Needless row over Creamy layer : Vanam Jwala Narasimha Rao

Needless row over Creamy layer

Vanam Jwala Narasimha Rao

The Hans India (03-01-2016)

State Government decision to implement creamy layer formula in reservations is opposed by some people belonging to the Backward Class. The Creamy Layer is used to differentiate socially economically developed persons in a caste from those who are deserving of reservation and empowerment. In fact Government of Telangana in November 2014 has merely adopted all the criteria to determine the creamy layer among Backward Classes and the annual income ceiling limit as fixed by the Ministry of Personnel, Public Grievances and Pensions, Government of India and as adapted by the Government of undivided Andhra Pradesh, as Rs.6.00 Lakh per annum for determining the Creamy layer among the Backward Classes. However income from the salaries and income from the agricultural land shall not be taken into account.

To attain an egalitarian society, there is an urgent need to remove socio-economic inequalities. Benefits of reservation must be delivered to only those who really deserve it. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the actually deserved. In one of the important cases Supreme Court has aptly observed that reservation is given to backward classes until they cease to be backward, and not indefinitely. It further said that, "Society does not remain static. The industrialization and the urbanization which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens."

In a historical Judgement delivered on 16^th November 1990 the Supreme Court made some interesting observations on creamy layer. It signifies imposition of an income limit, for the purpose of excluding persons whose income is above a specified limit. Petitioners in the case submitted that some members of the designated backward classes are highly advanced socially as well as economically and educationally and hence to be treated as forward. However respondents strongly opposed and argued that 'creamy layer' is but a mere ruse, a trick, to deprive the backward classes of the benefit of reservations. They also argued that few of the seats and posts reserved for backward classes are snatched away by the more fortunate among them is not to say that reservation is not necessary. Responding to theses arguments the Judges observed that the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. If the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially, economically and also educationally the connecting thread between them and the remaining class snaps. They would be misfits in the class.

Illustrating the point the Judges observed that there are several practical difficulties too in imposing an income ceiling. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society rises and hence he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit.

Keeping in mind all these considerations, the Court directed the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise - of 'creamy layer' as early as possible. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes. Government of India in obedience to this issued instructions in September 1993.

27% of the vacancies in civil posts and services under the Government of India, to be filled through direct recruitment, shall be reserved for the Other Backward Classes.  Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%. The rule of exclusion will not apply to persons working as artisans or engaged in hereditary occupations, callings.  The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Governments’ Lists.  The aforesaid reservation shall take immediate effect. 

Consequently instructions were issued saying that, while applying the Income/Wealth Test to determine creamy layer status of any candidate income from the salaries and income from the agricultural land shall not be taken into account. Subsequently Government of India have revised annual income criteria to exclude socially advanced persons /sections (Creamy layer) from the purview of reservation for Other Backward Classes from Rs.1.00 Lakh in 1993 to Rs.6.00 lakhs in May 2013 from time to time.

Government in the erstwhile Andhra Pradesh, have issued orders on 4^th April 2006, to adopt all the criteria to determine the Creamy Layer among the Backward Classes, as fixed by the Government of India, except the annual income limit, which was fixed by the Government of India at Rs.2.5 Lakh per annum and by erstwhile Government of A.P. as Rs.4.00 Lakh per annum with effect from 4^th April 2006 and enhanced the income criteria by raising the income limit from Rs.4.50 Lakh to Rs.6.00 Lakh per annum on 9^th December 2013.

The process has thus begun with Supreme Court direction followed by Government of India orders and adopted by both erstwhile AP Government and the present Telangana State Government. Then why few people make it a controversy? End

Monsoon Session of Parliament- Lok Pal Bill for Consideration: Vanam Jwala Narasimha Rao

Parliament should be Accountable

Published in The Hans India on 17th August 2011

Vanam Jwala Narasimha Rao

"While the intentions of Anna Hazare and his Team are irreproachable, the sovereignty of Parliament cannot be doubted"-Editor

Let Indians respect Anna Hazare and his team of Civil Society for being largely instrumental in pushing the Government in formulating the historic draft Lok Pal Bill and getting it approved by the Cabinet. It does not mean that they have a right to disregard the self-righteous Parliamentary Democratic process. Its lawmaking power is sovereign. The draft Bill includes many of the Jan Lok Pal Bill provisions. It is however, regrettable, that instead of complementing the Government and Prime Minister Manmohan Singh for coming-out with this draft Hazare and his Team preferred to predict that when this is passed in its present form it would be struck down by Supreme Court. Well, when Parliament has the power to pass a Bill, the Supreme Court has the power to struck it down if it Un-Constitutional. Why not the Gandhian in Hazare wait for its passage and for Supreme Court Decision as predicted by him? Better Postpone sitting on an indefinite fast!

