Jarnail Singh & Others vs Lachhmi Narain Gupta & Others

HELD: 1.1 Though M.Nagaraj is a later judgment, it does not refer to Chinnaiah case at all. The majority judgment of Hegde, J. does not refer to the creamy layer principle at all. Chinnaiah’s judgment in essence held that the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, which it considered, could not further sub-divide Scheduled Castes into four categories, as that would be violative of Article 341(2) of the Constitution of India for the simple reason that it is Parliament alone that can make any change in the Presidential List and not the State Legislatures. This is the true ratio of the judgment. This being the case, as Chinnaiah does not in any manner deal with any of the aspects on which the constitutional amendments in M.Nagaraj’s case were upheld, it was not necessary for M.Nagaraj case to refer to Chinnaiah at all. The true ratio of the judgment flows from a construction of Article

341. It is true that the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 was also found to be violative of Article 14. Chinnaiah case dealt with a completely different problem, apart from dealing with a State statute and not a constitutional amendment, as was dealt with in M.Nagaraj case. [Para 13] [694-F-G; 695-A-B, D]

1.2 Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, the reference to “class” in M.Nagaraj is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that M.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 (1) case. Jeevan Reddy, J., speaking for himself and three other learned Judges, had clearly held, “[t]he 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”. [Para 14] [695-E-H]

1.3 In fact, Chinnaiah case has referred to the Scheduled Castes as being the most backward among the backward classes. This is for the reason that the Presidential List contains only those castes or groups or parts thereof, which have been regarded as untouchables. Similarly, the Presidential List of Scheduled Tribes only refers to those tribes in remote backward areas who are socially extremely backward. Thus, it is clear that when M.Nagaraj case requires the States to collect quantifiable data on backwardness, insofar as Scheduled Castes and Scheduled Tribes are concerned, this would clearly be contrary to the Indra Sawhney (1) case and would have to be declared to be bad on this ground. 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 unequals within the same class are being treated equally with other members of that class. 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. Even these persons who are contained within the group or subgroup in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. [Para 15] [696-D-F; 698-A-D]

1.4 It is not necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that Constitutional Courts, applying Articles

14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub-group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. 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. Statement of Balakrishnan, C.J. in Ashoka Kumar Thakur case that the creamy layer principle is merely a principle of identification and not a principle of equality cannot be agreed upon. [Para 16] [698-E-H; 699-A]

1.5 When M.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. Therefore, clearly this part of the judgment does not need to be revisited, and consequently, there is no need to refer M.Nagaraj to a seven-Judge Bench. M.Nagaraj is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. In fact, the tests laid down in M.Nagaraj case for judging whether a constitutional amendment violates basic structure have been expressly approved by a nineJudge Bench of this Court in I.R. Coelho case. The entirety of the decision, far from being clearly erroneous, correctly applies the basic structure doctrine to uphold constitutional amendments on certain conditions which are based upon the equality principle as being part of basic structure. Thus, it is made clear that quantifiable data shall be collected by the State, on the parameters as stipulated in M.Nagaraj case on the inadequacy of representation, which can be tested by the Courts. The data would be relatable to the concerned cadre. [Para 17] [699-B-C; 700-C-D]

1.6 Even without the help of the first part of Article 16(4-A) of the Constitution (One Hundred Seventeeth Amendment) Bill, 2012, the providing of quantifiable data on backwardness when it comes to Scheduled Castes and Scheduled Tribes, has been held to be contrary to the majority in Indra Sawhney (1) case. So far as the second part of the substituted Article 16(4-A) contained in the Bill is concerned, it is noticed that 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. 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. 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 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. The 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 this argument is accepted, logically, Article 16(4-A) would have to be struck down, 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 in Indra Sawhney (1) 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 M.Nagaraj case. This being the case, one cannot countenance an argument which would indirectly revisit the basis or foundation of the constitutional amendments themselves in order that one small part of M.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 concept of “creamy layer” 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. [Para 19] [703-A-C, E-H; 704-A-C]

1.7 The Attorney General requested 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 M.Nagaraj case ought to have stated this, but has said nothing on this aspect. According to this Court, M.Nagaraj case 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 by B.P. Jeevan Reddy, J.’s judgment in Indra Sawhney (1) case, there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, it is made 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. It can be seen 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. [Para 20] [704-D-G]

1.8 The judgment in M.Nagaraj case does not need to be referred to a seven–Judge Bench. However, the conclusion in the M.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 (1) case is held to be invalid to this extent. [Para 21] [706-B]

M. Nagaraj v. Union of India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; Indra Sawhney v. Union of India (Indra Sawhney 1) (1992) Suppl. 3 SCC 217 : [1992] 2 Suppl. SCR 454 ; R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ;

E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 : [2004] 5 Suppl. SCR 972 ; Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay North [1965] 2 SCR 908 ; Indra Sawhney v. Union of India and Ors. (Indra Sawhney 2) (2000) 1 SCC 168 : [1999] 5 Suppl. SCR 229 ; Indira Nehru Gandhi v. Raj Narain & Anr. (1975) Suppl. SCC 1 : [1976] 2 SCR 347 ; Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 : [2008] 4 SCR 1 ; State of Kerala & Anr. v. N.M. Thomas and Ors. (1976) 2 SCC 310 : [1976] 1 SCR 906 ; I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and Ors. (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Anil Chandra v. Radha Krishna Gaur (2009) 9 SCC 454 : [2009] 14 SCR 335 (two-Judges Bench) ; Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors. (2011) 1 SCC 467 : [2010] 14 SCR 532 (two-Judges Bench) ; U.P. Power Corporation v. Rajesh Kumar & Ors. (2012) 7 SCC 1 : [2012] 4 SCR 118 (two-Judges Bench) ; S. Panneer Selvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10 SCC 292 (two-Judges Bench) ; Chairman & Managing Director, Central Bank of India & Ors. v. Central Bank of India SC/ST Employees Welfare Association & Ors. (2015) 12 SCC 308 : [2015] 1 SCR 55 (two-Judges Bench) ; Suresh Chand Gautam v. State of U.P. & Ors. (2016) 11 SCC 113 : [2016] 1 SCR 727 (two-Judges Bench) ; B.K. Pavitra & Ors. v. Union of India & Ors. (2017) 4 SCC 620 : [2017] 1 SCR 631 (two-Judges Bench) ; General Categories Welfare Federation v. Union of India (2012) 7 SCC 40 (three-Judge

Bench) ; Rohtas Bhankar v. Union of India (2014) 8 SCC 872 : [2014] 8 SCR 871 (five-Judge Bench) – referred to.