civil) No. 30621 of 2011
From the Judgment and Order dated 15.07.2011 of the High Court
of Punjab and Haryana at Chandigarh in CWP No. 13218 of 2009
WITH
B
Special Leave Petition (Civil) No... CC No. 6821 of 2017
Special Leave Petition (Civil) Nos. 31735, 35000 of 2011, Special
Leave Petition (Civil) Nos. 4831, 2839, 5860, 5859, 30841 of 2012,
Special Leave Petition (Civil) Nos. 8327, 6915, 16710-16711, 33163,
23344, 23339-23340 of 2014, Special Leave Petition (Civil) Nos. 21343, C
25191, 31191, 33688, 19765-19767 of 2015, Special Leave Petition (Civil)
Nos. 10638, 17491, 18844, 19422-19423, 24681, 28446-28447, 28306,
30942, 31288 of 2017, Special Leave Petition (Civil) Nos. 16469, 18925,
and 22985 of 2018. Civil Appeal Nos. 5247, 11817, 11816, 11820, 11822-
11825, 11837-11840, 11842-11845, 11829-11832, 11847-11850, 11828 OF
2016, Civil Appeal Nos. 4562-4564, 4880, 4878-4879, 4876-4877, 4881, D
4882, 4833, 701-704 of 2017, Contempt Petition (Civil) No. 314 of 2016
in Special Leave Petition (Civil) No. 4831 of 2012, Contempt Petition
(Civil) No 11 of 2017 in Special Leave Petition (Civil) No. 19765 of
2015 @ Special Leave Petition (Civil) Nos. 19765-19767 of 2015,
Contempt Petition (Civil) No 13 of 2017 in Special Leave Petition (Civil) E
No 19767 of 2015 @ Special Leave Petition (Civil) Nos.19765-19767
of 2015 and Transfer Petition (Civil) Nos. 608-609 of 2017,
Special Leave Petition (Civil)... Diary Nos. 28776, 29066, 30189, 31145,
33481, 33488, 34271, 34520, 35324, 35577, 35818, 36305, 36377, 38895,
42413 of 2017, Special Leave Petition (Civil).. Diary Nos.619, 969, 971,
1042, 1046, 1584, 2677, 7243, 22349 of 2018. F
K. K. Venugopal, AG, Purushendra Kaurav, Adv. Gen., Manan
Kumar Mishra, Saurabh Mishra, Ms. Aishwarya Bhati, AAGs,
K. Radhakrishnan, P.S. Patwalia, A. Mariarputham, Ms. Indira Jaising,
Sanjay R. Hegde, Rupinder Singh Suri, Nidhesh Gupta, Salman Khurshid,
R.L. Vanjarani, Dr. Rajiv Dhawan, Soumya Chakraborty, Amarendra G
Sharan, Dinesh Dwivedi, Ms. Kiran Suri, Ms. V. Lakshmi Narayan,
Rakesh Dwivedi, Atul Yeshwant Chitale, Shekhar Naphade, Sr. Advs.
Chandra Bhushan Prasad, Shantanu Krishna, Ajit Wagh, Apoorv Shukla,
Ashok K. Mahajan, Mohan Pandey, K.N. Rai, Ms. Ruchi Kohli,
P.K. Mullick, G.S. Makkar, Mrs. Anil Katiyar, Mukesh Kumar Maroria,
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672 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Ms. Shraddha Deshmukh, Ankur Talwar, R. Balasubramanian, Rohit
Bhatt, Ms. Kanika Saran, Prabhas Bajaj, Arvind Kumar Sharma,
Subodeep Roy, Rituraj Biswas, Ms. Natasha Dalmia, Ms. Harishika
Verma, Sayooj Mohan Das, Dinesh Rattan Bhardwaj, Dr. Ashutosh Garg,
Ms. Abha R. Sharma, D.S. Parmar, Ms. Sujeeta Srivastava, Ankit Mishra,
Ms. Hanshika Verma, Ms. Natasha, Ms. Aruna Mathur, Avneesh
B
Arputham, Ms. Anuradha Arputham, Yusuf Khan, Ms. Geetanjali,
M/s. Arputham Aruna and Co., Som Raj Choudhury, Prashant Kumar,
Krishan Singh Chauhan, Ajit Kumar Ekka, Ravi Prakash, Murari Lal,
K.C. Lamba, Deepak Jain, Mrs. Jaspreet A., Ms. Prabhleen Kaur,
Ms. A. Sumathi, Arjun Garg, Devansh Shrivastava, Ms. Ajita Sharma,
C Sumit Pachkhande, Nagesh Gajghate, Ms. Shashi Kiran, Satish Chandra,
Sana Mujawar, Manoj Jain, Arjun Sain, Prakash Sharma, Mohd. Naved,
Pankaj Sharma, Ms. Prerna Mehta, B. Krishna Prasad, Manoj Gorkela,
Pranja Kishore, S. Nithin, M/s. Gorkela Law Office, Varun Khanna,
Aditya Giri, Alok Singh, Sahil, Ms. Vriti Gujral, Ms. Pallavi Singhi, Prakash
Sharma (for M/s. Gorkela Law Office), Mohammad Ibrahim, Ms. Lubna
D
Naaz, Mrs. Kunika, Aniruddha P. Mayee, Hitesh Kumar Sharma,
S.K. Rajora, Dr. (Mrs.) Vipin Gupta, Shreekant N. Terdal, Aakarsh K.,
Pratik R. Bombarde, Pradeep S. Wthore, Abhishek Kumar, Jitendra
Ashok, M/s. S.M. Jadhav & Co., S.B. Pawar, Shriram Pingale, Sagar
Pawan, Pratik Gaurav, Ms. Sneha Iyer, Ms. Deepa Kulkarni, Ms. Suvrna
E Ganu, Nishant Ramakantraw Katneshwarkar, Gurjyot Sethi, Ms. Shivangi
Khanna, Ms. Tanvi Kakar, Abhijat P. Medh, Sunil Kumar, Gaya Prasad,
Randhir Singh, Satya Prakash Gautam, Ms. Olivia Bang, D. Kumanan,
Pulkit Tare, Satya Mitra, Arvind S. Avhad, P. K. Jayakrishnan, R. S. M.
Kalky, Ramesh Kumar, Ram Kishan, Sat Narain, Dr. Gunratan Sadavarte,
Dr. Jay Shree L. Patil, Pankaj Kumar Singh, Pankaj Kumar Shukla,
F
Makrand Pratap Singh, Mukesh Verma, Raj Singh Rana, Rakesh V.
Rathod, Dinesh P. Rajbhar, Ms. Anzu K. Varkey, Prashant R. Dahat,
T.R.B. Sivakumar, Shreyas G., Gopal Sankaranarayanan, Shobhit Tiwari,
Lal Pratap Singh, Umesh Pratap Singh, Shrey Patnaik, Ms. Aishwarya
Kane, Ms. N. Annapoorani, Karan Khanna, Arjun Aggarwal, Bhaskar
G Aditya, Aniket Bhattacharya, Pradeep Aggarwal, Paban Sharma, Anirudh
Sharma, Ram Niwas, R. S. Chauhan, Ms. Niranjana Singh, A. Subba
Rao, K.L.D.S. Vinober, Chand Kiran, Anuj Saxena, Ms. Payal Gaikwad,
Satpal Singh, S.N. Bhat, Prashant Bhushan, Amit Anand Tiwari,
Ms. Shakun Sharma, Ms. Harshal Gupta, N. Raja Senthoor Pandian,
Vivek Singh, Sushil Karanjkar, K.N. Rai, Kuldip Singh, P. Soma
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JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 673
Sundaram, Chandan Kumar, Rituraj Choudhary, Ms. Sujaya Bardhan, A
Krishnam Mishra, Nishant Singh, Yasharth Kant, Kumar Parimal, Prakash
Pandey, Sanjeev Kumar Choudhary, S. J. Amith, Ms. Aishwarya Kumar,
Krishan Kumar, Mrs. Vipin Gupta, Sailash Madiyal, Sudhanshu Prakash,
Dinesh K. Garg, Abhishek Garg, Dhananjay Garg, Deepak Mishra,
Sriniwas Babu, N. Premraj, Anil Kumar Mishra, Anuj Singh, Ms. Alka
B
Sinha, Anuvrat Sharma, Ravindra Kumar, Fuzail Ahmad Ayyubi,
Ms. Aditi Gupta, Ibad Mushtaq, Ms. Kauser Husain, Pranjal Kishore,
Abdul Qadir, Samir Ali Khan, M. Shoeb Alam, Captain Gurvinder Singh,
Ms. Vivya Nagpal, Gaurav Kejriwal, Sandeep Devashish Das, Prateek
Rusia, Gaurav Agrawal, B. Sridhar, Suyash Mohan Guru, Ms. Sansriti
Pathak, Sarvesh Singh Baghel, K.B. Baghel, Ms. Lalita Kaushik, C
Vardhman Kaushik, Amol Srivastava, Eklavya Dwivedi, Naresh Kaushik,
Nishant Gautam, Karn Deo Baghel, Omungraj Gupta, Manoj Joshi, Devi
K. Singh, S.K. Gangele, Vivek Jaswal, Dhruv Joshi, K.K.L. Gautam,
Abhishek Kr. Suman, Rahul M., R.R. Bag, Sanjeev Maolhotra, M.K.
