Case Note & Summary
The proceedings arose from the implementation of the Supreme Court's judgment in Indra Sawhney v. Union of India, (1992) Suppl 3 SCC 217, known as the Mandal case, delivered on 16.11.1992. In that case, the Supreme Court directed the Government of India and State Governments to specify socio-economic criteria to exclude socially advanced persons/sections (the creamy layer) from Other Backward Classes. The Union of India and most States complied, but the State of Kerala did not. Kerala initially filed an application on 6.8.1993 seeking extension of time to comply, which was modified to one year. On 6.2.1995, the Court observed that the direction had not been carried out. The State's counsel argued that a State Commission for Backward Classes existed under a State statute, but the Court held that the existence of such an Act or Commission could not stand in the way of implementing the Court's direction, and that over two years was more than sufficient. The Court expressed the impression that Kerala had not taken the direction seriously and granted one month to comply, failing which drastic action would be taken. When the matter came up on 20.3.1995, Kerala had still not taken steps, and the Court issued a show cause notice for non-compliance. On 10.7.1995, no compliance report was submitted; instead an affidavit from the Chief Secretary explained delay. The Court noted that the Government of India had fixed criteria on 8.9.1993, and more than 1.5 years had elapsed; the file moved from desk to desk and implementation was delayed. The Court was unhappy that despite the contempt notice the State Government did not realise the urgency. On 11.9.1995, Kerala filed another affidavit along with the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995 (Kerala Act 16 of 1995), and prayed that the contempt order be reviewed. The Court directed a better affidavit stating how the State dealt with identification of creamy layer. As there was no further fruitful action, the Court considered its power to punish for contempt. Meanwhile, Writ Petition Nos. 699 and 727 of 1995 challenging the constitutionality of the Kerala Act were filed and directed to be heard with the main matter. On 5.8.1996, counsel for Kerala sought time citing change of government, and the Court granted time till 10.9.1996. On 23.9.1996, counsel P.S. Poti could not provide any suggestions regarding steps taken. The Court, out of sheer exhaustion and considering the pending constitutional challenge, decided to obtain information itself through a High Level Committee. The Court requested the Chief Justice of the Kerala High Court to appoint a retired judge as Chairman and up to four members from various walks of life to identify the creamy layer among designated Other Backward Classes in Kerala in light of the Mandal case ruling, and to submit a report within three months. The State of Kerala was directed to extend all cooperation and meet expenses. The Committee was to be guided by the Government of India Office Memorandum dated 8.9.1993. The matter was to be listed after the report.
Headnote
A) Constitutional Law - Reservation - Creamy Layer - Compliance with Supreme Court directions in Indra Sawhney v. Union of India (Mandal case) - The Court had directed identification and exclusion of socially advanced persons/sections (creamy layer) from Other Backward Classes within specified periods; State of Kerala repeatedly failed to implement despite extensions and notices, and instead enacted Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995; Court found inaction and appointed a High Level Committee chaired by a retired High Court judge to identify creamy layer among designated OBCs in Kerala in light of Mandal case; Held that non-compliance with Court directions warranted remedial measure to ensure implementation (Paras Not mentioned). B) Contempt of Courts - Non-compliance with Court directions - Contempt jurisdiction - State of Kerala was issued show cause notice for non-compliance; Court expressed unhappiness and noted that even after contempt notice, urgency not realized; However instead of immediately punishing, Court decided to get information through High Level Committee to resolve creamy layer issue; Held that exercise of contempt power was deferred in favor of constituting a committee to identify creamy layer (Paras Not mentioned). C) Constitutionality of Kerala Act 16 of 1995 - Writ Petitions - Pending adjudication - Writ Petition Nos. 699 and 727 of 1995 challenged constitutionality of the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995; Court directed those petitions to be placed for disposal along with the main matter; but no decision on constitutionality was made in this order; Held that constitutionality remained pending and the committee was appointed to identify creamy layer independent of the Act (Paras Not mentioned).
Issue of Consideration
Whether State of Kerala complied with the Supreme Court's direction in Indra Sawhney v. Union of India to identify and exclude the creamy layer among Other Backward Classes, and what remedial action should be taken for non-compliance.
Final Decision
The Supreme Court appointed a High Level Committee with a retired High Court judge as Chairman and up to four members from various walks of life to identify the creamy layer among designated Other Backward Classes in Kerala in light of the Mandal case ruling, and to submit a report within three months. The State of Kerala was directed to extend all cooperation including expenses. The Chief Justice of the Kerala High Court was requested to fix the terms of the Commission including honorarium, and the State of Kerala was to meet financial obligations. A copy of the Government of India Office Memorandum dated 8.9.1993 was to be sent to the Committee for guidance. The matter was to be listed after the report was filed.
Law Points
- Identification of creamy layer among Other Backward Classes is mandatory
- State Governments must implement Supreme Court directions within specified time
- non-compliance can lead to contempt
- Supreme Court may appoint an independent committee to carry out identification
- existence of State Commission or State Act does not excuse non-compliance
