Holding that the 2006 directions mandating the government to collect quantifiable data on the backwardness of Scheduled Castes and Scheduled Tribes as bad, a five-Judge Constitution Bench comprising Chief Justice Dipak Misra, Justices Kurian Joseph, Rohinton Nariman, S.K. Kaul and Indu Malhotra said: “We conclude that the judgment in Nagaraj case does not need to be referred to a seven-Judge Bench.”
The top court by its 2006 judgment, also known as the Nagaraj case, had said: “… state will have to show in each case the existence of compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency, before making provision for reservation in promotion.”
The court on Wednesday said that the 2006 directions on collecting quantifiable data on the backwardness of SC/ST was contrary to the 1992 judgment by a nine-Judge bench.
The court also said that the concept of creamy layer as provided for in the 2006 judgment would remain but the court left it to Parliament to exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342 of the Constitution.
“We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342,” said Justice Nariman speaking for the bench.
“Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that the constitutional courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer, cannot be said to be thwarted in this exercise… as it can be done by Parliament alone.”
However, the court said that for providing reservation in promotions to the SCs/STs, quantifiable data shall be collected by the State to satisfy the criteria of inadequacy of representation and overall efficiency of administration as stipulated in the 2006 judgment.
It clarified that the data would be relatable to cadre.
“We may further add that the data will be relatable to the concerned cadre,” it added.
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, the court said.
This will not be possible, the court said, “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.”
The court said that 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 Lists under Articles 341 or 342.
The court also rejected the Centre’s plea to lay down that the proportion of Scheduled Castes and Scheduled Tribes to the population of India should be taken to be the test for determining whether they are adequately represented in promotional posts for the purpose of Article 16(4-A).
The Centre had contended that the 2006 judgment ought to have stated this, but did not say anything on this aspect.
Rejecting this contention, the court said: “According to us, Nagaraj case has 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, the court said.
It further said that the test of proportionality to the population is mandated by the Constitution when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes.
During the hearing of the Centre’s plea for revisiting the 2006 judgment, Attorney General K.K. Venugopal had told the court that “Nagaraj is admittedly erroneous as it says that you require quantifiable data” for reservation in promotions.
The Centre had pushed for reservation in promotions for SCs/STs in government jobs as it had told the top court that the disability of their backwardness was writ large as traditionally people from other castes don’t have matrimonial ties with them and cited instances of bridegrooms inviting the wrath of dominant castes for riding mares during weddings.