On 16 August 2018, during the hearing of a case pertaining to reservation in promotions for Scheduled Castes and Scheduled Tribes, a five-judge constitutional bench headed by chief justice Dipak Misra sought to know from the Centre why the well-off sections of the Scheduled Castes and the Scheduled Tribes should not be denied reservations. The bench comprised Justices Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra.
In reply, Attorney General K.K. Venugopal told the court on behalf of the government that the creamy layer of the SCs and STs couldn’t be denied reservations. The Constitution provides for reservations for them, he said, and a handful of the SCs and STs becoming prosperous is not enough to conclude that the communities are no longer backward.
The Attorney General said that the SCs were still subjected to discrimination. They cannot marry into upper-caste families and they cannot even ride horses, he said. In view of their backwardness, Venugopal pleaded with the court to restore to them reservation in promotions.
During the hearing, the Supreme Court Bench rued that even 12 years after the judgment in the M. Nagaraja case, the government had not been able to produce quantifiable data on the representation of the two communities in government services so that a decision could be taken on the issue.
The attorney general argued that no data is needed to prove that the SCs and STs are still backward. He said that the judgment in the M. Nagaraja case needed to be revisited as it had imposed many conditions on granting reservation in promotions. Because it did not specify the kind of data that should be collected to prove backwardness and lack of representation in government services, he added, many sections of society had to face injustice.
The union government has thus made in clear that it is not in favour of using the “creamy layer” principle for reservations for SCs and STs because they are still backward.
The next hearing in the case is scheduled for 22 August.
The Supreme Court has admitted that Article 16(4) of the Constitution protects the interests of all backward classes. Dr Bhimrao Ambedkar has voiced a similar view about the Article in 1949. K. Kondala Rao, who is conversant with OBC issues, writes in his booklet OBC and State Policy that as far as representation in government services is concerned, in 2004, the OBCs were worse off than the SCs and STs. He writes that while considering the issue of reservation in promotions, the proportion of these groups in the population should also be considered. He argues that the 77th Constitutional Amendment discriminates against the OBCs and the policies drafted under on the basis of the amendment are, therefore, flawed. Most of the questions related to the issue can be answered conclusively if the government publishes the report of the caste census.
Translation: Amrish / copy-editing: Anil
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