The validity and extent of reservations, one of the most emotive and volatile issues in India, continues to divide people on moral, ideological and political spectrums. The Supreme Court's decision yesterday in Jarnail Singh and Ors. v. Lacchmi Narain Gupta and Ors., regarding the correctness its earlier decision in M. Nagaraj v Union of Indiawas therefore one of the more crucial decisions in the flurry of important decisions coming before CJI Dipak Misra retires next week.
While deciding M. Nagaraj in 2006, a five-judge bench of the Supreme Court had upheld the validity of the newly introduced Articles 16 (4-A) and (4-B), which gave the State the right to provide reservation for Scheduled Castes and Scheduled Tribes not only at the initial stage of selection, but also in promotion, along with consequential seniority. However, the SC had also imposed two strong fetters on the extent of such reservation in promotion, one that it would be subject to the concept of 'creamy layer', and twothat the State had to 'collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment'.
Following this decision, reservation in promotion was introduced by several states through legislation, but multiple High Courts struck down such reservation as States had failed to collect any quantifiable data showing backwardness of the class and inadequacy of representation. It was in this background that the Union asked the SC to reconsider their earlier decision. It was argued that there could not be any need to prove that SC/STs were backward through quantifiable data, the mere fact that they had been declared as SC/ST's meant that they were the most backward among backward classes. For the same reason, the Union also did not want the 'creamy layer' concept to be applicable to SC/ST's, arguing that it was only limited in application to Other Backward Classes.
The five-judge Constitution Bench of the SC has yesterday brought in much needed clarity on these important issues. The 'creamy layer' concept is often understood as something which is against reservation, working to the benefit of the general class. 'Creamy layer' however was devised by the Supreme Court to work to the advantage of the truly backward, by precluding from reservation the economically, socially and educationally advanced, so that its benefits could reach those really excluded. The Supreme Court has categorically held that 'creamy layer' is applicable to SC/STs as well, that the creamy layer must not perpetuate itself by bagging all the coveted jobs in the public sector. This is an important, impactful conclusion. For example, wards of IAS or IPS officers from the SC or ST category, cannot now claim the benefit of reservation, as they are not equal to the other disadvantaged SC STs for whom it is truly meant.
On the issue of collecting quantifiable data, the Supreme Court has made a fine distinction between collecting it for the purposes of proving backwardness and collecting it for the purpose of determining inadequacy of representation. It is the former condition that has been found to be erroneous as it has been held, and correctly so, that inclusion in the list of SCs and STs is proof of backwardness. However, as regards the latter condition of collecting quantifiable data for determining inadequacy of representation, the Court upheld it to be a valid condition and approved Nagaraj on this count. Therefore, all the States and the Centre are still obligated to collect quantifiable data, per the concerned cadre, in order to prove inadequacy of representation of SCs and STs in services.
Therefore in our view the Apex Court has rightly upheld Nagaraj on all counts, except setting aside the requirement of collecting quanitifiable data to prove the backwardness of the SCs/STs. This is a balanced and well reasoned stand, the governments of the day would do well to follow it in letter and spirit.
Animesh Sharma and Sarthak Gupta (The authors are lawyers practicing in the Punjab and Haryana High Court)
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