Dua, Gopal Singh, Ms. Amita Singh Kalkal, Puneet Jain, Abhinav Gupta,
D
Harsh Jain, Ms. Christi Jain, Ms. Vineeta Meghrajani, Vishwa Pal Singh,
Smarhar Singh, Ms. Priya Sharma, Prathvi Raj Chauhan, Ms. Suchitra
Atul Chitale, Ravindra Keshavrao Adsure, Dr. M.P. Raju, M. Vijaya
Bhaskar, S.P. Singh, Mrs. Suchitra A. Chitale, Nikhilesh Ramachandran,
Sanjay Kharde, Samrat Shinde, Abhikalp Pratap Singh, Sunil Kumar
Verma, Avijit Bhattacharjee, Mrs. Upma Shrivastava, Ajoy Kr. Ghosh, E
Nitin Deorao Meshram, Ranbir Singh Yadav, Sagar Kushwah, Chandan
Ramamurthi, Manoj R. Sinha, Venkateswara Rao Anumolu, Sant Ranjan
Das, Anindo Mukherjee, Ms. Sarla Chandra, Advs. for the appearing
parties.
Respondent-in-person. F
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. The present group of cases arises out of
two reference orders – the first by a two-Judge Bench referred to in a
second reference order, dated 15.11.2017, which is by a three-Judge
Bench, which has referred the correctness of the decision in M. Nagaraj G
v. Union of India, (2006) 8 SCC 212, (“Nagaraj”), to a Constitution
Bench.
2. The controversy in these matters revolves around the
interpretation of the following Articles of the Constitution of India:
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674 SUPREME COURT REPORTS [2018] 10 S.C.R.
A “16. Equality of opportunity in matters of public
employment.—
xxx xxx xxx
(4-A) Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion, with
B consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
(4-B) Nothing in this article shall prevent the State from considering
C any unfilled vacancies of a year which are reserved for being
filled up in that year in accordance with any provision for
reservation made under clause (4) or clause (4-A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
D the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number
of vacancies of that year.”
xxx xxx xxx
“335. Claims of Scheduled Castes and Scheduled Tribes to
E services and posts.—The claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts
in connection with the affairs of the Union or of a State:
F 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.”
G
xxx xxx xxx
“341. Scheduled Castes.—(1) The President may with respect
to any State or Union Territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
H specify the castes, races or tribes or parts of or groups within
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 675
[R. F. NARIMAN, J.]
castes, races or tribes which shall for the purposes of this A
Constitution be deemed to be Scheduled Castes in relation to that
State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause
(1) any caste, race or tribe or part of or group within any caste, B
race or tribe, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification.”
xxx xxx xxx
“342. Scheduled Tribes.—(1) The President may with respect
to any State or Union territory, and where it is a State, after C
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that
State or Union territory, as the case may be. D
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause
(1) any tribe or tribal community or part of or group within any
tribe or tribal community, but save as aforesaid a notification issued
under the said clause shall not be varied by any subsequent E
notification.”
3. We have heard wide-ranging arguments on either side for a
couple of days, raising several points. However, ultimately, we have
confined arguments to two points which require serious consideration.
The learned Attorney General for India, Shri K.K. Venugopal, led the F
charge for reconsideration of Nagaraj (supra). According to the learned
Attorney General, Nagaraj (supra) needs to be revisited on these two
points. First, when Nagaraj (supra) states that the State has to collect
quantifiable data showing backwardness, such observation would be
contrary to the nine-Judge Bench in Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217, (“Indra Sawhney (1)”), as it has been held G
therein that the Scheduled Castes and the Scheduled Tribes are the most
backward among backward classes and it is, therefore, presumed that
once they are contained in the Presidential List under Articles 341 and
342 of the Constitution of India, there is no question of showing
backwardness of the Scheduled Castes and the Scheduled Tribes all
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676 SUPREME COURT REPORTS [2018] 10 S.C.R.
A over again. Secondly, according to the learned Attorney General, the
creamy layer concept has not been applied in Indra Sawhney (1) (supra)
to the Scheduled Castes and the Scheduled Tribes and Nagaraj (supra)
has misread the aforesaid judgment to apply this concept to the Scheduled
Castes and the Scheduled Tribes. According to the learned Attorney
General, once the Scheduled Castes and the Scheduled Tribes have been
B
set out in the Presidential List, they shall be deemed to be Scheduled
Castes and Scheduled Tribes, and the said List cannot be altered by
anybody except Parliament under Articles 341 and 342. The learned
Attorney General also argued that Nagaraj (supra) does not indicate
any test for determining adequacy of representation in service. According
C to him, it is important that we lay down that the test be the test of
proportion of Scheduled Castes and Scheduled Tribes to the population
in India at all stages of promotion, and for this purpose, the roster that
has been referred to in R.K. Sabharwal v. State of Punjab, (1995) 2
SCC 745 can be utilized. Other counsel who argued, apart from the
learned Attorney General, have, with certain nuances, reiterated the same
D
arguments. Ms. Indira Jaising, learned senior advocate, appearing on
behalf of one of the Petitioners in C.A. No. 11816 of 2016, submitted
that Nagaraj (supra) needs to be revisited also on the ground that Article
16(4-A) and 16(4-B) do not flow from Article 16(4), but instead flow
from Articles 14 and 16(1) of the Constitution. She further argued that
E claims of the Scheduled Castes and the Scheduled Tribes are based on
a reading of Articles 14, 15, 16, 16(4-A), 16(4-B), and 335 of the
Constitution. It was further submitted that a further sub-classification
within Scheduled Castes and Scheduled Tribes is impermissible, as has
been held in Indira Sawhney (1) (supra) and in E.V. Chinnaiah v.
State of A.P., (2005) 1 SCC 394 (“Chinnaiah”). She argued that the
F
decision in Nagaraj (supra) would have the effect of amending the
Presidential Order relating to Scheduled Castes and Scheduled Tribes,
which would violate Articles 341 and 342 of the Constitution of India, as
Parliament alone can amend a Presidential Order. She concluded her
argument by saying that the exercise of reading down a constitutional
G amendment to make it valid, conducted in Nagaraj (supra), was
constitutionally impermissible. Shri P.S. Patwalia, learned senior advocate,
appearing on behalf of the State of Tripura, reiterated some of the
submissions and added that Nagaraj (supra) and Chinnaiah (supra)
cannot stand together, which is why Nagaraj (supra) is per incuriam as
it does not refer to the judgment in Chinnaiah (supra) at all.
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 677
[R. F. NARIMAN, J.]
4. On the other hand, Shri Shanti Bhushan has defended Nagaraj A
(supra) by stating that when Nagaraj (supra) speaks about backwardness
of the “class”, what is referred to is not Scheduled Castes and Scheduled
Tribes at all, but the class of posts. Hence, it is clear that backwardness
in relation to the class of posts spoken of would require quantifiable
data, and it is in that context that the aforesaid observation is made. He
B
also argued, relying upon Keshav Mills Co. Ltd. v. Commissioner
of Income-Tax, Bombay North, (1965) 2 SCR 908, (“Keshav
Mills”), that a Constitution Bench judgment which has stood the test of
time, ought not to be revisited, and if the parameters of Keshav Mills
(supra) are to be applied, it is clear that Nagaraj (supra) ought not to be
revisited. Shri Rajeev Dhavan, learned senior advocate, has argued before C
us that Nagaraj (supra) has to be understood as a judgment which has
upheld the constitutional amendments adding Articles 16(4-A) and 16(4-
B) on the ground that they do not violate the basic structure of the
Constitution. According to him, since equality is part of the basic structure,
and Nagaraj (supra) has applied the 50% cut-off criterion, creamy layer,
D
and no indefinite extension of reservation, as facets of the equality
principle to uphold the said constitutional amendments, Nagaraj (supra)
ought not to be revisited. According to the learned senior counsel, “creamy
layer” is a matter of applying the equality principle, as unequals within
the same class are sought to be weeded out as they cannot be treated as
equal to the others. The whole basis for application of the creamy layer E
principle is that those genuinely deserving of reservation would otherwise
not get the benefits of reservation and conversely, those who are
undeserving, get the said benefits. According to the learned senior
advocate, the creamy layer principle applies to exclude certain individuals
from the class and does not deal with group rights at all. This being the
F
case, Articles 341 and 342 are not attracted. Further, Articles 341 and
342 do not concern themselves with reservation at all. They concern
themselves only with identification of those who can be called Scheduled
Castes and Scheduled Tribes. On the other hand, the creamy layer
principle is applied by Courts to exclude certain persons from reservation
made from within that class on the touchstone of Articles 14 and 16(1) G
of the Constitution of India. He argued that even if it be conceded that
creamy layer can fall within Articles 341 and 342, yet the Court’s power
to enforce fundamental rights as part of the basic structure cannot be
taken away. Indeed, Nagaraj (supra) was a case pertaining to a
constitutional amendment and, therefore, Articles 341 and 342 cannot
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678 SUPREME COURT REPORTS [2018] 10 S.C.R.
