Reservation, Creamy Layer and Positive Discrimination
The constitutional guarantee of equality and fraternity has existed for more than seven decades in India. Constitutional safeguards cover over 201 million Scheduled Castes (16.6%) and 100 million Scheduled Tribes (8.6%). Thus, as per 2011 Census data, they constitute 25 per cent of the country’s 1,330 million population. Realising the age old exclusion the Scheduled Castes were subjected to and exploitation the Scheduled Tribes had to undergo, the framers of the constitution ensured that positive action, like reservation in jobs and places, has to be used to improve the condition of these weaker sections and guarantee their legitimate rights. But the affirmative action has not been without its controversies, legislative quagmire and litigations. Job reservations and preferential treatment in educational institutions, more than political reservation, have been the bone of contention. The Indian social order, as well as the social mindset and the mainline media divide the Indians into two camps, pro and anti-reservationists. In this argument and counter argument, the issues around the importance, significance and status of reservation to the weaker sections are lost.
The recent verdict by the Supreme Court of India in the case, ‘The State of Punjab & Ors. …Appellants Versus Davinder Singh & Ors. …Respondents’ delivered by a seven bench judges headed by the Chief Justice of India on 1st August, 2024 made the following, “ The reference to this Constitution Bench raises significant questions relating to the right to equal opportunity guaranteed by the Constitution. The principal issue is whether sub-classification of the Scheduled Castes for reservation is constitutionally permissible… Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogeneous class. Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a) there is a rational principle for differentiation; and (b) the rational principle has a nexus with the purpose of sub-classification; and f. The holding in Chinnaiah (supra) that sub-classification of the Scheduled Castes is impermissible is overruled.”[2]
This landmark judgement by the Supreme Court India which permits sub-classification of the Scheduled Castes and Scheduled Tribes so as to grant separate quotas for more backwards within these weaker sections has once again generated more heat and dust. The idea of positive affirmation was given a major thrust in independent India through Articles 15(4), 15(5), 16(4), 16(4A), 16(4B), 330 and 332 of the Constitution of India. This provision is under threat now.
Caste in Principle and Practice
Two events reveal the continuity between the past and the present and also highlight the central issues involved in the discourse on caste, caste discrimination and reservation. As early as 1930, Dr. Ambedkar presented an intuitive interpretation of the iron grip of the caste system. “A most recent event is reported from the village Chakwara in Jaipur State. It seems from the reports that have appeared in the newspapers that an untouchable of Chakwara who had returned from a pilgrimage had arranged to give a dinner to his fellow untouchables of the village as an act of religious piety. The host desired to treat the guests to a sumptuous meal and the items served included ghee (butter). But while the assembly of untouchables was engaged in partaking of the food, the Hindus in their hundreds, armed with lathis, rushed to the scene, despoiled the food and belaboured the untouchables who left the food they were served with and ran away for their lives. And why was this murderous assault committed on defenseless untouchables? The reason given is that the untouchable host was imprudent enough to serve ghee and his untouchable guests were foolish enough to taste it. Ghee is undoubtedly a luxury for the rich. But no one would think that the consumption of ghee was a mark of high social status. The Hindus of Chakwara thought otherwise and in righteous indignation avenged themselves for the wrong done to them by the untouchables, who insulted them by treating ghee as an item of their food which they ought to have known could not be theirs, consistently with the dignity of the Hindus. This means that an untouchable must not use ghee even if he can afford to buy it, since it is an act of arrogance towards the Hindus. This happened on or about the 1st of April 1936”.[3]
Significantly, the social condition of the untouchables has not changed even after seven decades. In the same Chakwara village now, the dominant castes have enforced ‘social boycott’ and have denied access to the pond to the untouchables while the cattle of the dominant castes have access to the pond. This social boycott is the direct outcome of the attempt by the Dalits to undertake a Sadbhavna Yatra (social harmony procession) on the 21st September, 2002 in Chakwara, which falls under the Phagi Tehsil of Jaipur district of Rajasthan. This yatra was organised to highlight the evil practice of untouchability and discrimination against the Scheduled Castes and to ensure social harmony. It is reported, “A fact-finding team of civil rights activists, which visited Chakwara village, demanded continued deployment of police forces to protect the Dalits and declaration of Phagi tehsil, where Chakwara is situated, as Dalit atrocity-prone area under Section 21 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. More than 50 persons, including policemen, were injured when a march to highlight the evil effects of untouchability and discrimination against the Dalits was attacked in Chakwara, where an entire Dalit community is being persecuted for asserting its right to bathe in the local public pond”.[4] These incidents go to establish the historical fact that the Scheduled Castes do not even have the right over dietary item. Nor are they equal to cattle to have access over public utilities like ponds, wells, etc.[5]
