The March of the cadres of Social Justice organisations demanding equitable reservation policy measures
….Continuation from the previous issue
For these criteria to be applicable, one must first see how many Supreme Court and High Court judges are Dalits, to begin with. K.G. Balakrishnan is the only Dalit to have served as Chief Justice of India. After his retirement in 2010, no Dalit judge has been elevated to the Supreme Court. Among the 24 High Courts across the country, there is no Dalit judge serving as Chief Justice.
The apex court has been praised for its progressive ideals shown in gender justice in recent judgments. But as far as caste issues are concerned, it has received flak, first after it tampered with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act earlier this year and now with the creamy layer judgment.
Where members of the S.C. and S.T. communities find representation, they are so few in number that their presence is at best symbolic. At the same time, the few who do make it there are cited by anti-reservationists as an example to vilify and question the continuation of reservation. Exceptions are cited as the norm to generalise the entire community, ignoring the many instances of caste discrimination that continue to take place and with greater brutality.
According to Census 2011, S.Cs account for 16.6 per cent of India’s total population, while S.Ts make up 8.6 per cent. “This comes to 25 per cent. Out of this, how many are IAS officers at the national level and how many of their children are IAS officers?” asked Ramesh Nathan of the National Dalit Movement for Justice.
Stressing the need to look at the backlog in fulfilling reservation, Nathan said that when so many posts were vacant, there was no need to eliminate posts on the basis of the creamy layer. Representation of these communities is inadequate, and the creamy layer concept will only further restrict the upward mobility of the few people who could make use of reservation.
The various definitions of creamy layer boil down to an income criterion, which was capped at a family income of Rs.1 lakh a year in 1993 and revised to Rs.8 lakh in 2017. The fallacy in pegging reservation to economic criteria cannot be overstated. Caste discrimination can overlap with class discrimination, but while change in class is possible, change in caste is impossible to achieve.
Caste is determined by birth and cannot be changed even by converting to another religion.
… the term creamy layer itself is misleading. The correct term used in the Mandal case is socially advanced persons/sections in the identified castes of Socially and Educationally Backward Classes (SEdBCs). The criterion for identification of S.Cs and S.Ts was not backwardness or, more precisely, social backwardness.
Economic progress does not remove the social stigma nor does it suddenly make inter-caste marriages acceptable. In fact, the past decade has been testimony to extreme brutalities aimed especially at educated and aspirational Dalit youths, as seen in honour killings, suicides in educational institutions, struggles over land and atrocities on Dalits for refusing to participate in caste-ordained occupations such as picking up carcasses or manual scavenging.
More importantly, data from the National Sample Survey Office show that despite reservation and the perceived prosperity of S.Cs and S.Ts, the economic gap between upper castes and Dalits persists. A comparison of the average monthly expenditure of Dalit and upper-caste households showed that in rural areas there was a gap of about 38 per cent in 1999-2000, which changed only marginally to 37 per cent in 2011-12.
In urban areas, upper-caste households reported incomes that were 65 per cent higher than Dalit households in 1999-2000. This gap had reduced to 60 per cent in 2011-12.
For S.T. households, the gap in monthly expenditures increased from 49 per cent in 1999-2000 to 53 per cent in 2011-12 in rural areas, and from 45 per cent to 48 per cent in urban areas.
According to Krishnan, the term creamy layer itself is misleading. The correct term used in the Mandal case is socially advanced persons/sections in the identified castes of Socially and Educationally Backward Classes (SEdBCs). The criterion for identification of S.Cs and S.Ts was not backwardness or, more precisely, social backwardness. It is only the SedBCs for whom the criterion of identification was social backwardness, accompanied by educational backwardness.
The criterion for identification and specification of S.Cs was “untouchability”, which is far more debilitating than social backwardness and has been historically continuous to this day, he said.
“It is only in the case of the SEdBCs that the question of individuals or sections ceasing to be socially backward and becoming ‘socially advanced’, often loosely referred to a ‘creamy layer’, can arise. This cannot arise in the case of those identified on the basis of ‘untouchability’ and tribal identity,” he said.
“The only legitimate question that can be put in the case of S.Cs is whether any individual or section has ceased to be viewed by society as ‘untouchable’. ‘Untouchability’ is far more pernicious and far more persistent than ‘social backwardness’, that is, it is far more difficult for individuals and sections to cease to be free from the stigma of ‘untouchability’ than to become free from ‘social backwardness’,” he explained.
