Who belongs to the "creamy layer"? Affirmative action in Canada and India
by
Vanita Goela
A thesis submitted in conformity with the requirements
for the degree of Master of Laws
Graduate Department of the Faculty of Law
University of Toronto
©Copyright by Vanita Goeia 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition
395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada
Your file Votre reference ISBN: 978-0-494-45066-6 Our file Notre reference ISBN: 978-0-494-45066-6
NOTICE: AVIS: The author has granted a non L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats.
The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission.
In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these.
While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada Who belongs to the "creamy layer"? Affirmative action in Canada and India
Vanita GOELA
Master of Laws, 2008
Faculty of Law, University of Toronto
Abstract
Canada and India are both pluralistic democracies with diverse populations. Both countries have drafted constitutional provisions which enshrine equality rights and permit affirmative action.
In India, various disadvantaged groups receive special protection from the Constitution of India, such as the Other Backward Classes (OBC). The Supreme Court of India has held that
States and the Central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need. Otherwise, the OBC category is overinclusive. The creamy layer includes those who are socially and economically advanced and who no longer require the benefits of the reservation system.
Race based affirmative action may be overinclusive in Canada. For this reason, I argue that the Supreme Court of Canada should explore the concept of creamy layer in any of its future decisions on s. 15(2) of the Canadian Charter of Rights and Freedoms. Who belongs to the "creamy layer"? Affirmative action in Canada and India
Introduction. 2
PART I - The context in India 4
The semantics of affirmative action 4
India and affirmative action 5
Who are the OBC? 7
The Mandal Commission and report. 10
Constitutional provisions 11
Supreme Court of India creamy layer jurisprudence 12
Commentary 38
PART II - The problem of classifying peoples 42
Over and underinclusiveness 42
Caste and race. 54
PART III - Context in Canada 56
Canada and affirmative action 56
Canadian s. 15(2) jurisprudence 60
Commentary 77
A Canadian creamy layer? 81
Conclusions. 91
iii 1
Who belongs to the "creamy layer"? Affirmative action in Canada and India
Introduction
Canada and India are both pluralistic democracies with diverse populations.
Accompanying diversity is the existence of minority or equity groups which have been historically disadvantaged or have faced discrimination. Both common law countries strive towards the elimination of inequality. To move forward on the path to equality, Canada and
India drafted constitutional provisions which enshrine equality rights. In support of these constitutional rights, their governments have also enacted legislation and implemented policies in order to achieve these goals.
In Canada, minorities include groups based on ethnicity and race, national or ethnic origin, colour, religion, language, disability or sexual orientation. Aboriginal people and linguistic minorities occupy a special place as minority groups in Canada, which is acknowledged in the Canadian Charter of Rights and Freedoms [Canadian Charter] and the
Constitution Act, 1982.
In India, minority groups are defined based on religion, race, sex and place of birth. But they are also described by their caste or tribe. Disadvantaged caste groups and people from tribal areas receive special protection in the Indian Constitution. These people are described as belonging to the Scheduled Castes (SC) and Scheduled Tribes (ST). An additional group of
1 The enumerated grounds from s. 15(1) of the Canadian Charter of Rights and Freedoms. 2 Sections 16-23 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Constitution Act, 1982, s. 35. 3 Constitution of India, 1950, came into force January 26, 1950 and adopted by the Constituent Assembly on November 26, 1949, art. 15 [Indian Contsitution]. 4 See articles 341 and 342 which relate to the Scheduled Castes and Tribes. These special provisions have allowed for action against discrimination towards these groups and compensatory discrimination in their favour: Vani K. Borooah, Amaresh Dubey and Sriya Iyer, "The effectiveness of Jobs Reservation: Caste, religion and economic status in India", Development and Change 38(3): 423-445 (2007) at 423-424.
GVanita Goela (2008) 2 people considered to be historically disadvantaged in India include the Other Backward Classes
(OBC).5
In Canada, although there are laws and policies implementing affirmative action, they do not involve quotas or reservations which have numerical or proportional representation targets of equity groups. Rather, they follow guidelines which encourage diversity in hiring or in admissions processes in higher education.
On the other hand, in India, there are reservations for members of disadvantaged groups in the areas of public sector employment, admission to higher education, as well as the legislatures.
Affirmative action in any country is controversial. However, the Indian courts have tried to address the deeper complex question of determining who is truly disadvantaged, even within the groups traditionally labelled as disadvantaged. The Supreme Court of India has held that
States and the central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need.7 The creamy layer includes those who are socially and economically advanced and who no longer require the benefits of the reservation system.8
The focus of the paper will be on judicial pronouncements of the constitutionality of the reservation and quota system in India by the Supreme Court of India, in comparison to the
Supreme Court of Canada's interpretation of the affirmative action provision in the Canadian
Charter, with particular attention given to the creamy layer concept.
