Constitution of India, 1950; Articles 14, 16(1), (2), (3), (4), (4A) & (4B), 47, 246, 335 and 368/Amendments Act 77th of 1995, 81st of 2000 and 85th of 2001:

Amendments in Constitution inserting Articles 16(4A) and 16(4B) - Reservation in promotion - Extent of - Equality of opportunity in employment - Altering of basic structure - Held: Principles set out in the Constitution should be interpreted by adopting a purposive approach - Secularism, democracy, reasonableness, social justice are overarching principles providing linking factor for fundamental rights - Validity of amendments in the Constitution is judged by applying the principle of basic structure - Equality is the essence of democracy and thus a basic feature of the Constitution - Fundamental rights could be abridged but not destroyed - Object and purpose of the particular feature and consequences of its denial on the integrity of the Constitution has to be determined/tested in order lo ascertain whether it forms part of the basic structure of the Constitution - Conflicting claim of individual right under Article 16(1) and preferential treatment given to a backward class have to be balanced-Application of concept of equality in public employment depend upon quantifiable data in each case - Since backward class seeks justice and general class seeks equity in public employment, reservation has to be used in a limited sense else it would perpetuate criticism - Exercise of power by the State may be arbitrary if it fails to identify and measure backwardness and inadequacy keeping in view the efficiency of service in terms of Article 335 of the Constitution - Equality in terms of Article 16(2) is individual specific - However, reservation as provided under Articles 16(4), 16(4)(A) is enabling - State has to ensure that no class prospers at the cost of other class and no person suffers because of backwardness - Applying the necessary tests/principles, amendments in question do not alter the structure of Articles 14, 15 and 16 of the Constitution - Equality is not violated by mere conferment of discretionary power but it is violated by arbitrary exercise of the power - Enabling provisions are permissible in nature as they are enacted to balance equality and positive discrimination-Since efficiency is a valuable factor, the State has to decide about the overall efficiency of the system - If relaxation is excessive/violates the substantive limits on the width of the power, such reservation falls and liable to be set aside - Articles 16(4), 16(4A) and 16(4B) together form part of the same constitutional scheme and they have nexus with Articles 17 and 46 of the Constitution - Articles 16(4A) and 16(4B) are classification within the principle of equality under Article 16(4) of the Constitution - Provided the Constitutional requirements in terms of ceiling limit of inadequacy of representation and overall administrative efficiency have been taken care of by the State concerned and their existence shown in each case - Hence the classification envisaged by Articles 16(4A) and 16(4B) upheld as the impugned amendments do not obliterate equality/alter the basic structure of the Constitution - Desirability of reservation in terms of Reservation policy could be decided by the State, it could not be interfered by Supreme Court so long as parameters in terms of Article 16(4)(A) are maintained.

Catch up rule - Scope of - Held: Concept of catch-up rule and consequential seniority are judicially evolved concepts to control the extent of reservation - Since catch-up rule is not implicit in Clauses (1) to (4) of Article 16, it cannot bind the amending power of the Parliament - State Government has to ascertain the cadre strength as a unit in the operation of the roster in order to ascertain adequacy of representation of a class/group in service - However, the upper ceiling limit of 50% should not be exceeded - Article 16(4)(A) gives freedom to the State to provide for reservation in the matter of promotion for Scheduled Castes and Scheduled Tribes - In the absence of compelling reasons of backwardness and inadequacy of representation, the State cannot make reservation-Besides, it should also keep in view overall efficiency in terms of Article 335.

Amendments in the Constitution - Judicial Review - Scope of - Discussed.

Basic structure of the Constitution - Determination of - Width test and identity test - Applicability of - Discussed.

'Constituent power' - Meaning of.

'Equality of opportunity' - Meaning of.

'Fundamental rights' - Meaning and scope of.

Limitation on the amending power of the Parliament - Held: Since fundamental rights could be abridged but could not be destroyed there exists no express limitation on the amending power of the Parliament.

Limitation on Legislative power vis-a-vis Judicial Review - Discussed.

'Merits', 'contents of reservation' - Meaning of.

Substantive Limitation and Procedural Limitation - Meaning of in the context of exercise of constitutional power by legislature.

Doctrine:

Doctrine of basic structure - Meaning and scope of.

Words and Phrases:

'Equality', 'formal equality', 'proportional equality', 'equality in law', 'equality in fact' and 'equality of opportunity' - Meaning of.

Petitioners have invoked Article 32 of the Constitution for issuing a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment) Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing for reservation in promotion with consequential seniority. Petitioners alleged 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, violation of the basic structure of the Constitution.