To elaborate his point, Krishnan cited the example of the unveiling of a statue of Dr Sampoornanand, the former Chief Minister of Uttar Pradesh, by Jagjivan Ram, who belonged to the S.C. community. Jagjivan Ram had been a Union Minister and had served as Deputy Prime Minister in the government headed by Morarji Desai. Yet, after he left, the statue was washed with gangajal for purification.
“In the case of S.Cs and S.Ts, unless policies and programmes, and their implementation, raise the whole communities to the level of forward communities in every respect—occupational, economic, educational, etc.—it is impossible and unthinkable that individuals can escape the stigma of ‘untouchability’ or the stigma attached to tribal people. This aspect apparently could not be placed before the bench clearly and could not be brought home to the bench. It is necessary to put this basic aspect beyond doubt and the scope for arguments in future,” he said.
After the judgment, Krishnan wrote to the Minister for Social Justice and Empowerment and the Prime Minister suggesting constitutional amendments and executive orders that need to be issued by the Ministry of Personnel, which is directly under the Prime Minister.
The Constitution Bench headed by CJI Misra heard a battery of lawyers, including Attorney General K.K. Venugopal, Additional Solicitor General Tushar Mehta, Senior Counsel Indira Jaising, P.S. Patwalia, Dinesh Dwivedi and Sanjay Hedge, in favour of promotions, and the senior advocates Shanti Bhushan, Rajeev Dhavan, Rakesh Dwivedi and Shekhar Naphade in support of the 2006 ruling. When Frontline asked Nathan if any Dalit lawyer or organisation was involved in the entire process, he said he was not aware of any.
Holding that the introduction of creamy layer for S.Cs and S.Ts was against the Constitution and the principles of social justice, Nathan said that it would be challenged legally.
“Even 70 years after Independence, the socio-economic condition of the community has not changed but may have only improved marginally. The constitutionally guaranteed rights enshrined in Articles 15 (non-discrimination), 17 (untouchability), 16 (equal opportunity in public employment), 15 (education and cultural) and 46 (economic safeguards) have not been achieved,” he said.
“Especially over the last two decades, post-globalisation and structural readjustment programmes, there are no trade unions left, and forced displacement of people is taking place along with reduction in the number of posts in public departments, which are increasingly being privatised. Another aspect is whether there is sufficient representation of S.Cs and S.Ts at all levels. In A, B and C grades, they will not be there, but D grade may be overfilled. How many are there in decision-making posts? Until the time all these rights are guaranteed, there is no point in talking about creamy layer,” he added.
FOR GOD’S SAKE
There’s much consternation Up Above about what’s going on down below in Heaven’s name
– Jug Suraiya
God, sitting on his throne in Heaven, conferring with his Human Relations Officer (HRO)
God: I say, HRO, what on Earth is going on at that Sabarimala place, which has got everyone so worked up that one person has gone and immolated himself, poor chap. What are these humans doing? I mean, I created them, but I’m dashed if I can figure out what they’re up to.
HRO: well, Chief, these humans which you created are pretty tough to figure out, even for me. But the problem at Sabarimala seems to be that some people don’t want women of certain ages visiting the people.
GOD: Don’t want women of certain ages visiting the place? But darn it, Sabarimala’s a temple not a men only club.
HRO: True, But some people felt the presence of women of certain ages would pollute the place.
God: Pollute the place? How can anyone, or anything which I have created and I’ve created everything – possibly pollute a place associated with me. That’s like saying I can pollute myself, which is pure bakwas.
HRO: There’s a lot of bakwas going on down there on your behalf, and giving you a bad press in the bargain. For instance, there’s another hullabaloo being created by some other people because a guy they call RaGa, who they say is not a real Hindu, has been going to temples.
God: Not a real Hindu? What’s that got to do with anything? If I created everything and everyone – which we’ve established-then I created Hindus and non-Hindus, RaGas and non-RaGas, men and women, all on the best corporate practice of Equal Opportunity.
HRO: Too true. But unfortunately humans, or at least some humans, don’t seem to see it that way.
God: In which case, don’t you think we-or rather I-have got to do something about it? May be I should pay a visit down below and sort everything out.
HRO: I don’t think that’s a great idea. Because humans made sure you got left out of the equation when, in your name, they invented something they call religion…
Source: ‘The Times of India’