Case Comment: M. Nagaraj and Others v. Union of India 2007

This case comment attempts to analyse the judgment of the Hon’ble Supreme Court of India in the case of M. Nagaraj v. Union of India reported in AIR 2007 SC 71, which dealt with a pertinent and extremely contentious issue of providing reservation in promotions and examines the same in the light of various principles pertaining to Constitutional law, namely right to equality and fairness, equal opportunity, power of Parliament and its limitations thereof.

“Equality may be a fiction but nonetheless one must accept it as the governing principle”

Dr. B.R. Ambedkar[1]

Introduction

The Hon’ble Supreme Court of India (hereinafter referred to as Supreme Court) on October 19, 2006, through a five-judge constitution bench, delivered a landmark judgment, concerning various issues vis-à-vis the scope and magnitude of reservation of jobs in the public domain. The principle of right to equality, liberty, and life are some of the basic human rights guaranteed by birth and need no formal document like the Constitution of India (hereinafter referred to as Constitution) to ascertain them.

Every civil society, in the words of Thomas Hobbes, in his book Leviathan advocated that all men are essentially equal in body, mind and by nature, but, however, they cannot reap the fruits of the same thing, which they fight for and thus, become inherent enemies[2].

Equal opportunity, according to John Rawls, is a pre-requisite of a civilized society,[3] however, the society does not make everyone equal and thus, it is appropriate to presume that the most disadvantaged have the greatest needs.

In a Country as ostentatious as India, entailing tremendous pluralism, humongous diversity, both ethnic and linguistic, which is known for its rich heritage also has a watermark on its collar in the form of a thousand-year-old practice of discrimination based on birth. The Varna system categorized humans based on the families they were born in and this led to a massive loss of human dignity in every form imaginable, which is intrinsic to every human being for an extremely long period, a period that cannot be calculated.

However, after the inception of our constitution and the explicit guarantee of equal status under Part III of the Constitution and various attempts made by the government to uplift the downtrodden through the affirmative action doctrine, which led to the emergence of reservation, the Supreme Court in the year 2006 was faced with multiple questions and the most pertinent one was whether it is constitutionally valid to extend reservation to the job.

Facts of the Case

The facts of the present case involved a challenge to the insertion of Arts. 16 (4A) and 16 (4B) by the Parliament of India via Constitution (Eighty-fifth Amendment) Act, 2001 (hereinafter referred to as the 85th Amendment Act), which inserted Art. 16 (4A) retrospectively for being in defiance of the basic structure doctrine and the judgment in the case of Indra Sawhney and Ors v. U.O.I.[4] (hereinafter referred to as Indra Sawhney).

The Constitution from its very inception has Art. 16, which begins with a non-obstante clause, authorizing the State to make laws for reservation of jobs or post for the backward classes, which the State thinks have not been adequately represented. The Parliament, stemming its authority from the said provision, inserted arts. 16 (4A) and (4B) into the Constitution.

The Constitution (Seventy-seventh Amendment) Act, 1995 permitted the State to make reservations for the Scheduled Castes and Scheduled Tribes (hereinafter referred to as SCs and STs) in promotions, which led to a massive hue and cry as it was being claimed that the purpose of bringing such provision into force was to woo the people belonging to the said communities and therefore, attract the voters from the same.

The Constitution (Eighty-first Amendment) Act, 2000 (hereinafter referred to as the 81st Amendment) permitted the State under Art. 16 (4B) from carrying forward the vacancies from the past one-year to any following years and that such posts shall not be coupled with the posts of that particular year, which implied that the cap of fifty percent, which the Supreme Court expounded in the Indra Sawhney case was negated and done away with by the Act of the Parliament.

The 85^th Amendment Act went a step ahead and granted consequential seniority to the SCs and STs. It implied that those who had been conferred with the promotion would also be granted seniority as its consequence as was the issue in the present case.

The present case raised several issues before the Supreme Court, which went beyond the constitutional validity of the amendments in question and posed various questions as regards the scope of judicial review, which was held to be a basic feature in the case of L. Chandra Kumar v. U.O.I & Ors.[5] along with other issues like the limitations, which the Parliament must observe while promulgating law bringing in the importance of the doctrine of basic structure.