Similar discriminatory mindset continues to rule the Indian society, polity, economy, culture and religion. Justice Krishna Iyer examining the two aspects in this debate, that is, equality before law and inequality in life pointed to the root thought. This agonizing gap between hortative hopes and human dupes vis-à-vis that serf-like sector of Indian society, strangely described as scheduled castes and scheduled tribes, and the administrative exercises to bridge this big hiatus by processes like reservations and other concessions in the field of public employment, is the broad issue that demands constitutional examination in the Indian setting of competitive equality before the law and tearful inequality in life. A fasciculus of directions of the Railway. Board has been attacked as ultra virus and the court has to pronounce on it, not philosophically but pragmatically.[6]
Justice Krishna Iyer took note of the problem on which he was supposed to declare his verdict. The dynamics and dialectics of social justice Vis-à-vis the special provisions of the Constitution calculated to accelerate the prospects of employment of the harijans and the girijans[7] in the civil services with particular emphasis on promotions of these categories in the Railway that, in all these cases, is the cynosure of judicial scrutiny, from the angle of constitutionality in the context of the guarantee of caste-free equality to every person.[8]
A careful reading of this historical verdict delivered by Justice Krishna Iyer points out to the ridiculous level the Indian caste mind set can descend to claim that the railway accidents are due to reservations. Caste, undoubtedly, is a deep seated pathology to eradicate which the Constitution took care to forbid discrimination based on caste, especially in the field of education and services under the State. The rulings of this court, interpreting the relevant Articles, have hammered home the point that it is not constitutional to base identification of backward classes on caste alone qua caste. If a large number of castes masquerade as backward classes and perpetuate that division in educational campuses and public offices, the whole process of a caste-free society will be reversed. We are not directly concerned with backward classes as such, but with the provision ameliorative of the SC/STs. Nevertheless, we have to consider seriously the social consequences of our interpretation of Art. 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over indulgent concessions, even at promotional levels, to the SCs/STs. which are only a species of castes. Each according to his ability’ is being substituted by ‘each according to his caste’, argue the writ petitioners and underscore the unrighteous march of the officials belonging to the SCs/STs over the humiliated heads of their senior and more meritorious brothers in service. The aftermath of the caste-based operation of promotional preferences is stated to be deterioration in the overall efficiency and frustration in the ranks of members not fortunate enough to be born SCs/STs. Indeed, the inefficiency bogie was so luridly presented that even the railway accidents and other operational calamities and managerial failures were attributed to the only villain of the piece, viz., the policy of reservation in promotions. A constitutionally progressive policy of advantage in educational and official career based upon economic rather than social backwardness was commended before us by counsel as more in keeping with the anti-caste, pro-egalitarian tryst with our constitutional destiny.[9]
Reservation: Myth and the Reality
An examination of the socio-economic profile of the Scheduled Castes and Scheduled Tribes shows that there is no marked improvement in their socio-economic and educational condition even after seven decades of implementation of planned development. Nor any significant improvement seen due to the provisions of reservation policies. Even in the examination of an ordinary indicator like literacy rate these communities lag behind [Table 1]. Moreover, universal enrollment was supposed to pay special attention to children belonging to Scheduled Castes and Scheduled Tribes. Attractive slogans, like ‘Universalisation of Primary Education’, ‘Compulsory and Free Education’, ‘Making Education an Enjoyable Exercise’, continue to be used by the political establishment at regular intervals. But in reality they have not introduced substantial change in the state of these weaker sections.
