Plain English Summary of Judgment
On 26th September 2018, the Court delivered its verdict in the Reservation in Promotion case. A five-judge Bench of the Supreme Court unanimously held that the judgment delivered in Nagaraj in 2006, relating to reservations in promotions for SC/ST persons, does not need reconsideration by a larger seven-judge Bench. The Bench also struck the demonstration of further backwardness criterion from Nagaraj. Justice Nariman wrote the unanimous opinion.
In Nagaraj, the Supreme Court had held that it was not mandatory for states to grant reservations in promotions and the same was left to the discretion of the State. If the State exercised its discretion in favour of granting reservation, it was to collect quantifiable data to demonstrate backwardness and inadequacy of representation. Dealing with the aforesaid conditions in Nagaraj , the Court has held that the condition requiring the States to collect quantifiable data on the backwardness of the SC/ST community is contrary to the nine-judge Bench decision in Indra Sawhney. Prescribing of the collection of quantifiable data as a pre-requisite for granting reservations in promotions has been held to be invalid and the decision in Nagaraj stands modified accordingly.
However, the court added that the principle of creamy layer exclusion would apply to SC/STs. Previously; it applied only to Other Backward Classes (OBCs) in matters of reservation.
The court held creamy layer exclusion to be a principle of equality. Non-exclusion of creamy layer (forward among the SC/STs) would violate right to equality in two ways: first, by treating equals- general class and forward among Backward Classes (SC/ST) differently and secondly, treating unequals - backward class and forward among backward classes similarly. Thus, the court held that exclusion of creamy layer from SC/ST in matter of promotion is essential to safeguard right to equality. In short, non-exclusion of creamy layer leads to treating equals unequally as well as unequals equally.
Nariman J. observed "the whole object of reservation is to see that backward classes of citizens move forward so that they march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were."
Justice Nariman clarified that in applying the creamy layer principle to Scheduled Castes and Scheduled Tribes, the court in any manner does not tinker with the Presidential list under Article 341 and 342 of the Constitution. The Castes or group mentioned under Presidential Order is not altered, but those persons of the group who have come out of untouchability or backwardness by virtue of belonging to creamy layer are excluded from the benefit of reservation.
The court read creamy layer exclusion as an ingrained principle of Equality in determining contours of reservation policy. Justice Nariman specifically overruled the observation by Former Chief Justice K.G. Balakrishanan in Ashok Thakur case that the creamy layer principle is merely a principle of identification and not a principle of equality. So, non-exclsuion of creamy layer leads to treating equals unequally as well as unequals equally.
The bench clarified that the second condition of states giving quantifiable data with respect to inadequate representation still stands and that inadequacy of representation has to be in relation to specific cadre and not in proportion to SC/ST population in the State. Thus, it concluded that the judgment in Nagaraj does not need to be referred to a 7 - judge bench.
Various States along with the Centre , had challenged the Court's 2006 Nagaraj judgment. The petitioners' maintained that Nagaraj had made it unjustly difficult to grant reservations in promotion. In particular, they had argued that the Court ought to review the three controlling conditions in Nagaraj:
Prior to granting reservations in promotion to a Scheduled Caste or Scheduled Tribe in public employment, the State must demonstrate the following:
Our Court in Review post on reservation in promotion provides a history of the issue. The Court and Parliament have been contesting the issue since the 1990s.