M. NAGARAJ AND ORS.versusUNION OF INDIA AND ORS

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

                                 OCTOBER 19, 2006

B [Y.K. SABHARWAL, CJ., K.G. BALAKRISHNAN, S.H. KAPADIA, C.K.
               THAKKER AND P.K. BALASUBRAMANY AN, JJ.]


          Constitution of India, 1950; Articles 14, 16(/), (2), (3), (4), (4A) & (48),
C 47, 246, 335 and 368/Amendments Act 77th of 1995, 8/st of 2000 and 85th
    of 2001:
                                                                                         -
          Amendments in Constitution inserting Articles /6(4A) and 16(48)-
   Reservation in promotion-Extent of-Equality of opportunity in employment-
  Altering of basic structure-Held: Principles set out in the Constitution should
D be interpreted by adopting a purposive approach- Secularism, democracy,
  reasonableness. social justice are overarching principles providing linking
  factor for fundamental rights-Validity of amendments in the Constitution is
  judged by app(ving the principle of basic structure-Equality is the essence of
   democracy and thus a basic feature of the Constitutio~Fundamental rights
  could be abridged but not destroyed-Object and purpose of the particular
E feature and consequences of its denial on the integrity of the Constitution has
   to be determined/tested in order lo ascertain whether it forms part of the basic
  structure of the Constitutio~onjlicting claim of individual right under Article
   16(!) and preferential treatment given to a backward class have to be
   balanced-Application of concept of equality in public ef!lployment depend
F upon quantifiable data in each case-Since backward class seeks justice and
   general class seeks equity in public employment, reservation has to be used
   in a limited sense else it would perpetuate criticism-Exercise ofpower by the
   State may be arbitrary if it fails to identifY and measure backwardness and
   inadequacy keeping in view the efficiency of service in terms of Article 335 of
   the Constitution-Equality in terms of Article 16(2) is individual specific-
G However, reservation as provided under Articles 16(4), !6(4)(A) is enabling-
   State has to ensure that no class prospers at the cost of other class and no
   person suffers because of backwardness-Applying the necessary tests/
   principles, amendments in question do not alter the structure of Articles 14,
    15 and 16 of the Constitution-Equality is not violated by mere conferment of

H                                          336
                             M. NAGARAJ v. U.O.l.                           337
discretionary power but it is violated by arbitrary exercise of the power-          A
Enabling provisions are permissible in nature as they are enacted to balance
equality and positive discrimination-Since efficiency is a valuable factor, the
State has to decide about the overall efficiency of the system-If relaxation is
excessive/violates the substantive limits on the width of the power, such
reservation falls and liable to be set aside-Articles 16(4), 16(4A) and 16(48)      B
together form part of the same constitutional scheme and they have nexus with
Articles 17 and 46 of the Constitution-Articles 16(4A) and 16(48) are
classification within the principle of equality under Article 16(4) of the
Constitution-Provided the Constitutional requirements in terms of ceiling
limit of inadequacy of representation and overall administrative efficiency
have been taken care of by the State concerned and their existence shown in         C
each case-Hence the classification envisaged by Articles /6(4A) and 16(48)
upheld as lhe impugned amendments do not obliterate equality/alter the basic
structure of the Constitution-Desirability of reservation in terms of Reservation
policy could be decided by the State, it could not be inte1fered by Supreme
Court so long as parameters in terms of Article J6(4)(A) are maintained.
                                                                                    D
       Catch up rule-Scope (){-Held: Concept of catch-up rule and
consequential seniority are judicially evolved concepts to control the extent of
reservation-Since catch-up rule is not implicit in Clauses (/) to (4) of
Article 16, it cannot bind the amending power of the Parliament-State
Government has to ascertain the cadre strength as a unit in the operation of        E
the roster in order to ascertain adequacy of representation of a class/group
in service-However, the upper ceiling limit of 50% should not be exceeded-
Article 16(4)(A) gives freedom to the State to provide for reservation in the
matter ofpromotion for Scheduled Castes and Scheduled Tribes-In the absence
of compelling reasons of backwardness and inadequacy of representation, the
State cannot make reservation-Besides, it should also keep in view overall          F
efficiency in terms of Article 335.

     Amendments in the Constitution-Judicial Review-Scope ()(-Discussed.

       Basic structure of the Constitution-Determination of-Width test and
identity test-Applicability of-Discussed.                                           G
     'Constituent power'-Meaning of

     'Equality of opportunity'-Meaning of

     'Fundamental rights'-Meaning and scope of                                      H
    338                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A         limitation on the amending power of the Parliament-Held: Since
    .fundamental rights could be abridged but could not be destroyed. there exists
     no express limitation on the amending power of the Parliament.

          Limitation on Legislative power vis--a- -vis Judicial Revie11~Discussed.

B         'Merits', 'contents of reservation'-Meaning of

         Substantive limitation and Procedural Limitation-Meoning of in the
    context of exercise of constitutional power by legislature.

          Doctrine:
c
          Doctrine of basic structure-Meaning and scope of

          Words and Phrases:

          'Equality', 'formal equality', 'proportional equality', 'equality in law',
D   'equality in fact' and 'equality of opportunity'-Meaning of

          Petitioners have invoked Article 32 of the Constitution for issuing a
    writ in the nature of certiorari to quash the Constitution (Eighty-Fifth
    Amendment) Act, 2001 inserting Article 16(4A) of the Constitution
    retrospectively from 17.6.1995 providing for reservation in promotion with
E   consequential seniority. Petitioners alleged that the Parliament has
    appropriated the judicial power to itself and has acted as an appellate
    authority by reversing the judicial pronouncements of this Court by the
    use of power of amendment as done by the impugned amendment and is,
    therefore, violative of the basic structure of the Constitution.

F         The questions which arose for consideration in these writ petitions
    were about the nature and extent of the judicial review required to be
    applied in judging the validity of the constitutional amendments in the
    context of the. doctrine of basic structure; as to whether there is any upper
    limit beyond which reservation is not permissible; as to whether there is
G   any limit to which seats can be reserved in a particular year; as to whether
    the constitutional limitations on the :imending power of the Parliament
    are obliterated by the impugned amendments so as to violate the basic
    structure of the Constitution; and as to whether by virtue of the impugned
    constitutional amendments, the power of the Parliament is so enlarged so
    as to obliterate any or all of the constitutional limitations and
H   requirements.
                            M. NAGARAJ v. U.0.1.                          339
       Petitioner contended that the amendments in question seek to alter         A
 the fundamental right of equality which is part of the basic structure of
 the Constitution; that the equality in the context of Article 16(1) connotes
 "accelerated promotion" so as not to include consequential seniority; that
 by attaching consequential seniority to the accelerated promotion, the
 impugned amendment violates equality in Article 14 read with Article             B
 16(1); that by providing reservation in the matter of promotion with
 consequential seniority, there is impairment of efficiency; that in the
 decided case of Indra Sawhney, this Court has held that under Article 16(4),
 reservation to the backward classes is permissible only at the time of initial
 recruitment and not in promotion; that contrary to the said judgment,
the Parliament enacted the Constitution (Seventy-Seventh Amendment)               C
 Act, 1995 and Article 16(4A) was inserted, which reintroduced reservation
 in promotion; that if accelerated seniorjty is given to the roster-point
 promotees, the consequences would be disastrous; that the consequences
of the impugned Amendment which provides for reservation in promotion,
 with consequential seniority, would result in reverse discrimination in the
 percentage of representation of the reserved category officers in the higher     D
cadre; that equality is a part of the basic structure; that Article 16 of the
Constitution has to be read with Article 14 and with several Articles in
 Part-JV of the Constitution; that the Constitution places an important
significance on public employment and the rule of equality, inasmuch as,
a specific guarantee is given under Article 16 protecting equality principles     E
in public employment; that the Constitution makers had given importance
to public employment by making a special provision in the form of Part
XIV providing certain rights and protection to the office holders in the
services of the Union and the States; that Article 335 recognizes the
importance of efficiency in administration and the various provisions of
the Constitution indicate that public employment was and is even today            F
of central concern to the Constitution; that clause (4) of Article 16 is an
instance of the classification implicit and permitted by Article 16(1) and
that this view of equality did not dilute the importance of Article 16(1) or
Article 16(2) but merely treated Article 16( 4) as an instance of the
classification; that this relationship of sub-clauses within Article 16 is not    G
an invitation for reverse discrimination and that, equality of opportunity
cannot be overruled by affirmative action; that "equality in employment"
consists of equality of opportunity (Article 16(1)), anti-discrimination
(Article 16(2)), special classification (Article 16(3)), affirmative action
(Article 16(4)) which does not obliterate equality but which stands for
classification within equality), and lastly, efficiency; that as regards the      H
    340                     SUPREME COURT REPORTS [2006] ~UPP. 7 S.C.R.

A words 'nothing in this article' in Article 16(4), these words cannot wipe
    out Article 16(1) and, therefore, they have a limited meaning; that equality
    in the Constitution conceives the individual right to be treated fairly
    without discrimination in the matter of equality of opportunity, it also
    conceives of affirmative action in Articles 15( 4) and Article 16( 4). It
B   enables classification as a basis for enabling preferences and benefits for
    specific beneficiary groups and that neither classification nor affirmative
    action can obliterate the individual right to equal opportunity; that a
    balance has to be evolved to promote equal opportunities while protecting
    individual rights; that as an individual right in Article 16(1 ), enforceability
    is provided for whereas "group expectation" in Article 16(4) is not a
C   fundamental right but it is an enabling power which is not coupled with
    duty; that if the structural balance of equality in the light of the efficiency
    is disturbed and if the individual right is encroached upon by excessive
    support for group expectations, it would amount to reverse discrimination;
    that the limited power of amendment cannot become an unlimited one;
    that a limited amendment power is one of the basic features of the
D   Constitution and, therefore, limits on that power cannot be destroyed; that
    Parliament cannot under Article 368 expand its amending power so as to
    acquire for itself the right to abrogate the Constitution and if the width
    of the amendment invites abrogation of the basic structure then such
    amendment must fail; that directive principles cannot be used to
E   undermine the basic structure principles underlying fundamental rights
    including principles of equality, fundamental freedoms, due process,
    religious freedom and judicial enforcement; that quotas are subject to
    quantitative limits and qualitative exclusions; that, there is a distinction
    between quota limits and ceiling-limits/maximum permissible reservation
    limits which comes under the category of quantitative limits; quotas are
F   also subject to qualitative exclusions like creamy layer; that in numerous
    judgments and in particular in Indra Sawhney, M.G. Badaappanavar, Ajit
    Singh (II), the equality of opportunity in public employment is clarified
    in order to structure and balance Articles 16(1) and 16(4~; that Articles
    16(4A) and 16(48) and the changes to Article 335 are merely enabling
G   provisions and that in a given case if the exercise undertaken by the
    appropriate Government is found to bt arbitrary, this Court will set it
    right; that ingressing the basic structure is a per se violation of the
    Constitution; that the basis for impugned amendments is to overrule
    judicial decisions based on holistic interpretation of the Constitution and
    its basic values, concepts and structure; that the 77th Amendment
H    introducing Article 16(4A) has the effect of nullifying the decision in the
                            M. NAGARAJ v. U.O.l.                         341
case of Indra Sawhney; that, the 8Jst Amendment introducing Article              A
16(48) has been brought in to nullify the effect of the decision in R.K.
Sabharwal & Ors. v. State of Punjab and Ors; that similarly the Constitution
(Eighty-Second Amendment) Act introducing the proviso to Article 335
has been introduced to nullify the effect of the decision in the case of Indra
Sawhney and a host of other cases, which emphasize the importance of             B
 maintaining efficiency in administration; that the 85th Amendment adding
the words 'with consequential seniority' in Article 16(4A) has been made
to nullify the decision in Ajit Singh (ff); that the impugned amendments
are violative of the basic structure and the fundamental values of the
Constitution articulated in the preamble and encapsulated in Articles 14,
16 and 19; that, they violate the fundamental postulates of equality, justice,   C
rule of law and secularism as enshrined in the Constitution and that they
violate the fundamental role of the Supreme Court as interpreter of the
Constitution; that the impugned amendments create an untrammelled,
unrestrained and unconstitutional regime of reservations which destroys
the judicial power and which undermines the efficacy of judicial review
which is an integral part of rule of law; that Articles 14 and 16 have to be     D
read with Article 335 as originally promulgated; that the impugned
amendments invade the twin principle of efficiency, merit and the morale
of public services and the foundation of good governance; and that the
impugned amendments open the floodgates of disunity, disharmony and
disintegration relied on.                                                        E
      Respondents submitted that the power of amendment under Article
368 is a 'constituent' power and not a 'constituted power'; that that there
are no implied limitations on the constituent power under Article 368; that
the power under Article 368 has to keep tile Constitution in repair as and
when it becomes necessary and thereby protect and preserve the basic             F
structure of the Constitution; that an interpretation placed by the Supreme
Court on any provision of the Constitution gets inbuilt in the provisions
interpreted. Such articles are capable of amendment under Article 368.
Such change of the law so declared by the Supreme Court will not merely
for that reason alone violate the basic structure of the Constitution or         G
amount to usurpation of judicial power; that law has to change. It requires
amendments to the Constitution according to the needs of time and needs
of society. It is an ongoing process of judicial and constituent powers, both
contributing to change of law with the final say in the judiciary to
pronounce on the validity of such change of law effected by the constituent
power by examining whether such amendments violate the basic structure           H
    342                     SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A   of the Constitution; that on every occasion when a constitutional matter
    comes before the Court, the meaning of the provisions of the Constitution
    will call for interpretation, but every interpretation of the Article does not
    become a basic feature of the Constitution; that there are no implied
    limitations on the power of the Parliament under Article 368 when it seeks
B   to amend the Constitution; that the validity of the amendment is not to
    be decided on the touchstone of Article 13 but only on the basis of violation
    of the basic features of the Constitution; that amendments for giving effect
    to the directive principles cannot offend the basic structure of the
    Constitution; that the amendments which may abrogate individual rights
    but which promote Constitutional ideal of 'justice, social, economic and
C   political' and the ideal of 'equality of status' are not liable to be struck
    down under Article 14 or Article 16(1) and consequently, such
    amendments cannot violate the basic structure of the Constitution; that
    the amendments to the Constitution which are aimed at removing social
    and economic disparities cannot offend the basic structure; that the
    concepts flowing from the preamble to the Constitution constitute the basic
D   structure; that, basic structure is not found in a particular Article of the
    Constitution; and except the fundamental right to live, in Article 21 read
    with Article 14, no particular Article in Part-III is a basic feature; that
    equality mentioned in Articles 14 and 16 is not to be equated to the equality
    which is a basic feature of the Constitution; that the principle of balancing
E   of rights of the general category and reserved category in the context of
    Article 16 has no nexus to the basic feature of the Constitution; that basic
    feature of the Constitution consists of constitutional axioms like
    constitutional supremacy, and democratic form of Government,
    secularism, separation of powers etc.; that Article 16(4) is a part of the
    Constitution as originally enacted; that the exercise of the power by the
F   delegate under Article 16(4) will override Article 16(1); It is not by virtue
    of the power of the delegate, but it is by virtue of constituent power itself
    having authorized such exercise by the delegate under Article 16(4), that
    article 16(1) shall stand overruled; that the only limitation on the power
    of delegate is that it should act within four corners of Article 16(4), namely,
G   backward classes, which in the opinion of the State are not adequately
    represented in public employment. If this condition precedent is satisfied,
    a reservation will override Article 16(1) on account of the words 'nothing
    in this Article shall prevent the State'; that the right to consideration for
    promotion in service matters is not a basic feature; that Articles 16(4A)
    and 16(4B) are only enabling provisions; that, the constitutionality of the
H   enabling power in Articles 16(4A) and 16(4B) is not to be tested with
                            M. NAGARAJ v. U.0.1.                           343
reference to the exercise of the power or manner of exercise of such power         A
and that the impugned amendments have maintained the structure of
Articles 16(1) to 16(4) intact; that the impugned amendments have retained
reservations at the recruitment level inconformity with the judgment in
Indra Sawhney, which has confined Article 16( 4) only to initial
appointments; that Article 16(4A) is a special provision which provides            B
for reservation for promotion only to SCs and STs.; that under Article
t 6( 4A), reservation is limited. It is not to the extent of 50% but it is
restricted only to SCs and STs, and, therefore, the "risk element" pointed
out in Indra Sawhney stands reduced; that to carve out SCs/STs and make
a separate classification is not only constitutional, but it is a constitutional
obligation to do so under Article 46; that Article 16(4) is an overriding          C
provision over Article 16(1) and if Article 16(4) cannot be said to constitute
reverse discrimination then Article 16(4A) also cannot constitute reverse
discrimination; that this Court has taken care of the interests of the general
category by placing a ceiling on filling-up of vacancies only to a maximum
of 50% for reservation; and that the amendment made by Article 16(4B)
makes an exception to 50% ceiling-limit imposed by Indra Sawhney, by               D
providing that the vacancies of previous years will not be considered with
the current year's vacancies;

    Upholding the constitutional validity of the Constitutional
Amendments Acts, as referred, the Court
                                                                                   E
      HELD: 1.1. Constitution sets out principles for an expanding future
and is intended to endure for ages to come and consequently to be adapted
to the various crisis of human affairs. Therefore, a purposive rather than
a strict literal approach to the interpretation should be adopted. A
Constitutional provision must be construed not in a narrow and                     F
constricted sense but in a wide and liberal manner so as to anticipate and
take account of changing conditions and purposes so that constitutional
provision does not get fossilized but remains flexible enough to meet the
newly emerging problems and challenges. (369-B, CJ

      1.2. It is a fallacy to regard fundamental rights as a gift from the         G
State to its citizens. Individuals possess basic human rights independently
of any constitution by reason of basic fact that they are members of the
human race. These fundamental rights are important as they possess
intrinsic value. Part-III of the Constitution does not confer fundamental
rights. It confirms their existence and gives them protection. Its purpose         H
    344                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A   is to withdraw certain subjects from the area of political controversy to
    place them beyond the reach of majorities and officials and to establish
    them as legal principles to be applied by the courts. 1369-D, El

          1.3. A right becomes a fundamental right because it has foundational
    value. Apart from the principles, one has also to see the structure of the
B   Article in which the fundamental value is incorporated. Fundamental
    right is a limitation on the power of the State. The Constitution, and in
    particular that of it which protects and which entrenches fundamental
    rights and freedoms to which all persons in the State are to be entitled is
    to be given a generous and purposive construction. 1369-F, GI

c        Sakal Papers (P) L!d & Ors. v. Union of India and Ors., AIR (1962)
    SC 305; A.K. Gopalan v. State of Madras AIR (1950) SC 27 and Maneka
    Gandhi v. Union of India and Anr., AIR (1978) SC 597, referred to.

          2.1. The concept of a basic structure giving coherence and durability
D to a Constitution has a certain intrinsic force. This doctrine has essentially
    developed from the German Constitution. This development is the
    emergence of the constitutional principles in their own right. It is not
    based on literal wordings. 1371-BI
          2.2. The principles of federalism, secularism, reasonableness and
    socialism etc. are beyond the words of a particular provision. They are
E   systematic and structural principles underlying and connecting various
    provisions of the Constitution. They give coherence to the Constitution.
    They make the Constitution an organic whole. They are part of
    constitutional law even if they are not expressly stated in the form of rules.
                                                                       1372-A, Bl
F        S.R. Bommai & Ors etc. v. Union of India & Ors. etc. AIR (1994) SC
    1918, relied on.

           2.3. In order to qualify as an essential feature, a principle is to be
    first established as part of the constitutional law and as such binding on
G   the legislature. Only then, it can be examined whether it is so fundamental
    as to bind even the amending power of the Parliament i.e. to form part of
    the basic structure of the Constitution. This is the standard of judicial
    review of constitutional amendments in the context of the doctrine of basic
    structure. 1372-C, DI

H         2.4. The theory of basic structure is based on the concept of
                             M. NAGARAJ v. U.0.1.                           345
constitutional identity. The basic structure jurisprudence is a pre-                A
occupation with constitutional identity. 1373-CI

      2.5. The main object behind the theory of the constitutional identity
is continuity and within that continuity of identity, changes are admissible
depending upon the situation and circumstances of the day. 1373-FI
                                                                                    B
      Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kera/a and
Anr., 119731 4 SCC 225, followed.

