Lawyers and rights activists say that the Supreme Court's directive to the government to take the people of creamy layer out of reservation ambit and to make reservation a class or poverty issue is against the constitutional guarantee of proportional inclusion.

The directive issued by a division bench of justices Bishwombhar Shrestha and Ananda Mohan Bhattarai was in response to a case filed by Binay Panjiyar against the government seeking quota in an MD (doctor of medicine) course for social groups that qualify for reservation.

Senior Advocate Surendra Kumar Mahto, who had pleaded on behalf of the petitioner, said the principle of proportional inclusion was ensured in the constitution to compensate Dalits, deprived communities, and groups who had suffered discrimination and deprivation for hundreds of years. According to him, proportional inclusion in the government organs and reflection of diversity in educational institutions were imperative to promote assimilation between diverse groups and to strengthen the feeling of national unity and ownership among all communities and groups.

"All the cases from other countries that the SC has cited in its order have favourable views about affirmative action except the Indian one. Indian Supreme Court's verdict in response to Indra Sawhney's case talks of excluding the creamy layer from reservation. Our SC cited cases of various countries but stuck to one negative verdict delivered in Sawhney's case," Mahto added.

Mahto said the SC wrongly interpreted that reservation should be a class or poverty issue.

"Such an argument may be deemed appropriate in homogeneous countries but not in heterogeneous countries like ours," he argued.

The argument that economic empowerment was the panacea for inclusion is wrong because Marwari community is economically ahead yet the community is weak in terms of its access to political and administrative opportunities, Mahto added.

"One can argue that among the social groups that qualify for reservation, the first priority should be given to the poor people of that group, but in case the quota seats are not filled, quota of unfulfilled social groups should be available to other people of the same group. However, if even after that the quota remains unfulfilled, the quota should be available for the same group the following year and those seats should never be merged with general quota," Mahto argued.

Chief Attorney of Province 2 Dipendra Jha said inclusion was not a rich versus the poor issue, but was about fair representation of all communities and regions. He said if it was made just the rich versus poor issue, then the dominant group that had enjoyed patronage of the state, would again enjoy privileges and benefits at the cost of other groups.

Former member of the National Human Rights Commission Mohna Ansari said the constitution had recognised the fact that some social and cultural groups had been discriminated against and excluded from the state organs.

"The state was supposed to make progressive laws and policies to empower marginalised communities as per the spirit of the constitution. There is national consensus on proportional inclusion, but the court appears to have gone against the spirit of the constitution and national consensus," Ansari added.

She said courts that were expected to expand the citizens' and marginalised communities' rights had ironically restricted their rights on crucial issues. "In 1998, the SC restricted the use of local language in local bodies.

Recently, the SC gave progressive verdict in political cases denouncing the unveiling of new fiscal budget, issuing of ordinance, and expansion of the Cabinet by caretaker PM, but it gave restrictive verdict in the citizenship amendment case. The court's verdict in the reservation case is similar to those restrictive verdicts," Ansari added.

Stating that the judiciary had a tendency of showing unnecessary judicial activism on issues of social justice, Ansari said the Supreme Court's verdict might block the social transformation that the proportional inclusion provision aimed to achieve.

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