A stand in the way of applying the basic structure test to a constitutional
amendment.
5. Shri Rakesh Dwivedi, learned senior advocate, appearing in
C.A. No. 5247 of 2016, submitted that the crucial language contained in
Article 16(4-A) is that the word “which” would show that Scheduled
B Castes and Scheduled Tribes have to continue to be “backward”. If the
expression “the Scheduled Castes and the Scheduled Tribes” in Article
16(4-A) would be read as “the Scheduled Castes and the Scheduled
Tribes employees”, this would become even clearer. Therefore, according
to the learned senior advocate, continued social backwardness of the
Scheduled Castes/Scheduled Tribes employees has necessarily to be
C assessed. While making promotions to higher level posts, it becomes
clear that a Scheduled Caste/Scheduled Tribe employee may have cast
off his backwardness when he/she reaches a fairly high stage in a service,
for example, the post of Deputy Chief Engineer, at which stage, it would
be open for the State to say that having regard to the absence of any
D backwardness of the Scheduled Caste/Scheduled Tribe employee at this
stage, it would be expedient not to reserve anything further in posts
above this stage. Shri Naphade, Shri Gopal Sankaranarayanan and other
counsel followed suit and broadly supported the arguments of Shri Dhavan
and Shri Dwivedi.
E 6. Since we are asked to revisit a unanimous Constitution Bench
judgment, it is important to bear in mind the admonition of the Constitution
Bench judgment in Keshav Mills (supra). This Court said:
“[I]n reviewing and revising its earlier decision, this Court should
ask itself whether in the interests of the public good or for any
F other valid and compulsive reasons, it is necessary that the earlier
decision should be revised. When this Court decides questions of
law, its decisions are, under Article 141, binding on all courts within
the territory of India, and so, it must be the constant endeavour
and concern of this Court to introduce and maintain an element of
certainty and continuity in the interpretation of law in the country.
G Frequent exercise by this Court of its power to review its earlier
decisions on the ground that the view pressed before it later
appears to the Court to be more reasonable, may incidentally tend
to make law uncertain and introduce confusion which must be
consistently avoided. That is not to say that if on a subsequent
H occasion, the Court is satisfied that its earlier decision was clearly
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 679
[R. F. NARIMAN, J.]
erroneous, it should hesitate to correct the error; but before a A
previous decision is pronounced to be plainly erroneous, the Court
must be satisfied with a fair amount of unanimity amongst its
members that a revision of the said view is fully justified. It is not
possible or desirable, and in any case it would be inexpedient to
lay down any principles which should govern the approach of the
B
Court in dealing with the question of reviewing and revising its
earlier decisions. It would always depend upon several relevant
considerations: — What is the nature of the infirmity or error on
which a plea for a review and revision of the earlier view is based?
On the earlier occasion, did some patent aspects of the question
remain unnoticed, or was the attention of the Court not drawn to C
any relevant and material statutory provision, or was any previous
decision of this Court bearing on the point not noticed? Is the
Court hearing such plea fairly unanimous that there is such an
error in the earlier view? What would be the impact of the error
on the general administration of law or on public good? Has the
D
earlier decision been followed on subsequent occasions either by
this Court or by the High Courts? And, would the reversal of the
earlier decision lead to public inconvenience, hardship or mischief?
These and other relevant considerations must be carefully borne
in mind whenever this Court is called upon to exercise its
jurisdiction to review and revise its earlier decisions. These E
considerations become still more significant when the earlier
decision happens to be a unanimous decision of a Bench of five
learned Judges of this Court.”
(at pp. 921-922)
7. We may begin with the nine-Judge Bench in Indra Sawhney F
(1) (supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J.,
speaking on behalf of himself and three other learned Judges, with Pandian
and Sawant, JJ., broadly concurring in the result by their separate
judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The bone
of contention in this landmark judgment was the Mandal Commission G
Report of 1980, which was laid before Parliament on two occasions –
once in 1982, and again in 1983. However, no action was taken on the
basis of this Report until 13.08.1990, when an Office Memorandum stated
that after considering the said Report, 27% of the vacancies in civil
posts and services under the Government of India shall be reserved for
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680 SUPREME COURT REPORTS [2018] 10 S.C.R.
A the Socially and Economically Backward Classes. This was followed by
an Office Memorandum of 25.09.1991, by which, within the 27% of
vacancies, preference was to be given to candidates belonging to the
poorer sections of the Socially and Economically Backward Classes;
and 10% vacancies were to be reserved for Other Economically
Backward Sections who were not covered by any of the existing schemes
B
of reservation. The majority judgments upheld the reservation of 27% in
favour of backward classes, and the further sub-division of more
backward within the backward classes who were to be given preference,
but struck down the reservation of 10% in favour of Other Economically
Backward categories. In arriving at this decision, the judgment of Jeevan
C Reddy, J., referred to and contrasted Article 16(4) with Article 15(4),
and stated that when Article 16(4) refers to a backward class of citizens,
it refers primarily to social backwardness (See paragraph 774). Scheduled
Castes and Scheduled Tribes, not being the subject matter before the
Court, were kept aside as follows:
D “781. At the outset, we may state that for the purpose of this
discussion, we keep aside the Scheduled Tribes and Scheduled
Castes (since they are admittedly included within the backward
classes), except to remark that backward classes contemplated
by Article 16(4) do comprise some castes — for it cannot be
denied that Scheduled Castes include quite a few castes.”
E
In dealing with the creamy layer concept insofar as it is applicable
to backward classes, the last sentence of paragraph 792 also states:
“792. …… (This discussion is confined to Other Backward
Classes only and has no relevance in the case of Scheduled Tribes
F and Scheduled Castes).”
In the summary of the discussion contained in paragraphs 796-
797, it is stated, “the test or requirement of social and educational
backwardness cannot be applied to Scheduled Castes and Scheduled
Tribes, who indubitably fall within the expression “backward class of
G citizens”.” Jeevan Reddy, J. then went on to state that in certain posts,
of specialities and super-specialities, provisions for reservation would
not be advisable (See paragraph 838). Ultimately, the judgment decided
that reservation would apply at the stage of initial entry only and would
not apply at the stage of promotion.
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 681
[R. F. NARIMAN, J.]
8. It is important to note that eight of the nine learned Judges in A
Indra Sawhney (1) (supra) applied the creamy layer principle as a facet
of the larger equality principle. In fact, in Indra Sawhney v. Union of
India and Ors., (2000) 1 SCC 168 (“Indra Sawhney (2)”), this Court
neatly summarized the judgments in Indra Sawhney (1) (supra), on the
aspect of creamy layer as follows:
B
“13. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] on the question of exclusion
of the “creamy layer” from the backward classes, there was
agreement among eight out of the nine learned Judges of this
Court. There were five separate judgments in this behalf which
required the “creamy layer” to be identified and excluded. C
14. The judgment of Jeevan Reddy, J. was rendered for himself
and on behalf of three other learned Judges, Kania, C.J. and M.N.
Venkatachaliah, A.M. Ahmadi, JJ. (as they then were). The said
judgment laid emphasis on the relevance of caste and also stated
that upon a member of the backward class reaching an “advanced D
social level or status”, he would no longer belong to the backward
class and would have to be weeded out. Similar views were
expressed by Sawant, Thommen, Kuldip Singh, and Sahai, JJ. in
their separate judgments.
15. It will be necessary to refer to and summarise briefly the E
principles laid down in these five separate judgments for that would
provide the basis for decision on Points 2 to 5.
