Indira
Sawhney Vs. Uniono India & Ors [1999] INSC 418 (13 December 1999)
D.P.Wadhwa,
M.J.Rao, M.B.Shah M. JAGANNADHA RAO,J.
The
cases in this batch raise common issues relating to the identification of
'creamy layer' among the Backward Classes in the State of Kerala and the
implementation of the Union of India ( 1992 (Suppl) 3, SCC 217). The State of Kerala took time for implementation of the
directions in Indira Sawhney for appointment of a Commission for the purpose of
identifying the creamy layer in the State but it failed to appoint a Commission
or to proceed with the implementation. Indira Sawhney was decided in 1992. For
more than three years the State of Kerala did not implement the judgment. This Court by its order dated 10.7.1995
held ( in IAs. 35, 36 filed by the State for extension of time etc.) that the
State of Kerala, represented by its Chief Secretary was guilty of contempt but
gave a further opportunity to the state to purge the contempt and adjourned the
matter to 11.9.1995. It was made clear that if the directions of this Court
were not complied with, the Chief Secretary would 'run the risk of being
sentenced'. Having sought time for years to appoint a Commission, the Kerala
Legislature then suddenly came forward with the Kerala State Backward Classes (
Reservation of Appointments or Posts in the Services under the State) Act, 1995
which, in section 3 declared that "having regard to known facts in
existence in the State of Kerala, that there are no socially advanced sections
in any Backward Classes who have acquired capacity to compete with forward
classes" and that the Backward classes in the State were not
"adequately represented" in the services under the State and they
would continue to be entitled to reservation under Clause (4) of Article 16 of
the Constitution. The provisions of Section 4 continued the existing system of
reservation which was in force as per Rules made in 1958 and Section 6 was
incorporated as a validating section with retrospective effect. On the ground
that the provisions of this Act of 1995 were discriminatory and violative of
Articles 14 and 16 of the Constitution, WP.
699 of
1995 was filed by the Nair service Society, Kerala while W.P. 727 of 1995 was
filed by one K. Ramaswamy, belonging to the Elavami Community of Kerala (a
Backward Community) to declare the provisions of the Act as unconstitutional
and violative of Articles 14 and 16 of the Constitution of India. Some IAs were
filed by interveners to support one or other of the rival groups. The Act was
passed on 2.9.95 but was given retrospective effect from 2.10.1992.
As the
State Government failed to appoint a Commission as directed in Indira Sawhney,
this Court, by an elaborate order dated 4.11.96 deemed it necessary to appoint
a High Level Committee to gather the necessary information regarding 'creamy
layer' and requested the Chief Justice, Kerala High Court, to appoint a retired
Judge of the High Court to be the Chairman of the High Level Committee. The
Chairman of the Committee, it was held, could induct not more than 4 persons as
members from various walks of life "to identify the creamy layer among the
designated backward classes" in the State of Kerala in the light of the
ruling of this Court in Indira Sawhney and forward its report to the Supreme
Court within three months. This Court directed the State Government to extend
co-operation to the above Committee. This Court also directed that the O.M. of
the Government of India dated 8.9.93 ( Ministry of Personnel Public Grievances
and Pensions) where the Central Government laid down guidelines for
identification of the creamy layer, be placed before the High Level Committee
"for use and guidance" in identifying the 'creamy layer' among the
other Backward Classes in the State of Kerala.
Accordingly,
the Chief Justice of the High Court of Kerala nominated Sri Justice K.J.
Joseph, as Chairman of the High Level Committee. The other members of the
Committee were Sri O.C. Vincent, IAS, Sri K.P. Mohammed, Adv., Sri K.
Aravindaksha Menon, Retd. District and Sessions Judge and Sri K. Asokan, Retd.
Director of Public Relations. The said Committee, after a public notification,
received evidence and gave opportunity of hearing to various individuals,
communities etc. and submitted its report dated 4.8.97 to this Court identifying
the "creamy layer" in the Backward Classes of Kerala State.
Thereafter, objections were filed in this Court by various parties to the said
report and that is how the matter has come before us.
We do
not propose just now to decide the further course of action in the suo motu
contempt proceedings in which the State of Kerala represented by its Chief
Secretary was held guilty of contempt and was given time to purge the contempt.
We make it clear that that issue is kept pending and matter will be processed
later, on the basis of the judgment in this case and the directions which we
propose to issue at the end of this judgment.
We
have heard arguments of Sri Gopal Subramaniam, learned senior counsel as Amicus
Curiae and of Sri K.K.Venugopal, learned senior counsel who contended that the
Kerala Act 16/95 was unconstitutional and violative of Articles 14, 16(1) and
16(4). We heard Sri P.Krishna Moorthi, learned senior counsel for the State of Kerala and Sri Rajeev Dhawan, learned
senior counsel for the SNDP Yogam, Sri A.N. Rajan Babu, Sri EMS Anam, Ms. Lilly
Thomas and Sri V.J. Francis and others who contended that the Act was a valid
piece of legislation. Sri K.N. Raval, Additional Solicitor General stated that
the Central Government stood by the O.M. already issued.
The
issues which presently arise before this Court are, as follows:
(1)
What is the law declared and what are the directions given in Indira Sawhney in
regard to "creamy layer" in the context of Articles 14 and 16? (2)
Can the declaration of law in regard to "creamy layer" in the context
of Articles 14 and 16 in Indira Sawhney and in other rulings be undone by the
Kerala Legislature by a retrospective validating law containing a statutory
declaration whose effect is to say that no "creamy layer" exists in
the State of Kerala? (3) Are the provisions of sections 3, 4 and 6 of the
Kerala State Backward Classes ( Reservation of Appointments or Posts in the
Services) Act ( Act No.16/95) violative of Articles 14 and 16 of the
Constitution of India? (4) Whether the violation of Article 14(and Article 16)
amounts to violation of the basic structure of the Constitution of India? (5)
If the provisions of sections 3, 4 and 6 of the Kerala Act 16/95 are to be
struck down, is the Report of High Level Committee headed by Justice K.J.
Joseph to be accepted and are there any valid objections to the report? (6) If
sections 3, 4 and 6 of the Kerala Act 16/95 are to be struck down and the High
Level Committee Report of Justice K.J. Joseph is accepted, what further directions
are to be issued to the State of Kerala? POINT 1: Our Constitution is wedded to the concept of equality and
equality is a basic feature. Under Article 15(2), there is a prohibition that
State shall not discriminate against any citizen on the grounds only of
religion, race, caste, sex and place of birth or any of them. It is equally
true that ours is a caste-ridden society. Still, it is a constitutional mandate
not to discriminate on the basis of caste alone. Provisions can be made for the
upliftment of socially and educationally backward classes, scheduled castes or
scheduled tribes or for women and children. Article 16(4) empowers the States
for making any provision for reservation in appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State. Reservation is
permissible (i) in favour of any backward class of citizens; and (ii) if it is
not adequately represented in services under the State. Caste only cannot be
the basis for reservation.
Reservation
can be for a backward class citizen of a particular caste. Therefore,from that
caste, creamy layer and non-backward class of citizens are to be excluded. If
the caste is to be taken into consideration then for finding out socially and
economically backward class, creamy layer of the caste is to be eliminated for
granting benefit of reservation, because that creamy layer cannot be termed as
socially and economically backward. These questions are exhaustively dealt with
by a nine Judge Bench of this Court in Indira Sawhney vs. Union of India [1992
Suppl. (3) SCC 217], and it has been specially held that `only caste' cannot be
the basis for reservation.
Inclusion
of castes in the list of Backward classes cannot be mechanical and cannot be
done without adequate relevant data. Nor can it be done for extraneous reasons.
Care
should be taken that the forward castes do not get included in the backward
castes list. In Indira Sawhney, Pandian, J. observed (para 174 SCC) that before
a conclusion is drawn that a caste is backward or is inadequately represented
in the services, "the existence of circumstances relevant to the formation
of opinions is a sine qua non. If the opinion suffers from the vice of non-
application of mind or formulation of collateral grounds or beyond the scope of
the statute, or irrelevant and extraneous material, then the opinion is
challengeable".
Sawant,
J.(see para 539 of SCC) too pointed out the need for proper application of mind
to the facts and circumstances, the field, the post and the extent of existing
representation and the need to balance representation. On behalf of himself and
three others, Jeevan Reddy J pointed out ( para 798 SCC) that opinion in regard
to backwardness and inadequate representation must be based on relevant
material. The scope of judicial scrutiny even with regard to matters relating
to subjective satisfaction are governed Law Board ( 1966 Supple. SCR 311).
Likewise, periodic examination of a Backward class could lead to its exclusion
if it ceases to be socially backward or if it is adequately represented in the
services. Once backward, always backward is not acceptable. In any case, the
'creamy layer' has no place in the reservation system.
