Jarnail Singh and Puttaswamy: The tale of two references

Kanu Agrawal

On an eventful day on 26.09.2018, the Supreme Court delivered two important verdicts in, what may now be called as Puttaswamy II, and the Jarnail Singh case. The said cases deal with substantially different aspects of Part III of the Constitution, with the former being a practical exposition on privacy, proportionality and due process under Article 21 and the latter dealing with an important aspect of the equality code under Articles 14, 15 and 16 in the context of reservations in promotions. Amidst the extensive pronouncements, a distinct but veiled commonality of the history of these decisions surfaced.

While Puttaswamy II is the culmination of the judicial review process of the Aadhar Act and other related provisions on the basis of an arduously argued constitutional reference in the Puttaswamy I case, Jarnail Singh case is the precursor to constitutional challenge to the validity of various State enactments providing for reservations in promotions without adhering to the ‘controlling factors’ enshrined in the M Nagaraj case.

Close on the heels of the Puttaswamy I judgment, various State Governments sought a reference to a larger bench in light of a perceivable clash of opinions between two Constitution Bench judgments. In Puttuswamy I, it was the alleged clash between Kharak Singh case, Govind v. State of M.P. case and the M P Sharma case, while in Jarnail Singh, the supposed inconsistency was raked up in light of the supposed countering opinions in Indra Swahney case, Chinnaiah case and the M Nagaraj case. On both occasions, while on first glance there may seem to be contradictions between the relevant Constitution Bench judgments, the emphatically unanimous judgments on both occasions have proven, how the larger benches have dealt with the issue. The reference judgments, in both cases, have indeed ironed some creases in the precedents and resulted in what may be fashionably referred to as robust rights-centric pronouncements.

While much has been deliberated upon the Puttaswamy I judgment and more is yet to come from a threadbare analysis of the Puttaswamy II case, the judgment in the Jarnail Singh case is an important breakaway from an ill-conceived but previously considered to be a ‘settled’ question of law. The arguments during the reference hearing were expansive but the judgment seeks to answer two pure questions of law: first being whether the controlling factor of the requirement of quantifiable data to establish backwardness of Scheduled Castes and Scheduled Tribes as a precursor to the exercise of power to provide for reservations in promotions is correct law; and second being whether the concept of ‘creamy layer’ can be made applicable to the Scheduled Castes and Scheduled Tribes.

The judgment by Justice Rohinton, in his indomitable trailblazing style, answers the reference, clears the uncertainties and lays the foundations of a new standard of robust and substantial judicial review of the reservation enactments in the country. Most importantly, the judgment, by answering the second question, clarifies an important aspect of ‘qualitative exclusion’ within the Scheduled Castes and Scheduled Tribes. Justice Rohinton, in what he termed as a ‘neat Article 14 and Article 16(1) argument’ during the course of the hearing, while affirming the validity of the application of the qualitative exclusion by way of creamy layer standard to reservations in promotions, at para 15 notes as under:

“However, when it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16(1), as unequals within the same class are being treated equally with other members of that class.”

This red herring is followed by an interesting and often ignored apprehension expressed in the NM Thomas case by VR Krishna Iyer J. Iyer J. states that he has three major apprehensions with reservations in general – first being the danger of the benefits being snatched away by the creamy layer amongst the backward classes excluding the weaker sections, second, being the claim to self-identification as backward being overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened but wish to wear the weaker section label as a means to compete with people in the general category and third, being the ignoring of the larger solution, which could come only from improvement of social environment, added educational facilities and cross-fertilisation of castes.

If one considers the issues plaguing reservations, these apprehensions have proven to be prophetic. Ironically, during the course of the arguments, the NM Thomas case was heavily relied upon by the Petitioners, albeit with reliance placed on different aspects of the case. The judgment in the reference turned this reliance on its head, by relying on the said apprehensions and applying them to the present context.

Subsequently, to clinch the argument, Justice Rohinton refers to the larger object of amelioration of backward classes and clarifies that this cannot be achieved “if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.” This, in essence, becomes the rationale to exclude the creamy layer within the Scheduled Castes and Scheduled Tribes from the benefit of reservation in promotions. To further extend the mandate of the judicial review, it has been clarified that the Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups on the basis of Article 14 and Article 16.

Further, the judgment clarifies that the requirement to provide quantifiable data to establish inadequacy in representation is necessary and that such data would have to be ‘relatable to the concerned cadre’. More egregiously, Justice Rohinton, perhaps appreciating the apprehensions with regard to ‘reverse discrimination’ and ‘heart-burn’ within the services, mandates a level of dynamism in the applicability of legislations providing for reservations in promotions.

The judgment notes that it may be necessary to ‘reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards’ and that efficiency of administration ‘has to be looked at every time promotions are made’. Although the requirement to present quantifiable data to establish backwardness of Scheduled Castes and Scheduled Tribes is held to be invalid, the same is largely an academic exercise as none of the cases pending or previously decided by the Supreme Court, have considered that as a ground for the unconstitutionality of the statute in question.

Thus, the judgment in the Jarnail Singh case, through a rational enquiry on the practical aspects of the reservations in promotions, countenanced by the equality code of the Constitution, makes this specific departure of sorts, to lay the foundations for new evolving jurisprudence on the subject. The reference is answered in the negative and the argument that the mark of being a Scheduled Caste or a Scheduled Tribe is like ‘indelible ink’ has been roundly rejected.

In doing so, the Court has refused to rely on a strict and indivisible classification of Scheduled Castes and Scheduled Tribes. This significant dilution paves a way for a rational sub-classification for achieving the authentic objectives of reservations and minimizing the opportunity cost of reservations. This result is as significant as the judgment in the Puttaswamy I case, if not more. The question of applicability of this qualitative exclusion to other range of benefits apart from reservations in promotions is left open and debatable. The unmistakable question is, whether a detailed statutory mechanism for identification of the creamy layer amongst the Scheduled Castes and Scheduled Tribes like the Other Backward Classes take shape or not?

Kanu Agrawal is an advocate at the Supreme Court of India.