Explained: Creamy layer principle in SC, ST quota for promotion: judgments, appeals

The Indian Express: 09/12/2019

Last week, the Centre urged the Supreme Court to refer to a larger Bench its decision last year that had applied the creamy layer principle to promotions for Scheduled Castes and Scheduled Tribes in government jobs.

What was the case about?
In Jarnail Singh vs Lachhmi Narain Gupta (2018), the court dealt with a batch of appeals relating to two reference orders, first by a two-judge Bench and then by a three-judge Bench, on the correctness of the Supreme Court’s judgment in M Nagaraj & Others vs Union of India (2006). The Nagaraj case, in turn, had arisen out of a challenge to the validity of four Constitution amendments, which the court eventually upheld.

What were these amendments?
77th Amendment: It introduced Clause 4A to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
81st Amendment: It introduced Clause 4B, which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year to find out whether the total quota has breached the 50% limit set by the Supreme Court.

82nd Amendment: It inserted a proviso at the end of Article 335 to enable the state to make any provision for SC/STs “for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.

Article 335 of the Constitution relates to claims of SCs and STs to services and posts. It reads: “The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”

85th Amendment: It said reservation in promotion can be applied with consequential seniority for the SC/ST employee.

How did the Nagaraj case proceed?
The petitioners claimed that these amendments were brought to reverse the effect of the decision in the Indra Sawhney case of 1992 (Mandal Commission case), in which the Supreme Court had excluded the creamy layer of OBCs from reservation benefits. In the Nagaraj judgment, a five-judge Bench of then Chief Justice of India Y K Sabharwal and Justices K G Balakrishnan, S H Kapadia, C K Thakker and P K Balasubramanyan upheld the constitutional validity of the amendments.

The court said reservation should be applied in a limited sense, otherwise it will perpetuate casteism in the country. It upheld the constitutional amendments by which Articles 16(4A) and 16(4B) were inserted, saying they flow from Article 16(4) and do not alter the structure of Article 16(4).

The SC ruled that “the State is not bound to make reservation for SC/ST in matter of promotions. 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 of Article 335.

It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely”. In other words, the court extended the creamy layer principle to SCs and STs too.

What happened in the subsequent Jarnail Singh case?
The Centre argued that the Nagaraj judgment needed to be revisited for two reasons. Firstly, asking states “to collect quantifiable data showing backwardness is contrary to the nine-Judge Bench in Indra Sawhney v Union of India where it was held that Scheduled Castes and Scheduled Tribes are the most backward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the SCs and STs all over again”.
Secondly, the creamy layer concept has not been applied in the Indra Sawhney case to the Scheduled Castes and the Scheduled Tribes; the Nagaraj judgment, according to the government, “has misread” the Indra Sawhney judgment to apply the concept to the SCs and STs.

Attorney General K K Venugopal, appearing for the Centre, contended that “once the Scheduled Castes and the Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament under Articles 341 and 342”. (These two Articles define who will be considered SCs or STs in any state or Union Territory)

The AG also wanted the court to lay down “the test of proportion of Scheduled Castes and Scheduled Tribes to the population in India at all stages of promotion…”

How did the court rule?
Last year, a five-judge Constitution Bench comprising then Chief Justice of India Dipak Misra and Justices Kurian Joseph, R F Nariman, S K Kaul and Indu Malhotra refused to refer the Nagaraj verdict to a larger bench. However, it held as “invalid” the requirement laid down by the Nagaraj verdict that states should collect quantifiable data on the backwardness of SCs and STs in granting quota in promotions, but said they will have to back it with data to show their inadequate representation in the cadre. It said that the creamy layer principle — of excluding the affluent among these communities from availing the benefit —will apply.

“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. This will not be possible 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 Bench said.

“This being the case, 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 List under Articles 341 or 342… It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation,” the Bench ruled.
On the prayer that it should lay down the test for determining adequacy of representation in service, the court said “according to us, Nagaraj… has wisely left the test for determining adequacy of representation in promotional posts to the States…”

What happens now?
The Centre, while praying that the 2018 judgment be referred to a larger Bench, has referred once again to the 1992 Indra Sawhney judgment, submitting that the Supreme Court then did not apply the creamy layer concept to SCs and STs. The Bench has said it will hear the matter after two weeks.

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