The question whether M. Nagarajv. Union of India (2006 8 SCC 212) judgment should be reconsidered/referred to a larger bench was heard on August 24, 2018 by a five-judge Constitution Bench of the Supreme Court, comprising Chief Justice Dipak Mishra as well as Justices Kurian Joseph, Rohinton Nariman, Sanjay Kishan Kaul and Indu Malhotra. The issue for debate was whether the States are required to collect quantifiable data to determine “backwardness, adequacy of representation, efficiency in administration” as laid down in M. Nagaraj judgment.
Arguing in favour of reconsideration, Senior Advocate PS Patwalia stated that any implementation will be challenged if such implementation is not in consonance with Articles 14 and 16. He focused on the use of phrase “class or classes of posts” by Justice Jeevan Reddy in Indira Sawhney judgment to contend that the issue in question is based on the subjective satisfaction of the State.
Further, in support of reference, Senior Advocate Indira Jaising contended that M. Nagaraj judgment laid down erroneous tests to determine the validity of a Constitution Amendment. She contended that the Constitution does not recognise the phrase “compelling reasons” and therefore, M. Nagaraj being founded upon the said test, must be reconsidered. She further argued that as per Indra Sawhneythere is a difference between “affirmative action” and “reservation” and both the terms cannot be used interchangeably. She stated that diversity and inclusiveness at every level is what the Constitution mandates. She cited factors such as untouchability for Scheduled Castes and tribal identity and isolationfor Scheduled Tribes determines backwardness. Moreover, once identified by the President by virtue of Articles 341 and 342, that in itself is conclusive of their backwardness and hence no further exercise of collecting quantifiable data to prove backwardness is required. She suggested that the determination on the basis of “compelling reasons” for promotions to be given to SCs/STs amounts to sub-classification, which is prohibited by the Constitution of India.
Against reconsideration of M. Nagaraj, Shanti Bhusan, Senior Counsel stressed on the principle of constitutional identity and the pith of the effect of any constitutional amendment on the basic structure of the Constitution. Thereafter,Senior Advocate Rajeev Dhawan argued that creamy layer is a not group based right and that Articles 341 and 342 is a matter of status and do not give rights to anyone. He stressed that the identity of equality is not taken away by the judgment rendered in M. Nagaraj.
The Bench will resume hearing arguments on August 29, 2018.
Read Senior Advocate Indira Jaising’s written submissions in the matter.