Since there have been quite a few comments on my stand, I thought I could post a fresh piece, than respond to those comments separately.
First, I would like to thank Mr.Vikram Raghavan for the compliment, even though I hardly deserve it. I find, however, that my interpretation of the events which led to the CJI advancing the hearing of the case to May 8 has so far not been seriously disputed, which only shows my co-bloggers share my perspective on this, to some extent.
Secondly, Mr.Vikram wants me to explain how creamy layer criterion for the purpose of 16-4 could be different from that of 15(5). I feel the answer has already been provided by Mr.Pratap Bhanu Mehta. He agrees that the Government’s arguments in favour of not excluding creamy layer for the purpose of 15 (5) are “reasonable”. But he tends to agree with the Pasayat-Panta Bench that it is “inadequate justification”. Now, to my understanding, there is no big gulf between the etymological significance of the words “reasonableness” and “justification”. In other words, what is reasonable, can also be of assistance in justification. The March 29 Order of the P-P Bench does not say Government’s justification is inadequate on creamy layer issue. It simply avoids any mention of the Government’s many arguments, saying they need to be examined at length during the August hearing. It does not even prima facie record any finding that these arguments are inadequate justification. Mr.Mehta believes that the stay was given on the basis of the Bench’s finding that the Govt.’s justification on creamy layer is inadequate. I do not know how he would explain, if he is pointed out that there was no such finding at all. No doubt, it is just a stay. But let the stay be justified on certain grounds.
First, I would like to thank Mr.Vikram Raghavan for the compliment, even though I hardly deserve it. I find, however, that my interpretation of the events which led to the CJI advancing the hearing of the case to May 8 has so far not been seriously disputed, which only shows my co-bloggers share my perspective on this, to some extent.
Secondly, Mr.Vikram wants me to explain how creamy layer criterion for the purpose of 16-4 could be different from that of 15(5). I feel the answer has already been provided by Mr.Pratap Bhanu Mehta. He agrees that the Government’s arguments in favour of not excluding creamy layer for the purpose of 15 (5) are “reasonable”. But he tends to agree with the Pasayat-Panta Bench that it is “inadequate justification”. Now, to my understanding, there is no big gulf between the etymological significance of the words “reasonableness” and “justification”. In other words, what is reasonable, can also be of assistance in justification. The March 29 Order of the P-P Bench does not say Government’s justification is inadequate on creamy layer issue. It simply avoids any mention of the Government’s many arguments, saying they need to be examined at length during the August hearing. It does not even prima facie record any finding that these arguments are inadequate justification. Mr.Mehta believes that the stay was given on the basis of the Bench’s finding that the Govt.’s justification on creamy layer is inadequate. I do not know how he would explain, if he is pointed out that there was no such finding at all. No doubt, it is just a stay. But let the stay be justified on certain grounds.
However, I do agree, as pointed out earlier in the comments section, that the Government could have explained/answered better the criticism that there is inconsistency in its reliance on the OBC lists, adopted for 16(4), for the sake of 15(5),and its reluctance to exclude creamy layer, as mandated by Indra Sawhney.
In principle, I do not have strong views in favour of including creamy layer. In fact, my perspective on this is still evolving. First , I seemed to agree with Justice O.Chinnappa Reddy’s view that since creamy layer in the general category is not excluded from the job b enefits, there is no rationale for excluding creamy layer from the OBCs. I found the Indra Sawhney’s judgment somewhat inconsistent in the sense – they justified exclusion of CL in order to maintain compactness of the OBC group, even though 16(4) was about favouring those classes inadequately represented in the services. Still, I thought one could go along with it, since a subsequent amendment facilitates carry-forward of unfilled vacancies (A.16 [4B] ) since the concern of pro-creamy layer group is about unfilled vacancies due to want of sufficient eligible candidates within the non-creamy layer OBCs. In the case of educational institutions, the situation is different, as there is no carry-forward rule, but the unfilled seats would invariably go the general candidates within the same academic year.
That is why I found the CPI(M) proposal somewhat interesting: first reserve 27 % for the non-creamy layer OBCs, then the unfilled seats within the quota could go to the creamy layer OBCs. Mr. Ravi Srinivas believes the CPI(M) is not sincere, as it plays a different game in TN. May be. But I would like to confine myself to the merits of the proposal, rather than analyse the motives of the proposer. I should, however, add that my views on creamy layer are not still final, and I am amenable to more persuasive arguments.
Other bloggers have expressed other criticisms, of which one needs to be rebutted: I seem to agree with the view that the court is fine, as long as it passes decisions with which Parliament agrees. My answer: It is very rare that Parliament unanimously passes a law, with which the Court is unhappy. Even then, I am not in agreement with the view, I am credited with by my critics. Let the Judiciary do its job of interpreting the law. If the Parliament is unhappy with its decisions, it has remedies, in the form amending the law and the Constitution, as happened in the 1950s, in the matter of land reforms, the very First Amendment being the finest example. Imagine the Nehru Government being criticized for overturning the Champakam Dorairajan verdict in 1951 through the First Amendment which resulted in 15(4). Is not 15(4) now accepted as a reality, and proof of our commitment to compensatory discrimination? Were the Courts unhappy then, or even subsequently? Did not the Courts later take this Parliament’s assertiveness in their stride? Imagine what would have happened, if the Courts had the final say in all those landmark cases? Would it have been possible for our Governments to go ahead with governance and several welfare measures for the people? No doubt, the Government has realized the importance of 15(5) belatedly in 2006, only because T.M.A. Pai and Inamdar decisions did not come earlier from the SC. The critics question the Government’s timing of the Act, and attribute political motives to it. Which Government has no political motives? If all parties support a measure, which party is likely to derive undue political advantage from it? Are political motives inherently unethical in a democracy?
