Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

With reference to its previous comments, the Committee notes with interest the information supplied in the Government's report for the period 1990-92, in particular the copy of the Supreme Court's decision of 16 November 1992 in Indira Sawhney and others v. Union of India and others.

1. This case concerns the elimination of discrimination in employment on the basis of social origin. The Committee had previously requested the Government to keep it informed of the implementation of the 1980 recommendation of the Mandal Commission to reserve 27 per cent of jobs in the public service for disadvantaged classes (as distinct from Scheduled Castes and Scheduled Tribes). The Government reports that the Mandal Commission Report was discussed in Parliament in 1982 and 1983 and action taken on this particular recommendation with the issuance of a Central Government Memorandum on 13 August 1990, which specifically ordered reservation of 27 per cent of the vacancies in government posts for the socially and educationally backward classes (SEBCs) and of a second Memorandum on 25 September 1991 amending the earlier one so as to allow preference to be given to candidates belonging to the poorer sections of the SEBCs. The challenge to the constitutionality of the 1990 Memorandum was not upheld by the Supreme Court. The Committee notes from the judgement that the reservation is to be put into operation except for the socially advanced persons, known as the "creamy layer" (an expert committee shall be established to specify the scope of the "creamy layer") and that a permanent statutory body shall be constituted to examine complaints concerning inclusion in the lists as other backward classes. The Court itself stated that an economic criterion can be adopted as an indicium for determining the "creamy layer".

2. The Committee notes from the Government's report that the expert committee to examine the exclusion of the "creamy layer" was duly constituted and submitted its report on 10 March 1993, which the Government accepted. According to the Government, further action towards making reservations in government service in accordance with the Supreme Court's decision is under way. The Committee requests the Government to inform it of the action taken to implement the Supreme Court's decision, including details on the expert committee's findings on the "creamy layer".

3. The Committee is addressing a direct request to the Government on other points.