Setback for social justice

The obsession with social stratification and the inability to let go of feudal hierarchies had led to the creation of the concept of “creamy layer”, under the garb of social justice.

The creamy layer argument is as problematic now as it was during the time of the implementation of the Mandal Commission report, which recommended reservation for Other Backward Classes (OBCs) in education and government employment. Introduced into legal parlance by anti-reservationists in the 1970s, the term first came into prominence in 1992 in Indira Sawhney vs Union of India , or the Mandal case as it is known; subsequently, the Supreme Court defined the creamy layer on the basis of 11 criteria.

There is no constitutional sanction for the term creamy layer. The Mandal judgment had stated unequivocally that creamy layer did not apply to Scheduled Castes (S.Cs) and Scheduled Tribes (S.Ts). It also said that Article 16(4) did not permit reservation in promotions.

On September 26, a five-judge Constitution Bench of the Supreme Court comprising Chief Justice of India (CJI) Dipak Misra and Justices Rohinton Nariman, Kurien Joseph, S.K. Kaul and Indu Malhotra delivered a significant judgment on this issue. While upholding the validity of Articles 16(4A) and 16(4B) of the Constitution, allowing reservation for promotions for S.Cs (15 per cent) and S.Ts (3 per cent) in government jobs with consequential seniority, the bench introduced exceptions that dilute the very same provisions.

The concept of creamy layer, which was earlier applicable only to OBCs, was extended to S.Cs and S.Ts. Furthermore, the order left it to the States to decide whether they wanted to implement the reservation or not, thereby making it open to the States’ interpretation and discretion.

The States are not uniform in their willingness to allow pro-S.C./S.T. legislation, and how forthcoming they will be in implementing the order is a key question.

In Uttar Pradesh, for instance, the Bahujan Samajwadi Party government under Mayawati had implemented reservation in promotions. But the moment the Samajwadi Party took over, the S.C. and S.T. employees who had benefited from the order were demoted to their original posts (following an Allahabad High Court order that struck down the earlier order). On July 23, the Bihar government passed a notification to provide reservation for S.Cs and S.Ts in promotions. The Karnataka government has been dragging its feet over restoring the promotions of close to 4,000 S.C. and S.T. employees and stalling the deemed promotions of 5,000 more.

The Samanya Pichhda Alpsankhayak Kalyan Samaj, a known anti-reservation outfit, has formed a political party to contest the upcoming Assembly elections in Madhya Pradesh.

Meanwhile, the Supreme Court bench also held that the 2006 judgment in M. Nagaraj & Others vs Union of India & Others need not be referred to a larger bench for consideration. It clarified that there was no requirement to collect quantifiable data of backwardness of S.Cs and S.Ts to provide reservation in promotions, as prescribed in Nagaraj .

At the time, a five-judge bench of Chief Justice of India Y.K. Sabharwal and Justices K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan dealt with challenges to constitutional amendments aimed at neutralising the impact of judgments, including the one on reservation in promotions for S.Cs and S.Ts.

The apex court had held in toto that if the state exercised its discretion to mandate reservation for S.Cs and S.Ts in promotions, it would have to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with the requirement of maintaining administrative efficiency as per Article 335.

Also, the state would have to ensure that its reservation provision did not breach the ceiling of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely. This interpretation was referred to a Constitution Bench for reconsideration in November 2017 and came up before the Constitution Bench headed by CJI Misra.

P.S. Krishnan, a former Indian Administrative Service (IAS) officer, adviser to the government and Planning Commission Member, said that the Nagaraj case pertained only to S.Cs and S.Ts and yet the creamy layer argument was mentioned.

“As Honorary Adviser to the Human Resource Development Ministry to help in defending the Central Educational Institutions (Reservation in Admissions) Act in the Ashoka Kumar Thakur case between 2006 and 2008, I had suggested to the Solicitor General of India, the Additional Solicitor General and the Special Counsel to specifically raise the point of inapplicability of the creamy layer concept to S.Cs and S.Ts, and they agreed with me and pointed it out to the Supreme Court bench and the Supreme Court held accordingly. The Nagaraj conditionality of exclusion of creamy layer in a matter pertaining only to S.Cs and S.Ts is per incuriam as it is contrary to the nine-member bench Mandal case judgment,” he said.

The Supreme Court has laid down that the concept of creamy layer would include children of constitutional functionaries such as the President, Vice President and judges of the Supreme Court and High Courts. The creamy layer also includes children of members of Union Public Services Commission, Group A and B or Class I and II officers of all-India and State services, some public sector employees, doctors, dentists, engineers, chartered accountants, information technology consultants, media professionals, authors and sportspersons.

For these criteria to be applicable, one must first see how many Supreme Court and High Court judges are Dalits, to begin with. K.G. Balakrishnan is the only Dalit to have served as Chief Justice of India. After his retirement in 2010, no Dalit judge has been elevated to the Supreme Court. Among the 24 High Courts across the country, there is no Dalit judge serving as Chief Justice.

The apex court has been praised for its progressive ideals shown in gender justice in recent judgments. But as far as caste issues are concerned, it has received flak, first after it tampered with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act earlier this year and now with the creamy layer judgment.

Where members of the S.C. and S.T. communities find representation, they are so few in number that their presence is at best symbolic. At the same time, the few who do make it there are cited by anti-reservationists as an example to vilify and question the continuation of reservation. Exceptions are cited as the norm to generalise the entire community, ignoring the many instances of caste discrimination that continue to take place and with greater brutality.

