Vehement submissions by the Centre and several state governments in support of quota in job promotions for SC/ST employees in the Supreme Court today were strongly countered by the opponents who dared the government to acknowledge that there has been no development of these communities for so long.
A battery of senior lawyers including Rajeev Dhavan, Rakesh Dwivedi, Shekhar Naphade and advocate Gopal Shankarnarayan strongly rebutted the submissions in support of quota for SC/ST in promotions of Attorney General K K Venugopal and legal luminaries such as Indira Jaising, P S Patwalia, Dinesh Dwivedi and Amrendra Sharan.
Initiating the day's arguments, senior advocate Rakesh Dwivedi told a five-judge constitution bench headed by Chief Justice Dipak Misra that backwardness of a community has to be the main ground for granting quota benefits in promotions to an employee.
"Crutches are not forever and crutches are not for all. Generations (of SC/ST) which were crippled have gone and the generations which crippled them have also gone," he said, adding that quota was not meant to remain in force for all times to come.
"Where is the stigma for an engineer in service? We are not dealing with a person sitting in a village in the fear of lynching. We are not dealing with the person whose 'baraat' (marriage procession) is not allowed to pass," Dwivedi said.
Naphade supported Dwivedi's submissions and said quota was never meant to continue in perpetuity and asked, "can it be said that there has been no change in the status of SC/STs since 1950".
"Let the Central government say that there has been no change in the status of SC/ST. It will be the self condemnation for the government that nothing has been done in last 70 years," he said.
"It cannot be the approach that despite all the progress made, we will remain backward for all times to come," he said, adding that no political party in the country is going to say that exclude this caste and this is the "stark national reality".
He gave the illustration of Maharashtra and said in 1950, 47 castes were there in the SC/ST list. In 1976, it rose to 59 and no political party was going to change this for obvious reasons.
Advocate Gopal Shankarnarayan also opposed the submissions of the Centre and others favouring quota and said Article 16 (4A), which enables the government to grant reservation in promotion, did not create any fundamental right as it was an enabling provision.
"The second (Article 14-4A) was inserted 45 years later to enable the State to make reservations in matters of promotion to any class or classes of posts in favour of the SCs/STs. As they are both enabling provisions, they are not fundamental rights, nor do they impose obligations on the State," he said.
"As is evident, many States have already carried out a sub-classification to ensure that an equitable opportunity is provided to the castes within the SCs/STs. Such measures are completely in keeping with the equality provisions enshrined in the Constitution," he said, opposing the plea that the 2006 verdict be referred to a larger bench of seven judges for reconsideration.
On the other hand, senior advocates Jaising, Patwalia, Sharan and Dinesh Dwivedi strongly supported the quota, saying the 'creamy layer' (affluent section) concept cannot be used in the case of SCs/STs as there was constititutional presumption of backwardness in their favour.
Jaising said even today, there was no adequate representation of SC/ST in jobs across the country and added that she would provide data of employment in Madhya Pradesh. She said that constitutional measures like affirmative state action was needed to ensure representation of SC/STs in government jobs.
The bench today reserved its verdict on a clutch of petitions seeking reconsideration by a seven-judge bench its 2006 verdict in the M Nagraj case in which it had put conditions for granting quota benefits in job promotions to Secheduled Caste(SC)/ Sechduled Tribes (ST) employees.
The 2006 verdict had said that the states are bound to provide quantifiable data on the backwardness of SC and ST, the facts about their inadequate representation in government jobs and the overall administrative efficiency before providing quota in promotions to SC/ST employees.
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