      3.1. The rights, liberties and freedoms of the individual are not only
to be protected against the State, they should be facilitated by it. They
are to be informed. Overarching and informing of these rights and values            C
is the principle of human dignity under the German basic law. Similarly,
secularism is the principle which is the overarching principle of several
rights and values under the Indian Constitution. Therefore, axioms like
secularism, democracy, reasonableness, social justice etc. are overarching
principles which provide linking factor for principle of fundamental rights         D
like Articles 14, 19 and 21. These principles are beyond the amending
power of the Parliament. They pervade all enacted laws and they stand
at the pinnacle of the hierarchy of constitutional values. 1372-E, F, GI

     3.2. Constitutional adjudication is like no other decision-making.
There is a moral dimension to every major constitutional case; the                  E
language of the text is not necessarily a controlling factor. Our constitution
works because of its generalities, and because of the good sense of the
Judges when interpreting it. It is that informed freedom of action of the
Judges that helps to preserve and protect our basic document of
governance. (374-B, q
                                                                                    F
      Minerva Mills Ltd. & Ors. v. Union of India & Ors., 11981[ 1SCR206,
followed.

      'Challenge to the Living Constitution' by Herman Belz, referred to.

      3.3. There can be no rule of law if there is no equality before the           G
law; and rule of law and equality before the law would be empty words if
their violation was not a matter of judicial scrutiny or judicial review and
judicial relief and all these features would lose their significance if judicial,
executive and legislative functions were united in only one authority, whose
dictates had the force of law. The rule of law and equality before the law          H
    346                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A   are designed to secure among other things justice both social and economic.
    A federal Constitution with its distribution of legislative powers between
    Parliament and State legislatures involves a limitation on legislative powers
    and this requires an authority other than Parliament and State
    Legislatures to ascertain whether the limits are transgressed and to prevent
B   such violation and transgression. [374-D, E, Fl

          3.4. Judicial review of legislation enacted by the Parliament within
    limited powers under the controlled constitution has been a feature of our
    law and this is on the ground that any law passed by a legislature with
    limited powers is ultra vires if the limits are transgressed. The framers
C   conferred on the Supreme Court the power to issue writs for the speedy
    enforcement of those rights and made the right to approach the Supreme
    Court for such enforcement itself a fundamental right. Thus, judicial
    review is an essential feature of our constitution because it is necessary to
    give effect to the distribution of legislative power between Parliament and
    State legislatures, and is also necessary to give practicable content to the
D   objectives of the Constitution embodied in Part-III and in several other
    Articles of the Constitution. "Equality" is the essence of democracy and,
    accordingly a basic feature of the Constitution. (374-F, G, H; 375-A, El

           Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1981 J 1 SCR 206
    and Indira Nehru Gandhi v. Raj Narain (Election Case) [19761 2 SCR 347,
E   re.lied on.

          3.5. The theory of basic structure is based on the principle that a
    change in a thing does not involve its destruction and destruction of a thing
    is a matter of substance and not of form. Therefore, one has to apply the
F   test of overarching principle to be gathered from the scheme and the
    placement and the structure of an Article in the Constitution. The theory
    of basic structure is the only theory by which the validity of impugned
    amendments to the Constitution is to be judged. [375-H; 376-A, Bl

          3.6. Once it is held that fundamental rights could be abridged but
G not destroyed and once it is further held that several features of the
    Constitution cannot be destroyed, the concept of 'express limitation' on
    the amending power loses its force for a precise formulation of the basic
    feature of the Constitution and for the courts to pronounce on the validity
    of a constitutional amendment. [376-C)

H         3.7. For determining whether a particular feature of the Constitution
                             M. NAGARA.I v. U.0.1.                          347
 is a part of its basic structure, one has per force to examine in each             A
 individual case the place of the particular feature in the scheme of the
 Constitution, its object and purpose and the consequences of its denial on
 the integrity of the Constitution as a fundamental instrument of the
 country's governance. Applying the above test to the facts of the present
 case, it is relevant to note that the concept of 'equality' like the concept of    B
 'representative democracy' or 'secularism' is delineated over various
 Articles. Basically, Part-III of the Constitution consists of the equality code,
 the freedom code and the right to move the courts. It is true that equality
 has several facets. However, each case has to be seen in the context of the
 placement of an Article which embodies the foundational value of equality.
                                                                   [376-D, E, H]    C
       Indira Nehru Gandhi v. Raj Narain (Election Case) [1976] 2 SCR 347,
 relied on.
       4.1. Our Constitution has incorporated the word 'reservation' in
 Article 16(4) which word is not there in Article 15(4). Therefore, the word
 'reservation' as a subject of Article 16(4) is different from the word             D
 'reservation' as a general concept. [377-A, Bl
       4.2. In the present case, this Court is concerned with the right of an
 individual of equal opportunity on one hand and preferential treatment
 to an individual belonging to a backward class in order to bring about
 equal level-playing field in the matter of public employment. [378-A, B]           E
       4.3. The concept of 'equality of opportunity' in public employment
 concerns an individual, whether that individual belongs to general category
 or backward class. The conflicting claim of individual right under Article
 16(1) and the preferential treatment given to a backward class I,as to be
 balanced. Both the claims have a particular object to be achieved. The             F
 question is of optimization of these conflicting interests and claims.
                                                               [378-C, D, E]
         5.1. Equality, Justice and Merit are independent variable concepts.
  The application of these concepts in public employment depends upon
  quantifiable data in each case. Equality in law is different from equality        G
  in fact. When Article 16(4) is construed, it is equality in fact which plays
. the dominant role. Backward classes seek justice. General class in public
  employment seeks equity. The difficulty comes in when the third variable
  'efficiency in service' comes in. [378-E, F[
       5.2. The content of merit is context-specific. It derives its meaning        H
    348                    SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A   from particular conditions and purposes. The impact of any affirmative
    action policy on 'merit' depends on how that policy is designed. In the
    present case, the debate on this point has taken place in an empirical
    vacuum. The basic presumption, however, remains that it is the State who
    is in the best position to define and measure merit in whatever ways they
B   consider it to be relevant to public employment because ultimately it has
    to bear the costs arising from errors in defining and measuring merit.
    Similarly, the concept of "extent of reservation" is not an absolute concept
    and like merit it is context-specific. [379-C, DJ

          'Meritocracy and Economic Inequality' by Amartya Sen, referred to.
c        5.3. Exercise of the power by the State Government is depending
    upon the fact-situation in each case. Therefore, 'vesting of the power' by
    an enabling provision may be constitutionally valid and yet 'exercise of
    the power' by the State in a given case may be arbitrary, particularly, if
    the State fails to identify and measure backwardness and inadequacy
D   keeping in mind the efficiency of service as required under Article 335 of
    the Constitution. [379-E, F]

          5.4. Equality of opportunity has two different and distinct concepts.
    There is a conceptual distinction between a non-discrimination principle
    and affirmative action under which the State is obliged to provide level-
E   playing field to the oppressed classes. Affirmative action in the above sense
    seeks to move beyond the concept of non-discrimination towards equalizing
    results with respect to various groups. Both the conceptions constitute
    "equality of opportunity". [379-F, G)
          5.5. It is the equality "in fact" which has to be decided looking at
F   the ground reality. Balancing comes in where the question concerns the
    extent of reservation. If the extent of reservation goes beyond cut-off point
    then it results in reverse discrimination. Anti-discrimination legislation has
    a tendency of pushing towards de facto reservation. Therefore, a numerical
    benchmark is the surest immunity against charges of discrimination.
G                                                                [379-H; 380-AI
          6. Reservation has to be used in a limited sense otherwise it will
    perpetuate casteism in the country. Reservation is under-written by a
    special justification. Equality in Article 16(1) is individual-specific whereas
    reservation in Article 16(4) and Article 16(4A) is enabling. The discretion
H   of the State is, however, subject to the existence of "backwardness" and
                                   M. NAGARAJ v. U.0.l.                          349
    "inadequacy of representation" in public employment. Backwardness has               A
    to be based on objective factors whereas inadequacy has to factually exist.
    This is where judicial review comes in. However, whether reservation in
    a given case is desirable or not, as a policy, is not for this Court to decide
    as long as the parameters mentioned in Articles 16(4) and 16(4A) are
    maintained. [380-B, C, D[
                                                                                        B
           7.1. Social justice is one of the sub-divisions of the concept of justice.
    It is concerned with the distribution of benefits and burdens throughout
    a society as it results from social institutions. [380-E)

-         7.2. There are three criteria to judge the basis of distribution,
    namely, rights, deserts or need. These three criteria can be put under two
                                                                                        C

    concepts of equality "formal equality" and "proportional equality".
    "Formal equality" means that law treats everyone equal and does not
    favour anyone either because he belongs to the advantaged section of the
    society or to the disadvantaged section of the society. Concept of
    "proportional equality" expects the States to take affirmative action in            D
    favour of disadvantaged sections of the society within the framework of
    liberal democracy. [380-F, G, HJ

          7.3. Under the Indian Constitution, while basic liberties are
    guaranteed and individual initiative is encouraged, the State has got the           E
    role of ensuring that no class prospers at the cost of other class and no
    person suffers because of drawbacks which is not his but social. [381-A]

          8.1. The concept of 'catch-up' rule and 'consequential seniority' are
    judicially evolved concepts to control the extent of reservation. The source
    of these concepts is in service jurisprudence. These concepts cannot be             F
    elevated to the status of an axiom like secularism, constitutional
    sovereignty etc. It cannot be said that by insertion of the concept of
    'consequential seniority' the structure of Article 16(1) stands destroyed
    or abrogated. It cannot be said that 'equality code' under Articles 14, 15
    and 16 is violated by deletion of the 'catch-up' rule. These concepts are
    based on practices. However, such practices cannot be elevated to the               G
    status of a constitutional principle so as to be beyond the amending power
    of the Parliament. Principles of service jurisprudence are different from
    constitutional limitations. Therefore, neither the 'catch-up' rule nor the
    concept of 'consequential seniority' are implicit in clauses (I) and ( 4) of
    Article 16 of the Constitution. [390-H; 391-A, B]                                   H


-
    350                    SUPREME COURT REPORTS (2006] SUPP. ·, S.C.R.

A         Union of India & Ors. v. Virpal Singh Chauhan & Ors., (19951 6 SCC
    684, relied on.

         The General Manager, Southern Railway and Anr. v. Rangachari, AIR
  (1961) SC 36; M.R. Balaji & Ors. v. The State of Mysore & Ors., AIR (1963)
  SC 649; State of Kera/a and Anr. v. N.M. Thomas and Ors., (1976) 2 SCC
B 310; Indra Sawhney & Ors. v. Union of India, [19921Supp.3 SCC 217; T.
  Devadasan v. Union of India & Ors., AIR (1964) SC 179; R.K. Sabharwal
  & Ors. v. State of Punjab & Ors., (19951 2 SCC 745; Ajit Singh Januja &
  Ors. v. State of Punjab & Ors. (Ajit Singh-I) (1996) 2 SCC 715; Jagdish Lal
  & Ors. v. State of Haryana & Ors., (1997) 6 SCC 538 and Ajit Singh & Ors.
C (II) v. State of Punjab & Ors., [1999) 7 SCC 209, referred to.

          8.2. This Court has categorically ruled in the decided case of Virpal
    Singh Chauhan that the 'catch-up' rule is not implicit in clauses (1) to (4)
    of Article 16 of the Constitution. The said rule cannot bind the amending
    power of the Parliament. [391-B)
D
          Union of India & Ors. v. Virpal Singh Chauhan & Ors., (19951 6 SCC
    684, referred to.

         8.3. Whether weightage of earlier accelerated promotion with
    consequential seniority should be given or not to be given are matters
E   which would fall within the discretion of the appropriate Government,
    keeping in mind the backwardness, inadequacy and representation in
    public employment and overall efficiency of services. (392-C, DI

         Ajit Singh Januja & Ors. v. State of Punjab & Ors. (Ajit Singh-I) (1996)
F   2 SCC 715; Ajit Singh & Ors. (II) v. State of Punjab & Ors., (1999) 7 SCC
    209 and M.G. Badappanavar & Anr. v. State of Karnataka & Ors., [2001) 2
    sec 666, distinguished.
          8.4. Appropriate Government has to apply the cadre strength as a
    unit in the operation of the roster in order to ascertain whether a given
G   class/group is adequately represented in the service. The cadre strength
    as a unit also ensures that upper ceiling-limit of 50% is not violated.
    Further, roster has to be post-specific and not vacancy based. (392-G, HI

          Indra Sawhney & Ors. v. Union of India, (19921 Supp. 3 SCC 217 and
    R.K. Sabhanval & Ors. v. State ofPunjab & Ors., [1995) 2 SCC 745, referred
H   to.
                                    M. NAGARAJ v. U.0.1.                          351
              8.5. Clause (4A) of Article 16 of the Constitution is an enabling          A
       provision. It gives freedom to the State to provide for reservation in
       matters of promotion and applies only to SCs and STs. The said clause is
       carved out of Article 16(4). Therefore, clause (4A) will be governed by
       the two compelling reasons "backwardness" and "inadequacy of
       representation", as mentioned in Article 16(4). If the said two reasons do        B
       not exist then the enabling provision cannot come into force. The State
       can make provision for reservation only if the above two circumstances
       exist. Further in the decided case of Ajit Singh (II), this court has held
       that apart from 'backwardness' and 'inadequacy of representation' the
       State shall also keep in mind 'overall efficiency' (Article 335). Therefore,
       all the three factors have to be kept in mind by the appropriate                  C
       Government by providing for reservation in promotion for SCs and STs.
                                                             (394-F, G, H; 395-AJ
=r--
             Ajit Singh & Ors. (II) v. State of Punjab & Ors., (1999) 7 SCC 209,
       relied on.
                                                                                         D
              8.6. According to the Government, the decisions in Virpal Singh and
       Ajit Singh (I) bringing in the concept of "catch-up" rule adversely affected
       the interests of SCs and STs in the matter of seniority on promotion to
       the next higher grade. In the circumstances, clause (4A) of Article 16 was
       once again amended and the benefit of consequential seniority was given
       in addition to accelerated promotion to the roster-point promotees. Suffice       E
       it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was
       an extension of clause (4A) of Article 16. Therefore, the Constitution
       (Seventy-Seventh Amendment) Act, 1995 has to be read with the
       Constitution (Eighty-Fifth Amendment) Act, 2001. (395-C, D, El

             Union of India & Ors. v. Virpal Singh Chauhan & Ors., (1995) 6 SCC          F
       684 and Ajit Singh Januja & Ors. v. State of Punjab & Ors. (Ajit Singh-I)
       [1996) 2 sec 715, referred to.

             9.1. Once it is held that each point in the roster indicates a post which
       on falling vacant has to be filled by the particular category of candidate        G
       to be appointed against it and any subsequent vacancy has to be filled by
       that category candidate alone then the question of clubbing the unfilled
       vacancies with current vacancies do not arise. Therefore, in effect, Article
       16(4B) as inserted by the Constitution (Eighty-First Amendment) Act, 2000
       grants legislative assent to the judgment in R.K. Sabharwal. If it is within
       the power of the State to make reservation then whether it is made in one         H
    352                   SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A   selection or deferred selections, is only a convenient method of
    implementation as long as it is post based, subject to replacement theory
    and within certain limitations. 1399-H; 400-A-B)

          R.K. Sabharwal & Ors. v. State of Punjab & Ors., 11995] 2 SCC 745,
    relied on.
B
          9.2. By the Constitution (Eighty-Second Amendment) Act, 2000, a
    proviso was inserted at the end of Article 335 of the Constitution. This
    proviso was inserted keeping in mind the judgment of this court in the
    case of Vinod Kumar which took the view that relaxation in matters of
    reservation in promotion was not permissible under Article 16(4) in view
C   of the command contained in Article 335. Once a separate category is
    carved out of clause (4) of Article 16 then that category is being given
    relaxation in matters of reservation in promotion. The proviso is confined
    to SCs and STs alone. The said proviso is compatible with the scheme of
    Article 16(4A). 1400-D; F, G]
D         9.3. Article 16(48) lifts the 50% cap on carry-over vacancies (backlog
    vacancfos). The ceiling-limit of 50% on current vacancies continues to
    remain. In working-out the carry-forward rule, two factors are required
    to be kept in mind, namely, unfilled vacancies and the time factor. On one
    hand of the spectrum, we have unfilled vacancies; on the other hand, we
    have a time-spread over number of years over which unfilled vacancies
E   are sought to be carried-over. These two are alternating factors and,
    therefore, if the ceiling-limit on the carry-over of unfilled vacancies is
    removed, the other alternative time-factor comes in and in that event, the
    time-scale has to be imposed in the interest of efficiency in administration
    as mandated by Article 335. If the time-scale is not kept then posts will
F   continue to remain vacant for years, which would be detrimental to the
    administration. Therefore, in each case, the appropriate Government will
    now have to introduce the time-cap depending upon the fact-situation.
                                                                   (401-A, B, CJ
          10.1. In the matter of application of the principle of basic structure,
G twin tests have to be satisfied, namely, the 'width test' and the test of
    'identity'. The concept of the 'catch-up' rule and 'consequential seniority'
    are not constitutional requirements. They are not implicit in clauses (1)
    and (4) of Article 16. They are not constitutional limitations. They are
    concepts derived from service jurisprudence. They are not constitutional
    principles. They are not axioms like, secularism, federalism etc.
H   Obliteration of these concepts or insertion of these concepts do not change
                            M. NAGARAJ v. U.0.1.                           353
the equality code indicated by Articles 14, 15 and 16 of the Constitution.        A
Clause (1) of Article 16 cannot prevent the State from taking cognizance
of the compelling interests of backward classes in the society. Clauses (1)
and (4) of Article 16 are restatements of the principle of equality under
Article 14. Clause (4) of Article 16 refers to affirmative action by way of
reservation. (401-E, F, G(
                                                                                  B
       10.2. Equity, justice and efficiency are variable factors. These factors
are context-specific. There is no fixed yardstick to identify and measure
these three factors, it will depend on the facts and circumstances of each
case. These are the limitations on the mode of the exercise of power by
the State. None of these limitations have been removed by the impugned            C
amendments. If the concerned State fails to identify and measure
backwardness, inadequacy and overall administrative efficiency then in
that event the provision for reservation would be invalid. These
amendments do not alter the structure of Articles 14, 15 and 16 (equity
code). The parameters mentioned in Article 16(4) are retained. Clause (4A)
is derived from clause (4) of Article 16. Clause (4A) is confined to SCs          D
and STs alone. Therefore, the present case does not change the identity
of the Constitution. (402-A, B, Cf

      10.3. It is well-settled that the Parliament while enacting a law does
not provide content to the "right". The content is provided by the
judgments of the Supreme Court. If the appropriate Government enacts              E
a law providing for reservation without keeping in mind the parameters
in Article 16(4) and Article 335 then this court will certainly set aside and
strike down such legislation. Applying the "width test", this Court does
not find obliteration of any of the constitutional limitations. Applying the
test of "identity", no alteration in the existing structure of the equality       p
code is found. None of the axioms like secularism, federalism etc. which
are overarching principles have been violated by the impugned
constitutional amendments. (402-F, G]

      10.4. The criterion for determining the validity of a law is the
competence of the law-making authority. The competence of the law-                G
making authority would depend on the ambit of the legislative power, and
the limitations imposed thereon as also the limitations on mode of exercise
of the power. Though the amending power in Constitution is in the nature
of a constituent power and differs in content from the legislative power,
the limitations imposed on the constituent power may be substantive as            H
    354                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A   well as procedural. Substantive limitations are those which restrict the field
    of the exercise of the amending power. Procedural limitations on the other
    hand are those which impose restrictions with regard to the mode of
    exercise of the amending power. Both these limitations touch and affect
    the constituent power itself, disregard of which invalidates its exercise.
B   Applying the above tests to the present case, there is no violation of the
    basic structure by any of the impugned amendments, including the
    Constitution (Eighty-Second) Amendment Act, 2000. The constitutional
    limitation under Article 335 is relaxed and not obliterated. (403-B, C, DI

          Kihoto Hollohan v. Zachillhu & Ors., (19921Supp.2 SCC 651, relied
C on.
          10.5. The field of exercise of the amending power is retained by the
    impugned amendments, as the impugned amendments have introduced
    merely enabling provisions because merit, efficiency, backwardness and
    inadequacy cannot be identified and measured in vacuum. Moreover,
D   Article 16(4A) and Article 16(48) fall in the pattern of Article 16(4) and
    as long as the parameters mentioned in those articles are complied-with
    by the States, the provision of reservation cannot be faulted. Articles
    16(4A) and 16(48) are classifications within the principle of equality under
    Article 16(4) of the Constitution. (403-E, F(

E          ti.I. Equality of treatment under Article 14 is an objective test. It
    is not the test of intention. Therefore, the basic principle underlying Article
    14 is that the law must operate equally on all persons under like
    circumstances. Every discretionary power is not necessarily
    discriminatory. Equality is not violated by mere conferment of
F   discretionary power. It is violated by arbitrary exercise by those on whom
    it is conferred. This is the theory of 'guided power'. This theory is based
    on the assumption that in the event of arbitrary exercise by those on whom
    the power is conferred would be corrected by the Courts. This is the basic
    principle behind the enabling provisions which are incorporated in Articles
    16(4A) and 16(48). (404-A, 8, CJ
G
          Constitutional Law of India, by H.M. Seervai, 4th Edu. 546, referred
    to.

