AMENDING THE ARTICLE 330 AND 332 OF THE COUNSTITUCTION OF INDIA TO INCLUDE CREAMY LAYER WITHIN SCHUDULED CASTES & SCHUDULED TRIBE RESERVATION
Seminar Course
submitted by
Vivek Kumar Singh
Roll No.: 129
B.A. LL.B. 1st Semester Under the guidance of
Adv. Ankur Kaple
In partial fulfilment towards the
Degree of B.A.LL.B.
from
R.T.M.N.U.’s Dr. Babasaheb Ambedkar College of Law (Main Branch) Nagpur.
2023
Sr No.
Particulars
Page no.
1.
List of legislations
1)Article 16
2)77th constitutional Amendment act 1995
3) 81st Constitutional Amendment Act,2000
482nd Constitutional Amendment Act,2000)
4) 82nd Constitutional Amendment Act,2000
5)Article 330 and 332
6) Article 243D
7) Article 233T
8) Article 335
2.
List of cases
1)Indra Sawhney v. union of India (1992)
2)Ashok Kumar Thakur v. union of India (2008)
3)Pramati Educational and cultural trust v. union of India (2014)
3.
List of abbreviations
4.
Abstract
5.
Research
5.1) Introduction
5.2) Thesis
5.3) Origin
5.4) Conceptual background
5.5) Legal framework
5.6) Judicial precedents
5.7) Social outlooks
5.8) Critical analysis
5.9) Conclusion
5.10) Suggestions
LIST OF LEGISLATIONS
Constitutional law
Article 16: There shall be equality in appointment in public sector, jobs and there shall be no discrimination for such.
77th constitutional Amendment act 1995: The Indra Sawhaney case verdict had held there would be reservation only in initial appointments and not promotions. But the Government through this amendment introduced Article 16(A) to the Constitution empowering the state to make provisions for reservations in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
81st Constitutional Amendment Act,2000: It introduced article 16(4B), which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year.
82nd Constitutional Amendment Act,2000: It inserted a condition at the end of article 335 that enables the state to make any provision in favour of the members of the SC/ST for relaxation in qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of promotions.
Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
Article 243D provides reservation of seats for SCs and STs in every Panchayat
Article 233T provides reservation of seats for SCs and STs in every Municipality.
Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.
Statutory Law
Few laws made by the government to maintain the reservation policy
Socially and Educationally Backward Class (SEBC), Act
The Reservation Act, 2004.
LIST OF CASES
2.1) Supreme court cases
Indra Sawhney v. union of India (1992) Supp. (3) SCC 217
Ashok Kumar Thakur v. union of India (2008) 6 SCC 1
Pramati Educational and cultural trust v. union of India (2014) 8 SCC 1
2.2) High court cases
State of Kerala v. N.M Thomas AIR 1976 . SC 490.
LIST OF ABBREVIATION
AIR
All India Report
Anr
Another
OBC
Other Backward Classes
Ors
Others
RTE
Right to Education
SC
Scheduled caste
SCC
Supreme Court
SEBC
Socially and Educationally Backward Classes
ST
Scheduled Tribes
Supp
Supplementary
V
Versus
ABSTRACT
This seminar aims to introduce a creamy layer criterion within the existing reservation policies for Scheduled Tribes (ST) & Scheduled Castes (SC) in India, with a focus on current perspective. The creamy layer concept, which has been successfully applied in Other Backward Classes (OBC) get a concept of creamy layer, like that, this seminar Propose to amend The Constitution of India in Article 330 & Article 332. The introduction of creamy layer provision would entail identifying economically better off individuals within the Scheduled Tribes and Scheduled Cast and excluding them from reservation benefits seeks to identifying and exclude economically well-off individuals from the benefits of reservation. By discussing the present socio-economic scenario and potential challenges, this seminar highlights the importance of addressing economic disparities within Sc/St communities and suggest the need for a balanced approach in the implementation of such a creamy layer criterion. The seminar aims to achieve the state where no necessity for reservation is required in the Republic of India.
RESEARCH
5.1) INTRODUCTION
This seminar aims to introduce a creamy layer criterion for Scheduled Cast and Scheduled Tribes reservation in India, to exclude economically well-off individuals from the benefits of reservation.
5.2) THESIS
Introduction of creamy layer in Other Backward Classes (OBC), reservation has been proved to the way for providing facilities for the needy.
