Sunday, May 25, 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: