The Group of Ministers on Dalit Affairs has decided to seek the opinion of the Attorney-General (AG) on whether to go for a Constitutional amendment or seek reference to a larger bench of the Supreme Court on the contentious issue of excluding the “creamy layer” from reservation benefits to Scheduled Castes (SC) and Scheduled Tribes (STs).
The government is keen to retain the creamy layer within the ambit of reservation. “We are seeking the opinion of the Attorney-General on the matter,” External Affairs Minister Pranab Mukherjee said in response to queries from reporters after the hour-long meeting attended by Shivraj Patil, HR Bhardwaj, Meira Kumar, Ram Vilas Paswan, PR Kyndiah, Oscar Fernandes and Suresh Pachouri.
The government is also likely to convene an all-party meeting to build a consensus on whether it should take the judicial or the legislative route for which it would require the support of parties in Parliament. But a decision in this regard is expected after Mukherjee talks it over with Prime Minister Manmohan Singh.
While upholding the validity of the constitutional amendment providing reservation for promotion in government jobs, the Supreme Court said the creamy layer has to be excluded from its benefits. The ruling was delivered by a five-judge constitution bench, headed by Chief Justice YK Sabharwal and comprised KG Balakrishanan, SH Sabharwal, SH Kapadia, CK Thakkar and PK Balasubramanium.
The GoM has sought the attorney-general’s opinion on whether to seek a reference to a nine-judge Constitution bench or propose an amendment in the Constitution. The GoM’s decision comes a day ahead of the meeting between the government and the industry to discuss the affirmative action plan. The meeting will take up several issues, including the “creamy layer” controversy.
In a letter to the industry chambers recently, the government asked whether the “creamy layer be defined objectively and not left to subjective interpretation by individual companies”. “While the scheme (affirmative action) may be voluntary, what sort of backing would be required to ensure adherence to the code by industrial units,” the government wanted to know. Two apex chambers — Confederation of Indian Industry (CII) and Associated Chambers of Commerce and Industry of India (Assocham) — had submitted a voluntary affirmative action plan to the government in July this year. Both CII and Assocham have drafted a “code of conduct” to its members to “promote inclusiveness of SC/ST employees” in their respective organisations. The code of conduct also seeks commitment from their members that they would “abide by the terms of reference or stipulations of the affirmative action plan”.
In its letter, the government categorically asked the industry whether the scheme could work only on incentive-based mechanism like awards, social recognition and on fiscal incentives such as tax breaks. “What happens in situations of non-compliance? Should there be a penalty for companies defaulting in implementing the affirmative action code or can deterrence via incentive-mechanism alone work,” the government asked.