The questions which arose for consideration in these writ petitions were about the nature and extent of the judicial review required to be applied in judging the validity of the constitutional amendments in the context of the. doctrine of basic structure; as to whether there is any upper limit beyond which reservation is not permissible; as to whether there is any limit to which seats can be reserved in a particular year; as to whether the constitutional limitations on the amending power of the Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution; and as to 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.

Petitioner contended that the amendments in question seek to alter the fundamental right of equality which is part of the basic structure of the Constitution; that the equality in the context of Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority; that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1); that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency; that in the decided case of Indra Sawhney, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion; that contrary to the said judgment, the Parliament enacted the Constitution (Seventy-Seventh Amendment) Act, 1995 and Article 16(4A) was inserted, which reintroduced reservation in promotion; that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous; that the consequences of the impugned Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre; that equality is a part of the basic structure; that Article 16 of the Constitution has to be read with Article 14 and with several Articles in Part-IV of the Constitution; that the Constitution places an important significance on public employment and the rule of equality, inasmuch as, a specific guarantee is given under Article 16 protecting equality principles in public employment; that the Constitution makers had given importance to public employment by making a special provision in the form of Part XIV providing certain rights and protection to the office holders in the services of the Union and the States; that Article 335 recognizes the importance of efficiency in administration and the various provisions of the Constitution indicate that public employment was and is even today of central concern to the Constitution; that clause (4) of Article 16 is an instance of the classification implicit and permitted by Article 16(1) and that this view of equality did not dilute the importance of Article 16(1) or Article 16(2) but merely treated Article 16(4) as an instance of the classification; that this relationship of sub-clauses within Article 16 is not an invitation for reverse discrimination and that, equality of opportunity cannot be overruled by affirmative action; that "equality in employment" consists of equality of opportunity (Article 16(1)), anti-discrimination (Article 16(2)), special classification (Article 16(3)), affirmative action (Article 16(4)) which does not obliterate equality but which stands for classification within equality), and lastly, efficiency; that as regards the  words 'nothing in this article' in Article 16(4), these words cannot wipe out Article 16(1) and, therefore, they have a limited meaning; that equality in the Constitution conceives the individual right to be treated fairly without discrimination in the matter of equality of opportunity, it also conceives of affirmative action in Articles 15(4) and Article 16(4). It enables classification as a basis for enabling preferences and benefits for specific beneficiary groups and that neither classification nor affirmative action can obliterate the individual right to equal opportunity; that a balance has to be evolved to promote equal opportunities while protecting individual rights; that as an individual right in Article 16(1), enforceability is provided for whereas "group expectation" in Article 16(4) is not a fundamental right but it is an enabling power which is not coupled with duty; that if the structural balance of equality in the light of the efficiency is disturbed and if the individual right is encroached upon by excessive support for group expectations, it would amount to reverse discrimination; that the limited power of amendment cannot become an unlimited one; that a limited amendment power is one of the basic features of the Constitution and, therefore, limits on that power cannot be destroyed; that Parliament cannot under Article 368 expand its amending power so as to acquire for itself the right to abrogate the Constitution and if the width of the amendment invites abrogation of the basic structure then such amendment must fail; that directive principles cannot be used to undermine the basic structure principles underlying fundamental rights including principles of equality, fundamental freedoms, due process, religious freedom and judicial enforcement; that quotas are subject to quantitative limits and qualitative exclusions; that, there is a distinction between quota limits and ceiling-limits/maximum permissible reservation limits which comes under the category of quantitative limits; quotas are also subject to qualitative exclusions like creamy layer; that in numerous judgments and in particular in Indra Sawhney, M.G. Badaappanavar, Ajit Singh (II), the equality of opportunity in public employment is clarified in order to structure and balance Articles 16(1) and 16(4); that Articles 16(4A) and 16(4B) and the changes to Article 335 are merely enabling provisions and that in a given case if the exercise undertaken by the appropriate Government is found to bt arbitrary, this Court will set it right; that ingressing the basic structure is a per se violation of the Constitution; that the basis for impugned amendments is to overrule judicial decisions based on holistic interpretation of the Constitution and its basic values, concepts and structure; that the 77th Amendment introducing Article 16(4A) has the effect of nullifying the decision in the case of Indra Sawhney; that, the 81st Amendment introducing Article 16(4B) has been brought in to nullify the effect of the decision in R.K. Sabharwal & Ors. v. State of Punjab and Ors; that similarly the Constitution (Eighty-Second Amendment) Act introducing the proviso to Article 335 has been introduced to nullify the effect of the decision in the case of Indra Sawhney and a host of other cases, which emphasize the importance of maintaining efficiency in administration; that the 85th Amendment adding the words 'with consequential seniority' in Article 16(4A) has been made to nullify the decision in Ajit Singh (II); that the impugned amendments are violative of the basic structure and the fundamental values of the Constitution articulated in the preamble and encapsulated in Articles 14, 16 and 19; that, they violate the fundamental postulates of equality, justice, rule of law and secularism as enshrined in the Constitution and that they violate the fundamental role of the Supreme Court as interpreter of the Constitution; that the impugned amendments create an untrammelled, unrestrained and unconstitutional regime of reservations which destroys the judicial power and which undermines the efficacy of judicial review which is an integral part of rule of law; that Articles 14 and 16 have to be read with Article 335 as originally promulgated; that the impugned amendments invade the twin principle of efficiency, merit and the morale of public services and the foundation of good governance; and that the impugned amendments open the floodgates of disunity, disharmony and disintegration relied on.

