Sunday, 24 August 2008

Relevance of the Kerala OBC Act 1995.

Relevance of the Kerala OBC Act 1995.

The Kerala State Backward Class’s Act was passed in 1995. It was declared unconstitutional by the Supreme Court of India in 1999, the judgment of which is Known as Indira Sawhney vs. Union of India and Others (ISII). For more details click here

In this post I am looking at:
(i) The relevance of the Act and (ii) whether the judgement was constructive and positive in terms of the development of the OBC castes as deemed by the Constitution of India.
My concerns emanates not out of my legal expertise. Though the laws are made by the legal experts, it is in the responsibility of the ordinary people to try to understand them being the law’s targets. Mine is an attempt in that direction.

I have highlighted in my previous post that the Kerala government did not do a great job when it did not act promptly on the instructions of the ISI. It neither investigated to find whether there really existed a ‘creamy layer’ among the OBC and what was their socio-economic conditions as well as competency level with the forward castes.

Instead it passed the Kerala OBC Act. Yet the intent of the government to continue providing for the development of the Other Backward Castes of Kerala given expression in the Act was relevant.

The following were the key to the Act in the context of the above relevance.

Article (3) Declaration: - It is hereby declared, having regard to known facts in existence in the State—
(a) That there is no socially advanced sections in any Backward Classes who have acquired capacity to compete with forward Classes who have acquired capacity to compete with forward classes; and
(b) That the Backward Classes in the State still not adequately represented in the service under the State and they continue to be entitled to reservation under clause (4) of Article 16 of the Constitution”.

The ‘known facts’ on which Article 3 was based, in my understanding were the facts to support the non-existence of any socially advanced sections among the OBC that had acquired capacity to compete with the forward classes.

But from the ISII deliberations, I understand that it did not pay any attention to this non-equality concern between the OBC ‘creamy layer’ and the forward Castes instead it misinterpreted the ‘known facts’ as the facts that were hidden to deny the existence of a ‘creamy layer’ among the OBC.

See the following from the ISII judgement: “sub-clause (a) of section 3 states that according to ‘known facts’ the backward classes in the State were not having the capacity to compete with the forward classes i.e. in effect, there was no creamy layer in the Kerala State”.

This interpretation is wrong. Article 3(a) that OBC had no capacity to compete with the forward castes did not mean that there was no creamy layer, but that the ‘creamy layer’ was not equal to forward castes.

That mentioning was made about the ‘advanced sections’ of the OBC in Article 3 further proves my point; ‘advanced sections’ meant ‘creamy layer’.

That the state did not identify a ‘creamy layer’ was no reason to scrap the Act. Even if it had identified a ‘creamy layer’ among the OBC, it could have still made that legislation on the basis of the above facts.

The following statements from the ISII further proves my point.

“Did the Kerala Legislature have any facts before it to say that there was no creamy layer?

“We shall, therefore, have to examine whether the legislative declaration in section 3 of the Act that there is, in effect, no creamy layer in the State of Kerala is one made by ignoring facts which do exist”

Since argument against 3(a) was based on false premise as explained above, its verdict also lead to faulty conclusion.

Verdict on Article 3

“In view of the facts and circumstances, referred to above, we hold that the declaration in sub-clause (a) of section 3 made by the legislation has no factual basis in spite of the use of the words ‘known facts’. (ISII did not touch the real facts). The facts and circumstances, on the other hand, indicate to the contrary. (What facts)
In our opinion, the declaration is a mere cloak and is unrelated to the facts in existence. The declaration in section 3(a) is, in addition, contrary to the principles laid down by this Court in Indira Sawhney and in Asok Kumar Thakur. (Article 3 did not deny the existence of ‘creamy layer). It is therefore, in violation of Articles 14 and 16(1) of the Constitution of India. Sub-clause (a) of section 3 is therefore, declared unconstitutional”. (My stress on bold)

Articles 14 and 16(1) of the Constitution states as follows.

14. Equality before law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

16. Equality of opportunity in matters of public employment. —(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Since the ISII did not look into what were the ‘know facts’ on which Article 3 (a) had referred to, that is, the social inequality between the creamy layer and the forward classes, its verdict is in clear violation of Article 14. The same conclusion can be made in the case of Article 16(1) as well. Both Articles are guarding against inequalities between people.

It is in the legal responsibility of the SC of India, when a new legislation is made by a State to study it in the context and the circumstances that it entails. Suppressing the new with the old judicial jargon does not befit a progressive judiciary.

Article 3(b)

Article 3(b) was about the inadequate representation of the OBC in the State employment. Article 16 (4) of the Indian Constitution gives power to State to make such legislation on reservation if deemed necessary for the development of the OBC.

"Article 16(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

But ISII intertwined this constitutional provision also with the ‘creamy layer’ concept.

“Lack of adequate representation of a particular backward class may be a factor for consideration by the State for providing reservation. But, the said factor cannot be the sole ground for continuance of the creamy layer in that backward class. The first step no doubt is the identification of the backward class, which is inadequately represented. But there is a second step also and that is the elimination of the creamy layer from the Backward Class. The second step cannot be mixed with the first step nor can it be forgotten.

