Supreme Court Wants To Know How Long The Backwardness Of SC And ST Will Continue

Weighing the legality and desirability of introducing the "creamy layer" elimination concept in reservation in promotion, the Supreme Court asked on Thursday whether the backwardness of Scheduled Castes and Scheduled Tribes would persist forever, requiring the perpetuation of quotas.

This response from a five-judge bench led by CJI Dipak Misra came after a clutch of senior advocates ¡ª additional solicitor general Tushar Mehta, Nidhesh Gupta, Dinesh Dwivedi, Indira Jaising, Rupinder S Suri, A Mariarputham and Sanjay Hegde ¡ª appearing for states and SC/ST employees, argued that the correctness of the SC's 2006 Nagraj judgment putting a spoke in quota in promotion needed to be tested by a seven-judge bench.

The bench of CJI Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra said, "Entry-level reservation in employment on the basis of backwardness is no problem. But what is worrying us is the accelerated promotion to all SC/ST employees without looking into their status of employment."

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"Suppose a person by virtue of reservation gets into IAS and becomes secretary through reservation in promotion. Can a very senior bureaucrat's grandson and great-grandson be treated as backward for promotion in employment, and that too in perpetuity?"

All the lawyers seeking referral of the Nagraj judgment to a seven-judge bench adopted attorney general K K Venugopal's argument that once a caste was included in the Schedule and a presidential order was issued, there was no need for fresh adjudication of their backwardness as mandated by the 2006 judgement.

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The Nagraj verdict had upheld the validity of Article 16 (4A) allowing states to make reservation in promotion but had put three riders ¡ª states must collect quantifiable data to determine backwardness of the employee, determine adequacy of SC/ST representation in jobs and keep the overall efficiency in administration in mind while granting reservation in promotion.

Appearing for general candidates in employment who are opposed to quota in promotion, former law minister Shanti Bhushan said it was open for the government to advertise top posts for direct recruitment and provide reservation for SC/STs in that. "But if promotions to top bureaucratic posts are to be given through reservation, it will spell disaster for the country."

Supporting Bhushan, senior advocate and constitutional expert Rajeev Dhavan said, "Creamy layer elimination from reservation benefits is nothing but a reasonable application of the concept of equality.

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Through entry-level reservation, those who have suffered for centuries are given a chance to compete with equals. But certain individuals among SC/STs who have moved up and gone beyond backwardness should not be given reservation in promotion. There is no immortality to reservation."

He added, "There is a danger in making reservation immortal and not applying the creamy layer to SC/STs. That is the reason why OBCs want to be included among SCs and STs."

Dhavan presented the Lok Sabha debate on the amendment to Article 16 introducing quota in promotion. It was passed in a hurry without referring it to the select committee and MPs who wanted a debate were told that they would be perceived as against SC/STs, he said. Arguments will continue on Wednesday.