Respondents submitted that the power of amendment under Article 368 is a 'constituent' power and not a 'constituted power'; that that there are no implied limitations on the constituent power under Article 368; that the power under Article 368 has to keep tile Constitution in repair as and when it becomes necessary and thereby protect and preserve the basic structure of the Constitution; that an interpretation placed by the Supreme Court on any provision of the Constitution gets inbuilt in the provisions interpreted. Such articles are capable of amendment under Article 368. Such change of the law so declared by the Supreme Court will not merely for that reason alone violate the basic structure of the Constitution or amount to usurpation of judicial power; that law has to change. It requires amendments to the Constitution according to the needs of time and needs of society. It is an ongoing process of judicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure  of the Constitution; that on every occasion when a constitutional matter comes before the Court, the meaning of the provisions of the Constitution will call for interpretation, but every interpretation of the Article does not become a basic feature of the Constitution; that there are no implied limitations on the power of the Parliament under Article 368 when it seeks to amend the Constitution; that the validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the Constitution; that amendments for giving effect to the directive principles cannot offend the basic structure of the Constitution; that the amendments which may abrogate individual rights but which promote Constitutional ideal of 'justice, social, economic and political' and the ideal of 'equality of status' are not liable to be struck down under Article 14 or Article 16(1) and consequently, such amendments cannot violate the basic structure of the Constitution; that the amendments to the Constitution which are aimed at removing social and economic disparities cannot offend the basic structure; that the concepts flowing from the preamble to the Constitution constitute the basic structure; that, basic structure is not found in a particular Article of the Constitution; and except the fundamental right to live, in Article 21 read with Article 14, no particular Article in Part-III is a basic feature; that equality mentioned in Articles 14 and 16 is not to be equated to the equality which is a basic feature of the Constitution; that the principle of balancing of rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution; that basic feature of the Constitution consists of constitutional axioms like constitutional supremacy, and democratic form of Government, secularism, separation of powers etc.; that Article 16( 4) is a part of the Constitution as originally enacted; that the exercise of the power by the delegate under Article 16(4) will override Article 16(1); It is not by virtue of the power of the delegate, but it is by virtue of constituent power itself having authorized such exercise by the delegate under Article 16(4), that article 16(1) shall stand overruled; that the only limitation on the power of delegate is that it should act within four corners of Article 16(4), namely, backward classes, which in the opinion of the State are not adequately represented in public employment. If this condition precedent is satisfied, a reservation will override Article 16(1) on account of the words 'nothing in this Article shall prevent the State'; that the right to consideration for promotion in service matters is not a basic feature; that Articles 16(4A) and 16(4B) are only enabling provisions; that, the constitutionality of the enabling power in Articles 16(4A) and 16(4B) is not to be tested with reference to the exercise of the power or manner of exercise of such power and that the impugned amendments have maintained the structure of Articles 16(1) to 16(4) intact; that the impugned amendments have retained reservations at the recruitment level in conformity with the judgment in Indra Sawhney, which has confined Article 16(4) only to initial appointments; that Article 16(4A) is a special provision which provides for reservation for promotion only to SCs and STs.; that under Article 16( 4A), reservation is limited. It is not to the extent of 50% but it is restricted only to SCs and STs, and, therefore, the "risk element" pointed out in Indra Sawhney stands reduced; that to carve out SCs/STs and make a separate classification is not only constitutional, but it is a constitutional obligation to do so under Article 46; that Article 16(4) is an overriding provision over Article 16(1) and if Article 16(4) cannot be said to constitute reverse discrimination then Article 16(4A) also cannot constitute reverse discrimination; that this Court has taken care of the interests of the general category by placing a ceiling on filling-up of vacancies only to a maximum of 50% for reservation; and that the amendment made by Article 16(4B) makes an exception to 50% ceiling-limit imposed by Indra Sawhney, by providing that the vacancies of previous years will not be considered with the current year's vacancies.