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New Delhi: The Supreme Court of India has concluded in response to a series of petitions linked with reservation in Promotion and the 2006 apex court judgement in the M Nagaraj case that the Nagaraj judgment does not need to be referred to a seven–Judge Bench.

The Court has however held that the conclusion in the Nagaraj case that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney case is held to be invalid (to that extent).

A five Judge Bench of the Supreme Court comprising of Chief Justie of India Dipak Misra, and Justices Kurian Joseph, R.F. Nariman , Sanjay Kishan Kaul, and Indu Malhotra today said that it is clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. For this purpose, the contrast of Article 16(4-A) and 16(4-B) with Article 330 of the Constitution is important.

Observing that when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is mandated by the Constitution. The
difference in language between this provision and Article 16(4-A) is important, the Bench has said adding “we decline the invitation of the learned Attorney General to say any more in this behalf.”

During the course of hearing the Attorney General of India also requested the Court to lay down that
the proportion of Scheduled Castes and Scheduled Tribes to the population of India should be taken to be the test for determining whether they are adequately represented in promotional posts for the purpose of Article 16(4-A). He complained that Nagaraj judgement ought to have stated this, but has said nothing on this aspect. In this regard, today’s order says: The Nagaraj judgement has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in
promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out in Indra Sawhney case, there may be certain posts right at the top, where reservation is impermissible altogether.

The order goes on to point out that even without the help of the first part of Article 16(4-A) of the 2012 Amendment Bill, the providing of quantifiable data on backwardness when it comes to Scheduled Castes and Scheduled Tribes, has already been held by the Court to be contrary to the majority in Indra Sawhney case. So far as the second part of the substituted Article 16(4-A) contained in the Bill is concerned, the proportionality to the population of Scheduled Castes and Scheduled Tribes is not something that occurs in Article 16(4-A) as enacted, which must be contrasted with Article 330. Hence it may only be added that Article 46, which is a provision occurring in the Directive Principles of State Policy, has always made the distinction between the Scheduled Castes and the Scheduled Tribes and other weaker sections of the people. Article 46 reads as follows:

“Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.—The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

This being the case, it is easy to see the pattern of Article 46 being followed in Article 16(4) and Article 16(4-A). Whereas ―backward classes in Article 16(4) is equivalent to the ―weaker sections of the
people in Article 46, and is the overall genus, the species of Scheduled Castes and Scheduled Tribes is separately mentioned in the latter part of Article 46 and Article 16(4-A). This is for the reason, as has been pointed out by the Bench, that the Scheduled Castes and the Scheduled Tribes are the most backward or the weakest of the weaker sections of society, and are, therefore, presumed to be backward. One of the Counsels (Dwivedi’s) argument that as a member of a Scheduled Caste or a Scheduled Tribe reaches the higher posts, he/she no longer has the taint of either untouchability or backwardness, as the case may be, and that therefore, the State can judge the absence of backwardness as the posts go higher, is an argument that goes to the validity of Article 16(4-A). If we were to accept this argument, logically, we would have to strike down Article 16(4-A), as the necessity for continuing reservation for a Scheduled Caste and/or Scheduled Tribe member in the higher posts would then disappear.

Since the object of Article 16(4-A) and 16(4-B) is to do away with the nine-Judge Bench order in Indra Sawhney case when it came to reservation in promotions in favour of the Scheduled Castes and Scheduled Tribes, that object must be given effect to, and has been given effect by the judgment in Nagaraj case. This being the case, the Supreme Court Bench observed, it cannot countenance an argument which would indirectly revisit the basis or foundation of the constitutional amendments themselves, in order that one small part of Nagaraj case be upheld, namely, that there be quantifiable data for judging backwardness of the Scheduled Castes and the Scheduled Tribes in promotional posts. The Bench has further added in response to the argument of one of the counsels that it cannot be confused with the concept of “creamy layer” which, as has been pointed out by the Bench, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes.

The present group of cases arose out of two reference orders – the first by a two-Judge Bench referred to in a second reference order of 15 November 2017, which is by a three-Judge Bench, which has referred the correctness of the decision in M. Nagaraj v. Union of India, (2006) 8 SCC 212, (“Nagaraj”), to a Constitution Bench.

The controversy in these matters revolved around the interpretation of the following Articles of the Constitution of India:

16. Equality of opportunity in matters of public employment.

(4-A) 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.

(4-B) 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 reservation made
under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year
or years and such class of vacancies shall not be considered together with the vacancies of the year
in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:

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

341. Scheduled Castes.

(1) The President may with respect to any State or Union Territory, and
where it is a State, after consultation with the Governor thereof, by public notification, specify the
castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes
of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as
the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a
notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or
tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any
subsequent notification.

342. Scheduled Tribes.

(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by
any subsequent notification.”

The Supreme Court Bench in this instant case confined arguments to two points which required serious consideration.

