NEW DELHI: Union social justice ministry has come out against the Supreme Court order that reservation for SC/ST in jobs and promotions is at the discretion of state governments, saying they are constitutional provisions which cannot be trifled with.

At the heart of the debate triggered by the apex court judgement are Articles 16 (4) and 16 (4A). The Uttarakhand government of BJP argued they are “enabling” clause and cannot be termed a fundamental right, and the top court agreed that they empower the states to provide for twin quotas if they feel SCs/STs are “not adequately represented”.

Disagreeing with the interpretation, Union social justice secretary R Subrahmanyam told TOI, “When enabling provision is put in the Constitution, it reflects the national will. So, they cannot be trivialised by saying that it is up to the state to implement them or not.”

The remarks from the top bureaucrat manning the social justice ministry constitute the first government dissent against the court’s latest comment on the twin constitutional provisions and their scope.

When the judgement came out and triggered an uproar this week, Modi government chose to tread a safe line by telling the Parliament that the Centre was “committed and dedicated to the welfare of SC/ST/OBC” and that “appropriate steps on the issue will be taken after discussion at the highest level”.

The proponents of social justice believe that the judgement will have a debilitating effect on the rights of marginalised classes as leaving the implementation of quotas to the discretion of states could encourage debate on the “inviolability” of quotas which has been a settled issue till now.

It is felt the judgement can easily trigger political lobbying from anti-quota classes which can put under pressure even the most amenable political parties. They cite the example of Madhya Pradesh where upper castes launched a political party SAPAKs ahead of December 2018 assembly elections in protest against the provisions introduced by the Centre to undo the dilution of SC/ST Prevention of Atrocities Act.

Political sources in the government agree with the implications of the judgement and say that a remedy would have to be found.

While a review petition is the likely course of action since the Centre was not a party to the case which resulted in the recent judgement, the Jarnail Singh case, which is at the heart of “reservation in promotions”, is still pending in the apex court.

A strong possibility exists that the Centre may seek a review of “quotas not a fundamental right” judgement as part of the Jarnail case – in which the court introduced “creamy layer” in promotion quotas for SC/ST.

Recently, the Centre asked the court to refer its 2018 verdict to a seven-judge bench for review, disagreeing with introduction of exclusionary “creamy layer” for SC/ST.

Till now, the concept of “creamy layer” – which declares the well-off as ineligible for quotas -- has been limited to OBCs and not been part of the SC/ST quota dispensation.

