Creamy Layer – A Kerala Story

I took the liberty summarizing the Indira Sawhney II and the Kerala situation here. Persons on both sides of the quota fence should read this judgement. Specifically, pro-OBC quota persons at The Other India blog must read the constitution and various judgements. They must understand that “proportionate representation of castes” without reference to backwardness (based on socio-economic data) is explicitly prohibited. This is against the basic structure and even a constitional amendment by a majority government (which is by nature ephemeral) cannot change that.

Many links at the bottom of the post.

First one remarkable observation by the Supreme Court.

“Just because facts are ignored does not mean they dont exist” – Aldous Huxley

This one sentence summarizes the OBC quota situation today. No OBC community can justify remaining classified as “backward” once it is shown that they are already well represented in various walks of life. The quota system for OBCs is not to over-compensate for “under representation in the past”, it is only for the current day and age. It is important to remember that. The court also ruled that “adequate representation” should not be interpreted as “proportionate representation”.

Enough of that, let us get to the story.

Flash back to 1993.

Kerala did not see many protests due to Mandal largely because there was already a 30% quota for OBCs in place for over 50 years. This was in line with Tamilnadu and Karnataka. So even after Mandal, while the north was burning and governments collapsed Kerala remained cool because Mandal did not significantly impact the state.

In 1991, The Mandal report had been challenged in the Supreme Court in a group of petitions called “Indira Sawhney vs Union of India”. In late 1992, the SC upheld the OBC quota policy, but in its judgement asked all the states to constitute commissions to identify and exclude the creamy layers from the OBCs.

While most northern states and AP/KA had no problems obeying the supreme court, the Kerala government was in a fix. At that time K.Karunakaran (Congress) was the chief minister. He had taken over from E.K.Nayanar (of the CPI-M). Identifying the creamy layer was sure to antogonize the powerful OBC caste of Ezahavas, Muslims, and Latin Christians. So he did what almost every Indian politican would do in a difficult situation – nothing !

One, two, three years passed since the Supreme Court judgement in 1992. It seemed Kerala has simply ignored the “creamy layer” part of the SC judgement. Some people took it to court and in 1995, the Supreme Court asked Kerala what happened. The reply was unsatisfactory,  and the Supreme Court held Kerala in contempt of the Supreme Court in July 1995 – and gave it two months to purge (set right) the contempt. By this time, A.K.Anthony had replaced K.Karunakaran as the Congress chief minister.

A small digression, I always wondered what happens if a government is in contempt of court ? Is it such a big deal ? It turns out if a state government is found in contempt, then its Chief Secretary can end up in jail. I dont have enough legal knowledge to know if any other action is possible. Any lawyers here familiar with Supreme Court laws ? We might be forced to deal with this type of issue in the future.

Anyway, the SC gave the Kerala Government two months to act – or risk action. Immediately, the Kerala government announced that a committee was to be formed to identify the creamy layer.  This committee was called the Justice Khalid Committee. In just three weeks, the committee was suddenly wound up and the Kerala government declared that there was no creamy layer in Kerala. It then passed an act in the state legislature (The Kerala Act 11 of 1995) to that effect (stating creamy layer will not be excluded from quotas). Not only were there no creamy layer persons at present, but there was no criteria for identying any OBC creamy layer candidate in the future !

This was challenged in court by various organizations such as the forward-caste Nair Service Society and others. The Supreme Court then decided to appoint its own study commission lead by Justice K.J.Thomas. This commission had members from all communities (Sri O.C.  Vincent, IAS, Sri K.P.   Mohammed,Adv.,  Sri  K.  Aravindaksha  Menon). This committee had no trouble in identifying the creamy layer and submitted its report in August 1997. By this time the Congress was defeated inspite of these machinations and a CPI-M government was in place and E.K.Nayanar was back as the CM. It is important to note that only the CPI-M was opposed to the ridiculous goverment act that proclaimed that there was no creamy layer in Kerala.

Various OBC organizations opposed the Justice K.J.Thomas report in the Supreme Court and wanted the government act to be validated, so creamy layer can continue to enjoy the benefits.

This led to the landmark judgement called “Indira Sawhney II” (Indira Sawhney Vs Union of India delivered in December 1999).

It asked the government of Kerala to immediately implement the Justice K.J.Thomas commissions recommendations for excluding the creamy layer.

Reading between the lines, I think it was implemented well because the CPI-M had always been opposed to plain caste based quotas and creamy layer. Side note: Contrast with the CPI-M of today, who are totally for caste based quotas (Yechury) and are ambiguous about creamy layer removal.

So a major confrontation was averted. To this day, OBCs in Kerala need to obtain a non-creamy layer certificate to avail of benefits.  You have seen to what extent politicans will go to thwart any scientific studies of the powerful OBCs. History is repeating itself today it seems.

Thats all folks !!

— additional comments —

The interesting thing about this judgement is that it sets the tone for a discussion of intent vs implementation. It warns stronly against including forward castes in the OBC list and inclusion of creamy layer. It warns that OBCs cannot continue to claim backwardness for ever. It warns on the need of data for classification of OBCs.

Some quotas (sorry quotes)

on contempt of court –

In  the present case, the State of Kerala did not care
if  its  Chief Secretary was to go behind bars.  It did  not
care  if the real backwards were left in the lurch.

– on including forward castes as OBCs and non exclusion of creamy layers

It  is difficult  for us to think that the Kerala Government really
believed  in the validity of its legislation.  It appears to
us  that  it  thought it better to leave it  to  the  Courts
strike down  the  Act.   Years would role  by and  in  the
interregnum  the  creamy  layer could continue to  reap  the
benefits  of  reservation.   When  Governments unreasonably
refuse to eliminate creamy layers from the backward classes
or  when governments tend to include more and more castes in
the  list  of  Backward Classes without  adequate  data  and
inquiry,  a stage will be reached soon when the whole system
of  reservation  will become farcical and a negation of  the
constitutional provisions  relating to  reservations. 

– warning against using the quotas as a political tool to build communal votebanks

      “……to  politicise  this provision  (i.e.   Article
16(4)  for communal support and Party ends is to subvert the
solemn undertaking of Article 16(1).”

On mechanically including castes in OBC list without analysis or revisions to the list

 If  forward  classes are mechanically included in  the
list  of  backward  classes  or if the creamy layer  among
backward  classes  is  not excluded, then  the benefits  of
reservation  will  not reach the really backward  among  the
backward classes.  Most of the benefits will then be knocked
away  by the forward castes and the creamy layer.  That will
leave  the truly backward, backward for ever.  – Justice Jeevan Reddy,
J.  

Links:

Indira Sawhney II judgement : http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=16589

Another fascinating read is the Narendran Commission available online at :

http://www.kerala.gov.in/ncr/index.htm

On the type of troubles data will stir up (K.K.Narendran reactions) : http://www.hinduonnet.com/fline/fl2117/stories/20040827002709400.htm

http://www.deccanherald.com/deccanherald/aug012004/sl1.asp