Reality Check India

SC upholds promotions based on caste quotas

Posted in Uncategorized by realitycheck on October 19, 2006

supreme-court.jpg 

The supreme court today passed an order today that indicates how seriously it views ad-hocism when it comes to classification. The judgement was pronounced on a bunch of petitions challenging the validity of the 77th, 81st, 82nd, and 85th amendments.

Can anyone guess what the 76th amendment is ? What the very 1st amendment is ? See here and here

The key part of the order is :

We reiterate that the ceiling limits of 50 per cent, the concept of creamy layer and the compelling reasons namely backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in article 16 would collapse,” the bench, also comprising Justices KG Balakrishnan, SH Kapadia, CK Thakker and PK Bala Subramanyen said.

Source : Times of India

The bold emphasis is mine. The court has directed that backwardness and inadequacy of representation is a constitutional requirement. In other words, it would be unconstitutional to ignore any of these criteria. Even an amendment to do away with data may be struck down.

More :

However, if they wish to exercise their discretion and make such provision the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of article 335, the bench said.

Same source as above quote.

This is pretty strongly worded. First of all, we all know that quite a bit of data IS available for both scheduled castes and scheduled tribes. Individual caste data within these groups may not be available – but atleast we know for sure how many scheduled castes there are in each state. This information was collected as late as 2001 (and every 10 years before that).

The lack of data for OBCs is much more serious – in addition to dramatic regional variation that is unexplained. According to the recent NSSO survey, Tamilnadu has almost no forward castes (about 10%) whereas Bengal has almost no OBCs (only 6% – TN has 65% OBC). For OBCs the need to establish backwardness is far more basic than for SCs because the rationale for SC quota is caste itself and the atrocities committed on them.

The honble court may do well to clarify the following:

  • Inadequacy of representation : What does that mean ? Does it mean adequate representation or proportional representation ? In either case, the lack of individual caste (yadavs, kurmis, vanniers,..) based data will make this impossible to establish.
  • Quantifiable data showing backwardness : Is it backwardness relative to the national average or to the topmost slice ? Compared to the Parsis, should everyone in India be considered backward ? If there is no benchmark reference here – then it is open to political manipulation.
  • Exclusion of creamy layer : A slight clarification, if a SC or ST person is promoted out of turn due to his/her caste to a Class – I or Class – II position. Then that person is automatically in the creamy layer, how would that work then ?
  • Creamy layer definition itself : There is a major loophole here. The politicians will exploit it to the hilt. What is the benchmark reference point for the creamy layer ? Today it is 2.5 lakhs per year (which is a person who earns the per capita of Malaysia  in India) – in a poor country only a very few fortunate souls are able to pull this amount in. What if tomorrow some politicians bumps it up to 6, 8, or 10 lakhs per year ?
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13 Responses

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  1. Shivam said, on October 19, 2006 at 8:12 pm

    So now even the SC says that quotas are based on the idea of representation and that this is a constitutional requirement. You have all along dismissed the word ‘representation’. Time to eat humble pie?

  2. Barbarindian said, on October 19, 2006 at 8:38 pm

    SC is not saying that quotas are based on representation, SC is merely interpreting what the current constitution says. SC can not and should not make a moral judgement of its own.

    Unfortunately, our constitution can not defend itself. In its very first avatar, there was no mention of quotas, forget about all those socialistic ponzi schemes. It took only a few months for the politicians to realize that they could basically use the pagees from the constitution as toilet paper.

    We all know what happens since then. As soon as SC orders come in the way of a politicians whim, all it takes is the next session.

    Time to eat crow perhaps?

  3. Barbarindian said, on October 19, 2006 at 8:50 pm

    RC,

    Why has the focus of the pro-quota rich socialists shifted from social justice to representation? Has it got something to do with the creamy layer situation? Or is it because trying to pass of the SC/ST plights as OBCs’ is running into hot waters?

    Just wondering.

    Oh by the way, when will the wealth of rich Jats be confiscated and distributed equally to all communities?

  4. realitycheck said, on October 20, 2006 at 4:51 am

    Quotas are not BASED on representation, but on caste for SC – tribal status for ST – and social and educational backwardness (SEBC) for OBCs. Period.

