M. Nagaraj: Amendments Allowing SC/ST Reservation in Promotion Upheld, but States Must Show Quantifiable Data

For the petitioners. Equality is part of the basic structure; Article 16(4) is a classification within equality, not an invitation to reverse discrimination, and it is an enabling power, not a fundamental right (para 6). A limited amending power is itself a basic feature (para 7). The 77th, 81st, 82nd and 85th Amendments were made to nullify Indra Sawhney, R.K. Sabharwal and Ajit Singh (II), and they create an untrammelled regime of reservations that undermines judicial review, efficiency and merit (paras 8-9).

For the respondents. The amending power under Article 368 is a constituent power; the Court's interpretation of a provision becomes part of the Constitution and is open to amendment, and an amendment fails only if it destroys a basic feature (para 10). Amendments that remove social and economic disparities do not offend the basic structure (para 11). Articles 16(4A) and 16(4B) are only enabling provisions that keep Articles 16(1) to 16(4) intact and confine promotion quotas to Scheduled Castes and Scheduled Tribes, so that other backward classes do not take all the vacancies (para 14). The 50% ceiling protects the general category, and an excessive reservation can still be struck down on its facts (paras 15-16).

No violation of the basic structure

Equality is a basic feature of the Constitution (para 35). A principle binds the amending power only if it is first part of the constitutional law binding on the legislature and then so fundamental that it binds even Parliament's amending power (para 27). The amendments are confined to Scheduled Castes and Scheduled Tribes, derive clause (4A) from clause (4) and retain the parameters of Article 16(4); they pass both tests the Court applied: under the width test no constitutional limitation is obliterated, and under the identity test the structure of the equality code is not altered (para 105). Nor were the amendments invalid as attempts to reverse the Court's decisions: under Article 141 those rulings were the law of the land, and it is that law the amendments change. A State law that ignores the parameters of Article 16(4) and Article 335 will still be struck down (para 105).

Catch-up rule and consequential seniority

Virpal Singh Chauhan itself held that the catch-up rule is not implicit in clauses (1) to (4) of Article 16, so it cannot bind the amending power (para 75). Both concepts are judicially evolved, drawn from service jurisprudence to control the extent of reservation, and cannot be raised to the level of axioms such as secularism (para 81). Deleting the catch-up rule or adding consequential seniority therefore does not change the equality code of Articles 14, 15 and 16 (para 105). Ajit Singh (I), Ajit Singh (II) and M.G. Badappanavar concerned weightage, not the validity of any amendment; whether to give consequential seniority is for the appropriate Government, keeping in mind backwardness, inadequacy and efficiency (para 83).

Carried-forward vacancies and relaxed standards

Article 16(4B) gives legislative assent to R.K. Sabharwal's post-based roster (para 99). It lifts the 50% cap only for backlog vacancies; the ceiling on current vacancies remains, and the appropriate Government must introduce a time-cap in the interest of efficiency (para 103). The split between current and carried-forward vacancies is a valid classification, and Articles 16(4), 16(4A) and 16(4B) form one scheme (para 119). Article 16(4A) follows Indra Sawhney's view that Scheduled Castes and Scheduled Tribes may be classified apart from other backward classes (paras 117-118). The Article 335 proviso relaxes the efficiency limit but does not obliterate it; the compelling interests that justify relaxing qualifying marks must be identified by weighty and comparable data (paras 107, 111).

What the State must show

Conferring a power does not breach equality; its arbitrary exercise does (para 110). The vesting of power may be valid and yet its exercise arbitrary if the State fails to identify and measure backwardness and inadequacy keeping efficiency in mind (para 48). In each case the State must place quantifiable data before the Court showing that reservation in promotion was needed because of inadequate representation in a class of posts, without affecting efficiency under Article 335. Whether a State has done so is decided case-wise, since the width of a power and its exercise call for different tests (para 120). The 50% ceiling, the creamy layer and the compelling reasons are constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse (para 125). The State is not bound to provide such reservation, and if it does it must avoid excessiveness (para 126).