Court, quota and cream
On Thursday, the Supreme Court brought in the concept of the creamy layer
with regard to SC/ST categories; the concept has applied in OBC policy so
far. The quota debate will get more charged and complex, as it has with
every significant court ruling. Here’s a short guide to the dates and
judgments that have shaped the discourse so far The Court overruled its own
decision in Indra Sawhney case since it does not seem inclined to strike
down a constitutional amendment. Will it adopt the same approach in the
future?
Churning of the Cream November 1992, Indra Sawhney versus Union of India:
Eight out of the nine judges in the case argued that the creamy layer must
be excluded from reser- vations made for OBC’s. Three principal reasons were
given. First, for a group to be eligible for reservations it must be a
class. A class, in order to be a class must be homogenous; if the variations
within it are vast it loses its character as a class. Sec- ond, unless the
privileged within these classes were excluded, they would reap most of the
benefits of reservation, defeating its purpose. Third, retain- ing groups
who had transcended backwardness within a backward class, would be
tantamount to treating unequals equally and violate Article 14.
The Court directs Centre and states to appoint Commissions to identify
creamy layer within four months. ¦ AUGUST 1995: Kerala Government passes an
Act that states that “there are no socially advanced sections in any
Backward Classes who have acquired the ability to compete with Forward
Classes.” The Act allows for the existing system of reservations to
continue, with retrospective effect. ¦ AUGUST 1997: Supreme Court appointed
Committee submits report on creamy layer. Report Not Implemented. ¦ DECEMBER
1999 INDRA SAWHNEY II: Court reiterates creamy layer exclusion.
“To us it appears rather anomalous that while governments declare endlessly that they
will see to it that the benefits of reservations really reach the needy
amongst the backwards, the very action of the government both on the
executive side and the Legisla- tive side, deliberately refusing to exclude
the creamy layer¿.are leading to a serious erosion of the reservation
program.” ¦ OCTOBER 2006: Court Re iterates Creamy Layer Exclusion and
Extends it to SC/ST’s. Identifying the Cream ¦ 1992: Indra Sawhney: Four
judges favored eco- nomic criteria. One judge argued that no group should be
excluded until it had acquired the social capacities to compete with Forward
Classes. ¦1995:Ashok Kumar Thakur vs. State of Bihar: the criteria used to
identify creamy layer must be rea- sonable. Supreme Court chastised the
govern- ments of U.P. and Bihar for positing unrealistically high criteria
for exclusion in order to subvert the requirement that the creamy layer be
excluded. ¦ 1999: Supreme Court reiterates that exercise of identifying the
creamy layer must not be mere window dressing, but must be careful and
deliberate. It also recommended that any list must be open to review
periodically.
What to Watch: How will the government now identify the creamy layer? How
will it set up a mechanism to periodically review it? 50 per cent Lakshman
Rekha ¦ 1963: M.R. Balaji vs. State of Mysore: Supreme Court suggests that a
special provision should be “less than fifty percent,” so that it is
compatible with equal opportunity for all.
But what does the fifty percent apply to with respect to jobs? Initially it
was fifty percent of recruitment. In 1976, State of Kerala vs. N.M. Thomas
it became fifty percent of total strength of the service. In 1981, Akhil
Bhartiya Shoshit Karamchari Sangh vs. Union of India, the Court held that
reservations in promotions should not “substantially” exceed fifty per cent,
but an order reserving 66 and two thirds per cent of promotions in the
Railways was upheld as not being “substantially in excess” of 50 per cent. ¦
2000: 81st Constitutional Amendment: Reserved Posts will be considered a
separate class of vacancies to be filled in succeeding years and this class
of vacancies shall not be considered together with the vacancies of the year
that were being filled up for the purpose of determining the 50 per cent
ceiling. In effect, the ceiling was raised. ¦ OCTOBER 2006: Court reiterates
50 per cent ceiling.
What to Watch? Whether the full text of the current judgment clarifies what
exactly is meant by “no more than fifty percent” What does this apply to:
total strength of the service? Va cancies in any given year? Vacan cies at
any given level? Promotions are Reserved 1962, General Manager Southern
Railway vs. Rangachari held that reservations might be permissible for
promotions under certain cir cumstances, especially if the state made a case
that certain classes were under represented. Ironically in response the
Central govern ment passed an order saying there would be no reservations in
1976 (Thomas Case); 1981 (Shoshit Karamchari Case) uphold reserva tion in
promotion.
1992, Indra Sawhney, Eight out of nine judges held that reservations in
promotions were unconstitutional. “It would be a serious and unacceptable
inroad into the rule of equality of opportunity to say that such a handicap
should be provided in every stage of promotion throughout their career. Five
judges said existing reservations in promotions should continue for five
years. ¦ MAY 1995: 77th Constitutional Amendment. A clause added to article
16 “Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or classes of
posts in the Services under the State in the favor of Scheduled Castes and
Scheduled Tribes, which in the opinion of the State are not adequately
represented in the services of the State.” 2000 82nd Constitutional
Amendment, provides for “relaxation in qualifying marks or lowering
standards of evaluation” for reservations in matters of promotions for
Dalits. ¦ OCTOBER 2006; Court upholds reservations in promotions as being
constitutional.
What to Watch Out for: The Court overruled its own decision in Indra Sawhney
since it does not seem inclined to strike down a constitutional amendment.
Will it adopt the same approach in the future?