    However, representation is one of the key indicators about a particular castes status in society. If a caste is well represented in the open quota, it is time for it to be taken off the list.

    I said before that if we have a quota based purely on representation then we would not have a social justice system but a simple communal quota based on population. The erstwhile Madras state had this system. (Out of 14 seats, 6 = non-brahmin upper caste hindus, 2 = brahmins, 2 = backward hindus, 2 = sc, 1 = christian, 1 = muslim). So there, that is a way of splitting up available seats. This system is finito – this was held to be unconstitutional in 1951. You cant just divide up seats based on representation without consideration for backwardness. Read more here https://realitycheck.wordpress.com/2006/06/22/the-first-amendment/

    What the supreme court is saying is: for promotions of SC/ST officers, the government must provide data about inadequate representation in addition to the candidate being in the non-creamy layer.

    I think you should reconsider your line of thinking. Data on representation is a *key* statistic to measure the quota beneficiaries – but the quota system itself is not based on it.

  5. Barbarindian said, on October 20, 2006 at 7:23 pm

    A slight clarification, if a SC or ST person is promoted out of turn due to his/her caste to a Class – I or Class – II position. Then that person is automatically in the creamy layer, how would that work then ?

    This part is hysterically funny when you think about it.

    I think the Govt. should just enact a special privilege tax and give the money to whoever are the current leaders of the oppressed, such as Meira Kumar, Ramadoss, Laloo or whoever. Then they can divide the loot as they please. The mere administration of this atrocity (and productivity lost due to all the chaos) is perhaps costing the country thousands of crores each year.

  6. ravisrinivas said, on October 25, 2006 at 12:15 pm

    The Supreme Court has come a long way since the Thomas case on quotas in promotions for SCs,STs.It has settled for a 50% limit.
    So far so good, but the SC/ST lobby is very powerful and will
    try to scuttle the implementation of the judgment.
    The judgment upholds the amendments and has placed many a stumbling block in implementing them.It is possible
    that another set of amendments will be brought to negate the
    conditions set by the Supreme Court.Which means another round
    of litigation.

    Adequate representation does not mean proportional representation.See the judgment of A.P high court on reservation for muslims for a discussion on this.

  7. realitycheck said, on October 25, 2006 at 5:38 pm

    Ravi –

    My apologies – I dont know why WordPress moved your comment to spam. This is really frustrating !

    Proportional representation is the most dangerous of all schemes. People do not understand that OBC/SC/ST are all group quotas – they are not like quotas for Bhumiputeras, African Americans, or South Africans.

    No one is a member of OBCs, they are members of a caste which happens to be classified as OBC at that point in history. If you talk about proportional representation then we would have something like this in AIIMS : Ezahava-1, Gounders-1, Vannier-1, Kurmi-2, Kappu 1 seat every 3 years, Mudaliar 1 seat every 4 years, Brahmin 1, Korava 1 seat every 6 years, Muslim Syed 1 seat, and so forth. We certainly do not want this now, do we ?

    The key therefore is to understand the group nature of OBC/ST/SC. Individual castes must have recent backing data to continue their claim to be members of this group. It is like a “club subscription”.

    The worst thing that can happen is if the group is compromised by inclusion of members in an ad-hoc way. The weaker members will be suppressed and left high and dry.

    The nation continues the delusion that some social justice is being done – the intended beneficiaries are nowhere in the picture. Article 14 – the right to equality has been broken for no value to the nation.

    A consitutional amendment that tries to do away with the 50% ceiling or the creamy layer critiria is likely to be shot down by the SC. The recent judgment seems to indicate that.

  8. […] In a recent judgment the Supreme Court has introduced the concept of creamy laer among SC/STs for promotions in government jobs. Now, if there is any concept  the votaries of backward politics despise, it is the concept of creamy layer. Because it threatens the status quo,  threatens those who have  fattened on a largely non-monitored policy of reservations. So, the defenders of backwards were quick to jump in, co-opting the SC/STs in the larger cause of social justice. "You are all aware that there is a setback caused to reservation by certain judgments of the Supreme Court. Now the matter is being taken for consideration by a nine-member constitutional bench of the court. Any law enacted and brought under Schedule Nine is also under attack," he said in letters to CMs.The TN chief minister argued that all states have a compelling reason to oppose this trend against reservation and social justice, and wanted the case to be referred to a larger bench. […]