The Attorney General for India, K.K. Venugopal, led the charge for reconsideration of Nagaraj judgement. According to the Attorney General, Nagaraj judgement required to be revisited on these two
points. First, when Nagaraj judgement states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the nine-Judge Bench in Indra Sawhney v. Union of India, 1992 judgement as it has been held therein that the Scheduled Castes and the Scheduled Tribes are the most backward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the Scheduled Castes and the Scheduled Tribes all over again. Secondly, according to the Attorney General, the creamy layer concept has not been applied in Indra Sawhney judgement to the Scheduled Castes and the Scheduled Tribes and Nagaraj judgement has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes. According to the Attorney General, once the Scheduled Castes and the Scheduled Tribes
have been set out in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament under Articles 341 and 342. The Attorney General also argued that Nagaraj judgement does not indicate any test for determining adequacy of representation in service. According to him, it was important for the court to lay down that the test be the test of proportion of Scheduled Castes and Scheduled Tribes to the population in India at all stages of promotion, and for this purpose, the roster that has been referred to in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 could be utilized. Other counsel who argued, apart from the Attorney General, with certain nuances, reiterated the same arguments. Ms. Indira Jaising, senior advocate, appearing on behalf of one of the Petitioners in C.A. No. 11816 of 2016, submitted that Nagaraj judgement needs to be revisited also on the ground that Article 16(4-A) and 16(4-B) do not flow from Article 16(4), but instead flow from Articles 14 and 16(1) of the Constitution. She further argued that claims of the Scheduled Castes and the Scheduled Tribes are based on a reading of Articles 14, 15, 16, 16(4-A), 16(4-B), and 335 of the Constitution. It was further submitted that a further sub-classification within Scheduled Castes and Scheduled Tribes is impermissible, as has been held in Indira Sawhney case and in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (“Chinnaiah”). She argued that the decision in Nagaraj case would have the effect of amending the Presidential Order relating to Scheduled Castes and Scheduled Tribes, which would violate Articles 341 and 342 of the Constitution of India, as Parliament alone can amend a Presidential Order. She concluded her argument by saying that the exercise of reading down a constitutional amendment to make it valid, conducted in Nagaraj case, was constitutionally impermissible. P.S. Patwalia, senior advocate, appearing on behalf of the State of Tripura, reiterated some of the submissions and added that Nagaraj judgement and Chinnaiah cannot stand together, which is why Nagaraj judgement is per incuriam as it does not refer to the judgment in Chinnaiah case at all.

On the other hand, Shanti Bhushan defended Nagaraj judgement by stating that it speaks about
backwardness of the ―class, what is referred to is not Scheduled Castes and Scheduled Tribes at all, but the class of posts. Hence, it is clear that backwardness in relation to the class of posts spoken of would require quantifiable data, and it is in that context that the aforesaid observation is made. He also argued, relying upon Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay North, (1965) 2 SCR 908, that a Constitution Bench judgment which has stood the test of time, ought not to be revisited, and if the parameters of Keshav Mills judgement are to be applied, it is clear that Nagaraj judgement ought not to be revisited. Rajeev Dhavan, senior advocate, argued before the Bench that Nagaraj judgement has to be understood as a judgment which has upheld the constitutional amendments adding Articles 16(4-A) and 16(4-B) on the ground that they do not violate the basic structure of the Constitution. According to him, since equality is part of the basic structure, and Nagaraj judgement has applied the 50% cutoff criterion, creamy layer, and no indefinite extension of reservation, as facets of the equality principle to uphold the said constitutional amendments, Nagaraj judgement ought not to be revisited. According to the senior counsel, “creamy layer” is a matter of applying the equality principle, as unequals within the same class are sought to be weeded out as they cannot be treated as equal to the others. The whole basis for application of the creamy layer principle is that those genuinely deserving of reservation would otherwise not get the benefits of reservation and conversely, those who are undeserving, get the said benefits. According to the senior advocate, the creamy layer principle applies to exclude certain individuals from the class and does not deal with group rights at all. This being the case, Articles 341 and 342 are not attracted. Further, Articles 341 and 342 do not concern themselves with reservation at all. They concern themselves only with identification of those who can be called Scheduled Castes and Scheduled Tribes. On the other hand, the creamy layer principle is applied by Courts to exclude certain persons from reservation made from within that class on the touchstone of Articles 14 and 16(1) of the Constitution of India. He argued that even if it be conceded that creamy layer can fall within Articles 341 and 342, yet the Court’s power to enforce fundamental rights as part of the basic structure cannot be taken away. Indeed, Nagaraj was a case pertaining to a constitutional amendment and, therefore, Articles 341 and 342 cannot stand in the way of applying the basic structure test to a constitutional amendment.

Rakesh Dwivedi, senior advocate, appearing in C.A. No. 5247 of 2016, submitted that the crucial language contained in Article 16(4-A) is that the word ―which would show that Scheduled Castes and Scheduled Tribes have to continue to be ―backward. If the expression ―the Scheduled Castes and the Scheduled Tribes in Article 16(4-A) would be read as ―the Scheduled Castes and the Scheduled Tribes employees, this would become even clearer. Therefore, according to the senior advocate, continued social backwardness of the Scheduled Castes/Scheduled Tribes employees has necessarily to be assessed. While making promotions to higher level posts, it becomes clear that a Scheduled Caste/Scheduled Tribe employee may have cast off his backwardness when he/she reaches a
fairly high stage in a service, for example, the post of Deputy Chief Engineer, at which stage, it would be open for the State to say that having regard to the absence of any backwardness of the Scheduled
Caste/Scheduled Tribe employee at this stage, it would be expedient not to reserve anything further in posts above this stage. Naphade, Gopal Sankaranarayanan and other counsel followed suit and broadly supported the arguments of Dhavan and Dwivedi.

The Bench has observed since it was asked to revisit a unanimous Constitution Bench judgment, it was important to bear in mind the admonition of the Constitution Bench judgment in Keshav Mills case. The Supreme Court said in that case:
“In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:

— What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully
borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its
earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court.”