1  

REPORTABLE  

IN THE SUPREME COURT OF INDIA    

CIVIL APPELLATE JURISDICTION    

SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011      JARNAIL SINGH & OTHERS    … PETITIONERS  

VERSUS      

LACHHMI NARAIN GUPTA & OTHERS  …RESPONDENTS        

WITH      

SPECIAL LEAVE PETITION (CIVIL) NO.31735 OF 2011    

SPECIAL LEAVE PETITION (CIVIL) NO.35000 OF 2011    

SPECIAL LEAVE PETITION (CIVIL) NO.4831 OF 2012    

SPECIAL LEAVE PETITION (CIVIL) NO.2839 OF 2012    

SPECIAL LEAVE PETITION (CIVIL) NO.5860 OF 2012    

SPECIAL LEAVE PETITION (CIVIL) NO.5859 OF 2012    

SPECIAL LEAVE PETITION (CIVIL) NO.30841 OF 2012    

SPECIAL LEAVE PETITION (CIVIL) NO.8327 OF 2014

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 SPECIAL LEAVE PETITION (CIVIL) NO.6915 OF 2014  

 SPECIAL LEAVE PETITION (CIVIL) NOS.16710-16711 OF 2014  

 SPECIAL LEAVE PETITION (CIVIL) NO.33163 OF 2014  

 SPECIAL LEAVE PETITION (CIVIL) NO.23344 OF 2014  

 SPECIAL LEAVE PETITION (CIVIL) NOS.23339-23340 OF 2014  

 SPECIAL LEAVE PETITION (CIVIL) NO.21343 OF 2015  

 CIVIL APPEAL NOS.4562-4564 OF 2017  

 SPECIAL LEAVE PETITION (CIVIL) NO.25191 OF 2015  

 CIVIL APPEAL NO.4880 OF 2017  

 CIVIL APPEAL NOS.4878-4879 OF 2017  

 SPECIAL LEAVE PETITION (CIVIL) NO.31191 OF 2015  

 CIVIL APPEAL NOS.4876-4877 OF 2017  

 CIVIL APPEAL NO.4881 OF 2017  

 SPECIAL LEAVE PETITION (CIVIL) NO.33688 OF 2015  

 CIVIL APPEAL NO.4882 OF 2017  

 CONTEMPT PETITION (CIVIL) NO.314 OF 2016   

IN  SPECIAL LEAVE PETITION (CIVIL) NO.4831 OF 2012  

 CIVIL APPEAL NO.5247 OF 2016  

 CIVIL APPEAL NO.11817 OF 2016  

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CIVIL APPEAL NO.11816 OF 2016    

CIVIL APPEAL NO.11820 OF 2016    

TRANSFER PETITION (CIVIL) NOS.608-609 OF 2017    

CIVIL APPEAL NO.4833 OF 2017    

CIVIL APPEAL NOS.701-704 OF 2017    

CIVIL APPEAL NOS.11822-11825 OF 2016    

CIVIL APPEAL NOS.11837-11840 OF 2016    

CIVIL APPEAL NOS.11842-11845 OF 2016    

CIVIL APPEAL NOS.11829-11832 OF 2016    

CIVIL APPEAL NOS.11847-11850 OF 2016    

CIVIL APPEAL NO.11828 OF 2016    

CONTEMPT PETITION (CIVIL) NO.11 OF 2017  IN   

SPECIAL LEAVE PETITION (CIVIL) NO.19765 OF 2015   @ SPECIAL LEAVE PETITION (CIVIL) NOS.19765-19767 OF 2015  

 CONTEMPT PETITION (CIVIL) NO.13 OF 2017  

IN   SPECIAL LEAVE PETITION (CIVIL) NO.19767 OF 2015   

@ SPECIAL LEAVE PETITION (CIVIL) NOS.19765-19767 OF 2015    

SPECIAL LEAVE PETITION (CIVIL) NO.10638 OF 2017    

SPECIAL LEAVE PETITION (CIVIL) NO……. CC NO.6821 OF  

2017  

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SPECIAL LEAVE PETITION (CIVIL) NO.17491 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.18844 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NOS.19422-19423 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.24681 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.28776 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.29066 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.30189 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.31145 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NOS.28446-28447 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.28306 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.33481 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.33481 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.30942 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.33488 OF 2017  

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SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.34271 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.34520 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.35324 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.35577 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.35818 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.36305 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.36377 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.31288 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.38895 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.42413 OF 2017  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.619 OF 2018  

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SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.969 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.971 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.1042 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.1046 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.1584 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.2677 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.7243 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.16469 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.18925 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2018  

DIARY NO.22349 OF 2018  

SPECIAL LEAVE PETITION (CIVIL) NO.22985 OF 2018  

7  

J U D G M E N T  

R.F. Nariman, J.    

1. The present group of cases arises out of two reference orders –  

the first by a two-Judge Bench referred to in a second reference order,  

dated 15.11.2017, which is by a three-Judge Bench, which has referred  

the correctness of the decision in M. Nagaraj v. Union of India, (2006) 8  

SCC 212, (“Nagaraj”), to a Constitution Bench.   

2. The controversy in these matters revolves around the  

interpretation of the following Articles of the Constitution of India:   

―16. Equality of opportunity in matters of public  employment.—  

xxx xxx xxx  

(4-A) Nothing in this article shall prevent the State  from making any provision for reservation in matters  of promotion, with consequential seniority, to any  class or classes of posts in the services under the  State in favour of the Scheduled Castes and the  Scheduled Tribes which, in the opinion of the State,  are not adequately represented in the services  under the State.  

(4-B) Nothing in this article shall prevent the State  from considering any unfilled vacancies of a year  which are reserved for being filled up in that year in  accordance with any provision for reservation made  under clause (4) or clause (4-A) as a separate class  of vacancies to be filled up in any succeeding year  or years and such class of vacancies shall not be

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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.‖  

xxx xxx xxx    ―335. Claims of Scheduled Castes and  Scheduled Tribes to services and posts.—The  claims of the members of the Scheduled Castes and  the Scheduled Tribes shall be taken into  consideration, consistently with the maintenance of  efficiency of administration, in the making of  appointments to services and posts in connection  with the affairs of the Union or of a State:  

Provided that 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 in connection with the affairs of the  Union or of a State.‖    xxx xxx xxx    ―341. Scheduled Castes.—(1) The President may  with respect to any State or Union Territory, and  where it is a State, after consultation with the  Governor thereof, by public notification, specify the  castes, races or tribes or parts of or groups within  castes, races or tribes which shall for the purposes  of this Constitution be deemed to be Scheduled  Castes in relation to that State or Union territory, as  the case may be.  

(2) Parliament may by law include in or exclude from  the list of Scheduled Castes specified in a  notification issued under clause (1) any caste, race

9  

or tribe or part of or group within any caste, race or  tribe, but save as aforesaid a notification issued  under the said clause shall not be varied by any  subsequent notification.‖    xxx xxx xxx    ―342. Scheduled Tribes.—(1) The President may  with respect to any State or Union territory, and  where it is a State, after consultation with the  Governor thereof, by public notification, specify the  tribes or tribal communities or parts of or groups  within tribes or tribal communities which shall for the  purposes of this Constitution be deemed to be  Scheduled Tribes in relation to that State or Union  territory, as the case may be.  

(2) Parliament may by law include in or exclude from  the list of Scheduled Tribes specified in a notification  issued under clause (1) any tribe or tribal community  or part of or group within any tribe or tribal  community, but save as aforesaid a notification  issued under the said clause shall not be varied by  any subsequent notification.‖  

3. We have heard wide-ranging arguments on either side for a  

couple of days, raising several points. However, ultimately, we have  

confined arguments to two points which require serious consideration.  