          11.2. Enabling provisions are permissive in nature. They are enacted
    to balance equality with positive discrimination. The constitutional law is
H   the law of evolving concepts. Some of them are generic, others have to be
                            M. NAGARA.I r. U.0.1.                         355
identified and valued. The enabling provisions deal with the concept, which       A
has to be identified and valued as in the case of access vis-a-vis efficiency
which depends on the fact-situation only and not abstract principle of
equality in Article 14 as spelt out in detail in Articles 15 and 16 of the
Constitution. 1404-C, DI

      11.3. The object in enacting the enabling provisions like Articles          B
16(4), 16(4A) and 16(48) is that the State is empowered to identify and
recognize the compelling interests. If the State has quantifiable data to
show backwardness and inadequacy then the State can make reservations
in promotions keeping in mind maintenance of efficiency which is held to
be a constitutional limitation on the discretion of the State in making
reservation as indicated by Article 335. 1404-F, Gf                               C
       11.4. The concepts of efficiency, backwardness, inadequacy of
 representation are required to be identified and measured. That exercise
depends on availability of data. That exercise depends on numerous
factors. It is for this reason that enabling provisions are required to be
made because each competing claim seeks to achieve certain goals. How             D
best one should optimize these conflicting claims can only be done by the
administration in the context of local prevailing conditions in public
employment. Therefore, there is a basic difference between 'equality in
law' and 'equality in fact'. If Articles 16(4A) and 16(48) flow from Article
16(4) and if Article 16(4) is an enabling provision then Articles 16(4A) and      E
16(48) are also enabling provisions. As long as the boundaries mentioned
in Article 16(4), namely, backwardness, inadequacy and efficiency of
administration are retained in Articles 16(4A) and 16(48) as controlling
factors, constitutional invalidity cannot be attributed to these enabling
provisions. However, when the State fails to identify and implement the
controlling factors then excessiveness comes in, which is to be decided on        F
the facts of each case. In a given case, where excessiveness results in reverse
discrimination, this Court has to examine individual cases and decide the
matter in accordance with law. This is the theory of 'guided power'.
                                                   1404-G, H; 405-A, 8, Cl
      'Affirmative Action' by William Darity, referred to.                        G
      11.5. Applying the doctrine of "Guided Power" to the proviso to
Article 335 inserted by the Constitution (Eighty-Second Amendment) Act,
2000, it is found that the said proviso has a nexus with Articles 16(4A)
and 16(48). Efficiency in administration is held to be a constitutional
limitation.on the discretion vested in the State to provide for reservation       H
    356                    SUPREME COURT REPORTS [2000] SUPP. 7 S.C.R.

A in public employment. (405-E)
           11.6. Even after insertion of the proviso, the limitation of overall
    efficiency in Article 335 is not obliterated. Reason is that "efficiency" is
    variable factor. It is for the concerned State to decide in a given case,
    whether the overall efficiency of the system is affected by such relaxation.
B   If the relaxation is so excessive that it ceases to be qualifying marks then
    certainly in a given case, as in the past, the State is free not to relax such
    standards. In other cases, the State may evolve a mechanism under which
    efficiency, equity and justice, all three variables, could be accommodated.
    Moreover, Article 335 is to be read with Article 46. Therefore, where the
    State finds compelling interests of backwardness and inadequacy, it may
C   relax the qualifying marks for SCs/STs. These compelling interests
    however have to be identified by weighty and comparable data.
                                                          (405-F, G, H; 406-A, BJ
           12.1. The object behind the impugned Constitutional amendments
    is to confer discretion on the State to make reservations for SCs/STs in
D   promotions subject to the circumstances and certain constitutional
    limitations. The boundaries of the width of the power, namely, the ceiling-
    limit of 50% (the numerical benchmark), the principle of creamy layer,
    the compelling reasons, namely, backwardness, inadequacy of
    representation and the overall administrative efficiency are not obliterated
E   by the impugned amendments. At the appropriate time, the law as enacted
    by various States providing for reservation has to be considered if
    challenged. At that time it has to be seen whether limitations on the
    exercise of power are violated. (406-C, D, E)
          12.2. It is made clear that even if the State has reasons to make
    reservation, if the impugned law violates any of the above substantive
F   limits on the width of the power the same would be liable to be set aside.
                                                                         (406-FJ
          12.3. While judging the width and the ambit of Article 16(4A), it must
    be ascertained whether such sub-classification is permissible under the
    Constitution. The sub-classification between "OBC" on one hand and "SC
G   and ST" on the other hand is held to be constitutionally permissible in
    the case of Indra Sawhney. It refers to sub-classification within the
    egalitarian equality. Therefore, Article 16(4A) follows the line suggested
    by this Court in the case of Indra Sawhney. In the same case, this Court
    has also struck a balance between formal equality and egalitarian equality
    by laying down the rule of 50% (ceiling-limit) for the entire BC as "a class
H   apart" vis-a-vis GC. Therefore, equality as a concept is retained even under
                                M. NAGARAJ v. U.0.1.                        357
    Article 16(4A) which is carved out of Article 16(4) of the Constitution.        A
                                                                  1410-E, F, GI
          Indra Sawhney & Ors. v. Union of India, 119921 Supp.3 SCC 217, relied
    on.
           12.4. Article 16(48) is an enabling provision. It seeks to make
    classification on the basis of the differential between current vacancies and   B
    carry-forward vacancies. In the case of Article 16(48), it must be kept in
     mind that following the judgment in R.K. Sabharwal the concept of post-
    based roster is introduced. Consequently, specific slots for 08C, SC and
    ST as well as GC have to be maintained in the roster. For want of
    candidate in a particular category the post may remain unfilled.
    Nonetheless, that slot has to be filled only by the specified category.         C
    Therefore, by Article 16(48) a classification is made between current
    vacancies on one hand and carry-forward/backlog vacancies on the other
    hand. Articles 16(4A) and 16(48) form a composite part of the scheme
    envisaged. Thus, Articles 16(4), 16(4A) and 16(48) together form part of
    the same scheme. Articles 16(4A) and 16(48) are both inspired by                D
    observations of the Supreme Court in Indra Sawhney and R. K. Sabharwal.
    They have nexus with Articles 17 and 46 of the Constitution. Therefore,
    the classification envisaged by Articles 16(4A) and 16(48) is upheld. The
    impugned constitutional amendments, therefore, do not obliterate equality.
                                                                    1411-A, 8, CJ
          Indra Sawhney & Ors. v. Union of India, [19921Supp.3 SCC 217 and          E
    R.K. Sabharwal & Ors. v. State ofPunjab & Ors., [199512 SCC 745, referred
    to.
          12.5. The test for judging the width of the power and the test for
    adjudicating the exercise of power by the concerned State are two different
    tests which warrant two different judicial approaches. In the present case,     F
    as the width of the power under the impugned amendments is required
    to be tested. Therefore, "the width test" has to be applied. In applying
    "the width test" it has to be seen whether the impugned amendments
    obliterate the constitutional limitations mentioned in Article 16( 4).
    However, these limitations are not obliterated by the impugned                  G
    amendments. The question still remains whether the concerned State has
    identified and valued the circumstances justifying it to make reservation.
    This question has to be decided case-wise. The extent of reservation has
    to be decided on facts of each case. (411-E, F, GI


-         13.1. The constitutional principle of equality is inherent in the Rule    H
    358                      SUPREME COURT REPORTS [2006] ~UPP. 7 S.C.R.

A   of Law. However, its reach is limited because its primary concern is not
    with the content of the law but with its enforcement and application. The
    Ruic of Law is satisfied when laws are applied or enforced equally, that
    is, evenhandedly, free of bias and without irrational distinction. The
    concept of equality allows differential treatment but it prevents distinctions
B   that are not properly justified. Justification needs each case to be decided
    on case to case basis. [412-B, q

          13.2. Existence of power cannot be denied on the ground that it is
    likely to be abused. In the present case there is neither any dispute about
    the existence of the power nor is there any dispute about the nature of
C   the power of amendment. The issue involved in the present case is
    concerning the width of the power. The power to amend is an enumerated
    power in the Constitution and, therefore, its limitations, if any, must be
    found in the Constitution itself. The concept of reservation in Article 16(4)
    is hedged by three constitutional requirements. These requirements are
    not obliterated by the impugned constitutional amendments. Reservation
D   is not in issue. What is in issue is the extent of reservation. If the extent of
    reservation is excessive then it makes an inroad into the principle of
    equality in Article 16(1) of the Constitution. [412-C, D, E, .Fl

          13.3. Backwardness and inadequacy of representation are compelling
    reasons for the State Governments to provide representation in public
E   employment. Therefore, if in a given case the court finds excessive
    reservation under the State enactment then such an enactment would be
    liable to be struck down since it would amount to derogation of the
    constitutional requirements. [412-F, G)

F         14.1. The impugned constitutional amendments by which Articles
    16(4A) and 16(48) have been inserted flow from Article 16(4). They do
    not alter the structure of Article 16(4). (413-E)

          14.2. The ceiling-limit of 50%, the concept of creamy layer and the
    compelling reasons, namely, backwardness, inadequacy of representation
G   and overall administrative efficiency are all constitutional requirements
    without which the structure of equality of opportunity in Article 16 would
    collapse. However, in this case, the main issue concerns the "extent of
    reservation". In this regard the concerned State will have to show in each
    case the existence of the compelling reasons. The impugned provision is

H
    an enabling provision. The State is not bound to make reservation for SC/
    ST in matter of promotions. However if they wish to exercise their                 -
                               M. NAGARAJ v. U.0.1.                      359
discretion and make such provision, the State has to collect quantifiable        A
data showing backwardness of the class and inadequacy of representation
of that class in public employment in addition to compliance of Article
335. It is made clear that even if the State has compelling reasons, the State
will have to see that its reservation provision does not lead to excessiveness
so as to breach the ceiling-limit of 50% or obliterate the creamy layer or       B
extend the reservation indefinitely. Subject to above, the constitutional
validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the
Constitution (Eighty-First Amendment) Act, 2000, the Constitution
(Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth
Amendment) Act, 2001 is upheld. (413-G, H; 414-A, B, C, DJ
                                                                                 c
      15. The question of validity of individual enactments of appropriate
States will be gone into in individual writ petition by the appropriate Bench
in accordance with law as laid down. (414-E)

        CIVIL ORINGIAL JURISDICTION : Writ Petition (Civil) No. 61 of
2002.                                                                            ])

        (Under Article 32 of the Constitution of India.)

                                     WITH

      WP (C) Nos.62, 81, 111, 134, 135, 206, 226, 227, 255, 266, 269, 279,       E
299, 294, 295, 29t 250, 319,375, 386, 387,320, 322, 323, 338, 234, 340,
423, 440, 453, 460, 472, 482, 483, 484, 485, 550, 527 and 640 of2002, SLP
(C) Nos. 4915-4919 of2003, W.P. (C) Nos.153/2003, C.P. (C) No. 404/2004
in W.P.(C) No. 255/2002, C.P. (C) No.505/2002 in WP (C) No.61/2002, C.P.
(C) No.553/2002 in WP (C) No.266/2002, C.P. (C) No.570/2002 in WP (C)            F
No.255/2002, C.P. (C) No. 122/2003 in WP (C) No.61/2002, C.P. (C) No.127/
2003 in WP (C) No.61/2002, C.P. (C) No.85/2003 in WP (C) No.255/2002,
W.P. (C) Nos. 313 and 381 of 2003, CIVIL APPEAL Nos. 12501-12503/
1996, SLP (C) No.754/1997, WP (C) No.460 of2003, CIVIL APPEAL Nos.
7802/2001 and 7803/2001, W.P. (C) No.469/2003, SLP (C) No.19689/1996,
WP (C) No. 563/2003, WP (C) No.2/2003,'WP (C) Nos. 515, 519 and 562              G
of 2004, WP (C) No. 413 of 1997, WP (C) No.286 of 2004 and SLP (C)
No.145 I 8 of 2004.

       Mohan Parasaran, A.S.G., K.K. Senthil Velan, Gaurav Dhingra,
Chidananda D.L., Sulakshna Jayaram and Bharadwaj for Attorney General of         H
India.
    360                    SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A       A. Sharan, A.S.G., Aruneshwar Gupta, A.A.G., Dr. L.M. Singhvi Harish
  N. Salve, Dr. Rajiv Dhavan, Prof, Ravivarma Kumar, Vivek K. Tankha, S.
  Ganesh, Jawahar Lal Gupta, K. Parasaran, P.P. Rao, P.N. Misra, R.G. Padia,
  Ravindra Shrivastava, Kiran Suri, Abhilasha Lalbhai, Himanshu Buttan, Amit
  SJ., Dr. Vipin Gupta, S.B. Upadhyay, Raj Kumar Gupta, Sheo Kumar Gupta,
B Bhanu Pratap Gupta, A.N. Bardiyar Janaranjan Das, Swetaketu Mishra,
  Chandra Prakash, Prashant Venkatesh, Lakshmi Raman Singh, Meenakshi
  Arora, Pramod Dayal, P.K. Jain, Pratibha Jain, Sushi! Kumar Jain, Punit Jain,
  H.D. Thanvi, Sarad Singhania, A.P. Dhamija, Ram Niwas, S.N. Bhat, Amit
  Pawan, Ugra Shankar Prasad, Manoj Saxena, Rajneesh Kumar Singh, Sameena
  Ahmad, Rahul Shukla, Pravir Choudhary, S. Muralidhar, Kirti Mishra, S.
C Janani, Jana Kalyan Das, Ashok Kumar Upadhyay, E.C. Vidya Sagar, Krishan
  Singh Chauhan, Chand Kiran, Dr. Indra Pratap Singh, K.C. Lamba, Sunil
  Kumar, Gyan Mitra, M.A. Chinnasamy·, Prashant Kumar, Anurag Sharma,
  Joseph Pookkatt, Rohan Thawani, Nikhil Majithia, Pooja Dhar, Sanjay R.
  Hegde, Anil K. Mishra, A. Rohen Singh, V.K. Monga, Rajesh Mahale, Tapesh
D Kumar Singh, Dinesh Chandra Pandey, Rajeev Kumar, Sanjay Jain, Parija V.
  Phatarpekar, V.K. Sidharthan, Naveen R. Nath, Lalit Mohini Bhat, Anitha
  Shenoy, Hetu Arora, Rameshwar Prasad Goyal, A. Subba Rao, Sushma Suri,
  A. Mariarputham, Aruna Mathur (for Arputham, Aruna & Co.) Pradeep Ranjan
  Tiwary, Anirudh Sharma, P. Parmeswaran, D.P. Chaturvedi, N.P.S. Panwar,
  Bina Madhavan, S.U.K. Sagar, Pooja N. Gupta, S. Vallinayagam, (for Mis.
E Lawyer's Knit & Co.), Naveen Kumar Singh, Rajesh Prasad Singh, Rajeev
  Singh, Sunita R. Singh, Sudhanshu Saran, Binu Tamta, Kiran Suri, Himanshu
  Bhutan, Buddy, A. Ranganadhan (for Mis. J.B. Dadachanji & Co.), Sunil
  Kumar Jain, S. Borthakur, Ansar Ahmad Chaudhary, B. Barooah, Tara Chandra
  Sharma, Neelam Sharma, Shreekant N. Terdal, Sandhya Goswami, Gyan
F Mitra, S.K. Kulkarni, M. Gireesh Kumar, Khwairakpam Nobin Singh, Radha
  Shyam Jena, B.V. Balaram Das, P. Venu Gopal, E. Venu Kumar (for K.J.
  John & Co.) Shibashish Misra, Mukesh Kumar Sinha, Arun Kumar Sinha,
  Rakesh Singh (for R.S. Suri) Dr. M.P. Raju, S.P. Sharma, P. George Giri,
  G.S. Chatterjee, Naresh K. Sharma, Lalit.a Kaushik, R.P. Wadhwani, S.K.
  Nandy, Bishwajit Kumar Shahi, Prakash Shrivastava, V. Mohana, S.W.A.
G Qadri, Shishir Pinaki, Amit Anand Tiwari, Saliance Ranjan Feranandes, B.K.
  Prasad, Pinky Anand, Gopal Prasad, Rajesh Pathak, Virula Sinha, Gopal Singh,
  Manish Kumar, Kavita Wadia, Manjita Singh, Harikesh Singh, T.V. George,
  Ravi Prakash Mehrotra, Amit Sharma, KG. Gopala Krishnan, Somiran Sharma,
  Pallau Shishodia, D.N. Mishra, A. Subhashini, K.N. Tripathy, Abishth Kumar,
H Rekha Pandey, Anil Katiyar, Pradeep Misra, Vibha Datta Makhija, Musharraf
                         M. NAGARAJ v. U.0.1. [KAPADIA. J.)                361
Choudhary, Arjun Kunak Verma, Sandeep Singh, C.D. Singh, Kiran, Suvarna            A
and Dhrupad, Kashyap, for the appearing parties and Sishir Kumar
Bandyopadhyay-In-Person.

      The Judgment of the Court was delivered by

      KAPADIA, J. The width and amplitude of the right to equal opportunity        B
in public employment, in the context of reservation, broadly falls for
consideration in these writ petitions under Article 32 of the Constitution.

       FACTS IN WRIT PETITION (CIVIL) N0.61 OF 2002:

      The facts in the above writ petition, which is the lead petition, are as     C
follows.

       Petitioners have invoked Article 32 of the Constitution for a writ in the
nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act,
200 I inserting Article l 6(4A) of the Constitution retrospectively from           D
 17.6.1995 providing reservation in promotion with consequential seniority as
being unconstitutional and violative of the basic structure. According to the
petitioners, the impugned amendment reverses the decisions of this Court in
the case of Union of India and Ors. v. Virpai Singh Chauhan and Ors', Ajit
Singh Januja and Ors. v. State of Punjab and Ors 2., (Ajit Singh-/), Ajit Singh
and others (//) v. State of Punjab and Ors3, Ajit Singh and Ors. (III) v. State    E
of Punjab and Ors4, Indra Sawhney and Ors. v. Union of lndia 5, and M G.
Badappanavar and Anr. v. State of Kamataka and Ors•. Petitioners say that
the Parliament has appropriated the judicial power to itself and has acted as
an appellate authority by reversing the judicial pronouncements of this Court
by the use of power of amendment as done by the impugned amendment and F
is, therefore, violative of the basic structure of the Constitution. The said
amendment is, therefore, constitutionally invalid and is liable to be set aside.
Petitioners have further pleaded that the amendment also seeks to alter the

I.   [1995) 6 sec 684.

2.   (1996) 2 sec 115.
                                                                                   G
3.   (19991 1 sec 209.

4.   r20001 1 sec 430.

5.   [1992) Supp. 3 sec 211.

6.   c200112sec666.
                                                                                   H
    362                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A fundamental right of equality which is part of the basic structure of the
    Constitution. Petitioners say that the equality in the context of Article 16( I)
    connotes "accelerated promotion" so as not to include consequential seniority.
    Petitioners say that by attaching consequential seniority to the accelerated
    promotion, the impugned amendment violates equality in Article 14 read
B   with Article 16(1 ). Petitioners further say that by providing reservation in the
    matter of promotion with consequential seniority, there is impairment of
    efficiency. Petitioners say that in the case of Indra Saw/111ey5 decided on
    16.11.1992, this Court has held that under Article 16(4), reservation to the
    backward classes is permissible only at the time of initial recruitment and not
    in promotion. Petitioners say that contrary to the said judgment delivered on
C   16.11.1992, the Parliament enacted the Constitution (Seventy-Seventh
    Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted,
    which reintroduced reservation in promotion. The Constitution (Seventy-
    Seventh Amendment) Act, 1995 is also challenged by some of the petitioners.
    Petitioners say that if accelerated seniority is given to the roster-point
D   promotees, the consequences would be disastrous. A roster-point promotee in
    the graduate stream would reach the 4th level by the time he attains the age
    of 45 years. At the age of 49, he would reach the highest level and stay there
    for nine years. On the other hand, the general merit promotee would reach
    the 3rd level out of 6 levels at the age of 56 and by the time, he gets
    eligibility to the 4th level, he would have retired from service. Petitioners say
E   that the consequences of the impugned 85th Amendment which provides for
    reservation in promotion, with consequential seniority, would result in reverse
    discrimination in the percentage of representation of the reserved category
    officers in the higher cadre.

