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DAILY NEWS ANALYSIS
25 December, 2020
5 Min Read
GS-Paper-2 Reservation and Creamy layer issue (Mains-I.V)
Context: The Supreme Court has recently ruled that the states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.
What has the court said?
Constitutional basis for reservations- Article 335:
Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field.
Need: Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.
Significance:
The proviso is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states. It also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.
Indra Sawhney vs Union of India and M Nagraj case:
In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.
It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment. It also ruled that the creamy layer can be and must be excluded.
Source: TH
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