The Frontline magazine (from the publishers of The Hindu) has a bunch of articles on the recent quota cases.
You can get to the other articles from the above links.
We have visited all angles of the story in this blog in the past.
The hopeless absurdity of the situation is summarized in the interview. (Emp mine)
There is no objection to it. But should we conduct a huge survey just because there is one rat in the palace? There is no doubt that most of the communities continue to be backward. I can straightaway say that no artisan community has ceased to be backward in the country. No service communities, such as barbers, dhobis, and so on, have ceased to be backward. No community of primary producers, or non-agriculturalists such as fisherfolk, has ceased to be backward. No indigent community, no beggar community, no nomadic or semi-nomadic community has made the grade.
Could there be a more severe indictment of the quota system ? The HRD advisor himself confirms what is common knowledge on the street. What then, is the point of the system ? Why not measure its beneficiaries to ascertain for ourselves how bad this problem is ?
Those who filed the writ petitions have sufficient financial capacity to engage some of the top lawyers in the Supreme Court. They must also have the capacity to commission the study of one or two suspect communities by a credible social science organisation. What prevents them?
If you are after an impassionate analysis of the quota system, this is really ground zero of the whole issue. I guess Frontline deserves some credit for asking this question outright (given its severe constraints in its home state).
It is quite absurd to suggest this line of private action for such an important government policy. The government made the lists, it is responsible for maintaining it. Even making the giant assumption that it is technically feasible for a private party to conduct this kind of study - it wont happen.
- Data is not available about the utilization of the quota as well as open seats. This is the key here. Readers of this blog will probably shoot me if I repeat this again.
- No individual likes to take the unpleasant task of targeting a single community for removal like that without data. Why ? Without a holistic approach, many would still remain – making the entire exercise futile.
- If we fish for a quota bottom, will this work ? The top utilizers of the open category should leave the reserved category.
Read the articles, if you are interested.
Just do not expect any mention of the herd of elephants in the room.
So I am reading the judgements in the Thakur case, trying to figure out where exactly the courts stand with respect to the legislature in its wake. Given the nature of this blog, I paid special attention to the sections on classification / data. The most interesting aspect was the rejection of the so called “strict scrutiny” by almost all judges
“We have not applied the principles of suspect legislation and we have been following the doctrine that every legislation passed by Parliament is presumed to be Constitutionally valid unless otherwise proved,” the CJI said, and whose view was shared by Justice R V Raveendran.
Source : Hindu
I think this is the one count that clinched it for the government. I count it as a major win that has the potential to set the parameters of the court’s future involvement. ( I hope I am wrong). I wonder if the Youth For Equality and other petitioners would have approached the court if they had been told that the court would not subject the impugned law to test. If I understand correctly, YFE was not petitioning against the concept of OBC reservations, only against the adhocism exhibited by the government. The creamy layer ruling could count as a win, but I have doubts on that. Say the government acted in an irrational manner while redefining creamy layer. Would the court entertain a PIL ? Maybe Salve and others can interpret it for us in the next few days.
I am new to the ways of the court, so I am looking for education as much as analysis.
First, I must admit that I was most optimistic that the government could not get away without producing atleast some data. I was hoping along with YFE and others that the court would certainly call upon atleast a “rational test” if not a strict scrutiny. Looking back, I guess my optimism was rooted in the events that happened in the Indira Sawhney II case in July 1995.
A quick summary,
The Supreme Court wanted the Kerala Government tImmediately, 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.
The court did not accept the Kerala governments act (Kerala Act 11). It did not accept the conclusion of the Justice Khalid Committee either. Just like this Lok Sabha, this was a unanimous decision of an elected government. It even appointed its own committee (Jus K.J.Thomas) to ascertain facts for itself. I think this is atleast at the level of ‘rational basis review’, if not ‘intermediate’ or ‘strict scrutiny’. Contrast this with the Thakur case we have today.
Does this mean no Indian can petition the court citing lack of “due process” (or its Indian equivalent) ?
Of course, we accept and respect the judgement of the honble court. I am only interested in analyzing the judgement from the angle of balance with respect to the legislature. Will the politicians now treat this as a free ticket to do whatever they want with scant regard for data or due process ?
Stay tuned for some more, before we wrap this up.