          BROAD ISSUES IN WRIT PETITION No.527 OF 2002:
F
          The broad issues that arise for determination in this case relate to the:

            I.   Validity
           2.    Interpretation
G          3.    Implementation

    of (i) the Constitution (Seventy-Seventh Amendment) Act, 1995, the
    Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-
    Second Amendment) Act, 2000, and the Constitution (Eighty-Fifth
H   Amendment) Act, 2001; and, (ii) Action taken in pursuance thereof which
    seek to reverse decisions of the Supreme Court in matters relating to promotion
                     M. NAGARA.I v. U.0.1. [KAPADIA . .I.]                363
and their app!ication with retrospective effect.                                A
      ARGUMENTS:

       The substance of the arguments advanced on behalf of the petitioners
briefly is as follows:
                                                                                B
         Equality is a part of the basic structure and it is impossible to conceive
 of the Constitution without equality as one of its central components. That,
 equality is the basic feature referred to in the preamble to our Constitution.
  Petitioners further submit that Article 16 is integral to equality; that, Article
  16 has to be read with Article 14 and with several Articles in Part-IV.
 According to the petitioners, the Constitution places an important significancec
 on public employment and the rule of equality, inasmuch as, a specific
 guarantee is given under Article 16 protecting equality principles in public
 employment. In this connection, reliance is also placed on the provisions of
 Part XIV to show that the Constitution makers had given importance to
 public employment by making a special provision in the form of Part XIV D
 providing certain rights and protection to the office holders in the services of
 the Union and the States. These provisions are Articles 309, 311, 315, 316,
 317 and 318 to 323. Special provisions have also been made in Article 323-
 A which permits establishment of tribunals as special and adjudicatory
 mechanism. That, Article 335 recognizes the importance of efficiency in E
 administration and the various provisions of the Constitution indicate that
public employment was and is even today of central concern to the
 Constitution. It is urged that equality in matters of public employment cannot
 be considered as merely an abstract concept. Petitioners say that over the
 years, this Court has delivered many decisions laying down that principles of
 'equality' and 'affirmative action' are the pillars of our Constitution. These F
judgments also provide conclusions based on principles which gave meaning
to equality both as an individual right and as group expectations. It is submitted
that clause (4) of Article 16 is an instance of the classification implicit and
permitted by Article 16(1) and that this view of equality did not dilute the
 importance of Article 16( I) or Article 16(2) but merely treated Article 16(4) G
as an instance of the classification; that this relationship of sub-clauses within
Article I6 is not an invitation for reverse discrimination and that, equality of
opportunity cannot be overruled by affirmative action. It is submitted that
"equality in employment" consists of equality of opportunity [Article 16(1)],
anti-discrimination [Article 16(2)], special classification [Article 16(3)],
affirmative action [Article 16(4)] which does not obliterate equality but which H
    364                       SUPREME COURT REPORTS (2006] SUPP. 7 ~.C.R.

A stands for classification within equality], and lastly, efficiency [Article 335].
    As regards the words 'nothing in this article' in Article 16(4), it is urged that
    these words cannot wipe out Article 16( I) and, therefore, they have a limited
    meaning. It is urged that the said words also occur in Articles 16(4A) and
    I6(4B). It is urged that equality in the Constitution conceives the individual
B   right to be treated fairly without discrimination in the matter of equality of
    opportunity. It also conceives of affirmative action in Article 15(4) and Article
    16(4). It enables classification as a basis for enabling preferences and benefits
    for specific beneficiary groups and that neither classification nor affirmative
    action can obliterate the individual right to equal opportunity. Therefore, a
    balance has to be evolved to promote equal opportunities while protecting
C   individual rights. It is urged that as an individual right in Article 16(1 ),
    enforceability is provided for whereas "group expectation" in Article 16(4)
    is not a fundamental right but it is an enabling power which is not coupled
    with duty. It is submitted that if the structural balance of equality in the light
    of the efficiency is disturbed and if the individual right is encroached upon
D   by excessive support for group expectations, it would amount to reverse
    discrimination.

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

G         On the question of balancing and structuring of equality in employment,
    it is urged that quotas are subject to quantitative limits and qualitative
    exclusions; that, there is a distinction between quota limits (example 15% to
    SCs) and ceiling-limits/maximum permissible reservation limits (example 50%)
    which comes under the category of quantitative limits. However, quotas are
    also subject to qualitative exclusions like creamy layer. It is urged that in
H
    7.    [1981] l SCR 206.
                        M. NAGARA.I v. U.O.l. [KAPADIA, .1. J                365
 numerous j1.1dgments and in particular in Indra Sawhney;, M. C.                     A
 Badaappanavar6, Ajit Singh (11) 3, the equality of cpportunity in public
 employment is clarified in order to structure and balance Articles I 6(1) and
 16(4).

        In answer to the respondents' contentions that Articles 16( 4A) and
 16(48) and the changes to Article 335 are merely enabling provisions and            B
 that in a given case ifthe exercise undertaken by the appropriate Government
 is found to be arbitrary, this Court will set it right, it is contended that
 ingressing the basic structure is a per se violation of the Constitution. In this
connection, it is alleged that the basis for impugned amendments is to overrule
judicial decisions based on holistic interpretation of the Constitution and its      C
 basic values, concepts and structure. In this connection, it is urged that the
77th Amendment introducing Article 16(4A) has the effect of nullifying the
decision in the case of Indra Sawhney5; that, the 81st Amendment introducing
 Article 16(48) has been brought in to nullify the effect of the decision in
 R. K. Sabharwal & Ors. v. State of Punjab and Ors', in which it has been held
that carry forward vacancies cannot be filled exceeding 50% of the posts.            D
Petitioners say that similarly the Constitution (Eighty-Second Amendment)
Act, 2000 introducing the proviso to Article 335 has been introduced to
nullify the effect of the decision in the case of Indra Sawhney5 and a host of
other cases, which emphasize the importance of maintaining efficiency in
administration. It is submitted that, the 85th Amendment adding the words            E
'with consequential seniority' in Article 16(4A) has been made to nullify the
decision in Ajit Singh (11)3.

       Accordingly it is urged that the impugned amendments are violative of
the basic structure and the fundamental values of the Constitution articulated
in the preamble and encapsulated in Articles 14, 16 and 19; that, they violate F
the fundamental postulates of equality, justice, rule of law and secularism as
enshrined in the Constitution and that they violate the fundamental role of the
Supreme Court as interpreter of the Constitution. That, the impugned
amendments create an untrammelled, unrestrained and unconstitutional regime
of reservations which destroys the judicial power and which undermines the
efficacy of judicial review which is an integral part of rule of law. It is G
argued that, Articles 14 and 16 have to be read with Article 335 as originally
promulgated; that, the impugned amendments invade the twin principles of
efficiency, merit and the morale of public services and the foundation of
good governance. It is urged vehemently that the impugned amendments
8.   [199512 sec 745.                                                                H
    366                        SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A open the floodgates of disunity, disharmony and disintegration.
             On behalf of the respondents, following arguments were advanced. The
      power of amendment under Article 368 is a 'constituent' power. and not a
      'constituted power'; that, that there are no implied limitations on the constituent
      power under Article 368; that, the power under Article 368 has to keep the
B Constitution in repair as and when it becomes necessary and thereby protect
      and preserve the basic structure. In such process of amendment, if it destroys
      the basic feature of the Constitution, the amendment will be unconstitutional.
      Constitution, according to the respondents, is not merely what it says. It is
      what the last interpretation of the relevant provision of the Constitution given
C by the Supreme Court which prevails as a law. The interpretation placed on
      the Constitution by the Court becomes part of the Constitution and, therefore,
      it is open to amendment under Article 368. An interpretation placed by the
      Court on any provision of the Constitution gets in built in the provisions
      interpreted. Such articles are capable of amendment under Article 368. Such
      change of the law so declared by the Supreme Court will not merely for that
D reason alone violate the basic structure of the Constitution or amount to
      usurpation of judicial power. This is how Constitution becomes dynamic.
      Law has to change. It requires amendments to the Constitution according to
      the needs of time and needs of society. It is an ongoing process of judicial
      and constituent powers, both contributing to change of law with the final say
E in the judiciary to pronounce on the validity of such change of law effected
      by the constituent power by examining whether such amendments violate the
      basic structure of the Constitution. On every occasion when a constitutional
      matter comes before the Court, the meaning of the provisions of the
      Constitution will call for interpretation, but every interpretation of the Article
 ..:. does not become a basic feature of the Constitution. That, there are no implied
F limitations on the power of the Parliament under Article 368 when it seeks
      to amend the Constitution. However, an amendment will be invalid, if it
      interferes with or undermines the basic structure. The validity of the
      amendment is not to be decided on the touchstone of Article 13 but only on
      the basis of violation of the basic features of the Constitution.
G         It is further submitted that amendments for giving effect to the directive
    principles cannot offend the basic structure of the Constitution. On the contrary,
    the amendments which may abrogate individual rights but which promote
    Constitutional ideal of 'justice, social, economic and political' and the ideal
    of 'equality of status' are not liable to be struck down under Article 14 or
H   Article 16(1) and consequently, such amendments cannot violate the basic
                          M. NAGARAJ '" U.0.1. [KAPADIA. J.)                     367
    structure of the Constitution. That, the amendments to the Constitution which A
    are aimed at removing social and economic disparities cannot offend the
    basic structure. It is urged that the concepts flowing from the preamble to the
    Constitution constitute the basic structure; that. basic structure is not found
    in a particular Article of the Constitution; and except the fundamental right
    to live in Article 21 read with Article 14, no particular Article in Part-Ill is
    a basic feature. Therefore, it is submitted that equality mentioned in Articles B
    14 and 16 is not to be equated to the equality which is a basic feature of the
    Constitution.

          It is submitted that the principle of balancing of rights of the general
    category and reserved category in the context of Article 16 has no nexus to          C
    the basic feature of the Constitution. It is submitted that basic feature consists


-   of constitutional axioms like constitutional supremacy, and democratic form
    of government, secularism, separation of powers etc.

           Respondents contend that Article 16(4) is a part of the Constitution as
    originally enacted. The exercise of the power by the delegate under Article D
     16(4) will override Article 16(1). It is not by virtue of the power of the
    delegate, but it is by virtue of constituent power itself having authorized such
    exercise by the delegate under Article 16(4 ), that article 16( I) shall stand
    overruled. The only limitation on the power of delegate is that fr should act
    within four corners of Article 16(4), namely, backward classes, which in the
    opinion of the State are not adequately represented in public employment. If E
    this condition precedent is satisfied, a reservation will override Article 16(1)
    on account of the words 'nothing in this Article shall prevent the State'. It
    is urged that jurisprudence relating to public services do not constitute basic
    feature of the Constitution. That, the right to consideration for promotion in
    service matters is not a basic feature.                                          F
          It is lastly submitted that Articles 16(4A) and 16(48) are only enabling
    provisions; that, the constitutionality of the enabling power in Articles 16(4A)
    and 16(48) is not to be tested with reference to the exercise of the power or
    manner of exercise of such power and that the impugned amendments have
    maintained the structure of Articles 16( I) to 16(4) intact. In this connection, G
    it is submitted that the impugned amendments have retained reservations at
    the recruitment level inconformity with the judgment in Indra Sawhney5,
    which has confined Article 16(4) only to initial ~ppointments; that Article
    16(4A) is a special provision which provides for reservation for promotion
    only to SCs and STs. It is urged that if SCs/STs and OBCs are lumped H
    368                     SUPREME COURT REPORTS (2006) SUPP. 7 S.C.R.

A together, OBCs will take away all the vacancies and, therefore. Article 16(4A)
  has been inserted as a special provision. That, in Indra Sawhney5, the focus
  was on Backward Classes and not on SCs/STs and, therefore, there was no
  balancing of rights of three groups, namely, general category, other backward
  classes and scheduled castes/scheduled tribes. It is, therefore, contended that
  under Article 16(4A), reservation is limited. It is notto the extent of50% but
B it is restricted only to SCs and STs, and, therefore, the "risk element" pointed
  out ii Indra Sawhney5 stands reduced. To carve out SCs/STs and make a
  separate classification is not only constitutional, but it is a constitutional
  obligation to do so under Article 46. That, Article 16(4) is an overriding
  provision over Article 16(1) and if Article 16(4) cannot be said to constitute
C reverse discrimination then Article 16(4A) also cannot constitute reverse
  discrimination.

          It is next submitted that this Court has taken care of the interests of the
  general category by placing a ceiling on filling-up of vacancies only to a
  maximum of 50% for reservation. The said 50% permitted by this Court can
                                                                                        -
D be reserved in such manner as the appropriate Government may deem fit. It
  is urged that if it is valid to make reservation at higher levels by direct
  recruitment, it can also be done for promotion after taking into account the
  mandate of Article 335.

           It is next submitted that the amendment made by Article 16(48) makes
E   an exception to 50% ceiling-limit imposed by Indra Sawhney5, by providing
    that the vacancies of previous years will not be considered with the current
    year's vacancies. In this connection, it was urged that Article 16(48) applies
    to reservations under Article 16(4) and, therefore, if reservation is found to
    be within reasonable limits, the Court would uphold such reservations
F   depending upon the facts of the case and if reservation suffers from
    excessiveness, it may be invalidated. Therefore, the enabling power under
    Article 16(48) cannot be rendered invalid.

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

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

H         The key issue, which arises for determination in this case is whether by
                             M. NAGARAJ v. U.0.1. (KAPADIA, J.]                    369
        virtue of the impugned constitutional amendments, the power of the Parliament      A
        is so enlarged so as to obliterate any or all of the constitutional limitations
        and requirements?

           STANDARDS OF JUDICIAL REVIEW OF CONSTITUTIONAL
        AMENDMENTS:
                                                                                           B
              Constitution is not an ephennal legal document embodying a set of
       legal rules for the passing hour. It sets out principles for an expanding future
       and is intended to endure for ages to come and consequently to be adapted
-      to the various crisis of human affairs. Therefore, a purposive rather than a
       strict literal approach to the interpretation should be adopted. A Constitutional   C
       provision must be construed not in a narrow and constricted sense but in a
       wide and liberal manner so as to anticipate and take account of changing
....   conditions and purposes so that constitutional provision does not get fossilized
       but remains flexible enough to meet the newly emerging problems and
       challenges.
                                                                                           D
              This principle of interpretation is particularly apposite to the
        interpretation of fundamental rights. It is a fallacy to regard fundamental
       rights as a gift from the State to its citizens. Individuals possess basic human
       rights independently of any constitution by reason of basic fact that they are
       members of the human race. These fundamental rights are important as they
•      possess intrinsic value. Part-III of the Constitution does not confer fundamental E
       rights. It confinns their existence and gives them protection. Its purpose is to
       withdraw certain subjects from the area of political controversy to place them
       beyond the reach of majorities and officials and to establish them as legal
       principles to be applied by the courts. Every right has a content. Every
       foundational value is put in Part-III as fundamental right as it has intrinsic F
       value. The converse does not apply. A right becomes a fundamental right
       because it has foundational value. Apart from the principles, one has also to
       see the structure of the Article in which the fundamental value is incorporated.
       Fundamental right is a limitation on the power of the State. A Constitution,
       and in particular that of it which protects and which entrenches fundamental
       rights and freedoms to which all persons in the State are to be entitled is to G
       be given a generous and purposive construction. In the case of Sakal Papers
       (P) Ltd. & Ors. v. Union of India and Ors.,' this Court has held that while
       considering the nature and content of fundamental rights, the Court must not
       be too astute to interpret the language in a literal sense so as to whittle them
       9.   AIR (1962) SC 305.                                                             H
    370                        SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A down. The Court must interpret the Constitution in a manner which would
    enable the citizens to enjoy the rights guaranteed by it in the fullest measure.
    An instance of literal and narrow interpretation of a vital fundamental right
    in the Indian Constitution is the early decision of the Supreme Court in the
    case of A.K. Gopalan v. State of Madras' 0• Article 21 of the Constitution
B   provides that no person shall be deprived of his life and personal liberty
    except according to procedure established by law. The Supreme Court by a
    majority held that 'procedure established by law' means any procedure
    established by law made by the Parliament or the legislatures of the State.
    The Supreme Court refused to infuse the procedure with principles of natural
    justice. It concentrated solely upon the existence of enacted law. After three
C   decades, the Supreme Court overruled its previous decision in A.K. Gopalan 111
    and held in its landmark judgment in Maneka Gandhi v. Union of India and
    Anr" that the procedure contemplated by Article 21 must answer the test of
    reasonableness. The Court further held that the procedure should also be in
    conformity with the principles of natural justice. This example is given to
    demonstrate an instance of expansive interpretation of a fundamental right.
D   The expression 'life' in Article 21 does not connote merely physical or animal
    existence. The right to life includes right to live with human dignity. This
    Court has in numerous cases deduced fundamental features which are not
    specifically mentioned in Part-Ill on the principle that certain unarticulated
    rights are implicit in the enumerated guarantees. For example, freedom of
E   information has been held to be implicit in the guarantee of freedom of
                                                                                       •
    speech and expression. In India, till recently, there is no legislation securing
    freedom of information. However, this Court by a liberal interpretation deduced
    the right to know and right to access information on the reasoning that the
    concept of an open government is the direct result from the right to know
    which is implicit in the right of free speech and expression guaranteed under
F   Article 19(\)(a).

           The important point to be noted is that the content of a right is defined
    by the Courts. The final word on the content of the right is of this Court.
    Therefore, constitutional adjudication plays a very important role in this
G   exercise. The nature of constitutional adjudication has been a subject matter
    of several debates. At one extreme, it is argued that judicial review of
    legislation shou Id be confined to the language of the constitution and its
    original intent. At the other end, non-interpretivism asserts that the way and

    10. AIR (1950) SC 27.

H   II.   AIR (1978) SC 597.
                            M. NAGARA.11'. U.0.1. [KAPADIA. .I.]               371
    indeterminate nature of the constitutional text perm its a variety of standards   A
    and values. Others claim that the purpose of a Bill of Rights is to protect the
    process of decision making.

          The question which arises before us is regarding nature of the standards
    of judicial review required lo be applied in judging the validity of the
    constitutional amendments in the context of the doctrine of basic structure.      B
    The concept of a basic structure giving coherence and durability to a
    Constitution has a certain intrinsic force. This doctrine has essentially
    developed from the German Constitution. This development is the emergence
    of the constitutional principles in their own right. It is not based on literal
    wordings.
                                                                                      c
            In S.R. Bommai & Ors. etc. v. Union of India & Ors etc. 12, the basic
     structure concept was resorted to although no question of constitutional
     amendment was involved in that case. But this Court held that policies of a
     State Government directed against an element of the basic structure of the
     Constitution would be a valid ground for the exercise of the central power D
     under Article 356, that is, imposition of the President's rule. In that case,
    secularism was held to be an essential feature of the Constitution and part of
     its basic structure. A State Government may be dismissed not because it
    violates any particular provision of the Constitution but because it acts against
    a vital principle enacting and giving coherence to a number of particular

-   provisions, example: Articles 14, 15 and 25. In S.R. Bommai 12, the Court E
    clearly based its conclusion not so much on violation of particular constitutional
    provision but on this generalized ground i.e. evidence of a pattern of action
    directed against the principle of secularism. Therefore, it is important to note
    that the recognition of a basic structure in the context of amendment provides
    an insight that there are, beyond the words cf particular provisions, systematic p
    principles underlying and connecting the provisions of the Constitution. These
    principles give coherence to the Constitution and make it an organic whole.
    These principles are part of Constitutional law even if they are not expressly
    stated in the form of rules. An instance is the principle of reasonableness
    which connects Articles 14, 19 and 21. Some of these principles may be so
    important and fundamental, as to qualify as 'essential features' or part of the G
    'basic structure' of the Constitution, that is to say, they are not open to
    amendment. However, it is only by linking provisions to such overarching
    principles that one would be able to distinguish essential from less essential
    features of the Constitution.
    12.   AIR (1994) SC 1918.                                                         H
        372                      SUPREME COURT REPORTS [2006] 3UPP. 7 S.C.R.

