Bitter sweet

Anti-reservation demonstrators after the verdict, outside the Supreme Court on April 10. The cream of the cream are to be found in the masculine members of the so-called higher castes, who have captured every area of the public domain education, business, public employment, entrepreneurship, and even the judiciary.-MANVENDER VASHIST/PTI

The "creamy layer" needs to be defined, perhaps even renamed.

Therefore, Jew, Though justice be thy plea, consider this, That in the course of justice none of us Should see salvation.

Portia in The Merchant of Venice (Shakespeare)

THESE words are likely to come to the mind in the context of the quota-justice administered by the Supreme Court. Though praised as a balancing act, the verdict makes one wonder whether giving each his pound of flesh would result in constitutional salvation.

Despite the laudable effort by the Judges, there are complaints from different quarters. It is true that the court had a formidable task. It had to wrestle with the rub and nub of the reservation controversy. Apparent contradictions, between the mandate of the government in pursuance of the Directive Principles of State Policy and the fundamental rights of citizens, had to be reconciled. Moreover, the confrontation between Parliament and the Supreme Court over reservation for disadvantaged classes was a glaring issue.

The parliamentary exorcism of ghosts arising from Supreme Court decisions is not new in India. The very first amendment, in 1951, was an attempt to exorcise the ghost of the Champakam case, in which the court struck down the Communal G.O. of the State of Madras. This related to reservation of seats for castes and communities in admissions to educational institutions. The courts decision created a situation that made Parliament insert a fourth clause in Article 15 providing for special provisions for the advancement of any socially and educationally backward class of citizens, or for the Scheduled Castes and the Scheduled Tribes. Incidentally, Justice Dalveer Bhandaris observation explicitly frowns upon this amendment. In para 251 he states: In conclusion, the First Parliament, by enacting Article 15(4), deviated from the original Framers intent. They passed an amendment that strengthens, rather than weakens casteism.

The amendment under challenge in the present Thakur case was an attempt by Parliament to exorcise another ghost born from the Inamdar judgment. In an apparent attempt to clarify and explain an 11-judge verdict in the T.M.A. Pai case, a seven-Judge Bench in August 2005 prohibited reservation for Backward Classes in private unaided professional colleges. This necessitated the 93rd Constitution Amendment in early 2006, introducing Clause (5) in Article 15, providing for special provisions for the advancement of socially and educationally backward of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions, whether aided or unaided by the state, other than minority educational institutions . It was in pursuance of this clause that the statute under challenge was enacted.

Now the Inamdar ghost stands exorcised, but only partially and thereby producing more ghosts. The partial failure was mainly due to the fact that Parliament had left the ghost of the creamy layer unexorcised while attempting to get out of its spell by simple supplications and sacrifices. Now the government must either swallow the bitter pill of the creamy layer, to the dissatisfaction of large sections of the people and a number of political parties, or perform another feat of parliamentary exorcism.

With regard to the creamy layer, the Indian judiciary has missed the trees for the wood. The judiciarys intention appears to be well founded and based on a sound constitutional principle of exclusion of the over-included. This principle is already contained in the Constitution as reflected in Articles 341 and 342. However, this power is vested with Parliament.

In the case of the S.Cs and the S.Ts, Parliament has the power to exclude from the list of S.Cs and S.Ts not only any caste or tribe but also any part of or any group within the caste or tribe. Exclusion from the Backward Classes list can be made in the same way. But it is very clear that the Constitution does not contemplate exclusion of individuals from a particular group for the purpose of group rights. The exclusion of individuals for identification of Backward Classes is a contradiction in terms. Exclusion will be permissible for an identifiable section, part, or group of a socially and educationally Backward Class.

Similarly, the test for exclusion should be relatable to the test for inclusion. When inclusion applies to a social group, that is, caste coupled with social and educational backwardness, the exclusionary criteria should apply to caste coupled with the criteria of social and educational backwardness.

It is not reasonable, on the face of it, for the court to say that inclusion should be on the principle of caste coupled with educational and social backwardness but exclusion should be based on economic criteria, affluence, trade, business, profession, occupation, employment or holding of governmental and other offices. The concept of creamy layer needs to be redefined and perhaps even renamed. There is no proper definition of the term and the concept.

A concept can be put into operation only with, at the least, an attempted definition. There should be some deliberation about the definition. Defined in legal terms, a concept is the realm of legislation. In the case of creamy layer, it is the judiciary that has coined the term and is attempting a description.

