The Supreme Court (SC) on Thursday questioned the logic behind granting reservation in promotion in government jobs to the creamy layer within the Scheduled Caste and Scheduled Tribe (SC and ST) communities. It felt it was necessary to have a quantifiable data and benchmark to determine who among the “socially disadvantaged sections” should be given the benefit of the affirmative action.
Attorney General KK Venugopal, however, told a Chief Justice Dipak Misra-led constitution bench that the court should leave this question to the President’s wisdom. He said the President alone has the Constitutional prerogative to determine castes, race, and tribes for classification under SC and ST category.
Venugopal argued for “proportional representation for SC and STs” when it comes to promotion in jobs, besides entry level reservation. He said there has to be adequate representation of the communities that have remained suppressed. Misra asked Venugopal to clarify the concept of “adequacy” in representation, especially in the absence of quantifiable data. “We want to know precisely what is meant by adequacy,” he remarked.
The bench, also comprising justices Kurien Joseph, Rohinton Nariman, Sanjay Kishan Kaul and Indu Malhotra, is hearing the Centre’s request to refer the top court’s 2006 judgment in the Nagaraj case to a larger bench of nine judges for reconsideration.
According to the government, the verdict that stopped states and the Centre from having reservation in promotion unless it was backed by a data to justify the affirmative action was against the Constitution.
“Should the creamy layer be excluded?” justice Joseph asked Venugopal, telling him that the government must address the issue. Venugopal pleaded that SC and STs have for centuries been subjected to discrimination. He added hence they are entitled to reservation in promotion as part of the affirmative action under the Constitution.
Misra said that supposing there are 100 posts due for promotion, then the government cannot say that it would reserve certain number of posts for SC and STs, unless it has the requisite data to justify inadequacy of representation of the two communities. But Venugopal replied that at least 10% of the posts should be reserved for the socially-disadvantaged communities.
When Misra said the policy must be “rationale and reasonable,” Venugopal replied: “Principle of proportional representation will be most reasonable.”
Venugopal said the government was of the view that for certain posts, which require “intelligence” and “skill”, merit alone should be the criteria.
Venugopal highlighted how SC and ST were looked down by high castes and members of the two communities never married each other.
To this, Justice Kaul said that not marrying in some other caste is not restricted to SC/ST and that it was rampant in our society.
During the hearing, Justice RF Nariman remarked that caste permeates every religion in India. A Parsi himself, the judge observed that Zoorastrianism, too, has been “Hinduised.”
“There is no caste in the mother country of my religion. But here, we have it. It does not matter there, where you are born, but here you have to take birth in a priestly family to become a priest. I could not have become a priest, if I was not born in a priestly family,” the judge said.
He remarked the church to which Justice Kurien Joseph belongs did not marry outside “gotra” for generations and the practice was broken only over the last two generations. “People have socially come up,” Justice Joseph replied.