EXCLUSION OF CREAMY LAYER IN RESERVATION


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EXCLUSION OF CREAMY LAYER IN RESERVATION

In Indra Sawhney v. UOI, 1992 Supp (3) SCC 217, it was held that while the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises he is no longer socially disadvantaged.

In Indra Sawhney v. Union of India, (2000) 1 SCC 168 for determining ‘creamy layer’ amongst the backward classes, this Court held that persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status and therefore, were not entitled to be treated as backward. Such persons were to be treated as ‘creamy layer’ without any further inquiry. Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, should be treated as outside the backward class. Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation. The above-mentioned categories were necessarily to be excluded from backward classes. This Court held that the exclusion of the above-mentioned categories is a ‘judicial declaration’ made in Indra Sawhney-I.

In Pichra Warg Kalyan Mahasabha Haryana v. State of Haryana WP (C) 60 of 2019, the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 was enacted to provide for reservation in services and admission in educational institutions to the persons belonging to backward classes in the State of Haryana. In exercise of the powers conferred by the 2016 Act, the State Government issued a notification on 17.08.2016 specifying the criteria for exclusion of ‘creamy layer’ within the backward classes. As per the said notification, children of persons having gross annual income up to Rs. 3 lakh shall first of all get the benefit of reservation in services and admission in educational institutions. The left-out quota shall go to that class of backward classes of citizens who earn more than Rs. 3 lakh but up to Rs. 6 lakh per annum. The sections of backward classes earning above Rs. 6 lakh per annum shall be considered as ‘creamy layer’ under Section 5 of the 2016 Act. While quashing a notification issued by the State of Haryana specifying the criteria for exclusion of 'creamy layer' within the backward classes, Supreme Court stated that economic criterion cannot be the sole basis for identifying 'creamy layer'.

SUBCLASSIFICATION OF SC/ST

In the State of Punjab & Ors. v. Davinder Singh & Ors. [2020 SCC OnLine SC 677], the fats were that, the Punjab Laws Act was notified on 5.10.2006. Section 4(5) of the Punjab stipulated that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst the Scheduled Castes candidates. A Division Bench of the Punjab and Haryana High Court struck down the provisions contained in Section 4(5) of the Punjab Act vide judgment dated 29.3.2010, relying upon the decision in E.V. Chinnaiah.
 
This Court discussed the concept of socially and educationally backward classes in Indra Sawhney; however, the Court observed in paragraph 781 extracted above that Scheduled Castes and Scheduled Tribes are admittedly included within the backward classes, as such there was no need to discuss that. Thus, the discussion was confined to whether socially and educationally backward classes can be included in Article 16(4), it was opined that ken of Article 16(4) is wider than Article 15(4). It was also observed that backward classes contemplated under Article 16(4) do comprise some castes. The Scheduled Castes include quite a few castes. Based on the aforesaid foundational basis, interpretation was made. In our opinion, the decision is relevant for interpreting Article 16(4) provisions in their application to Scheduled Castes, Scheduled Tribes, and other backward classes. They stand on the similar footing, and they cannot be treated as different from other as also fortified by insertion of Article 342A which is pari materia to Article 341 or 342 and considering the definition in Article 366(24) and (26C) and classification of backward classes can be done. The Scheduled Castes and Scheduled Tribes admittedly are backward, and the same yardstick would apply to all. In Indra Sawhney, it was held that it is permissible to make sub-classification within socially and educationally backward classes. That discussion would be applicable for Scheduled Castes and Scheduled Tribes as they admittedly fall under Article 16(4).

In Indra Sawhney, B.P. Jeevan Reddy, J. observed that several castes or tribes within the Scheduled Castes and Scheduled Tribes are not similarly situated. In N.M. Thomas, it was held that Scheduled Castes are group of castes, races, tribes, communities, or parts thereof found suitable by the commission and notified by the President. Caste is nothing but a social class or socially homogenous class. It is based on occupational grouping. Its membership is by birth, and they inherit the same occupation.
 
The question arises whether sub¬classification for providing benefit to all castes can be said to be tinkering with the list under Articles 341, 342 and 342A, in view of the decisions in Indra Sawhney, permitting sub¬classifications of backward classes and in Jarnail Singh, in which, it was opined that ‘creamy layer concept’ for exclusion of benefit can be applied to the Scheduled Castes and Scheduled Tribes and it does not in any manner tinker with the Presidential list under Article 341 or 342 of the Constitution. The caste or group or sub¬group continued exactly as before in the list. It is only those persons within that group or sub¬group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.
 
