From: Shiva Shankar <sshankar@cmi.ac.in>
Date: Fri, Sep 9, 2011 at 9:31 AM
Subject: The Creamy Layer Sans Cream
To:
"... 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. ... ... 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. ..."
The Creamy Layer Sans Cream
Which creamy layer are we talking about when there is just one
Secretary from the Scheduled Castes in the Central government?
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."
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
Nov 18 , 2006
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