    A          The point which is important to be noted is that principles of federalism,
        secularism, reasonableness and socialism etc. are beyond the words of a
        particular provision. They are systematic and structural principles underlying
        and connecting various provisions of the Constitution. They give coherence
        to the Constitution. They make the Constitution an organic whole. They are
        part of constitutional law even if they are not expressly stated in the form of
    B   rules.

               For a constitutional principle to qualify as an essential feature, it must
        be established that the said principle is a part of the constitutional law binding
        on the legislature. Only thereafter, the second step is to be taken, namely,
    c   whether the principle is so fundamental as to bind even the amending power
        of the Parliament, i.e. to form a part of the basic structure. The basic structure
        concept accordingly limits the amending power of the Parliament. To sum
        up: in order to qualify as an essential feature, a principle is to be first
        established as part of the constitutional law and as such binding on the
        legislature. Only then, it can be examined whether it is so fundamental as to
i   D   bind even the amending power of the Parliament i.e. to form part of the basic
•       structure of the Constitution. This is the standard of judicial review of
        constitutional amendments in the context of the doctrine of basic structure.

            As stated above, the doctrine of basic structure has essentially emanated
      from the German Constitution. Therefore, we may have a look at common
    E constitutional provisions under German Law which deal with rights, such as,
      freedom of press or religion which are not mere values, they are justiciable
      and capable of interpretation. The values impose a positive duty on the State
                                                                                             -
      to ensure their attainment as far as practicable. The rights, liberties and
      freedoms of the individual are not only to be protected against the State, they
    F should  be facilitated by it. They are to be infonned. Overarching and informing
      of these rights and values is the principle of human dignity under the German
      basic law. Similarly, secularism is the principle which is the overarching
      principle of several rights and values under the Indian Constitution. Therefore,
      axioms like secularism, democracy, reasonableness, social justice etc. are
      overarching principles which provide linking factor for principle of
    G fundamental rights like Articles 14, 19 and 21. These principles are beyond
      the amending power of the Parliament. They pervade all enacted laws and
      they stand at the pinnacle of the hierarchy of constitutional values. For example,
      under the Gennan Constitutional Law, human dignity under Article I is
      inviolable. It is the duty of the State not only to protect the human dignity
    H but to facilitate it by taking positive steps in that direction. No exact definition
                                 M. NAGARAJ v. U.O.I. (KAPADIA . .I.]              373
        of human dignity exists. It refers to the intrinsic value of every human being,    A
        which is to be respected. It cannot be taken away. It cannot give. It simply
        is. Every human being has dignity by virtue of his existence. The Constitutional
        Courts in Germany, therefore, see human dignity as a fundamental principle

-       within the system of the basic rights. This is how the doctrine of basic
        structure stands evolved under the German Constitution and by interpretation
        given to the concept by the Constitutional Courts.                                 B
              Under the Indian Constitution, the word 'federalism' does not exist in
       the preamble. However, its principle (not in the strict sense as in U.S.A.) is
       delineated over various provisions of the Constitution. In particular, one finds
       this concept in separation of powers under Articles 245 and 246 read with the       C
       three lists in the Seventh Schedule to the Constitution.

               To conclude, the theory of basic structure is based on the concept of
....    constitutional identity. The basic structure jurisprudence is a pre-occupation
        with constitutional identity. In Kesavananda Bharati Sripadagalvaru and
        Ors. v. State of Kera/a and Anr 13 , it has been observed that 'one cannot D
         legally use the constitution to destroy itself. It is further observed 'the
·•      personality of the constitution must remain unchanged'. Therefore, this Court
        in Kesavananda Bharati13, while propounding the theory of basic structure,
        has relied upon the doctrine of constitutional identity. The word 'amendment'
        postulates that the old constitution survives without loss of its identity despite
        the change and it continues even though it has been subjected to alteration. E
        This is the constant theme of the opinions in the majority decision in
        Kesavananda Bharati 13• To destroy its identity is to abrogate the basic structure
        of the Constitution. This is the principle of constitutional sovereignty.
        Secularism in India has acted as a balance between socio-economic reforms
        which limits religious options and communal developments. The main object p
       ,behind the theory of the constitutional identity is continuity and within that
        continuity of identity, changes are admissible depending upon the situation
        and circumstances of the day.

              Lastly, constitutionalism is about limits and aspirations. According to
       Justice Brennan, interpretation of the Constitution as a written text is concerned G
       with aspirations and fundamental principles. In his Article titled 'Challenge
       to the Living Constitution' by Herman Belz, the author says that the
       Constitution embodies aspiration to social justice, brotherhood and human
       dignity. It is a text which contains fundamental principles. Fidelity to the text
       13.   [1973] 4 sec 22s.                                                             H
    374                      SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A qua fundamental principles did not limit judicial decision making. The tradition
    of the written constitutionalism makes it possible to apply concepts and
    doctrines not recoverable under the doctrine of unwritten living constitution.
    To conclude, as observed by Chandrachud, CJ, in Minerva Mills Ltd. 1, 'the


B
    Constitution is a precious heritage and. therefore. you cannot destroy its
    identity'.                                                                        -
          Constitutional adjudication is like no other decision-making. There is a
    moral dimension to every major constitutional case; the language of the text
    is not necessarily a controlling factor. Our constitution works because of its
    generalities, and because of the good sense of the Judges when interpreting
C   it. It is that informed freedom of action of the Judges that helps to preserve
    and protect our basic document of governance.

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

D        At the outset, it may be noted that equality, rule of law, judicial review
  and separation of powers are distinct concepts. They have to be treated
  separately, though they are intimately connected. There can be no rule of law
  if there is no equality before the law; and rule of law and equality before the
  law would be empty words if their violation was not a matter of judicial
  scrutiny or judicial review and judicial relief and all these features would lose
E their significance if judicial, executive and legislative functions were united
  in only one authority, whose dictates had the force of law. The rule of law
  and equality before the law are designed to secure among other things justice
  both social and economic. Secondly, a federal Constitution with its distribution
  of legislative powers between Parliament and State legislatures involves a
  limitation on legislative powers and this requires an authority other than
F Parliament and State Legislatures to ascertain whether the limits are
                                                                                          1~
  transgressed and to prevent such violation and transgression. As far back as            I


  1872, Lord Selbourne said that the duty to decide whether the limits are
  transgressed must be discharged by courts of justice. Judicial review of
  legislation enacted by the Parliament within limited powers under the controlled
G constitution which we have, has been a feature of our law and this is on the
  ground that any law passed by a legislature with limited powers is ultra vires
  if the limits are transgressed. The framers conferred on the Supreme Court
  the power to issue writs for the speedy enforcement of those rights and made
  the right to approach the Supreme Court for such enforcement itself a
H fundamental right. Thus, judicial review is an essential feature of our
                                                                                      )
                       M. NAGARAJ v. U.0.1. [KAPADIA . .1.J                375

constitution because it is necessary to give effect to the distribution of        A
legislative power between Parliament and State legislatures, and is also
necessary to give practicable content to the objectives of the Constitution
embodied in Part-Ill and in several other Articles of our Constitution.

       In the case of Minerva Mills· Chandrachud, C.J., speaking for the
 majority, observed that Articles 14 and 19 do not confer any fanciful rights. B
 They confer rights which are elementary for the proper and effective
functioning of democracy. They are universally regarded by the universal
 Declaration of Human Rights. If Articles 14 and 19 are put out of operation,
Article 32 will be rendered nugatory. In the said judgment, the majority took
the view that the principles enumerated in Part-IV are not the proclaimed C
monopoly of democracies alone. They are common to all polities, democratic
or authoritarian. Every State is goal-oriented and every State claims to strive
for securing the welfare of its people. The distinction between different forms
of Government consists in the fact that a real democracy will endeavour to
achieve its objectives through the discipline of fundamental freedoms like
Articles 14 and 19. Without these freedoms, democracy is impossible. lf D
Article 14 is withdrawn, the political pressures exercised by numerically
large groups can tear the country apart by leading it to the legislation to pick
and choose favoured areas and favourite classes for preferential treatment.

       From these observations, which are binding on us, the principle which
emerges is that "equality" is the essence of democracy and, accordingly a E
basic feature of the Constitution. This test is very important. Free and fair
elections per se may not constitute a basic feature of the Constitution. On
their own, they do not constitute basic feature. However, free and fair election
as a part of representative democracy is an essential feature as held in the
Indira Nehru Gandhi v. Raj Narain 14 (Election case). Similarly, federalism is F
an important principle of constitutional law. The word 'federalism' is not in
the preamble. However, as stated above, its features are delineated over various
provisions of the Constitution like Articles 245, 246 and 30 I and the three
lists in the seventh schedule to the Constitution.

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

      The theory of basic structure is based on the principle that a change in
a thing does not involve its destruction and destruction of a thing is a matter

14. (1976] 2 SCR 347                                                              H
    376                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A of substance and not of form. Therefore, one has to apply the test of
    overarching principle to be gathered from the scheme and the placement and
    the structure of an Article in the Constitution. For example, the placement of
    Article 14 in the equality code; the placement of Article 19 in the freedom
    code; the placement of Article 32 in the code giving access to the Supreme
B   Court. Therefore, the theory of basic structure is the only theory by which the
    validity of impugned amendments to the Constitution is to be judged.

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

C         Once it is held that fundamental rights could be abridged but not
    destroyed and once it is further held that several features of the Constitution
    cannot be destroyed, the concept of 'express limitation' on the amending
    power loses its force for a precise formulation of the basic feature of the
    Constitution and for the courts to pronounce on the validity of a constitutional
    amendment.
D
          A working test has been evolved by Chandrachud, J. in the Election
    Casel4, in which the learned Judge has rightly enunciated, with respect, that
    "for determining whether a particular feature of the Constitution is a part of
    its basic structure, one has per force to examine in each individual case the
    place of the particular feature in the scheme of the Constitution, its object and
E   purpose and the consequences of its denial on the integrity of the Constitution
    as a fundamental instrument of the country's governance."

          Applying the above test to the facts of the present case, it is relevant
    to note that the concept of 'equality' like the concept of 'representative
F   democracy' or 'secularism' is delineated over various Articles. Basically,
    Part-III of the Constitution consists of the equality code, the freedom code
    and the right to move the courts. It is true that equality has several facets.
    However, each case has to be seen in the context of the placement of an
    Article which embodies the foundational value of equality.

G         CONCEPT OF RESERVATION:

        Reservation as a concept is very wide. Different people understand
  reservation to mean different things. One view of reservation as a generic
  concept is that reservation is anti-poverty measure. There is a different view _
  which says that reservation is merely providing a right of access and that it
H is not a right to redressal. Similarly, affirmative actjon as a generic concept
                      M. NAGARA.I v. U.0.1. [KAPADIA, J.]                   377
has a different connotation. Some say that reservation is not a part of             A
affirmative action whereas others say that it is a part of affirmative action.

      Our Constitution has, however, incorporated the word 'reservation' in
Article 16(4) which word is not there in Article 15(4). Therefore, the word
'reservation' as a subject of Article 16(4) is different from the word
'reservation' as a general concept.                                                 B

       Applying the above test, we have to consider the word 'reservation' in
the context of Article 16(4) and it is in that context that Article 335 of the
Constitution which provides for relaxation of the standards of evaluation has
to be seen. We have to go by what the Constitution framers intended originally C
and not by general concepts or principles. Therefore, schematic interpretation
of the Constitution has to be applied and this is the basis of the working test
evolved by Chandrachud, J. in the Election Case 14

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

        India is constituted into a sovereign, democratic republic to secure to
all its citizens, fraternity assuring the dignity of the individual and the unity
of the nation. The sovereign, democratic republic exists to promote fraternity
and the dignity of the individual citizen and to secure to the citizens certain     E
rights. This is because the objectives of the State can be realized only in and
through the individuals. Therefore, rights conferred on citizens and non-
citizens are not merely individual or personal rights. They have a large social
and political content, because the objectives of the Constitution cannot be
otherwise realized. Fundamental rights represent the claims of the individual
and the restrictions thereon are the claims of the society. Article 38 in Part-     F
IV is the only Article which refers to justice, social, economic and political.
However, the concept of justice is not limited only to directive principles.
There can be no justice without equality. Article 14 guarantees the fundamental
right to equality before the law on all persons. Great social injustice resulted
from treating sections of the Hindu community as 'untouchable' and, therefore,      G
Article I 7 abolished untouchability and Article 25 permitted the State to
make any law providing for throwing open all public Hindu religious temples
to untouchables. Therefore, provisions of Part-III also provide for political
and social justice.

      This discussion is important because in the present case, we are              H
    378                      SUPREME COURT REPORTS J2006] SUPP. 7 S.C.R.

A concerned with reservation. Balancing a fundamental right to property vis-a-
    vis Articles 39(b) and 39(c) as in Kesavananda Bharali 13 and Minerva Milk
    cannot be equated with the facts of the present case. In the present case. we
    are concerned with the right of an individual of equal opportunity on one
    hand and preferential treatment to an individual belonging to a backward
B   class in order to bring about equal level-playing field in the matter of public
    employment. Therefore, in the present case. we are concerned with conflicting
    claims within the concept of 'justice. social, economic and political'. which
    concept as stated above exists both in Part-Ill and Part-IV of the Constitution.
    Public employment is a scarce commodity in economic terms. As the supply
    is scarce, demand is chasing that commodity. This is reality of life. The
C   concept of 'public employment' unlike right to property is socialistic and,
    therefore, falls within the preamble to the Constitution which states that WE,
    THE PEOPLE OF INDIA, having solemnly resolved to constitute India into
    a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.
    Similarly, the pn~amble mentions the objective to be achieved. namely, justice,
    social, economic and political. Therefore, the concept of 'equality of
D   opportunity' in public employment concerns an individual, whether that
    individual belongs to general category or backward class. The conflicting
    claim of individual right under Article I6( I) and the preferential treatment
    given to a backward class has to be balanced. Both the claims have a particular
    object to be achieved. The question is of optimization of these conflicting
E   interests and claims.

          EQUITY, JUSTICE AND MERIT:

           The above three concepts are independent variable concepts. The
    application of these concepts in public employment depends upon quantifiable
p   data in each case. Equality in law is different from equality in fact. When we
    construe Article 16(4), it is equality in fact which plays the dominant role.
    Backward classes seek justice. General class in public employment seeks
    equity. The difficulty comes in when the third variable comes in, namely,
    efficiency in service. In the issue of reservation, we are being asked to find
    a stable equilibrium between justice to the backwards, equity for the forwards
G   and efficiency for the entire system. Equity and justice in the above context
    are hard-concepts. However, if you add efficiency to equity and justice, the
    problem arises in the context of the reservation. This problem has .to be
    examined, therefore, on the facts of each case. Therefore, Article 16(4) has
    to be construed in the light of Article 335 of the Constitution. Inadequacy in
H   representation and backwardness of Scheduled Caste and Scheduled Tribes
                     M. NAGARAJ v. U.0.1. [KAPADIA • .I.I                 379

are circumstances which enable the State Government to act under Article A
16(4) of the Constitution. However, as held by this Court the limitations O!l
the discretion of the government in the matter of reservation under Article
16(4) as well as A11icle 16(4A) come in the form of Article 335 of the
Constitution.

      Merit is not a fixed absolute concept. Amartya Sen, in a book,             B
Meritocracy and Economic lnequali~v. edited by Kenneth Arrow, points out
that merit is a dependent idea and its meaning depends on how a society
defines a desirable act. An act of merit in one society may not be the same
in another. The difficulty is that there is no natural order of 'merit' independent
of our value system. The content of merit is context-specific. It derives its C
meaning from particular conditions and purposes. The impact of any
affirmative action policy on 'merit' depends on how that policy is designed.
Unfortunately, in the present case, the debate before us on this point has
taken place in an empirical vacuum. The basic presumption, however, remains
that it is the State who is in the best position to define and measure merit in
whatever ways they consider it to be relevant to public employment because D
ultimately it has to bear the costs arising from errors in defining and measuring
merit. Similarly, the concept of "extent of reservation" is not an absolute
concept and like merit it is context-specific.

      The point which we are emphasizing is that ultimately the present
controversy is regarding the exercise of the power by the State Government E
depending upon the fact-situation in each case. Therefore, 'vesting of the
power' by an enabling provision may be constitutionally valid and yet 'exercise
of the power' by the State in a given case may be arbitrary, particularly, if
the State fails to identify and measure backwardness and inadequacy keeping
in mind the efficiency of service as required under Article 335.                p
      RESERVATION AND AFFIRMATIVE ACTION:

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

      It is the equality "in fact" which has to be decided looking at the H
    380                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A ground reality. Balancing comes in where the question concerns the extent of
    reservation. If the extent of reservation goes beyond cut-off point then it
    results in reverse discrimination. Anti-discrimination legislation has a tendency
    of pushing towards de facto reservation. Therefore, a numerical benchmark
    is the surest immunity against charges of discrimination.

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

          EXTENT OF RESERVATION:
E
          Social justice is one of the sub-divisions of the concept of justice. It is
    concerned with the distribution of benefits and burdens throughout a society
    as it results from social institutions property systems, public organisations
    etc.
F         The problem is what should be the basis of distribution? Writers like
    Raphael, Mill and Hume define 'social justice' in terms of rights. Other
    writers like Hayek and Spencer define 'social justice' in terms of deserts.
    Socialist writers define 'social justice' in terms of need. Therefore, there are
    three criteria to judge the basis of distribution, namely, rights, deserts or
G   need. These three criteria can be put under two concepts of equality "fonnal
    equality" and "proportional equality". "Formal equality" means that law treats
    everyone equal and does not favour anyone either because he belongs to the
    advantaged section of the society or to the disadvantaged section of the
    society. Concept of "proportional equality" expects the States to take
    affirmative action in favour of disadvantaged sections of the society within
H
                            M. NAGARAJ v. U.0.1. [KAPADIA, .I.]                   381
      the framework of liberal democracy.                                                 A
            Under the Indian Constitution, while basic liberties are guaranteed and
      individual initiative is encouraged, the State has got the role of ensuring that
      no class prospers at the cost of other class and no person suffers because of
      drawbacks which is not his but social.
                                                                                          B
            The question of extent of reservation involves two questions:

              1.   Whether there is any upper limit beyond which reservation is not
                   permissible?
             2.    Whether there is any limit to which seats can be reserved in a         C
                   particular year; in other words the issue is whether the percentage
                   limit applies only on the total number of posts in the cadre or to
                   the percentage of posts advertised every year as well?

             The question of extent of reservation is closely linked to the issue
      whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an       D
      application of Article 16(1). If Article 16(4) is an exception to Article 16(1)
      then it needs to be given a limited application so as not to eclipse the general
      rule in Article 16(1). But if Article 16(4) is taken as an application of Article
      16(1) then the two articles have to be harmonized keeping in view the interests
      of certain sections of the society as against the interest of the individual
      citizens of the society.                                                            E
            Maximum limit of reservation possible

             Word of caution against excess reservation was first pointed out in The
      General Manager, Southern Railway and Anr. v. Rangachari 15
      Gajendragadkar, J giving the majority judgment said that reservation under F
      Article 16(4) is intended merely to give adequate representation to backward
      communities. It cannot be used for creating monopolies or for unduly or
      illegitimately disturbing the legitimate interests of other employees. A
      reasonable balance must be struck between the claims of backward classes
      and claims of other employees as well as the requirement of efficiency of G
      administration.

,..        However, the question of extent of reservation was not directly involved
      in RangacharF 5. It was directly involved in MR. Balaji & Ors. v. The State

      15. A!R(I962)SC36                                                                   H
    382                         SUPREME COURT REPORTS 120061 SUPP. 7 S.C.R.

A of' Mysore & Ors. 16 with reference to Article 15(4). In this C'ISe, 60%
    reservations under Article 15( 4) was struck down as excessive and
    unconstitutional. Gajendragadkar, J. observed that special provision should
    be less than 50 per cent, how much less would depend on the relevant
    prevailing circumstances of each case.