51 use the term "backward" as it is used in the Indian context. For the purposes of this paper, the relevant articles which refer to the backward classes are 15, 16 and 340. 6 India has also been considering a women's reservation in Parliament: Bhaskar Roy, "Finally, women to get 33% quota", The Times of India, 29 January 2008. 7 Indra Sawhney vs. Union of India and others, [1992] Supp 2 SCR 454 [Indra Sawhney 1992]; Ashoka Kumar Thakur vs. State of Bihar and others, [1995] Supp 3 SCR 269; see discussion of Thakur 2008 below. 8 See discussion of Indra Sawhney 1992 below.
©Vanita Goela (2008) 3
I will look at two Supreme Court of Canada decisions on affirmative action and s. 15(2)
of the Canadian Charier and notable Supreme Court of India cases to compare the courts' judicial analysis. I will pay particular attention to a recent decision from the Supreme Court of
India regarding OBCs and the creamy layer. It appears from the Indian jurisprudence that
reservations or affirmative action measures may be overinclusive when relating to identity.
Although Canada does not rely on a quota system in its affirmative action laws, policies or
programs, it appears that race based affirmative action may be overinclusive in Canada as well.
For this reason, I argue that the Supreme Court of Canada should explore the concept of creamy
layer in any of its future decisions on s. 15(2).
Part I The context in India
The semantics of affirmative action
Affirmative action, preferential policies, and "positive discrimination" have been
described and justified in many ways. The purpose of this paper is to investigate how India has
targeted the disadvantaged and not how to promote diversity in Canada. Nevertheless, it is
edifying to review the various notions embedded in the term "affirmative action" and its related
expressions.
Affirmative action is a public policy which helps a state attain social justice either
through quotas of prioritizing benefits to minorities or discriminated groups. In the university
context, it is a mode through which the profile of a profession and university can change.
Affirmative action aims to increase opportunities for under-represented groups.11 It was
developed as the deliberate use of race or gender-conscious criteria for the purpose of benefiting
9 Maria Clara Dias, "Affirmative Action and Social Justice", 36 Conn. L. Rev. 871, 2003-2004 at 871 [Dias]. 10 Dias at 876. 11 Laura Dudley Jenkins, Identity and Identification in India, Defining the disadvantaged, (London and New York: RoutledgeCurzon, 2003) at 1 [Jenkins 2003].
QVanita Goela (2008) 4 a group which has previously been disadvantaged on race or gender grounds.12 Affirmative action is undertaken by governments to improve the educational, vocational, and economic opportunities of disadvantaged groups.13 It is a redistribution of goods such as, seats for higher education, political representation, or employment.14 It can nullify discrimination. 5
Preferential policies are designed to uplift certain groups. 6 They are needed as an assurance of personal fairness and a guarantee against a persistence of discrimination in subtle and indirect forms.17 They have beneficial results in terms of integration and the use of neglected talent, and it is historical restitution or reparation to offset cumulative deprivation suffered by depressed people in the past.18 Whatever the definition, the common theme which resonates is the need for corrective action for past and/or present arbitrary conduct which results in discrimination. What differs between Canada and India is the underlying motivations for implementing affirmative action based on their respective histories.
India and affirmative action
India has had a long history of affirmative action initiatives and has the "longest standing quota system in the world".19 As the most diverse democracy in the world, India has had a reservation policy enshrined in the Indian Constitution since its inception in 1950 and has
12 The Honourable Mr. Justice Michel Bastarache, "Does Affirmative Action have a future as an instrument of social justice?"( 1997-1998) 29 Ottawa L. Rev. 497-505, para. 3. 13 Arvind Sharma, Reservation and affirmative action, Models of Social integration in India and the United States, (Sage Publications: Thousand Oaks, 2005), Glossary [Sharma]. 14 Steven N. Durlauf, "Affirmative action, meritocracy, and efficiency", Politics, philosophy & economics, Vol. 7, No. 2, May 2008, Sage Publications, 131-158, at 132; Dias at 871, 875. 15 Kasper Lippert-Rasmussen, "Discrimination and the aim of proportional representation," Politics, philosophy & economics, Vol. 7, No. 2, May 2008, 159-182, at 160. 16 Laura Dudley Jenkins, "Becoming Backward: Preferential Policies and Religious Minorities in India", Commonwealth and Comparative Politics, Vol. 39, No. 1 (July 2001), pp. 32-50, at 32 [Jenkins 2001]. 17 Anirudh Prasad, Reservational justice to Other Backward Classes (OBCs), (New Delhi: Deep & Deep Publications, 1997) at 143 [Prasad]. 18 Prasad at 143. 19 Surinder S. Jodhka, Katherine Newman, "In the Name of Globalisation - Meritocracy, Productivity and the Hidden Language of Caste", Economic and Political Weekly, October 13, 2007, 4125-4132, p. 4125; Anonymous, "India's Creamy Layer", The Wilson Quarterly, Washington, Autumn 2007, Vol. 31, Iss. 4, p. 86; Marc Galanter, Competing Equalities, Law and the backward classes in India, (Delhi: Oxford University Press, 1984) at 1 [Galanter]; Frederic Bobin, "Inde: bilan mitige de 90 ans de discrimination positive", Le Monde, 25.01.08.
©Vanita Goela (2008) 5 existed even prior to independence in 1947.20 Reservations are confined to the public sector.
