‘Unequals within SCs, STs’: Supreme Court relooking at 2004 verdict set to reignite quota within quota debate

The Supreme Court on Thursday said that its 2004 verdict disallowing states from further sub-classifying the Scheduled Castes and Scheduled Tribes needed to be revisited by a bench of seven judges or more

The legal debate over the ‘quota within quota’ concept is set to resume after the Supreme Court on Thursday said that the benefits of reservations were only going to certain groups within Scheduled Castes, Scheduled Tribes and Other Backward Classes, and held that states should  be allowed to provide preferential treatment to the “poorest of the poor” among SCs and STs.

The top court observed that the benefit of quota by and large is not percolating down to the “neediest and poorest of the poor” and it was “crystal clear” that creamy layer concept for excluding affluent people can be applied to SCs and STs as well.

The Supreme Court also said that its 2004 verdict holding that states do not have the power to further sub-classify the Scheduled Castes and Scheduled Tribes for grant of quotas needed to be revisited by a bench of seven judges or more, and referred the case to the Chief Justice of India.

“There are unequals within SCs/STs and socially and educationally backward classes. Reports indicate that SCs/STs do not constitute a homogenous group. The aspiration of equal treatment of the lowest strata, to whom the fruits of the reservation have not effectively reached, remains a dream. At the same time, various castes by and large remain where they were, and they remain unequals. Are they destined to carry their backwardness till eternity?” the court wondered as per a Deccan Herald report.

“Reservation was not contemplated for all the time by the framers of the Constitution. On the one hand, there is no exclusion of those who have come up, on the other hand, if sub-­classification is denied, it would defeat right to equality by treating unequal as equal,” the top court said, according to PTI.

It further said, “The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures.”

What is the creamy layer?

The concept of the ‘creamy layer’ was introduced by the Supreme Court in its landmark 1993 Indra Sawhney verdict (also known as the Mandal Commission case). The court, while giving OBCs 27 percent reservations in government jobs, excluded those belonging to this segment.

In 2018, the apex court under then CJI Dipak Misra, for the first time and in a controversial decision, introduced the ‘creamy layer’ concept for SCs and STs. The bench, in its ruling, contended that being part of the creamy layer allows Dalits and Adivasis to “come out of untouchability or backwardness”.

Those earning above Rs 8 lakh are said to belong to the creamy layer and are thus ineligible for benefits in government jobs and educational institutions.

The government, in July, said it was considering revising the creamy layer ceiling for OBCs to Rs 12 lakh.

How SCs, STs are classified

As per article 341(1) of the Constitution, the President of India, after consultation with a governor, may specify, “the castes, races, tribes or parts of groups within castes or races, which shall be deemed to be Scheduled Castes”.

Accordingly, the President has notified the Scheduled Castes in the order called ‘Constitution (Scheduled Castes) Order-1950’ and the ‘Scheduled Castes and Scheduled Tribes List (Modification) Order-1956′.

However, under Article 341(2), the Parliament of India by law can include or exclude the groups from the list of the Scheduled Castes.

What prompted Thursday’s judgement?

As per News18, the apex court on Thursday was hearing the Punjab government’s appeal against a 2010 judgement by the Punjab and Haryana High Court, which struck down Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, as unconstitutional.

Section 4(5) of the Act provided for ‘first preference’ to the Balmikis and Mazbhi Sikhs castes in Punjab for Scheduled Caste reservations in public services.

On Thursday, a five-judge Constitution Bench headed by Justice Arun Mishra said the 2004 verdict of a bench of same strength in the EV Chinnaiah case had held that states cannot give preference to certain Scheduled Castes as it would amount to “tinkering with” the Presidential list of SCs and STs under the Constitution, and this required to be relooked.

The court had relied on Chinnaiah’s judgement, saying only Parliament, not state legislatures, can exclude castes deemed to be Scheduled Castes from the Presidential List under Article 341 of the Constitution, as per News18.

What is Centre’ stand on the issue

According to PTI, in December 2019, the Narendra Modi govt urged CJI Sharad A Bobde Supreme Court to reconsider its stand that socially, educationally and economically advanced creamy layer of Scheduled Castes/Scheduled Tribes (SC/ST) communities should be excluded from the benefits of reservation in government services.

As per a report  published in The Hindu in 2019, the “Centre’s believes that the ‘creamy layer’ will become a ruse to deprive the backward classes of the benefit of reservation”.

The report also quoted then Attorney-General of India, KK Venugopal, saying that “the SC/ST community as a whole still continues to bear the yoke of centuries’ old backwardness”.

With inputs from PTI

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