Hamid Hashmi, Touqeer Haider
Inclusion of creamy layer in ST’s, SC’s is the need of the hour.
The recent judgment of Supreme Court on “reservation in promotions”has been widely welcomed across the country but the need of the hour is to shed light on the reformulation of our current reservation policy.The very notion of reservation was cherished in our constitution in Article 16(4) which expressly permits the state to make “provisions for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state”. The expression “backward class of citizens” in Article 16(4) includes the Scheduled Castes and Scheduled Tribes (SC/ST).Article 16(4) is only an enabling provision, enacted to establish an egalitarian society.
Moreover, reservation for a backward class is not mandatory but it is only a discretionary power on the state to make reservation of appointments in favour of backward classes of citizens not adequately represented in the services of the state either numerically,or qualitatively.This provision was added up for the uplift of so called backward classes to bring them on par with the so called advanced ones.
India’s constitution permits this kind of positive discrimination in order to raise equality of opportunity and status in society.At the same time it is quite difficult for the state to ensure that equality prevails in each and every community.The champions of our constitution were in favour of this temporary provision for the uplift of socially and educationally backward communities.
Even after 60 years of independence various Governments have failed to bring the non-privileged classes into the mainstream but they have sown the seeds of casteism in our diverse country as a means of increasing vote-banks and caste-based politics.
However in recent times it has turned out to be a major setback and obstacle in the way of attaining equality across communities.For a developing country such as India the biggest challenge facing the youth is unemployment.While our constitution has established a mechanism for creating employment for the socially and educationally backward classes, the question that faces us is whether implementing this reservation policy has really helped the downtrodden communities or not.
Our constitution aims to create “equality among equals” and those who are equally circumstanced.Yet only the upper strata of the backward classes derived benefits within each class group, and this was due to non-consideration of the concept of “Creamy layer”.
In backward classes there is an upper strata and lower strata.The upper strata of backward classes have already benefitted from reservation policies and have been uplifted.The lower strata of the backward classes need this privilege for their uplift but cannot access it because only the upper strata within the class derive the benefits of reservation, which is not just and fair.What is needed is to formulate a well-planned and balanced policy of reservation,which opens equal doors of opportunity to all.The development of one section of the society should not be at the cost of another.This is possible only when all sections of the society are given equal opportunities.
India has reached such a stage of development that if these social imbalances are treated correctly and adjudicated in a just and fair manner then it has the potential to become world leader.If these issues are not properly tackled then India’s primary developmental resource, its demographic dividend from a young workforce, can turn into an unbearable burden and it will take centuries to reach the stage of true prosperity.
Traditional approach
Casteism is a major concern in India. During the pre-vedic period, it was not thought that the temporary social adjustment of the varna system would become so rigid that it would lead to chaos and conflict in society. History does suggest that the caste system as it was originally conceptualised, was merely a social adjustment not social separation. Yet with the passage of time and certain change in the society, it became extremely rigid and has become one of the most debated issues in contemporary India. The British played a role in this transformation of caste too, as the census that was started in the late nineteenth century was also based on caste. After Independence caste became an un-adjustable issue which ultimately led to reservation based on caste.
Modern approach
The implementation of the recommendations of the Mandal Commission by the V. P. Singh Government for the welfare of downtrodden sections of society led to more debate on this subject. It was deemed to be the need of society that some communities ought to be treated preferentially to uplift their social status..in earlier times caste was the dominant mode of determining educational, occupational and social mobility, nowadays economic status is the main criterion driving such shifts. Therefore reservations ought to be on the basis of economic status and not on caste, if the Government really wants to uplift backward and downtrodden communities. The manner in which reservationhas been implemented all these years has aggravated the caste distinctions in society,marginalised the poor and the needy, and has benefited only the topmost layer of those called backward class.
Thus the need of the hour is to reframe and re-formulate the policy of reservation on the basis of economic status as per the contrary judgment given by Justice Mathew in Indira Sawhney case..The concept of “creamy layer”must play a vital role in this debate if the benefits of reservation are to be made available to the truly backward communities of India.
(The authors are the students of The Law School, University Jammu)
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