If
forward classes are mechanically included in the list of backward classes or if
the creamy layer among backward classes is not excluded, then the benefits of
reservation will not reach the really backward among the backward classes. Most
of the benefits will then be knocked away by the forward castes and the creamy
layer. That will leave the truly backward, backward for ever. Jeevan Reddy, J.
while delivering the majority judgment, interalia, held as under:
"If
the real object is to discover and locate backwardness, and if such backwardness
is found in a caste, it can be treated as backward; if it is found in any other
group, section or class, they too can be treated as backward. (See Page 717
para 783). Reservation is not being made under clause (4) in favour of a
`caste' but a backward class. Once a caste satisfies the criteria of
backwardness, it becomes a backward class for the purposes of Article
16(4)." [See Page 718 Para 784].
In
paragraph 796, Jeevan Reddy, J. has summarised the discussion under Question
No.3 and, inter alia, as under:
"A
caste can be and quite often is a social class in India. If it is backward socially, it
would be a backward class for the purposes of Article 16(4).
Identification
of the backward classes can certainly be done with reference to castes among,
and alongwith, other groups, classes and sections of people. One can start
process with the castes, wherever they are found, apply the criteria (evolved
for determining backwardness) and find out whether it satisfies the criteria.
If it does - what emerges is a "backward class of citizens" within
the meaning of and for the purposes of Article 16(4). Similar process can be
adopted in the case of other occupational groups, communities and classes, so
as to cover the entire populace.
The
central idea and overall objective should be to consider all available groups,
sections and classes in society.
Since
caste represents an existing, identifiable social group class encompassing an
overwhelming majority of the country's population, one can well begin with it
and then go to other groups, sections and classes." Court further
considered in Paragraph 800 and held as under:
".....while
answering Question 3(b), we said that identification of backward classes can be
done with reference to castes along with other occupational groups, communities
and classes. We did not say that that is the only permissible method. Indeed,
there may be some groups or classes in whose case caste may not be relevant to
all.
For
example, agricultural labourers, rickshaw- pullers/drivers, street-hawkers etc.
may well qualify for being designated as Backward Classes." We shall next
proceed to the question relating to 'creamy layer'. In Indira Sawhney, on the
question of exclusion of `creamy layer' from the Backward Classes, there was
agreement among eight out of the nine learned Judges of this Court. There were
five separate Judgments in this behalf which required the "creamy
layer" to be identified and excluded. The judgment of Jeevan Reddy, J. was
rendered for himself and on behalf of three other learned Judges, Kania, CJ and
M.N.Venkatachaliah, A.M.Ahmadi, JJ.
(as
they then were). The said judgment laid emphasis on the relevance of caste and
also stated that upon a member of the backward class reaching an "advanced
social level or status", he would no longer belong to the backward class
and would have to be weeded out. Similar views were expressed by Sawant,
Thommen, Kuldip Singh, and Sahai, JJ. in their separate judgments. It will be
necessary to refer to and summarise briefly the principles laid down in these
five separate judgments for that would provide the basis for decision on points
2 to 5. While considering the concept of `means-test' or `creamy layer', which
signifies imposition of an income limit, for the purpose of excluding the persons
(from the backward class) whose income is above the said limit, in paragraph
791, the Court has noted that counsel for the States of Bihar, Tamil Nadu,
Kerala and other counsel for respondents strongly opposed any such distinction
and submitted that once a class is identified as a backward class after
applying the relevant criteria including the economic one, it is not
permissible to apply the economic criteria once again and sub-divide a backward
class into two sub-categories. The Court negatived the said contention by
holding that exclusion of such (creamy layer) socially advanced members will
make the `class' a truly backward class and would more appropriately serve the
purpose and object of clause (4).
Jeevan
Reddy, J. dealt with the 'creamy layer' under question 3(d) (para 790, 792, 793
of SCC) and under question 10 (para 843, 844). This is what the learned Judge
declared: There are sections among the backward classes who are highly
advanced, socially and educationally and they constitute the forward section of
that community. These advanced sections do not belong to the true backward
class.
They
are "as forward as any other forward class member" (para 790).
"If some of the members are far too advanced socially (which in the
context necessarily means economically and may also mean educationally), the
connecting thread between them and the remaining class snaps. They would be
misfits in the class" (para 792). The learned Judge said:
"After
excluding them alone, would the class be a compact class. In fact, such
exclusion benefits the truly backward" A line has to be drawn, said the
learned Judge, between the forward in the backward and the rest of the backward
but it is to be ensured that what is given with one hand is not taken away by
the other. The basis of exclusion of the "creamy layer" must not be
merely economic, unless economic advancement is so high that it necessarily
means social advancement, such as where a member becomes owner of a factory and
is himself able to give employment to others.
In such
a case, his income is a measure of his social status. In the case of
agriculturists, the line is to be drawn with reference to the agricultural land
holding.
While
fixing income as a measure, the limit is not to be such as to result in taking
away with one hand what is given with the other. The income limit must be such
as to mean and signify social advancement. There are again some offices in
various walks of life - the occupants of which can be treated as socially
advanced, "without further inquiry", such as IAS and IPS officers or
others in All India Services. In the case of these persons, their social status
in society rises quite high and the person is no longer socially disadvantaged.
Their children get full opportunity to realise their potential. They are in no
way handicapped in the race of life. Their income is also such that they are
above want. It is but logical that children of such persons are not given the
benefits of reservation.
If the
categories or sections above mentioned are not excluded, the truly
disadvantaged members of the backward class to which they belong will be
deprived of the benefits of reservation. The Central Government is, therefore,
directed (para 793) to identify and notify the "creamy layer" within
four months and after such notification, the 'creamy layer' within the backward
class shall "cease" to be covered by the reservations under Article
16(4). Jeevan Reddy, J. finally directed (see question 10) that the exclusion
of the creamy layer must be on the basis of social advancement and not on the
basis of economic interest alone.
Income
or the extent of property holding of a person is to be taken as a measure of
social advancement - and on that basis - the 'creamy layer' within a given
caste, community or occupational group is to be excluded to arrive at the true
backward class. There is to be constituted a body which can go into these
questions (para 847) as follows:
"We
direct that such a body be constituted both at Central level and at the level
of the State within four months from today ........There should be a periodic
revision of these lists to exclude those who have ceased to be backward or for
inclusion of new classes, as the case may be." The creamy layer ( see para
859, sub para 3(d)) can be, and must be excluded. Creamy layer has to be
excluded and `economic criteria' are to be adopted as an indicium or measure of
social advancement. (Para 860, sub para 5) The socially
advanced persons must be excluded.(para 861 (b)).
That
is how Jeevan Reddy, J. summarised the position.
Sawant,J.
too accepted (para 553 of SCC) that "atleast some individuals and families
in the backward classes,- however small in number,- gain sufficient means to
develop "capacities to compete" with others in every field. That is
an undeniable fact. Social advancement is to be judged by the `capacity to
compete' with forward castes, achieved by the members or sections of the
backward classes. Legally, therefore, these persons or sections who reached
that level are not entitled any longer to be called as part of the backward
class whatever their original birthmark. Taking out these "forwards"
from the "backwards" is `obligatory' as these persons have crossed
the Rubicon (para 553-554). On the crucial question as to what is meant by
"capacity to compete", the learned Judge explained (para 522) that if
a person moves from Class IV service to Class III, that is no indication that
he has reached such a stage of social advancement but if the person has
successfully competed for "higher level posts" or atleast "near
those levels", he has reached such a state. Thommen,J. (para 287, 295,
296, 323) observed that if some members in a backward class acquire the
necessary financial strength to raise themselves, the Constitution does not
extend to them the protection of reservation. The creamy layer has to be
"weeded out" and excluded, if it has attained a "certain
pre-determined economic level". Kuldip Singh, J. (para 385) referred to
the "affluent" section of the backward class. Comparatively
"such persons" in the backward class - though they may not have
acquired a higher level of education - are able to move in the society without
being discriminated socially". These persons practice discrimination
against others in that group who are comparatively less rich. It must be
ensured that these persons do not "chew up" the benefits meant for
the true backward class. "Economic ceiling" is to be fixed to cut off
these persons from the benefits of reservation. In the result, the "means
test" is imperative to skim off the "affluent" sections of
backward classes. Sahai, J. (para 629) observed that the individuals among the
collectivity or the group who may have achieved a "social status" or
"economic affluence", are disentitled to claim reservation.
Candidates
who apply for selection must be made to disclose the annual income of their
parents which if it is beyond a level, they cannot be allowed to claim to be
part of the backward class. What is to be the limit must be decided by the
State. Income apart, provision is to be made that wards of those backward
classes of persons who have achieved a particular status in society be it
political or economic or if their parents are in higher services then such
individuals must be precluded from availing the benefits of reservation. Exclusion
of "creamy layer" achieves a social purpose. Any legislative or
executive action to remove such persons individually or collectively cannot be
constitutionally invalid.
