Sthabir Khora
Rudolf von Jhering as a reaction to Puchta contrasted “jurisprudence in the air,” with “jurisprudence of realities.” Drawing from Savigny’s connection between law and other aspects of social life he construed that law had been produced by efforts to realize a social purpose. Such a purpose was always practical. Law had then to be understood as a means of realizing an objective that was both social and practical. The creamy layer judgement on Jarnail Singh vs Lachhmi Narain Gupta on 26 September, 2018 appears like a jurisprudence in the air.
There are two reasons why people are scared of analysing Court judgments. one is purely physical – the contempt of court and jail. The other, intellectual fear, is that a court judgment must have been arrived at after deliberation by great minds and therefore it may not be possible for ordinary mortals to analyse and find some flaw in it. This is unfounded because while the judges might have a vast background in case law it is not easy for them to have enough knowledge in sociology because of lack of time. Breaking of fresh ground happens not through case law but through philosophy or sociology. I will begin quoting one passage from this judgement.
Equality has two facets ― formal equality and proportional equality. Proportional equality is equality in fact whereas formal equality is equality in law. Formal equality exists in the rule of law. In the case of proportional equality the state is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality (italics by me)(para 103).
As far as I know formal equality is always contrasted with substantive equality and not proportional equality. A sense of proportion is already built into the idea of equality (equal proportion). Proportionality which is cost-benefit calculation is a different thing. The last sentence is difficult to make sense. What do you mean by egalitarian equality! The court shows that it is much concerned with substantive equality. But if the equality principle flows from Article 14, then how can general category be exempt from it! If creamy layer is an intrinsic corollary to the equality principle then how can general category be exempt from it? Is parliament competent to apply creamy layer principle in the general category? If the court is reading substantive equality in Article 14, why it is not accepting indirect discrimination which happens in the promotion of SC/ST employees! The same collector post, when someone arrives at it through reservation in direct recruitment through the IAS, it doesn’t violate equality principle. But when one arrives at the same through reservation in promotions, through the state civil services, violates the equality principle! What sort of logic is this!
Creamy layer- when do you call something a ‘layer’?
At what level something is justified to be called as a layer? If there are 5 well off individuals out of 1000, then are we justified to say it’s a layer. Taking biological analogy you do not call a person with some fat just on the tummy as ‘fat’. You call a person ‘fat’ only when he is above 15% fat which is all over the body. But if you prescribe serious dieting to a person with just 5% fat, you really endanger that person because some amount of fat is the sign of health of that person. The supreme court is not happy with 1% fat of SC/ST and is prescribing a rigorous diet that is actually suitable for the general category.
SC/ST are a class in a sociological sense and not statistical sense
The supreme court’s logic is that income and status of SC/ST IAS, IPS is so different from the rest of the SC/ST that they no more belong to that class. By this logic, the Supreme Court Judges cannot be Indian because the privileged world they live in is not lived by 99.99% of Indians. SC/ST are a class in the sense of community and not in terms of statistics (income). The prime criterion of something to be called community is ‘we feeling’ (as per sociology). In that sense the supreme court judges are also Indians and SC/ST IAS are also SC/ST.
The court has given the example of IAS and IPS. Suppose SC/ST IAS and IPS give testimony that they still face discrimination and they don’t feel that their status has been rising, then will the court accept that! The court simply makes statements like ‘when an SC ST becomes IAS IPS the person has no problem (social backwardness gone)’; but it doesn’t quote any study nor does it even recommend the Social Justice Department to conduct a study.
The criteria of inclusion and exclusion must be the same
The class of SC ST OBC was not constituted on an economic basis. Therefore post-facto you cannot apply economic criteria to decide whether an individual belong to that class or not. The criteria to include and the criteria to exclude must remain the same otherwise there is discrimination. Not applying creamy layer at the entry stage but applying at the promotion stage is this type of discrimination.
How will the supreme court handle it? By including in the entry stage as well (about which already there is a petition: http://www.thehindu.com/news/national/plea-to-exclude-scst-creamy-layer-from-quota/article22544974.ece). The present judgment sort of prepares the ground for it. This is two wrongs equalling one right. Ambedkar, frustrated with Gandhian logic – upper caste atonement only rather than depressed caste resistance as solution for untouchability – said, this is not Aristotelian logic, but Mahatmian logic.
Difference between OBC, SC and ST
The whole logic starts with the premise that the creamy layer notion related to OBC is equally applicable to SC/ST. While applying the same to SC/ST the supreme court should mind that they are two species apart. The differences are the 5Th schedule, 6th schedule, Art 164(1), PCR, Atrocities Act, SCP and maybe many more.
