Reality Check India

Creamy Layer – A Kerala Story

Posted in Uncategorized by realitycheck on July 5, 2006

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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

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18 Responses

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  1. Ramanan said, on July 6, 2006 at 3:33 am

    Thanks for this great blog! It is very informative and well-reasoned out. Naturally no “Dravidian Rationalist” will praise this exercise in rationality.

    Hope you continue the good work..

  2. camelpost said, on July 14, 2006 at 1:53 am

    Archiects of Future India:
    This is an analysis of the ranks of students admitted at NIT Calicut from Kerala: Source Hindu Education Plus 11/7/2006.
    Branch, Last rank in open category
    First Rank in SC Category,Last in SC Category.
    Architecture 1992 7597 15799
    Civil 14054 99803 113527
    Comp Science 5186 41238 83642
    Electrical 7246 37792 85362
    Electronics 2921 12058 37362
    Mech 8191 38875 82922
    ProdEngg 9907 89380 90498
    Chemical 12326 92769 102590
    ———————————-

  3. […] A direct insult to the Supreme Court rulings regarding the creamy layer. See Indira Sawhney II Vs State of India and the Kerala Story. By this act of introducing such a bill, that flies in the face of studied SC judgements,  Arjun Singh and the UPA have taken the house to a new low. They have unnecessarily taken the house to an ugly faceoff with the Supreme Court. […]

  4. Badri said, on October 22, 2006 at 4:36 pm

    Hi,

    do you have any URL for the Indira Sawhney vs Union of India judgement of 1992 (Indira Sawhney I) where 50% limit and creamy layer are talked about for the first time? I have been trying the whole day and couldn’t find it anywhere.

  5. realitycheck said, on October 22, 2006 at 7:12 pm

    Hi Badri,

    I remember looking for it a while back, I was not able to locate it on the Supreme Court website. The case number is SCC 215 1992, writ petition civil. Snippets of the judgement are available all over the web, but the full text is not. Let me know if you find it.

    Did you try searching by judge name ? eg. Jeevan Reddy.

  6. Badri said, on October 23, 2006 at 12:58 am

    RC: I did all that! Judge’s name and even tried going year by year to look for this judgement. No avail. None of the websites online seem to have the entire judgement! I will now try to get it through offline methods to get hold of this judgement.

  7. […] See links to Indira Sawhney II here “How Kerala got its cream back“ […]

  8. obc said, on April 4, 2007 at 8:01 am

    ALL FORWARD CASTE PEOPLE OF KERALA ARE BASTARDS

  9. Ruchir Vatsal said, on April 5, 2007 at 2:34 pm

    Higly informative posting!!

  10. ravi srinivas said, on April 23, 2007 at 7:51 am

    You need to update this in view of the court order today

  11. anil said, on June 4, 2007 at 3:30 am

    very useful article

    http://www.eyekerala.com

  12. Arun said, on August 28, 2007 at 9:17 am

    Wishing a happy and prosperous onam.

    Once upon a lifetime in kerala

  13. lotto1233 said, on October 11, 2007 at 1:13 pm

  14. Strict scrutiny « Reality Check India said, on April 14, 2008 at 6:53 pm

    […]  See my article on it here. […]

  15. REJU said, on April 23, 2008 at 8:38 am

    IAM HINDU VEERASIVA COMMUNITY
    MY FATHER COMMUNITY PADARAM SO IAM INCLUDED IN THE OBC LIST IN KERALA
    PLEASE GIVE ME THE DETAILS MY EMAIL REJURAJERV@YAHOO.COM

  16. Raj said, on June 26, 2008 at 12:38 pm

    camelpost,
    The article is about OBC reservation and creamy layer. If you could give the same data for OBCs it would help us. Oflate Nairs are also trying for reservation for financially backward among them.

    few points
    ——————–
    * creamy layer (or similar) is already implemented for professional courses (Engg, Med etc).
    * Proportion of govt jobs is very small compared to total job openings. So the impact of reservation is not much so far. Let it NOT grow like a cancer (quota in Private org). OBCs are well represented in private firms. Implementing quota in Priv firms wouldn’t benefit OBCs rather harms his self esteem.
    * Politicians will NEVER take any steps to eradicate caste based reservation. They can reap more from a divided society.
    * Implementing creamy layer will not help forward castes as the number of applicants in general category increases and jobs will be taken away by OBC creams (assuming OBC creams are equally good as any FCs). Who can benefit from creamy layer? : Only the backward among OBCs.

    – I belong to a politically Influential caste in Kerala apparently listed under OBC which I feel is an error.

  17. Heartburn Home Remedy said, on April 15, 2009 at 12:56 pm

    After reading the article, I just feel that I really need more info. Could you share some resources ?

  18. […] Related Kerala stories on blog : Indira Sawhney I,  Creamy Layer – A Kerala story […]


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