In principle, I do not have strong views in favour of including creamy layer. In fact, my perspective on this is still evolving. First , I seemed to agree with Justice O.Chinnappa Reddy’s view that since creamy layer in the general category is not excluded from the job b enefits, there is no rationale for excluding creamy layer from the OBCs. I found the Indra Sawhney’s judgment somewhat inconsistent in the sense – they justified exclusion of CL in order to maintain compactness of the OBC group, even though 16(4) was about favouring those classes inadequately represented in the services. Still, I thought one could go along with it, since a subsequent amendment facilitates carry-forward of unfilled vacancies (A.16 [4B] ) since the concern of pro-creamy layer group is about unfilled vacancies due to want of sufficient eligible candidates within the non-creamy layer OBCs. In the case of educational institutions, the situation is different, as there is no carry-forward rule, but the unfilled seats would invariably go the general candidates within the same academic year.
That is why I found the CPI(M) proposal somewhat interesting: first reserve 27 % for the non-creamy layer OBCs, then the unfilled seats within the quota could go to the creamy layer OBCs. Mr. Ravi Srinivas believes the CPI(M) is not sincere, as it plays a different game in TN. May be. But I would like to confine myself to the merits of the proposal, rather than analyse the motives of the proposer. I should, however, add that my views on creamy layer are not still final, and I am amenable to more persuasive arguments.
Other bloggers have expressed other criticisms, of which one needs to be rebutted: I seem to agree with the view that the court is fine, as long as it passes decisions with which Parliament agrees. My answer: It is very rare that Parliament unanimously passes a law, with which the Court is unhappy. Even then, I am not in agreement with the view, I am credited with by my critics. Let the Judiciary do its job of interpreting the law. If the Parliament is unhappy with its decisions, it has remedies, in the form amending the law and the Constitution, as happened in the 1950s, in the matter of land reforms, the very First Amendment being the finest example. Imagine the Nehru Government being criticized for overturning the Champakam Dorairajan verdict in 1951 through the First Amendment which resulted in 15(4). Is not 15(4) now accepted as a reality, and proof of our commitment to compensatory discrimination? Were the Courts unhappy then, or even subsequently? Did not the Courts later take this Parliament’s assertiveness in their stride? Imagine what would have happened, if the Courts had the final say in all those landmark cases? Would it have been possible for our Governments to go ahead with governance and several welfare measures for the people? No doubt, the Government has realized the importance of 15(5) belatedly in 2006, only because T.M.A. Pai and Inamdar decisions did not come earlier from the SC. The critics question the Government’s timing of the Act, and attribute political motives to it. Which Government has no political motives? If all parties support a measure, which party is likely to derive undue political advantage from it? Are political motives inherently unethical in a democracy?
“That is why I found the CPI(M) proposal somewhat interesting: first reserve 27 % for the non-creamy layer OBCs, then the unfilled seats within the quota could go to the creamy layer OBCs. Mr. Ravi Srinivas believes the CPI(M) is not sincere, as it plays a different game in TN. May be. But I would like to confine myself to the merits of the proposal, rather than analyse the motives of the proposer.”
If this proposal has to be implemented the institutions
will have to classify OBCs
into two groups at the stage
of collecting information from
the applicants.And again when
deciding the cut-off marks also
this differentiation has to be
done.Since the income limit
for creamy layer is not uniform
across all states the data from
states (if any) on creamy layer, non-creamy layer OBCs may not be very useful is testing this proposal as a hypothesis.
As with many other issues
is reservation the sheer lack
of data becomes a issue if one wants to test the validity of one proposal/hypothesis or other.
Do we know the caste wise distribution of seats,jobs among
OBCs in the states and the centre.
Imagine the Nehru Government being criticized for overturning the Champakam Dorairajan verdict in 1951 through the First Amendment which resulted in 15(4). Is not 15(4) now accepted as a reality, and proof of our commitment to compensatory discrimination? Were the Courts unhappy then, or even subsequently? Did not the Courts later take this Parliament’s assertiveness in their stride? Imagine what would have happened, if the Courts had the final say in all those landmark cases? Would it have been possible for our Governments to go ahead with governance and several welfare measures for the people?
I am probably in a minority of one in saying that I think that the Nehru government decision to overrule the Dorairajan ruling was wrong, at least in retrospect. Let me explain my position; let me also note that I will ignore some of the questions that you raise above about whether the Courts were happy about this overruling etc.