Various States in India implemented reservation schemes for public employment since approximately 1902.22 This was in response to the fact that only the upper castes had access to public employment, a field which was a matter of high status and social recognition.
The caste system has been engrained in Hinduism for over three thousand years and has created social hierarchies based on birth; one is born into a caste along with its accompanying rituals, social networks, occupation and relationships with other castes.24 There is also an
9S element of cleanliness and purity attached to the various lower castes. Certain lower castes are not to approach upper castes or are not to be seen at certain times of the day.
There are four classes or varnas in the caste system. The Brahmins make up the priestly and scholarly class, the Kshatriyas are the rulers and soldiers, the Vaishyas are 9R merchants and agriculturalists, and the Shudras are the menial and servant class. The untouchables are those who are outside of the caste system and associated with unclean and degrading occupations.29 20 Galanter at 26-40; Jenkins 2003 at 2; Sharma, at ch. 6. 21 Pradipta Chaudhury, "The 'creamy layer', Political economy of reservations," in Sukhadeo Thorat, Aryama and Prashant Negi, Reservation and Private Sector, Quest for Equal Opportunity and Growth, (New Delhi: Indian Institute of Dalit Studies, Rawat Publications, 2005) at 300 [Chaudhury]. 22 The Maharaja of Kholapur Maharashtra introduced the first Government Order recognizing reservations for backward classes in the State administration: V. Chandra Sekhar, "Other Backward Classes in India, Recognition & Reservation", (New Delhi: Raj Publications, 2006) [Sekhar]; Galanter at 26-40; The Princely State of Mysore declared all non-Brahmins to be backward classes and reserved places in colleges, state services and implemented the first modern regime of quotas. 23 Sharma at 156. 24 Galanter at 7-8; Thomas Boston and Usha Nair-Reichert, "Affirmative Action: Perspectives from the United States, India and Brazil," Western Journal of Black Studies, Spring 2003, 27, 1, at 3, 8 [Boston and Nair-Reichert]; Sukhadeo Thorat, Katherine S. Newman, "Caste and Economic Discrimination: Causes, Consequences and Remedies", Economic and Political Weekly, October 13, 2007, 4121-4124 at 4122. 25 Laura Dudley Jenkins, "Race, caste and justice : social science categories and antidiscrimination policies in India and the United States," 36 Conn. L. Rev. 747 (2003-2004) at 753 [Jenkins 2004]; Galanter, at 14-16 ; Dipankar Gupta, "Caste and Politics : Identity Over System," Annu. Rev. Athropol. 2005, 21:409-27 at 410 [Gupta 2005]. 26 Galanter at 26-40. 27 Galanter at 10; Gupta explains that varna refers to the four orders in society. Each order also had a colour pennant of its own, representing different phases of the sun's journey around the earth: Dipankar Gupta, "The politics of 'caste is race': the impact of urbanization", Rik Pinxten & Ellen Precker, ed. Racism in Metropolitan Areas, (New York, Oxford: Berghahn Books, 2006) at 57 [Gupta 2006]. 28 Galanter at 10. 29 Galanter at 14-16.
©Vanita Goela (2008) 6
But the caste system is not restricted to Hindus and has become a cultural, rather than
religious institution. Converts from Hinduism carry their former occupational status with
them to the new religion and cannot shed their past. Even non-converts have a system of
casteism related to social divisions within the religion.32 In response to the deep social divisions
created by caste, which have led to ghettoization, poverty and stigma, the framers of the Indian
Constitution and government authorities realized the reservation system in order to found a new
balance in Indian society based on substantive equality.33
Who are the OBC?
The OBC are persons who belong to groups which are not SC or ST and who are
contained in the OBC list by the Indian government.34 The term is used interchangeably with
the phrase "socially and educationally backward classes" (SEBC) and is found in Indian jurisprudence as well as the Indian Constitution. The OBC are communities thought to be
socially and educationally backward and can belong to any religion or caste. The OBC lists are
prepared for the purpose of making provision for the reservation of appointments or posts in
favour of backward classes of citizens which, in the opinion of that Government, are not
adequately represented in the services under the Government of India and any local or other
authority within the territory of India or under the control of the Government of India.
The concept of a creamy layer, individuals who are the socially, educationally and
sometimes economically advanced members of the OBC, evolved as a judicial response to
30 Jenkins explains that although caste contradicts some tenets of Islam, caste-like stratification persists in India based on distinctions surrounding conversion, immigration and hierarchies founded on occupation. Likewise, castes inequality exists within the Christian communities where converted Dalits (untouchables) continue to face social and economic disadvantages associated with their caste: Jenkins 2001; Galanter at 7. 31 Galanter and Jenkins 2001. 32 Galanter and Jenkins 2001. 33 The object of reservations is not merely representation of the disadvantaged in the public service but to elevate the social and educational status of these groups: Georgette David, "La reservation des employs aux defavorises dans l'lnde" Revue Juridique et Politique, Independence et Cooperation, R350 43: 859-873 '89; Galanter at 1; Thakur 2008 andlndra Sawhney 1992. ^National Commission for Backward Classes Act, 1993 (Act No. 27 of 1993), s. 2(a) [NCBC Act]. 35 NCBC Act, 2(c).