Table 1
Socio-Economic Profile of Scheduled Castes and Scheduled Tribes
Source: Census Report 2011; National Commission for Scheduled Castes & Scheduled Tribes. Fifth Report 1998-99.
The percentage of reservation in direct recruitment on all India basis by open competition for SCs and STs as 15% and 7.5% respectively was fixed vide MHA Resolution No. 27/25/68-Estt. (SCT) dated 25.03.1970. But contrary to common belief as well as the projections made by mainline media, the percentage of members from weaker sections employed in government services based on reservation in public service is abysmally low [Table 2]. If one pays attention to their presence in the government services, one would be shocked by this fact that even the stipulated 15.0 and 7.5 percent respectively of the reservation quota fixed for these communities is not filled. Many of these prescribed posts are filled up by the dominant castes. As per the Annual Report 2020-21, Department of Personnel and Training: Government of India, New Delhi, 2021-2022, only 13.01 per cent from the 15.0 per cent determined for reservation for the Scheduled Castes and only 5.89 per cent from the 7.5 per cent allotted to the Scheduled Tribes has been filled as late as 2022.
Table 2: Representation of SCs/STs in Central Government Services
Source: Annual Report 2020-21. Department of Personnel and Training: Government of India. New Delhi. 2021- 2022, p 33.
It is significant to note that when it comes to the ‘demeaning employment’ like being recruited as Safai Karmcharis, there is no competition with these weaker sections. Here there is 100 per cent reservation only for them. Persons from other castes will become ‘Director, Administrator and Finance Officer’ of this sector but not engage in scavenging. This is the deep seated decadency that the anti-caste movements have been waging war against. Hence, any discussion on reservation should pay attention to this inherent and inbuilt caste practices in the Indian social, economic, political, cultural, religious and mental makeup.
Moreover, in every sector, discrimination is practiced without any penalty. The Committee on the Welfare of Scheduled Castes and Scheduled Tribes in its report presented to the Parliament on 15th March, 2000 pointed out that out of 481 judges in High Courts there are only 15 judges from the Scheduled Castes.[10] This is just over 3.11 per cent. If the population of the Scheduled Castes is 16.48 per cent and over five decades of affirmative action did not ensure their due presence in the judiciary, the interests of this community cannot be served. The Report further states: “The members of the judiciary have so far been drawn from the very section of society which is infected by ancient prejudices and is dominated by notions of gradation in life. The internal limitation of class interests of such judges does not allow them full play of their intellectual honesty and integrity in their decisions. Their judgments very often betray a mindset more useful to the governing class than to the governing class than to the servile classes and no sympathy for any real measures designed to raise their dignity and progress”.[11]
It is amusing to see how the Department of Personnel and Training of the Government of India describes the status of reservation of the SCs and STs through direct recruitment. Representation of SCs/ STs has increased in all the Groups viz. A, B, C and D during last six decades. At the dawn of independence representation of SCs/STs in services was very little. As per available information, representation of SCs in Groups A, B, C and D as on 1.1.1965 was 1.64%, 2.82%, 8.88% and 17.75% respectively which has increased to 12.5%, 14.9%, 15.7% and 19.6% respectively as on 1.1.2008. Likewise while representation of STs as on 1.1.1965 in Group A, B, C and D was 0.27%, 0.34%, 1.14% & 3.39% respectively, it has increased to 4.9%, 5.7%, 7.0% and 6.9% respectively as on 1.1.2008. Total representation of SCs and STs as on 1.1.1965 was 13.17% and 2.25% respectively, which has increased to 17.51% and 6.82% respectively on 1.1.2008.
