Remarkable judgment on creamy layer issue among OBCs

Ending all speculations over reservation issue, which has engulfed the entire nation since its inception, the Supreme Court on Thursday came with its landmark ruling that upheld the Constitutional amendment law providing 27 percent quota for Other Backward Classes (OBCs) in Institutions of higher education like IITs and IIMs and other Central educational institutions.

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However, the Court kept the creamy layer out of the OBC’s reservation benefit.

A five-member bench headed by Chief Justice K G Balakrishnan in its unanimous verdict cleared the Central Educational Institutions (Reservation in Admission) Act, constituted for the purpose of providing quota in 2006. The bench accepted there was no harm in implementing the OBC quota this year, as the Act does not violate the basic structure of the constitution.

After the Supreme Court ruling there is no choice left for agitation except to take the pills of tranquillity. But, if the government makes any attempt to outwit the apex court verdict, which has excluded the creamy layer among the OBC from quota benefit, in that case the anti-quota activists might spearhead the agitation.

Earlier on March 29, 2007 the Supreme Court stayed the law providing 27 percent reservation for the OBC in educational institutions like IITs and IIMs. The Court in its statement had said the reservation on the basis of 1931 census could not be a determinative factor for identifying the OBCs. The Court also maintained, “Reservation cannot be permanent and appear to perpetuate backwardness.” With the fresh judgment the interim order of the March 29, 2007 had been lifted.

Reservation soon had turned into a burning issue with the establishment of Mandal Commission in 1979 under the chairmanship of B P Mandal by the Janata Party Government headed by Prime Minister Moraji Desai with a direction to identify socially or educationally backward classes.

The Mandal Commission adopted various ways to amass the necessary data of the exact number of OBCs in India and grouped them into three categories namely, social, economic and educational. But the data collected by the commission caught into controversy and question raised over its fairness as the data was compromised by partisan politics.

The commission submitted its report in 1980, which recommended 27% reservation in all services and public undertakings under the Central government and 27% in higher education for OBCs in addition to the existing 22.5 reservation for Schedule Castes (SCs) and Schedule Tribes (STs). Of these 22.5 percent reservation, 15 percent were reserved for SCs and 7.5 percent for STs under the 1950, Constitution of India. In 1963 the Apex Court had come out with the judgment that said the total reservations could not be more than 50 percent.

The recommendation could not be implemented by the then government owing to widespread agitation. It was V P Singh, the Congress prime minister in 1989; the OBCs reservation came into existence despite extensive agitation.

The creamy layer concept was first introduced by the Apex Court in 1992 to identify the elite group among the OBCs and with a view to provide benefit to the neediest, the Court asked the government to exclude the creamy layer among the Other Backward Classes.

Accordingly, the children of constitutional functionaries comprising the President, judges of the Supreme Court and High Courts, members of the Union Public Service Commission, Groups A and B or Class I or II officers of the All-India Central and State services and children of public sector employees are excluded from reservation.

The anti-reservation activists were opposing the quota bill for reservation in higher education for three reasons. First, inclusion of creamy layer in OBC would mean ‘unequal being treated as equals’ resulted in the most backward classes destitution from the benefit of reservations. Secondly, the inclusion of creamy layer on the basis of caste would mean the violation of Article 15 (1) and Article 29 (2). And finally, since the identification of the OBC’s was done on the basis of 1931 census, the exclusion of creamy layer on that basis would be just null and void.

The Supreme Court today said the exclusion of creamy layer among OBCs and periodical revision in the identification of creamy layer, but how far it would be implemented, is a matter of question.

Now after the Supreme Court judgment, dated April 10, 2008 the picture is clear over the exclusion of creamy layer from the OBCs. The only need now is to implement it under fresh identification, as identification on the basis of 1931 is completely unacceptable and impractical. This is now essential to divide the OBC into two social blocks-Upper OBCs and Most Backward Classes (MBCs), as the upper OBCs would corner all the benefits of reservation.

Also, the time is ripe now to extend this “creamy layer” principle to Schedule Castes and Schedule Tribes. The dark truth has now been quite prevalent that new elite of educated Dalits, Adivasis and OBCs only benefit from reservation leaving the most backward in them down to the earth, which means the poor is getting poorer and the rich is getting richer.

The next directive that Supreme Court should issue to the government, if government do not take owing to vote bank policy, regarding completely scrapping of caste based reservation, instead give direction to make amendment in the constitution to implement reservation based on the economic condition of the family, no matter what caste it belongs.