GVanita Goela (2008) 7 complaints that some people in the OBC category who were targeted by reservations did not in fact need them. It should be emphasized that the creamy layer concept applies only to the
OBC category and not to the SC or ST. According to remarks by the Supreme Court of India, because the creamy layer concept is not a general principle of equality, is not applied to the SC and ST. The roots of the current controversy surrounding reservations for OBCs are found in the Mandal Report and the resulting influential Supreme Court of India decision in Indra
Sawhney 1992, which will be discussed below.38
The National Commission for Backward Classes (NCBC) was created pursuant to the
NCBC Act as a permanent body in 1993, in response to the Supreme Court of India's directions in the Indra Sawhney 1992 decision.39 Its functions include examining "requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of overinclusion or underinclusion of any backward class in such lists and tender such advice to the Central
Government as it deems appropriate".40
Who gets on the OBC list is controversial and involves examining several factors. The criteria for being considered part of the OBC is complex and extensive. The NCBC website posts a questionnaire which one can fill out in order to be considered for inclusion in the OBC category.42 The detailed questions include: description of State; general data on the caste or community; data relating to social, educational, economical factors and the community's representation in the central government's services. Currently, there are as few as one
See discussion of Supreme Court of India caselaw below; Ashwini Deshpande, Kathreine Newman, "Where the Path Leads - The Role of Caste in Post-University Employment Expectations", Economic and Political Weekly, October 13, 2007, 4133-4140 at 4140; Chaudhury at 305, asserts that reservations serve essentially as tools for the absorption of the privileges sections of the lower castes in the ruling classes. 37 Thakur 2008, paras. 161, 165; Indra Sawhney 1992, para 86. 38 Indra Sawhney 1992. 39 http://www.ncbc.nic.in/html/aboutus.html. w NCBC Act, s. 9. 41 In 1993, the OBC list contained 1257 castes. In 2006 the list grew to 2297: Manoj Mitta, "OBC list shot up by 90% since Mandal I", The Times of India, 25 May 2006. 42 http://www.ncbc.nic.in/html/questionnaire.html. eVanita Goela (2008) 8 community listed in Andaman and Nicobar, and as many as 216 in the State of Maharashtra.
These lists include groups which are also not of the traditional Hindu castes, such as Muslim communities and certain groups of Christian converts.44
Within the OBC communities, there exists a creamy layer and the current creamy layer criteria are posted on the NCBC website. 5 These people are excluded from reservations. The creamy layer includes an extensive list of criteria:
• children of: the President of India, Vice-President of India, judges of the Supreme Court and High Courts, persons holding constitutional positions; • children of: parents who are Class I and II officers, parents who work for the government or an international agency, parents who work in universities or banks; • children of: parents who are in the rank of Colonel and above in the army, navy and air forces; • persons who are engaged in a profession such as a doctor, lawyer, chartered accountant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artist or professional, author, playwright, sports person, or media professional; • persons engaged in trade or business, but it the husband is a professional and the wife is in Class II or a lower grade of employment, the income/wealth test will only apply to the husband's income; the inverse will apply if the wife is a professional; or
• children of property owners, people who are married to a person engaged in trade, business and industry who earns a specified amount of income, and children of persons having a gross annual income above Rs. 2.5 lakhs or who have other sources of income which are above this amount.
Although all of these criteria contain economic and occupational components, they are
all directly or indirectly related to economic and social advancement.
The creamy layer criteria are a reminder that an individual's level of backwardness is not
static, but rather dynamic and constantly evolving. Thus, it is necessary to continuously
distinguish the truly disadvantaged from the creamy layer.
43 http://www.ncbc.nic.in/backward-classes/index.html. 44 See: Bihar http://www.ncbc.nic.in/backward-classes/index.html. 45 http://www.ncbc.nic.in/html/creamylayer.html. 46 One lakh = 100,000; http://www.ncbc.nic.in/html/creamylayer.html.
©Vanita Goela (2008) The Mandal Commission and report
On December 20, 1978, the Prime Minister of India announced the decision to appoint a
Backward Classes Commission, pursuant to art. 340 of the Indian Constitution.^ The terms of reference of the Commission were:
(i) to determine the criteria for defining the socially and educationally backward classes; (ii) to recommend steps to be taken for the advancement for the socially and educationally backward citizens so identified; (iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and (iv) present to the President a report setting out the facts as [sic] sound by them and
making such recommendations as they think proper.49
On December 31, 1980, the Chairman of the Commission, B.P. Mandal, presented the
Mandal Report to the Government of India.50 The report was based on data collected through detailed questionnaires issued to State governments and the Union territories, the Central government and the general public. Members of Parliament, public men and experts appeared before the Commission to provide evidence.53 The Commission also toured the country.54
The Commission concluded that based on the available census data, the population of
OBCs was estimated at 52% of the total population of India.55 This is in addition to the SC/ST population which amounts to 22.5%.56 The Commission noted that the reservation for SC/ST is
47 Reservations for Backward Classes, Mandal Commission Report of the Blackward Classes Commission, 1980, (Delhi: Akalank Publications, 1991) [Mandal Report]. 48 Mandal Report, letter from Mandal to President of India and Composition and Terms of Reference of the Commission, pgs. I-V. 49 Mandal Report, p. IV. 50 Mandal Report, letter from Mandal to President of India, pgs. I-III. 51 Mandal Report, Vol. II 52 Although the title of the list is "public men," there are women's names which are also listed, albeit very few. 53 Mandal Report, Vol. I, Main Report and Recommendation. 54 Mandal Report, Vol. I, Main Report and Recommendation. 55 Mandal Report, Vol. I, Main Report and Recommendation at 69. 56 Mandal Report, Vol. I, Main Report and Recommendation at 69.
