Churning of the Cream

November 1992, Indra Sawhney versus Union of India:

Eight out of the nine judges in the case argued that the creamy layer must be excluded from reservations made for OBC’s. Three principal reasons were given. First, for a group to be eligible for reservations it must be a class. A class, in order to be a class must be homogenous; if the variations within it are vast it loses its character as a class. Second, unless the privileged within these classes were excluded, they would reap most of the benefits of reservation, defeating its purpose. Third, retaining groups who had transcended backwardness within a backward class, would be tantamount to treating unequals equally and violate Article 14.

The Court directs Centre and states to appoint Commissions to identify creamy layer within four months.

• August 1995: Kerala Government passes an Act that states that “there are no socially advanced sections in any Backward Classes who have acquired the ability to compete with Forward Classes.” The Act allows for the existing system of reservations to continue, with retrospective effect.

• August 1997: Supreme Court appointed Committee submits report on creamy layer. Report Not Implemented.

• December 1999 Indra Sawhney II: Court reiterates creamy layer exclusion. “To us it appears rather anomalous that while governments declare endlessly that they will see to it that the benefits of reservations really reach the needy amongst the backwards, the very action of the government both on the executive side and the Legislative side, deliberately refusing to exclude the creamy layer¿.are leading to a serious erosion of the reservation program.”

• October 2006: Court Re iterates Creamy Layer Exclusion and Extends it to SC/ST’s.

Identifying the Cream

• 1992: Indra Sawhney: Four judges favored economic criteria. One judge argued that no group should be excluded until it had acquired the social capacities to compete with Forward Classes.

• 1995: Ashok Kumar Thakur vs. State of Bihar: the criteria used to identify creamy layer must be reasonable. Supreme Court chastised the governments of U.P. and Bihar for positing unrealistically high criteria for exclusion in order to subvert the requirement that the creamy layer be excluded.

• 1999: Supreme Court reiterates that exercise of identifying the creamy layer must not be mere window dressing, but must be careful and deliberate. It also recommended that any list must be open to review periodically.

What to Watch: How will the government now identify the creamy layer? How will it set up a mechanism to periodically review it?

50 per cent Lakshman Rekha

• 1963: M.R. Balaji vs. State of Mysore: Supreme Court suggests that a special provision should be “less than fifty percent,” so that it is compatible with equal opportunity for all.

But what does the fifty percent apply to with respect to jobs? Initially it was fifty percent of recruitment. In 1976, State of Kerala vs. N.M. Thomas it became fifty percent of total strength of the service. In 1981, Akhil Bhartiya Shoshit Karamchari Sangh vs. Union of India, the Court held that reservations in promotions should not “substantially” exceed fifty per cent, but an order reserving 66 and two thirds per cent of promotions in the Railways was upheld as not being “substantially in excess” of 50 per cent.

• 2000: 81st Constitutional Amendment: Reserved Posts will be considered a separate class of vacancies to be filled in succeeding years and this class of vacancies shall not be considered together with the vacancies of the year that were being filled up for the purpose of determining the 50 per cent ceiling. In effect, the ceiling was raised.

• October 2006: Court reiterates 50 per cent ceiling.

What to Watch? Whether the full text of the current judgment clarifies what exactly is meant by “no more than fifty percent” What does this apply to: total strength of the service? Vacancies in any given year? Vacancies at any given level?

Promotions are Reserved

1962, General Manager Southern Railway vs. Rangachari held that reservations might be permissible for promotions under certain circumstances, especially if the state made a case that certain classes were under represented. Ironically in response the Central government passed an order saying there would be no reservations in 1976 (Thomas Case); 1981 (Shoshit Karamchari Case) uphold reservation in promotion.

1992, Indra Sawhney, Eight out of nine judges held that reservations in promotions were unconstitutional. “It would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided in every stage of promotion throughout their career. Five judges said existing reservations in promotions should continue for five years.

• May 1995: 77th Constitutional Amendment. A clause added to article 16 “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the Services under the State in the favor of Scheduled Castes and Scheduled Tribes, which in the opinion of the State are not adequately represented in the services of the State.”

2000 82nd Constitutional Amendment, provides for “relaxation in qualifying marks or lowering standards of evaluation” for reservations in matters of promotions for Dalits.

• October 2006; Court upholds reservations in promotions as being constitutional.

What to Watch Out for: The Court overruled its own decision in Indra Sawhney since it does not seem inclined to strike down a constitutional amendment. Will it adopt the same approach in the future?