Supreme Court verdict on reservation in promotions for SC/STs must ensure filtering out of creamy layer candidates

The Supreme Court will soon pronounce its verdict on a batch of petitions that have sought the reconsideration of a 2006 judgment in M Nagaraj versus Union of India, wherein the court laid down that the state government is not bound to provide for reservation in promotions for members of the Scheduled Castes and Scheduled Tribes (SCs/STs). The court in Nagaraj further laid down criteria for the state governments to permit caste-based reservation in promotions including the collection of quantifiable data to show backwardness of the class and that the class is inadequately represented in public employment. In Nagaraj, the apex court also held that both ‘creamy layer’ and the 50 percent ‘ceiling limit’ would apply to caste-based reservation in promotions and that the state should not extend the reservation indefinitely. In the current petition, the Supreme Court will rule on the question of  whether a seven-judge bench should review the judgment in Nagaraj_._ If the petition is allowed by the court, the issues that would be considered by the seven-judge bench include whether there is the presumption of backwardness with respect to SCs/STs thereby necessitating that there should be reservation even at the stage of promotion and whether the concept of the creamy layer, similar to Other Backward Classes (OBCs), should be extended to SCs/STs. [caption id=“attachment_5169601” align=“alignleft” width=“380”] File image of the Supreme Court of India. AP[/caption] Provisions in the Constitution of India dealing with reservation for backward classes Article 16(1) lays down “equality of opportunity” for all citizens in matters of employments/appointment in any government office. Under Article 16(4), the state can provide for reservation of appointments/posts for any backward class which in the opinion of the state is not adequately represented in a government service. Article 16(4A) inserted vide constitutional amendments in 1995 and 2001 permits the state to make reservation in promotion (with consequential seniority) in favour of SCs/STs where the state feels that such classes are not adequately represented in the government services. Article 16(4A) was held to be an enabling provision in Nagaraj with its implementation subject to the fulfilment of the criteria of showing backwardness and inadequate representation. Article 335 is given in Part XVI of the Constitution that relates to special provisions relating to certain classes. Under Article 335, the government shall take into account the claims of SCs/STs and the maintenance of efficiency of administration when making appointments to government services. Judicial precedents on this issue The higher courts have followed the Supreme Court judgment in Nagaraj. In January 2011, the Allahabad High Court, while hearing a batch of petitions challenging the Uttar Pradesh government’s decision to provide caste based reservation in promotion quashed the reservations on grounds that the state government must abide by the law laid down in the Nagaraj case. This was subsequently upheld by the apex court in April 2012. The policy was rolled back by the Uttar Pradesh government shortly before the Supreme Court’s judgment when a new political party (namely, the Samajwadi Party) came to power. In November 2014, the Punjab and Haryana High Court in Rajbir Singh versus State of Haryana, quashed a 2006 reservation policy of the Haryana government with retrospective effect on the grounds that the policy contravened the law laid down in Nagaraj as the reservation policy by the Haryana government provided for 20 percent reservation in promotion for Supreme Court candidates in government jobs without showing any quantifiable data on backwardness. In May 2015, the Patna High Court quashed reservation in promotions for SCs/STs in government services on grounds that the Bihar government had not furnished data to justify caste-based promotions and that the requirement of overall administrative efficiency due to the reservations (a criterion under Article 335 of the Constitution and emphasised in the Nagaraj case) was not fulfilled. In April 2016, the Madhya Pradesh HC quashed promotions of SCs/STs in government services as they were made in violation of the Nagaraj judgment. In March 2016, a division bench of the Supreme Court reiterated that the state is not obliged to provide reservation in promotion to SCs/STs while dismissing a petition to issue directions to the Uttar Pradesh government to collect necessary quantitative data regarding the representation of SCs/STs in government services for grant of caste-based reservation in promotions. The current petition In November 2017, on the basis of petitions filed by several state governments and SC/ST employees’ associations, the Supreme Court agreed that a five-judge bench should examine whether a seven-judge bench should be set up to examine the Supreme Court’ judgment in the Nagaraj case. The main contention of the petitioners is that the test of backwardness and the creamy layer concept should not be applied in the case of SCs/STs when making a provision for reservation in promotions. The respondents, comprising those opposed to reservation in promotions, argue that the presumption of backwardness of SCs/STs disappears once they join government services. In case of affluent SCs/STs, it is incongruous to treat further generations as backward, a point that was also raised by the Supreme Court when it proposed applying the creamy layer test to SCs/STs as well. A reconsideration of Nagaraj is problematic for two reasons: Firstly, as pointed out by the petitioners, the judgment in Nagaraj has effectively caused any caste-based promotion policy to be incapable of being implemented because no government has taken the initiative to collect data on the representation of SCs/STs in government services. This is therefore, a case of non-implementation rather than unconstitutionality of the criteria laid down in Nagaraj. Accordingly, the appropriate relief in this case would be for the SC to direct the Central and state governments to carry out regular surveys and collect data so that any policy which provides for reservation in promotions can be implemented instead of being automatically struck down as unconstitutional in the absence of any quantifiable data. Secondly, the petitioners claim that the criteria laid down in Nagaraj is unconstitutional as no such criteria is provided in Article 16(4) or in any other constitutional provision relating to affirmative action. This claim can be countered on grounds that equality under the Constitution is to be understood as ‘substantive equality’ and not ‘formal equality’. Substantive equality implies that there should be ‘real’ equality and is often used to justify treating ‘unequals’ unequally. In the same way that substantive equality is used to justify affirmative action between two candidates (one from the reserved category and another from the general category) who are otherwise equally placed, substantive equality should operate to prohibit caste-based promotion in government services as two seemingly unequal candidates (from the reserved and the unreserved categories) are at a level-footing once they join the government services. The Nagaraj criteria is mindful of this difference between formal and substantive equality. At the very least, the concept of substantive equality should be applied to filter out creamy layer candidates from any caste-based reservation scheme, doing otherwise would result in reverse discrimination of the kind feared by the Supreme Court in the Nagaraj verdict. The author holds a Master of Law (LLM) degree from the University of Cambridge