OVanita Goela (2008) 10
in proportion to their population, however, based on a legal obligation to keep reservations under arts. 15(4) and 16(4) below 50%, they recommended that the OBC reservation be 27%.
It was only on August 13, 1990, that the Indian government adopted and implemented the recommendations of the Mandal Report under Prime Minister V.P. Singh.58 It issued an
Office Memorandum outlining its reservation policy for OBCs.5 Affirmative action for the
OBCs was controversial and the Memorandum eventually became the subject of litigation in the
Indra Sawhney case.
Constitutional provisions
Articles 14 through 16 of the Indian Constitution are the principal provisions of equality
and have largely been in force since 1950.61 The general provision of equality before the law
for any person is found in article 14: "The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India".
The broad equality provision in the Indian Constitution is found in article 15:
1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 3) Nothing in this article shall prevent the State from making any special provision for women and children. 4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Schedules Tribes.
57 Mandal Report, Vol. I, Main Report and Recommendation at 69. 58Sharmaatl50. 59 Indra Sawhney 1992. 60 Sharma at 154-155. 61 Art. 15(4) was added by the Constitution (First Amendment) Act, 1951, s. 2; certain words in art. 16(3) were substituted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Schedule: P.M. Bakshi, The Constitution of India (Delhi: Universal Law Publishing, 2005); http://indiacode.nic.in/coiweb/coifiles/amendment.htm.
©Vanita Goela (2008) 11
Article 29(2) states that no citizen should be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
The Constitution (Ninety-third amendment) Act, 2005, provided for an amendment which added subsection 5 to article 15. Article 15(5) prescribes that:
"Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."
This subsection was the subject of recent controversy in the Thakur 2008 case which will be discussed further below.
Article 16 relates to employment in the public sector:
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Supreme Court of India creamy layer jurisprudence
Below are selected cases where the Supreme Court of India questioned whether the category of OBCs was overinclusive. These cases show an evolution and judicial acceptance of the creamy layer concept and its place alongside the main principles of an equality analysis.
62 No. 23 of 2005, January, 20, 2006. 63 Ashoka Kumar Thakur vs. Union of India and Others Writ Petition (civil) No. 265 of 2006 with others, (accessed from Supreme Court of India website on April 10, 2008, http://judis.nic.in/supremecourt/chejudis.asp) 2008 6SCCI, [Thakur 2008]. 64 Only relevant subsections have been reproduced.
©Vanita Goela (2008) 12
Reference to these cases is made within the context of affirmative action programs which target the disadvantaged and not the ideal of diversity or proportional representation.
M.R. Balaji and Ors. vs. State of Mysore (1962)
In Balaji, at issue was whether the State of Mysore's order passed on July 31, 1962, violated art. 15(4) of the Indian Constitution?5 The order fixed a 50% quota for the reservation of seats in professional and technical higher educational institutions for the OBCs. The OBCs were divided into two classes; the backward (28%) and then more backward classes (22%).
The SC and ST were the subject of 15% and 3% reservations. The total percentage of reserved seats was thus 68.
The Court stated that the objective of art. 15(4) is to achieve social and economic justice.68 It is an enabling provision which is discretionary and does not impose and obligation on the State.69 The scope and extent of the expression "backward classes" in art. 15(4) includes
70 both social and educational backwardness. Social backwardness relates to a class of citizens
71 and not a caste of citizens. However, it may not be irrelevant to consider caste since over history, caste has created a feeling of inferiority and superiority. Furthermore, restricting the definition of backwardness to a caste would exclude Muslims, Christians or Jains who may be socially backward.73 Since, the State relied on a report of the Nagan Gowda Committee which relied on caste as almost the sole basis for determining social backwardness, the Court found that this test was impermissible and contrary to art. 15(4).74
55 M.R. Balaji and Ors. vs. State of Mysore, MANU/SC/0080/1962, para. 1 [Balaji]. 66 Balaji, para. 8. 67 Balaji, para. 8. Balaji, para. 38. Balaji, para. 39. Balaji, para. 23. Balaji, para. 24. 72 Balaji, para. 24. Balaji, para. 25. 74 Balaji, para. 37.
