Five-judge bench to look into Nagaraj verdict

A five-judge Constitution bench of the Supreme Court will, from August 3, examine whether the 2006 M Nagaraj judgement has to be reconsidered.

The verdict by a five-judge bench had then put conditions like backwardness, inadequacy of representation and overall efficiency for reservation in promotion for SC/ST employees. It also ruled that the principle of creamy layer would not apply in the case of SC/STs.

A bench of Chief Justice Dipak Misra, justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra will consider the reference to examine if there was a need to revisit the 12-year-old landmark judgement, delivered on a petition by Nagaraj, a resident of Bengaluru.

The Constitution bench’s proceedings will be keenly watched in Karnataka as well, since the issue of promotion to SC/ST employees hanged in balance after a two-judge bench on February 9, 2017, quashed the 2002 state law, relying upon the Nagaraj principle, and directed the state to take consequential actions of reversion and promotion.

The Karnataka government subsequently passed a fresh law to protect the affected employees from the oppressed community.

The issue involved “further and finer interpretation on the application of Article 16(4A) of the Constitution (reservation in promotion to the SCs/STs, if not adequately represented)”. Questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, communities, groups or parts of SC/ST notified by the President under Articles 341 and 342 of the Constitution.

It was argued that the test of backwardness cannot be applied in the case of SCs/STs in view of the apex court’s judgements in Indira Sawhney (Mandal Commission, 1992) and Chinnaiah (2005) cases.

On November 15 last, a three-judge bench referred the matter relating to re-examination of the apex court’s 2006 landmark judgement to the Constitution bench, after the issue was raised in cases arising out of Tripura and Maharashtra.

On June 5, a vacation bench said the Union government was not debarred from making promotion in “accordance with law”, on a contention by the Centre that advancement of SC/ST employees was held up due to previous orders.