As
appears from the judgments of six out of the eight Judges, viz. Jeevan Reddy (
for himself and three others), Sawant and Sahai JJ.- ( i.e. six learned Judges
out of nine) -, they specifically refer to those in higher services like IAS,
IPS and All India Services or near about as persons who have reached a higher
level of social advancement and economic status and therefore as a mater of
law, such persons are declared not entitled to be treated as backward. They are
to be treated as creamy layer "without further inquiry". Likewise,
persons living in sufficient affluence who are able to provide employment to
others are to be treated as having reached a higher social status on account of
their affluence, and therefore outside the backward class. Those holding higher
levels of agricultural land holdings or getting income from property, beyond a
limit, have to be excluded from the backward classes. This, in our opinion, is
a judicial "declaration" made by this Court. The submission of Sri
Rajeev Dhawan for the S.N.D.P.
Yogam
that the above separate judgments contain mere illustrations and do not contain
any declaration of law cannot, in our opinion, be accepted. Counsel also relied
upon observations in the judgment of Jeevan Reddy,J. to the effect that in such
a big country as ours, norms may differ from State to State or from region to
region. In our view, those observations do not detract from the declaration of
law that the above sections belong to the creamy layer and hence are to be kept
outside the backward class. We may add that some more categories of persons who
can be said to have gone outside the creamy layer are those "broad
categories" enumerated in the notification of the Central Government dated
8.9.93 pursuant to Indira Sawhney and the said broad categorisation has been
accepted by this Court in Ashok 403] as valid. With respect, we are in entire
agreement with the principles laid down in Ashok Kumar Thakur. We may point out
that the identification of creamy layer in every backward class is in fact
based upon horizontal division of every section of the backward class into
creamy layer or non-creamy layer. For example, if there are a dozen named
backward classes and each have particular percentage of quota in the
reservation, they can be arranged in a vertical distribution one after the
other (see para 812 of Indira Sawhney referring to vertical and horizontal
divisions), and the separate and the aggregate quota meant for them can be
spelled out. But in each of these named backward classes listed one below the
other, it is not difficult to make horizontal divisions of those belonging to
(i) constitutional offices (ii) particular services, (iii) professions (iv)
industry and trade (v) particular income level and (vi) particular holding of
property etc. to segregate the creamy and non-creamy layers in each vertical
sub-classification of backward class and say that the children of such persons
in these horizontal sub-divisions of the backward classes will be creamy layer
and therefore outside the backward classes. This is not a difficult exercise.
It is also important to notice that such a horizontal division based on such
norms will be applicable not only to those in the Backward Classes presently
falling under the norm but the norms or limits so set would also be applicable
to those reaching that level in the future. May be, as stated in the
notification of the Central Government dated 8.9.93 issued pursuant to Indira
Sawhney, the income levels may have to be reasonably upgraded periodically to
set off inflation. Subject to such a reasonable revision in the norms, if any,
periodically, the norms whether laid down by the Central Government or the
State Governments must apply not only for the immediate present but also for
the future. This, in our view, was the declaration of law made in Indira
Sawhney and in Ashok Kumar Thakur in relation to identification and exclusion
of creamy layer. So far as the directions in Indira Sawhney are concerned, they
are that the Central and State Governments are obliged to create separate
bodies which will identify the creamy layer in the backward classes within a
time frame. Point 1 is decided accordingly. POINT 2 and 3: These two points are
crucial to the case. Under these points, we shall now deal with the validity of
the Kerala Act (Act 16/95). (i)Equals and unequals, twin aspects: As the
'creamy layer' in the backward class is to be treated "on par" with
the forward classes and is not entitled to benefits of reservation, it is
obvious that if the 'creamy layer' is not excluded, there will be
discrimination and violation of Articles 14 and 16(1) inasmuch as equals
(forwards and creamy layer of backward classes) cannot be treated unequally.
Again, non-exclusion of creamy layer will also be violative of Articles 14,
16(1) and 16(4) of the Constitution of India since unequals (the creamy layer)
cannot be treated as equals that is to say, equal to the rest of the backward
class. These twin aspects of discrimination are specifically elucidated in the
judgment of Sawant J, where the learned Judge stated as follows: (para 520)
"........to continue to confer upon such advanced sections ....special
benefits, would amount to treating equals unequally ....Secondly, to rank them
with the rest of the backward classes would ...amount to treating unequals
equally".
Thus,
any executive or legislative action refusing to exclude the creamy layer from
the benefits of reservation will be violative of Articles 14 and 16(1) and also
of Article 16(4). We shall examine the validity of sections 3, 4 and 6 in the
light of the above principle.
(ii)Validation:
The
question of validation arises in the context of section 6 of the Act. It is
true that whenever legislative or executive action is declared as being
violative of the provisions of Part III of the Constitution, it will be
permissible for the Executive or Legislature to remove the defect which is the
cause for discrimination prospectively and which defect has been pointed out by
the Court. The defect can be removed retrospectively too by legislative action
and the previous actions can also be validated. But where there is a mere validation
with retrospective effect, without the defect being legislatively removed with
retrospective effect, the legislative action will amount to overruling the
judgment of the courts by way of legislative fiat and will be invalid as being
contrary to the doctrine of separation of powers.
In the
context of the law laid down in Indira Sawhney and in Ashok Kumar Thakur if the
legislature of any State does not take steps to remove the defect or to
effectively and realistically remove the defect to exclude the 'creamy layer'
from the backward classes then the benefits of reservations which are invalidly
continued in favour of the 'creamy layer' cannot be declared retrospectively
valid merely by a legislative declaration that such creamy layer is absent as
done by section 3 of the Kerala Act. Nor can it be done by means of the
validating provision contained in section 6 of that Act. The creamy layer
principle laid down in Indira Sawhney, cannot be ignored as done by section 6
of the said Act. We shall elaborate these aspects later. If under the guise of
elimination of the 'creamy layer', the legislature makes a law which is not
indeed a true elimination but is seen by the Court to be a mere cloak, then the
Court will necessarily strike down such a law as violative of principle of
separation of powers and of Articles 14, 16(1) and Article 16(4).
(iii)Ashok
Kumar Thakur - a case of unrealistic elimination but Central Government's O.M.
dated 8.9.93 approved: Such a case of unrealistic elimination of creamy layer
came up before this Court from Bihar and Uttar Pradesh and we shall refer to
the same. This happened in Ashok 403], already referred to. There the position
was that unrealistically high levels of income or holding or other conditions
were prescribed by the Legislatures of Bihar and Uttar Pradesh under the Bihar
Reservation of vacancies in Posts and Services (Amendment) Ordinance, 1995 ( 5
of 1995) and Schedule II read with Section 3(b) of the U.P. Public Services
Reservation for Schedules Castes and Scheduled Tribes and other Backward
Classes Act, 1994 ( Act 4 of 1994) respectively. In that case, so far as Bihar
was concerned, Schedule III (except clause I), of the Bihar Ordinance and so
far as UP was concerned, Schedule II read with Section 3(b) of the U.P. Act were
therefore quashed by this Court, on the ground of discrimination.
While
dealing with these Acts, this Court referred to the fact that pursuant to
Indira Sawhney the Government of India had appointed a Commission presided over
by a retired Judge of the High Court of Patna and on the basis of the Report of
the Commission, it had issued an office Memorandum dated 8.9.93 designating (A)
Children of holders of Constitutional posts like (a) President of India (b)
Vice President of India, (c) Judges of the Supreme Court and High Courts, (d)
Chairman and Members of UPSC and State Public Service Commission, Chief
Election Commissioner, Comptroller and Auditor-General of India, (e) Persons
holding constitutional positions of like nature, (B)Service category: children
of (a) parents, Group A/Class I officers of All India Central Services and
State Services ( direct recruits) where both or one of the parents are Class I
officers, subject to certain conditions; children of Group B/Class II officers
of the Central and State Services ( direct recruitment), subject to certain
conditions;
children
of employees of Public Sector Undertakings, Banks, Insurance Organisations,
Universities etc. and in comparable posts and positions under private
employment;
children
of members of Armed Forces and Para-Military Forces; (C)Professional Category:
children of those in professional class or those engaged in Trade and Industry
beyond a particular income limit; (D)Property owners ( agricultural holdings),
Plantations, Vacant land or buildings in Urban areas or urban agglomerations
holding property beyond a particular extent - as being outside the Backward
Classes. In respect of the above, Para VI of the Schedule to the O.M. dated
8.9.93 gave the gross annual income limits of rupees 1 lakh and above, subject
to upward modification of the limits every 3 years etc. Various other
conditions were also imposed. Care was taken by the O.M to see that none from
the creamy layer could escape the net of exclusion from the Backward Classes.
This Court, in Ashok Kumar Thakur after referring to the above guidelines,
observed that the criteria fixed in the O.M. were "in conformity with the
law laid down by this Court in Mandal case" and that the Court had no
hesitation in approving the said criteria as being reasonable. In the light of
the criteria so approved, this Court considered the validity of the Bihar and
U.P. Legislations and held that the unreasonably high limits or other norms
fixed by the Bihar and U.P. Legislatures were "contrary to the guidelines
laid down by this Court in Mandal Case" as they would not result in the
elimination of the creamy layer. It was pointed out that the conditions laid
down by the States of Bihar and U.P. had no "nexus" with the object
sought to be achieved.