Table 3: Representation of SCs and STs over Decades in Services
Even a cursory glance at the data provided in Table 3, highlights the fact that even after 5 decades of implementation of reservation, the seats allotted in jobs in group A has not been filled. Governments after governments have failed miserably to ensure this. Petitions after petitions filed in the honourable courts have not resulted in the implementation of constitutional provisions. Secondly the shift in the percentage in services in both these communities is clearly seen from the 1980s. This is because by this time, Dalit and Tribal activists, intellectuals, NGOs, civil society organisations and political parties representing these communities began to raise about the non fulfilment of the seats.
What is more interesting is that the Committee of Governors appointed by the President K.R. Narayanan to look into Certain Aspects Concerning the Welfare and Rights of the Scheduled Castes and Scheduled Tribes points to another anomaly of non-Dalit and non-Tribals obtaining certificates as SCs and STs. The report highlighted, “In all the meetings with the officials and the representatives of NGOs it was brought o the notice of the Committee that a number of persons not belonging to the Scheduled Castes/Scheduled Tribes are getting their names included in the SC/ST lists to avail of the benefits provided for these categories. As a result, the genuine SC/St people do not get any benefits meant for them and therefore continue to live in misery and poverty. The Committee therefore recommends that such attempts by bogus people must be prevented by effective means to protect the interest of the SCs and STs”[12]
In any discussion on the creamy layer, the following broad submissions are presented as starting point on the basis of legal measures. First, the creamy layer must be excluded from reservations at the entry level and in promotions. Second, currently the exclusion is applicable only to OBCs and not SC/STs. Third, the creamy layer exclusion should be applicable even for SC/ST reservation in light of M. Nagaraj case which treats the differentiation in the Indra Sawhney case as obiter.
It is argued by some that in the creamy layer issue, the Supreme Court has tried to defend the idea of excluding the creamy layer through the doctrine of classification or sub-classification. According to this stand of the Supreme Court, a classification is reasonable if it satisfies two conditions. First, there must be an intelligible differentia in the class sought to be differentiated. Second, such a differentia must have a rational nexus with the object sought to be achieved by the statute or executive order. Recently, it was agreed that the object must be a reasonable object. It is argued now that if there is the possibilities of intelligible differences that separate a group within a group, then there should not be any objection for further classification of that bigger group.
Creamy Layer Debate
No conscious and concerned citizen of India would buy in totality that reservation is the panacea for all the ills the Dalits and Tribals are subjected to. Similarly, no conscious and concerned citizen of India would buy the argument that reservation has been implemented in spirit and practice as per the Constitution. Moreover, no conscious and concerned citizen of India would undermine the opportunities provided by reservation in entry and promotions. While, the verdict of the Supreme Court has opened up avenues for sub-classification, it has also not paid attention to many concerns that are not addressed in the last seventy years.
Chronology of application of ‘Creamy layer’:
The recent Supreme Court Verdict has directed the following:
“State must evolve a policy to identify creamy layer among the Scheduled Castes and Scheduled Tribes category and exclude them from the fold of affirmative action,” Justice Gavai was quoted as saying by Live Law. Thus the Supreme Court overruled a 2005 judgment which had ruled that SC/ST sub-classification was contrary to Article 341 of the constitution. The particular Article confers the right on the President of India to prepare the list of SCs and STs. The bench while disposing the case stated: “There is nothing in Article 15, 16 and 341 which prevents sub-classification for SCs if there is a rational for distinction (intelligible differentia) and there is a rational nexus for the object sought to be achieved. State can sub-classify for the inadequate representation of some class” The court, however, cautioned that states must support sub-classification with empirical data, ensuring it is not based on “whims or political expediency.”