As discussion on all agenda items got over at the Friday meeting, Union Health Minister and PMK leader Anbumani Ramadoss sought to draw the Cabinet’s attention to the SC ruling, according to sources. Railway Minister Lalu Prasad Yadav interjected: “Yeh (creamy layer) to humhi logon ko define karna hai na (we will be the ones to define the creamy layer).”
Source : Indian Express
Hmm, Laloo-ji – you are losing it. You have to atleast pretend to be concerned about the issue in public.
“For want of a nail, the shoe was lost.
For want of a shoe, the horse was lost.
For want of a horse, the battle was lost.
From loss of the battle, a war was lost.
All for the want of a horse-shoe nail.”
You have surely heard the above lines or some variant of it. What does it have to do with those who desire a data driven social justice policy ? We just lost face and there is no turning back. Read on.
Readers of this blog will be familiar with what I consider the foremost national secret of contemporary political forces and their supporters. I call this simply “data” or “truth”. What this really means is, data on the effects of the quota system on its beneficiary castes. This data is the only way to validate any policy that abridges the fundamental rights of millions of citizens. To be clear, there is another type of data – which is the census, and national surveys. They can be used to select target groups for preferential policies. However, any policy must be validated only with data on its beneficiaries. It is this data which I believe is sought to be prevented from being collected and made public by political forces. People who are quick to compare quotas with American affirmative action – will appreciate that the United States makes available such data, in detail, in copious amounts, publicly, and in good faith. See here for an example.
To be honest, I expected the court to uphold the quota due to precedent set by the larger 9-judge bench in Indira Sawhney and the presence of atleast a few obviously deserving castes in the list. I feverishly expected the court to insist on participatory data as a necessary constitutional validation (how various beneficiary castes in the OBC list participate in this program). It must be noted that only the government has the means to collect this data. Without this data, citizens cannot challenge anything in front of the government agencies. In todays computerized systems, this data can be collected in a matter of minutes. I am greatly disappointed by the judgements to the extent that such a check has not been placed, atleast not strongly enough to qualify as a check.
There are two provisions which offer a faint flicker of hope – the creamy layer exclusion and the 5-year review.
The “5-year” review
First, let us consider the “5-year” review. In my understanding of the judgement, the court has distanced itself from involving itself in “scrutiny” and “due-process”. It is how it has always been. Perhaps, the counsel for the petitioners were wrong in pursuing this line after all.
Consider this :
The aforesaid principles applied by the Supreme Court of the
United States of America cannot be applied directly to India as the
gamut of affirmative action in India is fully supported by
constitutional provisions and we have not applied the principles of
“suspect legislation” and we have been following the doctrine that
every legislation passed by the Parliament is presumed to be
constitutionally valid unless otherwise proved.
Link : Para 184
combined with this :
After some period, if it so happens that any
section of the community gets an undue advantage of the
affirmative action, then such community can very well be excluded
from such affirmative action programme. The Parliament can
certainly review the situation and even though a specific class of
citizens is in the legislation, it is the constitutional duty of the
Parliament to review such affirmative action as and when the
social conditions are required. There is also the safeguard of
judicial review and the court can exercise its powers of judicial
review and say that the affirmative action has carried out its
mission and is thus no longer required. In the case of reservation
of 27% for backward classes, there could be a periodic review
after a period of 10 years and the Parliament could examine
whether the reservation has worked for the good of the country.
Therefore, the legislation cannot be held to be invalid on that
ground but a review can be made after a period of 10 years.
Link : Para 187
It is also clear that ”due process” is not required under the Indian constitution. Americans have such protections such as the “right to due process”, Indians do not have that protection. At least it is not part of their rights. The government can abridge (not abrogate) the fundamental rights of citizens without having to present compelling evidence of national need. For me, this is an eye opener about the reality of the nature of the Indian state. I now appreciate those who have fallen out.
There appears to be a ray of hope for citizens to judicially challenge blatant and obvious anomalies in the OBC list. An example would be the state of TN, where the 80-90% of open category seats are filled with candidates of certain castes classified currently as OBC. It is however a doomed-to-fail-catch-22 situation because the data on which such a challenge could be entertained is not made available by the government. We are then back to square one. The periodic review clause in conclusion is along the weak lines of the earlier Indira Sawhney (Mandal – 1) bench, which mandated a review after 10-years. It is now 18-years and no review. No harm.
