24 February 2020 : The Hindu Editorials Mains Notes : Mains Sure Shot
Question – With the sorry state of Dalits still evident in data, the judiciary needs to continue to uphold their rights. Comment.
Context – The Centre on Monday asked the Supreme Court to refer to a seven judge Bench the question whether the creamy layer concept should apply or not to the Scheduled Castes/Scheduled Tribes while providing them reservation in promotions.
Reservation for Dalits is not to undo economic backwardness , but as remedy for untouchability.
Various case laws
- Nine judge bench 1992 Indira Sawhney case : SC/ STs are the most backward classes . Once part of the presidential list under Article 341 & 342 , there is no question of showing their backwardness again.
- Five Judge bench 2006 M . Nagraj Case :- Quota benefits should go to the weakest of weak and not to be snatched away by members of the class who are in the ” top creamy layer”. Hence the concept of creamy layer should be implemented in the case of promotion.
- Five judge bench 2018 Jarnail singh case :- Creamy layer ensures that only the deserving among SCs/STs get the benefits of reservation. This bench agreed with the principle of Nagraj case. The 2018 judgment,
- Authored by Justice Rohinton F. Nariman, had also refused the government’s plea to refer the 2006 Nagaraj case judgment to a seven judge Bench. His argument is “The whole object of reservation is to see that the backward class of citizens move forward so that they march hand in hand with other citizens of India on equal basis. This will not be possible if the creamy layer within that class begs all the coveted jobs in the public sector and perpetuate themselves , leaving the rest of the class as backward as they always were.”
- The 2018 judgment, modifying the part of the Nagaraj case verdict which required the States to show quantifiable data to prove the “backwardness” of a Scheduled Caste/Scheduled Tribe in order to provide quota in promotion in public employment, had, however, rejected the Centre’s argument that the Nagaraj case ruling had misread the creamy layer concept by applying it to the SCs/STs.
- The 2018 judgment said that when a court applies the creamy layer principle to the Scheduled Castes and the Scheduled Tribes, it does not in any manner tinker with the Presidential List under Article 341 or 342 of the Constitution. The caste or group or subgroup named in the list continues exactly as before.
- This principle upheld the right to equality.
- Recent supreme court judgement – The Supreme Court has ruled that quotas and reservations for promotions for government jobs are not a fundamental right, setting aside an Uttarakhand High Court order of 2012. The top court has also said that States could not be forced to make such provisions without data showing imbalance in representation of certain communities in public service.
Sukhadeo Throat , former chairman of UGC, has done a detailed study and published his findings in the book titled ‘Dalits in India: Search for common destiny’:
Reason for reservation as policy-
- Reservation in politics, services and institutions is given to SCs particularly was considered as safeguard and compensate them for historical discrimination and marginalization from various socio-economic institution and resources. Reservation ensures due representation as per their population share. Because otherwise, due to persisting discrimination in services, enterprises and agriculture, they won’t get their due share. Reservation is independent of your economic standing.
Reservation in promotion :-
- There exist discrimination in service . There are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service. Therefore, they need protection in promotion also.
- Women are asking for reservation. They have never raised the issue that relatively better off women should not get reservation. They are discriminated against on the basis of gender not on the basis of economic standing.
- Economic concession in the form of subsidies and benefits of scheme can be stopped for relatively better off section not the reservation.
- There is a contradiction in the Judgement of Jarnail singh , on one hand no criteria is required to justify the backwardness of SCs and STs. On the other hand they are trying to apply the same economic criteria to exclude some of relatively economically better off SCs.
- A study by Sukhadeo Thorat and Paul Attewell in 2010 had reportedly observed that “for equally qualified SC and upper caste (about 4,800 each) applicants, SCs had 67 per cent less chance of receiving calls for an interview. What is more disturbing is that the high percentage of less qualified high castes (undergraduate) received calls compared with the more qualified SCs (post-graduates).”
Discrimination is a continuing diseases in India:
- According to a recent survey by academician Amit Thorat, up to 47% of respondents in the hill State admitted to practising untouchability. More than half the forward caste people confessed to practising untouchability. Further, nearly 68% Brahmins in rural and 77% Brahmins in urban areas of the State admitted to the practice. With such widespread discrimination prevalent in the State, an honest response on representation from the Executive and administration is hard to expect.
- Massive backlog of post under reservation is regular feature
- While measuring under- representation of Dalits – Dalits in ownership of land and enterprise, literacy, and access to civic rights, and their over-representation in poverty, malnutrition, and social isolation and atrocities – should also be considered.
- In 2013, of the total wealth in the country, the share of SCs was only 5% in rural areas against their population share of almost 17%. In terms of their share in agricultural land, it was only 5% while in building assets it was 8%. On the other hand, the high castes owned 39% of total natural wealth — 41% land and 39% building assets. In urban areas, SCs own only 4% of total wealth: 6% land and 2.6% of buildings as against 45% of land and 76% of buildings by high caste, much in excess of their population share of about 21%.
