Jarnail Singh and Ors. vs. Lachhmi Narain Gupta and Ors.

Judges: Dipak Misra, C.J.I., Kurian Joseph, Rohinton Fali Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ.

Facts:

The constitution bench, comprising five judges, in present case, was called upon through two reference orders made by a two-Judges and three-Judges bench respectively to ascertain the correctness of the decision in M. Nagaraj v. Union of India, MANU/SC/4560/2006.

The Supreme Court's decision in 'M. Nagaraj' was challenged on two scores, wherein it was held that -

(i) State has to collect quantifiable data showing backwardness of the Scheduled Castes (SCs) and the Scheduled Tribes (STs).

(ii) The creamy layer concept shall equally be applicable to the SCs and STs.

Issues:

Whether conclusion in 'Nagaraj' case that the State has to collect quantifiable data showing backwardness of the SCs and STs is invalid, it being contrary to the judgment of the nine-Judges bench in 'Indra Sawhney v. Union of India, MANU/SC/0104/1993'?

Contentions:

Petitioners

(i) 'Nagaraj' needs to be revisited on these two points. First, when Nagaraj states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the nine-Judge Bench in 'Indra Sawhney'.

Secondly, the creamy layer concept has not been applied in 'Indra Sawhney' to the SCs and STs and 'Nagaraj' has misread the aforesaid judgment to apply this concept to the SCs and STs.

(ii) Once the Scheduled Castes and the Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament under Articles 341 and 342.

(iii) 'Nagaraj' does not indicate any test for determining adequacy of representation in service.

Respondents

(i) When 'Nagaraj' speaks about backwardness of the "class", what is referred to is not SCs and STs at all, but the class of posts.

(ii) Backwardness in relation to the class of posts spoken of would require quantifiable data, and it is in that context that the aforesaid observation is made.

(iii) A Constitution Bench judgment which has stood the test of time, ought not to be revisited

(iv) 'Nagaraj' has to be understood as a judgment which has upheld the constitutional amendments adding Articles 16(4-A) and 16(4-B) on the ground that they do not violate the basic structure of the Constitution.

(v) The creamy layer principle applies to exclude certain individuals from the class and does not deal with group rights at all. This being the case, Articles 341 and 342 are not attracted. They concern themselves only with identification of those who can be called SCs and STs.

(vi) Continued social backwardness of the SCs and STs employees has necessarily to be assessed, as a SC and ST employee may have cast off his backwardness when he/she reaches a fairly high stage in a service.

Analysis:

Correctness of Nagaraj - State to show quantifiable data for backwardness of the class

(i) The reference to "class" is to the SCs and the STs, and their inadequacy of representation in public employment. 'Nagaraj' stated that the State has to collect quantifiable data showing backwardness of the SCs and the STs.

(ii) This portion of the judgment is directly contrary to the nine-Judge Bench in 'Indra Sawhney', wherein it was held that the test or requirement of social and educational backwardness cannot be applied to the SCs and the STs, who indubitably fall within the expression "backward class of citizens".

(iii) When 'Nagaraj' requires the States to collect quantifiable data on backwardness, insofar as the SCs and the STs are concerned, this would clearly be contrary to the dictum of 'Indra Sawhney' and would have to be declared to be bad on this ground.

Correctness of Nagaraj - Creamy layer principle

(i) This principle sounds in Articles 14 and 16(1) of the Constitution, as unequals within the same class are being treated equally with other members of that class.The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis.

(ii) 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.

(iii) When a Court applies the creamy layer principle to the SCs and STs, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.

(iv) When 'Nagaraj' applied the creamy layer test to the SCs and STs in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament's power under Article 341 or Article 342 of the Constitution. This part of the judgment does not need to be revisited.

Conclusions:

(i) Judgment in 'Nagaraj' does not need to be referred to a seven-Judge Bench.

(ii) The conclusion in 'Nagaraj' that the State has to collect quantifiable data showing backwardness of the SCs and STs, being contrary to the nine-Judge Bench in 'Indra Sawhney' was held to be invalid to this extent.

(iii) The principle of creamy layer exclusion applies to SC/STs.

Important Precedents:

(i) Indra Sawhney v. Union of India, MANU/SC/0104/1993

(ii) M. Nagaraj and Ors. vs. Union of India (UOI) and Ors. MANU/SC/4560/2006

(iii) E.V. Chinnaiah v. State of A.P., MANU/SC/0960/2004