Reservations, Equality and the Constitution – VII: Exploring the Boundaries in M. Nagaraj

In response to the Ajit Singh case, which we discussed in the last post, the Government responded (not for the first time) by amending the Constitution. Recall that in 1995, through the 77th Amendment, Article 16(4A) had been inserted into the Constitution, which read, in relevant part:

“[The State can] make any provision for reservation in matters of promotion to any class or classes of posts… in favour of the Scheduled Castes or Scheduled Tribes.”

This, of course, was in response to Indra Sawhney, which had held that reservations extended to initial appointments but not to promotions. In Ajit Singh, the Court enunciated the catch-up rule, according to which promotions on the basis of reservations would not affect consequential seniority calculations in the higher level posts. The government then brought in the 85th Amendment in 2001, which read:

“In article 16 of the  Constitution,  in clause (4A), for the words “in matters of promotion to any class”, the words  “in matters of promotion, with consequential seniority, to  any class” shall be substituted.”

In addition, via the 81st Amendment, the government had also inserted Article 16(4B) into the Constitution, which read, in relevant part:

“[The State may consider] any unfilled vacancies of a year which are reserved for being filled up in that year… as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year”.

This is known as the carry-forward rule. Given the total reservation cannot exceed 50% in any given year, this rule allows the government to do an end run around that rule by “carrying forward” unfilled reserved posts from one year to the next; so suppose there are 100 posts, out of which 50 are reserved (in accordance with the Balaji rule). In year x, for whatever reason, only 30 out of 50 reserved posts are filled. Then, in year x + 1, the twenty unfilled posts can be “carried forward” – that is, the reserved posts in year x + 1 can be 50 + 20 = 70, and so onwards through the years.

Articles 16(4A) and 16(4B) were challenged before a Constitution Bench in 2007, in M. Nagaraj v. Union of India.  Since these were constitutional amendments at issue, this was a basic structure challenge. Along with 16(4A) and (4B), the petitioners also challenged the 82nd Amendment, which had (essentially) eviscerated Article 335. Article 335 originally required the claims of SCs and STs to be balanced with “efficiency in administration”, and had been invoked repeatedly by Courts (especially Indra Sawhney) to put limits on the extent and nature of government quotas. The 82nd Amendment added  a further clause to Article 335:

“…nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts.” 

The case of the petitioners was that, cumulatively, these amendments entirely destroyed the conception of equality running through Article 14, 15 and 16, which was part of the basic structure of the Constitution.

The Court recognised (as it had to) that equality was part of the basic structure (para 27). Of course, the question then becomes: at what level of abstraction do we understand “equality” in the sense that is part of the basic structure? As we have been discussing throughout the posts on reservations, the Courts have repeatedly struggled with the conception of equality that the Constitution commits us to – colour blindness, group subordination, and so on. While these conceptions are different ways of understanding what equality might require in particular situations, or particular instantiations of equality, they are nonetheless different understandings of the same abstract concept – that of equality. Before deciding, therefore, whether 16(4A) and (4B) violate the basic structure, it becomes important to decide what level of equality is involved when considering the basic structure.

This idea was implicit in the Court’s conclusion, after it exhaustively analysed precedent on the nature of the catch-up rule. It held: “the concept of ‘catch-up’ rule and ‘consequential seniority’ are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of ‘consequential seniority’ the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that ‘equality code’ under Article 14, 15 and 16 is violated by deletion of the ‘catch-up’ rule.”

The Court went on to observe:

“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.” (Para 67)

Although the Court failed to explain this rather cryptic statement, presumably, what it meant was this: Article 14 lays out the abstract concept of equality (which is a basic feature of the Constitution). Articles 16(1) [formal, individual-centric equality of opportunity] and 16(4) [group-based equality of outcomes] are two concrete conceptions of this concept, both of which form part of the Constitution (the use of the word “restatement” is unfortunate, since it signifies nothing). Insofar as 16(4A) and (4B) merely further the group-based vision of 16(4), therefore, they cannot said to be going against the basic structure (as long as, the Court was careful to add, the twin requirements of inadequacy in representation, and backwardness, are satisfied). It is possible, of course, that the balance could be upset by particular schemes of reservation established under these provisions. Thus, the Court observed:

“…the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.” (Para 73)

The problem, of course, is that the Court gives little to no indication about manner in which all these aspects – 50% ceiling limit, creamy layer etc. – are to be balanced, what degree of presumption the State is accorded, what standard of judicial review applies, and so on. While that remains an issue, notice how the structuring features of Article 16 correspond to the tension between the two competing conceptions of equality that we have discussed before, especially when the Court observes, for instance, in its concluding remarks:

“… the ceiling-limit of 50%, 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…” (Para 82)

The 50%-ceiling limit, drawn from the Balaji era, ensures that the colour-blind, individual-centric notion of equality in Article 16(1) continues to exert some force. The creamy layer, backwardness and inadequate representation elements operate to refine the group-subordination principle to make it fit for application in concrete contexts. In a sense, then, Nagaraj marks the continuation of the third phase in the Court’s equality jurisprudence. 16(4) and its progeny are not treated as exceptions anymore (Phase One), and nor is Article 16 as a whole treated as one comprehensive group-subordination principle (Phase Two); but rather, Article 16 is taken to be embodying two different visions of equality at odds with each other; the Court in this case accords to the government substantial discretion to find a balance (as is evident in its upholding (4A) and (4B), but also sets the outer limit (by defining the structuring principles underlying Article 16). This of course means that not all reservations all the time – even those that are formally authorized by the 16(4) family – will be constitutional (if, for instance, they entirely obliterate the 16(1) principle, which the Court understands to be embodied in the 50% rule). What will be interesting to see is whether, in future years (especially after Ashoka Kumar Thakur, which we will discuss in the next post), the Court will fine-tune and clarify further how, precisely, we are to understand the balance it has drawn under the Article 16 scheme.