The court will look into the correctness of Nagaraj case which while upholding the validity of reservation in promotion for the SCs and STs, laid down certain conditions which make it difficult for the Central and State Governments to give reservation in promotion.
The Constitution bench comprising Chief Justice Dipak Misra and Justices Kurian Joseph, Rohinton Nariman, Sanjan Kishan Kaul and Indu Malhotra will hear the case on reservation in promotion for SC/STs.
The court will consider the correctness of its 2006 judgment in Nagaraj.
In Nararaj, the 5 judge bench of the Supreme Court heard the challenge to the constitutional validity of:
The Parliament brought these amendments to nullify the effect of Indra Sawhney case. The 9 judge bench had ruled that Article 16(4), which allows the State to provide reservation in appointments in “ favour of any backward classes of citizens”, did not apply to promotions.
Article 16(4A) enabled the State to make any law for reservation in promotions for SC/ STs. Article16(4B) provided that the unfilled posts on reservation in promotions for SC/STs can be carried forward to the subsequent year. Article 16 (4B) was inserted to ensure that the ceiling on reservation quota - capped at 50% by Indra Sawhney - does not apply to unfilled posts on reservation in promotions that are being carried forward.
Article 335 mandates that the claim of reservation in employment has to be balanced with “maintenance of efficiency” of administration. The newly inserted proviso to Article 335 which clarified that the article shall not apply to the State “making any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion.”
In Nagaraj, the court upheld the constitutional validity of 77th, 81st, 82nd and 85th Constitution Amendments. However, the court held that if the State is providing reservations to SC/STs in promotions, then it has to satisfy three conditions: backwardness of the class has to be demonstrated; inadequacy of representation in the service has to be shown; it should be in the interest of overall administrative efficiency.
The current issue arose from a reference by a division bench to a constitution bench on 14th November 2017. The matter is an appeal by the State of Tripura against the judgment of the Tripura High Court. The petitioners before the High Court had challenged Section 4(2) of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1991 and Rule 9(2) of the SC/ST Rules. The petitioners before the Tripura High Court had argued that these provisions which extend reservation in promotions to SC/STs violate the right to equality of the general category; these provisions are in contravention of the test laid down in Nagaraj. The Tripura High Court had struck down Section 4(2) of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1991 as being in violation of conditions laid down in Nagaraj. Hence, this appeal to the Supreme Court by the State of Tripura.
While referring it to the Constitution bench in November 2017, the court noted that the issue of interpretation of Article 16, in light of three Supreme Court decisions in Indra Sawhney, EV Chinnaiah and M. Nagaraj, is under consideration. The order also noted that Nagaraj needs to be relooked as the judgment did not refer to the earlier case of EV Chinniah which dealt with reservation in promotions for SC/ STs. The Constitution bench will also revisit Nagaraj to decide if the condition of proving backwardness in matters of reservation in promotions for SC/ STs violates Indra Sawhney's ruling on presumption of backwardness for SC/STs.
The Constitution bench will not go into the merits of this case but will restrict itself to judging the correctness of Nagaraj.
1) Whether Nagaraj, which upheld reservation in promotions for SC/STs, was correctly decided?
2) Whether the condition of proving backwardness afresh and showing inadequate representation for reservation in promotions for SC/ STs violates the 9 judge bench decision in Indra Sawhney case?