The Chief Justice of India has set up a five-judge constitution bench of the Supreme Court to examine whether its 12-year-old verdict in the M Nagaraj and others versus Union of India case on reservation for Scheduled Castes and Scheduled Tribes in government job promotions requires reconsideration.
Besides CJI Dipak Misra, the bench will include Justices Kurian Joseph, R F Nariman, S K Kaul and Indu Malhotra.
The 2006 judgment by a five-judge constitution bench in the Nagaraj case had held that states were not bound to provide reservations to Scheduled Castes and Scheduled Tribes for promotions in government jobs. It, however, had said that in case any state wished to make such a provision, it was required to collect quantifiable data showing backwardness of the community, as well as its inadequate representation in public employment.
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 concept of creamy layer cannot be applied to the SCs and STs for promotions in government jobs.
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The Nagaraj case had examined the Constitutional validity of the Constitution (77th Amendment) Act, 1995, the Constitution (81st Amendment) Act, 2000, the Constitution (82nd Amendment) Act, 2000, and the Constitution (85th Amendment) Act, 2001.
Subsequently, citing the Nagaraj ruling, several High Courts have struck down decisions for reservation in promotions, following which they came in appeal to the Supreme Court.
In 2015, the Tripura government filed an appeal challenging an order of the state high court. The petition before the High Court challenged certain provisions of the Tirpura Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1991, saying that under these provisions, the state had granted reservations in violation of the rules laid down in Nagraj case.
A two-judge bench of Justices Kurian Joseph and R Banumathi, which heard the plea, referred it to be heard by a Constitution bench.
In November 2017, while hearing a batch of petitions that arose from a Bombay High Court order quashing two state government notifications that granted reservations to SCs, STs and De-Notified Tribes, Nomadic Tribes, Special Backward Category and OBCs in job promotions, another bench of the apex court had referred the Nagaraj judgment to a Constitution bench to decide whether it needed to be revisited.
But as the setting up of the Constitution bench got delayed, Attorney General K K Venugopal requested the CJI last month to hear it urgently.