Creamy layer principle in SC, ST quota for promotion

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Topics Covered:

  1. Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Creamy layer principle in SC, ST quota for promotion

What to study?

For prelims: Names of relevant SC cases and constitutional provisions wrt to SC/ST welfare.

For mains: Significance of Supreme Court verdict and its implications.

Context: Central government has asked the Supreme Court of India to refer to a seven-judge Bench the question whether the creamy layer concept should apply (or not) to Scheduled Castes and Scheduled Tribes while giving them reservation in promotions.

 

What’s the issue?

The Centre has asked the CJI to refer a September 26, 2018 judgment of a five-judge Bench of the Supreme Court in Jarnail Singh versus Lachhmi Narain Gupta to a larger Bench of seven judges for a review.

In Jarnail Singh, the court had agreed with its 12-year-old verdict in the M. Nagaraj case that the creamy layer applied to SCs and STs in order to prevent the socially advanced in a backward community or class from eating the whole cake while leaving the weak among them impoverished.

 

What is the creamy layer concept?

The ‘means-test and creamy layer’ first finds expression in the Supreme Court’s landmark judgment in Indra Sawhney versus Union of India, delivered by a nine-judge Bench on November 16, 1992.

‘Creamy layer’ are “some members of a backward class who are highly advanced socially as well as economically and educationally.

 

Constitutional basis- Article 335:

Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field.

Need: Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.

 

How was the creamy layer made applicable to SC/ST members?

  1. Indra Sawhney vs Union of India:

In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion. And the principle would operate only prospectively and not affect promotions already made and reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment.

More significantly, It ruled that the creamy layer can be and must be excluded.

On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.

 

  1. The validity of the amendment was challenged before the Supreme Court in the Nagaraj case (2006).

Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision. “The State is not bound to make reservation for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets — the backwardness of the class; the inadequacy of the representation of that class in public employment; and the general efficiency of service as mandated by Article 335 would not be affected”.

The court ruled that the constitutional amendments do not abrogate the fundamentals of equality.

 

Need of the hour:

A comprehensive piece of legislature that would deal with ambiguity related to reservation in promotions is needed. The Act should try to rectify the current issues such as

  • Undefined parameters of efficiency.
  • Absence of transparency in evaluating backwardness and efficiency of STs/SCs
  • Presence of ambiguity regarding whole process of promotions in government services.

 

Sources: the Hindu.