Scourge of reservation: The invisible creamy layer

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Scourge of reservation: The invisible creamy layer

Saturday, 12 September 2015 | Anish Gupta/ Aaleya Giri

The faulty implementation of the reservation policy helps only economically sound people from the so-called lower castes to fill up the reserved seats, thus countering the spirit of reservations. Hardik Patel needs to do the maths before giving his quota agitation a new impetus

The Hardik Patel-led agitation seeking OBC status and attendant reservation for Patidars has taken an ugly twist ever since Patel was arrested by the Ahmedabad Police. There has been a lot of turmoil surrounding the demands put forth by Hardik Patel and his followers. He comments, “The reservation system was put forward by political parties as an election plank. Because of this, the country has gone back 60 years. If you have to give reservation, give it to everyone.” However Patel’s stand on the reservation system has remained ambiguous.

The movement which he started as a protest against reservation took a dramatic turn when his demand for inclusion of his community under OBC status was addressed to the public. 

Interestingly Gaurang Jani, a sociologist and a member of the OBC Commission in Gujarat, observes that the predominant images of the Patedar rallies are of young men arriving in Pajeros, Dusters and Innovas. In fact, they have remained a dominant caste, beneficiaries of social, political and economic developments for long. Jani further claims that if the 11 criteria of backwardness for OBCs are applied, Patedars will not even qualify in one. Jani’s comments warrant that we understand the reservation policy in its entirety.

Indian judiciary on reservation

Rashmin Khandekar and Sunny Shah in their article “The History, Rationale and Critical Analysis of Reservations under the Constitution of India” published in India law Journal have discussed the fundamental questions: Can caste be the basis for reservationsIJ What is the basis for exclusion of the creamy layer from the ambit of reservationsIJ

The authors go back to the genesis of reservations in India which seems to begin with the cases of State of Madras vs Srimathi Champakam Dorairajan and Venkatraman vs State of Madras. In these cases, the Supreme Court held that any legislation and/or executive order recommending reservations on the basis of caste were unconstitutional. But Parliament intervened and in exercise of its constituent power amended Article 15 by inserting Clause (4) which states that “Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

The court, in the case of MR Balaji vs State of Mysore, observed that “caste” may be a relevant factor but not the sole and dominant criteria for determination of backward class.

However with the passage of time, judicial opinion underwent significant changes and more importance was given to “caste” as a factor to assess backwardness. In P Ranjendran vs State of Madras, it was held that though “caste” cannot be the sole criteria, it should not be overlooked that caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such caste.

In SV Balaram vs State of Andhra Pradesh, a list of backward class based solely on caste with material proving that those castes were socially and educationally backward, was considered to be valid.

In Jagdish Negi vs State of Uttar Pradesh, it was decided that no class of citizens can be continuously treated as socially and educationally backward and the State is entitled to review the situation from time to time.

Creamy layer debate

The term creamy layer was first coined by Justice Krishna Iyer in State of Kerela vs NM Thomas, wherein he observed that “benefits of the reservation shall be snatched away by the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the fortunate layers to consume the whole cake”.

However, in Indra Sawhney vs Union of India, the Supreme Court dealt with “creamy layer” at length. The case dealt with reservation of backward classes in case of public employment. The court emphasised that when a member of a backward class reach an advanced social level or status, s/he would no longer belong to the backward class and would have to be weeded out from the reservation list. After excluding the creamy layer alone, would the class be a compact class and such exclusion would benefit the truly backwardIJ Hence it is mandatory under Article 16(4) that the State must identify the creamy layer in a backward class and thereafter excluding the creamy layer extend the benefit of reservation to the ‘class’ which remains after such exclusion. Reservation of OBCs under Article 15 is designed to provide opportunities in education thereby raising

educational, social and economic levels of those who are lagging behind.

Another important issue with regard to the creamy layer controversy, as noticed by the authors, is whether the restrictions imposed on the creamy layer would apply in case of Schedule Caste and Schedule Tribes also. While the Supreme Court held that since creamy layer is a parameter to identify “OBC” it cannot apply to SCs and STs, the authors feel the other way.

The debate initiated by Rashmin Khandekar and Sunny Shah throws ample light on the nature of the controversial Hardik episode.

Considering the social and political history of our country, the policy of reservation was formulated with an ideology to stop caste discrimination and provide the lower caste people an opportunity to live with dignity in society. But corruption has seeped in. The reservation policy is now misused as a political tool.

It is commonly believed that denying reservation to the creamy layer is denying reservation to the entire community. But it is important to realise that if the policy of creamy layer is implemented, the benefit of the reservation will reach to the most deprived and thus deserving people of that particular caste. However, even the most educated and rich people (creamy layer) of that particular community, to protect their own interest, mislead their communities to believe that the Government is snatching away their rights to reservation. Sadly, they have also been successful in their attempt due to their large influence in convincing their communities.

Even some of the eminent scholars do favour reservation for the creamy layer in SC and ST categories. They argue that depriving the elite class of SC and ST, the benefit of reservation may result in seclusion of elite from their own community. As a result they may not only stop taking interest in the upliftment of their own community but also cultivate animosity against them.

However, this argument doesn’t hold water. Directly benefiting the poor of SC/ST would be better than benefitting the creamy layer in expectation that they would further help the poor of their own community. Instead of reaching out to the poor and backwards through the self-centred elites, the Government can find means to provide assistance directly to them.

