Stigma of caste never disappears from forehead of SC/STs: Centre to top court

New Delhi: The Supreme Court on Thursday reserved verdict on a batch of petitions relating to the issue whether quota should be provided for Scheduled Castes/Scheduled Tribes in government jobs, even as the Centre asserted that the stigma of caste printed on the forehead of an SC/ST never disappears.

A constitution bench of Chief Justice Dipak Misra and Justices Kurian Joseph, Rohinton Nariman, S K Kaul and Indu Malhotra reserved the order with Attorney General K K Venugopal maintaining that there was no need for testing the backwardness of SC/ST employees while granting promotion. He said the discrimination still exists though the position of SC/ST has improved to some extent in the last 70 years.

The bench was hearing a batch of petitions seeking reconsideration of the ‘2006 Nagaraj judgment’ against such quota. In October 2006, a five-judge constitution bench in the case of Nagaraj vs Union of India has concluded the issue by holding that the State is not bound to make a reservation for SC/ST in the matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.

There must be compelling reasons, namely, backwardness and inadequacy of representation, which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration.

Disagreeing with this finding, the AG said there has to be a presumption of backwardness for SC/ST and that the 2006 judgment should not have stipulated for satisfaction regarding backwardness of the class in providing Reservation In Promotion. He said there was no question of identification of creamy layer among SC/STs.

The AG submitted that there was no need for further quantifiable data for showing backwardness so as to provide reservations for promotions. He told the court that the community as a whole has been facing discrimination from the upper caste and the intent of providing reservation in promotions to SC/STs was intended to provide affirmative action for the socially disadvantaged community.

He said the imprint on the forehead never disappears and would remain in force. He said the Nagaraj judgment was unclear as to what it meant by quantifiable data and how it should be determined. “What is inadequacy? How is it determined? What are the parameters—there is no answer in the Nagaraj judgment.

He pointed out that the reservation was given to SC and ST communities to right a wrong they suffered for more than 1000 years. Atrocities on them happen even today, he said and added that an SC person cannot ride a horse during weddings and pass through upper castes.

Quoting several reports, he said the discrimination was prevalent abroad even among the Indian Diaspora. The upper caste persons continue the social boycott of SC/STs, whose children are ostracized and not allowed to mingle with other children. The AG pitched for overturning the Nagaraj judgment by seven judges, which would meet the ends of justice for SC/STs.

Earlier, senior counsel Rajeev Dhavan and Rakesh Diwedi opposed reservation in jobs for SC/STs. Diwedi said reservation in promotion has to be made not mechanically for all SC/ST but only those who are not adequately represented. History shows that some categories from amongst the reservation beneficiary class (or lists) have garnered the bulk. Yet again some have advanced even beyond an average upper caste or general category. State can deny reservation benefit to them.

He said disabilities and untouchability suffered by masses of SC/ST definitely gets diluted or even removed as the individuals amongst them progress and reach relatively higher rungs in the power structure. When initial recruitment is made on any group of posts in any service the State looks at the entire population of SC/ST in the State and therefore the eligible candidates amongst them are presumed to be backward.

However, once the SC/ST candidates are recruited in a category of posts the issue which arises is, “whether they still continue to be backward?”. It would be anomalous that the test of backwardness is applicable at the stage of direct recruitment though held to be satisfied on the basis of presumption but the said test ceases to apply altogether at the stage of promotion.

As far as the creamy layer is concerned, it is an application of the principles of equality and does not amount of splitting up the list of SC/ST which is prepared by the President under Article 341 of the Constitution.