Ambiguous verdict

A recent Supreme Court order seems to extend the `creamy layer' concept to Scheduled Castes and Scheduled Tribes.

V. VENKATESAN in New Delhi

EVEN as the government's move to introduce reservation for Other Backward Classes (OBCs) in higher educational institutions drew protests in much of North India last summer, there was no serious challenge to the policy of affirmative action in favour of Scheduled Castes (S.C.s) and Scheduled Tribes (S.T.s). The reason, obviously, was the perception that OBCs did not share the centuries of oppression accompanied by the stigma of untouchability suffered by people belonging to S.C.s and S.T.s. The reservation for S.C.s and S.T.s, therefore, has been seen as a part of the nation's commitment to uplift Dalits. No political or social group could espouse the dilution of this commitment openly. Thus, since the Supreme Court directed the government to exclude the creamy layer among OBCs in the Indra Sawhney case in 1992 from the ambit of reservation, there has been no corresponding demand to do so in the case of S.C.s and S.T.s.

On October 19, a Constitution Bench of the Supreme Court sought to tinker with this commitment. The Bench, comprising Justices Y.K. Sabharwal, K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, in its judgment in M. Nagaraj & Others vs. Union of India & Others, curiously concluded that the decision in the Indra Sawhney case with regard to the creamy layer among OBCs also applied to S.C.s and S.T.s. Ironically, the Bench reached this conclusion even though the Bench in the Indra Sawhney case - which was a nine-member Bench whose decision could not be rejected by a smaller Bench - had clearly spelt out that the concept of creamy layer would not apply to S.C.s and S.T.s. This is what the majority Judges in the Indra Sawhney case said towards the end in paragraph 86 of the judgment, as a measure of abundant caution, and put within parentheses, probably as an afterthought:

"(This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes)." The Bench in the M. Nagaraj case glossed over this crucial sentence.

The discussion in paragraph 86 of the judgment amply makes it clear that the majority Judges in the Indra Sawhney case did not intend to extend the concept of creamy layer to the S.C.s and S.T.s, because it was not necessary to do so. The petitioners in that case - who had challenged the V.P. Singh government's notification reserving 27 per cent of seats for OBCs in Central government jobs - had submitted that some members of the designated OBCs were highly advanced socially as well as economically and educationally. They submitted that they constituted the forward section of that particular backward class - as forward as any other forward class member - and that they were lapping up all the benefits of reservation meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons were by no means backward and with them a class could not be treated as backward, the petitioners argued.

The States of Bihar, Tamil Nadu and Kerala, along with other respondents, opposed this contention. They argued that once a class was identified as a backward class after applying the relevant criteria, including the economic one, it was not permissible to apply the economic criterion once again and sub-divide a backward class into two sub-categories.

To sustain their contention, the respondents relied on the observations of Justice Chinappa Reddy in an earlier case (Vasant Kumar, AIR, 1985, SC, page 1,495):

"... .One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunate among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layers amongst them on the same principle of merit on which the non-reserved seats are taken away by the top layers of society? How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?"

The majority Judges in the Indra Sawhney case, however, justified the concept of creamy layer for OBCs because they believed that it would help a proper and more appropriate identification of a backward class. They said: "The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under Clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class? In fact, such exclusion benefits the truly backward."

The Bench then considered the respondents' counter to this contention. The respondents argued that one swallow did not make a summer, and that merely because a few members of a caste or class became socially advanced, the class, caste as such did not cease to be backward. They pointed out that Article 16(4) aimed at group backwardness and not individual backwardness. The Bench agreed that Article 16(4) aimed at group backwardness but felt that exclusion of such socially advanced members would make the `class' a truly backward class and would more appropriately serve the purpose and object of Article 16(4).

In its direction to the government, the majority Judges in the Indra Sawhney case stated clearly: "We direct the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise of `creamy layer'. This shall be done as early as possible, but not exceeding four months. On such specification, persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression `backward class of citizens') for the purpose of Article 16(4)."