  9. Mira Pathak said, on October 30, 2006 at 4:33 pm

    The creamy layer had a 4 lakh limit as of March 15, 2006!

    http://www.thehindu.com/2006/03/15/stories/2006031524840100.htm
    4-lakh income limit for creamy layer

    Special Correspondent

    State Cabinet accepts recommendations of the Group of Ministers

    # Decision on the norm to be kept pending
    # Creamy layer should be done away with
    # Apex court had directed exclusion of creamy layer

    HYDERABAD: The Cabinet on Tuesday accepted the recommendations of the Group of Ministers (GOM) fixing an annual income ceiling of Rs. 4 lakhs to identify the creamy layer among backward classes for excluding them from the purview of reservations.

    However, the decision to implement the creamy layer norm would be kept pending as the Government has written a letter to the Centre to bring in a constitutional amendment doing away with the concept of creamy layer for the purpose of reservations, official sources said. They pointed out that the creamy layer among SCs and STs was not excluded from the reservations.

    According to the sources, the Government had to fix the criteria for identifying creamy layer since the Centre had been constantly sending reminders either to evolve its own norms or adopt those already fixed by the Union Government. The Centre had fixed Rs. 2.5 lakhs as the ceiling. Except Andhra Pradesh, Manipur and Andamans & Nicobar Islands administrations had not fixed the criteria for identifying the creamy layer.

    The Supreme Court had directed in the Mandal Commission case that the Centre and States identify the creamy layer among BCs to exclude them from the benefits of reservations. Further, in 1993, the Centre had issued orders enumerating persons belonging to OBC for exclusion from reservations. The State Government had requested the Andhra Pradesh Commission for Backward Classes to evolve criteria to identify creamy layer among socially and educationally backward classes.

    Panel report

    The BC Commission submitted its report to the Government on August 1, 1994. The Cabinet at its meeting on August 25, 1994, referred the issue to a Cabinet Sub-Committee to make an in-depth study and make recommendations.

    The sub-committee and GOM had held several meetings and the latter also held wide discussions with representatives of political parties and submitted detailed recommendations on February 22, 2006.

  10. Mira Pathak said, on October 30, 2006 at 4:48 pm

    How can the creamy layer ceiling be 4 Lakhs per annum when average salaries are around Rs. 54 K?

    http://timesofindia.indiatimes.com/articleshow/1789927.cms
    Average Delhiite earns Rs 54K

    Nidhi Sharma
    [ 22 Jul, 2006 0040hrs ISTTIMES NEWS NETWORK ]
    RSS Feeds| SMS NEWS to 8888 for latest updates

    NEW DELHI: If you are living in Delhi, this is probably the best time. The economy is booming like never before and the per capita income is more than double the national average.

    According to Delhi government’s estimates of state domestic product (SDP) 2004-05, the per capita income of Delhi at current prices has increased from Rs 49,494 in 2003-04 to Rs 53,976.

    Delhi’s per capita income has left the national average way behind. The national per capita income at current prices is Rs 23,241 which makes Delhi’s more than twice as much.

    The growth rate of Delhi’s per capita income has been climbing steadily. In 2002-03, Delhi’s per capita income grew by just 2.9%.

    The increase in 2003-04 was 8.6% and then climbed up to 9.1% in 2004-05. The all-India per capita income growth rate has exceeded Delhi’s rates in recent years, but has not helped in closing the gap between the NCT’s levels and those of the rest of India very much.

    The SDP represents the value of all goods and services produced within the NCT. It is one of the most important indicators used to measure the growth of the state’s economy. The report was released this week.