5.3) ORIGIN
The origin of reservation can be traced back to the 19th century, when the British colonial government began to implement policies aimed at improving the educational and economic opportunities of marginalised groups. One of these policies was the reservation of seats in educational institutions for students from Scheduled Castes and Scheduled Tribes. However, the principle of reservation for SC/ST was enshrined in The Constitution of India when it was adopted in 1950. Article 16(A) of The Constitution provides for the reservation of appointments posts in the government in favour of any backward class of citizen which is not adequately represented in the services under the state. This provision has been interpreted to include the reservation of seats in educational institutions and the legal professions. The reservation system has played an important role in promoting the social and economic advancement of SCs and STs. Over the years, there has been a significant increase in the number of SCs and STs attending educational institutions and occupying positions in government and the private sector. However, the reservation system has also been controversial, with some people arguing that it is discriminatory and unfair to the general category.
5.4) CONCEPTUAL BACKGROUND
Reservation is such a policy which talks about bringing equality in the society, it talks about giving equal rights to those who have not got equal rights in the society. But now reservation is being misused which is economically and socially well off. Even if there is no need of reservation, even if he comes from our community or category, he gets a job or education institute by applying reservation like ST/SC reservation and OBC reservation. This reservation was started to give them equal rights in the society but now they are misusing it to get their job or go to the best university or the people of our community who really need this reservation are the ones who believe. He did not get the benefit of reservation. Reservation is such a policy which talks about bringing equality in the society, it talks about giving equal rights to those who have not got equal rights in the society. But now reservation is being misused which is economically and socially well off. Even if there is no need of reservation, even if he comes from our community or category, he gets a job or education institute by applying reservation like ST/SC reservation and OBC reservation This reservation was started to give them equal rights in the society but now they are misusing it to get their job or go to the best university or the people of our community who really need this reservation are the ones who believe. He did not get the benefit of reservation.
5.5) LEGAL FRAMEWORK
Article 16: There shall be equality in appointment in public sector, jobs and there shall be no discrimination for such.
Article 16 of the Indian Constitution is a crucial step towards creating a more inclusive and fair society. It ensures that everyone has an equal opportunity to access public employment, regardless of their background. It promotes equality and helps in building a diverse workforce. It’s a great provision that upholds the principles of justice and fairness.
77th constitutional amendment act 1995: The Indra Sawhaney case verdict had held there would be reservation only in initial appointments and not promotions. But the Government through this amendment introduced Article 16(A) to the Constitution empowering the state to make provisions for reservations in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
It introduced Article 16(A), which allows reservation in promotions of SC/ST. This amendment is aimed at promoting social equality and providing opportunities for the upliftment of the marginalised communities. It ensures representation in higher positions and contributes to a more inclusive society.
81st Constitutional Amendment Act,2000: It introduced article 16(4B), which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year.
The 81st constitutional amendment act , 2000 brought in Article 16(4B), which allows the carry forward of unfilled SC/ST quota from one year to the next. This ensures that reserved seats are not wasted and candidates from SC/ST communities get opportunities. It’s a significant provision for promoting social inclusion and equal opportunities.
82nd Constitutional Amendment Act,2000: It inserted a condition at the end of article 335 that enables the state to make any provision in favour of the members of the SC/ST for relaxation in qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of promotions.
It introduced Article 16(4A), which allows the reservation of seats in promotions for SC/ST employees. This amendment aimed to provide equal opportunities and representation for marginalised communities in the workplace. It’s an important step towards promoting social justice and equal access to the excluded.
5.6) JUDICIAL PRECEDENTS
Case: Indra Sawhney v. union of India.
Date: 16 November 1992
Bench: Full bench
Judgement: The people accept the court as the appropriate means of resolving dispute when government decide not to attempt to solve the dispute by the political process. It appears to us that they thought that it’s better to leave it to the courts strike down the act. Years would role by and in the benefits of reservation. When government unreasonably refused to eliminate creamy layers from the backword classes or when government tend to include more and more castes in the list of backward classes without adequate date and enquiry a stage will be reached soon. When the whole system of reservation will become farcical and negation of the Constitutional provisions relating to reservations.
