SC Proposed Creamy Layer for SC/ST, But Bombay HC Couldn’t Follow Existing Reservation Policy

Aside from following a separate upper age limit criterion for those belonging to the unreserved category and those from SC, ST, and OBC communities, the Bombay High Court has blatantly overlooked the reservation policy in the recruitment process.

Sukanya Shantha

Mumbai: On August 1, a seven-judge constitutional bench of the Supreme Court, led by Chief Justice of India D.Y. Chandrachud, permitted sub-classifications within the Scheduled Castes (SCs) and Scheduled Tribes (STs) for the implementation of the reservation policy in education and employment.

Additionally, four of the seven judges suggested applying the “creamy layer principle,” a concept previously applied only to the Other Backward Classes (OBCs) in India.

However, this suggestion to apply the creamy layer principle appears to be based on the presumption that states have flawlessly implemented the reservation policy, despite the absence of any empirical data.

This presumption can be challenged simply by examining recruitment data within the judiciary. Data on over 650 non-judicial positions at the Bombay High Court, obtained under the Right to Information Act, reveals that the judiciary itself has yet to set its house in order.

In an RTI application filed by Nagpur-based lawyer Ankit Thool, four separate queries were made. In addition to information on the total available positions, their distribution, and the positions filled, Thool also sought details on the implementation of the reservation policy in the recruitment of non-judicial staff across the four benches of the Bombay High Court—Bombay, Nagpur, Aurangabad, and Goa.

The Public Information Officer (PIO), Y.K. Rahangdale, who is also a deputy registrar of the Bombay High Court, stated that “no guidelines are available with this office for the implementation of caste-wise reservation.”

Once the data was made available under the RTI, Thool filed a complaint with the National Commission for Scheduled Castes (NCSC) in October last year. The Commission, on June 12 this year, ordered an inquiry into Thool’s application and issued a notice to the registrar of the Bombay High Court, seeking a response within 15 days. The Wire was unable to confirm if the High Court has responded to the Commission’s notice, as the 15-day deadline has passed.

The Wire also reviewed a few recent advertisements issued by the Bombay High Court to ascertain whether the court has indeed failed to follow the reservation policy. It was found that, aside from following a separate upper age limit criterion for those belonging to the unreserved category and those from SC, ST, and OBC communities, the Bombay High Court has blatantly overlooked the reservation policy in the recruitment process. In contrast, advertisements issued by other states around the same time, such as Madhya Pradesh, showed that vacancies were filled by following the reservation policy.

According to the information made available under the RTI, in the Group A category, 11 out of 82 positions are vacant; in Group B, there are 8 positions vacant out of the sanctioned strength of 55; under Group C, 45 out of the total 297 positions are yet to be filled and finally under Group D, 24 positions are vacant out of the total 220 positions.

The issue of reservation in the judiciary (for judicial positions) has been debated both inside and outside Parliament. Over the past decades, the central government has periodically urged states to identify suitable candidates from the poorly represented SC, ST, and OBC communities, and even women from the Bar, to be selected as judges in the High Courts. However, no state has seriously acted on these suggestions.

In the lower judiciary, where selections are made through state-level exams, the state government is mandated to ensure that the reservation policy is followed. As a result, judges belonging to marginalised caste identities are found in the lower judiciary.

However, the existing policy does not provide for reservation in the higher judiciary, resulting in the abysmal representation of individuals from SC, ST, and OBC communities in these higher courts.

Thool’s application, however, focuses on non-judicial posts in the High Court, ranging from personal assistants to librarians to stenographers. His application is part of a larger campaign spearheaded by Sanjay Thul, an assistant commissioner in the Central Goods and Services Tax department.

Thul told The Wire that similar applications were sent to different High Courts across the country. Thul describes the problem as “deep-seated.” A loosely formed group of anti-caste professionals, which includes both Thool and Thul, has submitted multiple RTIs.

“In some High Courts, there is at least a semblance of adherence to the existing reservation policies, but in the case of the Bombay and Delhi Courts, it is the worst,” Thul shared.

Thul also referenced a 10-year-old report by the NCSC, which advocates for the implementation of reservation in the judiciary. The commission, in addition to making a case for extending reservation in the judiciary, highlights the “dismal representation” of SCs and STs among court staff.

The commission relied on the Kariya Munda report, presented to Parliament in 2000, which pointed out that while most High Courts had at least partially implemented reservation, the Bombay and Delhi High Courts had failed to honour the constitutional provision of ensuring that the reservation policy is followed in recruitments.

One of the seven Supreme Court judges who advocated for the implementation of the creamy layer principle is Justice B.R. Gavai, who, before being elevated to the Supreme Court, served as a judge in the Bombay High Court.

“The judges should have simply tested the reservation policy within their own system. If Justice Gavai had closely examined his own court (the Bombay High Court, in this case), he would have first ensured the implementation of the reservation policy before seeking to divide the community into creamy and non-creamy layers,” Thul said.

Two years ago, a person named Vikas Ramesh Gour filed a public interest litigation before the Nagpur bench of the Bombay High Court highlighting the issue.

A two-judge bench comprising Justices Anil Pansare and Nitin Jamdar dismissed Gour’s petition, claiming that he didn’t have locus standi (or a legitimate interest) in bringing the issue before the court. The court even went on to levy a fine of Rs. 10,000 for raising the issue before the High Court.

Courtesy : The Wire

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