The Supreme Court’s judgment upholding the quota system in promotions has raised pertinent questions about related laws in the pipeline.
Shall the cream remain on the cake? What will be the fate of a recent Cabinet decision to retain the already empowered layer in the draft legislation for OBC reservations in institutes of higher learning?
In its wisdom, the government could consider placing the OBC reservation bill in the Constitution’s Ninth Schedule. But even these powers of Parliament are currently under the scanner of a nine-member Constitution Bench of the Supreme Court.
Besides, Thursday’s verdict, that cites a 1993 judgment of a Constitution Bench (Indra Sawhney case), counts the concept of creamy layer in reservations as one of “the constitutional requirements” without which the structure of equality of opportunity in public employment would “collapse”.
This concept was introduced, the court observed, to strike a balance between accepting caste as a determinant of backwardness and the principle of secularism that was a basic feature of the Constitution.
Thursday’s verdict comes just two months after the Union Cabinet approved the Central Educational Institutions (Reservation in Admission) Bill that sought to enable the “creamy layer” among OBCs to benefit from reservations in admission to central institutes of higher learning like the IITs.
This Bill also sought to provide for reservation, by statute, in admission to Scheduled Castes and Scheduled Tribes in higher educational institutes established, maintained or aided by the central government.
But before that happens, the government will have to reckon with the creamy layer concept among all reserved groups, ignoring which it would seem to be pursuing an affirmative action programme that is less than fair.
The draft legislation was introduced in Parliament in the last leg of the Monsoon Session and is under consideration of the parliamentary standing committee that met on Wednesday.
Another quota legislation that could get impacted due to Thursday’s decision is the Bill to give statutory backing to reservation for OBC, SC and STs in government recruitment. In keeping with the 1993 judgment, the government had incorporated the concept of creamy layer in OBC recruitment in the original Bill.
The parliamentary standing committee that approved this draft legislation, however, wanted the government to remove this clause. It was argued that the Constitution was silent on the concept of creamy layer. Caught in a bind, the government had last year referred its recommendations to the Group of Ministers for a decision.
It is understood that this GoM has not met even once on this subject. Officials at DoPT suggest the government apparently was waiting for the OBC creamy layer issue in educational institutions to be settled before taking a view on the job reservations law.