The Fundamental feature of any Democracy and the most important contribution to democratic practice has been the development of a system of Checks and Balances to ensure that political power is separated. The Judiciary, Executive and Legislature (Parliament) though are independently supreme in their own way; it is subject to checks and balances so that the supremacy is also interdependent within the Constitutional Provisions. Laws are proposed by Government - the Executive (As a Collective Responsibility after Cabinet approval) and later are debated and passed by Parliament. Lobbyists (Including Civil Society Organizations) do not have a formal right to be heard, but free to exercise some influence on Government as well as Members of Parliament. The opposition may be taken into confidence or ignored until the introduction of the Bill.

If whatever that Hazare and his Team suggested is accepted and approved by the Executive, then, what role has the Parliament and the Executive? Does it not amount to decline of effectiveness of Indian Parliament as an institution of accountability and supervision? As it is over the years it is on the decline as observed by several experts. The instruments for accountability of Parliament are being rendered dysfunctional. Globalization of Indian economy added to the erosion of the power of Parliament. Parliamentary oversight on the powers which are being delegated to non-elected institutions often to constitutional bodies (Today already many and tomorrow one more in the form of Lok Pal is being added) is very weak. Slow legislation process, more powers to executive in the form of ordinances (Thank God…Hazare did not propose for an Ordinance on Lok Pal) substituting for legislation are some of the known weakness of our Parliament. The capacity and inclination of Members of Parliament (MP) for attending to the modern legislation is also weak. The large number of political parties in Parliament, most of which are institutionally weak, has substantially contributed to the barriers to collective action.

Parliament for no reason itself has self-abdicated many of its functions. And now Hazare and his Team are insisting for an “All Powerful and independent of ‘Checks and Balances’ Institution”. Since Independence, the country undoubtedly sustained, against great odds, a lively, stable, multicultural and functioning democracy with regular and free elections, an independent judiciary and a vibrant civil society. Democratic institutions have shown remarkable endurance. Should we attempt to erode them on the pretext of good intentions?

To what extent our Parliament could be held responsible for the successes and failures of Indian democracy is debatable. Performance of Parliamentary Democracy is not independent of performance of Parliament. Performance of law makers and quality of parliamentarians is also on the decline despite many of our parliamentarians have much higher levels of formal education than in the past. Notwithstanding all this, should the Parliament be a supreme Law making Body or not? Should few persons on the name of Civil Society, however honest and Gandhian they may be, be allowed to dictate as to what is to be law and what is not to be?

The social composition and consciousness of Parliament has also changed considerably over the years. The “state of emergency” that Prime Minister Indira Gandhi declared in 1975 eroded the procedural norms that are the basis of parliamentary practice. The most offensive failure of Parliament to prevent abuse of executive powers occurred in 1975 when Indira Gandhi rammed resolutions approving the presidential proclamation of an internal emergency through both houses of Parliament, suspending the fundamental rights of citizens. They are being brought back to their original position. Should we tamper them even if the intentions are great?

The primary objective of Parliament is to enact legislation, although it also has constitutional, financial and governmental powers. It is the sole body that can amend the Constitution. Parliament is the agency through which government is held accountable.

Legislation in the Parliament involves three stages corresponding to three readings of a bill. After second reading, the bill may be taken into consideration and put to an immediate vote or can be referred to a select committee of the house in question or to a joint committee of both houses, or even circulated for public opinion. However, this option is almost never exercised after a bill has been introduced. Most bills are referred to select committees. A bill placed in Parliament is scrutinized clause by clause, with members also having the right to move amendments. After the third and final reading, followed by Cabinet’s approval of amendments the bill is put to vote. On passage of the bill, it is sent to the second chamber where the entire process is repeated. It is sent to the president for consent after the bill has been passed by both houses. With President’s consent, it does not become a law automatically, that can be enforced, until a notification is gazetted. This step is sometimes “forgotten”, either deliberately or otherwise, with the result that it is unenforceable.

Prime Minister Manmohan Singh and his team involved in formulation of Draft Lok Pal Bill, in a way, circulated (Which, though not being adhered to so far) for Public Opinion (By way of forming a Committee with members of Civil Society comprising of eminent people) even before it was placed in the House. What more is expected from the Government?

India more or less adopted the parliamentary democracy of the Westminster. The principle of Parliamentary sovereignty is same as there. The Parliament either under the English constitution or the Indian Constitution has the right to make or unmake any law whatever. No person or body is recognized by the law as having a right to override or set aside the legislation of Parliament not to speak of threaten to undertake indefinite fast!

Nearly four and half decades after the first draft of Lok Pal was conceived, the Union Cabinet has approved now. It is absolutely justified to keep outside its purview the Prime Minister while in office, the higher Judiciary and the conduct of MPs inside Parliament-the three authorities expected to safeguard the system of Checks and Balances. Is there any guarantee that each and every one of the proposed nine members of Lok Pal shall forever and ever be above all ills of the present day system? Then why cannot Lok Pal keep out PM outside its purview?