SC's directive on quota in promotions
SC's directive on quota in promotions
Recently, the Supreme Court has asked Attorney General to compile the various issues being raised by States with regard to the application of a Constitution Bench judgment of 2006 in the M. Nagaraj case. The court in the M. Nagaraj case had upheld the application of the creamy layer principle to members of the Scheduled Caste/Scheduled Tribe communities in promotions.
Reservation in promotion is a contentious matter for which the absolutist position of states is to blame. Critically examine.
● In the discourse on reservations, the Supreme Court’s nine-judge constitution bench’s judgment (1992) in Indra Sawhney vs Union of India constitutes a landmark, as it upheld reservations for Other Backward Classes (OBCs). The bench had also held in this judgment that reservations in appointments, under Article 16(4) of the constitution, do not apply to promotions.
● However, between 1995 and 2000, Parliament enacted a series of Constitutional Amendments that legalized reservation in promotion and nullified the effect of the Court’s judgement in Indra Sawhney.
➢ 77th Amendment: It introduced Clause 4A to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
➢ 81st Amendment: It introduced Clause 4B, which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year to find out whether the total quota has breached the 50% limit set by the Supreme Court.
➢ 82nd Amendment: It inserted a proviso at the end of Article 335 to enable the state to make any provision for SC/STs “for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
○ Article 335 of the Constitution relates to claims of SCs and STs to services and posts. It reads: “The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or a State.”
➢ 85th Amendment: It said reservation in the promotion can be applied with consequential seniority for the SC/ST employee.
Advantages and Disadvantages of having Creamy Layer in SC/ST
● According to the SC, being a part of the “creamy layer” allows Dalits and Adivasis to “come out of untouchability or backwardness”.
● Excluding the creamy layer will serve the cause of equality since all the coveted jobs in the public sector will be bagged by them and the rest of the class remains backward as they always were.
● According to PRICE, an all-India income and expenditure survey around 13 million SC/ST households are “creamy layer” using the income definition. These socially advanced people must be excluded from reservations.
● The more advantageous sections of all caste groups are able to enter higher education. So to make sure that the poor are getting represented a separate set of policies are needed.
● Reservation in politics, services and institutions is given to SCs particularly because they were denied the right to property, education and industries from time immemorial and they were treated as untouchables. Even today there are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service. Hence they need protection in promotion also.
● Dalits and Adivasis are so disadvantaged in India that it is difficult to even fill the seats reserved for them. Hence placing further curbs will let more valuable seats go unfilled.
● Even after Dalits get entry into jobs or higher education, there are little microaggressions that they face. E.g. in educational institutions students complain of harassment because they came in through reservation.
● The reason for reservations for Dalits is not economic backwardness but the stigma that comes on account of the untouchable status. And even though legally untouchability has been abolished, there is a lot of data that show that people still practise untouchability. So reservation is only a tiny remedial measure for that
● Rationalisation of reservation: Along with improving school education outcomes, a more rational model of reservation based on equity and common sense must be envisaged.
● The judiciary should accord “an element of certainty and continuity” on the subject.
● A comprehensive data-based, evidence-based approach for judging reservations needs to be adopted. Under the SC and ST (Prevention of Atrocities) Act and the Protection of Civil Rights Act, it is the government’s responsibility to undertake a study every five years, to bring out the nature of discrimination and untouchability faced by Dalits.
● The government’s SC/ST Commission report is supposed to have a separate chapter on untouchability. But such a report has not been brought out in the last 20 years or so. The quantitative techniques that will capture qualitative relationships have to be applied by the government to conduct surveys.