Since
the conditions were not severable, the criteria laid down in each of the
legislations as a whole were struck down. The Court held: ( see para 17)
"The Backward class under Article 16(4) means the class which has no
element of 'creamy layer' in it. It is mandatory under Article 16(4) - as
interpreted by this Court - that the State must identify the 'creamy layer' in
a backward class and thereafter, by excluding the 'creamy layer' extend the
benefit of reservation to the class which remains after such exclusion."
The Court observed that the States of Bihar and Uttar Pradesh had acted in a
wholly arbitrary fashion and in utter violation of the law laid down in Mandal
case. However, the principle of prospective overruling was invoked. The States
were directed to lay down fresh criteria and till then it was directed that the
criteria laid down in the Central Government"s O.M. dated 8.9.93 were to
apply in Bihar and Uttar Pradesh. We are in entire agreement with the views
expressed in Ashok Kumar Thakur. (iv)The Validity of the Kerala Act:
We
shall now take up the question as to the validity of the law enacted by the
Kerala Legislature. It will be seen that the Kerala Legislature followed a
somewhat different route to allow the creamy layer to continue to unlawfully
enjoy the benefits of reservation meant for backward classes. We shall refer
initially to the provisions contained in the six sections of the Kerala Act
16/95.
"(1)
Short title, extent and commencement-
(i)
This Act may be called the Kerala State Backward Classes (Reservation of
appointments or posts in the service under the State) Act, 1995.
(ii)
It extends to the whole of the State of Kerala.
(iii)
Section 5 of this Act shall be deemed to have come into force on the 12th day
of March, 1993 and the remaining provisions of this Act shall be deemed to have
come into force on the 2nd day of October, 1992.
(2)
Definitions:- In this Act, unless the context otherwise requires, - (a)
Commission means the Kerala State Commission for Backward Classes constituted
under Section 3 of the Kerala State Commission for Backward Classes Act, 1993
(11 of 1993).
(b)
Backward Classes means such Backward Classes of citizens ( other than Scheduled
castes and Scheduled tribes), as specified by the Government from time to time,
and included in List III of the Schedule to Part I of the Kerala State and
Subordinate Services Rules, 1958 framed under Article 309 of the Constitution..
(c)
Government's means the Government of Kerala.
(d)
'State' means the State of Kerala.
(3)
Declaration: -It is hereby declared, having regard to known facts in existence
in the State -- (a) that there are no socially advanced sections in any
Backward Classes who have acquired capacity to compete with forward classes;
and (b) that the Backward Classes in the State are still not adequately
represented in the services under the State and they continue to be entitled to
reservation under clause (4) of Article 16 of the Constitution.
(4)
Reservation of appointments or posts in the services under the State:
Notwithstanding
anything contained in any law or in any judgment, decree or order of any court
or other authority having regard to the social and educational backwardness of
the Backward Classes of citizens, the system of reservations as in force on the
date of commencement of this Act, as laid down in rules 14 to 17 of Part II of
the Kerala state and Subordinate Services Rules, 1958, in appointments and
posts in the services under the State for the Backward Classes of citizens
shall continue as such, for the present.
(5)
Additional function of the Commission - The Commission shall, in addition to
the functions already conferred under the Kerala State Commission for Backward
Classes Act, 1993 ( 11 of 1993) evaluate from time to time the degree of
backwardness of the Backward Classes, and shall submit periodical reports to
the Legislative Assembly of the State.
(6)
Validation - Notwithstanding anything contained in any judgment, decree or
order of any court or other authority the reservation of appointments or posts
in the services under the State for the Backward Classes of citizens made, on
the basis of the system of reservation as laid down in rules 14 to 17 of Part
II of the Kerala State and Subordinate Services Rules, 1958, shall, for all
purpose, be deemed to be and to have always been validly made, in accordance
with law, as if this Act had been force at all material times when such
reservations had been made".
(v)Events
leading to the passing of the Kerala Act of 1995: It will be useful to note the
background of events which led to the passing of the above Act. (Some of these
events are set out in the long Preamble to the Act) On account of the inaction
of the State of Kerala - in spite of extensions of time in implementing Indira
Sawhney - in appointing a Commission to identify the creamy layer, this Court
felt "vexed" and issued contempt notice on 20.3.95.
Pursuant
to that notice on 10.7.95, the State of Kerala filed an affidavit stating that
it had already passed the Kerala Act 11/93 on 17.4.93 appointing a Commission
which could go into this issue but that the said Commission stated that it had
no jurisdiction to go into the question of 'creamy layer' as per the provisions
in that Act of 1993.
The
affidavit then stated that the matter was referred again to the Commission on
13.10.93, a meeting took place on 10.5.94, that the Commission again refused to
identify the creamy layer, that a Bill was then contemplated to amend Kerala
Act 11/93 to confer powers on the said Commission to go into this issue as
well, that in the meantime, the State constituted the Justice Khalid Committee
on 8.7.95. In our opinion, these events were set out in the above affidavit
filed by the Chief Secretary only to ward off any penal action for contempt of
this Court. The above explanation was naturally found to be wholly
unsatisfactory and this Court held, in its order dated 10.7.95, that the State
of Kerala represented by its Chief Secretary had acted in "wilful
disobedience" of the orders of this Court and that it had committed
contempt of Court. This Court granted time till 11.9.95 to the State of Kerala to purge itself of the contempt. It
appears that there was then a Cabinet meeting on 13.7.95, that thereafter it
was decided on 14.7.95 that a Standing Committee should go into the question
but that instead, it was suddenly decided on 27.7.95 that the "existing
system be continued". Then Act 16/95 was passed on 31.8.95 to give effect
to that decision. The Act received the assent of the Governor on 2.9.95 and
became effective retrospectively from 2.10.1992, thus allowing existing
reservations to continue with full force. In effect no creamy layer was
identified. As per sub-clause (a) of Section 3 of the Act it was declared that
in view of "known facts", the Legislature was of the view that
"no section of any backward class in the State of Kerala who had acquired
capacity "to compete with forward classes". As per clause (b), it was
stated that Backward Classes were not still adequately represented in the
public services of the State. Section 4, therefore, continued the 1958 scenario
of Backward Classes without excluding the creamy layer and section 6 spoke of
retrospective validation.
(vi)
Legislative declaration of facts is amenable to scrutiny by Court:
Before
we go into the validity of sub-clause (a) and (b) of section 3, it is necessary
to find out if the legislative declaration of "known facts" in
section 3 of the Act is amenable to judicial scrutiny.
It is
now fairly well settled, that legislative declarations of facts are not beyond
judicial scrutiny in the Constitutional context of Articles 14 and 16. In 225],
the question arose - in the context of legislative declarations made for
purposes of Article 31-C - whether the court was precluded from lifting the
veil, examining the facts and holding such legislative declarations as invalid.
The
said issue was dealt with in various judgments in that case, e.g. Judgments of
Ray, J. ( as he then was), Palekar, Khanna, Mathew, Dwivedi,JJ, and Beg, J. and
Chandrachud, J. (as they then were ) (see summary at PP.
304-L
to O in SCC). The learned Judges held that the Courts could lift the veil and
examine the position in spite of a legislative declaration. Ray, J. (as he then
was) observed:
"The
Court can tear the veil to decide the real nature of the statute if the facts
and circumstances warrant such a course"....."a conclusive
declaration would not be permissible so as to defeat a fundamental right".
Palekar,
J. said that if the legislation was merely a pretence and the object was
discrimination, the validity of the statute could be examined by the Court
notwithstanding the declaration made by the Legislature and the learned Judge
referred to Charles Russell vs. The Queen [(1882) 7 AC 829] and to Attorney
General vs. Queen Inswane Co.
[(1878)
3 AC 1090]. Khanna,J. held that the declaration could not preclude judicial
scrutiny. Mathew,J. held that declarations were amenable to judicial scrutiny.
If the law was passed only 'ostensibly' but was in truth and substance, one for
accomplishing an unauthorised object, the Court, it was held, would be entitled
to tear the veil. Beg,J.(as he then was) held that the declaration by the
legislature would not preclude a judicial examination. Dwivedi, J. said that
the Courts retain the power in spite of Article 31-C to determine the
correctness of the declaration. Chandrachud, J. (as he then was) held that the
declaration could not be utilised as a cloak to evade the law and the
declaration would not preclude the jurisdiction of the Courts to examine the
facts. This being the legal position, this Court could certainly examine
whether the so called "known facts" referred to in section 3 were
indeed non-existent.
(vii)Sub-clause
(a) of Section 3: Did the Kerala Legislature have any facts before it to say in
effect that there was no creamy layer? Sub-clause (a) of section 3 states that
according to "known facts" the backward classes in the State were not
having the capacity to compete with forward classes i.e. in effect, there is no
creamy layer in the Kerala State.
