[Reservation In Promotion] [Day3] Jaising, Dwivedi, Patwalia, Tushar Mehta, Sanjay Hegde Seek Reconsideration Of "Nagraj", Shanti Bhushan And Rajeev Dhavan Resists [Courtroom Exchange]

On Day 3 of the hearing before the Supreme Court five-judge bench on the question of reconsideration of the M. Nagaraj verdict, Senior Counsel Indira Jaising advanced that the tools employed in the 2006 judgment in interpreting the constitutional amendments introducing clauses (4A) and (4B) in Article 16 are incorrect.In as much as the decision regards parameters of ‘backwardness’ and ‘inadequacy of Representation’ as “controlling factors” or “compelling reasons” to be considered by the states in providing reservation in promotions, Ms. Jaising contended that the validity of a constitutional amendment cannot examined in a like manner as of a statute, that the “compelling reason” to make reservation in promotions is found in the Constitution itself in clauses (4A) and (4B) of Article 16 and there could be no other reason.“The amendments are confined to the SC/ST and do not contemplate any quota in promotions in favour of the OBC. Accordingly, ‘backwardness’ is no criteria. The ‘creamy layer’ principle has no relevance. There can be no qualitative exclusion so far as the SC/ST are concerned, nor is there any sub-classification as in the case of the OBC”, she continued.It was her case that ‘Backwardness’ and ‘inadequacy of Representation’ cannot determine the applicability of a constitutional amendment which speaks for itself and that the test can only be the basic structure doctrine. In so far as the M. Nagaraj ruling concludes that the State is not bound to make reservation for SC/ST in matters of promotions, Ms. Jaising argued that in her opinion, the state is so bound.“Clause (4A) is nothing but an enabling provision. Suppose there was a mandate that reservation in promotions has to be provided, then what would have happened? The language used in Article 16(4A) empowers the states to make reservation subject to certain riders and the Constitution Bench in M. Nagaraj has only interpreted these riders...’backwardness’ is covered under Article 341, while ‘creamy layer’ is a facet of the OBCs introduced in Indira Sawhney (nine-judge bench decision; 1992)”, reflected Chief Justice Dipak Misra.In as much as the 2006 judgment says that the aforesaid amendments flow from Article 16(4) in retaining the “compelling reasons” of ‘backwardness’ and ‘inadequacy of representation’, Ms. Jaising added that the insertion of clauses (4A) and (4B) also flows from Articles 14 and 16(1). Justice Rohinton Nariman remarked that all M. Nagaraj observes is that Article 16(4) was a part of the original constitution and hence, a part of its basic structure.The Senior Advocate also submitted that the concept of “extent of reservation”, as used in M. Nagaraj is only a numerical one, having no connection with ‘backwardness’.In as far as the judgment mentions “affirmative action” in favour of the disadvantaged, she argued that the phrase was used without explaining its meaning- “in my submission, “affirmative action” is an American concept where there is no reservation and hence, a judicial theory has been devised to give benefits to certain groups. Indira Sawhney and Askoka Thakur have said that ‘affirmative action’ is to be tested on the touchstone of Article 14...as opposed to ‘affirmative action’, reservation is a constitutional mandate...’affirmative action’ deals with a situation where one is competing with the entire country, while reservation envisages competition within a compartment...”Ms. Jaising advanced that the object of reservation is to provide representation in state services; it is a system devised by the constitution to ensure the SC/ST have representation. Indira Sawhney states that all sections of the Indian society must have a share in power and therefore, the criterion of ‘backwardness’ has to go, she suggested.In respect of ‘inadequacy of representation’, she submitted that the same be determined as the percentage of population of the SC/ST to the population of the state or the country, as prescribed in Article 81 and 330.“Can the state not say that though the population of the SC is 8% in my territory, but in respect of Class I posts, I shall reserve only 2 %?”, inquired Justice Nariman.Replying in the negative, Ms. Jaising explained, “100% of the lower posts go to the SC as no one else wants to do these jobs...even here in the Supreme Court, the sweepers in the ladies room are only SC women...why can the same not happen in higher posts?”“The state must make reservation not in the whole service but in a class of service or cadre...at every level, there has to be representation of the diversity of the population of this country”, she continued.Clarifying that only the criteria of ‘backwardness’ and ‘inadequacy of representation’ are being disputed and not ‘Administrative efficiency’ as discussed in Article 335, she submitted that no candidate is permitted to cross the bar of promotions unless that have good ratings in their ACR and that there could be no better way of measuring efficiency.“The basis of exclusion...

[Reservation In Promotion] [Day3] Jaising, Dwivedi, Patwalia, Tushar Mehta, Sanjay Hegde Seek Reconsideration Of "Nagraj", Shanti Bhushan And Rajeev Dhavan Resists [Courtroom Exchange]

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