According to Census 2011, S.Cs account for 16.6 per cent of India’s total population, while S.Ts make up 8.6 per cent. “This comes to 25 per cent. Out of this, how many are IAS officers at the national level and how many of their children are IAS officers?” asked Ramesh Nathan of the National Dalit Movement for Justice.

Stressing the need to look at the backlog in fulfilling reservation, Nathan said that when so many posts were vacant, there was no need to eliminate posts on the basis of the creamy layer. Representation of these communities is inadequate, and the creamy layer concept will only further restrict the upward mobility of the few people who could make use of reservation.

The various definitions of creamy layer boil down to an income criterion, which was capped at a family income of Rs.1 lakh a year in 1993 and revised to Rs.8 lakh in 2017. The fallacy in pegging reservation to economic criteria cannot be overstated. Caste discrimination can overlap with class discrimination, but while change in class is possible, change in caste is impossible to achieve.

Caste is determined by birth and cannot be changed even by converting to another religion.

Economic progress does not remove the social stigma nor does it suddenly make inter-caste marriages acceptable. In fact, the past decade has been testimony to extreme brutalities aimed especially at educated and aspirational Dalit youths, as seen in honour killings, suicides in educational institutions, struggles over land and atrocities on Dalits for refusing to participate in caste-ordained occupations such as picking up carcasses or manual scavenging.

More importantly, data from the National Sample Survey Office show that despite reservation and the perceived prosperity of S.Cs and S.Ts, the economic gap between upper castes and Dalits persists. A comparison of the average monthly expenditure of Dalit and upper-caste households showed that in rural areas there was a gap of about 38 per cent in 1999-2000, which changed only marginally to 37 per cent in 2011-12.

In urban areas, upper-caste households reported incomes that were 65 per cent higher than Dalit households in 1999-2000. This gap had reduced to 60 per cent in 2011-12.

For S.T. households, the gap in monthly expenditures increased from 49 per cent in 1999-2000 to 53 per cent in 2011-12 in rural areas, and from 45 per cent to 48 per cent in urban areas.

According to Krishnan, the term creamy layer itself is misleading. The correct term used in the Mandal case is socially advanced persons/sections in the identified castes of Socially and Educationally Backward Classes (SEdBCs). The criterion for identification of S.Cs and S.Ts was not backwardness or, more precisely, social backwardness. It is only the SedBCs for whom the criterion of identification was social backwardness, accompanied by educational backwardness.

‘Untouchability’

The criterion for identification and specification of S.Cs was “untouchability”, which is far more debilitating than social backwardness and has been historically continuous to this day, he said.

“It is only in the case of the SEdBCs that the question of individuals or sections ceasing to be socially backward and becoming ‘socially advanced’, often loosely referred to a ‘creamy layer’, can arise. This cannot arise in the case of those identified on the basis of ‘untouchability’ and tribal identity,” he said.

“The only legitimate question that can be put in the case of S.Cs is whether any individual or section has ceased to be viewed by society as ‘untouchable’. ‘Untouchability’ is far more pernicious and far more persistent than ‘social backwardness’, that is, it is far more difficult for individuals and sections to cease to be free from the stigma of ‘untouchability’ than to become free from ‘social backwardness’,” he explained.

To elaborate his point, Krishnan cited the example of the unveiling of a statue of Dr Sampoornanand, the former Chief Minister of Uttar Pradesh, by Jagjivan Ram, who belonged to the S.C. community. Jagjivan Ram had been a Union Minister and had served as Deputy Prime Minister in the government headed by Morarji Desai. Yet, after he left, the statue was washed with gangajal for purification.

“In the case of S.Cs and S.Ts, unless policies and programmes, and their implementation, raise the whole communities to the level of forward communities in every respect—occupational, economic, educational, etc.—it is impossible and unthinkable that individuals can escape the stigma of ‘untouchability’ or the stigma attached to tribal people. This aspect apparently could not be placed before the bench clearly and could not be brought home to the bench. It is necessary to put this basic aspect beyond doubt and the scope for arguments in future,” he said.

After the judgment, Krishnan wrote to the Minister for Social Justice and Empowerment and the Prime Minister suggesting constitutional amendments and executive orders that need to be issued by the Ministry of Personnel, which is directly under the Prime Minister.

The Constitution Bench headed by CJI Misra heard a battery of lawyers, including Attorney General K.K. Venugopal, Additional Solicitor General Tushar Mehta, Senior Counsel Indira Jaising, P.S. Patwalia, Dinesh Dwivedi and Sanjay Hedge, in favour of promotions, and the senior advocates Shanti Bhushan, Rajeev Dhavan, Rakesh Dwivedi and Shekhar Naphade in support of the 2006 ruling. When Frontline asked Nathan if any Dalit lawyer or organisation was involved in the entire process, he said he was not aware of any.

Holding that the introduction of creamy layer for S.Cs and S.Ts was against the Constitution and the principles of social justice, Nathan said that it would be challenged legally.

“Even 70 years after Independence, the socio-economic condition of the community has not changed but may have only improved marginally. The constitutionally guaranteed rights enshrined in Articles 15 (non-discrimination), 17 (untouchability), 16 (equal opportunity in public employment), 15 (education and cultural) and 46 (economic safeguards) have not been achieved,” he said.

“Especially over the last two decades, post-globalisation and structural readjustment programmes, there are no trade unions left, and forced displacement of people is taking place along with reduction in the number of posts in public departments, which are increasingly being privatised. Another aspect is whether there is sufficient representation of S.Cs and S.Ts at all levels. In A, B and C grades, they will not be there, but D grade may be overfilled. How many are there in decision-making posts? Until the time all these rights are guaranteed, there is no point in talking about creamy layer,” he added.