M. Nagaraj v Union of India (2006) and Jarnail Singh v Lachhmi Narain Gupta (2018) — reservation in promotion after Indra Sawhney

Indra Sawhney held that reservation under Article 16(4) could not extend to promotion. Parliament responded with clauses (4A) and (4B). Nagaraj upheld those amendments against a basic-structure challenge but attached conditions; Jarnail Singh removed one of them. Together they state the present law on promotion quotas.

The Seventy-seventh Amendment (1995) inserted clause (4A) into Article 16, permitting "reservation in matters of promotion" for the Scheduled Castes and Tribes not adequately represented in the services of the State; the Eighty-fifth Amendment (2001) added the words "with consequential seniority" with retrospective effect from 17 June 1995; the Eighty-first Amendment (2000) inserted clause (4B), under which unfilled reserved vacancies of a year are treated as a separate class not counted "for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year"; and the Eighty-second Amendment (2000) added a proviso to Article 335 permitting relaxation of qualifying marks and lowering of standards of evaluation for the Scheduled Castes and Tribes in matters of promotion.

Issue. Whether the four amendments destroyed the equality code of Articles 14, 15 and 16 and so violated the basic structure.

Held. The Court applied "twin tests" for a basic-structure challenge, "the width test and the test of identity". 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." Their obliteration or insertion "does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution." Clause (4A) is an enabling provision: "The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to" excessiveness "so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely." On that footing: "we uphold the constitutional validity of the Constitution (Seventy- seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001."

Issue. Whether Nagaraj should be referred to a seven-judge Bench, in particular because its requirement of quantifiable data showing the backwardness of the Scheduled Castes and Tribes conflicted with Indra Sawhney, and because of its treatment of the creamy layer.

Held. "we conclude that the judgment in Nagaraj does not need to be referred to a seven Judge Bench. However, the conclusion in Nagaraj 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) is held to be invalid to this extent." The rest of Nagaraj "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." So "quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj on the inadequacy of representation, which can be tested by the Courts", and "the data would be relatable to the concerned cadre." On the creamy layer, the Court distinguished the argument for data on backwardness from "the concept of “creamy layer” which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage". The Court declined the Attorney General's request to lay down that the proportion of the Scheduled Castes and Tribes to the population should be the test of adequacy of representation.

Reservation in promotion for the Scheduled Castes and Tribes is permitted by Article 16(4A) but not required. Before providing it the State must have quantifiable data on the inadequacy of their representation in the cadre concerned and must attend to administrative efficiency under Article 335; it need not prove their backwardness, which Indra Sawhney treats as given for these classes. The reservation must not breach the 50 per cent ceiling, must exclude the creamy layer, and must not be extended indefinitely.