Applying the creamy layer principle to promotions for Scheduled Castes and Scheduled Tribes in government jobs, the Supreme Court Wednesday declined to refer to a larger bench its 2006 verdict on the matter. It ruled that states no longer need to collect quantifiable data on the backwardness of SCs and STs in granting quota in promotions, but will have to back it with data to show their inadequate representation in the cadre.
Ruling unanimously on a clutch of petitions to revisit the M Nagaraj & Others vs Union of India verdict, a five-judge Constitution Bench, comprising Chief Justice of India Dipak Misra, Justices Kurian Joseph, R F Nariman (he wrote the order), S K Kaul and Indu Malhotra, said: “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 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,” the Bench said.
(Articles 341, 342 of the Constitution define who will be considered SCs, STs with respect to any state or Union Territory).
During the hearing, Attorney General K K Venugopal, appearing for the Centre, had favoured reconsideration of the Nagaraj verdict on the ground that it was non-implementable and had brought promotions to a standstill. He had contended that “the creamy layer concept has not been applied in Indra Sawhney… 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”.
(Indra Sawhney refers to the 1992 Supreme Court ruling on Indra Sawhney & Others vs Union of India which, among other directions, ordered exclusion of the creamy layer of OBCs from reservation benefits.)
Venugopal had requested that the proportion of SCs and STs to the population of India should be taken as the test for determining whether they are adequately represented in promotional posts.
But the Bench rejected this and said the Nagaraj judgement had “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 that efficiency of administration has to be looked at every time promotions are made”.
“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,” the Bench said.
(Supra is Latin for “above” and, in legal matters, refers to the citation of a court decision which has been previously mentioned.)
The Bench said “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.”
Venugopal had said SCs/STs were presumed to be backward and there was no need for data to establish their backwardness.
While it agreed with this and held as invalid the requirement of collecting quantifiable data to show backwardness, the Bench said the state will still have to collect quantifiable data to establish inadequacy of representation before granting reservation in promotions.
“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,” the judges said, adding “this would be relatable to the concerned cadre”.
The Centre had said that such data collection, if mandated, must be on the basis of total posts and not related to a particular cadre.
In the Nagaraj case, a five-judge Bench of Chief Justice of India Y K Sabharwal and Justices K G Balakrishnan, S H Kapadia, C K Thakker and P K Balasubramanyan upheld the Constitutional validity of the 77th, 81st, 82nd and 85th Amendments which, the petitioners claimed, were brought to reverse the effect of the decision in the Indra Sawhney case.
The court had ruled that if the state “wish(ed) to exercise their discretion and make (a) provision (for reservation in promotions for SCs/STs), 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 of Article 335”.
Article 335 of the Constitution relates to claims of SCs and STs 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,” it states.
The ruling in the Nagaraj case had also stated: “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.”
Following the ruling Wednesday, P S Krishnan, who was Secretary (Welfare) when the Mandal Commission report was implemented, expressed surprise at the court applying the principle of the “creamy layer” to SCs and STs.
“The correct exposition for ‘creamy layer’ or the ‘socially advanced persons/sections of castes identified as socially and educationally backward’ has not been explained adequately to the Bench by the Counsel and, therefore, not correctly appreciated by them.”
Krishnan called it an attempt to exclude persons, even before filling the ranks. “It is like applying brakes before turning on the ignition. If all posts are filled up, it would be okay to look for criteria to exclude persons. But now to do this will impede, delay the progress towards the goal of equality mandated by the Constitution,” he said.
“The point to ask is if those seen as untouchable have ever been able to escape the untouchability or its stigma. Experience shows that they are unable to do that and, therefore, need constant support. The ‘backwardness’ criteria was never used for SCs and STs but just for OBCs. The case of SCs and STs is completely different from that of the OBCs,” he said.
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