The Supreme Court today asked the Centre whether those affluent among the SC/ST communities should be excluded from getting quota benefits of promotions in government jobs to allow those backward among these communities to "come up".
In response, the Centre strongly supported the quota in promotions for government employees belonging from Scheduled Castes (SC) and Scheduled Tribes (ST) communities before a five-judge constitution bench headed by Chief Justice Dipak Misra, saying the "stigma" and "imprint" of caste and backwardness remained attached to them irrespective of the fact that some of them have "come up".
Referring to the "creamy layer" concept, Attorney General K K Venugopal said it was devised to exclude the affluent people from other backward classes (OBCs) from availing quota benefits and this cannot be made applicable to SCs and STs as there was a "legal presumption of their backwardness".
"They have to marry in their own caste. Even a well-off person of SC/ST community cannot marry in a higher caste. The fact that some persons have become affluent does not take away the imprint of caste and backwardness," he told the bench, which also comprised justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra.
The top law officer was responding to the bench which asked: "the question is whether the people, who have come up, should be excluded and those intra-community people, who have not come up, be given the quota benefits".
Venugopal said the SC/ST people have been "excluded for centuries" and the imprint and stigma of caste remained attached to them and moreover, the decision as to who are SCs and STs, was to be decided by the President and Parliament.
He termed the discriminatory caste system as the "great misfortune" of the nation and said the SCs and STs are still discriminated against and not even allowed to marry in high caste people or even ride horses.
Venugopal said even among certain categories of SC and ST, they did not allow marriages among themselves and not maintain social ties.
"There was touchability among untouchables," the bench said, adding that now the time is changing.
Venugopal said the M Nagaraj verdict of 2006 needed to be reconsidered as it has virtually stopped promotions by putting criteria like backwardness, inadequate representation and overall administrative efficiency.
The judgment did a huge amount of injustice and did not define as to what "quantifiable data" the state required to prove before deciding to grant quota in promotions to SC and ST candidates who are not "adequately represented" in jobs, he said.
The verdict destroyed the essence of Article 16 (4), which empowers the states to give reservation to needy people, by imposing the condition that governments needed to bring the "quantifiable data" to justify their decision to grant quota in promotions, he said.
Venugopal said that there was no judgment which says that affluent people of the SC/ST community can be denied quota benefits by applying creamy layer concept.
He said it was the President who notifies a class to be SC or ST under Article 341 and 342 of the Constitution and the changes, if any, has to "made by Parliament only" and "they (SC/ST) remain backward as long as they remain in the list".
Venugopal also referred to the plight of SC and ST people who had converted to Christianity and said their faith changed, but discrimination, more or less, remained.
Caste permeates in Indian society, Justice Nariman said, adding that his religion, Zorastrianism (Parsi), has also been 'Hinduised'. Giving an example, he said that to become a priest in his community now, one has to belong to a family of priests.
During the hearing, the bench asked why states have not come forward with any quantifiable data to decide the inadequacy of representation of SCs and STs in government service even 12 years after its verdict on the 'creamy layer' in the Nagraj case.
The Centre responded by saying that these criteria should be done away with as SCs and STs are presumed as backward and there was no need to have quantifiable data to prove that such categories of employees suffered from backwardness.
Venugopal, however, clarified that the quota for SC and ST combined will not go beyond 22.5 percent and the total reservation cannot go beyond 50 per cent.
He also said the court has to fix a bench-mark to decide as to what extent the quota can be given in promotions.
The bench said that once government provides for quota at the entry level, then the employee would get "accelerated seniority".
"There is a concept of adequacy which has to be reasonable and rational and not arbitrary" and this adequate representation comes into play after the Nagaraj judgement, the bench said.
The advancing of arguments would resume on August 22.
The constitution bench is examining whether its 12-year-old verdict that had dealt with the issue of 'creamy layer' for reservations to SC and ST categories in government job promotions needs to be re-visited by a seven-judge bench.
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