M NAGARAJ VS UNION OF INDIA : CASE SUMMARY
The Supreme Court in M Nagaraj Vs Union of India (2006) Supp. (7) SCR 336 held Eighty Fifth amendment of the Constitution providing reservation in promotion with consequential seniority valid. But the Supreme Court also directed that while making 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 efficiency under Article 335.
FACTS OF THE CASE
In Indra Sawhney Vs Union of India AIR1993SC477 it was held that reservation in appointments or posts under Article 16 (4) is confined to initial appointment and cannot extend to reservation in the matter or promotion. Prior to Indra Sawhney, reservation in promotion existed. Parliament passed 77th Amendment for introducing clause 4A in Article 16. Clause 4A provided that nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in opinion of the State are not adequately represented.
In Union of India vs Virpal Singh Chauhan (1995) SCC (6) 684 the Supreme Court held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and therefore his seniority will be governed by the panel position.
Parliament again amended clause 4A which now provided that nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.
Several Petitions were filed before the Supreme Court under Article 32 of the Constitution challenging the validity of Constitution (Eighty Fifth) Amendment inserting Article 16 (4A) retrospectively from 17.06.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of basic structure.
FINDINGS OF THE SUPREME COURT
The Supreme Court observed that “equality” is the essence of democracy and accordingly a basic feature of democracy.
The Supreme Court observed that in the matter of application of the principle of basic structure, the twin tests have to be satisfied, namely, the “width test” and “the test of identity”. The concept of “catch up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of the 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 and insertion of these concepts do not change the equality code indicated by the Articles 14, 15 and 16 of the Constitution. Article 16 (1) cannot prevent the State from taking cognizance of the compelling interests of backward classes of society. Article 16 (1) and (4) are restatements of principle of equality under Article 14. Article 16 (4) refers to affirmative action by way of reservation. Article 16 (4) however states that appropriate government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, backwardness and inadequacy of representation. 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 limitations on the mode of exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid.
These amendments do not alter the structure of Articles 14, 15 and 16. 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 the original constitution.
It was vehemently urged on behalf of the Petitioners that the Statement of Objects and Reasons indicate that the impugned amendments have been promulgated by the Parliament to overrule the decision of this Court. The Supreme Court did not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of the Supreme Court is the law of the land. The judgment of this Court in Virpal Singh, Ajit Singh and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that the Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If an appropriate government enacts a law providing for reservation without keeping in mind the parameters in Article 16 (4) and Article 335 then the Supreme Court will certainly set aside and strike down such legislation.
Applying the “width test” the Supreme Court did not find any alteration in the existing structure of the equality code. The Supreme Court found that none of 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 in law”. Formal equality exists in the Rule of Law. In the case of proportional equality, the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
The Supreme Court held that there has been no violation of the basic structure of Constitution by these amendments. The impugned amendments have introduced merely enabling provisions because merit, efficiency, backwardness and inadequacy cannot be identified and measured in vaccum. Moreover, Article 16 (4A) and Article 16 (4B) fall in the pattern of Article 16 (4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. Article 16 (4A) and 16 (4B) are classifications within the principle of equality under Article 16 (4). 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. 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 extend the reservation indefinitely.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.