Creamy Layer Debate: Some Concerns
First of all, the creamy layer proposal is seen as a part of the natural apathy of the upper strata of the society towards the Dalits and the Tribals. These communities also understand from their experiences that whatever proposals are suggested with respect to the reservations they are all aimed at raising some dust against it. Hence, the Tribals and Dalits perceive the creamy layer proposal as yet another stroke to dilute the spirit of the reservations to further exclude them.
Secondly, the Supreme Court has done mighty little to challenge the non-implementation of positive discrimination. As observed in the previous pages, even after seven decades of implementation of reservation policy, the picture is abysmal. The judicial system should engage with the government to put in place penal provisions for those who fail to implement the reservation policy.
The creamy layer proposal at this juncture may also pose a threat to the overall progress of the development of a middle class among the SCs and STs. With all its limitations, reservation has enabled a small segment among these communities to get educated and employed so as to provide leadership to these communities in social, political, economic and religious sectors. It is due to the articulation and assertion from this section, the issues of the Tribals and Dalits are kept alive.
The Dalits and Tribals resent this fact that under the garb of the creamy layer, there is an attempt to divide and rule. It is a fact that the Dalits and Tribals are not homogenous groups. There are divisions among them based on social, economic, political, educational and religious identities and backgrounds. Yet, when it comes to identity politics and when the entire community is challenged, then the Tribals and the Dalits function in one unison. These communities now see the creamy layer debate as an attempt to undo this unity. Further, these communities want the debate of sub-classification, an internal issue and not imposed by vote bank politics or upper caste bias. Let the communities themselves come up with ways and means to address the differentiation among themselves and address them.
“The UPA Government is very sensitive to the issue of affirmative action, including reservations in the private sector. It will immediately initiate a national dialogue with all political parties, industry and other organisations to see how best the private sector can fulfill the aspirations of Scheduled Castes and Scheduled Tribes youth”. It is this statement of the Common Minimum Programme (CMP) of the United Progressive Alliance which created more debate than any other programme. Significantly the CMP suggested a national debate to ensure the implementation of this programme.[14]
The opposition came for this from many quarters. Sunil Kumar Munjal the President of CII argues out the case by stating, “We cannot be forced to take individuals who don’t have the required skills. We cannot afford to compromise on efficiency. That would affect our competitiveness. We cannot compromise on merit. Corporate sector does not go by colour of skin, caste or the last name”.[15] But the reality is that corporate recruit only those who come from their social settings.
Even as early as 2004 when the affirmative action in private sector was going on the following concrete measures were suggested: an Equal Employment Opportunity Commission be constituted to review and ensure that the weaker sections find their representation at all levels. Make special provisions for higher education, responsive training and multi-skilling of the Tribals and Dalits so that they are able to compete with the others for jobs. Empower National Commissions for SCs and STs so that they work as pressure group on the government and the private sector the right to participatory development. Finally, ensure nationwide debate on these issues and introduce necessary constitutional amendment to enact affirmative action at all levels in private sector. But all these remained only on paper.
Further, the Tribals and Dalits have been demanding for land and redistribution, non-encroachment of land in the name of development, distribution of surplus land, comprehensive rehabilitation policy determined by the Tribals, implementation of Forest Right Act, life skill education, opening in higher education, employment, housing, access to proper public health, entrepreneurship development, implementation of Special Component Plan and Tribal Sub-Plan, and separate electorate for the Scheduled Castes. If the earlier regimes were based on brahminism and capitalism, the present regime is driven by hindutva and neo-liberalism. All these deny the Dalits and the Tribals citizenship based on liberty, fraternity and equality. Unless the demand of Dr. Ambedkar to build in social democracy as fundamental to political and economic democracy, creamy layer will perpetuate caste system and not annihilate the draconian caste system of India.
Dr. Prakash Louis, Director, Xavier Institute of Social Research, Digha-Ashiana Road, Patna, Bihar
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