The learned Attorney General for India, Shri K.K. Venugopal, led the  

charge for reconsideration of Nagaraj (supra). According to the learned  

Attorney General, Nagaraj (supra) needs to be revisited on these two  

points. First, when  Nagaraj  (supra)  states  that  the State has to collect  

10  

quantifiable data showing backwardness, such observation would be  

contrary to the nine-Judge Bench in Indra Sawhney v. Union of India,  

1992 Supp (3) SCC 217, (“Indra Sawhney (1)”), as it has been held  

therein that the Scheduled Castes and the Scheduled Tribes are the  

most backward among backward classes and it is, therefore, presumed  

that once they are contained in the Presidential List under Articles 341  

and 342 of the Constitution of India, there is no question of showing  

backwardness of the Scheduled Castes and the Scheduled Tribes all  

over again. Secondly, according to the learned Attorney General, the  

creamy layer concept has not been applied in Indra Sawhney (1)  

(supra) to the Scheduled Castes and the Scheduled Tribes and Nagaraj  

(supra) has misread the aforesaid judgment to apply this concept to the  

Scheduled Castes and the Scheduled Tribes. According to the learned  

Attorney General, once the Scheduled Castes and the Scheduled Tribes  

have been set out in the Presidential List, they shall be deemed to be  

Scheduled Castes and Scheduled Tribes, and the said List cannot be  

altered by anybody except Parliament under Articles 341 and 342. The  

learned Attorney General also argued that Nagaraj (supra) does not  

indicate any test for determining adequacy of representation in service.  

According to him, it is important that we lay down that the test be the test

11  

of proportion of Scheduled Castes and Scheduled Tribes to the  

population in India at all stages of promotion, and for this purpose, the  

roster that has been referred to in R.K. Sabharwal v. State of Punjab,  

(1995) 2 SCC 745 can be utilized. Other counsel who argued, apart from  

the learned Attorney General, have, with certain nuances, reiterated the  

same arguments. Ms. Indira Jaising, learned senior advocate, appearing  

on behalf of one of the Petitioners in C.A. No. 11816 of 2016, submitted  

that Nagaraj (supra) needs to be revisited also on the ground that Article  

16(4-A) and 16(4-B) do not flow from Article 16(4), but instead flow from  

Articles 14 and 16(1) of the Constitution. She further argued that claims  

of the Scheduled Castes and the Scheduled Tribes are based on a  

reading of Articles 14, 15, 16, 16(4-A), 16(4-B), and 335 of the  

Constitution. It was further submitted that a further sub-classification  

within Scheduled Castes and Scheduled Tribes is impermissible, as has  

been held in Indira Sawhney (1) (supra) and in E.V. Chinnaiah v. State  

of A.P., (2005) 1 SCC 394 (“Chinnaiah”). She argued that the decision  

in Nagaraj (supra) would have the effect of amending the Presidential  

Order relating to Scheduled Castes and Scheduled Tribes, which would  

violate Articles 341 and 342 of the Constitution of India, as Parliament  

alone can amend a Presidential Order. She concluded her argument by

12  

saying that the exercise of reading down a constitutional amendment to  

make it valid, conducted in Nagaraj (supra), was constitutionally  

impermissible. Shri P.S. Patwalia, learned senior advocate, appearing on  

behalf of the State of Tripura, reiterated some of the submissions and  

added that Nagaraj (supra) and Chinnaiah (supra) cannot stand  

together, which is why Nagaraj (supra) is per incuriam as it does not  

refer to the judgment in Chinnaiah (supra) at all.  

 4. On the other hand, Shri Shanti Bhushan has defended Nagaraj  

(supra) by stating that when Nagaraj (supra) speaks about  

backwardness of the ―class‖, what is referred to is not Scheduled Castes  

and Scheduled Tribes at all, but the class of posts. Hence, it is clear that  

backwardness in relation to the class of posts spoken of would require  

quantifiable data, and it is in that context that the aforesaid observation is  

made. He also argued, relying upon Keshav Mills Co. Ltd. v.  

Commissioner of Income-Tax, Bombay North, (1965) 2 SCR 908,  

(“Keshav Mills”), that a Constitution Bench judgment which has stood  

the test of time, ought not to be revisited, and if the parameters of  

Keshav Mills (supra) are to be applied, it is clear that Nagaraj (supra)  

ought not to be revisited. Shri Rajeev Dhavan, learned senior advocate,

13  

has argued before us that Nagaraj (supra) has to be understood as a  

judgment which has upheld the constitutional amendments adding  

Articles 16(4-A) and 16(4-B) on the ground that they do not violate the  

basic structure of the Constitution. According to him, since equality is  

part of the basic structure, and Nagaraj (supra) has applied the 50% cut-

off criterion, creamy layer, and no indefinite extension of reservation, as  

facets of the equality principle to uphold the said constitutional  

amendments, Nagaraj (supra) ought not to be revisited. According to the  

learned senior counsel, ―creamy layer‖ is a matter of applying the  

equality principle, as unequals within the same class are sought to be  

weeded out as they cannot be treated as equal to the others. The whole  

basis for application of the creamy layer principle is that those genuinely  

deserving of reservation would otherwise not get the benefits of  

reservation and conversely, those who are undeserving, get the said  

benefits. According to the learned senior advocate, the creamy layer  

principle applies to exclude certain individuals from the class and does  

not deal with group rights at all. This being the case, Articles 341 and  

342 are not attracted. Further, Articles 341 and 342 do not concern  

themselves with reservation at all. They concern themselves only with  

identification of those who can be called Scheduled Castes and

14  

Scheduled Tribes. On the other hand, the creamy layer principle is  

applied by Courts to exclude certain persons from reservation made from  

within that class on the touchstone of Articles 14 and 16(1) of the  

Constitution of India. He argued that even if it be conceded that creamy  

layer can fall within Articles 341 and 342, yet the Court’s power to  

enforce fundamental rights as part of the basic structure cannot be taken  

away. Indeed, Nagaraj (supra) was a case pertaining to a constitutional  

amendment and, therefore, Articles 341 and 342 cannot stand in the way  

of applying the basic structure test to a constitutional amendment.  

 5. Shri Rakesh Dwivedi, learned senior advocate, appearing in C.A.  

No. 5247 of 2016, submitted that the crucial language contained in  

Article 16(4-A) is that the word ―which‖ would show that Scheduled  

Castes and Scheduled Tribes have to continue to be ―backward‖. If the  

expression ―the Scheduled Castes and the Scheduled Tribes‖ in Article  

16(4-A) would be read as ―the Scheduled Castes and the Scheduled  

Tribes employees‖, this would become even clearer. Therefore,  

according to the learned senior advocate, continued social  

backwardness of the Scheduled Castes/Scheduled Tribes employees  

has necessarily to be assessed. While making promotions to higher level

15  

posts, it becomes clear that a Scheduled Caste/Scheduled Tribe  

employee may have cast off his backwardness when he/she reaches a  

fairly high stage in a service, for example, the post of Deputy Chief  

Engineer, at which stage, it would be open for the State to say that  

having regard to the absence of any backwardness of the Scheduled  

Caste/Scheduled Tribe employee at this stage, it would be expedient not  

to reserve anything further in posts above this stage. Shri Naphade, Shri  

Gopal Sankaranarayanan and other counsel followed suit and broadly  

supported the arguments of Shri Dhavan and Shri Dwivedi.  

