INDIRA SA WHNEY v. UNION OF INDIA AND ORS.

(1) We direct that the exclusion of creamy layer as stated in that Report shall be applicable from today, to all cases where appointment orders have not been issued to the members of the Backward classes and for all future selections in public service as stated in the Report. (The five communities E referred to in the affidavit of the Chief Secretary dated 16.1.98 shall also be treated as Backward subject to the guidelines and norms fixed by the Committee). It will be obligatory to implement the Report, as so modified, in the Government Departments of Kerala I Organisations/ Institutions/Public Sector Undertakings/Government owned Companies/Co-operative Societies/ F Autonomous Bodies , as stated in the Report, wherever the principles of reservation embodied in Article 16(4) or Rules 14 to 17 of Part II of the Kerala State and subordinate Service Rules, 1958 are applicable. It shall be necessary for the candidates belonging to the Backward Classes to file the certificates as envisaged in the Report and satisfy the employer that he or she does not belong to the creamy layer. The income limits and property holdings as G mentioned in the Schedule to the said Report will be applicable from today. The exclusion of certain occupations/communities etc., shall however be as . specified in the Report. Any violation of this direction will make the ' appointment or selection made on or after this day, unconstitutional. It is made clear that any infraction of this direction will be treated H

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A seriously and this Court will also not hesitate to take further fresh action for contempt of Court, if need be·.

(2) We are of the view that it will be appropriate to allow the State of Kerala one more chance to conform to the Rule of law.

B We, therefore, permit the State of Kerala to make such provision as it may deem fit for exclusion of creamy layer among the Backward Classes in the State of Kerala, in accordance with law and in a manner consistent with the Constitution, the basic structure of the Constitution, Articles 14 and 16 and the judgment in Indira Sawhney and in Ashok Kumar Thakur and in C accordance with the principles laid down in the judgment now rendered by us.

(3) Once such provision is made and published in accordance with law, it shall come into force and the recommendations of the Justice K.J. Joseph Committee as accepted by this Court shall cease to apply. But as long as the D State of Kerala does not bring about any such alternative provisions to exclude the creamy layer, the recommendation of the Justice K.J. Joseph Committee shall operate from today subject to any further directions which this Court might give in that behalf. Any fresh alternative provision that may be made by the State of Kerala, it is needless to say, will be subject to the such further decision of this Court, in case the validity thereof is questioned .. E (4) In the event of alternative provisions being made by the State of Kerala either by executive order or by legislative measures or by way of Rules, no Court shall entertain any challenge thereto, and all proceedings in relation thereto shall have to be taken out only in this Court.

F Before parting with the case, we may state that the unreasonable delay on the part of the Kerala Government and the discriminatory law made by the Kerala Legislature have been in virtual defiance of the rule of law and also an indefensible breach of the equality principle which is a basic feature of the Constitution. They are also in open violation of the judgments of this Court G which are binding under Article 141 and the fundamental concept of separation of powers which has also been held to be a basic feature of the Constitution. The State has already been held guilty of contempt.

This attitude and action of the State of Kerala has unfortunately resulted in allowing the 'creamy layer' among the backward classes in the State of H Kerala to continue to grab the posts in the services iri government, public

INDIRA SAWHNEY v. U.O.l. (M. JAGANNADHA RAO, J.) 269 sector etc., even after Indira Sawhney and get away with the same. The result is that the really backward among the backward classes have been deliberately deprived by the State, - of their legitimate right to these posts which would have otherwise obviously gone to them. To us it appears to be rather anomalous that while the Governments declare endlessly that they will see to it that benefits of reservations really reach the needy among the backwards-the very action of the Governments both on the executive side aod on the legislative side, deliberately refusing to exclude the creamy layer and in indiscriminately including more castes in the backward classes list are leading to a serious erosion of the reservation programme. The sudden Cabinet decision of the State of Kerala not to appoint a Commission to identify the creamy layer as promised but to pass the impugned law was nothing but an attempt to perpetuate the creamy layer and allow it to knock away the benefits of . reservation. Such a decision appears to us to have been taken because the real backwards obviously have no voice in that decision making process.

Unfortunately today, as a matter of political expediency, Governments tend to knowingly violate the Rule of law and the Constitution and pass on the buck to the courts to strike down the unconstitutional provisions. It would then become easy for the Government to blame the Courts for striking down the unconstitutional provisions. The case on hand is a typical illustration of such an attitude.

In this context, the words of Sir Anthony Mason, Chief Justice of E Australia (quoted in para 684 of Indira Sawhney by Jeevan Reddy, J.) are extremely appropriate:

"There are other reasons, of course - that cause governments to . leave decisions to be made by Courts. They are of expedient political F character. The community may be so divided on a particular issue that a government feels safe course for it to pursue is to leave the issue to be resolved by the Courts, thereby diminishing the risk it will alienate significant sections of the Community.

and concluded: G " .... my own feeling is that the people accept the Courts as the appropriate means of resolving disputes when governments decide not to attempt to solve the disputes by the political process ".

In the present case, the State of Kerala did not care if its Chief Secretary H

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A was to go behind bars. It did not care if the real backwards were left in the lurch. It then took to legislation inasmuch as it would then be difficult for this Court to hold the legislature in contempt. It is difficult for us to think that the Kerala Government really believed in the validity of its legislation. It appears to us that it thought it better to· leave it to the Courts strike down the Act. B Years would role by and in the interregnum the creamy layer could continue to reap the benefits of reservation.

When Governments unreasonably refuse to eliminate creamy layers from the backward classes or when governments tend to include more and more castes in the list of Backward Classes without adequate data and inquiry, a stage will be reached soon when the whole system of reservation .will become farcical and a negation of the constitutional provisions relating to reservations. The resistance of the creamy layer to get out of the lists is as bad as the clamour for entry into the quota system of various castes whose social status does not conform to the law decided by this Court. We earnestly hope that Constitutional provisions will not be converted into citadels for unjustified patronage.

Krishna Iyer, i. warned in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India, [I 98 I] I SCC 246 (at 264, para 22):

" ...... to politicise this provision (i.e., Article 16(4) for communal support and Party ends is to subvert the solemn undertaking of Article 16(1)."

The IAs 35, 36 in W.P. 930/199.0 are disposed of accordingly. W.P.(C) Nos. 699195 and 727/95 are allowed to the extent indicated above. IAs 8 and 9 in W.P.(C) No. 69911995 also stand disposed of. However, the suo moto contempt case started earlier shall be listed after a period of three months. F We thank the learned Amicus Curiae Sri Gopal Subramaniam for his valuable assistance.

S.V.K I.As and Petitions disposed of.