INDIRA SAWHNEY Vs. UNION OF INDIA

JUDGEMENT

(1.) The cases in this batch raise common issues relating to the identification of 'creamy layer' among the Backward Classes in the State of Kerala and the implementation of the law declared and directions issued in Indra Sawhney v. Union of India, 1992 (Suppl) 3 SCC 217 : (1992 AIR SCW 3682 : AIR 1993 SC 477 : 1993 Lab IC 129). The State of Kerala took time for implementation of the directions in Indra Sawhney for appointment of a Commission for the purpose of identifying the creamy layer in the State but it failed to appoint a Commission or to proceed with the implementation. Indra Sawhney was decided in 1992. For more than three years the State of Kerala did not implement the judgment. This Court by its order dated 10-7-1995 held (in IAs. 35, 36 filed by the State for extension of time etc.) that the State of Kerala, represented by its Chief Secretary was guilty of contempt but gave a further opportunity to the State to purge the contempt and adjourned the matter to 11-9-1995. It was made clear that if the directions of this Court were not complied with, the Chief Secretary would 'run the risk of being sentenced'. Having sought time for years to appoint a Commission, the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services under the State) Act, 1995 which, in Section 3 declared that "having regard to known facts in existence in the State of Kerala, that there are no socially advanced sections in any Backward Classes who have acquired capacity to compete with forward classes" and that the Backward classes in the State were not "adequately represented" in the services under the State and they would continue to be entitled to reservation under Clause (4) of Article 16 of the Constitution. The provisions of Section 4 continued the existing system of reservation which was in force as per Rules made in 1958 and Section 6 was incorporated as a validating section with retrospective effect. On the ground that the provisions of this Act of 1995 were discriminatory and violative of Articles 14 and 16 of the Constitution, W.P. 699 of 1995 was filed by the Nair Service Society, Kerala while W. P. 727 of 1995 was filed by one K. Ramaswamy, belonging to the Elavami Community of Kerala (a Backward Community) to declare the provisions of the Act as unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Some IAs were filed by interveners to support one or other of the rival groups. The Act was passed on 2-9-95 but was given retrospective effect from 2-10-1992.

(2.) As the State Government failed to appoint a Commission as directed in Indra Sawhney, (1992 AIR SCW 3682 : AIR 1993 SC 477 : 1993 Lab IC 129) this Court, by an elaborate order dated 4-11-96 deemed it necessary to appoint a High Level Committee to gather the necessary information regarding 'creamy layer' and requested the Chief Justice, Kerala High Court, to appoint a retired Judge of the High Court to be the Chairman of the High Level Committee. The Chairman of the Committee, it was held, could induct not more than 4 persons as members from various walks of life "to identify the creamy layer among the designated backward classes" in the State of Kerala in the light of the ruling of this Court in Indra Sawhney and forward its report to the Supreme Court within three months. This Court directed the State Government to extend co-operation to the above Committee. This Court also directed that the O.M. of the Government of India dated 8-9-93 (Ministry of Personnel Public Grievance and Pensions) where the Central Government laid down guidelines for identification of the creamy layer, be placed before the High Level Committee "for use and guidance" in identifying the 'creamy layer' among the other Backward Classes in the State of Kerala.

(3.) Accordingly, the Chief Justice of the High Court of Kerala nominated Sri Justice K. J. Joseph, as Chairman of the High Level Committee. The other members of the Committee were Sri. O. C. Vincet, IAS, Sr. K. P. Mohammed, Adv., Sri K. Aravindaksha Menon, Retd. District and Sessions Judge and Sri K. Asokan, Retd. Director of Public Relations. The said Committee, after a public notification, received evidence and gave opportunity of hearing to various individuals, communities etc. and submitted its report dated 4-8-97 to this Court identifying the "creamy layer" in the Backward Classes of Kerala State. Thereafter, objections were filed in this Court by various parties to the said report and that is how the matter has come before us.