SC Rejects Creamy Layer Exclusion for Political Quotas

In one of the last constitution bench judgments headed by the outgoing Chief Justice K.G.Balakrishnan, the Supreme Court pronounced today in D.K.Krishna Murthy and Others v. Union of India upon the question of constitutional validity of caste quotas in local bodies enshrined by the 73rd and 74th amendments. It is a short opinion available on Judis (link not yet available) and The Hindu news item is here. The gist of it is that these provisions being only of an enabling nature, they are facially valid but the different quanta of reservation provided in different states may be challenged in the respective high courts with appropriate data. Reservation in political bodies is different from that in education and employment and neither the principles laid down in those nor the data pertaining to them automatically apply here.

All of this is more or less to be expected save the court's view on creamy layer exclusion. The court explained (para 33) why creamy layer need not be excluded where political representation is concerned:

It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level on the other hand. While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local-self government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local self-government are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the ‘creamy layer’ in the context of political representation. There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the ‘creamy layer’ may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of weaker sections. Hence, it would be counter-intuitive to exclude the relatively better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities...

In essence, the court is saying that the better off deserve quota benefits so that they can protect the interests of their respective communities. Apparently, the court does not subscribe to the belief that individuals chosen to serve in public office are supposed to serve the entire community regardless of caste, religion or other sectarian identity. Instead, it holds that individuals are understandably narrow minded and caste diversity itself is therefore a compelling state interest because when different castes are represented by their prominent, wealthy and influential members in a political body, they will ensure that the interests of their respective castes are thus protected. This view has long been held in political circles but coming from the Supreme Court, it is a first and is remarkable as much as it is shocking.

This logic stands the entire creamy layer argument on its head. Of course, the same thing could be said in education and employment too. For example, if children from wealthy and influential families are given quotas in medical courses, their parents can later also set up nursing homes or hospitals for them where they can employ other members of their caste and thus contribute more in relative terms for the upliftment of their community. Likewise, a wealthy individual with the money to set up his own enterprise which employs many others is likely to benefit more from work experience than someone without the same means who needs the job more. If this is the court's preferred route towards upliftment of the weaker sections, why not then just abolish the creamy layer there as well?

The other irony is the 'substantive equality' which the court lays great stress about. Equality, we are normally taught, is about all members of a society having the same right to something and every individual is supposed to be entitled to it without having to depend on anyone's kindness or charity. Substantive equality, as the court refers to, is about the use of affirmative measures to ensure such equality. But what the court is promoting here is not equality of any kind; rather, it is supporting the empowerment of better off members of different communities with the anticipation that their benevolence will promote the interests of weaker sections. This sounds an awful lot like feudalism where the powerful shall rule and the weak can seek refuge from them.

Finally, these better off members are under no obligation to uplift the weaker sections of their own communities. In fact, the strength of their influence may very well depend on keeping the rest of their community disempowered and dependant on their munificence. Not only can they use their power to expand their affluence but now, with the court's endorsement, they can also leverage their own caste status to capture and retain that power. Any suggestion that this move to round off the money-power-quota circle will promote broader social equality is delusional at best or casuistry at worst.