B        But in State of Kera/a and Anr. v. N.M. Thomas and Ors., 17 Krishna
  Iyer, J. expressed his concurrence to the views of Fazal Ali, J. who said that
  although reservation cannot be so excessive as to destroy the principle of
  equality of opportunity under clause (I) of Article 16, yet it should be noted
  that the Constitution itself does not put any bar on the power of the Government
C under Article 16(4). If a State has 80% population which is backward then
  it would be meaningless to say that reservation should not cross 50%.

         However, in Indra Sawhney5 the majority held that the rule of 50% laid
    down in Balaji" was a binding rule and not a mere rule of prudence.

D         Giving the judgment of the Court in Indra Sawhne,v5, Reddy, J 18 • stated
    that Article 16(4) speaks of adequate representation not proportionate
    representation although proportion of population of backward classes to the
    total population would certainly be relevant. He fiirther pointed out that
    Article 16(4) which protects interests of certain sections of society has to be
    balanced against Article 16(1) which protects the interests of every citizen of
E   the entire society. They should be harmonised because they are restatements
    of principle of equality under Article 14. (emphasis added)

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

F         In Indra Sawhney5 Reddy, J. noted that reservation under Article 16(4)
  do not operate on communal ground. Therefore if a member from reserved
  category gets selected in general category, his selection will not be counted
  against the quota limit provided to his class. Similarly, in R.K. Sabharwaf''
  the Supreme Court held that while general category candidates are not entitled
G to fill the reserved posts; reserved category candidates are entitled to compete
  for the general category posts. The fact that considerable number of members
  of backward class have been appointed/promoted against general seats in the
     16.   AIR (1963) SC 649.

     11. [197612 sec 310.

I-I 18. Speaking on behalf of Kania, CJ. and Venkatachaliah and Ahmadi, JJ. as they them were.
                           M. NAGARA.I r. U.0.1. [KAPADIA . .I.]          383
State services may be a relevant factor for the State Government to review A
the question of continuing reservation for the said class.

        Number of vacancies that could be reserved

       Wanchoo, J. who had given dissenting judgment in Rangachari 15
observed that the requirement of Article 16(4) is only to give adequate B
representation and since Constitution-makers intended it to be a short-term
measure it may happen that all the posts in a year may be reserved. He
opined that reserving a fixed percentage of seats every year may take a long
time before inadequacy of representation is overcome. Therefore, the
Government can decide to reserve the posts. After having reserved a fixed C
number of posts the Government may decide that till those posts are filled up
by the backward classes all appointments will go to them if they fulfil the
minimum qualification. Once this number is reached the Government is
deprived of its power to make further reservations. Thus, according to
Wanchoo, J. the adequacy of representation has to be judged considering the
total number of posts even if in a single year or for few years all seats are D
reserved provided the scheme is short-term.

      The idea given by Wanchoo, J. in Rangachari15 did not work out in
practice because most of the time even for limited number of reservations,
every year qualified backward class candidates were not available. This
compelled the government to adopt carry-forward rule. This carry-for\1· 1d        E
rule came in conflict with Balaji'" ruling. In cases where the availability of
reserved category candidates is less than the vacancies set aside for them, the
Government has to adopt either of the two alternatives:

      (I) the State may provide for carrying on the unfulfilled vacancies for     p
the next year or next to the next year, or

      (2) instead of providing for carrying over the unfulfilled vacancies to
the coming years, it may provide for filling of the vacancies from the general
quota candidates and carry forward the unfilled posts by backward classes to
the next year quota.                                                              G
      But the problem arises when in a particular year due to carry forward
rule more than 50% of vacancies are reserved. In T. Devadasan v. Union of
India and Anr., 19 this was the issue. Union Public Service Commission had
provided for 17 112% reservation for Scheduled Castes and Scheduled Tribes.
19.   AIR (1964) SC 179.
                                                                                  H
    384                      SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A In case of non-availability of reserved category candidates in a particular
    year the posts had to be filled by general category candidates and the number
    of such vacancies were to be carried forward to be filled by the reserved
    category candidate next year. Due to this, the rule of carry forward reservation
    in a particular year amounted to 65% of the total vacancies. The petitioner
B   contended that reservation was excessive which destroyed his right under
    Article 16(1) and Article 14. The court on the basis of decision in Balaj/ 6
    held the reservation excessive and, therefore, unconstitutional. It further stated
    that the guarantee of equality under Article 16(1) is to each individual citizen
    and to appointments to any office under the State. It means that on every
    occasion for recruitment the State shou Id see that all citizens are treated
C   equally. In order to effectuate the guarantee each year of recruitment will
    have to be considered by itself.

          Thus, majority differed from Wanchoo's, J. decision in Rangachari15
    holding that a cent per cent reservation in a particular year would be
    unconstitutional in view of Balaji16 decision.
D
           Subba Rao, J. gave dissenting judgment. He relied on Wanchoo's, J.
    judgment in RangacharF 5 and held that Article 16(4) provides for adequate
    representation taking into consideration entire cadre strength. According to
    him, if it is within the power of the State to make reservations then reservation
E   made in one selection or spread over many selections is only a convenient
    method of implementing the provision of reservation. Unless it is established
    that an unreasonably disproportionate part of the cadre strength is filled up
    with the said castes and tribes, it is not possible to contend that the provision
    is not one of reservation but amounts to an extinction of the fundamental
    right.
F
         In the case of Thomasr under the Kerala State and Subordinate Services
  Rules, 1950 certain relaxation was given to Scheduled Caste and Scheduled
  Tribe candidates passing departmental tests for promotions. For promotion to
  upper division clerks from lower division clerks the criteria of seniority-cum-
G merit was adopted. Due to relaxation in merit qualification in I972, 34 out
  of 5 I vacancies in upper division clerks went to Scheduled Caste candidates.
  It appeared that the 34 members of SC/ST had become senior most in the
  lower grade. The High Court quashed the promotions on the ground that it
  was excessive. The Supreme Court upheld the promotions. Ray, C.J. held
  that the promotions made in services as a whole is no where near 50% of the
H total number of the posts. Thus, the majority differed from the ruling of the
                     M. NAGARAJ v. U.0.1. [KAPADIA. J.)                      385
court in Devadasan 19 basically on the ground that the strength of the cadre         A.
as a whole should be taken into account. Khanna. J. in his dissenting opinion
made a reference to it on the ground that such excessive concession would
impair efficiency in administration.

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

        However, in R.K. Sabharwa/1" which was a case of promotion and the
 issue in this case was operation of roster system, the Court stated that entire
cadre strength should be taken into account to determine whether reservation
 up to the required limit has been reached. With regard to ruling in Indra D
Sawhney case5 that reservation in a year should not go beyond 50% the Court
held that it applied to initial appointments. The operation of a roster, for
 filling the cadre strength, by itself ensures that the reservation remains within
the 50% limit. In substance the court said that presuming that 100% of the
vacancies have been filled, each post gets marked for the particular category
of candidate to be appointed against it and any subsequent vacancy has to be E
filled by that category candidate. The Court was concerned with the possibility
that reservation in entire cadre may exceed 50% limit if every year half of
the seats are reserved. The Constitution (Eighty-first Amendment) Act, 2000
added Article 16(48) which in substance gives legislative assent to the
judgment in R.K. Sabharwa/18                                                       F
   CATCH-UP RULE-JS THE SAID RULE A CONSTITUTIONAL
REQUIREMENT UNDER ARTICLE 16(4):

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

      The key issue which arises for determination is-whether the above H
    386                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A "catch-up" rule and the concept of"consequential seniority" are constitutional
    requirements of Article 16 and of equality. so as to be beyond the constitutional
    amendatory process. In other words, whether obliteration of the "catch-up"
    rule or insertion of the concept of "'consequential seniority code", wou Id
    violate the basic structure of the equality code enshrined in Articles 14. 15
B   and 16.

         The concept of ''catch-up" rule appears for the first time in the case of
   Virpal Singh Chauhan'. In the category of Guards in the Railways, there
  were four categories, namely, Grade 'C', Grade 'B', Grade 'A' and Grade
  'A' Special. The initial recruitment was made to Gr. 'C'. Promotion from one
C grade to another was by seniority-cum-suitability. The rule of reservation
  was applied not only at the initial stage of appointment to Grade 'C' but at
  every stage of promotion. The percentage reserved for SC was 15% and for
  ST, it was 7.5%. To give effect to the rule of reservation, a forty-point roster
  was prepared in which certain points were reserved for SCs and STs
  respectively. Subsequently, a hundred-point roster was prepared reflecting
D the same percentages. In I986, general candidates and members of SCs/STs
  came within Grade ·A' in No1thern-Railway. On 1.8.1986, the Chief Controller
  promoted certain general candidates on ad hoc basis to Grade 'A' Special.
  Within three months, they were reverted and SCs and STs were promoted.
  This action was challenged by general candidates as arbitrary and
E unconstitutional before the tribunal. The general candidates asked for three
  reliefs, namely, (a) to restrain the Railways from filling-up the posts in higher
  grades in the category of Guards by applying the rule of reservation; (b) to
  restrain the Railway from acting upon the seniority list prepared by them; and
  (c) to declare that the general candidates were alone entitled to be promoted
  and confirn1ed in Grade 'A' Special on the strength of their seniority earlier
F to the reserved category employees. The contention of the general candidates
  was that once the quota prescribed for the reserved group is satisfied, the
  forty-point roster cannot be applied because that roster was prepared to give
  effe.ct to the rule of reservation. fl 11-as con/ended hy the general candidates
  that accelerated promotion may he given but the Railways cannot give
G consequential seniority to reserved catego1J' candidates in the promoted
  categ01y. (Emphasis added). In this connection, the general category candidates
  relied upon the decisions of the Allahabad and Madhya Pradesh High Courts.
  It was contended by the general candidates that giving consequential seniority
  in addition to accelerated promotion constituted conferment of double benefit
  upon the members of the reserved category and, therefore, violated the rule
H of equality in Article 16( I). It was further urged that accelerated promo~ion-
                      M. NAGARAJ v. U.0.1. IKAPADIA . .I.]                   387
cum-accelerated seniority is destructive of the efficiency of administration         A
inasmuch as by this means the higher echelons of administration would be
occupied entirely by members of reserved categories. This was opposed by
the reserved category candidates who submitted that for the purposes of
promotion to Grade 'A' Special, the seniority list pertaining to Grade 'A'
alone should be followed; that, the administration should not follow the             B
seniority lists maintained by the administration pertaining to Grade 'C' as
urged by the general candidates and since SCs and STs were senior to the
general candidates in Grade 'A', the seniority in Grade 'A' alone should
apply. In short. the general candidates relied upon the 'catch-up' rule, which
was opposed by the members of SC/ST. They also relied upon the judgment
of this Court in R.K. Sabharwal'8•                                                   C
       This Court gave following reasons for upholding the decision of the
tribunal. Firstly, it was held that a rule of reservation as such does not violate
Article 16(4). Secondly, this Court opined, that there is no uniform method
of providing reservation. The extent and nature of reservation is a matter for
the State to decide having regards to the facts and requirements of each case.       D
It is open to the State, if so advised, to say that while the rule of reservation
shall be applied, the candidate promoted earlier by virtue of rule of reservation/
roster shall not be entitled to seniority over seniors in the feeder category and
that it is open to the State to interpret the 'catch-up' rule in the service
conditions governing the promotions [See: para 24 ]. Thirdly, this Court did         E
not agree with the view expressed by the tribunal [in Virpal Singh Chauhan']
that a harmonious reading of clauses (I) to (4) of Article 16 should mean that
a reserved category candidate promoted earlier than his senior general category
candidates in the feeder grade shall necessarily be junior in the promoted
category to such general category. This Court categorically ruled, vide para
27, that such catch-up principle cannot be said to be implicit in clauses (/)        F
to (4) of Article 16 (emphasis supplied). Lastly, this Court found on facts that
for 11 vacancies, 33 candidates were considered and they were all SC/ST
candidates. Not a single candidate belonged to general category. It was argued
on behalf of the general candidates that all top grades stood occupied
exclusively by the reserved category members, which violated the rule of G
equality underlying Articles 16( I), 16(4) and 14. This Court opined that the
above situation arose on account of faulty implementation of the rule of
reservation, as the Railways did not observe the principle that reservation
must be in relation to 'posts' and not 'vacancies' and also for applying the
roster even after the attainment of the requisite percentage reserved for SCs/
STs. In other words, this Court based its decision only on the faulty H
    388                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A implementation of the rule by the Railways which the Cou1t ordered to be
    rectified.

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

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

           Therefore, in Virpal Singh Chauhan this Court has said that the 'catch-
                                               1
                                                   ,
H
                             M. NAGARAJ v. U.0.1. [KAPADIA, J.]                 389
      up' rule insisted upon by the Railways though not implicit in Articles 16( I)     A
      and 16(4), is constitutionally valid as the said practice/process was made to
      maintain efficiency. On the other hand, in Ajit Singh (1)2, this Court has held
      that the equality principle excludes the extra-weightage given by· the
      Government to roster-point promotees as such weightage is against merit and
      efficiency of the administration and that the Punjab Government had erred in      B
      not taking into account the said merit and efficiency factors.

             In the case of Ajit Singh (11)3, three interlocutory applications were
      filed by State of Punjab for clarification of the judgment of this Court in Ajit


-     Singh (/)1. The limited question was-whether there was any conflict between
      the judgments of this Court in Virpa/ Singh Chauhan' and Ajit Singh (1)2 on C
      one hand and vis-a-vis thejudgment of this Court in Jagdish Lal and Ors. v.


...   State of Haryana and Ors20 • The former cases were decided in favour of
      general candidates whereas latter was a decision against the general candidates .
      Briefly, the facts for moving the interlocutory applications were as follows.
      The Indian Railways following the law laid down in Virpa/ Singh Chauhan'
      issued a circular on 28.2.1997 to the effect that the reserved candidates D
      promoted on roster-points could not claim seniority over the senior general
      candidates promoted later on. The State of Punjab after following Ajit Singh
      (!}' revised their seniority list and made further promotions of the senior
      general candidates following the 'catch-up' rule. Therefore, both the judgments
      were against the reserved candidates. However, in the later judgment of this E
      Court in the case of Jagdish La/2°, another three-Judge bench took the view
      that under the general rule of service jurisprudence relating to seniority, the
      date of continuous officiation has to be taken into account and if so, the
      roster-point promotees were entitled to the benefit of continuous officiation.
      In Jagdish La/' 0 , the bench observed that the right to promotion was a statutory
      right while the rights of the reserved candidates under Article 16(4) and F
      Article 16(4A) were fundamental rights of the reserved candidates and,
      therefore, the reserved candidates were entitled to the benefit of continuous
      officiation.

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

      20. [I997J 6 sec 538                                                              H
    390                      SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A           (ii) Have Virpa/ 1 and Aiit Singh({)' have been correctly decided and
                 has ./agdish Lal"' been correctly decided''
            (iii) Whether the catch-up principles are tenable?

          At the outset. this Court stated that it was not concerned with the
B validity of constitutional amendments and, therefore. it proceeded on the
  assumption that Article 16(4A) is valid and is not unconstitutional. Basically,
                                                                                       --
  the question decided was whether the 'catch-up' principle was tenable in the
  context of Article 16(4). It was held that the primary purpose of Article 16(4)
  and Article 16(4A) is to give due representation to certain classes in certain
  posts keeping in mind Articles 14, 16(1) and 335; that, Articles 14 and 16(1)
C have prescribed permissive limits to affirmative action by way of reservation
  under Articles 16(4) and 16(4A) of the Constitution; that, Article 335 is



                                                                                       -
  incorporated so that efficiency of administration is not jeopardized and that
  Articles I4 and 16( I) are closely connected as they deal with individual
  rights of the persons. They give a positive command to the State that there
D shall be equality of opportunity of all citizens in public employment. It was
  further held that Article 16( I) flows from Article 14. It was held that the
  word 'employment' in Article 16(1) is wide enough to include promotions to
  posts at the stage of initial level of recruitment. It was observed that Article
   I6( I) provides to every employee otherwise eligible for promotion fundamental
  right to be considered for promotion. It was held that equal opportunity
E means the right to be considered for promotion. The right to be considered
  for promotion was not a statutory right. It was held that Articles 16(4) and
  16(4A) did not confer any fundamental right to reservation. That they are
  only enabling provisions. Accordingly, in Ajit Singh (II)', the judgment of
  this Court in Jagdish Lal'" case was overruled. However, in the context of
  balancing of fundamental rights under Article 16( I) and the rights of reserved
F candidate under Articles 16(4) and 16(4A), this Court opined that Article
  16(1) deals with a fundamental right whereas Articles 16(4) and 16(4A) are
  only enabling provisions and, therefore, the interests of the reserved classes
  must be balanced against the interests of other segments of society. As a
  remedial measure, the Court held that in matters relating to affirmative action
G by the State, the rights under Articles 14 and 16 are required to be protected
  and a reasonable balance should be struck so that the affirmative action by
  the State does not lead to reverse discrimination.

          Reading the above judgments, we are of the view that the concept of
    'catch-up' rule and 'consequential seniority' are judicially evolved concepts
H   to control the extent of reservation. The source of these concepts is in service
                       M. NAGARA.1 v. U.0.1. [KAPADIA. J.]                      391
jurisprudence. These concepts cannot be elevated to the status of an axiom              A
 like secularism, constitutional sovereignty etc. It cannot be said that by insertion
of the concept of 'consequential seniority' the structure of Article 16(1)
stands destroyed or abrogated. It cannot be said that 'equality code' under
Articles 14, 15 and 16 is violated by deletion of the 'catch-up' rule. These
concepts are based on practices. However, such practices cannot be elevated
to the status of a constitutional principle so as to be beyond the amending             B
power of the Parliament. Principles of service jurisprudence are different
from constitutional limitations. Therefore, in our view neither the 'catch-up'
rule nor the concept of 'consequential seniority' are implicit in clauses (I)
and (4) of Article 16 as correctly held in Virpal Singh Chauhan'.

       Before concluding, we may refer to the judgment of this court in M. G.
                                                                                        c
Badappanavar". In that case the facts were as follows. Appellants were general
candidates. They contended that when they and the reserved candidates were
appointed at Level- I and junior reserved candidates got promoted earlier on
the basis of roster-points to Level-2 and again by way of roster-points to
 Level-3, and when the senior general candidate got promoted to Level-3, D
then the general candidate would become senior to the reserved candidate at
Level-3. At Level-3, the reserved candidate should have been considered
along with the senior general candidate for promotion to Level-4. In support
of their contention, appellants relied upon the judgment of the Constitution
Bench in Ajit Singh (II}'. The above contentions raised by the appellants were E
rejected by the tribunal. Therefore, the general candidates came to this Court
in appeal. This Court found on facts that the concerned Service Rule did not
contemplate computation of seniority in respect of roster promotions. Placing
reliance on the judgment of this Court in Ajit Singh (1)2 and in Virpal Singh',
this court held that roster promotions were meant only for the limited purpose
of due representation of backward classes at various levels of service and, F
therefore, such roster promotions did not confer consequential seniority to
the roster-point promotee. In Ajit Singh (11)3, the circular which gave seniority
to the roster-point promotees was held to be violative of Articles 14 and 16.
It was further held in M. G. Badappanavar" that equality is the basic feature
of the Constitution and any treatment of equals as unequals or any treatment G
of unequals as equals violated the basic structure of the Constitution. For this
proposition, this Court placed reliance on the judgment in Indra Sawhney
while holding that if creamy layer among backward classes were given some
benefits as backward classes, it will amount to equals being treated unequals. ·
Applying the creamy layer test, this Court held that if roster-point promotees
are given consequential seniority, it will violate the equality principle which H
    392                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A is part of the basic structure of the Constitution and in \1-hich event, even
    Article 16(4A) cannot be of any help to the reserved category candidates.
    This is the only judgment of this Court delivered by three-Judge bench saying
    that if roster-point promotees are given the benefit of consequential seniority,
    it will result in violation of equality principle which is part of the basic
B   structure of the Constitution. Accordingly, the judgment of the tribunal was
    set aside.

           The judgment in the case of M. G. Badappa11avar6 was mainly based
    on the judgment in Ajit Singh (I) ·: which had taken the view that the
    departmental circular which gave consequential seniority to the 'roster-point
C   promotee', violated Articles 14 and 16 of the Constitution. In none of the
    above cases, the question of the validity of the co~stitutional amendments
    was involved. Ajit Singh (I)''. Ajit Singh (II) '3 and M. G. Badappanavar'
    were essentially concerned with the question of "weightage'. Whether
    weightage of earlier accelerated promotion with consequential seniority should
    be given or not to be given are matters which would fall within.the discretion
D   of the appropriate Government, keeping in mind the backwardness, inadequacy
    and representation in public employment and overall efficiency of services.
    The above judgments, therefore, did not touch the questions which are involved
    in the present case.