16. While considering the concept of “means-test” or “creamy
layer”, which signifies imposition of an income limit, for the purpose
of excluding the persons (from the backward class) whose income F
is above the said limit, in para 791, the Court has noted that counsel
for the States of Bihar, Tamil Nadu, Kerala and other counsel for
the respondents strongly opposed any such distinction and
submitted that once a class is identified as a backward class after
applying the relevant criteria including the economic one, it is not G
permissible to apply the economic criterion once again and sub-
divide a backward class into two sub-categories. The Court
negatived the said contention by holding that exclusion of such
(creamy layer) socially advanced members will make the “class”
a truly backward class and would more appropriately serve the
purpose and object of clause (4). H
682 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 17. Jeevan Reddy, J. dealt with the “creamy layer” under Question
3(d) (paras 790, 792, 793 of SCC) and under Question 10 (paras
843, 844). This is what the learned Judge declared: there are
sections among the backward classes who are highly advanced,
socially and educationally and they constitute the forward
section of that community. These advanced sections do not belong
B
to the true backward class. They are (para 790) “as forward as
any other forward class member”.
“If some of the members are far too advanced socially (which
in the context, necessarily means economically and, may also
mean educationally) the connecting thread between them and
C the remaining class snaps. They would be misfits in the class.”
(SCC p. 724, para 792).
(emphasis supplied)
The learned Judge said: (SCC p. 724, para 792)
D “After excluding them alone, would the class be a compact
class. In fact, such exclusion benefits the truly backward.”
(emphasis supplied)
A line has to be drawn, said the learned Judge, between the forward
in the backward and the rest of the backward but it is to be ensured
E
that what is given with one hand is not taken away by the other.
The basis of exclusion of the “creamy layer” must not be merely
economic, unless economic advancement is so high that it
necessarily means social advancement, such as where a member
becomes owner of a factory and is himself able to give employment
F to others. In such a case, his income is a measure of his social
status. In the case of agriculturists, the line is to be drawn with
reference to the agricultural landholding. While fixing income as
a measure, the limit is not to be such as to result in taking away
with one hand what is given with the other. The income limit must
be such as to mean and signify social advancement. There are
G
again some offices in various walks of life — the occupants of
which can be treated as socially advanced, without further
inquiry”, such as IAS and IPS officers or others in All India
services. In the case of these persons, their social status in society
rises quite high and the person is no longer socially disadvantaged.
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 683
[R. F. NARIMAN, J.]
Their children get full opportunity to realise their potential. They A
are in no way handicapped in the race of life. Their income is also
such that they are above want. It is but logical that children of
such persons are not given the benefits of reservation. If the
categories or sections above-mentioned are not excluded, the truly
disadvantaged members of the backward class to which they
B
belong will be deprived of the benefits of reservation. The Central
Government is, therefore, directed (para 793) to identify and notify
the “creamy layer” within four months and after such notification,
the “creamy layer” within the backward class shall “cease” to be
covered by the reservations under Article 16(4). Jeevan Reddy,
J. finally directed (see Question 10) that the exclusion of the C
creamy layer must be on the basis of social advancement and not
on the basis of economic interest alone. Income or the extent of
property-holding of a person is to be taken as a measure of social
advancement — and on that basis — the “creamy layer” within a
given caste, community or occupational group is to be excluded to
D
arrive at the true backward class. There is to be constituted a
body which can go into these questions as follows: (SCC p. 757,
para 847)
“We direct that such a body be constituted both at Central
level and at the level of the States within four months from
today. … There should be a periodic revision of these lists to E
exclude those who have ceased to be backward or for inclusion
of new classes, as the case may be.”
(emphasis supplied)
The creamy layer [see para 859, sub-para (3)(d)] can be, and F
must be excluded. Creamy layer has to be excluded and “economic
criterion” is to be adopted as an indicium or measure of social
advancement [para 860, sub-para (5)]. The socially advanced
persons must be excluded [para 861(b)]. That is how Jeevan
Reddy, J. summarised the position.
G
18. Sawant, J. too accepted (p. 553 of SCC) that “at least some
individuals and families in the backward classes, — however small
in number, — gain sufficient means to develop capacities to
compete with others in every field. That is an undeniable fact”.
(emphasis supplied) Social advancement is to be judged by the
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684 SUPREME COURT REPORTS [2018] 10 S.C.R.
A “capacity to compete” with forward castes, achieved by the
members or sections of the backward classes. Legally, therefore,
these persons or sections who reached that level are not entitled
any longer to be called as part of the backward class, whatever
their original birthmark. Taking out these “forwards” from the
“backwards” is “obligatory” as these persons have crossed the
B
Rubicon (pp. 553-54). On the crucial question as to what is meant
by “capacity to compete”, the learned Judge explained (para 522)
that if a person moves from Class IV service to Class III, that is
no indication that he has reached such a stage of social
advancement but if the person has successfully competed for
C “higher level posts” or at least “near those levels”, he has reached
such a state.
19. Thommen, J. (paras 287, 295, 296, 323) observed that if some
members in a backward class acquire the necessary financial
strength to raise themselves, the Constitution does not extend to
D them the protection of reservation. The creamy layer has to be
“weeded out” and excluded, if it has attained a “certain
predetermined economic level”.
20. Kuldip Singh, J. (para 385) referred to the “affluent” section
of the backward class. Comparatively “such (sic rich) persons in
E the backward class — though they may not have acquired a higher
level of education — are able to move in the society without being
discriminated socially”. These persons practise discrimination
against others in that group who are comparatively less rich. It
must be ensured that these persons do not “chew up” the benefits
meant for the true backward class. “Economic ceiling” is to be
F fixed to cut off these persons from the benefits of reservation. In
the result, the “means-test” is imperative to skim off the “affluent”
sections of backward classes.
21. Sahai, J. (para 629) observed that the individuals among the
collectivity or the group who may have achieved a “social status”
G or “economic affluence”, are disentitled to claim reservation.
Candidates who apply for selection must be made to disclose the
annual income of their parents which if it is beyond a level, they
cannot be allowed to claim to be part of the backward class.
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 685
[R. F. NARIMAN, J.]
What is to be the limit must be decided by the State. Income A
apart, provision is to be made that wards of those backward classes
of persons who have achieved a particular status in society, be it
political or economic or if their parents are in higher services
then such individuals must be precluded from availing the benefits
of reservation. Exclusion of “creamy layer” achieves a social
B
purpose. Any legislative or executive action to remove such
persons individually or collectively cannot be constitutionally
invalid.”
In paragraph 27 of the said judgment, the three-Judge Bench of
this Court clearly held that the creamy layer principle sounds in Articles
14 and 16(1) as follows: C
“(i) Equals and unequals, twin aspects
27. As the “creamy layer” in the backward class is to be treated
“on a par” with the forward classes and is not entitled to benefits
of reservation, it is obvious that if the “creamy layer” is not D
excluded, there will be discrimination and violation of Articles 14
and 16(1) inasmuch as equals (forwards and creamy layer of
backward classes) cannot be treated unequally. Again, non-
exclusion of creamy layer will also be violative of Articles 14,
16(1) and 16(4) of the Constitution of India since unequals (the
creamy layer) cannot be treated as equals, that is to say, equal E
to the rest of the backward class. These twin aspects of
discrimination are specifically elucidated in the judgment of Sawant,
J. where the learned Judge stated as follows: (SCC p. 553, para
520)
“[T]o continue to confer upon such advanced sections … F
special benefits, would amount to treating equals unequally….
Secondly, to rank them with the rest of the backward classes
would … amount to treating the unequals equally.”
(emphasis supplied)
G
Thus, any executive or legislative action refusing to exclude the
creamy layer from the benefits of reservation will be violative of
Articles 14 and 16(1) and also of Article 16(4). We shall examine
the validity of Sections 3, 4 and 6 in the light of the above principle.
…”
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686 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 9. The next judgment with which we are directly concerned is the
judgment in Chinnaiah (supra). In this case, the validity of the Andhra
Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000,
was challenged, and dismissed by a five-Judge Bench of the Andhra
Pradesh High Court by a majority of 4:1. The 15% reservation that was
made in favour of the Scheduled Castes was further apportioned among
B
four groups in varying percentages – Group A to the extent of 1%;
Group B to the extent of 7%; Group C to the extent of 6%; and Group D
to the extent of 1%. In the lead judgment on behalf of the Constitution
Bench, Hegde, J. set out three questions for consideration as follows:
“12. From the pleadings on record and arguments addressed before
C us three questions arise for our consideration:
(1) Whether the impugned Act is violative of Article 341(2) of
the Constitution of India?
(2) Whether the impugned enactment is constitutionally invalid
D for lack of legislative competence?
(3) Whether the impugned enactment creates subclassification
or micro-classification of Scheduled Castes so as to violate
Article 14 of the Constitution of India?”
