 | Affidavits on mass must be filed by our social and political organizations and NGOs on big way to counter this move of Manuwadi UC/Brahmin court. Yes we are on right path, justice is on our side, but only thing is that justice only requires strong agitations and court activities against this draconian move of our opponents who are trying to take us to Manu Laws of 17th and18th Century.
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WE CAN'T AFFORD TO MISS THIS NEWS!!!HENCE WE MUST READ AND PROPAGATE AS BEST AS POSSIBLE.!!!!!
Important information to counter the move of introducing creamy layer in SC ST
On Tue, 6/9/11, Rahul Gajbhiye <rahulgajbhiye2004@gmail.com> wrote:
From: Rahul Gajbhiye <rahulgajbhiye2004@gmail.com>
Subject: : Important information to counter the move of introducing creamy layer in SC ST
To:
Date: Tuesday, 6 September, 2011, 11:38 PM
Following two committees recommended creamy layer in sc st. we need to read these reports in details as the supreme court is likely take reference of these reports.
Lokur Committee (1975) headed by the then Union Law Secretary BN Lokur
and Justice Usha Mehra Commission Report (2008)
However, I found following articles in support of our argument " creamy layer is not applicable to SC ST and if applied it will be anti- constitutional"
I am also trying to get the copy of the bill introduced in Loksabha by Dr Raman Senthil who argued in the loksabha that Creamy layer is not applicable to Scheduled Castes and Tribes.
The Creamy Layer Sans Cream
Which creamy layer are we talking about when there is just one Secretary from the Scheduled Castes in the Central government?
PS Krishnan
PS Krishnan
After a gap of many years a Balmiki boy, the son of a Group ii Scheduled Caste (SC) officer, has made it to the recent batch of the Indian Administrative Service. This flowering in a blue moon would have been nipped in the bud in case Group ii SC officers' children were made ineligible for reservation by applying the 'creamy layer' concept.
Of the hundred-odd secretaries in the Government of India, there is only one from the SCs, which is even less than what it was 10 years ago, and only two from the Scheduled Tribes (ST). At present when no SC or ST is excluded as creamy layer, the posts reserved for them — 15 percent and 7.5 percent respectively at the Centre — are far from being filled in Group a and b posts even after about six decades. The number of ST employees is below the quota even in Groups c and d. Excluding some as creamy layer will only further reduce the present below-par SC and ST numbers in government jobs, in violation of the basic constitutional principles of Equality, Social Equality, Social Justice and Reservations.
The idea of Socially Advanced Persons/Sections (SAPS), popularly known as the creamy layer, can conceptually arise only in respect of castes/communities identified on the basis of social backwardness, viz the Socially and Educationally Backward Classes (SEBDC), better known as the Other Backward Classes (OBCs). SCs have been identified not on the basis of social backwardness but something much more degrading — 'Untouchability'. The creamy layer concept cannot be applied to those whose marker is not social backwardness in the first place. The transition required for SCs is from untouchability to non-untouchability, not from social backwardness to social advancement. Given that even SC civil servants experience untouchability, that process is far from over. Similarly, STs have been identified on the basis of tribal ethnicity and distinct cultural traits, not social backwardness.
The majority judgement in the Indra Sawhney (Mandal) case has described the inegalitarian "four-tier (chaturvarnya) system" of Indian society, by which "the outcastes (Panchamas), the lowliest" and the Sudras, also lowly, "though certainly better than the Panchamas," were left at great disadvantage. The judgement read, "The lowliness attached to them (Sudras and Panchamas) by virtue of their birth in these castes is unconnected with their deeds. There was to be no deliverance from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them — this was a phenomenon peculiar to this country."
The transition required for the SCs is from untouchability to non-untouchability, not from social backwardness to social advancement
The SCs are the Panchamas of old. There is no dearth of statistics and data of the continuing deprivation, humiliation and exploitation of the SCs even today. From my experience of over 50 years all over India, I can say that untouchability continues to be virulent to this day, often culminating in inhuman atrocities. Three news-reports and other reports in October alone (in Kadkol village in Karnataka's Bijapur District, Kherlanji village in Maharashtra's Bhandara district, and in Punjab's Mansa village) describe the infliction of gang rapes, massacres, social and economic boycott on SCs.
We must look at the history of the advancement of the upper castes for a contextual look for any debate on reservations and the creamy layer. Attracted by the prospect of employment under the British, the upper castes began to avail themselves of English education from the mid-19th Century. Their standards of education then were nowhere near their standards today. The first two Indian graduates, including Bankim Chandra Chatterjee, had to be given grace marks to enable them to pass. Thereafter, from generation to generation they progressed, each generation standing on the shoulder of the previous one, and that is how they have risen to their present level of eminence. Simultaneously, by collective force they prevented/delayed the entry of lower castes into even primary schools. The caste-based monopoly thus built up was dented when, from 1902 to 1935, reservations were introduced in the Presidencies and princely states for Backward Classes and SCs, and later on all-India basis in the Constitution in 1950.