Case: Ashok Kumar Thakur v. union of India
Date: 10 April 2008
Bench: Divisional bench
Judgement: The divided verdict is part of a strategy not to let the
controversy be buried conclusively so that the opponents of reservation have the
satisfaction that they have not yet lost their case and its supporters realize that it
is a slippery path on which they must move very carefully at every step. No
decision on the application of the Amendment to private unaided educational
institutions could also be seen as part of that strategy. It divides what could be a
united front against reservation in educational institutions and makes the
government stand on its toes that a hasty action on its part may divert it from the
constitutional goal. Thakur has also clarified several lingering doubts on the reservation issue. It has decided that in essence the same principles of law apply to Article15(4) and (5) as to Article 16(4) as determined in Sawhney; that SEBCs and OBCs in the two are essentially the same and the government could draw a common list for both; and that so long as OBCs are determined with reference to caste, the creamy layer from them must be removed to bring them within the definition of OBCs. Exclusion of creamy layer is an inbuilt requirement of being OBCs on caste lines. That the concept of creamy layer does not apply to SCs and STs. And that the principles of suspect classification, strict scrutiny and compelling.
Case: Pramati Educational and cultural trust v union of India.
Date: 6 may 2014
Bench: Full bench
Judgement: The judgment may have the effect of unleashing a Box wherein multiple institutions will now seek to acquire minority status to become autonomous. Autonomy remains a central theme of any private entity and the State must now provide for a logical basis to explain its curtailment. The Court in the instant case of Pramati fails to do so. Several states have issued new RTE Guidelines to deal with the issue of minority institutions side stepping the implementation of the right to education mandate, while at the same time
maintaining a semblance of Merit based admissions in these institutions. For instance, the Maharashtra Minority Development Department has specified that aided religious minority institutes offering higher and technical education should admit minimum 50% students on the basis of merit under the minority quota. However, if seats are not filled under the religious minority quota, then admissions should be given to students from linguistic minority. If seats
are still lying vacant, then students from a non-minority background can be given admissions after taking prior permissions from the government. Implementing the state government reservations and open category students then can fill the remaining 50%. The same policy will be applicable for unaided minority institutions, but they have to fill a minimum of 51% of seats under the minority quota.62 Similarly, Karnataka has reduced the total percentage of
students belonging to the minority community from 75 to 25, for implementing the Right to Education Act in primary education.
Case: State of Kerala and Anr v. N.M. Thomas and Ors
Date: 19 September 1975
Bench: Full bench
Judgement: The aim of our judiciary is not to waste bents in the name of reservation but only to give a forwardness to the people who have been barred in the name of caste. Therefore, equality should be practical and substantial rather than being on papers and books. A major part should be played by the judiciary in upholding equality under Article 14 and giving it a more pragmatic form. Hence, the Hon’ble Supreme Court held the Rule 13AA of Kerala State Subordinate Services Rules, 1958 to be valid and the right conferred by Art. 16 (1) read along with Article 14 and Article 155 to be real and effective and not an abstract thing.
5.7) SOCIAL OUTLOOKS
The Creamy Layer Debate: Is Caste Discrimination Based on Financial Status
Creamy Layer Exclusion principle that seeks to segregate the forward sections" of a particular backward class and thereby curtail their access to the government's affirmative action. Simply put then the creamy layer refers to some members of a backward class who are socially economically as well as educationally advanced as compared to the rest of the members of that community. The Union Government has called upon the Supreme Court to review an order it passed last year with regard to reservations. In particular, it asserted that the creamy layer concept, which distinguishes between the affluent among disadvantaged sections, not be applied to scheduled castes and scheduled tribes when determining who is not eligible for the benefits of reservations. Over the years the Supreme Court, in successive judgments, has refined the rules regarding the implementation of reservation. Could the current request to review lead to another landmark ruling in the history of affirmative action jurisprudence in India.
The State is not bound to make reservation for SC/ST in matter of promotions. It is made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer Centre urged the Supreme Court to refer to a larger Bench its decision last year that had applied the creamy layer principle to promotions for Scheduled Castes and Scheduled Tribes in government jobs.
The creamy layer principle, distinguishes between the affluent among disadvantaged sections, especially from a social perspective, should not be considered for reservation in jobs and admissions. The creamy layer applies only to OBC’s. A review of the Supreme Court verdict in 2018 on the exclusion of the “creamy layer” within the Scheduled Castes (SC) and Scheduled Tribes (ST) category from the reservation benefit Venugopal said, “We want this matter to be heard by a larger bench. Earlier, it was five-judge bench, but we want it to go before a seven-judge bench. The concept of creamy layer cannot be applied to the category of SC/ST.”
