Advocate Sarmila Shrestha, who is sub-secretary of the Supreme Court Bar Association, says that the Supreme Court's directive to the government to exclude "creamy layer" from the reservation was not only against the constitutional guarantee, but also an expression of prejudice against reservation. She said while the constitution talked of ensuring that communities and groups that suffered discrimination at the hands of one dominant group (Khas Arya) had access to the government's decision-making process, the SC wrongly made it a class or the rich versus the poor issue.

"Article 42 ensures proportional inclusion of sexual minorities and people with disabilities.

Can the class-based reservation ensure the rights of these categories of people?" she wondered.

"The SC's argument that one person should not be given reservation benefit more than once is wrong. If the state wants to ensure marginalised communities' access to the decision-making process, then how can marginalised communities reach that process if they cannot get reservation for master's level course?" said Shrestha.

She said the SC concluded without any verified data that reservation could lower the quality of service and affect competence. "How can the SC reach such conclusions without any data to prove it? How many people who have availed of reservation have failed to deliver service?" Shrestha asked.

She said the term creamy layer applied to one dominant group that had enjoyed patronage of the state for centuries and continued to do that even today.

"Reservation has ensured small percentage of representation of marginalised communities and groups, but even today the same Khas Arya group is overwhelmingly represented in all state organs, but the court has not taken this into account," she argued.

A version of this article appears in the print on August 13 2021, of The Himalayan Times.