©Vanita Goela (2008) 13
With respect to educational backwardness, the Nagan Gowda Report considered the question based on whether the average student population in the last three years of high school compared to the State average. The State treated those communities as educationally backward if they were at the State or just below the State level.76 The Court held that only classes of citizens whose average is well or substantially below the State average should qualify as educationally backward, but stated that it is for the State to decide in a manner consistent with the requirements of art. 15(4).77
With respect to dividing the OBCs between the backward and more backward, the Court found that this sub-classification was not within the scope of art. 15(4) as this would create benefits for all classes of citizens who are less advanced (90% of the State), compared to the most advanced in the State.78 The Court explained that,
"the result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15(4)."79
The scope of art. 15(4) authorizes the State to make special provision for the advancement of backward classes, however the provision is not exclusive in that the State can ignore the advancement or the fundamental rights of the rest of society.80 It is that the interests of society at large would be served by promoting the advancement of weaker sections of society which permits special provisions art. 15(4).81
The Court stated that art. 15(4) involves a balancing of national and societal interests.
The special provision must be within reasonable limits.82 Reservations in higher educational
Balaji, para. 28. Balaji, para. 30. 7 Balaji, para. 30. 8 Balaji, para. 31. Balaji, para. 31. 0 Balaji, para. 33. Balaji, para. 33. 2 Balaji, para. 36.
©Vanita Goela (2008) 14 institutions should be made but not at the exclusion of deserving and qualified candidates. As a result, the Court arrived at a number of 50% as the general upper limit for a special provision and found that the 68% reservation was inconsistent with art. 15(4).84 The Court did not elaborate on how it arrived at this figure or why, but it directed that when the State makes a special provision it should approach the task in an objective and rational manner.85
This bench concluded that sub-classifications within the OBC category were impermissible. The division between the most advanced and everyone else would not allow for reservations which would target the actual weak groups in society because the majority of the population (90%) which is not the "most advanced" would be included in reservations. Thus, there is an implication that the 90% which would not be the most advanced persons, would nevertheless include people who are somewhat advanced, alongside the truly backward.
Although the court did not engage directly in a discussion regarding a creamy layer distinction, it hints at the idea that a category of backward and more backward would actually be overinclusive and include groups who are advanced, so long as they were not the most advanced. If this subdivision were permitted, reservations in such a category would be rewarded at the expense of the truly backward. Thus, in order to preserve the provision of art.
15(4) for only the weaker sections of society, the Court did not permit a division of the OBCs.
Shri Janki Prasad Parimoo vs. State ofJammu and Kashmir (1973)
Palekar, J. issued reasons as to the validity of reservations in public employment in the
State of Jammu and Kashmir. With respect to the definition of backwardness in both arts. 15 and 16, Palekar, J. stressed that a class of citizens is only classified as backward if it is both socially and educationally backward.87 Reservations cannot be based on poverty, since the
83 Balaji, para. 36. 84 Balaji, para. 36. Balaji, para. 36. 86MANU/SC/0393/1973 [Parimoo]. 87 Parimoo, para. 24.
GVanita Goela (2008) 15 majority of India's population is poor.88 The Court emphasized that in order for a class to be identified as backward, it must not include the socially and educationally advanced, otherwise the object of reservations would be frustrated.89 State resources are not unlimited and thus
special reservations must be balanced against the right of every citizen to demand equal
90 opportunity. "In this country except for a small percentage of the population are generally poor - some being more poor, other less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they are bound to be poor. His chief concern is, therefore, to determine whether the class or group is socially and educationally backward. Though the two words 'socially' and 'educationally' are used cumulatively for the purpose of describing the backward class one may find that if a class as a whole is educationally advanced [sic]; it is generally also socially advanced because of the reformative effect of education on that class. The words 'advanced' and 'backward' are only relative terms - there being several layers or strata of classes, hovering between 'advanced' and 'backward', and the difficult task is which can be recognized out of these several layers as being socially and educationally backward."91
This bench endorsed the creamy layer idea without using the specific phrase "creamy
layer". The expressions the Court referred to were "socially and educationally advanced" and
"layer" or "strata" of classes. Although, there was no specific direction from the Court as to
how to identify the advanced members of the backward classes, they supported the concept of
separating the advantaged from the truly disadvantaged within a class. This Court again
recognized the high percentage of people who are underprivileged in India and as such, why
reservations must be preserved for only the truly disadvantaged.
K.C. Vasanth Kumar andAnr. vs. State of Karnataka (1985)
Vasanth Kumar was a reference opinion rendered by the Supreme Court of India and not
a judgment on specific facts. Five judges delivered four opinions. The Supreme Court of
Parimoo, para. 24. 89 Parimoo, para. 27. 90 Parimoo, para. 27. Parimoo, para. 24. 92 MANU/SC/0033/1985 [Vasanth Kumar]. 93 Chief Justice Chandrachud, Justices Sen, Desai, Venkataramiah, and Reddy.
GVanita Goela (2008) India provided guidelines to the State government of Karnataka on the question of reservations for the SC, ST and OBC in employment and education and articles 15 and 16.
