Constitution Bench to Re-look Issue of Reservation in Promotion

November 16, 2017

The Supreme Court yesterday referred issue pertaining to reservation of SC/ST in promotion to the Constitution Bench and also directed that the matter shall be immediately mentioned before the Chief Justice of India. The Supreme Court’s direction came in the case of State of Tripura v. Jayanta Chakraborty, wherein issues raised pertained to the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution of India in the backdrop of three celebrated decisions Indra Sawhney and Others. v. Union of India, E.V. Chinniaiah v. State of A.P. and M. Nagaraj and Ors. v. Union if India.  The Court noted that the question of further and finer interpretation on the application of Article 16(4A) also arose in the case.

The Petitioners in the case prayed for a re-look of M. Nagaraj case, on the ground that the test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney & ors. v. Union of India and E.V Chinnaiah v. State of A.P. & ors.  On the other hand, the counsel for the respondents have contended that the request for a revisit cannot be entertained ad nauseam (latin term for discussing something excessively). Other issues raised in the case related to application of the principle of creamy layer in situations of competing claims within the same races, communities, groups of SC/ST.

In view of the aforesaid crucial issues pertaining to reservation raised in the case, Two-Judge Bench of the Supreme Court stated that this is a case to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India and directed the parties to place the files before the Chief Justice of India immediately.

A quick revisit of aforesaid verdicts

Indra Sawhney case (1992)– In this case, the Court ruled that reservation in jobs under Article 16(4) of the Constitution of India is confined to initial appointments only and does not extend to promotions. Creamy layer can be and must be eliminated from the Backward Classes.

E.V. Chinnaiah case (2004)– It was held that the castes etc. specified as Scheduled Castes under Article 341 of the Constitution is a homogeneous group for the purpose of the Constitution. The benefits of reservation are available to members of all such castes which have been specified as Scheduled Caste in relation to a State/Union Territory.

M. Nagaraj case (2005)- In this case, Article 16(4A) was challenged before the Supreme Court. A new clause (4A) was inserted in article 16 to enable the Government to provide reservation in promotion in favour of the Scheduled Castes and the Scheduled Tribes. The Supreme Court in the case stated that Article 16 (4A), which was inserted through these amendments, was only an enabling provision. In essence, every time a government or the legislature sought to provide reservation in promotions under Article 16 (4A), it would have to pass constitutional muster. While justifying each attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of representation and maintenance of efficiency.

About the Author

Shilpi Sharan

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Shilpi Sharan is the Editor at Vakilno1.com – an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.