August 16, 2018

Govt says that for SCs and STs there was a "legal presumption of their backwardness".

The Supreme Court yesterday asked the Centre whether those affluent among the SC/ST communities should be excluded from getting quota benefits of promotions in government jobs to allow those backward among these communities to "come up".

In response, the Centre strongly supported the quota in promotions for government employees belonging from Scheduled Castes (SC) & Scheduled Tribes (ST) communities before a 5-Judge Constitution bench headed by Chief Justice of India Dipak Misra, saying the "stigma" & "imprint" of caste & backwardness remained attached to them irrespective of the fact that some of them have "come up".

Referring to the "creamy layer" concept, Attorney General K. K. Venugopal said it was devised to exclude the affluent people from other backward classes (OBCs) from availing quota benefits & this can't be made applicable to SCs & STs as there was a "legal presumption of their backwardness".

They have to marry in their own caste. Even a well-off person of SC/ST community cannot marry in a higher caste.

The fact that some persons have become affluent doesn't take away the imprint of caste & backwardness," he told the bench, which also comprised Justice Kurian Joseph, Justice R F Nariman, Justice Sanjay Kishan Kaul & Justice Indu Malhotra.

The top law officer was responding to the bench which asked: "the question is whether the people, who have come up, should be excluded & those intra-community people, who haven't come up, be given the quota benefits".

ASG Venugopal said the SC/ST people have been "excluded for centuries" & the imprint and stigma of caste remained attached to them & moreover, the decision as to who're SCs & STs, was to be decided by the President & Parliament.

The ASG termed the discriminatory caste system as the "great misfortune" of the nation & said the SCs & STs are still discriminated against & not even allowed to marry in high caste people or even ride horses.

Venugopal further said even among certain categories of SC & ST, they didn't allow marriages among themselves & not maintain social ties.

"There was touchability among untouchables," the bench stated, adding that now the time is changing.

Venugopal said the M Nagaraj v. Union of India verdict of 2006 needed to be reconsidered as it has virtually stopped promotions by putting criteria like backwardness, inadequate representation & overall administrative efficiency.

"The Judgment did a huge amount of injustice and didn't define as to what "quantifiable data" the state required to prove before deciding to grant quota in promotions to SC & ST candidates who aren't "adequately represented" in jobs, he said.

The verdict destroyed the essence of Article 16 (4), which empowers the states to give reservation to needy people, by imposing the condition that governments needed to bring the "quantifiable data" to justify their decision to grant quota in promotions, he submitted.

Venugopal said that there was no Judgment which says that affluent people of the SC/ST community can be denied quota benefits by applying creamy layer concept.

He said it was the President who notifies a class to be SC or ST under Article 341 & 342 of the Constitution & the changes, if any, has to "made by Parliament only" & "they (SC/ST) remain backward as long as they remain in the list".

Venugopal also referred to the plight of SC & ST people who had converted to Christianity & said that their faith changed, but discrimination against them, more or less, remained.

Caste permeates in Indian society, Justice Nariman said, adding that his religion, Zorastrianism (Parsi), has also been 'Hinduised'.

Giving an example, Justice Nariman said that to become a priest in his community now, one has to belong to a family of priests.

During the hearing, the bench asked why states haven't come forward with any quantifiable data to decide the inadequacy of representation of SCs & STs in govt service even 12 years after its verdict on the 'creamy layer' in the M Nagraj case.

The Centre responded by saying that these criteria should be done away with as SCs & STs are presumed as backward & there was 'no need to have quantifiable data to prove that such categories of employees suffered from backwardness.'

However, Venugopal clarified that the quota for SC & ST combined will not go beyond 22.5% & the total reservation cannot go beyond 50%.

He also said the court has to fix a bench-mark to decide as to what extent the quota can be given in promotions.

The bench said that once government provides for quota at the entry level, then the employee would get "accelerated seniority".

"There is a concept of adequacy which has to be reasonable and rational and not arbitrary" and this adequate representation comes into play after the Nagaraj judgement, the bench said.

The advancing of arguments would resume on 22nd August.

The Constitution bench is examining whether its 12 years old verdict that had dealt with the issue of 'creamy layer' for reservations to SC & ST categories in government job promotions needs to be re-visited by a 7-Judge bench.

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