A Constitution Bench of the Supreme Court is all set to hear the matter on merits in the petition seeking reconsideration of the M Nagaraj case, wherein the interpretation of Article 16(4), 16 (4-A) and 16 (4-B) is in question in the backdrop of three Constitutional Bench decisions namely the cases of Indira Sawhney, E V Chinnaiah and M Nagaraj. The petition seeks a specific and finer interpretation of the aforementioned provisions.
The Petition has been grounded on the context that the M Nagaraj case has erroneously applied the test of backwardness to the Schedule Castes and Scheduled Tribes while considering the aspect of reservation in promotions matters. Questions were also raised regarding the application of the principle of “creamy layer” to the Schedule Castes and Scheduled Tribes. The Respondents opposed the petition citing that the issue has attained finality and need not be revisited owing to its extensive discussion in a series of judicial pronouncements.
‘Creamy layer’ and the Question of quotas
Indira Jaising, Senior Advocate, has pressed strong reasons before the Court to reconsider the decision laid down in M Nagaraj. At the outset, Jaising categorically made her stance clear that the Court ought not to go into the question whether “creamy layer” should be excluded from applicability to Article 16(4-A). She has pointed out in her written submissions that “creamy layer” does not apply to Schedule Castes and Schedule Tribes. She has placed reliance on Ashok Kumar Thakur’s case to support her claim wherein it was observed that, “So long as the ‘creamy layer’ is not applied as one of the principles of equality, it cannot be applied to SC/STs.”
Jaising has clearly portrayed the jurisprudential backdrop starting with the case of Indira Sawhney in which reservation in promotion matters was held as not desirable. However, the Government subsequently enacted Article 16(4-A) by virtue of the 77th Constitutional Amendment, allowing the Parliament to make provisions of reservation in matters of promotion with respect to to any class. In the M Nagaraj case, i.e., the case under challenge, the five-judge Bench upheld the constitutionality of the 77th, 81st, 82nd and 85th Amendments. However,it specified that Article 16 (4-A) is subject to certain riders namely, backwardness, inadequacy of representation and overall efficiency of the State Administration under Article 335.
Reservation for SC/STs in promotion
The Nagaraj case had observed that, “Art. 16(4A) and 16(4-B) flow from Art. 16(4). They do not alter the structure of Art. 16(4). They retain the ‘controlling factors’ and the compelling reasons’, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State Administration under Article 355.” It has further observed that, “The impugned provision is an enabling provision. The State is not bound to make reservation for SC/STs in promotion matters. However, if they wish to exercise their discretion and make such provision, 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 with Article 335.
Jaising has specified in her written submissions that the M Nagaraj case erred in law to hold that Article 16(4-A) and (4-B) flow from Article 16(4). She insisted that such provisions draw source from Article 14 and 16 (1) instead of Article 16(4). She has relied on Justice Krishna Iyer’s opinion in the N M Thomas case which had laid down that, “It is a platitudinous constitutional law that Article 14, 15 Article 16 are a common code of guaranteed equality, the first laying down the broad doctrine and the other two applying it to sensitive areas which are historically important and politically polemical in a climate of communalism and jobbery.”
She has next expressed her concern that the phrases “controlling factors” and “compelling reasons” as laid down in the M Nagaraj case have not been prescribed by the Constitutional language. It is pointed out by her that “backwardness” is an eligibility factor for making reservations for other backward classes. She stresses on the fact that “backwardness” is mentioned only in Article 16(4) and not in either Article 16(4-A) or (4-B) in relation to SC/STs. On this aspect, she mentions that, “Backwardness is a question of eligibility not a controlling factor as the Court seems to suggest in M Nagaraj case. In case of SC/STs, the issue of eligibility does not arise by virtue of Article 16(4) but by virtue of Articles 341 and 342 whereas the question of eligibility to get reservations does arise for OBCs in that they have their ‘backwardness’ with respect to Article 340.”
Jaising thus maintains that no proof of backwardness by quantifiable data is required by the State in relation to SC/STs while making promotions in initial recruitments or in promotions of SC/STs. She submits that being SC/STs is per se proof of backwardness. To lend support to her stand, she argues that, “it is impermissible to sub-divide SC/STs in terms of backward and most-backwards and submits that once a caste or a tribe is notified by way of a Presidential Order that it belongs to SC/ST category, then such caste or tribe is deemed to be ‘backward’ for the purpose of Article 16(4) and consequently for the purpose of Article 16(4-A) and (4-B). Therefore, M Nagaraj has the effect of amending the Presidential Order.”
Lastly, citing the fact that the contentions involve an interpretation of the Constitution, that it concerns a fundamental right of the citizens and that there are clear and compelling reasons to interfere, Jaising requested the Court to reconsider the M Nagaraj’s case on the aforementioned grounds.