In the case about continuation of reservation of the SC/ST category even into promotions, arguments before the Supreme Court constitution bench of Chief Justice Dipak Misra and Justices Kurian Joseph, Rohinton Fali Nariman, Sanjay Kishan Kaul and Indu Malhotra on Thursday revolved around two basic concepts: what to do with the creamy layer within SC/ST candidates and what about selecting people for the top post of an organization, where only merit can justify selection.

The mater has come up to the top court as an SLP after the Delhi High Court quashed a DoPT Office Memorandum of August 13, 1997, which provided for the continuation of reservation in promotions indefinitely. The high court had passed the verdict in the light of the apex court constitution bench judgment in M Nagaraj (2006).

Justice Nariman said: “The argument of creamy layer being excluded is acceptable. However, only parliament can make any changes.”

While deliberating on the issue Attorney General K K Venugopal cited instances where one category of backward class cannot marry someone of a different backward class, highlighting differences there. At this Justice Nariman said: “It is relative untouchability among the deprived classes.”

The AG said that while promoting someone who belongs to a backward class, it should strictly be verified if he truly is backward or not. As far as promotion is concerned, there must be a yardstick, he said. “If you ask me whether the reservation can go as high as 50 percent, I would say it cannot.”

Referring to the Indra Sawhney judgment, the CJI asked if itw as possible to relax the percentage in case of promotion.

That was when the AG asked rhetorically: “Should there be any reservation for higher post where we need the best individual?”

Justice Joseph asked a pertinent question: “Is there higher judicial services of any state which holds reservation?”

The AG added: “Where we need knowledge, talent, capability etc. of a person, it will be highly against public interest if we keep reservation for such posts. Nagaraj is erroneous in its approach.”

Senior counsel PS Patwalia, appearing for the states of Tripura and Bihar, asked if the creamy layer principal is to be applied to SC/ ST.

At this the CJI said: “The concept of cream layer cake into being through Indra Sawhney judgment. Backwardness and creamy layer are two separate issues.” Then, jokingly, he told Patwalia: “You’re as clear as crystal, but the quality of crystal is doubtful.”

The matter has been listed to be heard again on Wednesday.

—India Legal Bureau