IMPORTANT POINTS
The judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212 does not need to be referred to a seven–Judge Bench.
The conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) is held to be invalid to this extent.

Headnote:(a) Constitution of India – Article 137 – Reference for reconsideration of unanimous decision of a Constitution Bench of five Judges – Principles restated. (Para 6)
       (1965) 2 SCR 908 – Relied upon
       (b) Constitution of India – Article 16, 341 and 342 – Reservation – Backward class – Creamy layer – Has to be excluded and “economic criterion” is to be adopted as an indicium or measure of social advancement. (Para 8, 12)
       1992 Supp (3) SCC 217; (2000) 1 SCC 168; (1965) 2 SCR 908; (2006) 8 SCC 212; 1975 Supp SCC 1 – Relied upon
       (2005) 1 SCC 394; (1995) 2 SCC 745 – Referred
       (b) Interpretation of judgment – M. Nagraj case – A later judgment but not referring to earlier judgment in Chinnaiah – Chennaiah not dealing with creamy layer – Held, it was not necessary to refer to Chennaiah. (Para 13)
       (2005) 1 SCC 394 – Distinguished
       © Constitution of India – Article 137 – Reconsideration of M. Nagraj case – Nagaraj stated that State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes – Directly contrary to nine-Judge Bench in Indra Sawhney (1) which held that the test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes – Nagraj declared bad to this extent. (Para 14, 15)
       (d) Constitution of India – Article 14 and 16 – Reservation – Backward class – Creamy layer and others – Apparently two distinct classes being treated equally – Not treating creamy layer as separate class hit by Articles 14 and 16. (Para 15)
       (e) Constitution of India – Article 16, 341 and 342 – Reservation – Creamy layer – Applying the creamy layer principle to Scheduled Castes and Scheduled Tribes is not tinkering with Presidential List under Articles 341 or 342 – Caste or group or sub-group named in the List continues exactly as before – 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, are excluded from the benefit of reservation though remaining in the List – Only the creamy layer within the group is not given benefit of reservation under Articles 14 and 16 – Harmoniously interpreting Articles 14 and 16 along with other Articles 341 and 342, 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 – It is incorrect to say that creamy layer principle is merely a principle of identification and not a principle of equality. (Para 15, 16)
       (2008) 6 SCC 1 – Distinguished
       (f) Interpretation of judgment – Nagraj case – Court while upholding Constitutional amendment inserting Articles 16(4-A) and 16(4-B) by applying basic structure test applying creamy layer test to Scheduled Castes and Scheduled Tribes – Not at all interfering with Parliament’s power under Article 341 or Article 342 – Held, no need to revise Nagraj – Consequently, there is no need to refer Nagaraj to a seven-Judge Bench. (Para 17)
       (2009) 9 SCC 454; (2011) 1 SCC 467; (2012) 7 SCC 1; (2015) 10 SCC 292; (2015) 12 SCC 308; (2016) 11 SCC 113; (2017) 4 SCC 620; (2012) 7 SCC 40; (2014) 8 SCC 872; (2007) 2 SCC 1 – Relied upon
       (2006) 8 SCC 212 – Assented to
       (g) Constitution of India – Articles 18(4), 16(4-A) and 46 – Pattern of Article 46 followed in Article 16(4) and Article 16(4-A) – Provision of Article 16(4-A) in respect of reservation in promotions has been given effect to in Nagraj. (Para 19)
       Facts of the case:
       The correctness of M. Nagaraj v. Union of India, (2006) 8 SCC 212 has been referred in this group of cases.
       The controversy in these matters revolves around the interpretation of Articles 16, 335, 341 and 342 of the Constitution of India.
       Finding of the Court:
       The judgment in Nagaraj does not need to be referred to a seven–Judge Bench. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) is held to be invalid to this extent.
       Result: Reference answered in the negative.

JUDGMENT

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 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 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 con

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2018 Supreme(SC) 929

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