Is caste – based reservation the answer to the many ills that plague the Indian society? And should reservation in promotions be looked through the same prism?
There are no easy answers here.
Reservation in India was supposed to be a form of affirmative action where a percentage of seats are reserved in the public sector units, union and state civil services, union and state government departments and in all public and private educational institutions, except in the religious/ linguistic minority educational institutions, for the socially and educationally backward communities and the Scheduled Castes and Tribes who are inadequately represented in these services and institutions.
Isn’t reservation in promotions hitting at the root of merit and should it not be encouraged at all?
“Initially, the percentage of reservation (in 1950 Constitution) provided reservation of 12.5 per cent for the SCs and 5 per cent for the STs but these percentages were subsequently enhanced in 1970 to 15 per cent and 7.5 per cent for SCs and STs respectively. The reservation was provided in jobs, admission to colleges and universities, and the central and state legislative assemblies.”
However, the Supreme Court on August 3, 2018, scheduled the hearing of the case related to reservations in promotions for Scheduled Castes (SC) and Scheduled Tribes (ST) categories, while refusing to pass an interim order against its 2006 verdict which dealt with application of the concept of ’creamy layer’ for reservations in government job promotions.
Responding to the government’s complaint that promotions were at a “standstill” because of verdicts by the High Courts of Delhi, Bombay, and Punjab & Haryana, the, the Supreme Court had allowed the Centre to go ahead with reservation in promotion for employees belonging to the SC/ST categories in “accordance with law”. The Law that currently applies is the one laid down by the five-judge Bench in M Nagaraj & Others vs Union of India & Others (October 19, 2006).
The M Nagaraj verdict had said the creamy layer concept cannot be applied to the Scheduled Castes and Scheduled Tribes for promotions in government jobs like two earlier verdicts — 1992 Indra Sawhney and others versus Union of India (popularly called Mandal Commission verdict) and 2005 EV Chinnaiah versus State of Andhra Pradesh — which dealt with the ‘creamy layer’ in the Other Backward Classes (OBC) category.
The Reaction of Parliament
- A key bill was passed in the Lok Sabha meeting of Parliament in order to provide constitutional status to the National Commission for Backward Classes (NCBC) passing the measure that will give the panel full powers to safeguard the rights and interests of the Other Backward Classes (OBCs).
- The Constitution (123rd Amendment) Bill 2017 was passed after a spirited debate during which several members urged the Centre to make the findings of the caste census and implement reservation public. It was cleared by the Lok Sabha on August 2 superseding the amendments earlier carried out by the Rajya Sabha.
- Prime Minister Narendra Modi and BJP President Amit Shah termed it as “historic” the passage of the bill.
- “A historic moment for our country! I am glad that Parliament has passed the Constitution (123rd Amendment) Bill, which grants Constitutional status to the National Commission for Backward Classes. This will contribute to the empowerment of the OBC communities across India,” PM Modi tweeted.
- Amit Shah said the bill fulfilled a long pending demand of the OBCs. “It is a historic legislation that underlines the Modi government’s commitment to bring the backward sections to the front row of the country’s development,” he quoted.
- The bill was passed after the Upper House repealed the National Commission for Backward Classes Act, 1993.The Rajya Sabha adopted the bill along with the amendments made by the Lok Sabha, by 156 votes to nil. Over two-thirds majority of those present voted in favour of the bill, which is a necessity for amending the Constitution.
The Nagaraj judgment
- The petitioners argued that the four amendments were aimed at reversing the judgments in Indra Sawhney and other cases, that Parliament had arrogated to itself judicial powers, and had, therefore, violated the basic structure of the Constitution.
- The court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments.
- It, however, ruled that if the state wished to exercise their discretion and make a provision for reservation in promotions for SCs/STs, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335
- Also, even if the State has a compelling reason it will have to see that its reservation provision does not breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
Caste – based reservation hits at the root of merit, is divisive in nature and prevents talent from growing in an uninhibited manner. Reservation in jobs should not only be curtailed, other ways should be found out in reaching out to disadvantaged lot so as to ensure that they are not found wanting due to dearth of resources.
CREAMY LAYER IN RESERVATION
The term Creamy layer refers to the forward and educated members of the Other Backward Classes (OBCs) who are not eligible for government-sponsored educational and professional benefit programs. The term was introduced by the Sattanathan Commission in 1971, which directed that the “creamy layer” should be excluded from the reservations (quotas) of civil posts.
The ‘creamy layer’ categorization is currently meant only for the OBCs and are not applied to the Scheduled Castes and Scheduled Tribes. The reasons cited for this parity is that the provisions for reservations for SC/ST are not for the economical benefits but for their social upliftment. Thus, SC/ST reservations are applicable irrespective of the financial status of the beneficiaries.