 6. Since we are asked to revisit a unanimous Constitution Bench  

judgment, it is important to bear in mind the admonition of the  

Constitution Bench judgment in Keshav Mills (supra). This Court said:   

―[I]n reviewing and revising its earlier decision, this  Court should ask itself whether in the interests of the  public good or for any other valid and compulsive  reasons, it is necessary that the earlier decision  should be revised. When this Court decides  questions of law, its decisions are, under Article  141, binding on all courts within the territory of India,  and so, it must be the constant endeavour and  concern of this Court to introduce and maintain an  element of certainty and continuity in the  interpretation of law in the country. Frequent  exercise by this Court of its power to review its  earlier decisions on the ground that the view  pressed before it later appears to the Court to be

16  

more reasonable, may incidentally tend to make law  uncertain and introduce confusion which must be  consistently avoided. That is not to say that if on a  subsequent occasion, the Court is satisfied that its  earlier decision was clearly erroneous, it should  hesitate to correct the error; but before a previous  decision is pronounced to be plainly erroneous, the  Court must be satisfied with a fair amount of  unanimity amongst its members that a revision of  the said view is fully justified. It is not possible or  desirable, and in any case it would be inexpedient to  lay down any principles which should govern the  approach of the Court in dealing with the question of  reviewing and revising its earlier decisions. It would  always depend upon several relevant  considerations: — What is the nature of the infirmity  or error on which a plea for a review and revision of  the earlier view is based? On the earlier occasion,  did some patent aspects of the question remain  unnoticed, or was the attention of the Court not  drawn to any relevant and material statutory  provision, or was any previous decision of this Court  bearing on the point not noticed? Is the Court  hearing such plea fairly unanimous that there is  such an error in the earlier view? What would be the  impact of the error on the general administration of  law or on public good? Has the earlier decision been  followed on subsequent occasions either by this  Court or by the High Courts? And, would the  reversal of the earlier decision lead to public  inconvenience, hardship or mischief? These and  other relevant considerations must be carefully  borne in mind whenever this Court is called upon to  exercise its jurisdiction to review and revise its  earlier decisions. These considerations become still  more significant when the earlier decision happens  to be a unanimous decision of a Bench of five  learned Judges of this Court.‖  

(at pp. 921-922)

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7. We may begin with the nine-Judge Bench in Indra Sawhney (1)  

(supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J.,  

speaking on behalf of himself and three other learned Judges, with  

Pandian and Sawant, JJ., broadly concurring in the result by their  

separate judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented.  

The bone of contention in this landmark judgment was the Mandal  

Commission Report of 1980, which was laid before Parliament on two  

occasions – once in 1982, and again in 1983.  However, no action was  

taken on the basis of this Report until 13.08.1990, when an Office  

Memorandum stated that after considering the said Report, 27% of the  

vacancies in civil posts and services under the Government of India shall  

be reserved for the Socially and Economically Backward Classes. This  

was followed by an Office Memorandum of 25.09.1991, by which, within  

the 27% of vacancies, preference was to be given to candidates  

belonging to the poorer sections of the Socially and Economically  

Backward Classes; and 10% vacancies were to be reserved for Other  

Economically Backward Sections who were not covered by any of the  

existing schemes of reservation. The majority judgments upheld the  

reservation of 27% in favour of backward classes, and the further sub-

18  

division of more backward within the backward classes who were to be  

given preference, but struck down the reservation of 10% in favour of  

Other Economically Backward categories. In arriving at this decision, the  

judgment of Jeevan Reddy, J., referred to and contrasted Article 16(4)  

with Article 15(4), and stated that when Article 16(4) refers to a backward  

class of citizens, it refers primarily to social backwardness (See  

paragraph 774). Scheduled Castes and Scheduled Tribes, not being the  

subject matter before the Court, were kept aside as follows:  

―781. At the outset, we may state that for the  purpose of this discussion, we keep aside the  Scheduled Tribes and Scheduled Castes (since they  are admittedly included within the backward  classes), except to remark that backward classes  contemplated by Article 16(4) do comprise some  castes — for it cannot be denied that Scheduled  Castes include quite a few castes.‖  

In dealing with the creamy layer concept insofar as it is applicable to  

backward classes, the last sentence of paragraph 792 also states:  

―792. …… (This discussion is confined to Other  Backward Classes only and has no relevance in the  case of Scheduled Tribes and Scheduled Castes).‖  

 In the summary of the discussion contained in paragraphs 796-797, it is  

stated, ―the test or requirement of social and educational backwardness

19  

cannot be applied to Scheduled Castes and Scheduled Tribes, who  

indubitably fall within the expression ―backward class of citizens‖.‖  

Jeevan Reddy, J. then went on to state that in certain posts, of  

specialities and super-specialities, provisions for reservation would not  

be advisable (See paragraph 838). Ultimately, the judgment decided that  

reservation would apply at the stage of initial entry only and would not  

apply at the stage of promotion.   

 8. It is important to note that eight of the nine learned Judges in  

Indra Sawhney (1) (supra) applied the creamy layer principle as a facet  

of the larger equality principle. In fact, in Indra Sawhney v. Union of  

India and Ors., (2000) 1 SCC 168 (“Indra Sawhney (2)”), this Court  

neatly summarized the judgments in Indra Sawhney (1) (supra), on the  

aspect of creamy layer as follows:  

―13. In Indra Sawhney [1992 Supp (3) SCC 217 :  1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] on  the question of exclusion of the ―creamy layer‖ from  the backward classes, there was agreement among  eight out of the nine learned Judges of this Court.  There were five separate judgments in this behalf  which required the ―creamy layer‖ to be identified  and excluded.    14. The judgment of Jeevan Reddy, J. was rendered  for himself and on behalf of three other learned

20  

Judges, Kania, C.J. and M.N. Venkatachaliah, A.M.  Ahmadi, JJ. (as they then were). The said judgment  laid emphasis on the relevance of caste and also  stated that upon a member of the backward class  reaching an ―advanced social level or status‖, he  would no longer belong to the backward class and  would have to be weeded out. Similar views were  expressed by Sawant, Thommen, Kuldip Singh, and  Sahai, JJ. in their separate judgments.    15. It will be necessary to refer to and summarise  briefly the principles laid down in these five separate  judgments for that would provide the basis for  decision on Points 2 to 5.    16. While considering the concept of ―means-test‖ or  ―creamy layer‖, which signifies imposition of an  income limit, for the purpose of excluding the  persons (from the backward class) whose income is  above the said limit, in para 791, the Court has  noted that counsel for the States of Bihar, Tamil  Nadu, Kerala and other counsel for the respondents  strongly opposed any such distinction and submitted  that once a class is identified as a backward class  after applying the relevant criteria including the  economic one, it is not permissible to apply the  economic criterion once again and sub-divide a  backward class into two sub-categories. The Court  negatived the said contention by holding that  exclusion of such (creamy layer) socially advanced  members will make the ―class‖ a truly backward  class and would more appropriately serve the  purpose and object of clause (4).    17. Jeevan Reddy, J. dealt with the ―creamy layer‖  under Question 3(d) (paras 790, 792, 793 of SCC)  and under Question 10 (paras 843, 844). This is  what the learned Judge declared: there are sections  among the backward classes who are highly

21  

advanced, socially and educationally and they  constitute the forward section of that community.  These advanced sections do not belong to the true  backward class. They are (para 790) ―as forward as  any other forward class member‖.  

―If some of the members are far too advanced  socially (which in the context, necessarily  means economically and, may also mean  educationally) the connecting thread between  them and the remaining class snaps. They  would be misfits in the class.‖ (SCC p. 724,  para 792).  

