Date of Judgement : 26.09.2018
Coram : Deepak Mishra Cj., Kurian Joseph, R.F. Nariman, S.K. Kaul, Indu Malhotra JJ.
A bit haphazardly written judgement.
Imp. Notes –
- Constitution bench judgement on interpretation of requirement of quantifiable data for deciding reservation and creamy layer principle to SC /ST. It overturns one of the directions of Nagraj v Union of India (2006) 8 SCC 212
- There is a controversy whether Jarnail Singh case can over-rule the direction of a coordinate strength bench ( Nagraj was also a five judge bench). But in Davinder Singh (another five judge bench) the court held that creamy layer is a principle of equality and not classification and Jarnail Singh is not per incuriam as it corrected the error in the Nagraj, in view of the Indra Swhaney judgement (eleven bench judgement).
- This judgement is written in a haphazard manner.
Background of the present case and submissions-
- The correctness of Nagraj v Union of India Judgement was referred to a constitution bench by a two-judge bench
- The Attorney General contended that:
- Nagaraj 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 Supp (3) SCC 217. [ 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.]
- the creamy layer concept has not been applied in Indra Sawhney to the Scheduled Castes and the Scheduled Tribes and Nagaraj has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes.
- The attorney General also contends that:
- 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
- Nagaraj does not indicate any test for determining adequacy of representation in service
- Instead of quantifiable data test of Nagraj, 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 can be utilized.
- Indira Jayasingh argued
- Nagraj needs to be revisited on the ground that Art 16(4-A) and Art. 16(4-B) does not flow from Art. 16(4) but from Art. 16(1) and Art. 14.
- The claim of SC and ST arises from Art. 14, 16, 16(4-A) and 16(4-B) and 335 and further classification on the basis of quantifiable data test ( of Nagraj) will result in sub classification of a class. This has been made impermissible by Indra Swahney and E.V. Chinniah v State of AP (2005) 1 SCC 394.
- Shanti Bhushan supported Nagraj on the ground that:
- Nagaraj 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.
- A Constitution Bench judgment which has stood the test of time, ought not to be revisited. [ Keshav Mills Co. Ltd v Commissioner of Income Tax, Bombay North]
- Nagaraj 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
- 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. Creamy layer is for individual rights and not for global rights.
- Rakesh Dwivedi told that SC and ST employees may have shed their backwardness during the course of their employment and hence quantifiable data collection may be necessary
Judgement of the court-
- Can a constitution bench judgement be reviewed (in view of Keshav Mills case)
- Before revisiting the decision of a court, it must be seen whether (i) it is in interest of public good (ii) for any valid and compulsive reason. Once a decision is made there should be an endeavour to maintain its sanctity and continuity
- A revisiting of earlier decision depends on –
- 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?
- would the reversal of the earlier decision lead to public inconvenience, hardship or mischief?
- If the earlier decision was a constitution bench, then the above test is stricter
- In Nagraj the contentious issue was, whether the constitutional amendment adding Art. 16(4-A) and Art. 16(4-B) violated basic structure of the constitution.
- Whether an impugned constitutional amendment violates the basic structure is understood by width test and the test of identity. [imp point for objective answer]
- Indra Swahney referred to and contrasted Article 16(4) with Article 15(4), and stated that when Article 16(4) refers to a backward class of citizens, it refers primarily to social backwardness. About SC and ST, Indra Swahney told-
“we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.”
- 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
- 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. Clause (4) of Article 16, however, states that the 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.
- 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.
- Ceiling limit of 50% of reservation, 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.
- For Creamy layer principle Indra Swaheny told-
“This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes)”
The judgement decided that-
- the test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression ―backward class of citizens.
ii. in certain posts, of specialities and super-specialities, provisions for reservation would not be advisable
iii. reservation would apply at the stage of initial entry only and would not apply at the stage of promotion.
- In Indra Swahney v Union of India (2000) 1 SCC 168 summarized the Indra Swaheny (I) on the principles of Creamy Layer as-
- a member of the backward class reaching an ―advanced social level or status‖, he would no longer belong to the backward class and would have to be weeded out
- exclusion of such (creamy layer) socially advanced members will make the ―class‖ a truly backward class and would more appropriately serve the purpose and object of clause
- ―If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class
- The basis of exclusion of the ―creamy layer‖ must not be merely economic, unless economic advancement is so high that it necessarily means social advancement,
- the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone
- Creamy layer has to be excluded and ―economic criterion‖ is to be adopted as an indicium or measure of social advancement
- The socially advanced persons must be excluded
- Social advancement is to be judged by the ―capacity to compete‖ with forward castes, achieved by the members or sections of the backward classes
- The creamy layer has to be ―weeded out‖ and excluded, if it has attained a ―certain predetermined economic level‖
- the ―means-test is imperative to skim off the ―affluent‖ sections of backward classes.
- In Chinniah the Supreme Court was faced with the legality of a proposition of an act which said “The 15% reservation that was made in favour of the Scheduled Castes was further apportioned among four groups in varying percentages – Group A to the extent of 1%; Group B to the extent of 7%; Group C to the extent of 6%; and Group D to the extent of 1%”. The Supreme Court rejected the splitting up of Scheduled Castes on the basis of backwardness into groups. The reason given –
“it is clear that the castes once included in the Presidential List, form a class by themselves. If they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.”
The court also held subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. A uniform yardstick must be adopted for giving benefits to the members of the Scheduled Castes for the purpose of the Constitution and sub division not possible.
- In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 the court held that the ―creamy layer‖ principle is inapplicable to Scheduled Castes and Scheduled Tribes as it is merely a principle of identification of the backward class and not applied as a principle of equality.
- Nagraj cannot oppose Chinniah because Nagraj has not referred Chinniah at all. Chinniah does not refer to creamy layer principle at all.
- Nagaraj has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. This portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney which said “test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression ―backward class of citizens” à Hence Nagraj is over ruled to that extent that it requires the state to collect quantifiable data to determine the backwardness of SC and ST against the principle of Indra Swahney.
- However, when it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16(1), as unequal within the same class are being treated equally with other members of that class.[ Principle of Creamy Layer was first stated in State of Kerala & Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310.] à imp
- The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India.
- The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation
- When Articles 14 and 16 are harmoniously interpreted along with other Articles 341 and 342, it is clear that Parliament will have complete freedom to include or exclude persons from the Presidential Lists based on relevant factors. Similarly, Constitutional Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India
- When Nagaraj applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or Article 342.
- The object of Article 16(4-A) and 16(4-B) is to do away with the nine-Judge Bench in Indra Sawhney (1) (supra) 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.
- Nagaraj (supra) 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.
- 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.
- It is concluded that the judgment in Nagaraj (supra) does not need to be referred to a seven–Judge Bench.
- The conclusion in Nagaraj (supra) 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 (1) (supra) is held to be invalid to this extent.
The tests laid down in Nagaraj for judging whether a constitutional amendment violates basic structure have been expressly approved by a nine-Judge Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and Ors., (2007) 2 SCC 1 [ imp point]. Besides many judgements have referred the Nagraj judgement including Rohtas Bhaskar v Union of India ( 2014) 8 SCC 872 ( a five judge bench) Hence there is no requirement to send the entirety of judgement to a seven judge bench.