1. Supreme Court lays bare the limits of using economic criterion to determine reservation eligibility

Context: The Supreme Court on Tuesday held that the government cannot deny reservation to a person belonging to a backward community solely on the ground that he or she is rich.

  • The court was hearing a petition challenging two notifications issued by by the Haryana government sub-classifying backward classes solely on economic basis while fixing the criteria for creamy layer.
  • The notifications, issued under the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act of 2016, said children of persons having “gross annual income” of up to ₹3 lakh annually would get the benefit of reservation in services and admission in educational institutions. The remaining quota would go to those from backward families, which earn between₹3 lakh and ₹6 lakh per annum.
  • The sections earning over ₹6 lakh annually were considered as ‘creamy layer’ under Section 5 of the 2016 Act.

Supreme court’s Judgement: The Supreme Court’s ruled that economic criterion alone cannot be used to classify a member of a Backward Class as belonging to the ‘creamy layer’. Social advancement, higher employment in government services, etc, played an equal role in deciding whether such a person belonged to the creamy layer and could be denied quota benefits, it said.

  • This adds an interesting nuance to the jurisprudence of affirmative action.
  • The court directed the State to issue fresh notifications in three months. It did not, however, disturb admissions to educational institutions and appointments to State government services made on the basis of the two notifications.
  • It was contrary to Indra Sawhney Judement  that had spoken of different criteria, including being the children of high-ranking constitutional functionaries, employees of a certain rank in the Union and State governments, those affluent enough to employ others, or with significant property and agricultural holdings and an identified annual income.
  • The Court has found that the Haryana criterion based on income alone was contrary to its own law that specifies that the creamy layer would be identified through social, economic and other factors.

History of assessing backwardness:

  • Initially: The Constitution of India mentioned backwardness as primarily related to the inadequate social and educational advancement of a group.
  • The Constitution permitted special provisions in favour of ‘socially and educationally backward classes’ through the first Amendment, as well as reservation in government employment for ‘backward classes’.
  • Indra Sawhney (1992): introduced the concept of ‘creamy layer’ — a term describing the well-off among the Backward Classes. It declared that this section should be denied reservation benefits. The original idea of including groups based on social backwardness was matched by a parallel exercise to exclude the more advanced among them. This position has crystallised into law.
  • Judicial discourse introduced a 50% ceiling and the creamy layer concept as constitutional limitations on reservation benefits.
  • However, the 103rd Constitution Amendment, by which 10% reservation for the ‘economically weaker sections’ (EWS) has been introduced, has significantly altered the affirmative action programme.
  • The Union government has unreservedly accepted the ‘creamy layer’ rule, and formulated criteria for identifying those who fall under the category. With the current income ceiling being ₹8 lakh per annum for availing of both OBC and EWS quotas, there is a strange and questionable balance between the OBC and EWS segments in terms of eligibility, even though the size of the respective quotas vary.

Arguments for Economic criteria:

  • Many support the formulation that once caste is accepted as a basis for determining backwardness, there is nothing wrong in excluding the affluent among the eligible castes.
  • The proponents of economic criteria feel that genuine social justice means reservation benefits should be restricted to the poorer among the backward;

Opponents: While sections championing Backward Class assertion disfavour any dilution of the social basis for reservation.

2. Technology can be a game changer, but it is not a panacea for the ills plaguing courts

Context :  e-filing: In May 2020, the Supreme Court also introduced another innovation: a new system of e-filing and artificial intelligence-enabled referencing. This was meant to herald efficiency, transparency and access to court delivery services for every user. But solely relying solely on digital transformation may not be a sound idea. It could result in exclusion of a large section of the population on account of the enumerated shortfalls.

A Similar comparison:

  • In early June, while dealing with issues arising in connection with the CoWIN portal, the Supreme Court pointed out some of the major impediments in the delivery of vaccines to the people at large. They were:
    • inadequate digital literacy across the country,
    • inadequate digital penetration, and
    • serious issues of bandwidth and connectivity, particularly in remote and inaccessible regions.
  • Despite the ambition of bringing the benefits of vaccination to every human being in the country, the policy was falling short of its goal because of the inherent difficulties pointed out. The premise in the observations of the court was that relying solely on digital transformation may not be a sound idea.  Soon after this, the government said that CoWIN registration would no longer be mandatory for vaccination.

Ills of Judiciary:

  1. These include the massive backlog of cases
  2. unacceptable levels of judicial vacancies across the country at all levels.
  1. Opacity in Appointment: No information about the appointments in Judiciary.
  2. Case Listing Practices: Number of cases listed per day often exceed over 100 matter/judge/day.
  3. Court Infrastructure: We spend just 0.09% of GDP to maintain Judicial infrastructure.
  4. Inadequate support staff & research facilities for judges.
  5. Number of cases: Government The largest Litigant.

Steps Required:

  1. Deep house cleaning is required in each court and there also needs to be an outreach to all litigants in a cost-effective, convenient and efficient manner. Perhaps, this could be the opportune time for making lasting changes that could transform the creaking justice delivery system in India. But an over-reliance on technology is not a panacea to all the ills plaguing the courts and if done without forethought, could become counterproductive.
  2. Auditing the system: It would be imperative to resort to performance audits and sandboxing measures to carefully understand and gauge the potential and risks.
    • Evidence shows that despite considerable investment to digitalise judicial infrastructure and administration, beginning with Phase 1 of the eCourts in 2007, the judiciary’s performance during the pandemic period has left a lot to be desired.
    • In absolute terms, data show that pendency reached an all-time high during this year of virtual functioning of the courts. In the case of district courts, pendency rose sharply by 18.2% between December 31, 2019 and December 31, 2020, according to the National Judicial Data Grid. Across the 25 High Courts, pendency witnessed its sharpest increase of 20.4% in 2019-2020.This, of course, does not include all those matters that were never filed.
  3. Evidence-based rational approach: For instance, we need to study and understand why video conferencing in criminal cases has neither shortened trials nor reduced the number of people awaiting trial. Similarly, we need to address uneven digital access: while mobile phones are widely owned and used, access to the Internet remains limited to urban users. Lawyers in semi-urban and rural districts find online hearings challenging, mostly due to connectivity issues and an unfamiliarity with this way of working.
  4. Filling vacancies: The India Justice Report 2020 pegs vacancies in the High Court at 38% (2018-19) and in lower courts at 22% for the same period. More than four out of every 10 posts of High Court judges remain vacant as on August 1 this year.

Way Forward:

  • If deployed with adequate data-based planning and safeguards, technological tools can be a game changer. However, technology is not per se value-neutral — that is, it is not immune to biases — and therefore, it must be properly evaluated for us to see whether it works to increase the power imbalance between citizens and the state or whether it affirms and furthers citizens’ rights.
  • Open court is a cardinal principle in the delivery of justice. The question of public access cannot be pushed to the sidelines but must be a central consideration. The shortage of technical infrastructure has too often meant that access to online hearings is curtailed. This ad hoc deviation cannot be allowed to become a habit of convenience.

Conclusion: The latest Vision Document for Phase III of the e-Courts Project seeks to address the judiciary’s digital deprivation. It envisages an infrastructure for the judicial system that is ‘natively digital’ and reflects the effect that the pandemic has had on India’s judicial timeline and thinking. However, we must keep in mind that there will always be an inherent resistance to change, whether for good or bad. Therefore, two preconditions need to be addressed: adequate trained manpower, and tailoring systems to the specifications and contexts that we require. This is more a matter of mindset — not just of judges, but of litigants and lawyers as well; and is linked closely to trust in digital interventions.


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