(emphasis supplied)  

The learned Judge said: (SCC p. 724, para 792)  

―After excluding them alone, would the class be  a compact class. In fact, such exclusion  benefits the truly backward.‖  

(emphasis supplied)  

A line has to be drawn, said the learned Judge,  between the forward in the backward and the rest of  the backward but it is to be ensured that what is  given with one hand is not taken away by the other.  The basis of exclusion of the ―creamy layer‖ must  not be merely economic, unless economic  advancement is so high that it necessarily  means social advancement, such as where a  member becomes owner of a factory and is himself  able to give employment to others. In such a case,  his income is a measure of his social status. In the  case of agriculturists, the line is to be drawn with  reference to the agricultural landholding. While fixing  income as a measure, the limit is not to be such as  to result in taking away with one hand what is given  with the other. The income limit must be such as to

22  

mean and signify social advancement. There are  again some offices in various walks of life — the  occupants of which can be treated as socially  advanced, without further inquiry‖, such as IAS and  IPS officers or others in All India services. In the  case of these persons, their social status in society  rises quite high and the person is no longer socially  disadvantaged. Their children get full opportunity to  realise their potential. They are in no way  handicapped in the race of life. Their income is also  such that they are above want. It is but logical that  children of such persons are not given the benefits  of reservation. If the categories or sections above- mentioned are not excluded, the truly disadvantaged  members of the backward class to which they  belong will be deprived of the benefits of  reservation. The Central Government is, therefore,  directed (para 793) to identify and notify the ―creamy  layer‖ within four months and after such notification,  the ―creamy layer‖ within the backward class shall  ―cease‖ to be covered by the reservations under  Article 16(4). Jeevan Reddy, J. finally directed (see  Question 10) that the exclusion of the creamy layer  must be on the basis of social advancement and not  on the basis of economic interest alone. Income or  the extent of property-holding of a person is to be  taken as a measure of social advancement — and  on that basis — the ―creamy layer‖ within a given  caste, community or occupational group is to be  excluded to arrive at the true backward class. There  is to be constituted a body which can go into these  questions as follows: (SCC p. 757, para 847)  

―We direct that such a body be constituted both  at Central level and at the level of the States  within four months from today. … There should  be a periodic revision of these lists to exclude  those who have ceased to be backward or for  inclusion of new classes, as the case may be.‖

23  

(emphasis supplied)  

The creamy layer [see para 859, sub-para (3)(d)]  can be, and must be excluded. Creamy layer has to  be excluded and ―economic criterion‖ is to be  adopted as an indicium or measure of social  advancement [para 860, sub-para (5)]. The socially  advanced persons must be excluded [para 861(b)].  That is how Jeevan Reddy, J. summarised the  position.  

18. Sawant, J. too accepted (p. 553 of SCC) that ―at  least some individuals and families in the backward  classes, — however small in number, — gain  sufficient means to develop capacities to compete  with others in every field. That is an undeniable  fact‖. (emphasis supplied) Social advancement is to  be judged by the ―capacity to compete‖ with forward  castes, achieved by the members or sections of the  backward classes. Legally, therefore, these persons  or sections who reached that level are not entitled  any longer to be called as part of the backward  class, whatever their original birthmark. Taking out  these ―forwards‖ from the ―backwards‖ is ―obligatory‖  as these persons have crossed the Rubicon (pp.  553-54). On the crucial question as to what is meant  by ―capacity to compete‖, the learned Judge  explained (para 522) that if a person moves from  Class IV service to Class III, that is no indication that  he has reached such a stage of social advancement  but if the person has successfully competed for  ―higher level posts‖ or at least ―near those levels‖,  he has reached such a state.  

19. Thommen, J. (paras 287, 295, 296, 323)  observed that if some members in a backward class  acquire the necessary financial strength to raise  themselves, the Constitution does not extend to

24  

them the protection of reservation. The creamy layer  has to be ―weeded out‖ and excluded, if it has  attained a ―certain predetermined economic level‖.  

20. Kuldip Singh, J. (para 385) referred to the  ―affluent‖ section of the backward class.  Comparatively ―such (sic rich) persons in the  backward class — though they may not have  acquired a higher level of education — are able to  move in the society without being discriminated  socially‖. These persons practise discrimination  against others in that group who are comparatively  less rich. It must be ensured that these persons do  not ―chew up‖ the benefits meant for the true  backward class. ―Economic ceiling‖ is to be fixed to  cut off these persons from the benefits of  reservation. In the result, the ―means-test‖ is  imperative to skim off the ―affluent‖ sections of  backward classes.  

21. Sahai, J. (para 629) observed that the  individuals among the collectivity or the group who  may have achieved a ―social status‖ or ―economic  affluence‖, are disentitled to claim reservation.  Candidates who apply for selection must be made to  disclose the annual income of their parents which if  it is beyond a level, they cannot be allowed to claim  to be part of the backward class. What is to be the  limit must be decided by the State. Income apart,  provision is to be made that wards of those  backward classes of persons who have achieved a  particular status in society, be it political or  economic or if their parents are in higher services  then such individuals must be precluded from  availing the benefits of reservation. Exclusion of  ―creamy layer‖ achieves a social purpose. Any  legislative or executive action to remove such

25  

persons individually or collectively cannot be  constitutionally invalid.‖  

In paragraph 27 of the said judgment, the three-Judge Bench of this  

Court clearly held that the creamy layer principle sounds in Articles 14  

and 16(1) as follows:  

 ―(i) Equals and unequals, twin aspects    

27. As the ―creamy layer‖ in the backward class is to  be treated ―on a par‖ with the forward classes and is  not entitled to benefits of reservation, it is obvious  that if the ―creamy layer‖ is not excluded, there will  be discrimination and violation of Articles 14 and  16(1) inasmuch as equals (forwards and creamy  layer of backward classes) cannot be treated  unequally. Again, non-exclusion of creamy layer will  also be violative of Articles 14, 16(1) and 16(4) of  the Constitution of India since unequals (the creamy  layer) cannot be treated as equals, that is to say,  equal to the rest of the backward class. These twin  aspects of discrimination are specifically elucidated  in the judgment of Sawant, J. where the learned  Judge stated as follows: (SCC p. 553, para 520)  

―[T]o continue to confer upon such advanced  sections … special benefits, would amount to  treating equals unequally…. Secondly, to rank  them with the rest of the backward classes  would … amount to treating the unequals  equally.‖  

(emphasis supplied)  

26  

Thus, any executive or legislative action refusing to  exclude the creamy layer from the benefits of  reservation will be violative of Articles 14 and 16(1)  and also of Article 16(4). We shall examine the  validity of Sections 3, 4 and 6 in the light of the  above principle. …‖  

9. The next judgment with which we are directly concerned is the  

judgment in Chinnaiah (supra). In this case, the validity of the Andhra  

Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000,  

was challenged, and dismissed by a five-Judge Bench of the Andhra  

Pradesh High Court by a majority of 4:1. The 15% reservation that was  

made in favour of the Scheduled Castes was further apportioned among  

four groups in varying percentages – Group A to the extent of 1%; Group  

B to the extent of 7%; Group C to the extent of 6%; and Group D to the  

extent of 1%. In the lead judgment on behalf of the Constitution Bench,  

Hegde, J. set out three questions for consideration as follows:  

―12. From the pleadings on record and arguments  addressed before us three questions arise for our  consideration:  

(1) Whether the impugned Act is violative  of Article 341(2) of the Constitution of  India?  

(2) Whether the impugned enactment is  constitutionally invalid for lack of legislative  competence?

27  

(3) Whether the impugned enactment  creates subclassification or micro- classification of Scheduled Castes so as to  violate Article 14 of the Constitution of  India?‖  

 Article 341 was then referred to, in which the Presidential List of  

Scheduled Castes is to be notified. Any inclusion or exclusion from the  

said list thereafter can only be done by Parliament under Article 341(2)  

(See paragraph 13). The Court then rejected the splitting up of  

Scheduled Castes on the basis of backwardness into groups, and  

distinguished Indra Sawhney (1) (supra) (See paragraphs 19 to 21). It  

was then held:  

―26. Thus from the scheme of the Constitution,  Article 341 and above opinions of this Court in the  case of N.M. Thomas [(1976) 2 SCC 310 : 1976  SCC (L&S) 227] it is clear that the castes once  included in the Presidential List, form a class by  themselves. If they are one class under the  Constitution, any division of these classes of  persons based on any consideration would amount  to tinkering with the Presidential List.‖  

Indra Sawhney (1) (supra) was then referred to and distinguished as  

follows:  

―38. On behalf of the respondents, it was pointed out  that in Indra Sawhney case [1992 Supp (3) SCC  217] the Court had permitted subclassification of

28  

Other Backward Communities, as backward and  more backward based on their comparative  underdevelopment, therefore, the similar  classification amongst the class enumerated in the  Presidential List of Scheduled Castes is permissible  in law. We do not think the principles laid down in  Indra Sawhney case (supra) for subclassification of  Other Backward Classes can be applied as a  precedent law for subclassification or subgrouping  Scheduled Castes in the Presidential List because  that very judgment itself has specifically held that  subdivision of Other Backward Classes is not  applicable to Scheduled Castes and Scheduled  Tribes. This we think is for the obvious reason i.e.  the Constitution itself has kept the Scheduled  Castes and Scheduled Tribes List out of  interference by the State Governments.  

