Reservation issues in India

• The Supreme Court on Monday decided to examine whether its nearly three-decade-old judgment which fixed reservation for the marginalised and the poor in government jobs and educational institutions at 50% needs a relook.
• In 1992, a nine-judge Bench of the court had drawn the “Lakshman rekha” for reservation in jobs and education at 50%, except in “extraordinary circumstances”.
• However, over the years, several States, such as Maharashtra and Tamil Nadu, have crossed the Rubicon and passed laws which allow reservation shooting over 60%.

The Indira Sawhney judgment had categorically said “50% shall be the rule, and only in certain exceptional and extraordinary situations for bringing far-flung and remote areas population into mainstream the said 50% rule can be relaxed”.

1992 Indra Sawhney Case:

• 1st time Creamy Layer & Means test concept came as people who are socially, educationally and economically advanced than other SC/STs.
• Indra Sawney upheld Mandal commission recommendation to give 27% reservation to OBCs but it held Creamy layer should be excluded and economic criteria should be adopted.

• It upheld reservations only in Initial appointments and not promotions.

77^th Constitutional Amendment Act, 1995

• But Center (through 77th Amendment, 1995) introduced Article 16 (4A) to overcome it and extended quota for SC/ST in promotions as their representation in State's services has not reached the required level.
• Article 16 (4B) was also introduced to carry forward unfilled vacancies and 50% cap doesn't apply here.
• Article 335 was also amended in 2001 to allow relaxations in qualifying marks & lowering standards in favor of SC/STs.
• SC/STs are most backward among Backward classes. Once part of the Presidential list under Article 341 & 342, there is no question of showing their backwardness again.

M Nagraj case (2006):

• It laid down 3 conditions for promotions of SC/ST in public Employment.
• Government can only introduce quota in promotions for SC/ST if the States show quantifiable data to prove 'Backwardness' of SC/ST.
• It upheld Creamy layer for SC/ ST in promotions.

Jarnail Singh Case (2018):

• It upheld the Creamy layer Principle to affluent SC/STs as the right to equality but doesn't tinker with Presidential list under Article 341 or 342.
• It said Nagraj was wrong to require demonstration of backwardness for SC/STs. It favoured applying 'means test' for Creamy layer.
• Creamy layer ensures that only the deserving among the SC/STs get the benefits of reservation.
• Center has accepted Creamy layer Principle but not for Dalits. Thus, Government has called upon SC To form a 7 judge bench to reconsider the M Nagraj case (2006) which said that it should be applied to SC/ST communities.
• Another issue is whether the Advanced SC/ST sections can be disallowed only for promotions. Because Most of them may not fall under 'Creamy layer' category at the entry level but after some years of service & promotions, they will become. This will defeat the purpose.

Conclusion

• Reservation is not an anti-poverty programme. There is also an example where with reservation, the discrimination actually increases with a rise in economic position.
• Reservation for Dalits is not as much as of economic backwardness as much as it is on account of stigma of oppression.
• Under SC and ST (Prevention of Atrocities) Act and the Protection of Civil Rights Act, it is the Govt's responsibility to undertake a study every 5 years to bring out nature of discrimination and untouchability by Dalits.