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;