But
Aldous Huxley said:
"Facts
do not cease to exist because they are ignored" (A Note on Dogmas) The
words in sub-clause (a) of section 3 are obviously drawn from the judgment of
Sawant, J. in Indira Sawhney which refers to "capacity to compete with
forward classes".
We
shall, therefore, have to examine whether the legislative declaration in
section 3 of the Act that there is, in effect, no creamy layer in the State of Kerala is one made by ignoring facts which
do exist. We shall now refer to various facts and circumstances as they exist
to disprove the statement made in section 3 of the Act:
(a)
The Kerala State initially requested this Court for extension of time to
appoint a Commission to identify the creamy layer. It, in fact, created a
statutory Commission by Kerala Act 11 of 1993 and asked the said Commission
constituted under that Act to go into the above question. The Commission, it is
true, refused to go into this question stating that it had no jurisdiction to
go into the said question under that Act. (b) Again, even as late as 8.7.95,
the State of Kerala did feel the need to identify the 'creamy layer' and it
appointed Justice Khalid Committee. But within three weeks, suddenly on
27.7.95, there was a volte face and it was decided "to continue the existing
system" of reservations with full force without excluding the creamy
layer. It is obvious and is not denied that between 8.7.95 and 27.7.95, the
State gathered no fresh material to compel the State to abandon the idea and to
suddenly turn around and declare that there was, in effect, no 'creamy layer'
in the State of Kerala. (c) Further, in the affidavit dated 16.7.1995 filed by
the Chief Secretary of Kerala in this Court - a few days before the Act was
passed on 31.8.1995 - it was more or less admitted that there was a
"creamy layer" among the backward classes in the State of Kerala. The
following paragraph from that affidavit is significant:
"Reservation
in appointments for the public service for socially and educationally backward
classes has been in operation in this State for the last about 40 years, and
all members of the other Backward Classes, irrespective of the fact whether
individuals among them are socially advanced_or not, are enjoying the
benefit." The underlined words, in our view, contain an admission as to
the existence of a creamy layer, to the knowledge of the State Government. (d)
In addition, the doubts, if any, in this behalf are set at rest by the findings
contained in the Report of the High Level Committee headed by Justice K.J.
Joseph (to which we shall refer in detail under points 4 and 5). That Report
shows that there is a creamy layer in the Backward Classes of the State of
Kerala and it is not difficult to identify the same.
(e) We
may again point out that, as a matter of law, it is clear that six out of nine
Judges in Indira Sawhney made a judicial declaration as stated under Point 1,
as to the class of persons who would belong to the creamy layer.
This
declaration of law made by this Court is clearly applicable to the State of
Kerala also. The Kerala Legislature cannot, in our opinion, refuse to accept
this declaration of law nor can it declare anything to the contrary.
In the
judgment of six learned Judges in Indira Sawhney, as stated earlier, there is a
specific declaration of law that the children of IAS, IPS and other All India
Services in the Backward Classes are creamy layer and this is true
"without further inquiry". These persons are to be deemed, in law
and, in fact, to have reached such a level of social advancement that they
cease to belong to the backward class. The judgment also refers to a
classification of "affluent" sections identified by way of income or
property holding.
(f)
Further, in Ashok Kumar Thakur it was held as a matter of law that certain
broad categories mentioned in the O.M. of the Central Govt. dated 8.9.93 belong
to the creamy layer. There was no answer from the State of Kerala as to why the
same categories as mentioned in Indira Sawhney or those mentioned in the O.M.,
as approved in Ashok Kumar Thakur could not be declared as creamy layer,
subject to any realistic modification of the income or holding levels, if need
be. It was not the case of the State before us that these categories, which
form the vertical divisions of the backward classes,(as pointed out under point
1) were non- existent so far as Kerala State was concerned. It was not also its
case that such a class of persons would not be existent in future in the
Backward Classes of the State.
If the
Kerala Government and the Kerala Legislature meant in their declaration in
sub-clause (a) of section 3 that there was, in effect, no 'creamy layer' in the
State of Kerala, among the notified Backward classes, then they must go to the
length of stating that there was none who had so far been recruited to the
aforementioned services of IAS, IPS etc. or none had come within broad
categories listed in the Central Government's O.M. dated 8.9.93 ( i.e.
constitutional
functionaries, service personnel, professions, men in business and industry or
holding agriculture or urban land of those levels or near about), in the Kerala
State. In fact when this question was specifically put across to the learned
senior counsel for the State and to learned senior counsel for the SNDP Yogam
and others, there was no answer and they could not deny the existence of the
above horizontal divisions among the backward classes in Kerala. (g) Further,
the broad categories and norms ( of parents belonging to the All India Services
etc. or reaching a level of income or holding ), referred to above, are valid
not merely for the present but for the future also. As and when, any particular
member of the Backward Classes gets entry to IAS or IPS etc., or reaches the
prescribed reasonable level of income of holding, their children will have to be
treated as belonging to creamy layer. May be, certain income levels have to be
periodically upgraded to keep pace with inflation.
Surely,
the Kerala Legislature cannot prophesy that none from the Backward Classes in
the State will ever enter these services or reach these economic levels, in the
near or distant future. It appears to us therefore, from what we have stated
above in sub paras (a) to (g) that the Kerala Act had shut its eyes to
realities and facts and it came forward with a declaration in sub-clause (a) of
Section 3 which, perhaps, it was mistakenly believed was not amenable to
judicial scrutiny. Unfortunately, the law is otherwise.
In
view of the facts and circumstances, referred to above, we hold that the
declaration in sub-clause (a) of section 3 made by the legislature has no
factual basis in spite of the use of the words `known facts'. The facts and
circumstances, on the other hand, indicate to the contrary.
In our
opinion, the declaration is a mere cloak and is unrelated to facts in existence.
The declaration in section 3 (a) is, in addition, contrary to the principles
laid down by this Court in Indira Sawhney and in Ashok Kumar Thakur.
It is,
therefore, violative of Articles 14 and 16(1) of the Constitution of India.
Sub-clause (a) of section 3 is, therefore, declared unconstitutional.
(viii)
Sub-clause (b) of section 3: Inadequate representation: Section 3(b) mixes up
two different concepts:
Sub-clause
(b) of section 3 states that there is no adequate representation of the
backward classes in the services of the State of Kerala. This is given as a
reason for not excluding the creamy layer. In our view, the Kerala Act has
mixed up two different concepts in this sub-clause (b) of section 3. Article
16(4), it will be seen, is an enabling provision which permits the State to
provide reservation for Backward Classes if, in the opinion of the State, such
reservation is felt necessary and if there is inadequate representation. Ajit
Singh II vs. State of Punjab [1999 (7) SCC 209]. Lack of adequate representation
of a particular backward class may be a factor for consideration by the State
for providing reservation. But, the said factor cannot be the sole ground for
continuance of the creamy layer in that backward class. The first step no doubt
is the identification of the backward class which is inadequately represented.
But there is a second step also and that is the elimination of the creamy layer
from the Backward Class. The second step cannot be mixed up with the first step
nor can it be forgotten. An argument was advanced by Sri Rajeev Dhawan that
once the Backward Class was identified by taking into account the economic
criteria, it was not permissible to take that factor into account again a
second time for purpose of identifying the creamy layer. This contention, in
our view, is no longer open as it was specifically rejected by Jeevan Reddy, J.
in Indira Sawhney (see para 791 of SCC) and was accepted by the majority.
(ix)Inadequate representation of Backward Classes and efficiency of administration:
The
more important submission of Sri Rajeev Dhawan and other counsel, however is,
that it may happen that if the creamy layer is eliminated at the second stage
mentioned above, there may be practically no representation for a particular
backward class in the public services because the remaining members i.e. the
non-creamy layer, may not have risen to the level or standard necessary to
qualify for entrance into the service, even within the reservation quota. We
are unable to agree with this contention. Now if the creamy layer in such a
class has reached a very large percentage so as to leave only a small part of
the non- creamy layer of the concerned backward class to avail the benefit of
reservation, then the situation may indeed be one where the backward class
concerned may itself have to be denotified. Assuming that the percentage of
creamy layer is not large enough in such a backward class but is small, and if
it is the case that after elimination of the creamy layer, the standard of the
non-creamy layer is not sufficient to enable its members to enter public
services even within the reservation quota, then a larger and more fundamental
issue arises.
