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 consideration. The learned Attorney General for India, Shri K.K. Venugopal, led the charge for reconsideration of Nagaraj . According to the learned Attorney General, Nagaraj needs to be revisited on these two points. First, when Nagaraj states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the nine-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp3 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) to the Scheduled Castes and the Scheduled Tribes and Nagaraj 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 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 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 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) and in E.V. Chinnaiah v. State of A.P., 2005 1 SCC 394 ("Chinnaiah"). She argued that the decision in Nagaraj 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 saying that the exercise of reading down a constitutional amendment to make it valid, conducted in Nagaraj , 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 and Chinnaiah cannot stand together, which is why Nagaraj is per incuriam as it does not refer to the judgment in Chinnaiah at all.;