The recently published news items allege that the Government, eyeing the Bihar election, is planning to raise the creamy layer limit for OBCs to `10 lakh to benefit the community. The limit of `10 lakh is for the people engaged in unorganised sector, whose incomes often remain unreported or underreported. This limit for creamy layer will include not only nearly all the politicians but also businessmen, landlords, and large farmers. Given the strong correlation between the income and education, can we expect poor OBC members to be able to compete with the rich OBC membersIJ

Reservation as a tool to gain political mileage

The BJP gets trapped in a vulnerable situation whenever there is any agitation related to reservation and regional conflict. The BJP cannot afford to let division happen on the basis of caste and region as it would affect its vote bank. However, any caste conflict can prove beneficial to the Congress as it depends largely on the votes of minority.

Allegedly the Congress had helped Bal Thackeray to grow in Maharashtra in 60s to curb the increasing influence of left parties. The issues raised and exploited by Bal Thackeray were related to Marathi culture and jobs reservation in Maharashtra for Marathis. Raj Thackeray, the MNS chief, who practiced the politics of hatred against north Indian, was also promoted by the Congress to check the growing influence of the BJP and the Shiv Sena.

Political parties often use reservation as a triumph card to enrich their vote bank. Ironically the political parties and media, who claim to be secular, do not seem to criticise caste conflict the way they criticise communal clash. Thus while, a major national daily having strong influence in the south in its editorial column published on August 27, 2015, strongly opposed the move of the Census Commissioner to release data based on religion, it demands an early release of population data based on caste. Similar views were shared by most secular political parties in India. Apparently the opponent parties are quite supportive of the ongoing agitation seeking reservation for Patels in Gujarat. Nitish Kumar has openly expressed his support for the move. The way Hardik Patel has shown praise for Bal Thackerey and MNS chief Raj Thackerey, it seems to indicate Congress's ploy to weaken the BJP by dividing the later’s vote bank.

The Gujjar movement in Rajasthan, demanding the status of ST, which begun in 2007, reminds us how political motives are played upon. The agitation killed hundreds of poor Gujjars in Rajasthan. Interestingly the leaders representing the Gujjar community did not agitate for reservation during 2008-13 when Ashok Gehlot was in power. The Congress was ruling at State and Centre both, and Sachin Pilot, the most prominent face of Gujjars, was a Minister at the Centre. Yet the entire episode was silenced. The agitation took momentum again in 2014 after Vashundhara Raje took over as Chief Minister of Rajasthan in 2013.

Again when the defeat of the Congress was almost certain in 2014 election, Rahul Gandhi announced reservation for the Jat of Haryana, Punjab and UP at the Centre by an Ordinance. The decision was allegedly criticised as their endeavour to appease the Jats after the Muzaffarnagar riots controversy. Similarly when the Congress realised that it cannot win the election in Maharashtra, it announced reservation for Marathas just a few months before the election. However their policy backfired each time.

Will inclusion of Patels in OBC solve the problemIJ

Hardik Patel alleges “If an OBC with 85% marks can get into a top college, this ensures general category students with 95% marks get left out.” This is not always true. Patel seriously needs to do some research and gets his facts corrected. Though there is a huge difference between the percentages required to get admission by SC&ST and the general category, the difference is negligible in case of OBCs. For instance, the recently declared AIPMT-2015 result reveals that while the cut-off marks for counselling for general category was 442, for OBC it was 435 out of 720, which means that the difference is just less than one per cent. Similar in the entrance examination

of UPSC and SSC, the gap between the general and the OBC is not huge.

It is really tough for the general category to get selected in the medical entrance but it is not easy for the OBCs as well. Given this negligible difference and huge OBC population how can the inclusion of the Patels in OBC solve the problemIJ It would further weaken the position of the really deprived section to get any benefit of reservation.

Who could be blamed for the messIJ

Now the question is why there is so much conflict surrounding reservation. Why do people fail to see through the motives of the self-interested political parties and fall prey to the ‘politics of division’ in the name of caste, class, religion, region and languageIJ The development model of our country is certainly at fault. The disparity between the growing population and jobs created at the Government institutions is huge. Similarly seats available for higher studies in the Government institutions cannot accommodate all deserving students. Given the facilities and financial security provided by the Government sector in the arena of employment and higher studies, there is lot of competition which often turns unhealthy. A country having a population of 1.25 billion offers just a few thousands seats in medical course! Not everyone can afford private institutions.

This problem of demand and supply is aggravated due to the reservation policy. Almost 50 per cent of the seats are reserved. The remaining half is unreserved which can thus be occupied by the reserved categories. People who have suffered the brunt of reservation are either against it or want themselves to be included within the ambit of reserved categories. Hence the urgency to prove one’s community backward is felt. The bitter experience combined with political support takes the form of nationwide agitation.

Besides, the faulty implementation of the reservation policy helps only economically sound people from the so-called lower castes to fill up the reserved seats, thus countering the spirit of reservations. Political parties are well aware that reservations are no means to improve the condition of the poor and the backward as Government sector provides less than 4 per cent of total jobs in India.  Instead of coming up with alternative pioneering ideas to enable equal representation from all community, irrespective of class, religion or caste, they keep the caste system alive for their own interest.  

 (Anish Gupta and Aaleya Giri teach Economics and English respectively at Delhi University. They can be reached at pioneer.article@gmail.com. One of the writers belongs to the OBC. Views expressed here are personal.)

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