NEW DELHI: The Supreme Court has stated orally that it will not revisit the concerns it resolved in its 2018 verdict on reservation in government employment promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs).
Justices L Nageswara Rao, Sanjiv Khanna, and BR Gavai said on Tuesday that it is up to the states to figure out how to carry out the court’s orders. “We can’t dictate policy further since we’ve already given orders on how to view backwardness. It is for the states to implement policy, not for us to prescribe…”, Justice Rao said, expressing the court’s disapproval of the reopening of the Jarnail Singh decision.
The court was considering states’ petitions emphasising difficulties related to the 2018 judgment’s implementation. The states and the federal government urged the court to consider the cases as soon as possible, claiming that many appointments had been stalled due to discrepancies in the rules governing the implementation of the 2018 judgement.
The Supreme Court had to deal with a slew of appeals in the Jarnail Singh case, which stemmed from two reference orders, the first by a two-judge bench and the second by a three-judge bench, on the correctness of the top court’s 2006 judgement in M Nagaraj & Others Vs Union of India.
In the Nagaraj case, the Supreme Court ruled that “the State is not obligated to make a reservation for SC/ST in matters of promotions.” However, if the State wishes to use its discretion and make such a provision, it must collect quantitative facts demonstrating the class’s backwardness and inadequacy of representation in public employment, in addition to complying with Article 335.
Even if the State has strong reasons, as described above, the State must ensure that its reservation provision does not lead to excessiveness, such as breaching the 50 percent ceiling limit, obliterating the creamy layer, or extending the reservation indefinitely.”
The Centre had urged the Supreme Court to reconsider the Nagaraj decision on two grounds: first, asking states to “collect quantifiable data showing backwardness” is in conflict with the nine-judge bench’s decision in Indra Sawhney vs. Union of India, which held that Scheduled Castes and Scheduled Tribes are the most backward of the backward classes, and it is presumed that once they are included in the census, they will be the most backward of the backward classes. Second, the creamy layer concept was not applied to the Scheduled Castes and Scheduled Tribes in the Indra Sawhney case, and Nagaraj “misread” the Indira Sawhney decision to apply the idea to the SCs and STs.
However, a five-judge Constitution bench led by then-Chief Justice Deepak Misra denied Nagaraj’s request to be transferred to a larger court. It did, however, declare the Nagaraj decision’s requirement that states collect quantifiable data on the backwardness of SCs and STs in providing quotas in promotions to be “illegal,” but stated they would have to back it up with evidence to prove their inadequate representation in the cadre. The creamy layer principle, which excludes the affluent among these communities from receiving the benefit, will apply, according to the report.
According to Senior Advocate Indira Jaising, the Centre has not established any regulations for implementing the Nagaraj so that there is a clear understanding of what constitutes adequate representation, and in some situations, the High Court has struck down state-made measures for the same.
Attorney General K K Venugopal also stated that the Nagaraj ruling left several ambiguities and that the Centre was forced to make several ad hoc promotions to ensure that the departments’ operations were not disrupted and that contempt notices were issued to the Secretary of the Ministry of Home Affairs over these promotions.
The AG requested that the contempt notices be recalled, but the court stated it would not issue an order right now and would hear the contempt case with the main case on October 5.