A recent judgment by a five-judge bench in the Nagaraj case has the political class up in arms. They allege error and injustice in the judgment that, apparently, extends the concept of ‘creamy layer’ to be an exclusionary criterion in the reservation in promotions for SCs and STs. Politicians have called for an immediate constitutional amendment to undo this aspect of the judgment. All this is, of course, accompanied by belligerent statements calling for a showdown between the people’s elected representatives and the unelected judiciary.
Were the issue not fraught with serious consequences, it would have been almost comic. The controversy illustrates several aspects of our nation’s functioning as a vibrant democracy. It illustrates how the apex court can go wrong, even if inadvertently. It illustrates the dangers of hurried adjudication on constitutional issues. It even reflects the ignorance of our political class. Their ignorance is engendered, in no small measure, by the lack of information on judgments and by belated verdicts that run to such length that reactions are invariably based on hearsay. Lastly, it reflects the propensity of relatively simple issues, solvable by simple measures, to blow up into big controversies amid a volatile mix of ego, error and information deficit.
How is the Nagaraj judgment constitutionally erroneous? The judgment is wrong on the issue of creamy layer and SCs/STs because it is contrary to established apex court precedent. But so obvious is the error that it leads one to surmise that the reference to ‘creamy layer’ may well have arisen from inadvertence or the vice of speaking on too many diverse issues in a collective judicial breath.
The only issue in the Nagaraj case was whether applying the 50 per cent limit on reservations, by excluding carry-forward vacancies of past years from the 50 per cent calculation, on Article 16(4A) and Article 16(4B) was constitutionally valid. Article 16(4A) was inserted by the 77th constitutional amendment in 1995 and provided for seniority in promotions involving reservations for SCs and STs. Article 16(4B), inserted by the 85th constitutional amendment in 2001, permitted both accelerated promotions and consequential seniority arising from reservations.
Since the validity of constitutional amendments was in issue, the only ground for challenge could be that such amendments violate the basic structure of the Constitution. The Nagaraj court held that these amendments did not alter its basic structure and upheld them.
The apex court used the doctrine of ‘controlling factors or compelling reasons’ to state that the 77th and 85th constitutional amendments retain compelling factors like backwardness, inadequacy of representation and overall efficiency of State administration. It says that they do not obliterate the constitutional limit of 50 per cent, uphold the concept of a post-based roster and allow for replacement and so on. So far so good. The court also rightly noted that these amendments are confined to SCs and STs alone.
The error occurred when the apex court, in the course of listing such ‘controlling and compelling’ factors, also included in its listing the concept of the ‘creamy layer’. It viewed this as a relevant ‘controlling and compelling factor’ in the realm of a ‘qualitative exclusion’, just as the overall 50 per cent limit is a ‘quantitative limitation’. In the 81-para judgment, ‘creamy layer’ is first mentioned in para 71. Ironically, the court then notes in para 73, that in the Indira Sawhney case, the so-called ‘Mandal judgment’, all except one judge accepted that the means test should be adopted to exclude this layer from the protected group earmarked for reservation. The Nagaraj court thus concluded that the Mandal court had “struck a balance with the principle of secularism (and backwardness)… by bringing in the principle of creamy layer”.
Here lies the error. The Mandal judgment is by nine judges whereas the Nagaraj court comprised five judges. The Indira Sawhney case is thus axiomatically binding on the Nagaraj court. The ‘creamy layer’ concept was judicially invented to provide for a cut-off in respect of backward classes (BCs), not SC/STs. The only office memoranda under challenge in the Sawhney case were those providing for backward class reservation, not SC/ST reservation. The creamy layer was to be devised on a composite index of social, educational and economic backwardness for BCs and not for SC/STs.
Nevertheless, the majority in the Sawhney case took care in a 555-page, 866-para judgment to clarify in parentheses that the creamy layer discussion “is confined to Other Backward Classes only and has no relevance in the case of STs and SCs”. The five-judge Nagaraj court could not possibly have intended to overrule this clear mandate of the nine-judge court while relying upon and quoting from that nine-judge bench.
Moreover, since Independence, our Constitution has recognised SC/STs as a class per se entitled to reservation, without any further inquiry into the level and degree of their backwardness. As judicially noted in the Mandal order itself, SCs/STs are constitutionally deemed to be backward and no further inquiry into their backwardness is justified. The Nagaraj court could hardly have intended that this established legal wisdom be overturned or substituted by an altogether new legal test.
The solution is neither to go for a constitutional amendment nor to make strong condemnatory statements. The idea is to simply apply to the apex court for clarification, on the basis of the contradiction between the Indira Sawhney case and later judgments on the one hand, and Nagaraj, on the other, on the narrow issue of inapplicability of the creamy layer test to SC/STs. Correctives are available, but hand-wringing, lamenting or suffering from a crisis-mentality is neither necessary nor justifiable.
Abhishek Singhvi is Senior Advocate, Supreme Court of India, and Congress spokesperson.
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