Milon K. Banerjee

New Delhi: By accepting Attorney General Milon K. Banerjee's opinion, the United Progressive Alliance Government seems to have set at rest the controversy generated by the October 19 Supreme Court verdict on putting a 50 per cent cap on total reservation and exclusion of the creamy layer among the Scheduled Castes and the Scheduled Tribes.

The Attorney General is understood to have made it clear that the judgment by a five-judge Constitution Bench does not relate to the creamy layer among the SCs/STs in reservation and that the references to it are only observations.

The Attorney General's opinion was sought by the Ministry of Personnel in the wake of the verdict, which stirred up a hornets' nest with major political parties and those espousing the cause of social justice coming out sharply against excluding the creamy layer and demanding an immediate Constitution amendment to rectify the situation. Some even wanted the Government to move a petition before a larger Bench, while some spoke of putting the laws on reservation in the Ninth Schedule to keep it away from judicial review.

The Government set up a Group of Ministers headed by External Affairs Minister Pranab Mukherjee. It included Home Minister Shivraj Patil, Law Minister H.R. Bhardwaj, Social Justice Minister Meira Kumar, Tribal Affairs Minister P.R. Kyndiah, Labour Minister Oscar Fernandes, Chemical and Fertilizers Minister Ram Vilas Paswan and Minister for Personnel Affairs Suresh Pachouri. After discussions on the Law Ministry note, the GoM sought the Attorney General's opinion to decide the further course of action.

In Mr. Banerjee's perception, in Nagaraj's case there was no issue for determination of the so-called creamy layer among the SCs and the STs. The observations on the creamy layer could not be said to be ratio of the judgment. According to him, `ratio' means a decision. There appears to be no reason as given in Nagaraj's case for the observations on the creamy layer insofar as what constitutes ratio decidendi (a decision).

It must be noted that Indra Sawhney's case, (Mandal judgment) in which the economic test, i.e the concept of creamy layer, was discussed, the Supreme Court expressly excluded the SCs and the STs from the discussions on the creamy layer. The Attorney General is of the view that the judgment in Nagaraj's case does not seem to have taken note of the observations made in Indra Sawhney's case. As such, the reference to the creamy layer among the SCs and the STs in Nagaraj's case is per incuriam (not a binding judicial precedent).

Even assuming that the observations in that case on the creamy layer are the ratio decidendi, such a decision runs contrary to the ratio of the decision of the nine-judge Bench in Indra Sawhney's case.

Basic principle

The Supreme Court has clearly held and it is a basic principle of law and jurisprudence that a smaller Bench cannot go against the findings given by a larger Bench or even disapprove of the decision of a Bench of equal number of judges.

The observations in Nagaraj's case on the creamy layer among the SCs and the STs are therefore mere obiter dicta, per incuriam and in any event do not flow from and cannot be reconciled with the judgment in Indra Sawhney's case. The reference to the creamy layer in the concluding paragraph and other portions of the Nagaraj judgment do not relate to the SCs and the STs. If they did so, it would not be law within the meaning of Article 141, according to the Attorney General.

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