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Monday, April 14, 2008

Reservations should not perpetuate Casteism.

The Supreme Court, while holding that the `creamy layer' among the Scheduled Castes and the Scheduled Tribes be kept out of the purview of reservation, which shall not exceed 50 per cent, has cautioned the Government that excess quota will result in "reverse discrimination."

"Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the state is obliged to provide a level playing-field to the oppressed classes," said a five-judge Constitution Bench headed by Chief Justice Y.K. Sabharwal.

"It is the equality in fact which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond the cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination."

The Bench said, "Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense, otherwise it will perpetuate casteism in the country."

Dealing with the extent of reservation, the Bench, quoting the Indra Sawhney judgment (Mandal case), said the 50 per cent rule should be applied, otherwise the open competition channel would get choked for some years and meanwhile general category candidates might become age barred and ineligible.

Constitutional requirements

"We reiterate that the ceiling limit of 50 per cent reservation, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity under Article 16 would collapse."

The judges said: "The equality of opportunity under Article 16 (1) is for each individual citizen, while the special provision under Article 16 (4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other."

Human dignity

The Bench said: "The state is free to exercise its discretion of providing for reservation subject to limitations, namely, that there must exist compelling reasons of backwardness [and] inadequacy of representation in a class of post(s), keeping in mind the overall administrative efficiency. It is the duty of the state to not only protect human dignity but also facilitate it by taking positive steps in that direction."

It said: "If the extent of reservation is excessive then it makes inroads into the principle of equality under Article 16 (1). Backwardness and inadequacy of representation are compelling reasons for the State governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment, such an enactment is liable to be struck down since it would amount to derogation of the constitutional requirements."

Vesting of the power by an enabling provision (to provide for quotas) might be constitutionally valid.

"Yet the exercise of the power by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as they are intimately connected."