 39. Legal constitutional policy adumbrated in a  statute must answer the test of Article 14 of the  Constitution. Classification whether permissible or  not must be judged on the touchstone of the object  sought to be achieved. If the object of reservation is  to take affirmative action in favour of a class which  is socially, educationally and economically  backward, the State’s jurisdiction while exercising its  executive or legislative function is to decide as to  what extent reservation should be made for them  either in public service or for obtaining admission in  educational institutions. In our opinion, such a class  cannot be subdivided so as to give more preference  to a minuscule proportion of the Scheduled Castes  in preference to other members of the same class.  

 40. Furthermore, the emphasis on efficient  administration placed by Article 335 of the  Constitution must also be considered when the  claims of Scheduled Castes and Scheduled Tribes

29  

to employment in the services of the Union are to be  considered.‖  

Finally, the Court held:  

―43. The very fact that the members of the  Scheduled Castes are most backward amongst the  backward classes and the impugned legislation  having already proceeded on the basis that they are  not adequately represented both in terms of clause  (4) of Article 15 and clause (4) of Article 16 of the  Constitution, a further classification by way of micro- classification is not permissible. Such classification  of the members of different classes of people based  on their respective castes would also be violative of  the doctrine of reasonableness. Article 341 provides  that exclusion even of a part or a group of castes  from the Presidential List can be done only by  Parliament. The logical corollary thereof would be  that the State Legislatures are forbidden from doing  that. A uniform yardstick must be adopted for giving  benefits to the members of the Scheduled Castes  for the purpose of the Constitution. The impugned  legislation being contrary to the above constitutional  scheme cannot, therefore, be sustained.  

 44. For the reasons stated above, we are of the  considered opinion that the impugned legislation  apart from being beyond the legislative competence  of the State is also violative of Article 14 of the  Constitution and hence is liable to be declared as  ultra vires the Constitution.‖  

In a separate concurring judgment, Sinha, J., after referring to Indra  

Sawhney (1) (supra) and the creamy layer concept in paragraph 95,  

went on to state:

30  

―96. But we must state that whenever such a  situation arises in respect of Scheduled Caste, it will  be Parliament alone to take the necessary  legislative steps in terms of clause (2) of Article 341  of the Constitution. The States concededly do not  have the legislative competence therefor.‖  

It was then concluded:  

―111. The Constitution provides for declaration of  certain castes and tribes as Scheduled Castes and  Scheduled Tribes in terms of Articles 341 and 342 of  the Constitution. The object of the said provisions is  to provide for grant of protection to the backward  class of citizens who are specified in the Scheduled  Castes Order and Scheduled Tribes Order having  regard to the economic and educational  backwardness wherefrom they suffer. The President  of India alone in terms of Article 341(1) of the  Constitution is authorised to issue an appropriate  notification therefor. The Constitution (Scheduled  Castes) Order, 1950 made in terms of Article 341(1)  is exhaustive.‖    

Thus, the Court struck down the Andhra Pradesh Scheduled Castes  

(Rationalisation of Reservations) Act, 2000.  

  10. The judgment in Chinnaiah (supra) has been referred by a three-

Judge Bench to a larger Bench by an order dated 20.08.2014. This is  

because, according to the three-Judge Bench, Chinnaiah (supra) is  

contrary to Article 338 of the Constitution of India and Indra Sawhney  

(1) (supra). Since the correctness of Chinnaiah (supra) does not arise

31  

before us, we need say no more about this reference which will be  

decided on its own merits.  

 11. Close on the heels of this judgment is the judgment in Nagaraj  

(supra). In this case, the addition of Articles 16(4-A) and 16(4-B) were  

under challenge on the ground that they violated the basic structure of  

the Constitution. After referring to the arguments of counsel for both  

sides, the Court held that equality is the essence of democracy and  

accordingly, part of the basic structure of the Constitution (See  

paragraph 33). The working test in the matter of application of this  

doctrine was then applied, referring to Chandrachud, J.’s judgment in  

Indira Nehru Gandhi v. Raj Narain & Anr., 1975 Supp SCC 1 (See   

paragraphs 37 and 38). After dealing with reservation and its extent, the  

Court then went into the nitty-gritty of the constitutional amendments and  

held as follows:  

―Whether the impugned constitutional  amendments violate the principle of basic  structure?  

101. The key question which arises in the matter of  the challenge to the constitutional validity of the  impugned amending Acts is — whether the  constitutional limitations on the amending power of  Parliament are obliterated by the impugned

32  

amendments so as to violate the basic structure of  the Constitution.  

102. In the matter of application of the principle of  basic structure, twin tests have to be satisfied,  namely, the ―width test‖ and the test of ―identity‖. As  stated hereinabove, the concept of 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. They are not  constitutional principles. They are not axioms like,  secularism, federalism, etc. Obliteration of these  concepts or insertion of these concepts does not  change the equality code indicated by Articles 14,  15 and 16 of the Constitution. 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. Clause (4) of Article 16 refers to  affirmative action by way of reservation. Clause (4)  of Article 16, however, states that the appropriate  Government is free to provide for reservation in  cases where it is satisfied on the basis of  quantifiable data that Backward Class is  inadequately represented in the services. Therefore,  in every case where the State decides to provide for  reservation there must exist two circumstances,  namely, ―backwardness‖ and ―inadequacy of  representation‖. As stated above, equity, justice and  efficiency are variable factors. These factors are  context-specific. There is no fixed yardstick to  identify and measure these three factors, it will  depend on the facts and circumstances of each  case. These are the limitations on the mode of the  exercise of power by the State. None of these  limitations have been removed by the impugned

33  

amendments. If the State concerned fails to identify  and measure backwardness, inadequacy and  overall administrative efficiency then in that event  the provision for reservation would be invalid. These  amendments do not alter the structure of Articles 14,  15 and 16 (equity code). The parameters mentioned  in Article 16(4) are retained. Clause (4-A) is derived  from clause (4) of Article 16. Clause (4-A) is  confined to SCs and STs alone. Therefore, the  present case does not change the identity of the  Constitution. The word ―amendment‖ connotes  change. The question is—whether the impugned  amendments discard the original Constitution. It was  vehemently urged on behalf of the petitioners that  the Statement of Objects and Reasons indicates  that the impugned amendments have been  promulgated by Parliament to overrule the decisions  of this Court. We do not find any merit in this  argument. Under Article 141 of the Constitution the  pronouncement of this Court is the law of the land.  The judgments of this Court in Virpal Singh [(1995)  6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC  813], Ajit Singh (I) [(1996) 2 SCC 715 : 1996 SCC  (L&S) 540 : (1996) 33 ATC 239 : AIR 1996 SC  1189], Ajit Singh (II) [(1999) 7 SCC 209 : 1999 SCC  (L&S) 1239] and Indra Sawhney [1992 Supp (3)  SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC  385] were judgments delivered by this Court which  enunciated the law of the land. It is that law which is  sought to be changed by the impugned  constitutional amendments. The impugned  constitutional amendments are enabling in nature.  They leave it to the States to provide for reservation.  It is well settled that Parliament while enacting a law  does not provide content to the ―right‖. The content  is provided by the judgments of the Supreme Court.  If the appropriate Government enacts a law  providing for reservation without keeping in mind the  parameters in Article 16(4) and Article 335 then this

