A shall be a binding rule,” it

A five-judge constitution bench headed by Chief justice YK. Sabharwal gave this order after hearing a batch of petitions challenging the validity of four constitutional amendments relating to various aspects of reservation for SCs and STs in government jobs, including the issue of reservation in promotions.

With it the affluent among the SCs and STs Now stand disqualified from enjoying the special privileges the Constitution envisages for their communities. The cabinet had recently decided to extend reservations to OBCs in educational institutions, without clarifying whether this included the ‘creamy layer’ among the OBCs. Although the judgement is not related to OBCs, it will make it difficult for the government to keep the well-off OBCs within the ambit of reservations in education.

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The court said the enactments by various States that are currently being challenged in various courts would be decided in accordance with the law laid down by it in this case. While upholding the validity of quota for SCs and STs in recruitment and promotions, the bench made it clear that the upper limit of quota at 50 per cent could not be exceeded. “The quantitative limit of 50 per cent shall be a binding rule,” it stated. It said the government would have to justify in each case the compelling reasons for providing reservations “keeping in mind the overall efficiency of State administration” as required under Article 335 of the Constitution.

“It is made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate creamy layer or extend reservation indefinitely,” the court said. It held that the ‘catch-up principle’ and concept of ‘consequential seniority’ could not be given the status of an axiom like “secularism” and “federalism”. “They do not constitute basic features of the Constitution,” it observed. The judgment pointed out that while reservations were justified, the State had to ensure that the controlling factors mentioned in Article 16(4) — that empower them to legislate in favour of backward classes — continue to preserve the egalitarian structure of society. The court said the provision providing reservation was an “enabling provision” and States were not bound to make reservation for SC/STs in promotions. However, if they wished to do so, they would have to collect quantifiable data establishing the backwardness of the class and its inadequate representation in public employment.

Amidst raging controversy over reservations, the Supreme Court has said that the purpose of affirmative action is to transcend the caste system, not to perpetuate it. “Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country, “a five-judge Constitution Bench said while upholding the validity of four constitutional amendments relating to various aspects of quota in government jobs. The Bench headed by Chief Justice YK. Sabharwal said it was important “to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system.” The apex court’s judgment on quota in promotions cautioned that “if the extent of reservation goes beyond the cut-off point, then it results in reverse discrimination”.

It ordered a 50 per cent ceiling on quota saying a numerical benchmark is the surest immunity against charges of discrimination”. For the first time, the court introduced the concept of “creamy layer” in quota for Scheduled Castes and Scheduled Tribes to keep the better-offs among them out of the purview of reservations. It further said that while providing for reservation in government jobs under various provisions contained in Article 16, the State’s discretion is subject to existence of “backwardness” and “inadequacy of representation” in public employment: “Backwardness has to be based on objective factors, whereas inadequacy has to factually exist,” the Bench emphasized.

“The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class.” it said. “However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are mentioned,” the court clarified. Discussing the concept of reservation, the Bench termed it as an “anti-poverty measure”.

It drew a distinction between “formal equality” and “proportional equality”. The formal “means that law treats everyone equal and does not favour anyone either because he belongs to the advantaged section of the society or to the disadvantaged section” while the latter “expects the States to take affirmative action in favour of disadvantaged sections of the society within the frame­work of liberal democracy.” Observing that backwardness and inadequacy of representation were compelling reasons for the State Governments to provide representation in public employment, the apex court said the extent of reservation will depend on the facts of each case. “If in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirement, “the Bench said.

Creamy Layer Among OBCS: The Supreme Court’s landmark judgement — that the creamy layer among SCs and STs should not be allowed to benefit from reservations in jobs — has raised pertinent questions about related laws in pipeline. Will the creamy layer remain on the cake? What will be the fate of recent cabinet decision to retain the already empowered layer in the draft legislation for OBC reservations in institutes for higher learning? On its wisdom, the government could consider Placing the OBC reservation bill in the Constitution’s in the Schedule. But even these powers of Parliament are currently under the scanner of a nine-member Constitution Bench of the Supreme Court. Besides, October 19, 2006’s verdict which cites a 1993 judgement of a Constitution Bench in the Indra Sawhney case, said the concept of “creamy layer” in reservation was a “constitutional requirement” without which the structure of equality of opportunity in public employment would collapse.

This concept was introduced, the court observed, to strike a balance between accepting caste as a determinant of backwardness and the principle of secularism that was a basic feature of the Constitution. This verdict comes two months after the Union Cabinet approved the Central Educational Institutions (Reservation in Admission) Bill that sought to enable the “creamy layer” among OBCs to benefit from reservations in admission to central institutes of higher learning like the IITs. This Bill also sought to provide for reservation, by statute, in admission to Scheduled Castes and Scheduled Tribes in higher educational institutes established, maintained or aided by the Central government. But before that happens, the government will have to reckon with the creamy layer concept among all reserved groups, ignoring which, it would seem to be pursuing an affirmative action programme that is less than fair. The draft legislation was introduced in Parliament in the last leg of the monsoon session and is under consideration of the parliament standing committee. Another quota legislation that could get impacted due to this decision is the Bill to give statutory backing to reservation for OBC, SC ad STs in government recruitment.

