Which creamy
layer are we talking about when there is just one Secretary from the
Scheduled Castes in the Central government?
PS Krishnan
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PS
Krishnan |
After a gap of many
years a Balmiki boy, the son of a Group ii Scheduled Caste (SC) officer,
has made it to the recent batch of the Indian Administrative Service.
This flowering in a blue moon would have been nipped in the bud in case
Group ii SC officers’ children were made ineligible for reservation
by applying the ‘creamy layer’ concept.
Of the hundred-odd
secretaries in the Government of India, there is only one from the SCs,
which is even less than what it was 10 years ago, and only two from
the Scheduled Tribes (ST). At present when no SC or ST is excluded as
creamy layer, the posts reserved for them — 15 percent
and 7.5 percent respectively at the Centre — are far from being
filled in Group a and b posts even after about six decades. The number
of ST employees is below the quota even in Groups c and d. Excluding
some as creamy layer will only further reduce the present below-par
SC and ST numbers in government jobs, in violation of the basic constitutional
principles of Equality, Social Equality, Social Justice and Reservations.
The idea of Socially
Advanced Persons/Sections (SAPS), popularly known as the creamy layer,
can conceptually arise only in respect of castes/communities identified
on the basis of social backwardness, viz the Socially and Educationally
Backward Classes (SEBDC), better known as the Other Backward Classes
(OBCs). SCs have been identified not on the basis of social backwardness
but something much more degrading — ‘Untouchability’.
The creamy layer concept cannot be applied to those whose marker is
not social backwardness in the first place. The transition required
for SCs is from untouchability to non-untouchability, not from social
backwardness to social advancement. Given that even SC civil servants
experience untouchability, that process is far from over. Similarly,
STs have been identified on the basis of tribal ethnicity and distinct
cultural traits, not social backwardness.
The majority judgement
in the Indra Sawhney (Mandal) case has described the inegalitarian “four-tier
(chaturvarnya) system” of Indian society, by which “the
outcastes (Panchamas), the lowliest” and the Sudras, also lowly,
“though certainly better than the Panchamas,” were left
at great disadvantage. The judgement read, “The lowliness attached
to them (Sudras and Panchamas) by virtue of their birth in these castes
is unconnected with their deeds. There was to be no deliverance from
this social stigma, except perhaps death. They were condemned to be
inferior. All lowly, menial and unsavoury occupations were assigned
to them — this was a phenomenon peculiar to this country.”
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The transition required
for the SCs is from untouchability to non-untouchability, not from social backwardness to social advancement
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The SCs are the
Panchamas of old. There is no dearth of statistics and data of the continuing
deprivation, humiliation and exploitation of the SCs even today. From
my experience of over 50 years all over India, I can say that untouchability
continues to be virulent to this day, often culminating in inhuman atrocities.
Three news-reports and other reports in October alone (in Kadkol village
in Karnataka’s Bijapur District, Kherlanji village in Maharashtra’s
Bhandara district, and in Punjab’s Mansa village) describe the
infliction of gang rapes, massacres, social and economic boycott on
SCs.
We must look at
the history of the advancement of the upper castes for a contextual
look for any debate on reservations and the creamy layer. Attracted
by the prospect of employment under the British, the upper castes began
to avail themselves of English education from the mid-19th Century.
Their standards of education then were nowhere near their standards
today. The first two Indian graduates, including Bankim Chandra Chatterjee,
had to be given grace marks to enable them to pass. Thereafter, from
generation to generation they progressed, each generation standing on
the shoulder of the previous one, and that is how they have risen to
their present level of eminence. Simultaneously, by collective force
they prevented/delayed the entry of lower castes into even primary schools.
The caste-based monopoly thus built up was dented when, from 1902 to
1935, reservations were introduced in the Presidencies and princely
states for Backward Classes and SCs, and later on all-India basis in
the Constitution in 1950.
The process by
which the upper castes progressed has now to be made available in full
without impediment for the SCs, the STs as well as the OBCs. Reservations
are an instrument to enable them to rise to the level of today’s
upper castes. To prematurely interrupt this process with new impediments
would militate against the achievement of the Constitutional goal of
Social Justice, to bring about Equality in all fields and at all levels.