Article 341 was then referred to, in which the Presidential List of
E Scheduled Castes is to be notified. Any inclusion or exclusion from the
said list thereafter can only be done by Parliament under Article 341(2)
(See paragraph 13). The Court then rejected the splitting up of Scheduled
Castes on the basis of backwardness into groups, and distinguished Indra
Sawhney (1) (supra) (See paragraphs 19 to 21). It was then held:
F “26. Thus from the scheme of the Constitution, Article 341 and
above opinions of this Court in the case of N.M. Thomas [(1976)
2 SCC 310 : 1976 SCC (L&S) 227] it is clear that the castes once
included in the Presidential List, form a class by themselves. If
they are one class under the Constitution, any division of these
classes of persons based on any consideration would amount to
G
tinkering with the Presidential List.”
Indra Sawhney (1) (supra) was then referred to and distinguished
as follows:
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 687
[R. F. NARIMAN, J.]
“38. On behalf of the respondents, it was pointed out that in Indra A
Sawhney case [1992 Supp (3) SCC 217] the Court had permitted
subclassification of Other Backward Communities, as backward
and more backward based on their comparative underdevelopment,
therefore, the similar classification amongst the class enumerated
in the Presidential List of Scheduled Castes is permissible in law.
B
We do not think the principles laid down in Indra Sawhney case
(supra) for subclassification of Other Backward Classes can be
applied as a precedent law for subclassification or subgrouping
Scheduled Castes in the Presidential List because that very
judgment itself has specifically held that subdivision of Other
Backward Classes is not applicable to Scheduled Castes and C
Scheduled Tribes. This we think is for the obvious reason i.e. the
Constitution itself has kept the Scheduled Castes and Scheduled
Tribes List out of interference by the State Governments.
39. Legal constitutional policy adumbrated in a statute must answer
the test of Article 14 of the Constitution. Classification whether D
permissible or not must be judged on the touchstone of the object
sought to be achieved. If the object of reservation is to take
affirmative action in favour of a class which is socially, educationally
and economically backward, the State’s jurisdiction while exercising
its executive or legislative function is to decide as to what extent
reservation should be made for them either in public service or E
for obtaining admission in educational institutions. In our opinion,
such a class cannot be subdivided so as to give more preference
to a minuscule proportion of the Scheduled Castes in preference
to other members of the same class.
40. Furthermore, the emphasis on efficient administration placed F
by Article 335 of the Constitution must also be considered when
the claims of Scheduled Castes and Scheduled Tribes to
employment in the services of the Union are to be considered.”
Finally, the Court held:
G
“43. The very fact that the members of the Scheduled Castes are
most backward amongst the backward classes and the impugned
legislation having already proceeded on the basis that they are not
adequately represented both in terms of clause (4) of Article 15
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688 SUPREME COURT REPORTS [2018] 10 S.C.R.
A and clause (4) of Article 16 of the Constitution, a further
classification by way of micro-classification is not permissible.
Such classification of the members of different classes of people
based on their respective castes would also be violative of the
doctrine of reasonableness. Article 341 provides that exclusion
even of a part or a group of castes from the Presidential List can
B
be done only by Parliament. The logical corollary thereof would
be that the State Legislatures are forbidden from doing that. A
uniform yardstick must be adopted for giving benefits to the
members of the Scheduled Castes for the purpose of the
Constitution. The impugned legislation being contrary to the above
C constitutional scheme cannot, therefore, be sustained.
44. For the reasons stated above, we are of the considered opinion
that the impugned legislation apart from being beyond the legislative
competence of the State is also violative of Article 14 of the
Constitution and hence is liable to be declared as ultra vires the
D Constitution.”
In a separate concurring judgment, Sinha, J., after referring to
Indra Sawhney (1) (supra) and the creamy layer concept in paragraph
95, went on to state:
“96. But we must state that whenever such a situation arises in
E respect of Scheduled Caste, it will be Parliament alone to take the
necessary legislative steps in terms of clause (2) of Article 341 of
the Constitution. The States concededly do not have the legislative
competence therefor.”
It was then concluded:
F
“111. The Constitution provides for declaration of certain castes
and tribes as Scheduled Castes and Scheduled Tribes in terms of
Articles 341 and 342 of the Constitution. The object of the said
provisions is to provide for grant of protection to the backward
class of citizens who are specified in the Scheduled Castes Order
G and Scheduled Tribes Order having regard to the economic and
educational backwardness wherefrom they suffer. The President
of India alone in terms of Article 341(1) of the Constitution is
authorised to issue an appropriate notification therefor. The
Constitution (Scheduled Castes) Order, 1950 made in terms of
Article 341(1) is exhaustive.”
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 689
[R. F. NARIMAN, J.]
Thus, the Court struck down the Andhra Pradesh Scheduled A
Castes (Rationalisation of Reservations) Act, 2000.
10. The judgment in Chinnaiah (supra) has been referred by a
three-Judge Bench to a larger Bench by an order dated 20.08.2014.
This is because, according to the three-Judge Bench, Chinnaiah (supra)
is contrary to Article 338 of the Constitution of India and Indra Sawhney B
(1) (supra). Since the correctness of Chinnaiah (supra) does not arise
before us, we need say no more about this reference which will be
decided on its own merits.
11. Close on the heels of this judgment is the judgment in Nagaraj
(supra). In this case, the addition of Articles 16(4-A) and 16(4-B) were C
under challenge on the ground that they violated the basic structure of
the Constitution. After referring to the arguments of counsel for both
sides, the Court held that equality is the essence of democracy and
accordingly, part of the basic structure of the Constitution (See paragraph
33). The working test in the matter of application of this doctrine was
then applied, referring to Chandrachud, J.’s judgment in Indira Nehru D
Gandhi v. Raj Narain & Anr., 1975 Supp SCC 1 (See paragraphs 37
and 38). After dealing with reservation and its extent, the Court then
went into the nitty-gritty of the constitutional amendments and held as
follows:
“Whether the impugned constitutional amendments violate the E
principle of basic structure?
101. 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
Parliament are obliterated by the impugned amendments so as to F
violate the basic structure of the Constitution.
102. 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 G
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 does
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690 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B
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
C there must exist two circumstances, namely, “backwardness” and
“inadequacy of representation”. As stated above, equity, justice
and efficiency are variable factors. These factors are context-
specific. There is no fixed yardstick to identify and measure these
three factors, it will depend on the facts and circumstances of
each case. These are the limitations on the mode of the exercise
D
of power by the State. None of these limitations have been removed
by the impugned amendments. If the State concerned 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
E structure of Articles 14, 15 and 16 (equity code). The parameters
mentioned in Article 16(4) are retained. Clause (4-A) is derived
from clause (4) of Article 16. Clause (4-A) is confined to SCs
and STs alone. Therefore, the present case does not change the
identity of the Constitution. The word “amendment” connotes
change. The question is—whether the impugned amendments
F
discard the original Constitution. It was vehemently urged on behalf
of the petitioners that the Statement of Objects and Reasons
indicates that the impugned amendments have been promulgated
by Parliament to overrule the decisions of this Court. We do not
find any merit in this argument. Under Article 141 of the
G Constitution the pronouncement of this Court is the law of the
land. The judgments of this Court in Virpal Singh [(1995) 6 SCC
684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813], Ajit Singh (I)
[(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 :
AIR 1996 SC 1189], Ajit Singh (II) [(1999) 7 SCC 209 : 1999
SCC (L&S) 1239] and Indra Sawhney [1992 Supp (3) SCC 217
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 691
[R. F. NARIMAN, J.]
: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] were judgments A
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 Parliament while
B
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 C
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
D
has two facets — “formal equality” and “proportional equality”.
Proportional equality is equality “in fact” whereas formal equality
is equality “in law”. Formal equality exists in the rule of law. In
the case of proportional equality the State is expected to take
affirmative steps in favour of disadvantaged sections of the society
within the framework of liberal democracy. Egalitarian equality is E
proportional equality.”
xxx xxx xxx
“104. 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) F
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 the facts of each case. In our view, the field of exercise of the G
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(4-A) and Article 16(4-B) fall in the pattern
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692 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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(4-A) and 16(4-B) are classifications
within the principle of equality under Article 16(4).”
The Court then concluded as follows:
B “121. The impugned constitutional amendments by which Articles
16(4-A) and 16(4-B) 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
C 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 OBCs
D on one hand and SCs and STs on the other hand as held in Indra
Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385], the concept of post-based roster with inbuilt
concept of replacement as held in R.K. Sabharwal [(1995) 2
SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481].
E 122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency
are all constitutional requirements without which the structure of
equality of opportunity in Article 16 would collapse.
F 123. However, in this case, as stated above, the main issue
concerns the “extent of reservation”. In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making
G provision for reservation. As stated above, the impugned provision
is an enabling provision. The State is not bound to make reservation
for SCs/STs in matters 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
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 693
[R. F. NARIMAN, J.]
employment in addition to compliance with Article 335. It is made A
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.
124. Subject to the above, we uphold the constitutional validity of B
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.”