  11. Mira Pathak said, on October 30, 2006 at 5:22 pm

    see the original website for more details

    http://www.neoncarrot.co.uk/h_aboutindia/india_economy_stats.html

    statistics on income, wages, labour force etc
    average per capita income (GNI): 470 US Dollar (2003)
    – average per capita income in Bihar: 4,616 Rupees (approx 80 Euro)
    – official minimum wage in Jammu & Kashmir state: 1,800 Rs per month (or
    60 Rupees per day, equiv to 1.2 Euro per day) for simple labourer
    – official minimum wage in Himachal Pradesh: 65 Rupees per day (simple labourer)
    – * population living on less than 2 USD per day: 41.4 percent [v2020; Apr 2003]
    – * average monthly wage: 179 USD [GTF; 2005]
    – India’s working age population (15-60 years): 610 million (estimate 2003)
    – growth of India’s labour force: 1.9 % per year [BBC Jul 04]
    – growth of job creation between 1994-2000: 1.07 % per annum
    – estimate of wage increase over the next four decades: 800 % (estimate by IMF)
    [BBC Jul 04]
    – * number of cabin crew working for Air India: 1,600 [BBC, Jan 2006]
    – * salary of senior Air Hostess in India: up to 75,000 Rs per month [BBC, Jan 2006]
    – * percentage of Air India’s cabin crew being overweight or obese: 20 % [BBC, Jan 06]
    – * expected increase of passengers in the Indian aviation market: approx 45 million
    over next 5 years [BBC, Jan 2006]
    – * monthly salary of 5 year old Police Officer in Chattisgarh: 2,500 Rs (the boy took
    over the job from his father when he died, responsible for filing and bringing tea)
    [BBC, Sep 2005]
    – * number of children working in Tamil Nadu districts of Kanchipuram and
    Thiruvanamalai in silk industry: 10,000 estimate [BBC; Aug 2005]
    – * Indian child labourers: between 10.25 % to 19.90 % of all Indian children aged 9-15
    [BBC; Aug 2005]

    some data on government income and spending
    * Indian foreign exchange reserves: March 2005: 137.55 bn USD [Rediff; Mar 05] —
    mid Dec 2005: 144.05 bn USD — end Dec 2005: 137.2 bn USD [IInfoLine; Jan 2006]
    – * India’s Gold reserves end Dec 2005: 5.27 bn USD [IInfoLine; Jan 2006]
    – India forex reserves 2004: over 80 billion Euro (cash + foreign investment)
    – * corporate tax rate: 35.88 % [GTF; 2005]
    – * VAT tax rate: 12.5 % [GTF; 2005]
    – * rate of inflation: 3.8 % [GTF; 2005] — earlier about 6 % [BBC Jul 04]
    – number of tax payers: 20 million (2 % of the population) [BBC Jul 04]
    – money collected in income tax (per year): more than one trillion rupees (17.6 bn Euro)
    [BBC Jul 04]
    – lowest rate of income tax: 10 % (at annual income between 50,000 and 60,000 Rs,
    equiv to 960-1150 Euro) [BBC Jul 04]
    – top rate of income tax: 30 % (at annual income above 150,000 Rs,
    equiv to 2880 Euro) [BBC Jul 04]
    – increase of government ‘s gross tax collection for time period April – October 2003:
    8.89 % up from previous year
    – increase of military spending by government with new budget Jul 04: 18 %,
    to 770 bn Rs (14.8 bn Euro) [BBC Jul 04]

    see
    http://www.neoncarrot.co.uk/h_aboutindia/india_economy_stats.html

    for Economy & employment stats, facts and figures

  12. realitycheck said, on October 30, 2006 at 6:25 pm

    Mira-

    This is insane, but expected. The problem is this kind of adhoc increases in creamy layer income criteria may not stand the test in court.

    4 Lakh per annum translates to about 36K verifiable income per month. This translates to someone earning USD 9-10000 per year in India, in other words this person earns the equivalent of Czech Republic/ Hungary/ and slightly less than Saudi Arabian per capita (nominal) sitting in India.

    More important than the creamy layer criteria, is the concept of OBCs itself. Who are the OBCs ? What is the historical and cultural significance behind the fact that Bengal and Assam have only 6-10% OBC where as TN and KA have 65 and 50% OBCs ?

  13. Mira Pathak said, on November 16, 2006 at 12:28 pm

    http://en.wikipedia.org/wiki/Other_Backward_Class

    “Candidates belonging to OBC recruited on the basis of merit in an open competition should not be adjusted against their reservation quota of 27 per cent”.

    I think this certainly calls for an amendment. OBC’s will fill the general and the OBC quota as can be seen from Tamil Nadu! At least the OBC quota should be *first filled* in IIT and IIM


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