34  

Court will certainly set aside and strike down such  legislation. Applying the ―width test‖, we do not find  obliteration of any of the constitutional limitations.  Applying the test of ―identity‖, we do not find any  alteration in the existing structure of the equality  code. As stated above, none of the axioms like  secularism, federalism, etc. which are overarching  principles have been violated by the impugned  constitutional amendments. Equality has two facets  — ―formal equality‖ and ―proportional equality‖.  Proportional equality is equality ―in fact‖ whereas  formal equality is equality ―in law‖. Formal equality  exists in the rule of law. In the case of proportional  equality the State is expected to take affirmative  steps in favour of disadvantaged sections of the  society within the framework of liberal democracy.  Egalitarian equality is proportional equality.‖  

xxx xxx xxx  

―104. Applying the above tests to the present case,  there is no violation of the basic structure by any of  the impugned amendments, including the  Constitution (Eighty-second) Amendment Act, 2000.  The constitutional limitation under Article 335 is  relaxed and not obliterated. As stated above, be it  reservation or evaluation, excessiveness in either  would result in violation of the constitutional  mandate. This exercise, however, will depend on  the facts of each case. In our view, the field of  exercise of the amending power is retained by the  impugned amendments, as the impugned  amendments have introduced merely enabling  provisions because, as stated above, merit,  efficiency, backwardness and inadequacy cannot be  identified and measured in vacuum. Moreover,  Article 16(4-A) and Article 16(4-B) fall in the pattern  of Article 16(4) and as long as the parameters

35  

mentioned in those articles are complied with by the  States, the provision of reservation cannot be  faulted. Articles 16(4-A) and 16(4-B) are  classifications within the principle of equality under  Article 16(4).‖  

The Court then concluded as follows:  

―121. The impugned constitutional amendments by  which Articles 16(4-A) and 16(4-B) have been  inserted flow from Article 16(4). They do not alter  the structure of Article 16(4). They retain the  controlling factors or the compelling reasons,  namely, backwardness and inadequacy of  representation which enables the States to provide  for reservation keeping in mind the overall efficiency  of the State administration under Article 335. These  impugned amendments are confined only to SCs  and STs. They do not obliterate any of the  constitutional requirements, namely, ceiling limit of  50% (quantitative limitation), the concept of creamy  layer (qualitative exclusion), the sub-classification  between OBCs on one hand and SCs and STs on  the other hand as held in Indra Sawhney [1992  Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :  (1992) 22 ATC 385], the concept of post-based  roster with inbuilt concept of replacement as held in  R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC  (L&S) 548 : (1995) 29 ATC 481].  

122. We reiterate that 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.  

36  

123. However, in this case, as stated above, the  main issue concerns the ―extent of reservation‖. In  this regard the State concerned will have to show in  each case the existence of the compelling reasons,  namely, backwardness, inadequacy of  representation and overall administrative efficiency  before making provision for reservation. As stated  above, the impugned provision 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.  

 124. Subject to the above, 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.‖  

12. We now come to the Constitution Bench judgment in Ashoka  

Kumar Thakur v. Union of India, (2008) 6 SCC 1. In this case, Article  

15(5) inserted by the Constitution (Ninety-third Amendment) Act, 2005,  

was under challenge. Balakrishnan, C.J., after referring to various  

judgments of this Court dealing with reservation, specifically held that the

37  

―creamy layer‖ principle is inapplicable to Scheduled Castes and  

Scheduled Tribes as it is merely a principle of identification of the  

backward class and not applied as a principle of equality (See  

paragraphs 177 to 186). Pasayat, J., speaking for himself and Thakker,  

J., stated that the focus in the present case was not on Scheduled  

Castes and Scheduled Tribes but on Other Backward Classes (See  

paragraph 293). Bhandari, J., in paragraphs 395 and 633 stated as  

follows:  

―395. In Sawhney (1) [1992 Supp (3) SCC 217 :  1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] the  entire discussion was confined only to Other  Backward Classes. Similarly, in the instant case, the  entire discussion was confined only to Other  Backward Classes. Therefore, I express no opinion  with regard to the applicability of exclusion of  creamy layer to the Scheduled Castes and  Scheduled Tribes.‖    xxx xxx xxx  

 ―633. In Indra Sawhney (1) [1992 Supp (3) SCC 217  : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385],  creamy layer exclusion was only in regard to OBC.  Reddy, J. speaking for the majority at SCC p. 725,  para 792, stated that ―[t]his discussion is confined to  Other Backward Classes only and has no relevance  in the case of Scheduled Tribes and Scheduled  Castes‖. Similarly, in the instant case, the entire  discussion was confined only to Other Backward  Classes. Therefore, I express no opinion with regard

38  

to the applicability of exclusion of creamy layer to  the Scheduled Castes and Scheduled Tribes……‖   

Raveendran, J., in a separate judgment, while referring to Nagaraj  

(supra), held as follows:  

―665. The need for exclusion of creamy layer is  reiterated in the subsequent decisions of this Court  in Ashoka Kumar Thakur v. State of Bihar [(1995) 5  SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC  159], Indra Sawhney v. Union of India [(1996) 6  SCC 506 : 1996 SCC (L&S) 1477] and M. Nagaraj  v. Union of India [(2006) 8 SCC 212]. When Indra  Sawhney [1992 Supp (3) SCC 217 : 1992 SCC  (L&S) Supp 1 : (1992) 22 ATC 385] has held that  creamy layer should be excluded for purposes of  Article 16(4), dealing with ―backward class‖ which is  much wider than ―socially and educationally  backward class‖ occurring in Articles 15(4) and (5),  it goes without saying that without the removal of  creamy layer there cannot be a socially and  educationally backward class. Therefore, when a  caste is identified as a socially and educationally  backward caste, it becomes a ―socially and  educationally backward class‖ only when it sheds its  creamy layer.‖  

 The Court ultimately upheld the Constitution (Ninety-third Amendment)  

Act, 2005, subject to the creamy layer test to be applied to Other  

Backward Classes. Bhandari, J. held that the amendment was not  

constitutionally valid so far as ―private unaided‖ educational institutions  

were concerned.

39  

 13. At this stage, it is necessary to deal with the argument that  

Nagaraj (supra) needs to be revisited as it conflicts with Chinnaiah  

(supra). It will be noticed that though Nagaraj (supra) is a later judgment,  

it does not refer to Chinnaiah (supra) at all. Much was made of this by  

some of the learned counsel appearing on behalf of the Appellants. It is  

important to notice that the majority judgment of Hegde, J. does not refer  

to the creamy layer principle at all. Chinnaiah’s judgment (supra) 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. That this is the true  

ratio of the judgment is clear from a reading of the paragraphs that have  

been set out hereinabove. This being the case, as Chinnaiah (supra)  

does not in any manner deal with any of the aspects on which the  

constitutional amendments in Nagaraj’s case (supra) were upheld, we  

are of the view that it was not necessary for Nagaraj (supra) to refer to  

Chinnaiah (supra) at all. However, it was further contended that apart

40  

from this ratio, Chinnaiah (supra) also decided that the sub-classification  

of Scheduled Castes, created by the Andhra Pradesh Scheduled Castes  

(Rationalisation of Reservations) Act, 2000, also violated Article 14 of the  

Constitution of India. This was stated by Chinnaiah (supra) to be  

violative of Article 14 as the same would amount to tinkering with the  

List, which, as was held, could be done only by Parliament and not by  

State Legislatures. In our opinion, the true ratio of the judgment flows  

from a construction of Article 341. It is true that the Andhra Pradesh Act  

in question was also found to be violative of Article 14. We may only  

state that Chinnaiah (supra) dealt with a completely different problem,  

apart from dealing with a State statute and not a constitutional  

amendment, as was dealt with in Nagaraj (supra).   

 14. This brings us to whether the judgment in Nagaraj (supra) needs  

to be revisited on the other grounds that have been argued before us.  