12. We now come to the Constitution Bench judgment in Ashoka C
Kumar Thakur v. Union of India, (2008) 6 SCC 1. In this case, Article
15(5) inserted by the Constitution (Ninety-third Amendment) Act, 2005,
was under challenge. Balakrishnan, C.J., after referring to various
judgments of this Court dealing with reservation, specifically held that
the “creamy layer” principle is inapplicable to Scheduled Castes and
Scheduled Tribes as it is merely a principle of identification of the D
backward class and not applied as a principle of equality (See paragraphs
177 to 186). Pasayat, J., speaking for himself and Thakker, J., stated
that the focus in the present case was not on Scheduled Castes and
Scheduled Tribes but on Other Backward Classes (See paragraph 293).
Bhandari, J., in paragraphs 395 and 633 stated as follows: E
“395. In Sawhney (1) [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] the entire discussion was confined
only to Other Backward Classes. Similarly, in the instant case,
the entire discussion was confined only to Other Backward
Classes. Therefore, I express no opinion with regard to the F
applicability of exclusion of creamy layer to the Scheduled Castes
and Scheduled Tribes.”
xxx xxx xxx
“633. In Indra Sawhney (1) [1992 Supp (3) SCC 217 : 1992
SCC (L&S) Supp 1 : (1992) 22 ATC 385], creamy layer exclusion G
was only in regard to OBC. Reddy, J. speaking for the majority at
SCC p. 725, para 792, stated that “[t]his discussion is confined to
Other Backward Classes only and has no relevance in the case
of Scheduled Tribes and Scheduled Castes”. Similarly, in the instant
case, the entire discussion was confined only to Other Backward
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694 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Classes. Therefore, I express no opinion with regard to the
applicability of exclusion of creamy layer to the Scheduled Castes
and Scheduled Tribes……”
Raveendran, J., in a separate judgment, while referring to Nagaraj
(supra), held as follows:
B “665. The need for exclusion of creamy layer is reiterated in the
subsequent decisions of this Court in Ashoka Kumar Thakur v.
State of Bihar [(1995) 5 SCC 403 : 1995 SCC (L&S) 1248 :
(1995) 31 ATC 159], Indra Sawhney v. Union of India [(1996)
6 SCC 506 : 1996 SCC (L&S) 1477] and M. Nagaraj v. Union
C of India [(2006) 8 SCC 212]. When Indra Sawhney [1992 Supp
(3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] has
held that creamy layer should be excluded for purposes of Article
16(4), dealing with “backward class” which is much wider than
“socially and educationally backward class” occurring in Articles
15(4) and (5), it goes without saying that without the removal of
D creamy layer there cannot be a socially and educationally backward
class. Therefore, when a caste is identified as a socially and
educationally backward caste, it becomes a “socially and
educationally backward class” only when it sheds its creamy
layer.”
E The Court ultimately upheld the Constitution (Ninety-third
Amendment) Act, 2005, subject to the creamy layer test to be applied to
Other Backward Classes. Bhandari, J. held that the amendment was
not constitutionally valid so far as “private unaided” educational institutions
were concerned.
F 13. At this stage, it is necessary to deal with the argument that
Nagaraj (supra) needs to be revisited as it conflicts with Chinnaiah
(supra). It will be noticed that though Nagaraj (supra) is a later judgment,
it does not refer to Chinnaiah (supra) at all. Much was made of this by
some of the learned counsel appearing on behalf of the Appellants. It is
G important to notice that the majority judgment of Hegde, J. does not
refer to the creamy layer principle at all. Chinnaiah’s judgment (supra)
in essence held that the Andhra Pradesh Scheduled Castes
(Rationalisation of Reservations) Act, 2000, which it considered, could
not further sub-divide Scheduled Castes into four categories, as that
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 695
[R. F. NARIMAN, J.]
would be violative of Article 341(2) of the Constitution of India for the A
simple reason that it is Parliament alone that can make any change in
the Presidential List and not the State Legislatures. That this is the true
ratio of the judgment is clear from a reading of the paragraphs that
have been set out hereinabove. This being the case, as Chinnaiah (supra)
does not in any manner deal with any of the aspects on which the
B
constitutional amendments in Nagaraj’s case (supra) were upheld, we
are of the view that it was not necessary for Nagaraj (supra) to refer to
Chinnaiah (supra) at all. However, it was further contended that apart
from this ratio, Chinnaiah (supra) also decided that the sub-classification
of Scheduled Castes, created by the Andhra Pradesh Scheduled Castes
(Rationalisation of Reservations) Act, 2000, also violated Article 14 of C
the Constitution of India. This was stated by Chinnaiah (supra) to be
violative of Article 14 as the same would amount to tinkering with the
List, which, as was held, could be done only by Parliament and not by
State Legislatures. In our opinion, the true ratio of the judgment flows
from a construction of Article 341. It is true that the Andhra Pradesh
D
Act in question was also found to be violative of Article 14. We may
only state that Chinnaiah (supra) dealt with a completely different
problem, apart from dealing with a State statute and not a constitutional
amendment, as was dealt with in Nagaraj (supra).
14. This brings us to whether the judgment in Nagaraj (supra)
needs to be revisited on the other grounds that have been argued before E
us. Insofar as the State having to show quantifiable data as far as
backwardness of the class is concerned, we are afraid that we must
reject Shri Shanti Bhushan’s argument. The reference to “class” is to
the Scheduled Castes and the Scheduled Tribes, and their inadequacy of
representation in public employment. It is clear, therefore, that Nagaraj F
(supra) has, in unmistakable terms, stated that the State has to collect
quantifiable data showing backwardness of the Scheduled Castes and
the Scheduled Tribes. We are afraid that this portion of the judgment is
directly contrary to the nine-Judge Bench in Indra Sawhney (1) (supra).
Jeevan Reddy, J., speaking for himself and three other learned Judges,
had clearly held, “[t]he test or requirement of social and educational G
backwardness cannot be applied to Scheduled Castes and Scheduled
Tribes, who indubitably fall within the expression “backward class of
citizens”.” (See paragraphs 796 to 797). Equally, Dr. Justice Thommen,
in his conclusion at paragraph 323(4), had held as follows:
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696 SUPREME COURT REPORTS [2018] 10 S.C.R.
A “323. Summary
xxx xxx xxx
(4) Only such classes of citizens who are socially and educationally
backward are qualified to be identified as backward classes. To
be accepted as backward classes for the purpose of reservation
B under Article 15 or Article 16, their backwardness must have been
either recognised by means of a notification by the President under
Article 341 or Article 342 declaring them to be Scheduled Castes
or Scheduled Tribes, or, on an objective consideration, identified
by the State to be socially and educationally so backward by reason
C of identified prior discrimination and its continuing ill effects as to
be comparable to the Scheduled Castes or the Scheduled Tribes.
In the case of the Scheduled Castes or the Scheduled Tribes,
these conditions are, in view of the notifications, presumed to be
satisfied……”
D 15. In fact, Chinnaiah (supra) has referred to the Scheduled
Castes as being the most backward among the backward classes (See
paragraph 43). This is for the reason that the Presidential List contains
only those castes or groups or parts thereof, which have been regarded
as untouchables. Similarly, the Presidential List of Scheduled Tribes only
refers to those tribes in remote backward areas who are socially
E extremely backward. Thus, it is clear that when Nagaraj (supra) requires
the States to collect quantifiable data on backwardness, insofar as
Scheduled Castes and Scheduled Tribes are concerned, this would clearly
be contrary to the Indra Sawhney (1) (supra) and would have to be
declared to be bad on this ground.
F However, when it comes to the creamy layer principle, it is
important to note that this principle sounds in Articles 14 and 16(1), as
unequals within the same class are being treated equally with other
members of that class. The genesis of this principle is to be found in
State of Kerala & Anr. v. N.M. Thomas and Ors., (1976) 2 SCC
G 310. This case was concerned with a test-relaxation rule in promotions
from lower division clerks to upper division clerks. By a 5:2 majority
judgment, the said rule was upheld as a rule that could be justified on the
basis that it became necessary as a means of generally giving a leg-up
to backward classes. In paragraph 124, Krishna Iyer, J. opined:
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JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 697
[R. F. NARIMAN, J.]