There is cry, and caste struggle within the reserved class as benefit of reservation in services and education is being enjoyed, who are doing better hereditary occupation. The scavenger class given the name of Balmikis remains more or less where it was, and so on, disparity within Scheduled Caste is writ large from various reports. The Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye. The social realities cannot be ignored and overlooked while the Constitution aims at the comprehensive removal of the disparities. The very purpose of providing reservation is to take care of disparities. The Constitution takes care of inequalities. There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. Various reports indicate that Scheduled Castes and Scheduled Tribes 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.
The State's obligation is to undertake the emancipation of the deprived section of the community and eradicate inequalities. When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub¬classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided. It involves redistribution and reallocation of resources and opportunities and equitable access to all public and social goods to fulfil the very purpose of the constitutional mandate of equal justice to all.

Providing a percentage of the reservation within permissible limit is within the powers of the State legislatures. To achieve the real purpose of reservation, within constitutional dynamics, needy can always be given benefit; otherwise, it would mean that inequality being perpetuated within the class if preferential classification is not made ensuring benefit to all. The sub¬classification is to achieve the very purpose, as envisaged in the original classification itself and based thereupon evolved the very concept of reservation.
 
In the federal structure, the State, as well as the Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and backward classes. Only inclusion or exclusion in the Presidential notification is by the Parliament. The State Government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. By allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class, cannot be said to be violative of the list under Articles 341, 342, and 342A as no enlisted caste is denied the benefit of reservation.
 
Left ambiguous and vague, the law of sedition came to good use for the country’s rulers as a method of crowd control, in a way. Open to ambiguous interpretation with an added clause, it was used to famously smack down the dissenting‟ Bal Gangadhar Tilak, and later, in prosecuting Mahatma Gandhi in 1922. “Section 124-A under, which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen,” said Mahatma Gandhi, in response to the charges against him, and he couldn‟t have been more correct.

E.V. Chinnaiah is required to be revisited by a larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place. We cannot revisit E.V. Chinnaiah being Bench of coordinate strength. We request the Hon’ble Chief Justice to place the matters before a Bench comprising of 7 Judges or more as considered appropriate. In Dr. Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362, On November 29th, 2018, the Maharashtra Socially and Educationally Backward Classes Act was passed upon the recommendation of the Maharashtra State Backward Classes Commission. The Gaikwad Committee recommended 12% and 13% reservation for Marathas in educational institutions and appointments in public services, respectively. The Maharashtra Socially and Educationally Backward Classes, Act 2018 was challenged in the Supreme Court citing that the 50% reservation rule in the 1992 Indra Sawhney landmark case, should be relied upon and the reservation should not be exceeded.

The Constitution bench held that The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as 130 contemplated by Constitution Bench in Indra Sawhney’s case. Supreme Court Constitution Bench by a 3:2 verdict also ruled that the 102nd Amendment did take away the power of the states to identify socially and educationally backward classes under their territory for providing reservations in admissions and employment. According to the judgement, only the President has the power to notify a particular caste as SEBC. The states had lost their power to identify backward classes under their territory after the 102nd Amendment.
The majority judgement read,
 
  • “By introduction of Articles 366 (26C) and 342A through the 102nd Constitution, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.”
The states can only make suggestions to the President or the NCBC for removing, adding or modifying the list of backward classes. But the power of the states to make reservations in favour of the communities, decide the quantum and kind of reservations, and the nature of benefits, (that is, other than identifying the communities/castes) remains intact. The judgement also held the 102nd Amendment to be valid and that it did not affect the federal nature of Indian polity and also did not adversely affect the basic structure of the Constitution. Therefore, The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 was introduced in Lok Sabha by the Minister of Social Justice and Empowerment, Dr. Virendra Kumar, on August 9, 2021. The Bill amends the Constitution to allow states and union territories to prepare their own list of socially and educationally backward classes. The Constitution (One Hundred and Fifth Amendment) Act, 2021 It received the assent of the President on the 18th August, 2021.

RESERVATION FOR EWS CATEGORY

The One Hundred and Third Amendment of the Constitution of India Act, 2019 The Constitution (One Hundred and Third Amendment) Act, 2019, introduces 10% reservation for Economically Weaker Sections (EWS) of society for admission to Central Government-run educational institutions and private educational institutions (except for minority educational institutions), and for employment in Central Government jobs. The Amendment does not make such reservations mandatory in State Government-run educational institutions or State Government jobs. However, some states have chosen to implement the 10% reservation for economically weaker sections.
 
In Neil Aurelio Nunes And Ors Vs Union Of India & Ors Writ Petition (C) No. 961 of 2021, writ petitions filed against the notification issued by Directorate General of Health Services, MoHFWon 29.7.2021 to implement 27 percent OBC reservation (non-creamy Layer) and 10 percent EWS reservation in the 15 percent UG and 50 percent PG AIQ seats for the academic session of 2021-22. The scheme of the AQI seats came into existence through the judgment of the Supreme Court in the case of Dr Pradeep Jain v. Union of India to provide domicile free seats in State run medical and dental institutions.
 
