NEW DELHI: If the Supreme Court’s judgment extending ‘creamy layer’ to Scheduled Castes and Tribes has landed the NDA government in a quandary, it has the inadvertent hand of its arch-rival Congress.
When the apex court delivered the Nagaraj judgment in 2006, its unprecedented reference to ‘creamy layer’ in the context of Dalits touched off a furore. The champions of social justice sought redress, ranging from an appeal in the court to a legislation to overturn the judgment to buffering existing
Dalit laws from judicial review by putting them in the 9th Schedule.
But none of it happened. Or, was required. A group of ministers headed by then foreign minister
Pranab Mukherjee felt the Supreme Court’s view extending
creamy layer to SCs/STs came in a case quite unrelated to the subject.
It referred the issue to then attorney general Milon Banerjee for his opinion.
Banerjee told the Centre that the apex court’s views were “obiter dicta” — an observation which is not part of the judgment. He also observed that the nine-judge Indira Sawhney judgment had excluded SCs/STs from a discussion on ‘creamy layer’ and a smaller bench could not overturn that judgment.
While the opinion set the controversy to rest and the government washed its hands of the matter, many felt the court could surprise the Centre and Dalits by clarifying its judgment and contradicting the AG’s view at a later date.
The contentious issue continued to gain momentum among groups eager for exclusionary concepts like ‘creamy layer’ in reservations for Dalits in recruitments and promotions.
As the Nagaraj judgment introduced a three-point criteria — data on backwardness, inadequacy of representation and efficiency — for reservation in promotions for SCs/STs, promotion quota came to a grinding halt across states.
The controversy was bound to go in appeal and the unsettled subject of ‘creamy layer’, paused only by a law officer’s interpretation, too was set to come up for discussion.
Crucially, the UPA unsuccessfully brought a constitution amendment bill in Parliament to undo the Nagaraj judgment’s prescription of three prerequisites for promotion quota. However, after the AG’s opinion, the ‘creamy layer’ issue was not touched.
Experts and social justice proponents feel if the subject was dealt with then or the Supreme Court had clarified the issue a few years ago, it may have been settled without much controversy.
The passage of time between the UPA regime and the NDA government has altered the ground realities.
During the UPA years, Dalit politics was still on the ascendant without a countervailing movement.
However, the emergence of upper caste agitations, as on view in
Madhya Pradesh and
Rajasthan, have made it difficult to legislate in favour of Dalits without a political backlash.