The
question is whether assuming that once the creamy layer is excluded from
backward classes the non-creamy layer in that backward class is not able to
secure adequate representation even within the quota, in public services
because its members are not reaching the prescribed level of qualification or
standards for recruitment, - can that be a ground for non-exclusion of the
creamy layer as contended by the State? It is true there is no specific
constitutional provision in relation to the need for maintenance of `efficiency
of administration' so far as backward classes are concerned (such as the
special provision in Article 335 in the case of Schedule castes and Schedule
Tribes). But such a principle of efficiency of administration is, in our
opinion, equally paramount and is implied in Articles 14 and 16 of the
Constitution even so far as backward classes are concerned. In Indira Sawhney,
Sawant J pointed out ( para 434 of SCC) that while Article 16(4) is an enabling
provision, Article 335 is in mandatory language. Further though there is no
specific provision in regard to Backward Classes, the same principle underlying
Article 335 is applicable to Backward classes. Sawant, J. stated (para 434 of
SCC):
"It
cannot, however, be doubted that the same considerations will have to prevail
while making provisions for reservations in favour of backward classes under
Article 16(4). To hold otherwise would not only be irrational but
discriminatory between two classes of backward citizens" i.e. Scheduled
Castes/Scheduled Tribes and other Backward Classes. The mere inadequate
representation of a particular backward class in public services flowing as a
consequence of exclusion of creamy layer is not legally sufficient to provide
or continue reservation to the creamy layer. Reservation even for Backward
classes can be made only if it will not undermine the efficiency of the
administration in the particular department. In our view, the Constitution has
not envisaged that inadequately represented backward classes are to be placed
on a more favourable footing than inadequately represented Schedule
Castes/Tribes for that would offend Article 14 as between two sets of Backward
Classes - namely the Scheduled Castes and the Other Backward Classes as pointed
out by Sawant J.
In our
opinion, the qualifications, standard and talent necessary for Backward Classes
cannot be relaxed or reduced to a level which may affect the efficiency of
administration.
In
Ajit Singh II vs. State of Punjab [1999 (7) SCC 209], it was decided recently
by the Constitution Bench as follows: (p.233):
"It
is necessary to see that the rule of adequate representation in Article 16(4)
for the Backward Classes administration......Thus, in the matter of due
representation in services for Backward Classes,......., maintenance of
efficiency in administration is of paramount importance." The
constitutional principle that equals cannot be treated unequally and unequals
cannot be treated equally based on Articles 14 and 16(1) overrides other
considerations. In fact, in Indira Sawhney, the Supreme Court itself declared
that in certain departments, there is to be no reservation whatever even for
backward classes.
Thus,
assuming that, when creamy layer is excluded, there will be inadequate
representation of certain Backward classes in services, that cannot be a valid
reason for the continued inclusion of the creamy layer in the Backward Class,
after Indira Sawhney. For all the aforesaid reasons, sub-clause (b) of section
3 does not provide any valid answer for not eliminating the creamy layer and
must also be held to be unconstitutional and violative of Articles 14, 16(1) and
16(4) of the Constitution. Thus, sub-clause (a) and (b) of section 3 are both
declared unconstitutional.
(x)Section
4:
We
next come to section 4 of the Act. The non- obstante clause in Section 4 is
obviously intended to get over Indira Sawhney and Ashok Kumar Thakur. The
crucial words of the section are: "having regard to the social and
educational backwardness of the backward classes" in the State of Kerala -
as in force on the date of the commencement of the Act ( i.e. 2.10.1992). Now,
"backward classes" have been defined in the Act as those referred to
in section 2(b) of the Act. That definition in its turn takes us to the
enumeration of Backward Classes made in 1958in List III of Schedule to part I
of the Kerala State and Subordinate Services Rules, 1958 framed under the
proviso to Article 309 of the Constitution. In other words, section 4 provides
for the continuance of reservation for the backward classes as they stood in
1958 ignoring the directives of this Court in 1992 in Indira Sawhney for exclusion
of 'creamy layer'.
If
indeed such continuance, as specified in section 4, of these Backward Classes
together with the creamy layer as was in existence in 1958 is based upon the
Legislative declaration in section 3, - then once section 3 is declared unconstitutional,
section 4 too falls to the ground. If, on the other hand, we assume that
section 3 is not the basis of section 4, then the continuance of the 1958
scenario or the pre-Indira Sawhney position, even as late as 1995 when Section
4 was enacted, - will amount to ignoring the subsequent judgments of this Court
in Indira Sawhney rendered in 1992 and Ashok Kumar Thakur in 1995 to the effect
that creamy layer is necessarily to be eliminated.
The
non-obstante clause in section 4 too cannot come to the rescue of the State. As
already stated, the said clause cannot override the judgments of this court
based on Articles 14, 16(1) and 16(4) if the defect is not removed by the
legislation. Neither Parliament nor the State Legislature can make any law to
continue reservation to the creamy layer inasmuch as the above judgments of
this Court are based on Articles 14 and 16(1) of the Constitution of India, and
no law can obviously be made to override the provisions of Articles 14 and
16(1).
Thus,
for the aforesaid reasons, section 4 of the Act along with the non-obstante
clause is declared unconstitutional and violative of the judgments of this
Court and also violative of Articles 14, 16(1) and 16(4) of the Constitution of
India. (xi)Section 6: We then come to section 6 of the Act which deals with
retrospective validation. This section again starts with a non-obstante clause.
Obviously, the Kerala Legislature is having Indira Sawhney and Ashok Kumar
Thakur in its mind, when it inserted the non-obstante clause. Once section 3 of
the Act is held unconstitutional, the position is that the legislative
declaration as to non-existence of creamy layer goes and the existence of
creamy layer becomes a staring reality. That will mean that under the Act of
1995, the Legislature has not eliminated the defect. Nor can section 4 in this
connection be of any help because that provision has also been declared as
unconstitutional. Section 6 cannot stand alone once sections 3 and 4 are
declared unconstitutional.
As
long as the creamy layer is not excluded and the defect continues, any
validation - without elimination of the defect which is the basic cause of
unconstitutionality - is, as already stated, ineffective and will be invalid.
Thus, section 6 is also unconstitutional. For the aforesaid reasons, we declare
under Points 2 and 3 that the provisions of sections 3, 4 and 6 of the Act are
unconstitutional and violative of Articles 14, 16(1) and 16(4) and of the law
laid down by this Court. But with a view to relieve any hardship, we propose to
issue certain directions under Point 4 and 5. Our decision on points 2 and 3
will be subject to what we propose to direct under point 5 and 6. Points 2 and
3 are decided accordingly.
Point
4: Article 14:(and Article 16 which is a facet of it) is part of the basic
structure of the Constitution of India:
The
preamble to the Constitution of India emphasises the principle of equality as
basic to our constitution. In Keshavananda Bharati vs. State of Kerala [1973
(4) SCC 225], it was ruled that even constitutional amendments which offended
the basic structure of the Constitution would be ultra vires the basic
structure. Sikri, CJ. laid stress on the basic features enumerated in the
preamble to the Constitution and said that there were other basic features too
which could be gathered from the Constitutional scheme (para 506 A of SCC).
Equality was one of the basic features referred to in the Preamble to our
Constitution. Shelat and Grover, JJ. also referred to the basic rights referred
to in the Preamble. They specifically referred to equality (para 520 and 535A
of SCC). Hegde & Shelat, JJ. also referred to the Preamble (paras 648,
652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too
referred to the Preamble and the equality doctrine (para 1159). Khanna, J.
accepted this position (para 1471).
Mathew,
J. referred to equality as a basic feature(para 1621). Dwivedi, J.(para 1882,
1883) and Chandrachud, J.(as he then was) (see para 2086) accepted this
position. What we mean to say is that Parliament and the legislatures in this
Country cannot transgress the basic feature of the Constitution, namely, the
principle of equality enshrined in Article 14 of which Article 16(1) is a
facet. Whether creamy layer is not excluded or whether forward castes get
included in the list of backward classes, the position will be the same,
namely, that there will be a breach not only of Article 14 but of the basic
structure of the Constitution.
The
non-exclusion of the creamy layer or the inclusion of forward castes in the
list of backward classes will, therefore, be totally illegal. Such an
illegality offending the root of the Constitution of India cannot be allowed to
be perpetuated even by Constitutional amendment. The Kerala Legislature is,
therefore, least competent to perpetuate such an illegal discrimination. What
even Parliament cannot do, the Kerala Legislature cannot achieve.
Unfortunately, in the decision making process which enables the forwards to get
into the list of backward classes or which enables the creamy layer to grab the
benefits of reservation, it appears to us that the voice of the really
backwards, namely, the voice of the non-creamy layer, is nowhere heard. Else
there is no reason why the State should decide not to exclude the 'creamy layer'.
Point 4 is decided accordingly. Points 5 and 6:
We
have already referred to the circumstances under which this Court was compelled
to appoint a High Level Committee presided over by Justice K.J.Joseph, for the
purpose of identifying the 'creamy layer, in the Backward Classes in the State
of Kerala. The Report is a detailed one and runs into 114 pages. The Committee
invited suggestions and representations from the public as well as from the
organisations representing the Backward Classes by newspaper publications in
December 1996, in English and Malayalam. The Committee also gave personal
hearing to various individuals, bodies and organisations. It received 596
representations / suggestions till 15.1.97 by the due date and 177
representations after the due date. Most of the parties before us had
represented before the said Committee. The State of Kerala did not file any
representation before the High Level Committee, though a request was made on
13.1.97 to permit it to give suggestions. The State Government placed the
report of the subject's Committee before the High Level Committee and the said
Committee went into the provisions of the Bill which led to the 1995 Act. The
Subjects-committee of the Legislature and other Committees and the
organisations which contended that there was no creamy layer in the Backward
Classes in the State relied mostly upon section 3 of the 1995 Act.