Justice Desai directed that the OBC should be comparable to the SC/ST in their backwardness and that they should satisfy the means test/test of economic backwardness the
State may use in the context of prevailing economic conditions.94 Justice Desai emphasized that reservations which are snatched away by the top creamy layer of the backward castes is to be avoided at any cost. It is noted that he used the phrase "backward caste" as opposed to
"backward class," however, from the reasons it is apparent that Justice Desai did not restrict his views to persons only belonging to castes:
"Reservation in one or other form has been there for decades. If a survey is made with reference to families in various castes considered to be socially and educationally backward, about the benefits of preferred treatment, it would unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes. This has to be avoided at any cost."95
Justice Reddy lamented that "the paradox of the system of reservations [that it] has
engendered a spirit of self denigration among the people. Nowhere else in the world do castes,
classes or communities queue up for the sake of gaining the backward status." He too
recommended a type of means test to identify the socially and educationally backward since
poverty is linked to social and educational backwardness. But he specified that class poverty
and not individual poverty would be the primary test, in addition to assessing standard of living,
one's place on the social hierarchy, and customs, as this would define the truly backward: "Poverty, of course, is basic, being the root cause as well as the rueful result of social and educational backwardness. But mere poverty it seems is not enough to invite the Constitutional branding, because of the vast majority of the people of our country are poverty-struck but some among them are socially and educationally forward and others backward. In a country like India where 80% of the people live below the bread-line, even the majority of the so called socially forward classes may be poor. For example no
Vasanth Kumar, para. 2. Vasanth Kumar, para. 28. Vasanth Kumar, para. 32. Vasanth Kumar, para. 79. Vasanth Kumar, para. 79. Vasanth Kumar, para. 80.
©Vanita Goela (2008) 17
one will think of describing Brahmins anywhere in the land as socially and educationally backward however, poor they might be. The idea that poor Brahmins may also be eligible for the benefits of Articles 15(4) and 16(4) is too grotesque even to be considered."99
Justice Reddy clarified that the test to determine backward classes should not be interpreted as meaning nearness to the conditions of the SC or ST, as this would nullify the provision for the SEBC other than the SC and ST.100 He further stated that it would be permissible to divide the backward classes into the backward and more backward, but only if these classes are far behind the most advanced classes.101 Justice Reddy allowed for subdivisions of the OBC on the condition that these classes are disadvantaged, thereby preventing the situation pointed out in Balaji above, where the Court did not permit the subdivision on the basis that advanced people would be included in the subdivisions.
Justice Sen advised that economic backwardness should be one of the tests used to determine social and educational backwardness, but that poverty should be the only factor for making special provisions under arts. 15(4) and 16(4), and caste can be considered when comparing a group to the SC/ST.102 However, he also noted that some services require expertise and skill, such as the medical field and aviation. According to Sen, J. these fields do not warrant reservations and merit alone should be the consideration.
Justice Venkataramiah also suggested a means test to be employed to determine backwardness, in addition to comparing the conditions of the backward class to that of the
SC/ST, under art. 15(4). For art. 16(4), he advised that the government should also show that the backward class in question is not adequately represented in the government services. He
Vasanth Kumar, para. 79. 1 Vasanth Kumar, para. 50. Vasanth Kumar, para. 54. Vasanth Kumar, paras. 83-84. Vasanth Kumar, para. 88. Vasanth Kumar, para. 148.
QVanita Goela (2008) 18 further stated that the expression SEBC in art. 15(4) is equivalent to "backward classes of citizens" in art. 16(4).105
Thus, Justices Desai and Venkataramiah advised that a group belonging to the OBC should be comparable to the SC/ST in order to belong to the backward classes referred to in articles 15(4) and 16(4). But the full bench was unanimous in advising that a means test should be employed to identify the OBC. The Court did not provide any formula as to how to define the OBC, nor did the Court provide any guidance as to how to separate the creamy layer from the backward classes, except that it should be done. When the bench referred to an economic means test, they did not specify whether this should also be applied to individuals in the OBC who may be economically advanced in order to identify a creamy layer.
This Court appears to have added economic backwardness as one of the criteria for assessing social and educational backwardness. However, as will be seen in the following case of Indra Sawhney 1992, the court warns that economic status is a false indicator of social and educational backwardness and should not be exclusively relied upon. Justice Reddy seized upon this distinction in his comments above when he presented the example of a poor Brahmin who to reasonable persons would not be considered socially backward. However, he too, endorsed a poverty test if it applied to a class and not individuals. But, it is Justice Reddy in Indra Sawhney
1992 who reiterates the importance of social factors over economic to define whether a person is forward or backward.
Indra Sawhney v. Union of India (1992)
The 1992 Indra Sawhney decision is the authoritative decision on reservations for the
OBC, up until the recent decision in Thakur 2008. It has also been noted for the beginnings of
"creamy layerization".106 Indra Sawhney was decided by a 9 judge bench and dealt with the
105 Vasanth Kumar, para. 145. 106 Prasad at 127.
©Vanita Goela (2008) 19 issue of employment with the public service and art. 16. The Petitioners' arguments were based on an Office Memorandum issued by the central Government which was prepared subsequent to the findings in the Mandal Report. The Petitioners argued that the Memorandum was unconstitutional as the reservation for OBCs was not valid and contrary to the principles of equality.