Another issue raised was as regards the role of the Supreme Court as the ultimate interpreter of the provisions of the Constitution for the reason that it was contended in this particular case that the government deliberately overlooked all the previous decisions of the Supreme Court for e.g., Badappanavar,[6] Ajit Singh Januja,[7] Virpal Singh[8] and Indra Sawhney and defied its authority under Art. 141 of the Constitution, which clearly states that the pronouncements made by the Supreme Court shall be declared as the law of the land.

Arguments Advanced by the Petitioners

In the present case, the petitioners contended that the doctrine of equality is a deep-seated, integral, and inherent part of the Constitution and without the application of this doctrine; there may be constitution but no constitutionalism. Not only has it been guaranteed under Part III but has also been provided for under the Preamble of the Constitution. The petitioners urged that the practical facet of the said doctrine is in the context of public employment, which has been provided for under Part XIV of the Constitution.

It was argued that employment in the public sector consists of equality of opportunity as has been laid down under Art. 16 (1), followed by Art. 16 (2), which implements the principle of zero discrimination, followed by Art. 16 (3), which further elaborates on the idea of equality and incorporates the classification followed by the doctrine of affirmation action under Art. 16 (4). It was argued that Art. 16 (4) is a corollary of Art. 16 (1) in specific and Art. 14 in general and that it must be read and understood in the light of the said provisions and cannot be said to be in conflict with them.

Another contention raised by the petitioners was that the Parliament has violated that basic structure doctrine by inserting arts. 16 (4A) and (4B) in the Constitution and has transgressed its authority and has entered into an area forbidden by the Constitution as was held in the case of Kesavananda Bharati v. State of Kerala.[1] It was submitted that the Parliament’s power to amends the Constitution cannot be said to be unfettered as regards the basic structure is concerned and that it must observe its express limitations while bringing a change in the Constitution.

It was also contended that the Parliament has, by inserting Art. 16 (4B), negated the decision of the Supreme Court in Indra Sawhney, where the Supreme Court itself put a cap of fifty percent on the reservation and that the Parliament and has dishonored the principle of quantitative limits and qualitative exclusion, which clearly had demarcated a cover on the backward classes.

Arguments Advanced by the Respondents

On behalf of the Union of India, it was contended that the power under Art. 368 of the Constitution is exercised for the purpose of keeping the Constitution in consonance with the changing need of the society for the reason that the Constitution is not a stagnant piece of the document but rather a dynamic body of laws, which must cater to the need of the society and thus, to balance the same, it is required to keep it in repair.

The respondents also contended that the power under Art. 368 is not a constituted power rather a constituent power and thus, it is unimaginable to impose any restrictions on constituent powers.

It was contended that the Constitutional courts have time and again managed to strike a balance between individual rights and on the other hand the Constitutional goals of attainment of justice, social, economic and political, which in turn lead to the negation of socio-cultural and economic inequalities and thus, an amendment cannot be struck down on the basis that it violates the principle of equality if it serves the greater good for the reason that the purpose and object of formulating any policy is the attainment of the greatest good for the greatest number of people.

The respondents also argued that Art. 16 (4) has been present in the Constitution from its inception and that if the power is being delegated from the said provision, it is to override the authority under any other provision of the Constitution, including Art. 16 (1) and Art. 14 for that instance for the reason that the said authority is a constituent power delegated by Art. 16 (4), which holds equal authority as Art. 16 (1). If there is any limitation, it stands only to restrict the authority delegated from Art. 16 (4) within the bounds of the said provision and not transgress beyond the same.

It was also contended that Indra Sawhney was restricted to the jurisprudence pertaining to only one backward class, i.e., Other Backward Class (hereinafter referred to as OBCs) and not SCs and STs and to put SCs and STs on an equal footing with OBCs would be a constitutional blunder in itself and would do a historical injustice to these communities.

Analysis of the Present Case

The constitutional validity of arts. 16 (4A) and (4B) were upheld and thus, the validity of 77^th, 81^st, and 85^th amendments was upheld. The Court held that while the doctrine of equality was a part of the basic structure doctrine, the rule that prevented conferring seniority was not one and thus, the doctrine of basic structure could not be attracted and that the tests laid down in various cases cannot be resorted to and made applicable in the present case for the reason that those tests are to try the violation of basic structure and something that does not constitute its violation cannot be tried keeping in mind the same principles and same tests.