Organisations which contended that there was a creamy layer pointed out that
the declaration made in section 3 of the Act was contrary to existing facts and
that the Government and the Legislature had no material before them to declare
that there was no creamy layer in the State of Kerala nor to say that "no
section of any Backward Classes reached a successful level of competition with
forward classes".
We
shall initially refer to part I of the report briefly. The High Level Committee
summarised Indira Sawhney in detail in para 22 and 22A (i) and 22(A)(ii) which
summary, we may state, correctly reflects the legal position. The facts
relating to representation of OBCs in various departments were considered in
para 22 B(i) to para 22 B(ii). In para 22B(xiii) it was stated that from the
ranked lists published by the Kerala Public Service Commission it was clear
that:
"there
are sufficient qualified candidates applied for appointment in Public Services
and included in the ranked lists from among the Other Backward Communities in
the State".
It was
noticed from the records of the Public Service Commission that the statutory
quota of 40% for OBCs - out of a total number of 68, 893 advised by Public
Service Commission during 1991-96, - came to 27, 557, while the actual number
of Backward Class candidates advised was more that 40% i.e. 29, 346. The High
Level Committee referred to the Economic Review, published by the Kerala
Government.
It
then held that:
"even
if the statutory reservation in favour of any backward class is not satisfied
or there is over representation, the same will not be a justification for
giving the benefit of reservation under Article 16(4) in favour of the affluent
part of the Other Backward Classes".
This
view of the Committee is in full conformity with what we have stated under
Points 2 and 3 in relation to validity of sub-clause (b) of section 3. Para 22C
(i) to (ix) deals with various facts and contentions and concludes by saying
that the apprehension that if creamy layer is excluded, there will not be
adequate representation, is not factually correct.
In
para 22(D) (iii), this was reiterated, having regard to the fact that in 1991,
literacy in Kerala was 91%.
In
1996, it was almost 100%. There were 6728 Lower Primary Schools, 2964 Upper
Primary Schools and 2573 High Schools.
In
1995-96 21.98 lakh students enrolled in Lower Primary Sections, 18.12 lakh in
Upper Primary Sections and 16.16 lakhs in High Schools sections - in all 56.27
lakhs. During this period, 17,250 were in vocational schools in 1995-96.
There
were again, 211 colleges in Kerala in 1996. In 1996, 92,304 boys and 1.17 lakh
girls were studying in pre-degree and 48,635 boys and 79,638 girls in degree
classes and 2954 boys and 8206 girls in P.G. classes. According to the High
Level Committee all these groups in schools and colleges contained backward
classes candidates. Statistics in Engineering and Medical Colleges and Nursing
were also given.
Thereafter,
the Committee referred to the Central Government's O.M. dated 8.9.93 in para
22F (i) and to Ashok Kumar Thakur. In para 22F (v), it was said that as in the
said O.M, so in Kerala, the rule of exclusion of creamy layer was not to be
applied to Artisans or those engaged in hereditary occupations, callings like
potters, washermen, barbers etc. The list of such occupations prepared by the
Kerala Artisans Development Corporation Ltd. was accepted.
Persons
traditionally engaged in fishing operations were also excluded in para 22F
(vii). The Committee referred in para 28 to various principles settled in
Indira Sawhney.
The
Committee considered the O.M. dated 8.9.93 as directed by this Court in its
order. The Committee held that increase in cost of living index between 1992
when Indira Sawhney was decided and the position in 1996 was to be kept in
mind. There was an increase of 39.06% in the index it was stated. The increase
in consumer price index was also considered and it was held in paras 30, 31, 32
that the income level set in the Central Government's O.M. of 8.9.93 was to be
modified upwards from one lakh to Rs.1.50 lakhs gross income. Para 33 dealt
with the minimum scale of Rs.3000-5000 of group A officers/Grade I and of
Rs.2500-4000 of Group B. It was observed that the minimum in Central and State
Governments in the All India Services category was Rs.2200-4000. The revision
proposed in the 5th Pay Commission was far above these scales. Paras 3, 4 and 5
dealt with agricultural income and productivity. The Committee computed these
figures on the basis of data furnished. Para 36 dealt with professionals, those
in Trade and Business and Industry. On that basis, the criteria were fixed
following the method adopted by the Central Government in its O.M. Annexure
IX(a), IX(d), (IX(e), (X(f), IX(g) of the Report give data relating to the
over-representation of Ezhava/Thiyya, Nadar, Converted Christians, Viswakarma
and Dheevan Communities in various Government Departments.
Annexure
IX(i) deals with departments where there is over- representation of some of the
Backward Classes. Other Annexures deal with departments where there is under
representation.
We
finally come to Part II of the Report which is important and it deals with the
criteria fixed for identifying the 'creamy layer' in the Backward classes.
This
runs into 17 pages. Pages 1 to 4 deal with guidelines, Annexure A deals with
list of OBC, Annexures B and C to Artisan/persons of hereditary occupations
excluded from creamy layer. Annexure D deals with fishermen Community similarly
excluded. Annexure E prescribes the certificate.
Schedule
at pages 13-17 deals with the prescribed norms.
So far
as the guidelines are concerned, reference is made to the list of OBCs in the 1958
Service Rules, and to the 40%, reservation for OBCs. It was stated rightly that
those OBCs coming up on merit basis were to be excluded from 40%. The exclusion
of creamy layer was to apply in Government and public sector, Government
companies and autonomous Bodies etc. In the Schedule at Pages 13-17, which is
the crucial provision, the method adopted is similar to that in the Central
Government"s O.M. dated 8.9.93. First, Constitutional posts. are referred
to.
These
include among others Judges of the High Court, Supreme Court, Chief Ministers,
Council of Ministers etc., Former Chief Ministers and former Council of
Ministers as well.
These
in all, are in 19 categories. Then comes the Service category, and the Central
pattern is followed, referring to "Parents both or either" being in
Group I and Group B posts;
reference
is made to those in Armed forces and Para Military forces at various higher
levels; Professional Classes and Trade and Industry were then referred to as
follows:
"persons
coming within wealth/means/income group prescribed in category VI, apart from
their social status as prescribed in the respective professions".
and
contain sub-categories in paras (i) t (vi).
Income
level is fixed at Rs.1.50 lakhs gross for individuals and Rs.20 lakhs for company
and trusts in an year.
Societies
and Chief Executives/Chair persons of Cooperative Societies are also included,
income of society fixed at Rs.20 lakhs per annum. Category 5 deals with
property owners -(A) Agriculture holding of 5 hectares or more for cardamom or
coconut plantation/cultivation and 4 hectares for persons/family having rubber
or coffee plantation (B) refer to vacant land as in category VI. 'Family'
includes husband and wife and minor children. Buildings could be residential,
industrial or commercial in use etc. Para VI deals with wealth or income from
as follows:
"person/persons
having gross annual income of Rs.1.50 lakhs or above or possessing wealth above
the exemption limit as prescribed in the Wealth Tax Act for a period of 3
consecutive years;
Explanation:
The income criteria in terms of rupee will be modified/amended suitably taking
into account the change in the value of money,every three years".
We are
of the view that these guidelines and criteria are on the same lines as those in
the Central Government's O.M. dated 8.9.93 which were accepted in Ashok Kumar
Thakur as reasonable. In fact, there is now an upward increase of income to
Rs.1.50 lakhs. Having regard to Ashok Kumar Thakur, we are clearly of the view
that the above guidelines and criteria fixed by the Justice Joseph Committee
are reasonable so far as the State of Kerala is concerned. In fact, in the
affidavit dated 16.1.1998 filed by the Kerala State through its Chief
Secretary, it was stated merely that there were a few mistakes, namely, that
there was an omission of 5 communities viz. Kumbarans, Muslim, Thachar, Boyan
of Malabar District, Malayan - throughout the State, except Malabar and of 10
Sub-castes viz. Peroorkada Chetties, Sadu Chetties, Manai Chetties (Chetty Community),
Valan, Nulayan, Paniakkal, Mukaya, Bobi Mukayan, Mukaveeran & Valinjiar
(Dheevara Community), in the list prepared by the Committee. In our view, these
would have to be included in the list of Backward Classes in addition to those
mentioned in the Report of the High Level Committee. The guidelines &
criteria fixed by the Committee would be applicable to these communities and
sub-castes also. We direct accordingly. We have heard submissions on behalf of
the various communities/interveners and looked into their objections to the
Committee's Report. Our attention was not invited during arguments to anything
in particular on law/facts which would fault the Committee's Report. Counsel
virtually conceded that no material was placed in any of the objections filed
in this Court to the guidelines/norms in the Report except to say that the
Kerala Act of 1995 was a complete answer to the points raised in the Report in
favour identification of the creamy layer. Some have raised points which are
already covered by what we have said under Points 1,2 and 3. In fact, we may
make it very clear that no objection of any substance was placed before us by
any counsel to contend that the guidelines or norms fixed by the High Level
Committee were wrong. Arguments of a very general nature saying that creamy
layer ought not be excluded, were advanced. We, therefore, hold that there is
nothing in the objections filed the parties which requires to be specifically
dealt with. In the result, we accept the Justice Joseph Committee's Report in
toto subject to the addition of communities and sub-castes as pointed out in
the affidavit of the State dated 16.1.98, referred to above.