In keeping with the 1993 judgement, the government had incorporated the concept of creamy layer in OBC recruitment in the original Bill. The parliamentary standing committee that approved this draft legislation, however, wanted the government to remove this clause. It was argued that the Constitution was silent on the concept of creamy layer. Caught in a bind the government had in 2005 referred its recommendations to the Group of Ministers for a decision. It is understood that this GoM has not met even once on this subject. Officials at DoPT suggest the government apparently was waiting for the OBC creamy layer issue in educational institutions to be settled before taking a view on the job reservations law. CMS Stick To Party Line: A meeting of chief ministers and state education ministers to evolve a consensus on the issue of OBC quota in private, unaided institutions saw State governments sticking to their party lines. The States demanded the right to legislate on the issue, while agreeing to implement the Constitutional Provisions by 2007.

There was difference of opinion on whether the creamy layer of OBCs should be included in the ambit of reservation. While States under Left rule wanted the creamy fever to be kept out, States like Uttar Pradesh were in favor of quota for that segment. The group of Ministers on reservation, headed by the then Defense Minister had called State chief ministers and education ministers for a two-day meeting to hear their view. HRD Minister Arjun Singh and Finance Minister P.

Chidambaram also attended the meeting. Ministers from BJP-ruled states demanded that OBC reservation should be applicable to minority institutions. Chattisgarh education minister Ajay Chandrakar and Karnataka’s Shakarmurthy said religion, geography and language should not be a consideration. Uttar Pradesh Higher Education Minister Ram Asrey Verma and the State’s Technical and Agricultural Education Minister Yogesh Pratap Singh said such institutions had already been excluded from the purview of reservation. They said they wanted no interference from the Centre while implementing quota. Representatives from Kerala demanded a right for State governments to define what constituted ‘minority institutions’. Majority of higher education institutions in the State are owned by Christian organizations. Sachar for Quota for poor Muslims: The report of the Rajender Sachar Committee on the status of Muslims was tabled in the Lok Sabha on November 30, 2006.

To ameliorate the condition of “acute deprivation’ of Muslims, the panel suggested reservation in employment and educational institutions for the backward among them. The panel said that among the Muslim social groups, the Arzals, whose traditional occupation is similar to that of scheduled castes (SC), might be designed as Most Backward Community and provided reservation. The Ashraf and Ajlaf groups, meanwhile, should be treated on a par with other backward classes (OBC) and covered under the OBC quota. To increase the political participation of the community, the panel said Muslims should be nominated to public bodies, including local bodies. The committee also sought a review of the delimitation of assembly and Parliament seats, and suggested that those constituencies that have a high percentage of Muslims should not be reserved for SC. Minority Affairs, Minister A.R.

Antulay, who tabled the report in the House, later, said, “The report is the best thing to have happened to the community,” He said the government would implement the panel’s recommendations from February, 2007. The panel held that the Muslims’ poor share of government jobs — 4.9 per cent — was due to bias against them. It recommended the creation of an Equal Opportunity Commission to look into complaints of discrimination. It also said that degrees given by madrasas be recognized for jobs and that recruitment Panels must have at least one Muslim member. Affirmative Action, Not Quota in private Sector (Sachar Panel Report): The Sachar Panel has recommended incentives for 116 private sectors to get them to improve minority Participation. The report talks of “affirmative action” but does not recommend reservation.

In a specific recommendation on “incentives for improving diversity, ‘the committee has suggested that companies providing opportunity to all communities should be branded as ‘Equal Opportunity Institutions’ and should be eligible for government incentives. It said such initiatives on diversity should be part of the ‘corporate social responsibility’ and that some affirmative action can help initiate the process. However, the champions of reservation do not have much to cheer. The report terms a separate quota ‘constitutionally untenable.” When the issue was debated in the committee, everyone agreed that Muslims should benefit from reservation but there were differences over who among Muslims should get it. Some argued that this facility should be available only for ‘Dalits’, others demanded reservation for all. According to the 61st National Sample Survey, the OBC population among Muslims is 40.7 per cent and it is 43 per cent among Hindus.

But of the total 40.7 per cent OBCs in India, 34 per cent are Hindu OBCs and 6.4 are Muslim OBCs. But the committee believes that the percentage of OBC Muslims will increase if all backwards in the community are included in both the State and Central list of Other Backward Classes. The report says backward groups, including the Ashrafs and Ajlafs, should be identified with help from the Anthropological Survey of India. The committee wanted backward Muslims to get benefits similar to Hindu OBCs. Only Arzals, who share a traditional occupation with the SCs, have been recommended for reservation since they were “cumulatively oppressed”.

“Arzals are widely believed to have been Hindu untouchables who converted. The change in religion has not brought about any change in their social or economic status,” the report said. To improve employment opportunities, the committee sought more jobs for Muslims in teaching, health services, and police forces and in banks.

In a bid to fix accountability, the report recommended that each government department should furnish details once every three months on its website about the money spent and action on schemes for minority welfare. A different kind of affirmative action has been recommended in government schemes. To help minorities get loans, the committee recommended that they should have better access to institutions like NABARD and NMDFC. All districts with 25 per cent Muslim population or more should be brought under the Prime Minister’s 15- point programme, the report said.

A special package for development of these districts should be started, it said. In a bid to further improve inclusiveness. the panel has recommended that financial incentive should be 9’ven to builders to provide housing to diverse immunities.


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