The Court held that the idea of providing for ‘accelerated promotions’ and application of the said principle is merely an evolution of the service jurisprudence, which has been propounded by various Courts and thus, cannot be tried or tested on the same grounds and principles as that of the and various components of the basic structure doctrine. The Court has also provided for various tests in the present case to deal with any such issue of similar nature in the near future, whereby the Court had instructed and mandated the government to come up with a quantifiable data to support their findings and only then such a benefit could be accorded on the applicants.

The bench deliberated on a variety of aspects in the present case ranging from the scope of judicial review to the doctrine of basic structure and the power of Parliament to exercise its power to amend under Art. 368. On the scope of judicial review, it was held that the power of judicial review is a part of the basic structure of the Constitution and that the Court is duty-bound to exercise this power whenever it is faced with the questions pertaining to a transgression of basic structure.

On the issue basic structure, it was held that the same is the part of our constitution and cannot be violated at any cost, however, the idea of reservation in promotions cannot be equated with the concepts of equality and therefore, it must be understood that the same mode and structure of testing cannot be made applicable thereof. The Court also held that it is not bound to make a reservation for SCs and STs in promotion but if it so wishes to do, it must provide relevant data, which must show that the same must be conferred on the concerned applicants.

Conclusion

On September 26, 2018, a five-judge bench was constituted in the case of Jarnail Singh v. L.N. Gupta[2] to analyze whether the case of M. Nagaraj ought to be referred to a larger bench for re-examination. There were several issues raised in the present case as regards its contravention with Indra Sawhney and the bench held it collectively in the present case that it is in clear violation with Indra Sawhney.

It also held that the Nagaraj judgment specified that the government must provide for a quantifiable data as regards backwardness is concerned is illegal and uncalled for due to the reason that the list only, after consideration by the President of India under arts. 341 and 342 are published and constitute SCs and STs.

The government cannot be directed to produce any more data to provide for reservation in seniority. It was also held in the 58-page long judgment that although the Indra Sawhney judgment never specifically called for a universal application of the ‘Creamy Layer’ doctrine by extending its application on SCs and STs that it advocated for the same as a façade of the principle of equality in the Constitution.

However, the decision in Jarnail Singh suffers from a lot of infirmities, one of which is that a Constitution bench comprising of five judges authored the judgment. A pertinent question, which lies here is that does it lie under the authority of a five-judge bench to deal with the questions of referring another five-judge bench judgment, where it is presumed that the judgment consists of infirmities and should be referred to a larger bench for re-examination.

Another criticism of M. Nagaraj lies in the fact that it merely reiterated the doctrine of basic structure and did not filter or elaborate on the principle and set limits to the principle of equality in the basic structure doctrine.

The judgment has also proved to be a failure for the reason that no structured plan was set out for balancing the principles of creamy layer, application of the same of SCs and STs, the scope and limitations of judicial review in such cases and more importantly the balance, which must be struck to balance the scope of the parliament’s authority to amend laws vis-à-vis basic structure doctrine.

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Authored by: Tushar Arora

National Law University and Judicial Academy, Assam

This Case Comment was shortlisted in 2nd Amity National Case Comment Writing Competition 2020

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Bibliography

Primary Sources

• The Constitution of India, 1950.
• The General Clauses Act, 1897.

Secondary Sources

• D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S.
• Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 6, 8th ed. 2012.
• D. BASU, SHORTER CONSTITUTION OF INDIA, 13th ed., 2001.
• GRANVILLE AUSTIN, THE INDIAN CONSTITUTION – CORNERSTONE OF A NATION 195 (2nd ed. 1999).
• M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007.
• P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010.

References

[1] AIR 1973 SC 1461.

[2] 2018 SCC OnLine SC 1641.

[1] B. R. Ambedkar, Annihilation Of Caste 105 (1936).

[2] Thomas Hobbes, Leviathan 67 (first published in 1651, 1985).

[3] John Rawls, Theory Of Justice 82 (1973).

[4] AIR 1993 SC 477.

[5] AIR 1997 SC 1125.

[6] M. G. Badappanavar And Another v. State of Karnataka, 2001 (1) KarLJ 236 (India).

[7] Ajit Singh Januja & Ors. v State of Punjab & Ors., AIR 1996 SC 1189 (India).

[8] Union of India v. Virpal Singh Chauhan & Ors., AIR 1996 SC 448 (India).

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