Insofar as the State having to show quantifiable data as far as  

backwardness of the class is concerned, we are afraid that we must  

reject Shri Shanti Bhushan’s argument. The reference to ―class‖ is to the  

Scheduled Castes and the Scheduled Tribes, and their inadequacy of  

representation in public employment. It is clear, therefore, that Nagaraj

41  

(supra) has, in unmistakable terms, stated that the State has to collect  

quantifiable data showing backwardness of the Scheduled Castes and  

the Scheduled Tribes. We are afraid that this portion of the judgment is  

directly contrary to the nine-Judge Bench in Indra Sawhney (1) (supra).  

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‖.‖ (See paragraphs 796 to 797). Equally, Dr. Justice Thommen,  

in his conclusion at paragraph 323(4), had held as follows:  

 ―323. Summary  

xxx xxx xxx   

(4) Only such classes of citizens who are socially  and educationally backward are qualified to be  identified as backward classes. To be accepted as  backward classes for the purpose of reservation  under Article 15 or Article 16, their backwardness  must have been either recognised by means of a  notification by the President under Article 341 or  Article 342 declaring them to be Scheduled Castes  or Scheduled Tribes, or, on an objective  consideration, identified by the State to be socially  and educationally so backward by reason of  identified prior discrimination and its continuing ill  effects as to be comparable to the Scheduled  Castes or the Scheduled Tribes. In the case of the  Scheduled Castes or the Scheduled Tribes, these

42  

conditions are, in view of the notifications, presumed  to be satisfied……‖  

 15. In fact, Chinnaiah (supra) has referred to the Scheduled Castes  

as being the most backward among the backward classes (See  

paragraph 43). 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 Nagaraj (supra) 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) (supra) 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 genesis of this principle is to be found in State of Kerala  

& Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310. This case was  

concerned with a test-relaxation rule in promotions from lower division

43  

clerks to upper division clerks. By a 5:2 majority judgment, the said rule  

was upheld as a rule that could be justified on the basis that it became  

necessary as a means of generally giving a leg-up to backward classes.  

In paragraph 124, Krishna Iyer, J. opined:   

―124. A word of sociological caution. In the light of  experience, here and elsewhere, the danger of  ―reservation‖, it seems to me, is threefold. Its  benefits, by and large, are snatched away by the top  creamy layer of the ―backward‖ caste or class, thus  keeping the weakest among the weak always weak  and leaving the fortunate layers to consume the  whole cake. Secondly, this claim is overplayed  extravagantly in democracy by large and vocal  groups whose burden of backwardness has been  substantially lightened by the march of time and  measures of better education and more  opportunities of employment, but wish to wear the  ―weaker section‖ label as a means to score over  their near-equals formally categorised as the upper  brackets. Lastly, a lasting solution to the problem  comes only from improvement of social  environment, added educational facilities and cross- fertilisation of castes by inter-caste and inter-class  marriages sponsored as a massive State  programme, and this solution is calculatedly hidden  from view by the higher ―backward‖ groups with a  vested interest in the plums of backwardism. But  social science research, not judicial impressionism,  will alone tell the whole truth and a constant process  of objective re-evaluation of progress registered by  the ―underdog‖ categories is essential lest a once  deserving ―reservation‖ should be degraded into  ―reverse discrimination‖. Innovations in  administrative strategy to help the really untouched,

44  

most backward classes also emerge from such  socio-legal studies and audit exercises, if  dispassionately made. In fact, research conducted  by the A.N. Sinha Institute of Social Studies, Patna,  has revealed a dual society among harijans, a tiny  elite gobbling up the benefits and the darker layers  sleeping distances away from the special  concessions. For them, Articles 46 and 335 remain  a ―noble romance‖ [As Huxley called it in  ―Administrative Nihilism‖ (Methods and Results, Vol.  4 of Collected Essays).], the bonanza going to the  ―higher‖ harijans. I mention this in the present case  because lower division clerks are likely to be drawn  from the lowest levels of harijan humanity and  promotion prospects being accelerated by  withdrawing, for a time, ―test‖ qualifications for this  category may perhaps delve deeper. An equalitarian  breakthrough in a hierarchical structure has to use  many weapons and Rule 13-AA perhaps is one.‖    

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

45  

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 sub-group 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.   

 16. We do not think it 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. One of the most important

46  

principles that has been frequently applied in constitutional law is the  

doctrine of harmonious interpretation. 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. We do not agree with Balakrishnan,  

C.J.’s statement in Ashoka Kumar Thakur (supra) that the creamy layer  

principle is merely a principle of identification and not a principle of  

equality.  

 17. Therefore, when Nagaraj (supra) 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. We are, therefore,  

clearly of the opinion that this part of the judgment does not need to be  

revisited, and consequently, there is no need to refer Nagaraj (supra) to

47  

a seven-Judge Bench. We may also add at this juncture that Nagaraj  

(supra) is a unanimous judgment of five learned Judges of this Court  

which has held sway since the year 2006. This judgment has been  

repeatedly followed and applied by a number of judgments of this Court,  

namely:  

a. Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC 454   

(two-Judge Bench) (See paragraphs 17 and 18).  

b. Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors.,  

(2011) 1 SCC 467 (two-Judge Bench) (See paragraphs 10, 50,  

and 67).  

c. U.P. Power Corporation v. Rajesh Kumar & Ors., (2012) 7  

SCC 1 (two-Judge Bench) (See paragraphs 61, 81(ix), and 86).  

d. S. Panneer Selvam & Ors. v. State of Tamil Nadu & Ors.,  

(2015) 10 SCC 292 (two-Judge Bench) (See paragraphs 18,  

19, and 36).  

e. Chairman & Managing Director, Central Bank of India &  

Ors. v. Central Bank of India SC/ST Employees Welfare  

Association & Ors., (2015) 12 SCC 308 (two-Judge Bench)  

(See paragraphs 9 and 26).  

f. Suresh Chand Gautam v. State of U.P. & Ors., (2016) 11  

SCC 113 (two-Judge Bench) (See paragraphs 2 and 45).  

g. B.K. Pavitra & Ors. v. Union of India & Ors., (2017) 4 SCC  

620 (two-Judge Bench) (See paragraphs 17 to 22).

48  

Further, Nagaraj (supra) has been approved by larger Benches of this  

Court in:  

a. General Categories Welfare Federation v. Union of India,  

(2012) 7 SCC 40 (three-Judge Bench) (See paragraphs 2 and  

3).  

b. Rohtas Bhankar v. Union of India, (2014) 8 SCC 872 (five-

Judge Bench) (See paragraphs 6 and 7).  

 In fact, the tests laid down in Nagaraj (supra) for judging whether a  

constitutional amendment violates basic structure have been expressly  

approved by a nine-Judge Bench of this Court in I.R. Coelho (Dead) by  

LRs. v. State of Tamil Nadu and Ors., (2007) 2 SCC 1 (See  

paragraphs 61, 105, and 142). 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, we may  

make it clear that quantifiable data shall be collected by the State, on the  

parameters as stipulated in Nagaraj (supra) on the inadequacy of  

representation, which can be tested by the Courts. We may further add  

that the data would be relatable to the concerned cadre.  

49  

18. Dr. Dhavan referred to the judgment in U.P. Power Corporation  

Ltd. (supra), and placed before us the Constitution (One Hundred  

Seventeeth Amendment) Bill, 2012. This Bill was passed by the Rajya  

Sabha on 17.12.2012 but failed to get sufficient number of votes in the  

Lok Sabha and, therefore, could not become an Act.  This Bill was tabled  

close upon the judgment in U.P. Power Corporation Ltd. (supra), and  

would have substituted Article 16(4-A) as follows:  

―(4A) Notwithstanding anything contained elsewhere  in the Constitution, the Scheduled Castes and the  Scheduled Tribes notified under article 341 and  article 342, respectively, shall be deemed to be  backward and nothing in this article shall prevent the  State from making any provision for reservation in  matters of promotions, with consequential seniority,  to any class or classes of posts in the services  under the State in favour of the Scheduled Castes  and the Scheduled Tribes to the extent of the  percentage of reservation provided to the Scheduled  Castes and the Scheduled Tribes in the services of  the State.‖  

 The Statement of Objects and Reasons for the said Bill read as follows:    

―The validity of the constitutional amendments was  challenged before the Supreme Court. The  Supreme Court while deliberating on the issue of  validity of Constitutional amendments in the case of  M. Nagaraj v. UOI & Ors., observed that the  concerned State will have to show in each case the  existence of the compelling reasons, namely,  backwardness, inadequacy of representation and

50  

overall administrative efficiency before making  provision for reservation in promotion.  