The discussion in paragraph 86 of the judgment amply makes it clear that the majority Judges in the Indra Sawhney case did not intend to extend the concept of creamy layer to S.C.s and S.T.s, because it was not necessary to do so. P.S. Krishnan, a member of the Expert Committee appointed by the P.V. Narasimha Rao government in 1993 to evolve the creamy layer criteria following the Indra Sawhney judgment, said: "The connecting link among S.C.s and S.T.s is not social backwardness, but untouchability. The Bench in the M. Nagaraj case apparently glossed over this stigma, and failed to distinguish them from the OBCs, while considering the concept of creamy layer." According to him, there may be "socially advanced" persons among S.C.s and the S.T.s, in terms of the creamy layer criteria applicable to OBCs, but they cannot be excluded from the protected group because they continue to suffer from the vice of untouchability, which has to be recognised as a characteristic distinct from that of mere social backwardness.

In the M. Nagaraj case, the issue of excluding the creamy layer among S.C.s and S.T.s did not arise. In this case, the Bench was hearing a challenge to the Constitutional validity of the 77th Amendment Act, 1995, the 81st and 82nd Amendment Acts, 2000 and the 85th Amendment Act, 2001. In the Indra Sawhney case, the Court had stated that reservation of appointments or posts under Article 16(4) was confined to initial appointment and could not extend to promotions.

Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Article 16(4) is an enabling provision for the state to reserve appointments or posts in favour of any backward class of citizens that, in the opinion of the state, is not adequately represented in the services under the state. The government was extending the benefit of reservation to S.C.s and S.T.s in promotions too under Article 16(4) until the Indra Sawhney judgment. The 77th Amendment to the Constitution was enacted to introduce Clause 4A in Article 16 (which was again amended in 2001 by the 85th Amendment).

Article 16(4A), as amended, enables the state to make any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the state in favour of S.C.s and S.T.s, which in the opinion of the state are not adequately represented in the services under the state.

Again in the Indra Sawhney case, the court held that the number of vacancies to be filled up in a year on the basis of reservation, including the `carry forward' (backlog unfilled vacancies) reservations, should in no case exceed the ceiling of 50 per cent. The government thus enacted the 81st Amendment Act, 2000, and inserted Clause 4B in Article 16. This clause enables the state to fill any unfilled vacancies of a year in any succeeding year or years and still not consider those vacancies together with the vacancies of the year in which they are being filled up for determining the ceiling of 50 per cent.

In the Indra Sawhney case, the court had also held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. Article 335 states that the claims of S.C.s and S.T.s for appointment in public services shall be considered consistently with the maintenance of efficiency of administration. Through the 82nd Amendment Act, 2000, a proviso was inserted at the end of Article 335 to permit relaxation in qualifying marks in any examination or lowering the standards of evaluation for reservation in promotion in favour of S.C.s and S.T.s.

In the M. Nagaraj case, the court held that the concept of reservation in Article 16(4) is hedged by three constitutional requirements, namely, backwardness of a class, inadequacy of representation in public employment of that class, and overall efficiency of the administration. After a lengthy discussion, the Bench concluded that these amendments did not obliterate these requirements.

However, the Bench pointed out that excessive reservation would amount to derogation of these constitutional requirements. A quantitative limitation in terms of the ceiling of 50 per cent, as fixed in the Indra Sawhney case, therefore, was added as an additional constitutional requirement, and the Bench concluded that these amendments did not result in excessive reservation.

The difficulty with the M. Nagaraj judgment arises when the Bench adds one more constitutional requirement, namely, the concept of a creamy layer, which it calls qualitative exclusion, and said these amendments do not obliterate this concept too.

This is factually wrong. These amendments are silent on the creamy layer concept. By their silence, they are only suggesting that those belonging to the creamy layer are included among the intended beneficiaries of these reservations, at least with regard to S.C.s and S.T.s (as Article 16(4B) is applicable to OBCs as well). The government is under no obligation to exclude the creamy layer among S.C.s and S.T.s from the benefits of reservation, irrespective of this ambiguity in this judgment; only Parliament has the power to modify the S.C./S.T. lists under Articles 341 and 342. The M. Nagaraj judgment can never be construed as a direction to Parliament to do so.