Contentious issues in creamy layer concept

K Raveendran

The most hilarious court judgment ever is attributed to Sir Roger de Coverley, an Old English fictional character. Sitting in judgment for three days, hearing a dispute between two men complaining against each other, Sir Roger finally gave the verdict: Much might be said about both sides.
The decision by a vacation bench of the Supreme Court in a case about reservation in promotions for Scheduled Castes and Scheduled Tribes last week may not have been as hilarious as Sir Roger’s, but it was in a similar vein. The court said: “We can say that you (government) can go ahead with the promotion policy as per the law. If there is law, then you do it as per the law. We do not need to mention the law in our order.”
But the whole issue is about what exactly is the law, especially when there are so many conflicting decisions by various courts. That the plea has been brought before a vacation bench shows the desperation on the part of the Modi government for a makeover of its anti-Dalit image, after it botched up the challenge to the Supreme Court decision to strike down key provisions of the law on atrocities against Scheduled Castes and Scheduled Tribes. It was patently beyond the scope of a vacation bench to set the law on such an important issue, especially when the larger reservation issue is currently before a Constitution Bench, which is supposed to settle the law once and for all. The government complained to the vacation judges that the entire promotion process of the central and state governments was in limbo because of uncertainty over SC-ST quota in promotions and that must have prompted it to issue an order similar to Sir Roger’s.
Although Sir Roger’s considered opinion may sound frivolous at the outset, it satisfied all parties. The decision pleased both the disputants as it put neither in the wrong, and the arbiter ensured that he incurred no risk to his legal reputation. The decision by the vacation judges, similarly, waded through the controversy without much damage and left it to be decided by a more authentic bench.
The court has allowed the central and state governments to go ahead with promotions, but they will have to show in each case the existence of compelling reasons for giving promotion, such as backwardness, inadequacy of representation and overall administrative efficiency. What all this means is that the matter is now left to the discretion of the governments concerned.
The issue of SC-ST reservations and quotas for the so-called creamy layer has explosive political dimensions and has now occupied centre stage as governments try to use it as part of their appeasement policies. But quotas in promotions involve much more fundamental issues as to how long can the ‘handholding’ process go on.
SC-STs and other backward classes have been wronged against for centuries and they need help to come up in life. But at some point of time, it has to be examined if the handholding is actually serving its original purpose of empowering these sections to stand up to competition, or is it stunting their potential for growth and personality development. The use of quota is liable to be used as crutches that discourage initiative and the zest for self-improvement. So, reservation is a double-edged tool that can also be self-hurting. It is alright to handhold someone appearing for an entrance test for admission to a medical course, but if a doctor entering the operation theatre for an emergency surgery needs to be handheld and directed to the table, only god can save he patient.
In this respect, the landmark Nagaraj case, decided by a constitutional bench of the Supreme Court, had laid down important yardsticks on the issue of efficiency and reservations. The 2006 verdict stipulated certain requisites that were to be satisfied by the government for the formulation of reservation policy for promotions to SC-STs in government services. The requisites included quantification of the backwardness of the community in question, its inadequate representation in the government as well as overall administrative efficiency. Importantly, the requisites had to be supported by quantifiable data. This made it clear that such promotions were not automatic and subject to conditions being fulfilled.
Based on the conclusions arrived at in the Nagaraj case, there followed several judgments to the effect that reservation in promotions of SC-STs cannot be demanded as a matter of right and that it was left to the discretion of the government. In fact, in February 2017, the Supreme Court struck down the Karnataka government’s policy on reservation for SC-STs on the ground that the requisites provided for in the Nagaraj case were not fulfilled. Various high courts had also quashed reservation in promotion for SC-STs from 2011 onwards. The Punjab and Haryana HC struck down the reservation policy in the income tax department. In August last year, the Delhi High Court quashed the Centre's office memorandum issued in 1997 on implementing the policy and also set aside all such promotions in the last 20 years. It is this case that came up before the vacation bench for hearing again.
The 5-member constitution bench is expected to revisit the entire gamut of issues relating to the promotion of SC-STs and the creamy layer. The issue has become all the more pressing as several state governments are promising additional quotas in an effort to gain support of Dalits, who are increasingly becoming politically aggressive, thanks to the emergence of a new generation of leaders from their ranks. (IPA)

Friday, 15 June, 2018