Haryana assembly: SC ‘quota split’ bill allows review of ‘creamy layer’

Empowers govt to examine the list of 36 ‘deprived scheduled castes’ for exclusion or inclusion in new category

The controversial piece of legislation to bifurcate 20% seats reserved for scheduled castes (SCs) in higher education institutions, passed by the Haryana assembly on Wednesday, has made a provision for periodic review of the ‘deprived scheduled castes’ for the purpose of exclusion or inclusion in the new category.

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The legislation provides that half of the 20% seats in the institutions will be reserved for the new category of 36 ‘deprived scheduled castes’.

The government, however, is empowered to review the list of 36 ‘deprived scheduled castes’ on the basis of such criteria, as may be prescribed, and on the expiry of 10 years from the day the law comes into force.

The review will also be held every succeeding period of five years thereafter, reads the Section 10 of Haryana Scheduled Castes (Reservation in Admission in Educational Institutions) Bill.

The bill is, however, unlikely to withstand legal scrutiny in view of the Supreme Court order in EV Chinnaiah case of 2004. A similar bifurcation of scheduled caste quota done by former chief minister Bhajan Lal in 1994 was struck down by the Punjab and Haryana High Court quoting Chinnaiah case in 2006.

While the statement of objects and reasons (SOR) of the bill said that the state government will conduct a periodical review to verify the backwardness of each of the deprived castes and include or exclude such castes as may qualify the ‘creamy layer criteria’, senior officials said that word ‘creamy layer’ in the SOR should not be construed to denote exclusion of any scheduled caste from the scheme of reservation.

“The word ‘creamy layer’ in the SOR has been used for the purpose of exclusion or inclusion only in the newly created deprived scheduled caste list,” said a top official privy to the development.

Apex court on creamy layer for scheduled castes

The Supreme Court, though, had in 2018 judgment said that whole object of reservation is to see that backward classes of citizens move forward so that they may march hand-in-hand with other citizens on an equal basis.

“This will not be possible if only the creamy layer within that class bagged all the coveted jobs in the public sector and perpetuated themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applied the creamy layer principle to scheduled castes and tribes, it does not in any manner tinker with the Presidential list under Articles 341 or 342 of the Constitution. The caste or group or subgroup named in the said list continues exactly as before. It is only those persons within that group or subgroup, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or subgroup in the Presidential lists continue to be within those lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that subgroup is not given the benefit of such reservation,” the apex court had held.