Context

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

About

• 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.
• The Supreme Court in  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.
  
  

  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.

Centre’s Arguments against the Extension of Creamy layer concept to SC and ST

• 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.

Conclusion

Reservation for SC, ST and OBC is a positive discrimination and is step towards inclusive development of the country. However, excluding the creamy layer from marginalized groups will be in favour of the principle of equality.