Introduction

• Reservation in the promotion in higher posts of government services remained a contentious debate.
• The governing elite largely believe that caste discrimination is an overblown problem that is a thing of the past.
• The five-judge Constitution Bench largely endorsed the 2006 SC judgment in the Nagaraj case relating to reservation for SC/STs in promotion.

Background

• Originally, the reservation in promotion implies that at every level in the hierarchy, there should be 22.5 per cent seats reserved for SC/STs.
• But even prior to the Nagaraj judgment, the senior positions in the bureaucracy had been insulated against reservation in promotion.
• Since 1967, when a five-judge bench headed by Justice Wanchoo decided against reservation in promotions within Class I positions (Group A), no government or court has broken this elitist barrier.
• The hitherto skewed, discriminatory implementation of the policy is reflected in the statistic.
• Although SC/STs constitute about 23 per cent of all central government employees, they occupy more than 45 per cent of the safai karmachari posts but less than 10 per cent posts in the higher tiers of government.
• The latest Court order sanctifies this unequal representation of Dalits in the higher levels of government.

Details of the judgment

• SC held that the Nagaraj case which had effectively put a stop to reservation in promotions need not be referred for consideration to a larger Bench.
• The Court invalidated the Nagaraj case decree that the state should collect quantifiable data of backwardness of SC/STs while considering eligibility for reservation in promotion.
• One of the reasons of such invalidation is that SC/STs are specifically mentioned in Article 46 and should therefore be deemed to be “the most backward or the weakest of the weaker sections of society and therefore presumed to be backward.”
• While discussing the “creamy layer”, the judges argued that the equality principle demands that “unequals” within the same class should be weeded out.
• “Those persons… who have come out of untouchability or backwardness by virtue of belonging to the creamy layer… (should) be excluded from the benefit of reservation”.

Criticism of the judgment

• There are serious problems with the philosophy underlying the apex court’s verdict on the “creamy layer”.
• It is based on a worldview that ignores the complexities and rationale behind affirmative action.
• The rationale behind reservation is not merely economic as imputed by the Court (poverty exists across castes and communities) but untouchability and its tenacious grip on our society.
• So ingrained is caste that the ordinary Dalit, irrespective of his material advancement, is still hobbled by his social origins.
• The Court’s view that the so-called “creamy layer” has transcended caste discrimination and untouchability betrays a poor understanding of a social milieu still scarred by caste.
• What Gandhiji said still holds good today: “Whether a Harijan is nominally a Hindu, Christian, Sikh… he is still a Harijan. He can’t change his spots… He may change his garb… but his untouchability will haunt him during his lifetime.”
• On the issue of adequacy of representation, the Court has struck at the very root of affirmative action in the promotional stages.
• The court observed that “as the post gets higher it may be necessary to reduce the number of SC/STs in promotional posts… for the simple reason that efficiency of administration has to be looked at every time promotions are made”.
• Implicit in this observation is the cultural bias that sees the Dalit as less efficient than his peers and hence the directive that the proportionate reservation of 22.5 per cent should be progressively reduced in the higher tiers of the bureaucracy.

Does caste based discrimination exist?

• For purveyors of the myth that caste no longer determines one’s social standing or life chances, a recent news report should be an eye-opener.
• In Jabalpur, a doctor belonging to the Scheduled Tribe community was assaulted by the relatives of two patients who wanted them treated by an “upper caste” person.
• The assailants then took the patients to another hospital for treatment.
• The recent killing in Telangana of an educated Dalit Christian for marrying an upper caste girl reminds us of what it means to be Dalit.
• On the surface, things seem to have improved but the subterranean volcano of prejudice erupts in case the Dalit breaches the invisible but unyielding caste wall.
• Such inhuman treatment of Scheduled Castes/Scheduled Tribes (SC/STs) is routine in the life of our nation, irrespective of whether they belong to the so-called “creamy layer” or not.
• Every year, there are more than 40,000 registered cases of atrocities against Dalits though the actual number of heinous crimes committed against this beleaguered community is much higher.
• It is against the backdrop of this oppressive social milieu that one must view the recent SC pronouncement on reservation in promotion which has dealt a body blow to Dalit aspirations.
• Caste consciousness is embedded in our culture.

Conclusion

• In Vasanth Kumar vs State of Karnataka (1985), Justice Chinnappa Reddy attacked the “meritarian principle” and observed that it is not permitted to use merit as a camouflage to let the upper classes monopolise the services, higher posts and the professional institutions.
• Prime minister Narendra Modi asserted that “reservation is here to stay… the dreams of Dr Babasaheb are still incomplete… and reservation is an important tool to achieve this”.
• However, the recent SC judgment puts paid to any hopes of Dalits ever getting their legitimate share of posts in the upper echelons of government.