17-08-2018-Supreme Court asks if creamy layer would apply to SCs, STs, Centre says no

The Indian Express: August 17, 2018

The Supreme Court on Thursday sought to know if the creamy layer concept would apply to Scheduled Castes (SCs) and Scheduled Tribes (STs) so that the backward in these sections get benefits of reservation. The Centre replied that this was not possible as there was a legal presumption of their backwardness and once the entire SC and ST population had been identified as backward and provided benefits, it would not be open to withdraw these.

“There was one more question; whether the creamy layer concept would apply to SCs and STs…Should those who have come up in life continue to enjoy the benefits of reservation,” asked Justice Kurian Joseph who was part of a five-judge Constitution bench set up to examine whether the apex court’s 2006 decision in M Nagaraj and others Vs Union of India case on reservation for SCs and STs in promotions requires reconsideration.

The bench, headed by Chief Justice of India Dipak Misra, also comprised Justices R F Nariman, S K Kaul and Indu Malhotra. Attorney General K K Venugopal, appearing for the Centre, told the bench that “once identified, to deprive them of these benefits saying they have crossed a threshhold, it is not open”. He added, “only President after due inquiry can decide whether they have crossed the level of backwardness and only Parliament can do that.”

The A-G said backwardness can never be changed and that there were still instances of upper castes not employing lower castes in their homes. But Justice Joseph reminded him that he was speaking about public employment. “When they continue to compete intra-class, who will get the benefit?,” he asked.

The 2006 judgment had said that if state wanted to provide reservation in promotion for SCs & STs, it must first collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. The state will also have to take into account the likely impact on overall administrative efficiency, it said. The Centre has challenged this, saying the judgment was non-implementable.
CJI Misra pointed out that quantifiable data will depend on two factors — backwardness and representation in services. “We want to know what adequacy exactly means,” said the CJI. The A-G insisted that there was a presumption of backwardness as far as SCs and STs are concerned and that it was a provision for affirmative action. He said these sections should be given reservation proportional to their population.

But Justice Nariman pointed out that population may not always be the criteria for reservation at all levels. It also depends on the number of posts, which class etc, he said, adding that it will also have to consistent with efficiency in employment. The CJI pointed out that the “adequacy has to be reasonable, rational and non-arbitrary”.
The court also quizzed the A-G on his contention that reservation in promotions should be based on service and not cadre. “You will have to take a cadre-oriented approach and not services in toto…There will be many categories of services. You take them together and create class. That somehome does not appeal to common sense,” said the CJI.

But the A-G said one would have to keep in mind that the concept behind Article 16(4) of the Constitution which enables the state to make provision for reservation for backward classes was affirmative action. He said the “Nagaraj (judgment) has done injustice by saying that the employer has to satisfy the court on quantifiable data” and that it is “erroneous approach in that it requires quantifiable data to prove backwardness in so far as SC/ST is concerned”.

But the CJI replied that the judgment was passed 12 years ago and wondered if any state had collected quantifiable data. Venugopal said “quantifiable data is a phrase that has resulted in entirely destroying the scheme under Article 16(4)”.

An exchange on caste, conversion

The Supreme Court on Thursday witnessed a lively exchange on caste and conversion with Attorney General of India K K Venugopal opining that conversion to Christianity had not cured caste differences and Justice R F Nariman remarking that caste had permeated every religion in India, including his.

“Conversion to Christianity was to remove inequality, but I’m told that caste differences exist there too,” Venugopal told a five-judge Constitution bench set up to examine whether its 2006 decision in M Nagaraj and others Vs Union of India case on reservation for SCs and STs in promotions requires reconsideration.

The bench headed by Chief Justice of India also included Justices Kurian Joseph, S K Kaul and Indu Malhotra. Justice Kaul pitched in and said “from where you convert to Christianity is also a question”. Justice Joseph seemed to agree and remarked “conversion is a matter of faith, but it does not remove the past stigma. It can never be wiped out.”

Venugopal added that Ambedkar had chosen to convert to Budhism and not Christianity. “Even now if they (Dalits) want to convert, they convert to Budhism,” he said. “Caste permeates every religion, including mine,” said Justice Nariman, who belongs to the Parsi community. “We have become completely Hinduised.” The AG said that in Kerala, even Muslims celebrate the Onam festival.

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