“The Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes, all of whom have been compendiously described as ‘the weaker sections of the people’, have long journeys to make in society,” Justice O Chinnappa Reddy wrote in his verdict on KC Vasanth Kumar v Karnataka. “They need aid; they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of right and not of philanthropy. They ask for parity, and not charity.”
Reddy’s famous quote is sometimes pithily rendered as “reservation is for parity, not for charity” without losing any of its rhetorical power. It should have been the cornerstone of India’s jurisprudence on reservation in public sector jobs and education. But, increasingly, one gets the sense that reservation is seen as having been granted on sufferance. The Supreme Court has not helped by speaking in multiple, contradictory voices on the matter. Take its most recent verdict on reservation in promotions, Jarnail Singh v Lachhmi Narain Gupta, delivered on Wednesday. The Constitution bench judgement, authored by Justice Rohinton Nariman, holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes, yet makes the “creamy layer” in either group ineligible for the benefit.
How this judgement came to be requires some untangling. It began with the landmark verdict by a nine-judge bench on Indra Sawhney v Union of India, which, among other things, held reservation in promotions to be unconstitutional and restricted it to entry-level positions. In response, Parliament added Clause 4A to Article 16 of the Constitution allowing reservation in promotions for the Scheduled Castes and the Scheduled Tribes, provided they were not adequately represented. It was challenged in M Nagaraj v Union of India as being against the basic structure of the Constitution. The Supreme Court upheld this clause but with two riders: the creamy layer had to be excluded and the state needed to assess the backwardness of the classes for which reservation was intended.
It was these riders that were in dispute in the Jarnail Singh case. Attorney General KK Venugopal argued (rightly) that the Constitution determined the Scheduled Castes and the Scheduled Tribes to be “backward”, and no further tests could be imposed to verify their “backwardness”. He also contended that the concept of “creamy layer” applied to the Other Backward Classes, not to the Scheduled Castes and the Scheduled Tribes. The Nagaraj verdict had added these riders wrongly, Venugopal argued, so the matter needed to be referred to a larger bench.
The Supreme Court accepted his first point but not the second, refusing to refer the Nagaraj judgement to a larger bench of seven judges.
Paying lip service to social justice
Without saying so, Nariman’s Jarnail Singh judgement adheres to the belief that reservation is not really for parity, but just charity. That excluding the “creamy layer” actually furthers equality even though it means those with generations of oppression must compete on an “equal footing” with those who have benefited from the oppression. That there is no constitutional value in including Dalits and Adivasis in the administration unless they can demonstrably prove they deserve it by being poor and “backward”. That backwardness and untouchability magically disappear for Adivasi and Dalit communities after one or two generations gain access to education and jobs.
This is anything but the depressing reality. Not only is lack of representation a problem, discrimination is writ large in the higher ranks of the civil services when it comes to promotions. Considering this, one wonders who exactly the Supreme Court had in mind when it said “those persons within that group or subgroup who have come out of untouchability or backwardness by virtue of belonging to the creamy layer are excluded from the benefit of reservation”.
We should not be surprised at the Supreme Court’s lack of understanding or even basic empathy regarding the under-representation of and discrimination against Dalits and Adivasis in government service. After all, the highest court in the country has had a miniscule number of Dalit and Adivasi judges since independence – and none since 2010.
In fact, the judiciary is beset with the problem of under-representation in promotions: as one goes up the ladder, diversity reduces sharply. Whether women, Dalits, Adivasis or Other Backward Classes, members of disadvantaged communities number far fewer the higher one looks in the judicial hierarchy. The lived experiences of India’s oppressed communities simply do not fit the calculus of the current appointment processes at all.
Except for a brief period in the 1980s, one gets the sense that the Supreme Court never really understood the social justice aspect of reservation in jobs and educational institutions. Whether in imposing the 50% limit on reservation or introducing the concept of the “creamy layer”, the court’s approach to the matter has been one of grudging tolerance rather than a wholehearted embrace of an important constitutional goal.
The Jarnail Singh judgement is just another reflection of a body that does not really understand the importance of diversity and prefers to pay lip service to notions of social justice.
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