- In 2015, the enrollment rate in higher education was 20% for SCs compared to 43% for higher castes.
- In 2012 about a third were poor, compared to 11% for high castes. Most importantly, caste discrimination and untouchability continue to be practised widely despite anti-discriminatory laws.
- Between 2001 and 2013, SCs had registered about 54,257 cases of atrocities or 4,174 cases annually. This is just the proverbial tip of the iceberg.
- Based on NSS data, these studies indicate that in 2017-18, of the differences in access to employment between SCs and high caste, about 71% was due to discrimination in hiring. Findings of another primary survey in 2013 in rural India show that SC entrepreneurs in grocery, eatery, and transport services faced discrimination, with the high castes reluctant to avail of their goods and services.
- Many SC farmers admit that they face discrimination in the buying of inputs and sale of outputs.
- Sanal Mohan in Modernity of Slavery: Struggles Against Caste Inequality
A lesser known fact shown in recent studies such as that of P. Sanal Mohan in Modernity of Slavery: Struggles Against Caste Inequality in Colonial Kerala is that about untouchables being a slave caste. Slavery is long gone but its legacy persists in the form of bonded, attached and forced labour of Dalits in many parts of the country. Untouchability and caste slavery have completely crippled Dalits. They remain asset-less, illiterate and socially isolated with overt residential segregation in rural areas, and subtly in urban areas. Therefore, the reservation policy is necessary as a safeguard against discrimination and to secure their fair share.
According to Ashwini Deshpande – economics professor
- Reservation is intended to combat discrimination of social and economic nature. Reservation is not an anti-poverty programme. The more advantageous sections of all caste groups are able to enter higher education. So, if we want to make sure that the poor are getting represented, we need a separate set of policies.
- Situation of Dalits and OBCs are very different . Creamy layer exclusion in promotion in case of OBCs are justifiable. Because they can overcome social discrimination after crossing certain economic threshold.
- In fact, there is an argument in the U.S. that richer Blacks face greater discrimination because the Whites resent their entry into areas that are considered privileged for the Whites. So, in a way, there is some evidence to show that discrimination actually increases with a rise in economic position.
- Dalits students still face micro- aggression in higher education.
- We need more data to analyze the impact of reservation but to link reservation to economic status is wrong.
- Limit of 50 % is arbitrary. This limit has to be rethought again.
- Even though legally untouchability has been abolished, there is a lot of data that show that people still practise untouchability. So the stigma that comes on account of an untouchable status… reservation is only a tiny remedial measure for that.
- There is need for reservation in promotions because they face discrimination in promotions.
- Reservation is sort of peanuts. The public sector accounts for a small portion of jobs. And it is there they get some share. In private, they have no protection against discrimination. What you require is compensation for 2,000 years of repression. We have to give them land, funding to start industries, and for education. So, you require a large policy of compensation, reparation, supplemented by reservation.
- This belief that reservations affect the efficiency of public services is a complete myth. I have done a study with the Indian Railways. And that is the only long-term, big-scale study to actually empirically estimate the effect of reservations on efficiency. Reservations have no negative effect on efficiency. If anything, at the top level, they actually have a positive effect. Recently, another study came out looking at IAS officers’ performance indicators, and that study reached the same conclusion. There is another study too. The point is that this myth is so strong that people are not willing to publicise the rigorous examination of this question.
- If at all the Supreme Court has to take a position, it should ask the government to set up a comprehensive committee to study the practice of untouchability and discrimination faced by SCs and STs.
- under the SC and ST (Prevention of Atrocities) Act and the Protection of Civil Rights Act, it is the government’s responsibility to undertake a study every five years, to bring out the nature of discrimination and untouchability faced by Dalits. The government’s SC/ST Commission report is supposed to have a separate chapter on untouchability. That report has not been brought out in the last 20 years or so. The government has also not done any study. There are quantitative techniques that will capture qualitative relationships but unfortunately such surveys have been bypassed by the NSSO.
- We need a strong anti-discrimination framework. There are so many barriers for the oppressed to approaching the justice system that it is difficult for somebody with genuine grievances about discrimination to seek justice. There is now a greater awareness about gender discrimination and institutions are making sure they develop structures to tackle it. We need similar structures for caste discrimination in the workplace.
- The contours of reforms in reservation must be developed through a consultative process involving real and potential stakeholders within the Dalit community. The idea of preferential treatment in sectors that are still underrepresented must be explored objectively. The civil society, industry, media, higher judiciary and the upper echelons of bureaucracy still lack social diversity and, therefore, the empathy required to address the concerns of the community. The Ministry of Human Resource Development, through a recent notification, has asked the IITs, IIMs and other premier institutions, to follow the reservation norms in faculty recruitment: People from marginalised communities did not have any leadership role in these institutions for so long.