The Conundrum Of Preferential Treatment Within Scheduled Castes

Reservation in public employments in India has always been contentious for allegedly ignoring 'merit' and promoting caste divisions and consequently making caste identities stronger. Along with this central question which has been settled by the legislature and courts in India justifying caste as a relevant tool for identifying social backwardness for reservation in public employment, there are other sub-issues also with which the legislatures and the judiciary in India still continues to grapple. The preferential treatment among SCs of few castes within Scheduled Caste is one such contentious issue. Preferential treatment among other backward classes (OBC) of non-creamy layer is also a settled issue whereby the creamy layer among the OBCs have been excluded from the purview of reservation. Reservations are considered to be the means of social upliftment for the socially marginalized classes in the Indian society. However, since reservation results in the immediate economic upliftment of the beneficiaries, it ostensibly appears to be a policy of economic upliftment as well. Further, the bringing of creamy layer idea for excluding economically affluent among the OBCs also muddles the argument of reservation being a tool for social upliftment only and not economic upliftment.

Prof Ashwini Deshpande a leading public intellectual who has written extensively on the issue of reservation, in an interview to the Hindu (13 December, 2019) has said that reservation is not an anti-poverty programme. According to him the social reality in which Dalits in India live, is far removed from that of OBCs. In case of OBCs, the social backwardness is primarily due to economic backwardness and therefore once a certain economic threshold is attained, the social discrimination is largely not there. In Dalits however, the economic affluence does not lead to overcoming the barriers of social discrimination. Prof Sukhdeo Thorat, former Chairperson of UGC, in the same interview to the Hindu, also argued that the policy of reservation is against discrimination and therefore, it is not for economic considerations. He cites the example of reservation for women, by saying that women while arguing for reservation do not argue for the exclusion of women who are economically better-off. It is because they have been discriminated based on gender, poor or non-poor.

The issue of exclusion of economically better-off among SC is therefore not same as exclusion of economically better-off among OBCs. The understanding is that SC is a homogenous group and therefore finding more backward castes within SC for preferential treatment over other not so backward castes is an incorrect and flawed exercise. The argument of exclusion of better-off among Scheduled Castes in India presently operates in two contexts, one wherein, the legislature of a State gives preferential treatment by law to certain castes among SCs over other castes within SC based on some empirical data. People from these castes in general have been found to be lagging behind the social ladder by not being able to be the beneficiary of reservation owing to the opportunities not trickling down to them. The other issue is that of excluding all the economically better-off among SCs by bringing the creamy layer doctrine to SCs as well. In this approach, there will not be any exclusion within SC based on caste, as the parameter is purely individualistic and economic, whereas in the first context, a person not belonging to creamy layer may also be excluded from the preferential treatment, if her caste has been found to be among the beneficiary of reservation, as a group. The Supreme Court in Davinder Singh, however, erroneously declared the preferential treatment of most backward castes over other castes within SCs to be "in substance an application of the principle of creamy layer."

Apart from the argument of Supreme Court and State legislatures in India confusing reservations to be a means of economic upliftment for SCs, the other apparent problem has been the inconsistency pertaining to the argument of institutional propriety emanating from respect for the past decisions of the Supreme Court, while dealing with this issue. The five judge bench in Davinder Singh while referring the issue to a larger bench of seven or more judges for reconsideration, noted that since E. V. Chinnaiah judgment was also delivered by a five judge bench, it cannot overrule E. V. Chinnaiah. The Court in Davinder Singh found the judgment in E. V. Chinnaiah to be contrary to the judgment of nine judge bench of the Supreme Court in Indra Sawhney v. Union of India (1992), yet rightly respecting the institutional propriety, it decided that being a five judge bench, it cannot overrule another judgment of the Court given in E. V. Chinnaiah, which was also delivered by a five judge bench.

In September 2018, the five judge Constitution bench of the Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta, while faced with the question of whether to refer a five judge Constitution bench verdict of the Supreme Court delivered in M. Nagaraj v. Union of India (2006) to a larger bench, decided to overrule it itself, without referring the contentious issue to a larger bench. The Court in Jarnail Singh did so on the pretext that the judgment of the Court in M. Nagaraj was contrary to the judgment of nine judge bench of the Supreme Court in Indra Sawhney v. Union of India (1992). The irony could not have been so evident in the approaches adopted by the Supreme Court in Jarnail Singh and Davinder Singh.

The question before the Supreme Court in Jarnail Singh was the correctness of the decision in M. Nagaraj, where the Supreme Court had held that if any State wishes to give reservation in promotion to SCs or Scheduled Tribes (STs), it must do so after collecting quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. It had further added that the reservation in promotion must also ensure that the efficiency in administration is not affected as per the mandate of Article 335 of the Constitution of India. The Supreme Court in Jarnail Singh held this to be an erroneous reading of the judgment of the Court delivered in Indra Sawhney. Interestingly though, from nowhere, the Supreme Court introduced the creamy layer principle in the reservation in promotion to SC/ST and therefore held that reservation in promotion cannot be accorded to creamy layer among SCs/STs. The Court in Jarnail Singh noted that if creamy layer in SCs and STs bag all the coveted jobs leaving the most backward among them at the same place where they were, reservation will become a tool for self-perpetuation for the creamy layers among the SCs/STs. The Court in Jarnail Singh also held that, applying creamy layer to SC/ST does not tinker with the Presidential list under Articles 341 and 342 of the Constitution. Interestingly, though the Court in Jarnail Singh, held E. V. Chinnaiah to be unrelated to what it was adjudicating upon.

Such inconsistencies apart in the application of the doctrine of judicial precedent, the jurisprudence on the question of preferential treatment by the States, among SCs of few castes within SC for the purposes of reservation, appears to be completely muddled. The Supreme Court must take judicial notice of the fact that despite this alleged argument of creamy layer among SCs not allowing the benefits of reservation to trickle down to most backwards among SCs, why do we have so many reserve posts in the Government jobs meant for SCs/STs, remaining vacant. Hopefully, the seven judge bench to which the matter has now been referred would take a holistic view and even examine the correctness of M. Nagaraj and Jarnail Singh, apart from reviewing E. V. Chinnaiah.

Views are personal only.

(Author is an Associate Professor at Dharmashastra National Law University, Jabalpur)