Since Article 3(b) of the Kerala OBC Act was about the inadequacy of the OBC in the State service the ISII should have challenged it on the basis of statistical evidence, which was never looked into or demanded by the ISII.

In the absence of such vital evidence the ISII simply played with the OBC ‘creamy layer’ concept making its verdict on 3(b) too look unintelligent and biased.

Verdict on Article 3 (a) and (b)

“This assuming that, when creamy layer is excluded, there will be inadequate representation of certain Backward class, after Indira Sawhney. For all the aforesaid reasons, sub-clause (b) of section 3 does not provide any valid answer for not eliminating the creamy layer and must also be held to be unconstitutional and violative of Articles 14, 16(1) and 16(4) of the Constitution. Thus, sub-clause (a) and (b) of sections 3 are both declared unconstitutional”

In summary the only principle the ISII considered to declare the Kerala OBC Act unconstitutional in my opinion was the ‘creamy layer’ among the OBC to exclue them from reservation in employment on the false assumption that they had acquired capacity to compete with the forward castes.

Please give your suggestions as comments

Indira Sawhney II judgement :

Constitution of India;

Sunday, 25 May 2008

The OBC Creamy Layer Concept and Kerala

The OBC creamy layer concept in Kerala has been seemingly a cause for communal conflicts and political lethargy.

Supreme Court’s April 10 lifting of its last year’s stay on 27 percent quota for other Backward Castes (OBCs) in India’s higher educational institutions, the IITs, IIMSs, and AIIMSs excluding its creamy layer that has been applauded by many as revolutionary is deliberately keeping the majority away from reaping the benefit of India’s much applauded economic growth.

At this juncture I would like to look into the history of the creamy layer concept in Kerala to know what really happened there.

History of the creamy layer concept in Kerala.

Ever since the Indira Shawney I ruled to identify and exclude the OBC creamy layer from the government employments in 1992, the governments of Kerala had only maintained a denial attitude to the issues it entailed. Outcome: a section of the OBC in Kerala are still lurking under poverty and underdevelopment and the rest are at limbo about their competence with the developed.

The denial continued until the Supreme Court condemned the Chief Secretary to the State of Kerala as guilty of contempt of court on 10.7.1995

The State then appointed a commission to identify the creamy layer among the OBC. But in three weeks’ time it apparently wounded up the commission and passed the Kerala State Backward Classes Act on 2.9.1995 with retrospective effect from 1992. Subsequently it reported to the Supreme Court that it failed to identify the OBC 'creamy layer' without conducting any study on the matter.

The NSS a ‘forward’ caste group in Kerala wasted no time to implicate the act. It filed before the SC that the Act was in violation of the constitution: article 14 and 16.

Then on 4.11.2005, the SC constituted a high level Committee chaired by K.J Joseph, a retired Judge from the Kerala High Court, to collect information about the OBC creamy layer in Kerala.

The Committee was directed by the SC to follow the 1993 criteria laid down by the Central Government to identify the creamy layer among the OBC.

The Committee identified a ‘creamy layer’ among the OBCs and submitted its finding on 4-8-1997.

Many objections were filed against the Committee’s findings and the SC scrutinized the situation and passed judgment on them (Indira Swahney II).

As part of the judgment the SC scrapped the Kerala OBC Act 1995 and ordered the State to implement the findings of the committee: that is to exclude its OBC creamy layer from the State and central government employment with immediate effect. That was in 1999.

Now the April reservation law that granted 27% quota for India’s OBC students excluding its creamy layer is only an attempt to extend the judgment of Indira Swahney (1992) to admissions to educational institutions as well.

Some doubts and concerns

Now what is the whole essence of granting 27% reservation to OBC excluding its creamy layer?

IITs and IIMs are not ordinary institutions. How many among the OBCs if the creamy layer is excluded stand a chance to enter those institutions?

A contemporary genuine concern of India’s leadership, both legislative and judiciary should be: (1) are all Indians benefiting from its current economic growth (2) is India celebrating a balanced economic development in which all its citizens are given a justifiable share in education and employment? If these are not happening, then can India be seen as a progressive and humanistic nation?

Certainly, if India has still a backward class to which development has not trickled down, it means that its government has not fulfilled its constitutional commitment to them. The 1992 Judgment of Indira Swahney and the subsequent judgments based on it are making the presumption that the OBC creamy layer is at par with the ‘forward’ castes. Here the terms ‘backward’ and ‘forward’ are very subjective. When the judgment states that the OBC creamy layer is equal to the ‘forward’, then it has to define what is forward.

Instead the SC instructed the higher institutions to follow the 1993 criteria that were used to identify the creamy layer to be excluded from employment. Children of parents who have an annual income of 2,5 lakhs, including other property income, are therefore included in the creamy layer. What is the logic in this while the annual fees at the higher institutions are to the tune of 3,5 lakhs?

This shows that the criteria that are used to exclude the OBC from employment cannot be used for educational admissions.

