Context

Recent verdict on the reservation in promotions

• The Supreme court in its recent verdict in Jarnail Singh v. Lachhmi Narain Gupta held that the government need not collect quantifiable data to demonstrate backwardness of public employees belonging to the Scheduled Castes and the Scheduled Tribes (SC/STs) to provide reservations for them in promotions
• The core issue here was whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations
• The court set aside the requirement to collect quantifiable data that was stipulated by its 2006 verdict in M. Nagaraj v. Union of India
• It ignored the reasoning of a nine-judge bench in Indra Sawhney (1992) that any discussion on creamy layer “has no relevance” in the context of SC/STs

What’s the issue?

• The court merely removed the government’s responsibility to collect quantifiable data on backwardness but reasoned that the creamy layer test would be consistent with the equality principl
• The Supreme Court relies on using arguments pertinent only in the case of OBCs to decide litigation on SC/ST quotas

Why reservations for SC/ST?

• A close reading of relevant constitutional provisions and the verdict in Indra Sawhney make it clear that the SC/STs are given job reservations not because they are poor but because they are excluded
• The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure

Need of creamy layer provision

• The creamy layer among SC/ST employees helps fulfil the second part of Article 335 that requires maintaining the “efficiency of administration”
• The presence of the creamy layer works as a safety valve
• The rationale behind the demand to prohibit elite or privileged sections from accessing quota posts is that these sections are as well qualified as general candidates, if not more, and numerous enough to warrant their removal

Right to opt out

• The court could have addressed an often ignored aspect of the matter — the right of the creamy layer among the community to opt out of reservations
•  At present, an SC/ST candidate does not have the right to reject reservations
• She is merely required to state whether she belongs to the SC or the ST category and a response in affirmation automatically puts her in the queue for reservations
•  It is also a punishable offence to withhold one’s caste status while seeking government employment
• A simple administrative decision to allow SC/ST candidates to compete in the general category would have helped thousands to leave the space for the less privileged among them

Expectations from judiciary

• As citizens, we expect two certainties from any verdict on public policy by a constitution bench of the Supreme Court
• One, it must hold whether the underlying principle(s) is/are consistent with the Constitution of India
• Two, such a verdict must end governance paralysis

Way Forward

• India needs changes in matters related to caste as well as the constitutional provisions aimed at getting rid of the rough edges of caste discrimination
• The Indian state must be proud that its policies have created a creamy layer among the most disadvantaged that gel well with those in the general category
•  It is recognition of the fact that socio-economic progress moves by generations