Issue

Recently, government has sought review of SC judgment that creamy layer should be applied to SC/ST.

Background

Constitutional Provisions Governing Reservation in India Part XVI deals with reservation of SC and ST in Central and State legislatures. Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST. The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion. Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation. Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year. Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively. Article 243D provides reservation of seats for SCs and STs in every Panchayat. Article 233T provides reservation of seats for SCs and STs in every Municipality. Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.

• The union government has called upon the Supreme Court to form a seven judge Bench to reconsider the formulation in Nagaraj vs Union of India (2006) that creamy layer should be applied to the SC and ST communities.
• In Jarnail Singh case (2018), another Constitution Bench reaffirmed the applicability of creamy layer norms to SC/STs.
• While the Centre has accepted that the ‘creamy layer’ norm is needed to ensure that only those genuinely backward get reservation benefits, it is justifiably upset that this principle has been extended to Dalits, who have been acknowledged to be the most backward among the backward sections. Another problem is the question whether the exclusion of the advanced sections among SC/ST candidates can be disallowed only for promotions. Most of them may not fall under the ‘creamy layer’ category at the entry level, but after some years of service and promotions, they may reach an income level at which they fall under the ‘creamy layer’. This may result in the defeat of the object of the Constitution amendments that the court itself had upheld to protect reservation in promotions as well as consequential seniority. Another landmark verdict in the history of affirmative action jurisprudence may be needed to settle these questions.

Historical background William Hunter and Jyotirao Phule in 1882 originally conceived the idea of caste-based reservation system. The reservation system that exists today, in its true sense, was introduced in 1933 when British Prime-Minister Ramsay Macdonald presented the ‘Communal Award’. The award made provision for separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans and the Dalits. After long negotiations, Gandhi and Ambedkar signed the ‘Poona Pact’, where it was decided that there would be a single Hindu electorate with certain reservations in it. After independence, initially reservations were provided only for SCs and STs. OBCs were included in the ambit of reservation in 1991 on the recommendations of the Mandal Commission. In the Indra Sawhney Case of 1992, the Supreme Court while upholding the 27 percent quota for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes. Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population. The concept of ‘creamy layer’ also gained currency through this judgment and provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions. Recently, the Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category. The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness. This 10% economic reservation is over and above the 50% reservation cap.

Analysis

Why reservation needed?

• To correct the historical injustice faced by backward castes in the country.
• To provide a level playing field for backward sections as they cannot compete with those who have had the access of resources and means for centuries.
• To ensure adequate representation of backward classes in the services under the State.
• For advancement of backward classes.
• To ensure equality as basis of meritocracy i.e. all people must be brought to the same level before judging them on the basis of merit.
  

  Judicial Scrutiny of Reservation The State of Madras v. Smt. Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation. The case led to the First amendment in the constitution. The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15. Pursuant to the Supreme Court’s order in the case the Parliament amended Article 15 by inserting Clause (4). In Indra Sawhney v. Union of India (1992) case the court examined the scope and extent of Article 16(4). The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions; and total reserved quota should not exceed 50%. The Parliament responded by enacting 77th Constitutional Amendment Act which introduced Article 16(4A). The article confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment. The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements: The SC and ST community should be socially and educationally backward. The SC and ST communities are not adequately represented in Public employment. Such reservation policy shall not affect the overall efficiency in the administration. In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes. The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community. In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.

Arguments against Reservation

• Reservation in state services led to divisions and enmity among government employees vitiating the atmosphere at workplace.
• Eradication, not perpetuation of caste was the objective of the reservation policy but Caste Based Reservation only perpetuates the notion of caste in society.
• Reservation was introduced to ensure that the historically underprivileged communities were given equal access to resources but irrespective of the economic progress they continue to remain socially disadvantaged.
• Reservation destroys self-respect, so much so that competition is no longer on to determine the best but the most backward.
• Reservations are the biggest enemy of meritocracy which is the foundation of many progressive countries.
• It has become a tool to meet narrow political ends through invoking class loyalties and primordial identities.
• The dominant and elite class within the backward castes has appropriated the benefits of reservation and the most marginalised within the backward castes have remained marginalised.
• Reservation has become the mechanism of exclusion rather than inclusion as many upper caste poors are also facing discrimination and injustice which breeds frustration in the society.

Reasons behind Increasing Demands of Reservation

• Reservation is increasingly seen as a remedy for the adverse effects of ill-thought out development policies.
• In developed states like Haryana, Gujarat and Maharashtra, in spite of their economies being relatively better, three things have been worrying the people:
  • Acute agrarian distress,
  • Stagnation in employment growth and
  • Distortions in the development trajectory.
• In this backdrop, for governments, it is easier to talk of reservation than to make a course correction.
• Increasing reservation demands among upper castes also arising from the fear of losing privilege and the inability to cope with change
• Upper castes have begun to feel disadvantaged especially in context of government jobs as they don’t get similar advantages like backward classes.

Suggestion

• The reservation benefits should flow to the vast majority of underprivileged children from deprived castes; not to a few privileged children with a caste tag.
• High rank officials’ families, high income professionals and others above a certain income should not get the reservation benefits especially in government jobs.
• Fair and practical ways to help needy person from each community through reservation is possible and necessary.
• The process of reservation should filter the truly economically deprived individuals and bring them all to justice
• Revolutionary changes in the education system at the grass-roots level is need of the hour.
• There is also need for awareness generation because while the unreserved segments, keep on opposing the provision, the neediest sections from within the reserved segments are hardly aware about how to get benefited from the provision or even whether there are such provisions exists.
• The radical solutions like excluding the entire creamy layer among all castes from reservation and developing their capabilities instead of offering them reservation for admission to higher education or jobs on a platter.

Way Forward

• Reservation is fair, as far as it provides appropriate positive discrimination for the benefit of the downtrodden and economically backward Sections of the society.
• But when it tends to harm the society and ensures privileges to some at the cost of others for narrow political ends, it should be done away with, as soon as possible.
• The communities excluded from reservations harbour animosity and prejudice against the castes included in the reservation category.
• When more people aspire for backwardness rather than of forwardness, the country itself stagnates.
• Meritocracy should not be polluted by injecting relaxation of entry barriers, rather than it should be encouraged by offering financial aid to the underprivileged.
• A strong political will is indispensable to find an equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system.