“124. A word of sociological caution. In the light of experience, A
here and elsewhere, the danger of “reservation”, it seems to me,
is threefold. Its benefits, by and large, are snatched away by the
top creamy layer of the “backward” caste or class, thus keeping
the weakest among the weak always weak and leaving the
fortunate layers to consume the whole cake. Secondly, this claim
B
is overplayed extravagantly in democracy by large and vocal groups
whose burden of backwardness has been substantially lightened
by the march of time and measures of better education and more
opportunities of employment, but wish to wear the “weaker
section” label as a means to score over their near-equals formally
categorised as the upper brackets. Lastly, a lasting solution to the C
problem comes only from improvement of social environment,
added educational facilities and cross-fertilisation of castes by
inter-caste and inter-class marriages sponsored as a massive State
programme, and this solution is calculatedly hidden from view by
the higher “backward” groups with a vested interest in the plums
D
of backwardism. But social science research, not judicial
impressionism, will alone tell the whole truth and a constant process
of objective re-evaluation of progress registered by the “underdog”
categories is essential lest a once deserving “reservation” should
be degraded into “reverse discrimination”. Innovations in
administrative strategy to help the really untouched, most E
backward classes also emerge from such socio-legal studies and
audit exercises, if dispassionately made. In fact, research
conducted by the A.N. Sinha Institute of Social Studies, Patna,
has revealed a dual society among harijans, a tiny elite gobbling
up the benefits and the darker layers sleeping distances away
F
from the special concessions. For them, Articles 46 and 335 remain
a “noble romance” [As Huxley called it in “Administrative
Nihilism” (Methods and Results, Vol. 4 of Collected Essays).],
the bonanza going to the “higher” harijans. I mention this in the
present case because lower division clerks are likely to be drawn
from the lowest levels of harijan humanity and promotion prospects G
being accelerated by withdrawing, for a time, “test” qualifications
for this category may perhaps delve deeper. An equalitarian
breakthrough in a hierarchical structure has to use many weapons
and Rule 13-AA perhaps is one.”
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698 SUPREME COURT REPORTS [2018] 10 S.C.R.
A The whole object of reservation is to see that backward classes
of citizens move forward so that they may march hand in hand with
other citizens of India on an equal basis. This will not be possible if only
the creamy layer within that class bag all the coveted jobs in the public
sector and perpetuate themselves, leaving the rest of the class as
backward as they always were. This being the case, it is clear that
B
when a Court applies the creamy layer principle to Scheduled Castes
and Scheduled Tribes, it does not in any manner tinker with the Presidential
List under Articles 341 or 342 of the Constitution of India. The caste or
group or sub-group named in the said List continues exactly as before. It
is only those persons within that group or sub-group, who have come out
C of untouchability or backwardness by virtue of belonging to the creamy
layer, who are excluded from the benefit of reservation. Even these
persons who are contained within the group or sub-group in the
Presidential Lists continue to be within those Lists. It is only when it
comes to the application of the reservation principle under Articles 14
and 16 that the creamy layer within that sub-group is not given the benefit
D
of such reservation.
16. We do not think it necessary to go into whether Parliament
may or may not exclude the creamy layer from the Presidential Lists
contained under Articles 341 and 342. Even on the assumption that
Articles 341 and 342 empower Parliament to exclude the creamy layer
E from the groups or sub-groups contained within these Lists, it is clear
that Constitutional Courts, applying Articles 14 and 16 of the Constitution
to exclude the creamy layer cannot be said to be thwarted in this exercise
by the fact that persons stated to be within a particular group or sub-
group in the Presidential List may be kept out by Parliament on application
F of the creamy layer principle. One of the most important principles that
has been frequently applied in constitutional law is the doctrine of
harmonious interpretation. When Articles 14 and 16 are harmoniously
interpreted along with other Articles 341 and 342, it is clear that
Parliament will have complete freedom to include or exclude persons
from the Presidential Lists based on relevant factors. Similarly,
G Constitutional Courts, when applying the principle of reservation, will be
well within their jurisdiction to exclude the creamy layer from such groups
or sub-groups when applying the principles of equality under Articles 14
and 16 of the Constitution of India. We do not agree with Balakrishnan,
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 699
[R. F. NARIMAN, J.]
C.J.’s statement in Ashoka Kumar Thakur (supra) that the creamy A
layer principle is merely a principle of identification and not a principle of
equality.
17. Therefore, when Nagaraj (supra) applied the creamy layer
test to Scheduled Castes and Scheduled Tribes in exercise of application
of the basic structure test to uphold the constitutional amendments leading B
to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with
Parliament’s power under Article 341 or Article 342. We are, therefore,
clearly of the opinion that this part of the judgment does not need to be
revisited, and consequently, there is no need to refer Nagaraj (supra) to
a seven-Judge Bench. We may also add at this juncture that Nagaraj
(supra) is a unanimous judgment of five learned Judges of this Court C
which has held sway since the year 2006. This judgment has been
repeatedly followed and applied by a number of judgments of this Court,
namely:
a. Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC 454
(two-Judges Bench) (See paragraphs 17 and 18). D
b. Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors.,
(2011) 1 SCC 467 (two-Judges Bench) (See paragraphs 10,
50, and 67).
c. U.P. Power Corporation v. Rajesh Kumar & Ors., (2012) E
7 SCC 1 (two-Judges Bench) (See paragraphs 61, 81(ix), and
86).
d. S. Panneer Selvam & Ors. v. State of Tamil Nadu & Ors.,
(2015) 10 SCC 292 (two-Judges Bench) (See paragraphs 18,
19, and 36).
F
e. Chairman & Managing Director, Central Bank of India
& Ors. v. Central Bank of India SC/ST Employees
Welfare Association & Ors., (2015) 12 SCC 308 (two-Judges
Bench) (See paragraphs 9 and 26).
f. Suresh Chand Gautam v. State of U.P. & Ors., (2016) 11 G
SCC 113 (two-Judges Bench) (See paragraphs 2 and 45).
g. B.K. Pavitra & Ors. v. Union of India & Ors., (2017) 4
SCC 620 (two-Judges Bench) (See paragraphs 17 to 22).
H
700 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Further, Nagaraj (supra) has been approved by larger Benches
of this Court in:
a. General Categories Welfare Federation v. Union of India,
(2012) 7 SCC 40 (three-Judge Bench) (See paragraphs 2
and 3).
B b. Rohtas Bhankar v. Union of India, (2014) 8 SCC 872
(five-Judge Bench) (See paragraphs 6 and 7).
In fact, the tests laid down in Nagaraj (supra) for judging whether
a constitutional amendment violates basic structure have been expressly
approved by a nine-Judge Bench of this Court in I.R. Coelho (Dead)
C by LRs. v. State of Tamil Nadu and Ors., (2007) 2 SCC 1 (See
paragraphs 61, 105, and 142). The entirety of the decision, far from
being clearly erroneous, correctly applies the basic structure doctrine to
uphold constitutional amendments on certain conditions which are based
upon the equality principle as being part of basic structure. Thus, we
D may make it clear that quantifiable data shall be collected by the State,
on the parameters as stipulated in Nagaraj (supra) on the inadequacy of
representation, which can be tested by the Courts. We may further add
that the data would be relatable to the concerned cadre.
18. Dr. Dhavan referred to the judgment in U.P. Power
E Corporation Ltd. (supra), and placed before us the Constitution (One
Hundred Seventeeth Amendment) Bill, 2012. This Bill was passed by
the Rajya Sabha on 17.12.2012 but failed to get sufficient number of
votes in the Lok Sabha and, therefore, could not become an Act. This
Bill was tabled close upon the judgment in U.P. Power Corporation
Ltd. (supra), and would have substituted Article 16(4-A) as follows:
F
“(4A) Notwithstanding anything contained elsewhere in the
Constitution, the Scheduled Castes and the Scheduled Tribes
notified under article 341 and article 342, respectively, shall be
deemed to be backward and nothing in this article shall prevent
the State from making any provision for reservation in matters of
G promotions, 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 to the extent of the percentage
of reservation provided to the Scheduled Castes and the Scheduled
Tribes in the services of the State.”
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 701
[R. F. NARIMAN, J.]
The Statement of Objects and Reasons for the said Bill read as A
follows:
“The validity of the constitutional amendments was challenged
before the Supreme Court. The Supreme Court while deliberating
on the issue of validity of Constitutional amendments in the case
of M. Nagaraj v. UOI & Ors., observed that the concerned State B
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 in promotion.
Relying on the judgment of the Supreme Court in M. Nagaraj C
case, the High Court of Rajasthan and the High Court of Allahabad
have struck down the provisions for reservation in promotion in
the services of the State of Rajasthan and the State of Uttar
Pradesh, respectively. Subsequently, the Supreme Court has upheld
the decisions of these High Courts striking down provisions for
reservation in respective States. D
It has been observed that there is difficulty in collection of
quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment.