The
next question is as to the further directions that we have to give: When the
State was found guilty of deliberately violating orders of this court and the
order was kept in abeyance and subsequently, legislation was passed by-passing
all norms of reasonableness, should we allow the State to go scot-free or
should we punish the perhaps innocent candidates who between the date of
judgment in Indira Sawhney and today had got appointments even though they
belonged to the creamy layer? Is there no way of punishing those who are guilty
of wilful disobedience - apart from the Chief Secretary? For the present, we do
not wish to go into this question.
It
will be seen that this Court has stated, as long back as in 1992 that it is
imperative to exclude the creamy layer in the Backward classes from the
benefits of reservation. The Kerala Government has been already found to have
deliberately violated the directions of this Court in that judgment and held
guilty of contempt of Court. The question of imposing sentence and, if so, on
whom was pending when the impugned legislation was passed in 1995 by the State
of Kerala. The legislation unfortunately served dual purposes - one to ward off
temporarily any sentence being passed in the contempt proceedings and the other
for deliberately putting off the exclusion of creamy layer till this Court
could deal with the validity of the Act. Now that the provisions of sections 3,
4 and 6 of the Act have been struck down, it is no longer permissible to allow
the State of Kerala to continue to violate the mandate of this Court nor can
this Court allow the State to help the creamy layer to reap the benefits of its
non-exclusion. Is it not necessary to see that the benefits trickle down
atleast now to the non-creamy layer of the Backward classes in that State at
least from today? We, therefore propose to adopt the principle of prospective overruling
and we think it appropriate to put the recommendations in the Report dated
4.8.97 of the High Level Committee presided over by Justice K.J.Joseph (with
the addition of the communities and sub-castes mentioned in the affidavit of
the Chief Secretary dated 16.1.1998) into immediate operation from today
prospectively, as stated below. We apply the principle of prospective
overruling, as done in Ashok Kumar Thakur's case, keeping the suo motu contempt
case pending. We, therefore, direct as follows: (1) We direct that the
exclusion of creamy layer as stated in that Report shall be applicable from
today, to all cases where appointment orders have not been issued to the
members of the Backward classes and for all future selections in public service
as stated in the Report. (The five communities referred to in the affidavit of
the Chief Secretary dated 16.1.98 shall also be treated as Backward subject to
the guidelines and norms fixed by the Committee). It will be obligatory to
implement the Report, as so modified, in the Government Departments of Kerala /
Organisations/ Institutions/Public Sector Undertakings/Government owned
Companies/Co-operative Societies/Autonomous Bodies , as stated in the Report,
wherever the principles of reservation embodied in Article 16(4) or Rules 14 to
17 of Part II of the Kerala State and subordinate Service Rules, 1958 are
applicable. It shall be necessary for the candidates belonging to the Backward
Classes to file the certificates as envisaged in the Report and satisfy the employer
that he or she does not belong to the creamy layer. The income limits and
property holdings as mentioned in the Schedule to the said Report will be
applicable from today. The exclusion of certain occupations/communities etc.
shall however be as specified in the Report. Any violation of this direction
will make the appointment or selection made on or after this day,
unconstitutional. It is made clear that any infraction of this direction will
be treated seriously and this Court will also not hesitate to take further
fresh action for contempt of Court, if need be. (2) We are of the view that it
will be appropriate to allow the State of Kerala one more chance to conform to
the Rule of law. We, therefore, permit the State of Kerala to make such
provision as it may deem fit for exclusion of creamy layer among the Backward
Classes in the State of Kerala, in accordance with law and in a manner
consistent with the Constitution, the basic structure of the Constitution,
Articles 14 and 16 and the judgment in Indira Sawhney and in Ashok Kumar Thakur
and in accordance with the principles laid down in the judgment now rendered by
us.
(3)
Once such provision is made and published in accordance with law, it shall come
into force and the recommendations of the Justice K.J.Joseph Committee as
accepted by this Court shall cease to apply. But as long as the State of Kerala
does not bring about any such alternative provisions to exclude the creamy
layer, the recommendation of the Justice K.J.Joseph Committee shall operate from
today subject to any further directions which this Court might give in that
behalf. Any fresh alternative provision that may be made by the State of
Kerala, it is needless to say, will be subject to the such further decision of
this Court, in case the validity thereof is questioned. (4) In the event of
alternative provisions being made by the State of Kerala either by executive
order or by legislative or by way of Rules, no Court shall entertain any
challenge thereto, and all proceedings in relation thereto shall have to be
taken out only in this Court. Before parting with the case, we may state that
the unreasonable delay on the part of the Kerala Government and the
discriminatory law made by the Kerala Legislature have been in virtual defiance
of the rule of law and also an indefensible breach of the equality principle
which is a basic feature of the Constitution. They are also in open violation
of the judgments of this Court which are binding under Article 141 and the
fundamental concept of separation of powers which has also been held to be a
basic feature of the Constitution. The State has already been held guilty of
contempt. This attitude and action of the State of Kerala has unfortunately
resulted in allowing the `creamy layer' among the backward classes in the State
of Kerala to continue to grab the posts in the services in government, public
sector etc, even after Indira Sawhney and get away with the same. The result is
that the really backward among the backward classes have been deliberately deprived
by the State, - of their legitimate right to these posts which would have
otherwise obviously gone to them. To us it appears to be rather anomalous that
while the Governments declare endlessly that they will see to it that benefits
of reservations really reach the needy among the backwards, - the very action
of the Governments both on the executive side and on the legislative side,
deliberately refusing to exclude the creamy layer and in indiscriminately
including more castes in the backward classes list are leading to a serious
erosion of the reservation programme. The sudden Cabinet decision of the State
of Kerala not to appoint a Commission to identify the creamy layer as promised
but to pass the impugned law was nothing but an attempt to perpetuate the
creamy layer and allow it to knock away the benefits of reservation. Such a
decision appears to us to have been taken because the real backwards obviously
have no voice in that decision making process. Unfortunately today, as a matter
of political expediency, Governments tend to knowingly violate the Rule of law
and the Constitution and pass on the buck to the courts to strike down the
unconstitutional provisions. It would then become easy for the Government to
blame the Courts for striking down the unconstitutional provisions. The case on
hand is a typical illustration of such an attitude. In this context, the words
of Sir Anthony Mason, Chief Justice of Australia ( quoted in para 684 of Indira
Sawhney by Jeevan Reddy, J.) are extremely appropriate:
"There
are other reasons, of course - that cause governments to leave decisions to be
made by Courts. They are of expedient political character. The community may be
so divided on a particular issue that a government feels safe course for it to
pursue is to leave the issue to be resolved by the Courts, thereby diminishing
the risk it will alienate significant sections of the Community.
and
concluded:
"....my
own feeling is that the people accept the Courts as the appropriate means of
resolving disputes when governments decide not to attempt to solve the disputes
by the political process".
In the
present case, the State of Kerala did not care if its Chief Secretary was to go
behind bars. It did not care if the real backwards were left in the lurch. It
then took to legislation inasmuch as it would then be difficult for this Court
to hold the legislature in contempt. It is difficult for us to think that the
Kerala Government really believed in the validity of its legislation. It
appears to us that it thought it better to leave it to the Courts strike down
the Act. Years would role by and in the interregnum the creamy layer could
continue to reap the benefits of reservation. When Governments unreasonably
refuse to eliminate creamy layers from the backward classes or when governments
tend to include more and more castes in the list of Backward Classes without
adequate data and inquiry, a stage will be reached soon when the whole system
of reservation will become farcical and a negation of the constitutional
provisions relating to reservations. The resistance of the creamy layer to get
out of the lists is as bad as the clamour for entry into the quota system of
various castes whose social status does not conform to the law decided by this
Court. We earnestly hope that Constitutional provisions will not be converted
into citadels for unjustified patronage. Krishna Iyer, J. warned in Akhil
Bhartiya Soshit Karamchari Sangh vs. Union of India [1981 (1) SCC 246] (at 264,
para 22):
"......to
politicise this provision (i.e. Article 16(4) for communal support and Party
ends is to subvert the solemn undertaking of Article 16(1)." The IAs 35,
36 in W.P. 930/1990 are disposed of accordingly. W.P.(C) Nos.699/95 and 727/95
are allowed to the extent indicated above. IAs 8 and 9 in W.P.(C) No.699/1995
also stand disposed of. However, the suo moto contempt case started earlier
shall be listed after a period of three months. We thank the learned Amicus
Curiae Sri Gopal Subramaniam for his valuable assistance.
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