Relying on the judgment of the Supreme Court in M.  Nagaraj case, the High Court of Rajasthan and the  High Court of Allahabad have struck down the  provisions for reservation in promotion in the  services of the State of Rajasthan and the State of  Uttar Pradesh, respectively. Subsequently, the  Supreme Court has upheld the decisions of these  High Courts striking down provisions for reservation  in respective States.   

It has been observed that there is difficulty in  collection of quantifiable data showing  backwardness of the class and inadequacy of  representation of that class in public employment.  Moreover, there is uncertainty on the methodology  of this exercise.‖  

 It will be seen that this Bill contains two things that are different from  

Article 16(4-A) as already enacted. First and foremost, it clarifies that the  

Scheduled Castes and the Scheduled Tribes that are notified under  

Articles 341 and 342 shall be deemed to be backward, which makes it  

clear that no quantifiable data is necessary to determine backwardness.  

Secondly, instead of leaving it to the States to determine on a case to  

case basis whether the Scheduled Castes and the Scheduled Tribes are  

adequately represented in any class or classes of posts in the services  

under the State, the substituted provision does not leave this to the  

discretion of the State, but specifies that it shall be to the extent of the

51  

percentage of reservation provided to Scheduled Castes and Scheduled  

Tribes in the services of the State. This amendment was necessitated  

because a Division Bench of this Court in U.P. Power Corporation Ltd.  

(supra) had struck down Section 3(7) of the Uttar Pradesh Public  

Services (Reservation for Scheduled Castes, Scheduled Tribes and  

Other Backward Classes) Act, 1994 and Rule 8A of the U.P. Government  

Servants Seniority Rules, 1991, which read as under:  

―3. Reservation in favour of Scheduled Castes,  Scheduled Tribes and Other Backward  Classes.—  

(1)-(6)  xxx xxx xxx  

(7) If, on the date of commencement of  this Act, reservation was in force under  government orders for appointment to  posts to be filled by promotion, such  government orders shall continue to be  applicable till they are modified or  revoked.‖  

     xxx xxx xxx  

 ―8-A. Entitlement of consequential seniority to a  person belonging to Scheduled Castes or  Scheduled Tribes.—Notwithstanding anything  contained in Rules 6, 7 or 8 of these Rules, a  person belonging to the Scheduled Castes or  Scheduled Tribes shall, on his promotion by virtue of  rule of reservation/roster, be entitled to  consequential seniority also.‖  

52  

This Court considered Nagaraj (supra) in detail and in paragraph 81,  

culled out various principles which Nagaraj (supra) had laid down. We  

are concerned here with principles (ix) and (x) in particular, which read  

as under:  

―(ix) The concepts of efficiency, backwardness and  inadequacy of representation are required to be  identified and measured. That exercise depends on  the availability of data. That exercise depends on  numerous factors. It is for this reason that the  enabling provisions are required to be made  because each competing claim seeks to achieve  certain goals. How best one should optimise these  conflicting claims can only be done by the  administration in the context of local prevailing  conditions in public employment.  

(x) Article 16(4), therefore, creates a field which  enables a State to provide for reservation provided  there exists backwardness of a class and  inadequacy of representation in employment. These  are compelling reasons. They do not exist in Article  16(1). It is only when these reasons are satisfied  that a State gets the power to provide for  reservation in the matter of employment.‖  

19. We have already seen that, even without the help of the first part  

of Article 16(4-A) of the 2012 Amendment Bill, the providing of  

quantifiable data on backwardness when it comes to Scheduled Castes  

and Scheduled Tribes, has already been held by us to be contrary to the  

majority in Indra Sawhney (1) (supra). So far as the second part of the

53  

substituted Article 16(4-A) contained in the Bill is concerned, we may  

notice 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. We may only add  

that 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. Article 46 reads as follows:  

 ―46. Promotion of educational and economic  interests of Scheduled Castes, Scheduled Tribes  and other weaker sections.—The State shall  promote with special care the educational and  economic interests of the weaker sections of the  people, and, in particular, of the Scheduled Castes  and the Scheduled Tribes, and shall protect them  from social injustice and all forms of exploitation.‖  

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, as has been pointed

54  

out by us earlier, 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. Shri Dwivedi’s 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 we were to accept  

this argument, logically, we would have to strike down Article 16(4-A), 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) (supra) 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 Nagaraj (supra). This being the case, we  

cannot countenance an argument which would indirectly revisit the basis  

or foundation of the constitutional amendments themselves, in order that  

one small part of Nagaraj (supra) be upheld, namely, that there be  

quantifiable data for judging backwardness of the Scheduled Castes and

55  

the Scheduled Tribes in promotional posts. We may hasten to add that  

Shri Dwivedi’s argument cannot be confused with 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,  

which may be occupied by members of the Scheduled Castes or the  

Scheduled Tribes.  

 20. The learned Attorney General also requested us to lay down 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 Nagaraj (supra) ought to have stated  

this, but has said nothing on this aspect. According to us, Nagaraj  

(supra) 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

56  

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) (supra), there may be certain posts  

right at the top, where reservation is impermissible altogether. For this  

reason, we make it 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.  

For this purpose, the contrast of Article 16(4-A) and 16(4-B) with Article  

330 of the Constitution is important. Article 330 reads as follows:  

―330. Reservation of seats for Scheduled Castes  and Scheduled Tribes in the House of the  People.—(1) Seats shall be reserved in the House  of the People for—  

(a) the Scheduled Castes;  

(b) the Scheduled Tribes except the Scheduled  Tribes in the autonomous districts of Assam;  and]  

(c) the Scheduled Tribes in the autonomous  districts of Assam.  

(2) The number of seats reserved in any State or  Union territory for the Scheduled Castes or the  Scheduled Tribes under clause (1) shall bear, as  nearly as may be, the same proportion to the total  number of seats allotted to that State or Union  territory in the House of the People as the  population of the Scheduled Castes in the State or  Union territory or of the Scheduled Tribes in the  State or Union territory or part of the State or Union

57  

territory, as the case may be, in respect of which  seats are so reserved, bears to the total population  of the State or Union territory.  

(3) Notwithstanding anything contained in clause  (2), the number of seats reserved in the House of  the People for the Scheduled Tribes in the  autonomous districts of Assam shall bear to the total  number of seats allotted to that State a proportion  not less than the population of the Scheduled Tribes  in the said autonomous districts bears to the total  population of the State.  

Explanation.—In this article and in Article 332, the  expression ―population‖ means the population as  ascertained at the last preceding census of which  the relevant figures have been published:  

Provided that the reference in this Explanation to the  last preceding census of which the relevant figures  have been published shall, until the relevant figures  for the first census taken after the year 2026 have  been published, be construed as a reference to  the 2001 census.‖  

 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, and we decline the invitation of the learned Attorney General  

to say any more in this behalf.  

58  

21. Thus, we conclude that the judgment in Nagaraj (supra) does not  

need to be referred to a seven–Judge Bench. However, the conclusion in  

Nagaraj (supra) 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) (supra) is held to  

be invalid to this extent.  

        ………………………..…CJI         (Dipak Misra)             ………………………..……J.         (Kurian Joseph)             ……………………………..J.         (R.F. Nariman)             ……………………………..J.         (Sanjay Kishan Kaul)             ……………………………..J.         (Indu Malhotra)  

New Delhi;  September 26, 2018.