Reservations are thus part of the basic structure of the Constitution.
It must be remembered that we are talking here about the fundamental
rights of about 70 percent of India’s population and, through
their full development, India’s optimal progress.
The judgement of
a five-member Supreme Court bench on October 19, 2006 on the writ petitions
of M. Nagaraj and others focused on the validity of the Constitutional
amendment that restored reservations to SCs and STs in promotion. The
judgement was understood by almost all of the media, civil society and
political circles as the first ever judicial direction to exclude the
creamy layer from the ambit of reservation for SCs and STs in government
jobs, in both recruitment and promotion.
The concept of
excluding the creamy layer was first expounded by a nine-member Constitutional
bench of the Supreme Court in 1992 in the Indra Sawhney (Mandal) case
pertaining to reservation for the OBCs in Central government employment,
in which it laid down that “this discussion is confined to the
OBCs and has no relevance in the case of STs and SCs”. It directed
that “the Government of India shall specify the bases to exclude
socially advanced persons/sections (creamy layer) from OBCs”.
It is thus clear
that according to the nine-member Constitution bench, the creamy layer
concept does not apply to SCs and STs. A five-member bench of the court,
as in the M. Nagaraj case, cannot overrule the judgement of a larger
bench and cannot extend the creamy layer-based rule of exclusion to
SCs and STs. The Nagaraj judgement rightly says that “we are bound
by the decision in Indra Sawhney”, which applies to this too.
There are two voices
partly or wholly differing from the predominant understanding of the
import of Nagaraj. Writing in The Indian Express, Pratap Bhanu Mehta
has said that the exclusion of the creamy layer from reservation for
SCs and STs applied only to promotion and not to recruitment. More significantly,
KV Viswanathan has written in The Hindu, “In the judgement in
the Nagaraj case, it has not even been remotely suggested that the concept
of creamy layer should apply to the SC.” He has drawn support
from judgements in the EV Chinnaiah case (2005) and Mandal cases.
It may be useful
here to quote from the Nagaraj judgement: “The State is not bound
to make reservation for SC/ST in matter of promotions. However if they
wish to exercise their discretion and make such provision, the State
has to collect quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment in addition
to compliance of Article 335. It is made clear that even if the State
has compelling reason, as stated above, the State will have to see that
its reservation provision does not lead to excessiveness so as to breach
the ceiling limit of 50 percent or obliterate the creamy layer or extend
the reservation indefinitely”.
There is room for
the fear that this wording and context will enable anti-reservationists
among the implementing authorities to go by the predominant interpretation
(rather than Viswanathan’s) and issue orders imposing the concept
of the creamy layer on SCs and STs. A precedent is the way in which
a judgement on reservation in promotions in 1995 in Punjab was grossly
misunderstood/misinterpreted, and the reservation roster was revised
in 1997 to the disadvantage of the SCs and STs.
In view of this,
in case the intention of the Supreme Court in the Nagaraj case and the
correct import of that judgement is not to prescribe the exclusion of
creamy layer from reservation for SCs and STs, I feel it is desirable
that this is authoritatively clarified at the earliest. The filing of
a review petition by one of the parties would be a long drawn-out affair.
I have the greatest respect for the Supreme Court and its crucial position
in strengthening the people’s confidence in Constitutional governance.
To quickly terminate the raging controversy, it is respectfully submitted
that the Supreme Court may like to consider undertaking a suo motu review,
which can be done expeditiously, with the assistance of a fully knowledgeable
amicus curiae, and remove the misunderstanding (if the predominant interpretation
is a misunderstanding) and clarify that there is no direction in the
Nagaraj judgement to apply the creamy layer concept to SCs and STs.
The Supreme Court
has a history of making creative innovations in the interest of justice.
A suo motu review could be another, using the opportunity for clarifications
on certain other points too.
Krishnan advises
the HRD ministry on reservations. These are his personal views