Moreover, there is uncertainty on the methodology of this
exercise.” E
It will be seen that this Bill contains two things that are different
from Article 16(4-A) as already enacted. First and foremost, it clarifies
that the Scheduled Castes and the Scheduled Tribes that are notified
under Articles 341 and 342 shall be deemed to be backward, which
makes it clear that no quantifiable data is necessary to determine F
backwardness. Secondly, instead of leaving it to the States to determine
on a case to case basis whether the Scheduled Castes and the Scheduled
Tribes are adequately represented in any class or classes of posts in the
services under the State, the substituted provision does not leave this to
the discretion of the State, but specifies that it shall be to the extent of G
the percentage of reservation provided to Scheduled Castes and
Scheduled Tribes in the services of the State. This amendment was
necessitated because a Division Bench of this Court in U.P. Power
Corporation Ltd. (supra) had struck down Section 3(7) of the Uttar
Pradesh Public Services (Reservation for Scheduled Castes, Scheduled
H
702 SUPREME COURT REPORTS [2018] 10 S.C.R.
A Tribes and Other Backward Classes) Act, 1994 and Rule 8A of the U.P.
Government Servants Seniority Rules, 1991, which read as under:
“3. Reservation in favour of Scheduled Castes, Scheduled
Tribes and Other Backward Classes.—
(1)-(6) xxx xxx xxx
B
(7) If, on the date of commencement of this Act, reservation
was in force under government orders for appointment to
posts to be filled by promotion, such government orders shall
continue to be applicable till they are modified or revoked.”
C xxx xxx xxx
“8-A. Entitlement of consequential seniority to a person
belonging to Scheduled Castes or Scheduled Tribes.—
Notwithstanding anything contained in Rules 6, 7 or 8 of these
Rules, a person belonging to the Scheduled Castes or Scheduled
D Tribes shall, on his promotion by virtue of rule of reservation/
roster, be entitled to consequential seniority also.”
This Court considered Nagaraj (supra) in detail and in paragraph
81, culled out various principles which Nagaraj (supra) had laid down.
We are concerned here with principles (ix) and (x) in particular, which
read as under:
E
“(ix) The concepts of efficiency, backwardness and inadequacy
of representation are required to be identified and measured. That
exercise depends on the availability of data. That exercise
depends on numerous factors. It is for this reason that the
enabling provisions are required to be made because each
F
competing claim seeks to achieve certain goals. How best one
should optimise these conflicting claims can only be done by the
administration in the context of local prevailing conditions in
public employment.
(x) Article 16(4), therefore, creates a field which enables a State
G 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 the matter of employment.”
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 703
[R. F. NARIMAN, J.]
19. We have already seen that, even without the help of the first A
part of Article 16(4-A) of the 2012 Amendment Bill, the providing of
quantifiable data on backwardness when it comes to Scheduled Castes
and Scheduled Tribes, has already been held by us to be contrary to the
majority in Indra Sawhney (1) (supra). So far as the second part of the
substituted Article 16(4-A) contained in the Bill is concerned, we may
B
notice that the proportionality to the population of Scheduled Castes and
Scheduled Tribes is not something that occurs in Article 16(4-A) as
enacted, which must be contrasted with Article 330. We may only add
that Article 46, which is a provision occurring in the Directive Principles
of State Policy, has always made the distinction between the Scheduled
Castes and the Scheduled Tribes and other weaker sections of the people. C
Article 46 reads as follows:
“46. Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker
sections.—The State shall promote with special care the
educational and economic interests of the weaker sections of the D
people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation.”
This being the case, it is easy to see the pattern of Article 46
being followed in Article 16(4) and Article 16(4-A). Whereas “backward E
classes” in Article 16(4) is equivalent to the “weaker sections of the
people” in Article 46, and is the overall genus, the species of Scheduled
Castes and Scheduled Tribes is separately mentioned in the latter part of
Article 46 and Article 16(4-A). This is for the reason, as has been pointed
out by us earlier, that the Scheduled Castes and the Scheduled Tribes
are the most backward or the weakest of the weaker sections of society, F
and are, therefore, presumed to be backward. Shri Dwivedi’s argument
that as a member of a Scheduled Caste or a Scheduled Tribe reaches
the higher posts, he/she no longer has the taint of either untouchability or
backwardness, as the case may be, and that therefore, the State can
judge the absence of backwardness as the posts go higher, is an argument G
that goes to the validity of Article 16(4-A). If we were to accept this
argument, logically, we would have to strike down Article 16(4-A), as
the necessity for continuing reservation for a Scheduled Caste and/or
Scheduled Tribe member in the higher posts would then disappear. Since
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704 SUPREME COURT REPORTS [2018] 10 S.C.R.
A the object of Article 16(4-A) and 16(4-B) is to do away with the nine-
Judge Bench in Indra Sawhney (1) (supra) when it came to reservation
in promotions in favour of the Scheduled Castes and Scheduled Tribes,
that object must be given effect to, and has been given effect by the
judgment in Nagaraj (supra). This being the case, we cannot countenance
an argument which would indirectly revisit the basis or foundation of the
B
constitutional amendments themselves, in order that one small part of
Nagaraj (supra) be upheld, namely, that there be quantifiable data for
judging backwardness of the Scheduled Castes and the Scheduled Tribes
in promotional posts. We may hasten to add that Shri Dwivedi’s argument
cannot be confused with the concept of “creamy layer” which, as has
C been pointed out by us hereinabove, applies to persons within the
Scheduled Castes or the Scheduled Tribes who no longer require
reservation, as opposed to posts beyond the entry stage, which may be
occupied by members of the Scheduled Castes or the Scheduled Tribes.
20. The learned Attorney General also requested us to lay down
D that the proportion of Scheduled Castes and Scheduled Tribes to the
population of India should be taken to be the test for determining whether
they are adequately represented in promotional posts for the purpose of
Article 16(4-A). He complained that Nagaraj (supra) ought to have
stated this, but has said nothing on this aspect. According to us, Nagaraj
(supra) has wisely left the test for determining adequacy of representation
E in promotional posts to the States for the simple reason that as the post
gets higher, it may be necessary, even if a proportionality test to the
population as a whole is taken into account, to reduce the number of
Scheduled Castes and Scheduled Tribes in promotional posts, as one
goes upwards. This is for the simple reason that efficiency of
F administration has to be looked at every time promotions are made. As
has been pointed out by B.P. Jeevan Reddy, J.’s judgment in Indra
Sawhney (1) (supra), there may be certain posts right at the top, where
reservation is impermissible altogether. For this reason, we make it clear
that Article 16(4-A) has been couched in language which would leave it
to the States to determine adequate representation depending upon the
G promotional post that is in question. For this purpose, the contrast of
Article 16(4-A) and 16(4-B) with Article 330 of the Constitution is
important. Article 330 reads as follows:
H
JARNAIL SINGH & OTHERS v. LACHHMI NARAIN GUPTA 705
[R. F. NARIMAN, J.]
“330. Reservation of seats for Scheduled Castes and A
Scheduled Tribes in the House of the People.—(1) Seats
shall be reserved in the House of the People for—
(a) the Scheduled Castes;
(b) the Scheduled Tribes except the Scheduled Tribes in the
autonomous districts of Assam; and] B
(c) the Scheduled Tribes in the autonomous districts of Assam.
(2) The number of seats reserved in any State or Union territory
for the Scheduled Castes or the Scheduled Tribes under clause
(1) shall bear, as nearly as may be, the same proportion to the C
total number of seats allotted to that State or Union territory in the
House of the People as the population of the Scheduled Castes in
the State or Union territory or of the Scheduled Tribes in the State
or Union territory or part of the State or Union territory, as the
case may be, in respect of which seats are so reserved, bears to
the total population of the State or Union territory. D
(3) Notwithstanding anything contained in clause (2), the number
of seats reserved in the House of the People for the Scheduled
Tribes in the autonomous districts of Assam shall bear to the total
number of seats allotted to that State a proportion not less than
the population of the Scheduled Tribes in the said autonomous E
districts bears to the total population of the State.
Explanation.—In this article and in Article 332, the expression
“population” means the population as ascertained at the last
preceding census of which the relevant figures have been
published: F
Provided that the reference in this Explanation to the last preceding
census of which the relevant figures have been published shall,
until the relevant figures for the first census taken after the year
2026 have been published, be construed as a reference to the
2001 census.” G
It can be seen that when seats are to be reserved in the House of
the People for the Scheduled Castes and Scheduled Tribes, the test of
proportionality to the population is mandated by the Constitution. The
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706 SUPREME COURT REPORTS [2018] 10 S.C.R.
A difference in language between this provision and Article 16(4-A) is
important, and we decline the invitation of the learned Attorney General
to say any more in this behalf.
21. Thus, we conclude that the judgment in Nagaraj (supra) does
not need to be referred to a seven–Judge Bench. However, the conclusion
B in Nagaraj (supra) that the State has to collect quantifiable data showing
backwardness of the Scheduled Castes and the Scheduled Tribes, being
contrary to the nine-Judge Bench in Indra Sawhney (1) (supra) is held
to be invalid to this extent.
C Divya Pandey Referred issue answered.
D
E
F
G
H
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