The process by which the upper castes progressed has now to be made available in full without impediment for the SCs, the STs as well as the OBCs. Reservations are an instrument to enable them to rise to the level of today's upper castes. To prematurely interrupt this process with new impediments would militate against the achievement of the Constitutional goal of Social Justice, to bring about Equality in all fields and at all levels. Reservations are thus part of the basic structure of the Constitution. It must be remembered that we are talking here about the fundamental rights of about 70 percent of India's population and, through their full development, India's optimal progress.
The judgement of a five-member Supreme Court bench on October 19, 2006 on the writ petitions of M. Nagaraj and others focused on the validity of the Constitutional amendment that restored reservations to SCs and STs in promotion. The judgement was understood by almost all of the media, civil society and political circles as the first ever judicial direction to exclude the creamy layer from the ambit of reservation for SCs and STs in government jobs, in both recruitment and promotion.
The concept of excluding the creamy layer was first expounded by a nine-member Constitutional bench of the Supreme Court in 1992 in the Indra Sawhney (Mandal) case pertaining to reservation for the OBCs in Central government employment, in which it laid down that "this discussion is confined to the OBCs and has no relevance in the case of STs and SCs". It directed that "the Government of India shall specify the bases to exclude socially advanced persons/sections (creamy layer) from OBCs".
It is thus clear that according to the nine-member Constitution bench, the creamy layer concept does not apply to SCs and STs. A five-member bench of the court, as in the M. Nagaraj case, cannot overrule the judgement of a larger bench and cannot extend the creamy layer-based rule of exclusion to SCs and STs. The Nagaraj judgement rightly says that "we are bound by the decision in Indra Sawhney", which applies to this too.
There are two voices partly or wholly differing from the predominant understanding of the import of Nagaraj. Writing in The Indian Express, Pratap Bhanu Mehta has said that the exclusion of the creamy layer from reservation for SCs and STs applied only to promotion and not to recruitment. More significantly, KV Viswanathan has written in The Hindu, "In the judgement in the Nagaraj case, it has not even been remotely suggested that the concept of creamy layer should apply to the SC." He has drawn support from judgements in the EV Chinnaiah case (2005) and Mandal cases.
It may be useful here to quote from the Nagaraj judgement: "The State is not bound to make reservation for SC/ST in matter of promotions. 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. It is made clear that even if the State has compelling reason, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 percent or obliterate the creamy layer or extend the reservation indefinitely".
There is room for the fear that this wording and context will enable anti-reservationists among the implementing authorities to go by the predominant interpretation (rather than Viswanathan's) and issue orders imposing the concept of the creamy layer on SCs and STs. A precedent is the way in which a judgement on reservation in promotions in 1995 in Punjab was grossly misunderstood/misinterpreted, and the reservation roster was revised in 1997 to the disadvantage of the SCs and STs.
In view of this, in case the intention of the Supreme Court in the Nagaraj case and the correct import of that judgement is not to prescribe the exclusion of creamy layer from reservation for SCs and STs, I feel it is desirable that this is authoritatively clarified at the earliest. The filing of a review petition by one of the parties would be a long drawn-out affair. I have the greatest respect for the Supreme Court and its crucial position in strengthening the people's confidence in Constitutional governance. To quickly terminate the raging controversy, it is respectfully submitted that the Supreme Court may like to consider undertaking a suo motu review, which can be done expeditiously, with the assistance of a fully knowledgeable amicus curiae, and remove the misunderstanding (if the predominant interpretation is a misunderstanding) and clarify that there is no direction in the Nagaraj judgement to apply the creamy layer concept to SCs and STs.
The Supreme Court has a history of making creative innovations in the interest of justice. A suo motu review could be another, using the opportunity for clarifications on certain other points too.
The Creamy Layer
http://www.facebook.com/l/lAQBkyRfqAQC_F3DcUq_mQ2dusfdUO7eF-_QGrSWquhhsPg/www.mainstreamweekly.net/article38.html BY SURENDRA MOHAN
The concept of creamy layer was introduced by the Supreme Court in its judgment delivered in 1992, when it declared the amendment introduced by Parliament in the executive order issued by the National Front Government in 1990, as invalid. The amendment was made to help the poorer sections among the forward castes and some reservation was made for them. It also wanted to prioritize reservations among the other backward castes (OBCs) on an economic basis. The Court held that the Constitution had laid down the principle of reservations for the socially and educationally backward castes, and the introduction of criteria other than social and educational, such as economic or any other, was unconstitutional. But, when it introduced the creamy layer, it fell into the same error of applying the economic criteria.