The scheme was further developed through judgment in case of Dinesh Kumar (I) v. Motilal Nehru Medical College and Dinesh Kumar (II) v. Motilal Nehru Medical College. The present formula grants 15 percent UG seats and 50 percent PG seats in State–run institutions. The remaining seats in the State institutions are reserved for candidates domiciled in the respective States.
 
The Supreme Court in the case of Abhay Nath v. University of Delhi held that reservations for Scheduled Caste and Scheduled Tribe candidates are permissible against AIQ seats.
The government introduced The Central Educational Institutions (Reservation in Admissions) Act in 2006 which provides reservation for students belonging to the SCs, STs and OBCs in Central educational institutions. The Scheme as per the act is that 15 percent seats shall be reserved for SCs, 7.5 percent seats for STs, and 27 percent seats for OBCs in Central educational institutions On 29.7.2021, Directorate General of Health Services, MoHFW issued a notification to implement 27 percent OBC reservation (non-creamy Layer) and 10 percent EWS reservation in the 15 percent UG and 50 percent PG AIQ seats for the academic session of 2021-22. The present case now deals with the challenge to the validity of OBC reservation against AIQ seats. Explaining the merit of reservations, the Court explained that initially the concept of reservation was construed as an exception to the principle of equality, but over time, the Judiciary made it clear that reservation seeks to enforce the concept of equality and it's an essential ingredient for the same.
The Court referred to the judgment in the case of T. Devadasan v. Union of India where Justice R Subba Rao in his dissenting opinion stated that that Article 16 (4) is not an exception but rather a facet of Article 16 (1), which seeks to redress the historical disadvantage suffered by certain communities. “If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only a utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid.”
The Court also referred to the judgment in the case of State of Kerala v. NM Thomas, which transformed the equality jurisprudence in India from that of formal equality to substantive equality; thus, also changing the societal understanding of reservations. The Apex Court in the aforementioned case held that the special provisions made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The view that special provisions made for a backward class are not an exception to the principle of equality was reaffirmed by a nine-Judge Bench in Indira Sawhney v. Union of India, observed by the Court.

The Court held that an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books, or academic accomplishments) that they inherit from their family.
 
Explaining the supposed bar on the reservation in PG courses, the Court observed that it has never been held that reservations in medical PG courses are impermissible. The Court further observed that in Pradeep Jain (supra), this Court did not hold that reservation in PG courses is altogether impermissible. In Saurabh Chaudhri v. Union of India, a Constitution Bench of this Court observed that reservation in PG courses to a reasonable extent did not violate the equality clause. The Court also rejected the argument of the petitioners that PG courses should be equated with SS courses and no reservation should be allowed in PG. In the light of the aforementioned explanations and references, the Court concluded that there can’t be a prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in PG courses.

The Court also rejected the argument of the petitioners that the Union Government should have filed an application before this Court before notifying reservations in the AIQ since the AIQ scheme is a creation of this Court citing judgment in the case of Abhay Nath V. University of Delhi, Ashoka Kumar Thakur v. Union of India and Dinesh Kumar (II) (supra). The Court held that it is the Union Government ‘s prerogative to introduce reservation in AIQ seats. The Court further stated that the impugned notice providing reservation for the OBC and EWS categories in the AIQ seats which were issued after the registration was closed but before the exam was conducted would not amount to unfair practice as clause 11 of the information bulletin specified that the reservation applicable would be notified by the counselling authority before the beginning of the counselling process and candidates while applying for NEET-PG were not provided any information on the distribution of the seat matrix.

Concluding the judgment the Court stated that open competitive examinations do not reflect the social, economic, and cultural advantage that accrues to certain classes and contributes to their success in such examinations and high scores in an examination are not a proxy for merit as merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. Consequently, the challenge to the constitutional validity of OBC reservation in AIQ seats introduced through the notice dated 29 July 2021 was rejected, and OBC reservation against AIQ seats was upheld. The EWS category shall be identified in view of the criteria in O.M No. 36039/1/2019. The challenge to the validity of the criteria determined by the Pandey committee for the identification of the EWS category shall be listed for final hearing

The Constitution (One Hundred and Fourth Amendment)

The Central Government has notified Constitution (One Hundred and Fourth Amendment) Act which extends reservation for ten years for Scheduled Caste and Scheduled Tribes to Lok Sabha and State Assemblies in Article 334. The amendment also does away with the provision for nomination of Anglo Indians. The Amendment to Constitution was ratified by the Legislatures more than one-half of the States by resolutions


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