When 52 % OBC are given just 27% reservation, there can be a presumption of scrambling for jobs and creamy layer taking away non-creamy layer’s jobs. But in the case of SC/ST, the reservation is in proportion to their population and therefore why should it be assumed that the creamy layer should be taking away non-creamy layer jobs? The actual situation is just that. SC/ST quota is never fully filled up.
Efficiency/Merit
There are 3 spheres where there is no reservation- defense, higher scientific and technical personnel and higher judiciary. I will focus on efficiency of the higher judiciary.
Efficiency of the higher judiciary– Courts should be the last to talk about efficiency. You can know efficiency either quantitatively or qualitatively. The quantitative aspect about pending cases is known to everybody. How to judge the qualitative aspect? One way to figure out the merit of higher judiciary is whether they have written any jurisprudence books ( not merely a compilation of case laws), which is respected all over the world like Justice Holmes.
Talcott Parsons while addressing before some law students said that it’s difficult to find tolerable consistency in the case law. Therefore compilation of case laws (commentaries) is not an acid test of judicial acumen. Our judges mostly write biographies.
If there is a presumption that those who score less in an open competition have less merit then what will be the presumption about those who do not even face any competition! In the collegium system there is neither openness nor competition. How can it then be presumed that they have more merit compared to others! If somebody has real confidence, that person won’t shy away from competition.
Efficiency of higher civil service– The very premise of judicial activism is executive inefficiency. That apart, judiciary comment on executive efficiency violates separation of power principle. What level of efficiency or inefficiency is to be tolerated is up to the government to decide. If the government is inefficient, which i think it is, the whole people will bear it. No violation of equality principle. This is illustrated by the recent lateral recruitment at the joint secretary level. When the state does lateral recruitment at the level of joint secretary in the name of efficiency then it’s purely an executive matter but when the same state provides for reservation at the level of joint secretary then it’s not an executive matter anymore!
What part of government has to be reservation free? By court’s own logic it is the specialty and super specialty. The whole higher civil service is manned by the IAS generalists and not some specialists.
Reservation can never be benefit for the individual or group but only be about representation
The court has used ‘representation’ and ‘benefit’ in the same breath. If it is representation then question of benefit is immaterial. That the same job of a collector held by an upper caste becomes public service but when held by a SC/ST becomes a benefit – is itself a discriminatory attitude.
The rationale of reservation at the entry stage and in promotion at present can only be representation. This is the rationale flowing from Poona pact (1932). Contrary to popular opinion it can not be linked to individual or even community upliftment. The judgement mentions
The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.
Put simply, the creamy layer forgets reservation which in turn is used by the next in line and that’s how the whole community will do a forward march. Considering the few or nil govermment jobs, does the court have any idea as to how many years it will take for the community to attain some improvement! Do a few government jobs lift an entire community? This is theoretically next to impossible. So discussion about this path of improvement is meaningless. This is some sort of notion that if one saves enough one will be rich without focusing on what’s the income.
There is another reason why reservation is not about the community’s welfare. The welfare argument is theoretically true if the SC/ST are employed exclusively for the welfare of SC/ST. But this not how government works. The government works as a whole, not in bits and pieces. A Brahmin Social Justice Department secretary may be the Nodal Officer for Atrocities Act and an SC/ST devaswam officer maybe responsible for the welfare of the Brahmin pujaris in the temple. Thus the SC/ST employee is in the government neither for his own welfare nor even of his community. The government as a whole is responsible for the wellbeing (not welfare) of people as a whole. Reservation ensures a share in the government (representation).
Only parents do not constitute social; they do not even constitute the family fully
Creamy layer is to be decided on the basis of socio-economic position of the parents. The term social is not encompassed by only parents but the wider group.
If someone is forward or backward solely because of the parents then the right word for it is parental or family backwardness. An individual’s socio-economic position is the function of not just his parents and grandparents but his extended relations and even his/her community. That the law cannot handle it does not mean this reality vanishes in the air. Regarding the limitation of law to handle untouchability, Ambedkar said – law can not punish en entire society or deal with societal ‘organised conspiracy’. Even in law, the Hindu Undivided Family and the mitakshara inheritance system, somebody’s status is not determined only by their parents but by a wider circle. The social status of a group sometimes is dependent on some mythical ancestor who might have done or undone something.
Conclusion
Manu said:
No Shudra should have property of his own, He should have nothing of his own. The existence of a wealthy Shudra is bad for the Brahmins. A Brahman may take possession of the goods of a Shudra.
I think the insistence on creamy layer by the upper castes is jealousy (psychological) and worry about losing power (sociological). This is natural.
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Dr Sthabir Khora is Associate Professor in the School of Education, Tata Institute of Social Sciences. His book “Education and Teacher Professionalism” (2011, Jaipur: Rawat Publications) is recommended reading in the M.Ed Syllabus of Punjabi University, Patiala.
