Reservation in Promotion Day #5: Arguments Conclude, Judgment Reserved

August 30th, 2018

The Constitution Bench began hearing the case today at 10.30 A.M. Lawyers on both sides concluded their arguments and the Court has reserved its order on the review of Nagaraj.

In Nagaraj, the Court had called for three controlling conditions (see our case description) to be put in place, when assessing the eligibility of a SC/ST to receive a reservation in promotion. Yesterday, Mr. Dhavan and Mr. Dwivedi both argued that any reservation policy must meet these controlling conditions, for the policy to be considered reasonable.

Arguments against reviewing Nagaraj

Mr. Rakesh Dwivedi, Mr. Rajeev Dhavan, Mr. Shekhar Naphade and Mr. Gopal Sankarnarayanan were the main lawyers opposing a review of Nagaraj.

Mr. Rakesh Dwivedi resumed from where he left off yesterday. He continued his analysis of Articles 341 and 342, which say that SCs and STs are ‘deemed’ as backward. The use of ‘deemed’ suggests that the State can further evaluate the “backwardness” of a SC/ST in questions of reservation in promotion.

Mr. Dwivedi, using the metaphor of a crutch, observed, ‘crutches are not meant forever, crutches are not even meant for everyone. Interestingly, the generation who was crippled is gone and the generation who in fact crippled is also gone.’

Justice Kurian Joseph disagreed by observing that any group in the Scheduled List under Article 342 is permanently backward by definition. Revisions to constitutional articles can only be made by the Parliament and not the courts.

Mr. Dwivedi responded by alluding to Justice Krishna Iyer’s 1975 opinion in N.M. Thomas to stress that ‘creamy layer exclusion’ is an inherent principle of equality. He used the ‘creamy layer exclusion’ principle to highlight that individuals, who are no longer backward, cannot be given reservation in promotion. He added that the State ought to constantly use higher scrutiny standards as the reservation becomes more specific.

Mr. Dwivedi, Mr. Dhavan, Mr. Naphade, and Mr. Sankarnarayanan all called for the use of quantifiable data when assessing backwardness and inadequate representation. Mr. Sankarnaryanan specifically focused on the inadequate representation condition, arguing that it currently lacks any standard of assessment. Mr. Dwivedi added that the data analysis ought to occur at the cadre level and not the community level.

CJI Misra observed that it is worrisome that so many States are demanding a review of Nagaraj but have not produced any concrete quantifiable data to oppose Nagaraj.

Mr. Shekhar Naphade concluded by reminding the Court of the consequences of a review of Nagaraj. Multiple Supreme Court cases have been decided by treating Nagaraj as a binding precedent and would all undergo review if Nagarj no longer held. He stipulated that the Court must be absolutely certain before ordering a review of Nagaraj.

Arguments in favor of reviewing Nagaraj

In a last bid to convince the Courts, Ms. Indira Jaising, Mr. P.S. Patwalia, and Attorney General K.K. Venugopal made their closing arguments.

Ms. Indira Jaising resumed arguments for reconsidering Nagaraj.  She developed a new, rather unusual, argument, contending that while reasonability tests can apply to Article 15, they cannot to Article 16(4). Recall that Article 15 has to do with preferential treatment and Article 16 has to do with reservations. Thereby she suggests that Article 16 can actually breach reasonableness, i.e. breach equality for all.

Next, Mr. P.S. Patwalia joined Ms. Indira Jaising by saying that the test of reasonableness under the right to equality cannot be determinative of the contours of reservation given under Article 16. Basically, Article 16’s reservation content cannot be solely directed by the ‘reasonableness’ criteria inherent under the right to equality in Article 14.

Attorney General K.K. Venugopal took a very nuanced position. On the one hand, he called for a review of Nagaraj. Specifically he agreed with Justice Kurian Joseph, who earlier in the day had observed that any group in the Scheduled List under Article 342 is permanently backward by definition. Once a group joins the Scheduled List, they ought not to be re-assessed in order to receive reservation in promotions, he claimed.

On the other hand, Mr. K.K. Venugopal argued that parts of Nagaraj need to be reviewed. He pointed out that the ‘adequacy of representation’ controlling condition lacks clarity. ‘How is adequacy tested’, he asked. He contended that the condition does not specify to the State what type of data it should collect.

The Court has reserved its order on reviewing Nagaraj.

(The Report relies on inputs from Mr. Abhishek Sankritik)