It is forgotten that most elite positions of power and pelf in our society are monopolized by the creamy layers among the forward castes: that is, the creamiest of the creamy layer constituted by the forward castes. They are not prepared to bow to the principle of social justice because that might lead to some empowerment of other sections and, to that extent, some shift of power from them. This is unthinkable. Unfortunately, no social surveys have been made to determine the proportion of the SEBCs in the creamy layer. But, now, the Supreme Court has applied this principle of creamy layer to the Scheduled Castes and Scheduled Tribes. It would be easily recognized that no one from among these most oppressed social segments has entered big business or even medium business, and the number of highly paid professionals among them is insignificant.
Even among the Other Backward Castes, no one from the northern States has made the grade as far as big or medium business is concerned. In the southern States, there are a few medium businessmen, and that is all. However, they have made intelligent use of their numbers, have consolidated themselves politically and had started to share power. In the South, this trend started earlier, but in the North too, after 1977, they have become stakeholders in the political process. Reservation in employment had started in the southern States and in Maharashtra from the 1960s and therefore a significant number had joined government jobs. Yet, in respect of their proportion vis-à-vis the forward castes, they could not claim even 10 per cent of the total even in that category. Owing to land reforms in Uttar Pradesh, in particular, a large number among them have become peasant proprietors of medium-sized holdings. It was indeed illogical, nevertheless, to impose the concept of creamy layer on them, in view of these developments.
Till 1992, that is, till after the Supreme Court judgment validating the National Front Government's executive order, the number of the OBCs in Class 1 and Class 2 jobs in the Central services was insignificant. In a system where the bureaucracy is as powerful as in our system, economic benefits also flow from it and, hence, the forward castes were making hay while the sun of high administrative offices shone on them. The quota-permit raj was a further guarantee for it. As everyone knows, the 27 per cent quota is far from being filled by the OBCs. Not even one-fourth of it is in higher services. If this is the condition of the land-owning, upwardly mobile OBCs, then one can easily imagine the skewed nature of the presence of the SC/STs in the higher echelons of the bureaucracy, even though they were enjoying the fruits of reservations since after 1952. At that time, the quota reserved for them was 7.5 per cent, and it was raised to 15 per cent in the 1960s. The quota increased to the same proportion as their population in the 1970s. The time-frame of thirty years has only brought a very small percentage of these social segments in higher government employment.
Why is it then that the creamy layer concept is being applied not only to the OBCs but to the SC/STs as well? The forward castes are not at all willing that they lose even the small crumbs in the administrative power structure. The creamy layer principle, if applied, will make public employment and higher education impossible for those sections from among the SEBCs who can qualify for benefiting from reservations, while the vast majority, unlettered or with small education, will obviously be incapable to enjoy its fruits. In point of fact, this principle or any other condition which scuttles the benefit of reservations must not operate till the reserved quota has been exhausted. This is quite far from being the case.
The criticism from those favouring such restrictions is based on the premise that only a few upper groups among the SEBCs continue to garner all the advantages of reservations. One might ask them who or which section among the forward castes gets into higher government jobs and who succeed the propertied scions of big business? As for the second, the iron rule of inheritance decides it, and the male children of the rich become rich ipso facto by being their inheritors. As for the former, that is, higher administrative jobs, practice has shown that the children of the IFS qualify in that service and so on and so forth. It would be instructive to just make out a list of our Foreign Secretaries and Cabinet Secretaries to realise that. In respect of political offices, too, the established trend is to respect heredity. This is so for all castes and communities.
That being the reality, why begrudge the rule of heredity in respect of the SEBCs? Nevertheless, the spread of education and the power of the ballot are expanding the universe of the sharing of opportunities among them. The number of those getting higher education, including vocational one, is much higher than those in higher public employment. Thus, a larger number than the number of children of the upper crust of the SEBCs claim to such opportunities. This can be empirically demonstrated quite easily. A simple fact is that an ever larger number from among these social segments join the competitive examinations. They come from the first generation of educated parents who had had some small share in prosperity or power structure. It is unfair to compare them with the established families of the super rich or highly qualified professionals of the forward castes.
An application of the creamy layer principle on the forward castes would be amply justified to enable the lower middle classes to achieve vertical mobility and help expand the circle of those sharing in the national wealth and the ever increasing number of big and petty officers. Any such rule will, however, be most resolutely opposed by the elite which is so keen on applying it to the OBCs, and even the SC/STs. When the leaders of the social and power structures are willing to allow their wives and daughters due representation in the legislatures, leading to a share in political power, their lust for all the privileges in society can be easily imagined. While the blame for the non-adoption by Parliament of the Women's Representation Bill is put at the door of a Sharad Yadav, a Laloo Yadav or the Smajwadi Party, no one cares to explain why a large majority in Parliament constituted by the Congress party, the BJP and the Left parties does not collectively push ahead and get Parliament to pass it. |
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