SC/ST creamy layer exclusion from quota: Centre seeks review
GS Paper II
Topic: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
Mains: pros and cons of reservation in promotion
What’s the News?
The Centre today urged the Supreme Court that its 2018 verdict excluding the creamy layer within the Scheduled Castes and Scheduled Tribes or SC/ST communities from reservation benefits be referred to a seven-judge bench for review.
Background:
• Under the 15(4) of the constitution, it allows state to make special provisions for the advancement of socially and educationally backward classes.
• Reservation in promotion was introduced in 1955. Indra Sawhney Case 1992, Apex court said reservations in promotions cannot be extended.
Indra Sawhney Case (1992),
• Supreme Court held it unconstitutional, stating that the reservation policy cannot be extended to promotions.
• This year, law was amended to allow reservation in promotions. Through 77th constitutional amendment act, Clause 4A was inserted in Article 16 which restored provisions of reservations in promotions.
• Through the 85th constitutional amendment act, 2001, ‘Consequential seniority’ in case of promotion by the virtue of reservation for the government servants belonging to the SCs and STs, was restored with retrospective effect from June 1995.
M.Nagraj Case:
• No law at present specifically deals with reservation in promotions.
• 77th amendment act 1995, inserted 16(4A) and resorted the reservation in promotions.
• 85TH Amendment act 2001, gave “consequential seniority” to SC/ST promotions.
As per the M Nagraj verdict, concept of creamy layer was not to be applied for STs and SCs promotions in government jobs. This has been in line with the earlier two verdicts of Indra Sawhney & others Vs. Union of India (1992)
• State should collect quantifiable data which shows the backwardness and inadequacy of representation in public employment.
• Ensure the efficieny of administration is not compromised or reduced.
• 50% ceiling of reservation should not be exceeded.
Relying on 2006 SC judgment, several High Courts stuck down reservation in promotions. From 2011 onwards, with government failing to comply with Nagraj Case guidelines, various High Courts quashed the decision on granting reservation in promotion.
2018 JUDGEMENT:
• Supreme Court earlier this year allowed the centre to implement the long-reservation policy in promotion. Quotas in promotions will be ‘in accordance with law’, which will mean under-reservation of Schedule Caste/Schedule Tribes must be established while also ensuring administrative efficiency is not compromised.
• The ‘legality of the law’ was still to be determined by the apex court while allowing reservation in promotions temporarily.
• Thus, with recent verdict, SC modified the Nagraj verdict of 2006 and relieved the states from collecting quantifiable data on backwardness for providing reservation in promotions for STs and SCs.
• The court has held that the whole purpose of reservation is to see that the backward classes of citizens move forward so that they may march hand in hand with other citizens of India on equal basis. This will not be possible if the creamy layer within that class bags all the coveted jobs in the public sector, leaving the rest of the class as backward as they always were.
PROS of reservation in promotion:
• Low representation of SC/ST at senior level:
Inclusion through recruitment is the mere beginning of an empowerment process. It needs to be carried forward in the form of parity and equality at the highest decision-making level. There is hardly any presence of STs and SCs at secretary, joint secretary and additional secretary in the government. Around 40 % of SCs are in the ‘Group D’ services and below.
• In normal society, every class will find representation in every matter approximate to their population and if any class gets much more than their percentage in the population or any class gets far less, it means there is imperfection in the social order.
• Constitutional Status of STs and SCs:
Supreme Court’s suggestion in Nagraj verdict that the SC/ST beneficiaries of quotas in promotions must be ‘backward’ is without merit. The constitutional position is that all SCs/STs are deemed to be backward and there cannot be a further determination of ‘backwardness’ among them.
Cons of reservation in promotion:
• Enhances caste consciousness: Reservation in promotion will further enhance caste consciousness.
• Reservation is not a fundamental right, Article 16(4) are just enabling provisions.
• Only Reservation doesn’t ensure the end of discrimination and untouchability.
• Reservation in promotions might hurt administrative efficiency as the fundamental principle of reservation is not reservation without merit.
Way Forward:
• A comprehensive piece of legislature that would deal with ambiguity related to reservation in promotions is needed. The Act should try to rectify the current issues such as Undefined parameters of efficiency, Absence of transparency in evaluating backwardness and efficiency of STs/SCs.
• Unless the creamy layer principle was applied, those genuinely deserving reservation would not access it and those who were undeserving within the same class would continue to get it. The principle was based on the fundamental right to equality.
• The benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.