arnail Singh & Ors vs.

Lacchmi Narain Gupta &

Ors
Decided
Day 4 Arguments: 29th August, 2018
In this hearing, the Supreme Court’s 2006 Nagaraj judgement is under review. On the one
hand, Nagaraj held that reservations for SCs/STs in the public sector can be extended to include
promotions. On the other hand, Nagaraj made it difficult for employers to grant such
reservations, by putting in place three controlling criteria.

Mr. Rajeev Dhavan, opposing a review of Nagaraj, began arguments. He argued that any
reservation policy must aim to be reasonable. Meaning, a reservation policy should aim to
achieve equality and administrative efficiency.

Mr. Dhavan praised Nagaraj for requiring reservation in promotion to meet the test of
‘reasonableness’. Nagaraj achieves in making reservation in promotion reasonable by setting in
place three controlling conditions, he argued.

The three controlling conditions to be met for a SC/ST to be granted reservation in promotion are:

 The employer must assess the SC/ST to be backward at the time of the
promotion

 The SC/ST must have inadequate representation in the relevant position at

the time of the promotion

 The reservation must aim to achieve administrative efficiency.

Justice Chandrachud enquired if reservation in promotion can be extended to senior

administrative roles, where SCs/STs are clearly under-represented. Mr. Dhavan responded by once
again pointing to the three criteria. In particular, he drew attention to the first two criteria:
backwardness and inadequate representation.

Note how Mr. Dhavan implicitly challenges the claim that SCs/STs are perpetually backward, put
forward in the Court’s Indra Sawhney judgement. Mr. Dhavan ties reasonableness to the
reassessment of a SC/ST’s backwardness. Thereby, he suggests that it is unreasonable to assume
a SC/ST is perpetually backward.

Mr. Dhavan, drawing on the basic structure doctrine, pointed out that equality is a basic feature
of the Constitution, alluding to Justice Chandrachud’s opinion in NGT v UOI. Mr. Dhavan argued
any reservation policy must aim to be reasonable, so as to not violate the basic feature of
equality.

He continued, drawing the Court’s attention to the ‘Identity’ and ‘Width’ tests. These tests are
used to assess whether a constitutional amendment damages the basic structure of the
Constitution. Mr. Dhavan argued that invalidating the Nagaraj controlling conditions would cause
reservation in promotion to fail the Identity and Width tests. Recall that reservation in promotion
was introduced by amendments to Article 16.

Next, Mr. Dhavan analyzed the text of Article 16(4A), which provides for reservation in
promotion. The Article starts with a “Notwithstanding” clause. The “Notwithstanding” clause
suggests that SCs/STs could be granted reservation in promotion without meeting the
three Nagaraj criteria. Mr. Dhavan argued that despite the clause, the State must nevertheless
demonstrate the three criteria. The State would violate the right to equality under Article 14, if it
failed to demonstrate that one group was backward and under-represented relative to another
group.

The bench broke for lunch. The bench reassembled at 2 P.M.

Mr. Rajeev Dhavan challenged the Supreme Court’s ruling in Indra Sawhney that perpetual
backwardness ought to be assumed for SCs. In Indra Sawhney, the Court held that SCs, unlike
OCBs, suffer perpetual backwardness, even if they make substantial economic gains. Mr. Dhavan
disagreed and argued that assessing a SC’s backwardness is an essential requirement for
extending reservation in promotion to it.

He alluded to the opinion of Justice S.B. Sinha in E.V. Chinnaiah. Mr. Dhavan wanted to emphasise
that there is no constitutional bar on excluding individuals of a group when they are no longer
backward.

He concluded by saying that there needs to be a bigger debate on how effective reservations
have been in tackling backwardness. He remarked, any attempt to uplift one community should
not be at the expense of all other communities, as this would violate the right to equality.

Next Mr. Rakesh Dwivedi, also arguing against reviewing Nagaraj, began arguments. He argued
that under Article 341, SCs are ‘deemed’ to be backward, hence allowing them to be subject to
further enquiry on their backwardness. Justice Nariman rebutted that under Article 341,
Scheduled Castes are the most backward and not just ‘deemed’ backward.

Mr. Dwivedi asked the court to adopt different yardsticks for measuring ‘backwardness’ in
reservation in appointment and measuring it in reservation in promotion.

Mr. Dwivedi argued that unlike reservation in appointment, reservation in promotion cannot be
claimed just on the basis of membership to a backward group. For reservation in promotion,
backwardness needs to be demonstrated when the promotion occurs. He said that the
presumption of backwardness cannot continue at all levels of a person’s employment.

Mr. Dwivedi submitted that backwardness should be tested with respect to a particular class of
employees. Mr. Dwivedi holds that the State should assign different degrees of backwardness to
cadres themselves.

He extended this argument to representation condition, arguing that adequate representation

ought to be calculated at a cadre level and not in proportion to SCs/STs state-wise population.
He concluded by saying that beyond the test of backwardness and inadequate representation,
efficiency of service is the most important condition that reservations ought to be judged against.

The matter will be heard again on 30th August, 2018.

(The Report relies on inputs from Ms. Anu Shrivastava and Mr. Abhishek Sankritik)