Day 2 Arguments: 16th August, 2018
The court began hearing this case at 10.30 A.M.
Attorney General K.K. Venugopal, appearing for the Union, began his submissions. He argued that the conditions laid down in Nagaraj are making it difficult to provide reservation in promotion to SC/STs. Mr. Venugopal urged the court to refer the case to a larger bench to review Nagaraj.
Mr. Venugopal pointed out that the condition of demonstrating backwardness of SC/ STs amounts to introducing the creamy layer principle in this category: the 9 judge decision in Indra Sawhney prohibits this.
CJI enquired if the Union submits that the creamy layer principle doesn’t apply to SC/STs. Mr Venugopal responded in affirmative. He submitted that the Parliament, under Articles 341 and 342 , has the prerogative to identify the groups which belong to SC/ST: the courts are not empowered to make any amendments to this list.
Mr. Venugopal further added that the Parliament has recognized historical injustice meted out to specific groups and categorized them as SC/ST: the additional requirement of proof of backwardness is adverse to their interests and is impermissible under the Constitution.
Justice Kurian Joseph asked if non-enquiry on further backwardness for some groups would not lead to exclusion of more backward or needy sections. Mr. Venugopal did not respond. He moved on to read Article 15(4) and 16(4) to argue that the requirement of showing backwardness for reservation does not apply to SC/STs.
Mr. Venugopal read the text of Article 15(4) and Article 16(4) to submit that the concept of social backwardness does not apply to SC/ STs as it does to other backward classes. He read the text of Article 15(4), “Nothing in this Article…shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes” to buttress his point. He emphasized on the word “or” under Article 15(4) to argue that SC/ STs form a separate class, distinct from socially and educationally backward classes.
Justice Nariman enquired if the Union is arguing for the review of Nagaraj as the creamy layer issue for SC/ST can only be dealt with by Parliament or the President and not the courts. Mr. Venugopal answered in affirmative.
CJI further enquired if the requirement of showing backwardness goes, then would the requirement of showing "inadequate representation" in specific public employment be redundant or are the two independent requirements. Mr. Venugopal replied that there cannot be a court directed enquiry on the questions of backwardness or inadequate representation of SC/STs.
Next, Mr. Venugopal addressed the question on whether the States need to collect data for showing inadequate representation of SC/ST to provide reservation in promotion. Justice Nariman interjected to ask - Should the benchmark for showing inadequate representation be different for reservation in appointment vis-à-vis reservation in promotion for SC and STs? This is because Article 16(4) deals with the requirement of showing inadequate representation only for reservation in appointments. Justice Nariman asked - how much of a cadre focus should be there for proving inadequate representation for reservation in promotions under Article 16 (4A)?
Mr. Venugopal replied that representation of SC/STs should be in proportion to their population in the State.
Mr. Venugopal concluded his arguments by reiterating on three points – first, backwardness criteria introduced by Nagaraj is unwarranted; second, indirect introduction of creamy layer for determining backwardness of SC/STs is bad and third, Nagaraj did not clarify the yardstick for measuring inadequate representation of SC/STs.
CJI observed that irrespective of what Nagaraj held, it seems like no State has done necessary research and prepared data to determine adequate representation in services. This indicates definite failing on part of the States.
Justice Nariman objected to using state population of SC/ST as a basis for providing reservation in promotion. He observed that while population can be used as a basis for determining reservation in appointments but not at levels of reservation in promotion.
Next, Mr. P.S. Patwalia, the counsel for the State of Tripura and Bihar began his arguments. Mr. Patwalia supported Mr. Venugopal’s stand that backwardness of SC/ST could not be added as an additional criteria for providing reservation in promotion.
He referred to Chinnaiah, which had held that SC/STs are presumed to be backward as a group and there can be no further enquiry to determine relative backwardness within the group.
CJI asked Mr. Patwalia if reservation would be provided on basis of population or cadre strength of service. He responded that reservation should be based on population but implementation should be cadre based. CJI termed his response as ‘contradictory’. CJI persisted that one issue worth considering is how to fix quantum of reservation – based on total available posts or on specific cadres?
The hearings ended for the day and the matter will be next heard on 22nd August.