The Supreme Court has, time and again, emphasised that courts are bound by precedent. Yet, in the Nagaraj case, the five-judge Bench set aside an earlier Supreme Court ruling in the Indra Sawhney case in which the nine-judge Constitutional Bench had emphasised that “the test or requirement of social and educational backwardness cannot be applied to SCs and STs who indubitably fall within the expression ‘backward class of citizens’”. This principle has been ignored in the Nagaraj case and the ‘creamy layer’ among SCs/STs debarred from the benefits of reservation, without any justification for the change in stance. Significantly, neither judgment has clarified whether the ‘creamy layer’ principle will apply only to promotions of SCs/STs or also at the time of their recruitment. Any court can cite these judgments and strike down future recruitments that include the ‘creamy layer’ on the irrefutable logic that the principle must apply uniformly to recruitment and promotions.
Even while observing that social justice is an overarching principle at the pinnacle of Constitutional values, the two judgments have viewed the issue of reservation in purely economic terms by invoking the issue of ‘creamy layer’. This argument insidiously obfuscates the terrible damage that social disabilities have caused the Dalits. Everyone knows that if you do not have the means, neither health nor a meaningful education or a white-collar job is available to you. It is utopian to believe that the Dalits from the bastisare equipped to compete for the IAS or PCS. Elimination of the creamy layer would result in Dalits not qualifying in sufficient number for the seats earmarked for them. Even today, although IITs have reservation at the entry level of assistant professor, the actual representation of SCs/STs in these premier institutes is less than 4 percent. Social scientists have attributed this phenomenon to their depressed socioeconomic position and consequent educational backwardness.
THERE IS another problem in implementing the Supreme Court order regarding ‘backwardness’. The scheme could lead to reservation within reservation. For instance, an SC officer may be the son of a rich farmer, whereas another SC officer may pass the test of backwardness on account of his humble origins. Will the claims of the senior SC officer from the ‘creamy layer’ be overlooked and his junior promoted? Clearly, the Supreme Court’s decision will result in endless litigation on the grounds that the original service conditions have been altered. Moreover, can anyone who is appointed an officer, with its attendant salary and perks, be considered backward?
A plainly irrational, wicked belief in Dalit inferiority is embedded in our culture
The Supreme Court’s insistence on the State proving “inadequacy of representation” seems reasonable, but there is a sting in the tail. The court has gratuitously held the cadre as the unit for assessing adequacy of representation. This implies that if SCs are 15 percent and SCs are 7.5 percent of the cadre strength, there is adequacy of representation. Consequently, the present absence of the SCs/STs from the upper echelons of bureaucracy will continue.
By raising the issue of “efficiency in administration”, the Supreme Court has implied that reservations would compromise administrative efficiency. There is the unconscious stereotyping of Dalits as unintelligent and incompetent. As a rule, every government official, not just the Dalit, is required to pass the test of efficiency in his daily functioning. When a panel is drawn up for promotion, the competence of each individual is assessed on the basis of certain norms, including efficiency. But the Supreme Court specifically requires reserved candidates to prove their credentials, which is bound to adversely impact their career prospects. An individual’s professional worth is often decided on considerations unrelated to merit. The annual confidential report has been used with devastating effect to keep Dalits from the higher echelons. For promotions to the level of additional secretary and above, an officer must be graded ‘outstanding’ in at least two of the preceding five years, and obtain a minimum of ‘very good’ rating in the other three years.
A large number of Dalit Group A officers do not have the requisite grades to merit promotion. The confidential report of one particularly bright Dalit officer contained the following entry in the column relating to initiative: “He (Dalit officer) has an extremely competent set of assistants who have ensured prompt disposal of the work.” Predictably, the ‘average’ rating was enough to ensure that he did not qualify for promotion. In a caste-conscious environment, assessing a Dalit as ‘outstanding’ is often considered blasphemy.
The court ruling on efficiency as a salient requirement for reservation in promotions has been joyously greeted by anti-reservationists who have traditionally used the phony pennant of merit as a stick to vilify the Dalits, although in bureaucracy, merit has little to do with “making it”. Recruitment and promotion policies are supposedly based on impersonal job criteria, but the actual practices are guided by personal loyalty, nepotism and other extraneous factors.