The creamy-layer concept is not relatable to the concepts or categories relevant in dealing with matters of identification of groups or classes. Who are the creamy layers of the Indian society? The cream of the cream are to be found in the masculine members of the so-called higher castes.

They have captured every area of the public domain education, business, public employment, entrepreneurship, and even the judiciary. It is interesting to note that the National Commission for the Review of the Working of the Constitution, after much study and survey, found that in higher judiciary, the representation of the Scheduled Castes, Scheduled Tribes and Other Backward Classes is inadequate. Out of 610 judges in the various High Courts, there are about 20 judges belonging to the Scheduled Castes and Scheduled Tribes.

The commission also noticed that there are enough candidates belonging to these groups with the required qualification and the integrity, character and acumen that Judges of Supreme Court and the High Courts must have. Still, these creamy layers are unable to find representation.

Historically, it has been found that the target of the creamy layers of the dominant class is often the so-called creamy layer of the non-dominant and suppressed classes. Thus, in a contemplated casteless society, only the dominant castes would have a place. The creamy layer theory is a deceptive Trojan horse in the war between the oppressing castes and the oppressed castes.

In this war, even if some sections of the oppressed castes survive, these would belong to the non-creamy layers and would, therefore, pose no threat to the dominant castes.

With regard to the challenge to Article 15(5), over the way it makes the principle of reservation applicable to private educational institutions, four out of the five Judges on the Constitution Bench ruled that the issue did not arise in the present case and hence a decision or an opinion was not warranted.

However, Justice Bhandari ruled that the provision would be bad to the extent that it had been struck down as violative of the basic structure of the Constitution and thus was beyond the amending power of Parliament. Some legal experts have reportedly voiced an opinion that Justice Bhandaris ruling would be binding on the government. Since the other four Judges refused to give an opinion, the argument seems to run, the only opinion, by Justice Bhandari, would be deemed the majority opinion and treated as the decision of the court and binding on all concerned.

This view does not appear to be correct. The four Judges who refused to give an opinion on this issue were not merely silent. They clearly stated that the issue did not arise in the present case and, therefore, they were not making a decision and were keeping it open for an appropriate case. This is the majority view and it supersedes Justice Bhandaris opinion. Justice Bhandaris opinion cannot be binding.

On the face of it, the reasons given by Justice Bhandari to strike down Article 15(5) as annihilative of the fundamental right to pursue an occupation under Article 19(1)(g) do not respect judicial precedents and are not logical, either. It is well settled that a restriction in furtherance of a Directive Principle would be deemed reasonable and in the interest of the general public. Article 19 even permits a complete or partial monopoly by the state of any trade, business, industry or service.

Moreover, it is well settled that even a complete ban on the slaughter of bulls is not violative of Article 19(1)(g) if it is in furtherance of the Directive Principles of State Policy. This view was recently upheld by a Bench of seven Judges. Again, the Supreme Court recently upheld a ban on the slaughter of any animal during the Paryshan period and held that it was not violative of the rights of Muslim butchers or traders under Article 19(1)(g).

If this is correct in the case of Muslim traders, how can a provision reserving up to 50 per cent of seats for Backward Classes including S.Cs/S.Ts violate Article 19(1)(g), especially when such a provision is in furtherance of the mandate of Articles 46 and 38? There have been umpteen number of instances where the Supreme Court upheld similar restrictions on the rights of citizens to pursue their occupations.

From the move to exclude the creamy layer from reservation and from the doubts cast on the validity of reservation in unaided institutions, it appears that the war cry of the countrys real creamy layer would be the following:

Education for us, literacy for them;

Public Schools for our children, under the tree one-teacher schools for them;

English medium for us, vernacular for them;

Trained teachers for mine, para teachers for theirs;

Private institutions for our children, government institutions for them.

Professional colleges for ours, primary and secondary schools for theirs.

Maybe it is time to go back to the Buddha, to whom a learned man once said, The things you teach , sir, are not to be found in the Holy Scriptures.

Then put them in the Scriptures, said the Buddha.

After an embarrassed pause the man went on to say, May I be so bold as to suggest, sir, that some of the things you teach actually contradict the Holy Scriptures?

Then amend the Scriptures, said the Buddha.

M.P. Raju is a lawyer and author based in Delhi.