Under the nose of independent India’s legislature and judiciary, the majority of its backward people remained locked up in their traditional ghettos as discriminated, condemned and violated by its so called upper castes. Constitution guaranteed them reservation in employment a programme that was to last for 10 years. Yet there was no five-year plan or fast track plans to accomplish that programme within the stipulated period.

And when you talk about India’s OBCs, you are talking about its skilled people that held its glories high until the atrocious Brahmanic Hinduism defeated their status and elegance. But the free India did not acknowledge the OBCs as a defeated but a failed group, stupid and unintelligent and reservation was not taken as their right but as handout. And at heart India’s ‘forward’ found a threat in it’s ‘backward’.

In the absence of any strategic plan to develop the OBCs as a collective or a caste group, its responsibility fell straight on its individuals. It was no wonder that the highly segregated brahmanic Hinduism that entered their psyche both as a tool of social division and a myopic religious consciousness to deplete their humanity, love, care and solidarity made them think only in terms of themselves and not collectively. Yet OBC as a whole should have offered helping hands to each other as their humanistic obligation.

In the midst of everything, the poor OBC remained poor and those who managed to make use of reservation in education managed to develop better than the rest. But to claim that they all attained level of competency with the forward is false and those who make that claim should establish that in concrete terms.

As a whole, the OBC creamy layer is in need of initiatives to assist them for they are a potential and upcoming section of the Indian constituency that has to come a long way to be equal with the ‘forward’.

It is true that a slim minority among the OBC have acquired competency with the ‘forward’; those who have representations in Parliament and Legislative Assemblies, high earning executives and who own businesses.

Yet why did the SC made such a judgment far removed from the realities at hand?

Following is an extract from the SC’s judgment on last year’s stay on parliament’s 27% reservation for the Other Backward Classes (in short the 'OBCs') contained in the Educational Institutions (Reservation in Admission) Act, 2006.

“The primary ground of challenge is that the Union of India has failed in performing the constitutional and legal duties toward the citizenry and its resultant effect. Consequentially the Act shall have the effect and wide ramifications and ultimately it shall have the result in dividing the country on caste basis. It would lead to chaos, confusion, and anarchy, which would have destructive impact on the peaceful atmosphere in the educational and other institutions and would seriously affect social and communal harmony. The constitutional guarantee of equality and equal opportunity shall be seriously prejudiced. It has been contended that a time has come to replace the "vote bank" scenario with "talent bank". The statute in question, it is contended, has lost sight of the social catastrophe it is likely to unleash. Not only would the products be intellectual pigmies as compared to normal intellectual sound students presently passing out. It has been highlighted that on the basis of unfounded and unsupportable data about the number of OBCs in the country the Act has been enacted.”

The judgment is mindful that the Indian government failed in fulfilling its constitutional and legal obligations to its people. But its consequence should be suffered by the poor OBCs for admitting them to India's higher institutions would lead to 'chaos, confusion and anarchy... '.

Is this judgement based on any observation or evidence or is it simply an excuse?

Or is the judgment referring to the chaos and atrocities India’s ‘white lilies’ staged on the streets of Delhi and Bombay against the 93rd amendment to fulfil the government’s legislative obligation to India’s backward spearheaded by Arjun Singh?

And more explanations are needed as to how “The constitutional guarantee of equality and equal opportunity shall be seriously prejudiced” if the OBCs are admitted into India’s higher institutions?

So where is India’s humanity? Even the esteemed legal institution of India does not see the need for the developed assisting the less developed as the means for achieving equality. Instead they claim that there is a constitutional guarantee in India that only equals should be guaranteed equal opportunities. (That is how I understand it)

The judgement went to predict that the Act would only guarantee ‘intellectual pigmies as compared to the normal intellectuals’. Who are these normal intellectuals of India? Somebody please help me to understand.

If so, does the judgement imply that the people who qualify through affirmative action programmes that are currently run through various institutions of the world are intellectual pigmies? Certainly such views would be met with disgust by the countries that have effective affirmative programmes.

In my understanding, education has the paramount potential to transform the unequals to equals and its admission processes all over the world are structured on such principles.

However the SC ruled that 27% of the OBC could be admitted to higher institutions excluding its creamy layer. So those institutions might have taken measures to deal with the chaos and anarchy of those 27%. The fact of the matter is that if the creamy layer is excluded, there is hardly any one from the OBC who is going to those institutions.

Currently the OBC percentage in India’s esteemed institutions is 9, that is from the nearly 60% of its population.

Indira Swahney judged in 1992 that the OBC reservation in employment is restricted to 27%. But studies in Kerala and elsewhere claim that after its implementation, OBC representation in employment plummeted to a mere 5%. Whereas 20% of India’s creamy layer from the general population grab most of the executive jobs in the country’s private sector that dominates 85% of India’s job market.

Only those who have a humanistic consciousness can understand what I say. India’s economic growth is going to be a disaster unless it takes care of its human divide along caste and religion in constructive and creative ways. Our esteemed legal institutions are loosing sight in this when they say that the development of the OBC is coming at a huge price of chaos and conflict in the higher institutions.

Next. The relevance of the Kerala OBC Act 1995 and 'vote bank'

Indira Sawhney II judgement :

2007 Judgment, stay on OBC Act: