THE SUPREME Court on Thursday wondered if it could extend the concept of creamy layer, which currently applies to Other Backward Classes (OBCs) only, to the Scheduled Castes (SCs) and Scheduled Tribes (STs) too.
“Suppose there was a caste which was backward 50 years ago and now it has sections of creamy layer. Why can’t court say don’t treat unequals as equals… because the whole idea (behind reservation) is to give a leg up to those deserving, not to someone who already has both legs up on the fan,” said Justice R F Nariman.
He is part of a five-judge Constitution bench set up to examine whether the court’s 2006 decision in the M Nagaraj and others Vs Union of India case on reservation for SCs and STs in promotions requires reconsideration.
Chief Justice of India Dipak Misra, who heads the bench, asked if a “person from the reserved category becomes Secretary in a state… will it be logical to treat his family as backward for promotion with accelerated seniority?”
“That too in perpetuity,” said Justice Nariman. The bench also comprises Justices Kurian Joseph, S K Kaul and Indu Malhotra.
Advocate Dinesh Dwivedi, appearing for a party which has demanded that the Nagaraj ruling be revisited, told the bench that it is a “fallacy” that it (reservation) is in perpetuity. “The Constitution provides appropriate manner in which it can be done by the legislature, which represents the will of the people,” he said.
“The Nagaraj ruling uses the wrong test to determine the constitutional validity of a constitutional amendment. The test used was compelling necessity,” said Advocate Indira Jaising, appearing for a section of employees.
Stating that this was not included as a test in any part of the Constitution, she said the compelling reason was the need for reservation itself, adding that the “criteria is not backwardness, but which caste, tribe one belongs to”.
Replying to the counsel, the CJI said, “Article 16(4) of the Constitution enables the state to make provision for reservation for backward classes, subject to some riders. This was interpreted by the Constitution bench.”
Jaising said the judgment uses the expression “affirmative action”, adding that this was not the same as reservation. Affirmative action was an American concept, she said, adding that the “court has, in all its judgments, confused affirmative action with reservation”.
Justice Nariman asked if a state can say that though its population includes 18 per cent Scheduled Castes, it reserves only 2 per cent of Class 1 posts.
The counsel answered in the negative and added that the lower ranks comprised mostly SCs, because nobody else was willing to do these jobs. She said that even in the ladies’ bar room of the Supreme Court, all the staff were Scheduled Castes.
On the requirement in the Nagaraj ruling that reservation in promotions must not affect administrative efficiency, Jaising said the annual confidential records of employees are prepared at the state level, and one of the factors that is scutinised is administrative efficiency. Those who do not qualify need not even think of getting promoted, she said.
“So there are already structural ways of testing efficiency..They don’t get promotion unless they have efficiency,” she said.
The judgment, by introducing the concept of backwardness, furthers exclusion, whereas the Constitution is all for inclusiveness, she pointed out. States like Maharashtra, Tripura and Madhya Pradesh also prayed that the matter be sent to a large bench for reconsideration.
Opposing the demand for revisiting the Nagaraj judgment, senior advocate Rajeev Dhavan said it was a “principled decision”. He added “there is a lot of danger today in the indefinite extension of reservation” and referred to the various agitations for getting reserved category status.
The 2006 judgment by a five-judge Constitution bench in the Nagaraj case had held that the state was not bound to provide reservation for SCs and STs in promotions. But in case any state wishes to make such a provision, it was required to collect quantifiable data showing backwardness of the class as well as its inadequate representation in public employment.
Additionally, the state was also required to ensure that reservations do not breach the 50 per cent ceiling or adversely affect the creamy layer or extend it indefinitely. The ruling said that the creamy layer concept cannot be applied to SCs and STs for promotions in government jobs.
The Nagaraj case had examined 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.
Subsequently, citing the Nagaraj ruling, several high courts have struck down decisions for reservation in promotions, following which they appealed in the Supreme Court.