          SCOPE OF THE IMPUGNED AMENDMENTS
E
         Before dealing with the scope of the constitutional amendments we
  need to recap the judgments in Indra Sawhney5 and R.K. Sabharwa/8. In the
  former case the majority held that 50% rule should be applied to each year
  otherwise it may happen that the open competition channel may get choked
F if the entire cadre strength is taken as a unit. However in R.K. Sabharwal8 ,
  this court stated that the entire cadre strength should be taken into account
  to determine whether the reservation up to the quota-limit has been reached.
  It was clarified that the judgment in Indra Sawhney5 was confined to initial
  appointments and not to promotions. The operation of the roster for filling
  the cadre strength, by itself, ensure that the reservation remains within the
G ceiling-limit of 50%.
        In our view, appropriate Government has to apply the cadre strength as
  a unit in the operation of the roster in order to ascertain whether a given
  class/group is adequately represented in the service. The cadre strength as a
  unit also ensures that upper ceiling-limit of 50% is not violated. Further,
H roster has to be post-specific and not vacancy based.
                     M. NAGARAJ v. U.0.1. [KAPADIA. J.]                    393

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

       The Supreme Court in its judgment dated 16.11.92 in Indra Sawhney5
stated that reservation of appointments or posts under Article 16(4) is confined
to initial appointment and cannot extend to reservation in the matter of
promotion. Prior to the judgment in Indra Sawhney5 reservation in promotion        B
existed. The Government felt that the judgment of this court in Indra Sawhney5
adversely affected the interests of SCs and STs in services, as they have not
reached the required level. Therefore, the Government felt that it was necessary
to continue the existing policy of providing reservation in promotion confined
to SCs and STs alone. We quote hereinbelow Statement of Objects and Reasons        C
with the text of the Constitution (Seventy-Seventh Amendment) Act, 1995
introducing clause (4A) in Article 16 of the Constitution:

      THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT)
ACT, 1995
                                                                                   D
                STATEMENT OF OBJECTS AND REASONS

            The Scheduled Castes and the Scheduled Tribes have been
       enjoying the facility of reservation in promotion since 1955. The
       Supreme Court in its judgment dated 16th November, 1992 in the
       case of Indra Sawhney v. Union of India', however, observed that            E
       reservation of appointments or posts under Article 16(4) of the
       Constitution is confined to initial appointment and cannot extent to
       reservation in the matter of promotion. This ruling of the Supreme
       Court will adversely affect the interests of the Scheduled Castes and
       the Scheduled Tribes. Since the representation of the Scheduled Castes
       and the Scheduled Tribes in services in the States have not re:iched        F
       the required level, it is necessary to continue the existing dispensation
       of providing reservation in promotion in the case of the Scheduled
       Castes and the Scheduled Tribes. In view of the commitment of the
       Government to protect the interests of the Scheduled Castes and the
       Scheduled Tribes, the Government have decided to continue the               G
       existing policy of reservation in promotion for the Scheduled Castes
       and the Scheduled Tribes. To carry out this, it is necessary to amend
       Article 16 of the Constitution by inserting a new clause (4A) in the
       said Article to provide for reservation in promotion for the Scheduled
       Castes and the Scheduled Tribes.
                                                                                   H
    394                      SUPREME COURT REPORTS [2006] SUPi'. 7 S.C.R.

A           2. The Bill seeks to achieve the aforesaid object.

            THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT)
            ACT, 1995

            [Assented on 17th June, 1995, and came into force on 17.6.1995]
B           An Act fi1rther to amend the Constitution of India.

                BE it enacted by Parliament in the Forty-sixth Year of the Republic
            of India as follows:-

            I. Short title.- This Act may be called the Constitution (Seventy-
C           seventh Amendment) Act, 1995.

            2. Amendmelll of Article 16. - In Article 16 of the Constitution, after
            clause (4), the following clause shall be inserted, namely:-

           "(4A) Nothing in this Article shall prevent the State from making any
D          provision for reservation in matters of promotion to any class or
           classes of posts in the services under the State in favour of the
           Scheduled Castes and the Scheduled Tribes which, in the opinion of
           the State, are not adequately represented in the services under the
           State."

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

F         Clause (4A) follows the pattern specified in clauses (3) and (4) of
    Article 16. Clause (4A) of Article 16 emphasizes the opinion of the States in
    the matter of adequacy of representation. It gives freedom to the State in an
    appropriate case depending upon the ground reality to provide for reservation
    in matters of promotion to any class or classes of posts in the services. The
G   State has to form its opinion on the quantifiable data regarding adequacy of
    representation. Clause (4A) of Article 16 is an enabling provision. It gives
    freedom to the State to provide for reservation in matters of promotion.
    Clause (4A) of Article 16 applies only to SCs and STs. The said clause is
    carved out of Article 16(4). Therefore, clause (4A) will be governed by the
    two compelling reasons "backwardness" and "inadequacy of representation", ...
H   as mentioned in Article 16(4). If the said two reasons do not exist then the
                      M. NAGARAJ 1·. U.0.1. [KAPADIA . .I.]                   395
enabling provision cannot come into force. The State can make provision for           A
reservation only if the above two circumstances exist. Further in Ajit Singh
(1[) 3 , this court has held that apart from 'backwardness' and 'inadequacy of
representation' the State shall also keep in mind 'overall efficiency' (Article
335). Therefore, all the three factors have to be kept in mind by the appropriate
Government by providing for reservation in promotion for SCs and STs.
                                                                                      B
       After the Constitution (Seventy-Seventh Amendment) Act. 1995, this
court stepped in to balance the conflicting interests. This was in the case of
 Virpal Singh Chauhan' in which it was held that a roster-point promotee
getting the benefit of accelerated promotion would not get consequential
seniority. As such, consequential seniority constituted additional benefit and,       C
therefore, his seniority will be governed by the panel position. Accoiding to
the Government, the decisions in Virpal Singh' and Ajit Singh (!)' bringing
in the concept of "catch-up" rule adversely affected the interests of SCs and
STs in the matter of seniority on promotion to the next higher grade.

      In the circumstances, clause (4A) of Article 16 was once again amended          D
and the benefit of consequential seniority was given in addition to accelerated
promotion to the roster-point promotees. Suffice it to state that, the Constitution
(Eighty-Fifth Amendment) Act, 200 I was an extension of clause (4A) of
Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act,
1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act,               E
2001.

      We quote hereinbelow Statement of Objects and Reasons with the text
of the Constitution (Eighty-Fifth Amendment) Act, 2001:

     "THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT,                                  F
2001 STATEMENT OF OBJECTS AND REASONS

             The Government servants belonging to the Scheduled Castes and
        the Scheduled Tribes had been enjoying the benefit of consequential
        seniority on their promotion on the basis of rule of reservation. The
        judgments of the Supreme Court in the case of Union of India v. G
         Virpal Singh Chauhan (1995] 6 SCC 684 and Ajit Singh Januja (No. I)
        v. State of Punjab, AIR (1996] SC 1189, which led to the issue of the
        O.M. dated 30th January, 1997, have adversely affected the interest
        of the Government servants belonging to the Scheduled Castes and
        Scheduled Tribes category in the matter of seniority on promotion to
                                                                                      H
    396                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A           the next higher grade. This has led to considerable anxiety and
            representations have also been received from various quarters including
            Members of Parliament to protect the interest of the Government
            servants belonging to Scheduled Castes and Scheduled Tribes.

                2. The Government has reviewed the position in the light of
B           views received from various quarters and in order to protect the interest
            of the Government servants belonging to the Scheduled Castes and
            Scheduled Tribes, it has been decided to negate the effect of O.M.
            dated 30th January 1997 immediately. Mere withdrawal of the O.M.
            dated 30th will not meet the desired purpose and review or revision
            of seniority of the Government servants and grant of consequential
c           benefits to such Government servants will also be necessary. This
            will require amendment to Article 16(4A) of the Constitution to provide
            for consequential seniority in the case of promotion by virtue of rule
            of reservation. It is also necessary to give retrospective effect to the
            proposed constitutional amendment to Article 16(4A) with effect from
D           the date of coming into force of Article 16(4A) itself, that is, from the
            17th day of June, 1995.

                3. The Bill seeks to achieve the aforesaid objects.

           THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT,
E   2001

                The following Act of Parliament received the assent of the
            President on the 4th January, 2002 and is published for general
            information:-

            An Act further to amend the Constitution of India.
F
               BE it enacted by Parliament in the Fifty-second Year of the
            Republic of India as follows:-

            I. Short title and commencement.- (I) This Act may be called the
            Constitution (Eighty-fifth Amendment) Act, 200 I.
G
                (2) It shall be deemed to have come into force on the 17th day
            of June I 995.

            2. Amendment of Article 16. - In Article 16 of the Constitution, in
            clause (4A), for the words "in matters of promotion to any class", the
H           words "in matters of promotion, with consequential seniority, to any
                     M. NAGARAJ v. U.0.1. [KAPADIA. J.]                     397

        class" shall be substituted."                                              A
      Reading the Constitution (Seventy-Seventh Amendment) Act, 1995 with
the Constitution (Eighty-Fifth Amendment) Act, 200 I, clause (4A) of Article
16 now reads as follows:

        "(4A) Nothing in this article shall prevent the State from making any      B
        provision for reservation in matters of promotion, with consequential
        seniority, to any class or classes of posts in the services under the
        State in favour of the Scheduled Castes and the Scheduled Tribes
        which in the opinion of the State are not adequately represented in
        the services under the State."
                                                                                   c
      The question in the present case concerns the width of the amending
powers of the Parliament. The key issue is whether any constitutional limitation
mentioned in Article 16(4) and Article 335 stand obliterated by the above
constitutional amendments.

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

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

        However, the Government found that total reservation in a year for
SCs, STs and OBCs combined together had already reached 49 112% and if the G
judgment of this court in Indra Sawhney5 had to be applied it became difficult
to fill "backlog vacancies". According to the Government, in some cases the
total of the current and backlog vacancies was likely to exceed the ceiling-
limit of 50%. Therefore, the Government inserted clause (48) after clause
(4A) in Article 16 vide the Constitution (Eighty-First Amendment) Act, 2000. H
    398                      SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

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

           "THE CONSTITUTION (EIGHTY FIRST AMENDMENT) ACT,
    2000

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

c          STATEMENT OF OBJECTS AND REASONS

                 Prior to August 29, 1997, the vacancies reserved for the Scheduled
            Castes and the Scheduled Tribes, which could not be filled up by
            direct recruitment on account of non-availability of the candidates
            belonging to the Scheduled Castes or the Scheduled Tribes, were
D           treated as "Backlog Vacancies". These vacancies were treated as a
            distinct group and were excluded from the ceiling of fifty per cent
            reservation. The Supreme Court of India in its judgment in the Indra
            Sawhney v. Union of India held that the number of vacancies to be
            filled up on the basis of reservations in a year including carried
            forward reservations should in no case exceed the limit of fifty per
E
            cent. As total reservations in a year for the Scheduled Castes,
            Scheduled Tribes and the other Backward Classes combined together
            had already reached forty-nine and a half per cent and the total number


F
            of vacancies to be filled up in a year could not exceed fifty per cent.,
            it became difficult to fill the "Backlog Vacancies" and to hold Special
            Recruitment Drives. Therefore, to implement the judgment of the
                                                                                        -
            Supreme Court, an Official Memorandum dated August 29, 1997 was
            issued to provide that the fifty per cent limit shall apply to current as
            well as "Backlog Vacancies" and for discontinuation of the Special
            Recruitment Drive.
G               Due to the adverse effect of the aforesaid order dated August 29,
            1997, various organisations including the Members of Parliament
            represented to the Central Government for protecting the interest of
            the Scheduled C astes and the Scheduled Tribes. The Government,
            after considering various representations, reviewed the position and
            has decided to make amendment in the constitution so that the unfilled
H
                     M. NAGARAJ r. U.0.1. [KAPADIA. J.j                    399

        vacancies of a year, which are reserved for being filled up in that        A
        year in accordance with any provision for reservation made under
        clause (4) or clause (4A) of Article 16 of the Constitution, shall be
        considered as a separate class of vacancies to be filled up in any
        succeeding year or years and such class of vacancies shall not be
        considered together with the vacancies of the year in which they are
        being filled up for determining the ceiling offifty percent, reservation   B
        on total number of vacancies of that year. This amendment in the
        Constitution would enable the State to restore the position as was
        prevalent before august 29, 1997.

            The Bill seeks to achieve the aforesaid object.
                                                                                   c
       THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT,
2000

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

        An Act further to amend the Constitution of India.                         D
        BE it enacted by Parliament in the Fifty-first Year of the Republic of
        India as follows:-

             I. Short title: This Act may be called the Constitution (Eighty-
        first Amendment) Act, 2000.                                                E
            2. Amendment of Article 16: In Article 16 of the Constitution,
        after clause (4A), the following clause shall be inserted, namely: -

             "( 48) Nothing in this Article shall prevent the State from
        considering any unfilled vacancies of a year which are reserved for
        being filled up in that year in accordance with any provision for          F
        reservation made under clause (4) or clause (4A) as a separate class
        of vacancies to be filled up in any succeeding year or years and such
        class of vacancies shall not be considered together with the vacancies
        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      G
        that year."

      The Constitution (Eighty-First Amendment) Act, 2000 gives, in
substance, legislative assent to the judgment of this Court in R. K. Sabharwaf''.
Once it is held that each point in the roster indicates a post which on falling
vacant has to be filled by the particular category of candidate to be appointed H
    400                      SUPREME COURT REPORTS [2006] SLIPP. 7 S.C.R.

A against it and any subsequent vacancy has to be filled by that category
    candidate alone then the question of clubbing the unfilled vacancies with
    current vacancies do not arise. Therefore, in effect, A11icle 16(4B) grants
    legislative assent to the judgment in R.K. Sabharwa/". If it is within the
    power of the State to make reservation then whether it is made in one selection
B   or deferred selections, is only a convenient method of implementation as
    long as it is post based, subject to replacement theory and within the limitations
    indicated hereinafter.

          As stated above, clause (4A) of Article 16 is carved out of clause (4)
    of Article 16. Clause (4A) provides benefit of reservation in promotion only
C   to SCs and STs. In the case of S. Vinod Kumar and Anr. v. Union of India
    and Ors.,2' this court held that relaxation of qualifying marks and standards
    of evaluation in matters of reservation in promotion was not permissible
    under Article 16(4) in view of Article 335 of the Constitution. This was also
    the view in Indra Sawhney5.

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

                "Provi_ded that nothing in this article shall prevent in making of
            any provision in favour of the members of the Scheduled Castes and
E           the Scheduled Tribes for relaxation in qualifying marks in any
            examination or lowering the standards of evaluation, for reservation
            in matters of promotion to any class or classes of services or posts in
            connection with the affairs of the Union or of a State."

          This proviso was added following the benefit of reservation in promotion
F   conferred upon SCs and STs alone. This proviso was inserted keeping in
    mind the judgment of this court in Vi nod Kumar1 1 which took the view that
    relaxation in matters of reservation in promotion was not permissible under
    Article 16(4) in view of the command contained in Article 335. Once a
    separate category is carved out of clause (4) of Article 16 then that category
G   is being given relaxation in matters of reservation in promotion. The proviso
    is confined to SCs and STs alone. The said proviso is compatible with the
    scheme of Article 16(4A).

         INTRODUCTION OF "TIME" FACTOR IN VIEW OF ARTICLE
    16(48):
H 21. (1996] 6 sec sso
                     M. NAGARAJ v. U.O.L [KAPADIA . .I.]                     401
       As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies A
(backlog vacancies). The ceiling-limit of 50% on current vacancies continues
to remain. In working-out the carry-forward rule, two factors are required to
be kept in mind, namely, unfilled vacancies and the time factor. This position
needs to be explained. On one hand of the spectrum, we have unfilled
vacancies; on the other hand, we have a time-spread over number of years B
over which unfilled vacancies are sought to be carried-over. These two are
alternating factors and, therefore, if the ceiling-limit on the carry-over of
unfilled vacancies is removed, the other alternative time-factor comes in and
in that event, the time-scale has to be imposed in the interest of efficiency in
administration as mandated by Article 335. If the time-scale is not kept then
posts will continue to remain vacant for years, which would be detrimental C
to the administration. Therefore, in each case, the appropriate Government
will now have to introduce the time-cap depending upon the fact-situation.
What is stated hereinabove is borne out by Service Rules in some of the
States where the carry-over rule does not extend beyond three years.

    WHETHER IMPUGNED CONSTITUTIONAL AMENDMENTS                                        D
VIOLATES THE PRINCIPLE OF BASIC STRUCTURE:

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

       In the matter of application of the principle of basic structure, twin tests
have to be satisfied, namely, the 'width test' and the test of 'identity'. As
stated hereinabove, the concept of the 'catch-up' rule and 'consequential             F
seniority' are not constitutional requirements. They are not implicit in clauses
(I) and (4) of Article 16. They are not constitutional limitations. They are
concepts derived from service jurisprudence. They are not constitutional
principles. They are not axioms like, secularism, federalism etc. Obliteration
of these concepts or insertion of these concepts do not change the equality
code indicated by Articles 14, 15 and 16 of the Constitution. Clause (I) of           G
Article 16 cannot prevent the State from taking cognizance of the compelling
interests of backward classes in the society. Clauses (I) and (4) of Article 16
are restatements of the principle of equality under Article 14. Clause (4) of
Article 16 refers to affirmative action by way of reservation. Clause (4) of
Article 16, however, states that the appropriate Government is free to provide        H
    402                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A for reservation in cases where it is satisfied on the basis of quantifiable data
   that backward class is inadequately represented in the services. Therefore. in
   every case where the State decides to provide for reservation there must exist
   two circumstances, namely, 'backwardness· and 'inadequacy ofrepre>entation'.
   As stated above equity, justice and efficiency are variable factors. These
B 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 Iimitations un the mode of the exercise of power by the
   State. None of these limitations have been removed by the impugned
  amendments. lfthe concerned State fails to identify and measure backwardness,
   inadequacy and overall administrative efficiency then in that event the
C provision for reservation would be invalid. These amendments do not alter
  the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned
   in Article 16(4) are retained. Clause (4A) is derived from clause (4) of Article
   16. Clause (4A) is confined to SCs and STs alone. Therefore, the present case
  does not change the identity of the Constitution. The word "amendment"
  connotes change. The question is whether the impugned amendments discard
D the original constitution. It was vehemently urged on behalf of the petitioners
  that the Statement of Objects and Reasons indicate that the impugned
  amendments have been promulgated by the Parliament to ove1TUle the decision
  of this court. We do not find any merit in this argument. Under Article 141
  of the Constitution the pronouncement of this court is the law of the land.
E The judgments of this court in Virpal Singh', Ajit Singh(!)', Ajit Singh (11)3
  and Indra Sawhney5, were judgments delivered by this court which enunciated
  the law of the land. It is that law which is sought to be changed by the
  impugned constitutional amendments. The impugned constitutional
  amendments are enabling in nature. They leave it to the States to provide for
  reservation. It is well-settled that the Parliament while enacting a law does
F 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
  A1ticle 335 then this court will certainly set aside and strike down such
  legislation. Applying the "width test", we do not find obliteration of any of
G the constitutional limitations. Applying the test of "identity", we do not find
  any alteration in the existing structure of the equality code. As stated above,
  none of the axioms like secularism, federalism etc. which are overarching
  principles have been violated by the impugned constitutional amendments.
  Equality has two facets "formal equality" and "proportional equality".
  Proportional equality is equality "in fact" whereas formal equality is equality
H "in law". Formal equality exists in the Rule of Law. In the case of proportional
                     M. NAGARAJ v. U.O.I. [KAPADIA . .1.J               403

equality the State is expected to take affirmative steps in favour of         A
disadvantaged sections of the society within the framework of liberal
democracy. Egalitarian equality is proportional equality.

