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Layered ruling on reservations

By removing the creamy layer principle and retaining other conditions, the Supreme Court has shown how judgments on changing situations are accretional
Supreme Court of India

The Editorial Board   |     |   Published 30.09.18, 06:05 PM

It is always wise to be careful when something is wished for. The Supreme Court has ruled in favour of reservations in promotions for scheduled castes and scheduled tribes in government jobs. This is good news for the Bharatiya Janata Party-led government at the Centre at a time when Dalits are restive, often angry. But the court also said that it did not agree with an earlier judgment which ruled that the creamy layer did not apply to the SC/ST categories. This suggests that, in giving quotas to these groups in promotion, the creamy layer principle must be applied. The 2008 Ashoka Thakur judgment had seen the idea of the creamy layer as a “principle of identification” of the backward class and not a “principle of equality”. The reversal of this perception now carries potential for discontent. According to some commentators, the creamy layer, defined on the basis of a particular level of annual income and the professional status of the father — doctor, lawyer and so on — would determine who is truly backward for the purpose of inclusion in other backward classes reservations. Since SC/STs are backward by definition, they can have no creamy layer. Besides, neither prosperity nor social status removes untouchability, which is at the basis of positive discrimination for Dalits.

The court, however, expressed its concern that the reserved posts could be taken over by those among SC/STs candidates who have already risen in society, thus depriving the truly backward in these categories. Even during the Ashoka Thakur judgment, the ruling had said that the situation could be looked at again after 10 years, which suggests that the court then saw reservations as helping mobility: moving sections of people ahead so that they join the mainstream of society. Additionally, the Supreme Court also said this time that quantifiable data need not be gathered by the states as had been required by the M. Nagaraj judgment in 2006. This data was intended in OBC quotas to determine the level of representation in government jobs. By removing this condition, the court may have helped speed up those promotions hanging fire, although the ‘creamy layer’ condition requires another kind of data. By retaining the 2006 conditions of administrative efficiency and the cap of 50 per cent on quotas, the court has demonstrated how judgments on changing situations are accretional, based on earlier wisdom but modulated according to altered conditions.

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