Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Nagaraj and Ors. Vs. Union of India (UOI) and Ors.
AIR 2007 SC 71, 2006 (10) SCALE 301, (2006) 8 SCC 212, (2007) 1 SCC (LS) 1013, [2006] Supp (7) SCR 336
Hon’ble Judges/Coram: S.H. Kapadia, Y.K. Sabharwal, C.J., K.G. Balakrishnan, C.K. Thakker and P.K. Balasubramanyan, JJ.
Date of Decision: 19.10.2006
FACTS: –
Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16 of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union of India and Ors. v. Virpal Singh Chauhan and Ors., Ajit Singh Januja and Ors. v. State of Punjab and Ors. (Ajit Singh-I), Ajit Singh and Ors. (II) v. State of Punjab and Ors. , Ajit Singh and Ors. (III) v. State of Punjab and Ors., Indra Sawhney and Ors. v. Union of India , and M. G. Badappanavar and Anr. v. State of Karnataka 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 is, therefore, violative of the basic structure of the Constitution.
ISSUE: –
Whether by virtue of the impugned constitutional amendments, the power of the Parliament is so enlarged so as to obliterate any or all of the constitutional limitations and requirements?
JUDGMENT: –
The question is related to the nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. It is not based on literal wordings. In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.
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 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.
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 Kerala and Anr. AIR1973 SC 1461, it has been observed that ‘one cannot legally use the constitution to destroy itself’ and ‘the personality of the constitution must remain unchanged’. Therefore, this Court in Kesavananda Bharati AIR 1973 SC 1461, 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. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. Secularism in India has acted as a balance between socio-economic reforms which limits religious options and communal developments. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day. “Equality” is the essence of democracy and, accordingly a basic feature of the Constitution.
The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution.
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 ‘reservation’ as a general concept. India is constituted into a sovereign, democratic republic to secure to all its citizens, fraternity assuring the dignity of the individual and the unity of the nation. The sovereign, democratic republic exists to promote fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because the objectives of the State can be realized only in and through the individuals. Therefore, rights conferred on citizens and non-citizens are not merely individual or personal rights. They have a large social and political content, because the objectives of the Constitution cannot be otherwise realized. Fundamental rights represent the claims of the individual and the restrictions thereon are the claims of the society. Article 38 in Part- IV is the only Article which refers to justice, social, economic and political. However, the concept of justice is not limited only to directive principles. There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as ‘untouchable’ and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part-III also provide for political and social justice.
In this case, question pertains to the right of an individual of equal opportunity on one hand and preferential treatment to an individual belonging to a backward class in order to bring about equal level- playing field in the matter of public employment. Therefore, conflicting claims within the concept of ‘justice, social, economic and political’, which concept as stated above exists both in Part-III and Part-IV of the Constitution. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of ‘public employment’ unlike right to property is socialistic and, therefore, falls within the preamble to the Constitution which states that WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. Similarly, the preamble mentions the objective to be achieved, namely, justice, social, economic and political. Therefore, the concept of ‘equality of opportunity’ in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims.
Equity, Justice and Merit concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When court construes 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, courts are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard-concepts. However, if one 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 representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the government in the matter of reservation under Article 16(4) as well as Article 16(4A) come in the form of Article 335 of the Constitution.
Merit is 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 value system. The content of merit is context- specific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on ‘merit’ depends on how that policy is designed. Unfortunately, in the present case, the debate on this point has taken place in an empirical vacuum. The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of “extent of reservation” is not an absolute concept and like merit it is context- specific. The point which we are emphasizing is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact-situation in each case. Therefore, ‘vesting of the power’ by an enabling provision may be constitutionally valid and yet ‘exercise of the power’ by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.
Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual- specific whereas reservation in Article 16(4) and Article 16(4A) is enabling. The discretion of the State is, however, subject to the existence of “backwardness” and “inadequacy of representation” in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for courts to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are maintained.
The key issue which arises for determination in this case is whether obliteration of the “catch-up” rule or insertion of the concept of “consequential seniority code”, would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16? The concept of ‘catch-up’ rule and ‘consequential seniority’ are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of ‘consequential seniority’ the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that ‘equality code’ under Article 14, 15 and 16 is violated by deletion of the ‘catch-up’ rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, Neither the ‘catch-up’ rule nor the concept of ‘consequential seniority’ are implicit in Clauses (1) and (4) of Article 16.
In the Indira Sawhney and RK Sabharwal case, the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However in R.K. Sabharwal, 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 Sawhney was confined to initial appointments and not to promotions. The operations of the roster for filling the cadre strength, by itself, ensure that the reservation remains within the ceiling-limit of 50%. It is held in this case that appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling-limit of 50% is not violated. Further, roster has to be post- specific and not vacancy based.
The Supreme Court in its judgment dated 16.11.92 in Indra Sawhney 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 Sawhney reservation in promotion existed. The Government felt that the judgment of this Court in Indra Sawhney 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.
HELD:
The impugned constitutional amendments by which Articles 16(4A) and 16(4B) (enabling provisions) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney.
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