Gyaan politics

Meritocracy, Dalits, the Supreme Court and the curious case of the creamy layer.

Let me begin with a question. I will answer it later. Which political ideology first propagated the concept of meritocracy?

Ok, now let’s talk about Dalits. And reservation. Last month, while reacting to a piece by Varun Grover, I wrote how at some point Dalits should split themselves into two groups – rich (minority) and poor (majority), so that the benefit of reservation is not usurped by the richer Dalits. I had also added that it’s only for the Dalits to decide the ‘how’ and ‘when’ of this move.

And today, I read the following in the newspapers.

Scheduled Caste and Scheduled Tribe (SC/ST) communities don’t constitute a homogenous group and can be further sub-classified to ensure the benefits of reservation in government jobs and higher education institutions percolate down to weaker sections, the Supreme Court observed on Thursday in a ruling that may have far-reaching political ramifications.

Hindustan Times, 28 Aug 2020

Let me quickly lay down the full context (took me some time to research and read up – if I have misunderstood / misreported something, do let me know; will rectify).

The Creamy Layer

1971 (Indira Gandhi is the PM) – Sattanathan Commission introduces the term “creamy layer” – it refers to those members of a backward class who are highly advanced socially as well as economically and educationally. The Commission proposes that the “creamy layer” be excluded from the reservations (quotas) of civil posts.

1976 – State of Kerala vs N. M. Thomas – “benefits of the reservation shall be snatched away by the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the fortunate layers to consume the whole cake”.

1992 – Indra Sawhney vs Union of India – this judgment validates exclusion of creamy layer for OBCs.

The OBCs who meet some defined criteria (like if their parents have held high govt. office etc.) cannot claim reservation benefits. Same, if they fall under “creamy layer” – meaning the family annual income is above a certain defined threshold value.

1993: The “creamy layer” criteria for OBCs is set at an annual family income of more than INR 1 lakh (this would be revised to INR 2.5 lakh in 2004, INR 4.5 lakh in 2008, INR 6 lakh in 2013, and finally to INR 8 lakh in 2017 ). Note that so far, this concept (and the overall Indra Sawhney case) applies only to OBCs and not SC/STs.

2000: Andhra Pradesh State Govt. enacts a law – the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. This requires sub-dividing the Scheduled Castes into four groups and apportioning reservations separately for each.

2004 – E V Chinnaiah v. State of Andhra Pradesh – SC strikes down the Rationalisation of Reservation Act 2000 and says that SC/STs form a homogeneous class and therefore cannot be further sub-classified for reservations.

The way I see it, implies that one cannot say some SC/STs are backward / less privileged and others are forward / relatively more privileged (which in turn suggests that it would be counter-intuitive to apply the “creamy layer” concept to SC/STs). The “Chinnaiah case” judgment is critiqued by many, main argument being that it does not reflect the reality. Also if OBCs can be sub-divided (as per the Indra Sawhney case), why shouldn’t the same logic apply to SC/STs? In fact, in 2018, the SC would ask something similar.

2006 – State of Punjab v. Davinder Singh – Punjab government enacts a law requiring 50% of vacancies in the quota for SCs in recruitment to be filled by the members of Balmiki community (rest 50% by those from the Mazhbi community). Davinder Singh, himself a SC person, challenges this law in the Punjab & Haryana high court (citing the Chinnaiha case as per which, one cannot sub-classify SC/STs). The High Court rules in his favour. The State Govt. appeals in the Supreme Court against this High Court judgement.

2009 – While SC is yet to decide on the legality of the Davinder Singh judgment, another state does something similar (sub-classification of SC/STs for reservation benefits). Tamil Nadu enacts a law that reserves 3% of the total seats in educational institutions and state services for the Arunthathiyar community (who constitute nearly 16% of the total SC population in the state, but their representation in most government departments, corporations and education institutions is less than 5%).

2018 – Jarnail Singh v. Lachhmi Narayan Gupta – a five-judge Constitution Bench says that the well-off members of the SC / ST communities (the creamy layer) cannot be granted the benefits of reservation in college admissions and government jobs. This is a stance opposite to that of the Chinnaiah case.

2019: The Modi Govt. files a plea for a review of the Jarnail Singh judgement; it wants a 7 bench Constitution bench to reconsider the decision.

2020 (27 Aug): SC concludes hearing of the 2006 Davinder Singh case (and other related cases / pleas) and requests Chief Justice of India to place the creamy layer applicability in SC / STs matter before a 7 judge bench.

Now some of the above cited judgements talk about the reasons why it makes sense to view Dalits in at least two sub-groups – 1. the really poor / less privileged Dalits and 2. the more privileged ones (those who are not so poor; even when being rich does not mean less discrimination).

But is there a counter-question to this rationale?

What can possible be wrong in applying the creamy layer concept to SC / STs?

From some Dalit activist’s point of view, following seem to be the two main considerations:

  1. The claims that the well-off dalits (creamy layer) are taking away most of the benefits of reservations, leaving out the poorer / more backward dalits is just a hypothesis – there is no data / research / survey to back this. So why is the SC court trying to solve a problem that doesn’t even exist? Although one must realize that they are the not so poor / privilaged Dalits who are saying this. Nobody really knows what the really underprivileged Dalits have to say. Or can we guess?
  2. Doing this will divide the Dalits; it is of extreme importance that the Dalit community continues to be united so that it can fight the Bahmanical / Savarna oppression with full force.

Both these points are valid. But debatable too. In any case, there are no easy answers.

If only we could get some data, it would be easier to make decisions. Without data, imposing the creamy layer concept to SC/STs can always be argued as a political move than a societal-benefit move based on the ‘intuition’ and ‘logic’ of Savarnas (after all, the representation of Dalits in judiciary is minimal, just like in most spheres of power).

I think that claiming this division as a means to weaken the Dalit rights movement is a little far-fetched hypothesis, even when it’s valid from a certain point of view. To me, the potential benefits to the truly underprivileged Dalits, seems more than the perceived weakening of the Dalit movement (am I missing something?)

Also, if a division is such that the overall Dalit community is split in two equally sized groups – then it is one thing. But given that the creamy layer Dalits are in all likelihood just a tiny fraction of the overall Dalit community, will the division really impact the Dalit movement at all? I would want to know how. Data will certainly help.

By the way, if any of you are still under the impression that given that we are in 2020, it’s high time we all should move to ‘meritocracy’ and simply put an end to this never ending reservation thing, I do recommend you think deeper.

The blog that I mentioned in the opening paragraph may give some clues! If you have never lived a Dalit life, it’s easy to fall for the meritocracy myth.

Talking about meritocracy also brings me back to the question I posed in the beginning. Time to answer it – Mohism was the political ideology that first propagated the concept of meritocracy.

Exaltation of the virtuous is the root of government.

Mozi (470-391 BC), China

Although Mozi attracted a large group of followers, he was regarded as an idealist and Mohism was not adopted by the Chinese rulers of the time. In the 20th century, Mozi’s notions of equality were rediscovered by Chinese leaders Sun Yat-Sen and Mao Zedong.

That will be all for this blog. If not already, you can subscribe to my weekly newsletter here.

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