The creamy layer
This has far wider ramifications than the review program.
In my previous posts, I was very suspicious of the entire concept of creamy layer. At best, it is a bandage to cover up the reluctance of the politicians to divulge “data”. As a constitutional bandage, it does have its merits. It prevents atleast the most jarring scenes, such as a doctors son from a landowning caste driving to college in a Ford Endeavor – trumping a cook’s son based only on the accident of his birth. Even though the creamy layer critieria is not followed in Tamilnadu, it has value as a national policy.
The problem with this bandage is : should it be a tiny Band-Aid strip or a plaster cast.
The most important provision of the creamy layer exclusion is this :
Persons engaged in profession as a doctor, lawyer, chartered accountant, Income Tax consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artistes and other film professional, author, playwright, sports persons, sports professional, media professional or any other vocations of like status.
This is the most effective filter. Today, there are thousands of beneficiaries in the south working in the IT export industry who have made several foreign trips and are not backward by any stretch. With only an income criteria, they can take a break for a year and subvert it.
There are also serious problems with the creamy layer concept. It will seriously damage the really backward castes.
For example : A Kuravar gypsy (just an example) may have only a handful of families who have clawed their way into middle class hood. A creamy layer policy intended to keep the rich of the landlord and politically powerful castes from dominating the quota will devastate such lower castes. This singular failure will cause extreme resentment among the lower castes among the OBC group (which I have said earlier is double the population of the United States). The real question : “Why are the rich landlord castes grouped together with castes with lesser ability ? ” will always lurk in the background screaming for an answer.
The suggestion to exclude children of current and former MLAs, MPs will also cause anomalies. People of Tamilnadu will remember great men of integrity like Kamaraj who did not care for money. He actually rode back in a bicycle after demitting his office. Even today, I heard descendents of Rajaji are living a hard life in the lower rungs of society. Will this criteria be a signal for politicians to “make enough hay while the sun shines to secure payment seats” ? Only time will tell.
Will the various creamy layer criteria be the first casualty ? Only time will tell.
Will the 93rd amendment be still valid if this clause is struck off ? Only more judicial litigation will tell.
I believe we have come to the end of one leg of our journey and are about to embark on the second leg. The second leg will feature all the following events with the implicit agreement that participants will leave demands for data at the door.
- Cabinet meetings to redefine the creamy layer criteria to the point of subverting its purpose
- Splitting the OBC quota into MBC. To be fair, Dr Ramadoss played a pivotal role in getting this passed. It would be unfair to deny MBCs a separate quota.
- Sub-quota for minorities
- Faculty quota in IIT,IISc, IIMs. I hope all faculty members are dusting off their caste certificates (or the lack thereof)
- Jostling by various sub-castes in a data-free environment of political wheeling dealing.
Reality Check will not be on that second leg.
To conclude , my favourite quote :
If you ever drop your car keys into a river of molten lava, just let ‘em go, because, man, they’re gone
– Jack Handey
The OBC quota judgements ( I guess they will now be known as Ashok Kumar Thakur) are available online.
I will be reading them later to see if the most obvious question is answered:
“It is acceptable to give further benefits to a caste that is able to get seats in the open category ?” If it is not acceptable, then do we not need data to prevent it from happening ?
The five-year “suggestion” for reviewing the caste lists is D.O.A (Dead on Arrival) as are the various cut-offs for identifying the creamy layer.
In fact, I predict the creamy layer criteria will be subverted faster than you can say, “Atleast, shut up now about data Mr. Reality Check”
The bus has finally arrived at the fork in the road.
The conductor asked all passengers named Data and Reason to get down from the bus. The driver then took the left fork with the remaining passengers. The next bus stops on the left fork are
1. Hike Creamy Layer to arbitrary high limit - 1 Km
2. Private University Quota – 10 Km
3. Faculty caste quota for each department in IIT, IISC, IIM – 15 Km
4. Private Sector Quota – 20 Km
5. Caste wars among OBC jostling for quota share – 25 Km
6. Bengal wanting equal benefits as TN – 26 Km
Yes, we have been thrown out of the bus at the fork. It is mid afternooon and the Indian sun is beating down, but we will continue on foot on the right fork.