5.8) CRITICAL ANALYSIS
On one hand, proponents argue that the creamy layer criteria help ensure that reservation benefits are directed towards those who are truly in need. By excluding individuals from the creamy layer who have already achieved a certain level of economic and social privilege, it prevents them from further benefiting from reservation policies. This approach aims to uplift the most marginalized and disadvantaged members of the ST/SC communities, who often face deep-rooted discrimination and historical disadvantages. However, critics raise several valid concerns about the implementation and effectiveness of the creamy layer concept. One of the main criticisms is that the criteria used to determine the creamy layer, such as income and occupation, may not accurately reflect the social and economic realities of ST/SC individuals. These criteria do not take into account factors like generational poverty, lack of access to quality education, and systemic discrimination that continue to impact the lives of many ST/SC individuals. Another concern is that the creamy layer criteria may inadvertently exclude deserving individuals from marginalized communities who are still facing significant socio-economic challenges. The assumption that economic privilege automatically translates to social privilege fails to consider the unique experiences and barriers faced by ST/SC individuals. This exclusionary approach can perpetuate inequalities and hinder the true purpose of reservation policies, which is to uplift and empower marginalized communities. Additionally, critics argue that the creamy layer concept has the potential to create divisions within ST/SC communities. It can lead to intra-community disparities, where some individuals within the same community may receive reservation benefits while others are excluded based on their economic status. This can result in resentment, tension, and further marginalization within these communities. To address these concerns, it is crucial to continuously evaluate and refine the creamy layer criteria to ensure they accurately capture the challenges faced by ST/SC individuals. A more comprehensive approach could consider factors beyond income and occupation, such as access to quality education, healthcare, and representation in decision-making processes. This would help to identify individuals who may still face socio-economic disadvantages despite not meeting traditional creamy layer criteria. Moreover, it is essential to focus on holistic development and empowerment of ST/SC communities beyond just reservation policies. Investments in education, skill development, infrastructure, and social welfare programs can play a vital role in uplifting these communities and breaking the cycle of poverty and discrimination. In conclusion, the creamy layer concept in ST/SC reservation has its merits in ensuring that reservation benefits reach those who are most in need.
5.9) CONCLUSION
The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system. The creamy layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC after the landmark Mandal Case. The Court has always put up a very generic approach to providing reservation. Reservations will continue to play a useful role but will likely be a diminishing part of the solution of Dalit problems. There are major flaws. Reservations apply to the public sector but not the private sector, the probable growth area of the Indian economy. The reservations system would benefit markedly from an administrative face lift. As recommended by the Commission for Scheduled Castes and Scheduled Tribes, a comprehensive act, articulating the policy is needed. The revision and streamlining of procedures, such as SC certification, might help curb abuse. In addition, social programs such as those directed at improving the education system, especially at the primary level and in rural areas should be given more emphasis. The political indulgence in the process of reservation has merely reduced from a noble idea to a strategy to increase the vote bank. A lot of criticism has been made on the criteria of reservation. The socially and economically backward classes are not actually in practical and real sense but backward caste is enough to gain profits in the name of reservations.
5.10) SUGGESTIONS
In this model, for instance, the Scheduled Castes may be divided into two groups; a Common Group (CG) and a Creamy Layer Group (CLG). When the quota allotted to this community is to be filled up, the first priority must be given to the Common Group by throwing open all the posts/seats available. Then the second priority should be given to the Creamy Layer Group by offering them the left-over posts/seats. In this model- nobody would be discriminated as the two groups get a fair opportunity which is based on the principle of ‘justice to the poorest of the poor first’. The same model could also be applied to any community but measures must be taken to Reservation benefits should flow the poor people in the society majority of underprivileged and deprived castes. not to those who is coming from special community and they is economic conditions is good families, high income professionals should not get the reservation benefits especially in government jobs. Fair and practical ways should be taken to help needy person from each community in reservation. The process of reservation
should filter the truly economically deprived persons to bring them justice. this change is required in the education system at the grass root level for weaker section of the society.
0 Comments