       The criterion for determining the validity of a law is the competence of
the law-making authority. The competence of the law-making authority would
depend on the ambit of the legislative power, and the limitations imposed B
thereon as also the limitations on mode of exercise of the power. Though the
amending power in Constitution is in the nature of a constituent power and
differs in content from the legislative power, the limitations imposed on the
constituent power may be substantive as well as procedural. Substantive
limitations are those which restrict the field of the exercise of the amending C
power. Procedural limitations on the other hand are those which impose
restrictions with regard to the mode of exercise of the amending power. Both
these limitations touch and affect the constituent power itself, disregard of
which invalidates its exercise. (See: Kihoto Hollohan v. Zachillhu & Ors., 22 ).

      Applying the above tests to the present case, there is no violation of the D
basic structure by any of the impugned amendments, including the Constitution
(Eighty-Second) Amendment Act, 2000. The constitutional limitation under
Article 335 is relaxed and not obliterated. As stated above, be it reservation
or evaluation, excessiveness in either would result in violation of the
constitutional mandate. This exercise, however, will depend on facts of each
case. In our view, the field of exercise of the amending power is retained by E
the impugned amendments, as the impugned amendments have introduced
merely enabling provisions because, as stated above, merit, efficiency,
backwardness and inadequacy cannot be identified and measured in vacuum.
Moreover, Article 16(4A) and Article 16(48) fall in the pattern of Article
16(4) and as long as the parameters mentioned in those articles are complied- F
with by the States, the provision of reservation cannot be faulted. Articles
16(4A) and 16(48) are classifications within the principle of equality under
Article 16(4).

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

    ROLE OF ENABLING PROVISIONS JN THE CONTEXT OF
ARTICLE 14:
22. [1992] Supp. 2 sec 651.                                                    H
    404                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A        The gravamen of Article 14 is equality of treatment. Article 14 confers
  a personal right by enacting a prohibition which is absolute. By judicial
  decisions, the doctrine of classification is read into Article 14. Equality of
  treatment under Article 14 is an objective test. It is not the test of intention.
  Therefore, the basic principle underlying Article 14 is that the law must
  operate equally on all persons under like circumstances. [Emphasis added].
B Every discretionary power is not necessarily discriminatory. According to t'1e
  Constitutional Law of India, by H.M. Seervai, 4th Edn. 546, equality is not
  violated by mere conferment of discretionary power. It is violated by arbitrary
  exercise by those on whom it is rnnferred. This is the theory of 'guided
  power'. This theory is based on the assumption that in the event of arbitrary
C exercise by those on whom the power is conferred would be corrected by the
  Courts. This is the basic principle behind the enabling provisions which are
  incorporated in Articles 16(4A) and 16(48). Enabling provisions are pe1missive
  in nature. They are enacted to balance equality with positive discrimination.
  The constitutional law is the law of evolving concepts. Some of them are
  generic others have to be identified and valued. The enabling provisions deal
D with the concept, which has to be identified and valued as in the case of
  access vis-a-vis efficiency which depends on the fact-situation only and not
  abstract principle of equality in Article 14 as spelt out in detail in Articles 15
  and 16. Equality before the law, guaranteed by the first part of Article 14, is
  a negative concept while the second part is a positive concept which is
E enough to validate equalizing measures depending upon the fact-situation.
        It is important to bear in mind the nature of constitutional amendments.
  They are curative by nature. Article 16(4) provides for reservation for backward
  classes in cases Of inadequate representation in public employment. Article
  16(4) is enacted as a remedy for the past historical discriminations against a
F social class. The object in enacting the enabling provisions like Articles
  16(4), 16(4A) and 16(4B) is that the State is empowered to identify and
  recognize the compelling interests. If the State has quantifiable data to show
  backwardness and inadequacy then the State can make reservations in
  promotions keeping in mind maintenance of efficiency which is held to be
G a constitutional limitation on the discretion of the State in making reservation
  as indicated by Article 335. As stated above, the concepts of efficiency,
  backwardness, inadequacy of representation are required to be identified and
  measured. That exercise depends on availability of data. That exercise depends
  on numerous factors. It is for this reason that enabling provisions are required
  to be made because each competing claim seeks to achieve certain goals.
H How best one should optimize these conflicting claims can only be done by
                    M. NAGARAJ v. U.0.I. [KAPADIA, J.]                    405
the administration in the context of local prevailing conditions in public        A
employment. This is amply demonstrated by the various decisions of this
Court discussed hereinabove. Therefore, there is a basic difference between
'equality in law' and 'equality in fact' (See: 'Affirmative Action' by William
Darity). If Articles 16(4A) and 16(48) flow from Article 16(4) and if Article
 16(4) is an enabling provision then Articles 16(4A) and 16(48) are also
enabling provisions. As long as the boundaries mentioned in Article 16(4),        B
namely, backwardness, inadequacy and efficiency of administration are
retained in Articles 16(4A) and 16(48) as controlling factors, we cannot
attribute constitutional invalidity to these enabling provisions. However, when
the State fails to identify and implement the controlling factors then
excessiveness comes in, which is to be decided on the facts of each case. In      C
a given case, where excessiveness results in reverse discrimination, this Court
has to examine individual cases and decide the matter in. accordance with
law. This is the theory of 'guided power'. We may once again repeat that
equality is not violated by mere conferment of power but it is breached by
arbitrary exercise of the power conferred.
                                                                                  D
    APPLICATION OF DOCTRINE OF "GUIDED POWER"
ARTICLE 335:

       Applying the above tests to the proviso to Article 335 inserted by the
 Constitution (Eighty-Second Amendment) Act, 2000, we find that the said
proviso has a nexus with Articles 16(4A) and 16(48). Efficiency in E
administration is held to be a constitutional limitation on the discretion vested
 in the State to provide for reservation in public employment. Under the
proviso to Article 335, it is stated that nothing in Article 335 shall prevent
the State to relax qualifying marks or standards of evaluation for reservation
in promotion. This proviso is also confined only to members of SCs and STs. F
This proviso is also conferring discretionary power on the State to relax
qualifying marks or standards of evaluation. Therefore, the question before
us is whether the State could be empowered to relax qualifying marks or
standards for reservation in matters of promotion. In our view, even after
insertion of this proviso, the limitation of overall efficiency in Article 335 is
not obliterated. Reason is that "efficiency" is variable factor. It is for the G
concerned State to decide in a given case, whether the overall efficiency of
the system is affected by such relaxation. If the relaxation is so excessive that
it ceases to be qualifying marks then certainly in a given case, as in the past,
the State is free not to relax such standards. In other cases, the State may
evolve a mechanism under which efficiency, equity and justice, all three H
    406                       SUPREME COURT REPORTS 120061 SUPP 7 S.C.R.

A variables, could be accommodated. Moreover, Article 335 i' to be read with
    Article 46 which provides that the State shall promote with special care the
    educational and economic interests of the weaker sections of the people and
    in particular of the scheduled castes and scheduled tribes and shall protect
    them from social injustice. Therefore, where the State finds compelling interests
B   of backwardness and inadequacy, it may relax the qualifying marks for SCs/
    STs. These compelling interests however have to be identified by weighty
    and comparable data.

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

          TESTS TO JUDGE THE VALIDITY OF THE IMPUGNED STATE ACTS:


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

         Are the impugned amendments making an inroad into the balance
    struck by the judgment of this court in the case of Indra Sawhney5:
G         Petitioners submitted that equality has been recognized to be a basic
    feature of our Constitution. To preserve equality, a balance was struck in
    Indra Sawhney' so as to ensure that the basic structure of Articles 14, 15 and
    16 remains intact and at the same time social upliftment, as envisaged by the
    Constitution, stood achieved. In order to balance and structure the equality,
H
                           M. NAGARAJ v. U.0.1. (KAPADIA. J.]                  407
a ceiling-limit on reservation was fixed at 50% of the cadre strength.                A
reservation was confined to initial recruitment and was not extended to
promotion. Petitioners further submitted that in Indra Sawhney5, vide para
829 this Court has held that reservation in promotion was not sustainable in
principle. Accordingly, petitioners submitted that the impugned constitutional
amendments makes a serious inroad into the said balance struck in the case
of Indra Sawhney 5 which protected equality as a basic feature of our                 B
Constitution. We quote hereinbelow paragraph 829 of the majority judgment
in the case of Indra Sawhney5 which reads as follows:

          "829. It is true that Rangachari 15 has been the law for more than 30
          years and that attempts to re-open the issue were repelled in Akhil         C
          Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and
          Ors23 • It may equally be true that on the basis of that decision,
          reservation may have been provided in the matter of promotion in
          some of the Central and State services but we are convinced that the
          majority opinion in Rangachari I 5, to the extent it holds, that Article
          16(4) permits reservation even in the matter of promotion, is not           D
          sustainable in principle and ought 10 be departed from. However,
          taking into consideration all the circumstances, we direct that our
          decision on this question shall operate only prospectively and shall
          not affect promotions already made, whether on temporary, officiating
          or regular/permanent basis. It is further directed that wherever            E
          reservations are already provided in the matter of promotion - be it
          Central Services or State Services, or for that matter services under
          any corporation, authority or body falling under the definition of
          'State' in Article 12-such reservations shall continue in operation for
          a period offive years from this day. Within this period, it would be
          open to the appropriate authorities to revise modify or re-issue the        F
          relevant Rules to ensure the achievement of the objective of Article
          16(4). If any authority thinks that for ensuring adequate representation
          of 'backward class of citizens' in any service, class or category, it is
          necessary to provide for direct recruitment therein, it shall be open to
          it do so.
                                                                                      G
                                                                (emphasis supplied)

     What are the outer boundaries of the amendment process in the context
of Article 16 is the question which needs to be answered. Equality is the

23.   119s1 J 1 sec 246.                                                              H
    408                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A basic feature of the Constitution as held in Indra Sawhne)i5. The content of
  Article 14 was originally interpreted by this Court as a concept of equality
  confined to the aspects of discrimination and classification. It is only after the
  rulings of this Court in Maneka Gandhi// and Ajay Hasia and Ors. v. Khalid
  Mujib Sehravardi and Ors. 24 , that the content of Article 14 got expanded
  conceptually so as to comprehend the doctrine of promissory estoppel, non
B arbitrariness, compliance with rules of natural justice, eschewing irrationality
  etc. There is a difference between "formal equality" and "egalitarian equality".
  At one point of time Article 16(4) was read by the Supreme Court as an
  exception to Article 16(1). That controversy got settled in Indra Sawhney5.
  The words "nothing in this Article" in Article 16(4) represents a legal device
C allowing positive discrimination in favour of a class. Therefore, Article 16(4)
  relates to "a class apart". Article 16(4), therefore, creates a field which enables
  a State to provide for reservation provided there exists backwardness of a
  class and inadequacy of representation in employment. These are compelling
  reasons. They clo not exist in Article 16(1 ). It is only when these reasons are
  satisfied that a State gets the power to provide for reservation in matters of
D employment. Therefore, Article 16(1) and Article 16(4) operate in different
  fields. Backwardness and inadequacy of representation, therefore, operate as
  justifications in the sense that the State gets the power to make reservation
  only if backwardness and inadequacy of representation exist. These factors
  are not obliterated by the impugned amendments.
E         The question still remains as to whether any of the constitutional
    limitations are obliterated by way of the impugned constitutional amendments.
    By way of the impugned amendments Articles 16(4A) and 16(4B) have been
    introduced.

F         In Indra Sawhney5 the equality which was protected by the rule of
    50%, was by balancing the rights of the general category vis-a-vis the rights
    of BC en bloc consisting of OBC, SC and ST. On the other hand, in the
    present case the question which we are required to answer is: whether within
    the egalitarian equality, indicated by Article 16(4), the sub-classification in
    favour of SC and ST is in principle constitutionally valid. Article 16(4A) is
G   inspired by the observations in Indra Sawhney5 vide para 802 and 803 in
    which this Court has unequivocally observed that in order to avoid lumping
    of OBC, SC and ST which would make OBC take away all the vacancies
    leaving SC and ST high and dry, the concerned State was entitled to categorise
    and sub-classify SCs and STs on one hand vis-a-vis OBC on the other hand.
H 24. 119&111sec122.
                   M. NAGARA.I v. U.0.1. [KAPADIA, .l.]                409
We quote hereinbelow paragraphs 802 and 803 of the judgment in Indra         A
Sawhney5:

      "802. We are of the opinion that there is no constitutional or legal
      bar to a State categorizing the backward classes as backward and
      more backward. We are not saying that it ought to be done. We are
       concerned with the question if a State makes such a categorisation, B
       whether it would be invalid~ We think not. Let us take the criteria
       evolved by Manda! Commission. Any caste, group or class which
       scored eleven or more points was treated as a backward class. Now,
       it is not as if all the several thousands of castes/groups/classes scored
       identical points. There may be some castes/groups/classes which have C
       scored points between 20 to 22 and there may be some who have
       scored points between eleven and thirteen. It cannot reasonably be
       denied that there is no difference between these two sets of castes/
       groups/classes. To give an illustration, take two occupational groups
       viz., gold-smiths and vaddes (traditional stone-cutters in Andhra
       Pradesh) both included within Other Backward Classes. None can D
       deny that gold-smiths are far less backward than vaddes. If both of
       them are grouped together and reservation provided, the inevitably
       result would be that gold-smiths would take away all the reserved
       posts leaving none for vaddes. In such a situation, a State may think
       it advisable to make a categorisation even among other backward E
       classes so as to ensure that the more backward among the backward
      classes obtain the benefits intended for them. Where to draw the line
       and how to effect the sub-classification is, however, a matter for the
      Commission and the State - and so long as it is reasonably done, the
      Court may not intervene. In this connection, reference may be made
      to the categorisation obtaining in Andhra Pradesh. The Backward F
      Classes have been divided into four categories. ·Group-A comprises
      "Aboriginal tribes, Vimukta jatis, Nomadic and semi-nomadic tribes
      etc.". Group-B comprises professional group like tappers, weavers,
      carpenters, ironsmiths, goldsmiths, kamsalins etc. Group-C pertains
      to "Scheduled Castes converts to Christianity and their progeny", G
      while Group-D comprises all other classes/communities/groups, which
      are not included in groups A, B and C. The 25% vacancies reserved
      for backward classes are sub-divided between them in proportion to
      their respective population This categorisation was justified in Bairam
      [1972] 3 S.C.R. 247 at 286. This is merely to show that even among
      backward classes, there can be a sub-classification on a reasonable
    410                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A
           basis.

                                                              (emphasis supplied)

               "803. There is another way of looking at this issue. Article 16(4)
           recognises only one class viz., "backward class of citizens". It does
B
           not speak separately of Scheduled Castes and Scheduled Tribes, as
           does Article 15(4 ). Even so. it is beyond controversy that Scheduled
           Castes and Scheduled Tribes are also included in the expression
           "backward class of citizens" and that separate rese111ations can be
           provided in their favour. It is a well-accepted phenomenon throughout
c          the country. What is the logic behind it? It is that if Scheduled Tribes,
           Scheduled Castes and Other Backward Classes are lumped together,
           O.B.Cs. will take away all the vacancies leaving Scheduled Castes
           and Scheduled Tribes high and dry. The same logic also warrants
           categorisation as between more backward and backward. We do not
           mean to say - we may reiterate - that this should be done. We are only
D
           saying that if a State chooses to do it, it is not impermissible in law."

                                                               (emphasis supplied)

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

          As stated above, Article 14 enables classification. A classification must
    be founded on intelligible differential which distinguishes those that are
    grouped together from others. The differential must have a rational relation
    to the object sought to be achieved by the law under challenge. In Indra
H   Sawhney5 an op in ion was expressed by this Court vide para 802 that there is
                     M. NAGARAJ v. U.0.1. [KAPADIA. J.]                  41 l

no constitutionol or legal bar to making of classification. A1ticle 16(48) is A
also an enabling provision. It seeks to make classification on the basis of the
differential between current vacancies and carry-forward vacancies. In the
case of Article 16(48) we must keep in mind that following the judgment in
R.K. Sabharwat" the concept of post-based roster is introduced. Consequently,
specific slots for 08C, SC and ST as well as GC have to be maintained in B
the roster. For want of candidate in a particular category the post may remain
unfilled. Nonetheless, that slot has to be filled only by the specified category.
Therefore, by Article 16(48) a classification is made between current vacancies
on one hand and carry-forward/backlog vacancies on the other hand. Article
16(48) is a direct consequence of the judgment of this court in R.K. Sabharwa/8
by which the concept of post-based roster is introduced. Therefore, in our C
view Articles 16(4A) and 16(48) form a composite part of the scheme
envisaged. Therefore, in our view Articles 16(4), 16(4A) and 16(48) together
form part of the same scheme. As stated above, Articles 16(4A) and 16(48)
are both inspired by observations of the Supreme Court in Indra Sawhney5
and R.K. Sabharwa/8. They have nexus with Articles 17 and 46 of the
Constitution. Therefore, we uphold the classification envisaged by Articles D
16(4A) and 16(48). The impugned constitutional amendments, therefore, do
not obliterate equality.

       The test for judging the width of the power and the test for adjudicating
the exercise of power by the concerned State are two different tests which E
warrant two different judicial approaches. In the present case, as stated above,
we are required to test the width of the power under the impugned amendments.
Therefore, we have to apply "the width test". In applying "the width test" we
have to see whether the impugned amendments obliterate the constitutional
limitations mentioned in Article 16(4), namely, backwardness and inadequacy
of representation. As stated above, these limitations are not obliterated by the F
impugned amendments. However, the question still remains whether the
concerned State has identified and valued the circumstances justifying it to
make reservation. This question has to be decided case-wise. There are
numerous petitions pending in this Court in which reservations made under
State enactments have been challenged as excessive. The extent of reservation G
has to be decided on facts of each case. The judgment in Indra Sawhney5
does not deal with constitutional amendments. In our present judgment, we
are upholding the validity of the constitutional amendments subject to the
limitations. Therefore, in each case the Comt has got to be satisfied that the
State has exercised its opinion in making reservations in promotions for SCs
and STs and for which the concerned State will have to place before the H
    412                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A Court the requisite quantifiable data in each case and satisfy the Court that
    such reservations became necessary on account of inadequacy of representation
    of SCs/ STs in a particular class or classes of posts without affecting general
    efficiency of service as mandated under Article 335 of the Constitution.

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

         At this stage, one aspect needs to be mentioned. Social justice is
  concerned with the distribution of benefits and burdens. The basis of
H distribution is the area of conflict between rights, needs and means. These
                     M. NAGARA.I v. U.0.1. [KAPADIA, .I.]                 413

three criteria can be put under two concepts of equality, namely, "formal A
equality" and "proportional equality". Formal equality means that law treats
everyone equal. Concept of egalitarian equality is the concept of propo1tional
equality and it expects the States to take affirmative action in favour of
disadvantaged sections of society within the framework of democratic polity.
In Indra Sawhney all the judges except Pandian, J. held that the "means test" B
should be adopted to exclude the creamy layer from the protected group
earmarked for reservation. In Indra Sawhney5 this Court has, therefore,
accepted caste as determinant of backwardness and yet it has struck a balance
with the principle of secularism which is the basic feature of the Constitution
by bringing in the concept of creamy layer. Views have often been expressed
in this Court that caste should not be the determinant of backwardness and C
that the economic criteria alone should be the determinant of backwardness.
As stated above, we are bound by the decision in Indra Sawhney. The
question as to the "determinant" of backwardness cannot be gone into by us
in view of the binding decision. In addition to the above requirements this
Court in Indra Sawhney has evolved numerical benckmarks like ceiling-
limit of 50% based on post-specific roster coupled with the concept of D
replacement to provide immunity against the charge of discrimination.

      CONCLUSION:

       The impugned constitutional amendments by which Articles 16(4A)
and 16(48) have been inserted flow from Article 16(4). They do not alter the E
structure of Article 16(4). They retain the controlling factors or the compelling
reasons, namely, backwardness and inadequacy ofrepresentation which enables
the States to provide for reservation keeping in mind the overall efficiency
of the State administration under Article 335. These impugned amendments
are confined only to SCs and STs. They do not obliterate any of the F
constitutional requirements, namely, ceiling-limit of 50% (quantitative
limitation), the concept of creamy layer (qualitative exclusion), the sub-
classification between OBC on one hand and SCs and STs on the other hand
as held in Indra Sawhney, the concept of post-based Roster with in-built
concept of replacement as held in R.K. Sabharwa!'.
                                                                                 G
      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.
                                                                                 H
    414                     SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

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

       Subject to above, we uphold the constitutional validity of the Constitution
  (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First
D Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act,
  2000 and the Constitution (Eighty-Fifth Amendment) Act, 200 I.

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