I do not deny that the quotas system has benefited some from the backward caste/classes. However, I do think that there are costs associated with this policy and in my subjective judgment, these costs are significant enough to undo the gains of the quota system.
First, one bad outcome is the fact that all discussion of affirmative action is now framed around the quota system. As even Yogendra Yadav – a supporter of the reservation system – acknowledges, there is insufficient discussion of the alternatives, and even of the drawbacks of the reservation system. The whole discussion is centred around the question of whether you are pro-reservation or anti-reservation.
Secondly, once reservations are introduced, it becomes difficult to remove them. This is similar to the problem in economic policy making of removing subsidies once given to particular groups and/or companies. Such groups develop a vested interest in the maintenance of the system and will fight to maintain it. We have to recognize that if “upper castes” have vested interests in maintaining the caste system using spurious arguments, then other groups will also have vested interests in maintaining the reservation system. Self-interest is not the sole prerogative of the upper castes. (I remember Andre Beteille remarking in a Delhi School seminar that if sociologists had any advantage, it was solely in that the sociologist recognized that all humans had self-interest, including the sociologist himself.) I would argue that in places like Tamil Nadu, it is now self-interest masking as social justice.
For these reasons, I think policies like quotas which essentially create exceptions for certain groups ought to be used very carefully. I get the feeling – may be, wrongly – that this is not the case in India.
Anyway, the cost of the Dorairajan overruling – if one can put it that way – has been (i) the agenda has been determined for future generations solely in terms of the reservation system, (ii) groups have developed vested interests in maintaining this system, (iii) insufficient attention has been paid to alternatives. Note that the cost of (iii) – things like good primary and school education, health, etc. – have been borne significantly by the backward castes/classes themselves.
You end with the question: “Would it have been possible for our Governments to go ahead with governance and several welfare measures for the people?”
My answer: Why not? The Nehru government could have chosen to target primary education, child labor, malnutrition, primary health care among other things. It is disgraceful that we still have failed to address these issues 60 years after independence – and the blame for this must be shared by all the post-independence governments and all castes and classes. (But of course, the well-off castes must share a disproportionate share of the blame, since these groups influence government policy to a disproportionate extent.)
Let me make another controversial point. The reservation system is in effect, a trickle-down policy. It, by design, is meant to target the relatively well-off among the deprived groups. The hope is that by doing so, it will over time, also help the not-so-well-off among the deprived This needs to be recognized – again, I remember Andre Beteille making the point more than ten years ago that the whole thing about excluding the creamy layer was misplaced. He noted that in the US, the policymakers were very clear that the beneficiaries of affirmative action were going to be exactly the relatively well-off among the African-Americans. We are of course, a very different country and the question that we have to ask ourselves: Is a top-down (or trickle-down) policy the best way of helping the deprived in our country?
Last, since I was the one who attributed to you the belief that the Court was okay so long as its judgments accorded with what Parliament wanted, let me say that if you say that you do not hold that belief, then I accept that and apologize for having got you wrong.
Best regards,
Suresh.
Dear Mr.Ravi Srinivas, I don’t think the problems you pose are formidable, if CPI(M) proposal is considered as a solution.
Dear Mr.Suresh,
I get the impression that you are in favour of inclusion of creamy layer, as you believe in trickle-down theory. On the other hand, are you implying that compensatory discrimination and the Government of India’s efforts to improve primary education etc. are inconsistent?
Dear Mr. Suresh,
On rereading your response, let me correct myself. The way you have posed the question, I think you disagree with Andre Beteille. But I would like to know whether you believe in trickle-down, and what has been the experience in the U.S., and why you think it is irrelevant here.
Mr. Venkatesan,
I don’t know too much about the US experience. About 1995, I heard a US academic in Chennai talk about affirmative action. This academic – sorry I forget his name – was trying to the answer to the following question: Over the period from 1970-1990, the US labour market has changed in that there are more working blacks, women etc. This period is also a time when affirmative action was operational. So, is there any part of this change which can be attributed unambiguously to affirmative action?
Note that this is not a trivial question because other factors were also influencing the labour market at the same time and to isolate the effect – if any – of affirmative action is not easy. His analysis suggested that there was nothing which could be attributed unambiguously to affirmative action. He was quick to note, though, that his analysis could not say whether this was because (i) affirmative action was ineffective or (ii) because firms were not implementing affirmative action properly.
I am sure there has been more work since then, but I have not kept touch with the literature.
About my personal view on reservations: If we are to have reservations, then it makes no sense to exclude the “creamy layer” (who came up with this phrase anyway? it only reflects our national obsession with colour.) As others have noted, reservations are a trickle-down type of policy – they are designed to help the relatively better-off and so it makes no sense to complain that the beneficiaries are mostly the well-off in the deprived classes.
The more crucial issue is whether a trickle-down type of policy is the best approach in our context. On this I am not so sure and my previous post outlines some of the problems I have with this type of policy. I think we need a national debate to discuss all this but that does not appear to be possible in the current scenario where the debate is narrowly focused on whether one is pro or anti reservation.
I think people like Yogendra Yadav etc. are trying to broaden the terms of the debate and I hope their efforts succeed.
Best regards,
Suresh.