On 26 September, a Constitutional Bench of five judges at the Supreme Court delivered a judgement in the Jarnail Singh case on reservation in promotion for the Scheduled Castes (SC) and Scheduled Tribes (ST) in public services. The apex court approved the creation of a creamy layer in SC/ST reservation, but invalidated the requirement of data for applying reservation.

This case revisited the M Nagaraj judgement, which was delivered in 2006.

In the Nagaraj judgement, the court dealt with a Constitutional Amendment that provided for reservation in promotion for SC/ST candidates. The Amendment said that the state could reserve posts in promotion for SC/ST candidates in service under the state who, in the opinion of the government, were not adequately represented. The Amendment did not make any distinction within the SC/ST category with respect to the creamy layer.

The Nagaraj judgement upheld the Amendment, saying the state was not bound to offer reservation in promotion. But where the state was satisfied for compelling reasons that there existed “backwardness” and “inadequacy of representation”, it, by way of policy, could provide for reservation in promotion.

The court also laid down certain other conditions with respect to reserving posts in promotion for SC/ST candidates. It mandated the presence of ‘quantifiable data’ before the state could apply such reservation. This “quantifiable data” was not explained in the judgement, but the same was to be used to determine backwardness of class and adequacy of representation.

The judgement also said the state could not exceed the ceiling of 50 per cent while reserving posts for SC/ST candidates. The most remarkable finding of the court in the Nagaraj judgement was the introduction of the creamy layer in SC and ST, which was otherwise applicable only to Other Backward Classes (OBC).

Creamy Layer

The creamy layer essentially includes people from the relatively better economic strata within a community, and they are not eligible for the benefit of reservation.

The creamy layer is a concept device that was propounded in the Indra Sawhney judgment and was applicable only to the OBC. It recognised the sociological fact that there is a relatively able category of people within the same class and that the benefit of reservation is availed by them alone. The lower strata within the class, on the other hand, is left where it was earlier. Generations of a limited number of families become the beneficiary of reservation.

Application of the creamy layer concept considered economic condition as one of the indicators of social upliftment, as was accounted for by the Mandal Commission, too.

Jarnail Singh Case

In the Jarnail Singh case, the court was requested to revisit the judgement on the need for quantifiable data and the application of the creamy layer concept to SC and ST. The court did not strike down the application of the creamy layer concept in the scheduled communities, and held that this section does not form a separate category within a category, but merely keeps people with a better economic background away from the benefit of reservation.

The apex court invalidated the Nagaraj judgement in so far as it mandated the requirement of quantifiable data before making a reservation in posts for SC and ST. The judgement stated that quantifiable data is not required for applying reservation in promotion. This has given rise to a practical problem with respect to the identification of the creamy layer and adequacy of representation in the absence of quantifiable data. It has, in fact, given an option to the state to provide the benefit of reservation to anyone within the scheduled communities. Whether the exercise of this option will be arbitrary has to be determined by the court on a case-to-case basis since it did not provide any guidelines on the matter.

The apex court was also requested to lay down the test for determining adequacy of representation in public service posts. The fact that the 2011 caste census data has still not been released by the government raises concerns of representational equality in other spheres, as well. The data we are relying on for reservation is broadly based on the 1931 census conducted by the British. There are no means to determine proportional representation because there are no numbers to calculate representation.

Reservation in promotion can be applied if the state is of the opinion that a section of the people is not adequately represented. The grounds for ‘opinion of the state’ and ‘adequacy of representation’ are still not clarified, though. The court did not lay down any test with respect to forming an ‘opinion’ by the state in applying reservation in promotion.

The opinion of the state should indeed be formed on the basis of backwardness and proportional representation of the category. There is a fundamental void with regard to reliable sociological study; but the courts have not looked to go beyond the legal principle. It was necessary not to leave this question of state opinion to the state, or the state should have been asked what basis it would use to form such an opinion.

Homogeneity of a class/category cannot be presumed; it must be proved with recent empirical evidence. The latest census involves the names of 46 lakh castes, sub-castes, surnames, clans, and gotras.

There indeed is a need to reach the lowest strata of society, and the judiciary should be ready to fill the void. With the present judgement, the judiciary has provided this instrument to political parties, who will surely use it during elections or as and when politicians desire. Discretion cannot be challenged to be arbitrary before it is actually applied, and if it is, it shall again create mischief with respect to seniority of all employees under the service of the state. This, indeed, is the beginning of many a litigation to follow.

Shobhitabh Srivastava

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