The Office Memorandum, dated August 13, 1990, provided that based on the report and recommendations of the Mandal Report:
i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC. ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedures to be followed for enforcing reservation will be issued separately. iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%. iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments' lists, a list of such castes/communities is being issued separately. v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.107
Petitioners sought a stay of the operation of the Memorandum, which was granted by the
Supreme Court of India.
After the federal election in 1991, the government changed and issued a modified Office
Memorandum, dated September 25, 1991.109 The government amended the Memorandum "in order to enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation."
The Memorandum was modified as follows:
Indra Sawhney 1992, para. 22. Indra Sawhney 1992, para. 23. Indra Sawhney 1992, para. 24. Indra Sawhney 1992, para. 24.
GVanita Goela (2008) 20
i) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates. ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward section of the people who are not covered by any of the existing schemes of reservation. iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.111
At issue was whether these Memoranda were constitutionally valid.
Justice Reddy provided the majority reasons for judgment. The Justices reframed the questions posed by the parties into 11 issues, however, for the purposes of this paper, only the relevant substantive legal questions relating to the equality analysis and the creamy layer concept will be discussed.
Justice Reddy introduced his reasons by stating that the Indian Republic was founded with the objective of securing justice, liberty, equality and fraternity for its citizens. He noted that although poverty is present in all societies, none has had the misfortune of castes and its social division of Indian society superimposed on poverty.113 According to Reddy, J, the concept of equality before the law contemplates minimizing inequalities in income, status facilities and opportunities amongst individuals and groups while promoting the educational and economic interests of weaker sections of people and protecting them from social injustice and exploitation.114
Public employment, explained Reddy, J. always gave a certain status and power in
India.115 In particular, article 16(4) provides that the State may make provisions for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State. This is to say
1'' Indra Sawhney 1992, para. 24. 1 n Indra Sawhney 1992, para. 1. 113 Indra Sawhney 1992, para. 2. 1,4 Indra Sawhney 1992, para. 5. 115 Indra Sawhney 1992, para. 7.
©Vanita Goela (2008) 21 that the State, the executive, is responsible for fixing reservations.116 As a result, deference should be afforded by the courts to such decisions. Furthermore, the percentage or amount of reserved posts in public employment is also determined by the State, as it is in their opinion to determine which backward class of citizens in not adequately represented.
Justice Reddy remarked that art. 16(4) speaks to adequate representation and not proportional representation.119 The only provision for proportional representation is in articles
330 and 332 regarding reservations in the Lok Sabha (House of the People) and State legislatures and this only applies to SC and ST.120 A reasonable upper limit for reservations should be 50% unless there are extraordinary circumstances, however this limit does not apply to exemptions, concessions or relaxations provided to backward classes of citizens in art.
16(4).121 Therefore, Reddy, J. found that the 27% reservation for OBCs delineated in the Office
Memoranda was within reasonable limits. Together with the SC/ST, the total reservations were
49.5%. If a certain proportion of reserved employment positions were not filled one year, the
199 amount could be carried forward so long as the amount did not exceed 50%.
As to the relationship between art. 16(1) and (4), Reddy, J. explained that the first subsection is a facet of the doctrine of equality and the fourth is an emphatic pronouncement of the principle in the first.123 Subsection 1 states equality for all citizens in public employment, whereas subsection 4 specifies reservations for any backward class of citizens. The fourth subsection should be read in harmony with the first but it is not even necessary as the first could
116 lndra Sawhney 1992, para. 89. 117 lndra Sawhney 1992, para. 89. 118 lndra Sawhney 1992, para. 89. 119 lndra Sawhney 1992, Q. 6, para. 94A. 120 lndra Sawhney 1992, para. 94A; articles 330 and 332 of the Indian Constitution. 121 lndra Sawhney 1992, para. 95. 122 lndra Sawhney 1992, paras. 98-99. 123 lndra Sawhney 1992, para. 56.
©Vanita Goela (2008) 22 have evolved to provide reservations for backward classes. Article 16(1) permits reasonable classification, but subsection 4 places it beyond controversy. Justice Reddy added that in order to assure equality of opportunity, it may be necessary to treat unequally situated persons unequally.126
Justice Reddy stated that art. 16(4) is exhaustive of special provisions which can be made in favour of OBCs. 7 That is to say that reservations (being the highest form of a special provision), preferences, concessions and exemptions could be extended under this subsection.
The term 'backward class of citizens" is not defined anywhere in the Indian
Constitution, but the words caste and class were used since pre-independence India.
Backward classes were described in the Government of India Act, 1935, to include backward castes and tribes amongst Hindus, but also certain sections of Muslims. Preferential policies existed prior to independence in Mysore since 1921, regarding recruitment in government services, in Bombay since 1925, and in Travancore since 1935.
A related terminology question was whether the term "socially and educationally" backward from art. 15(4) should be read into art. 16(4), which simply states "backward class".
132 Reddy, J. also discussed the meaning of caste and class in order to determine how art. 16(4) should be read.133 After a review of various dictionaries and the Constituent Assembly speeches, Reddy, J. concluded that class and caste have been used interchangeably, but that the word "backward" specifically means those who were not adequately represented by reason of
124 lndra Sawhney 1992, para. 56. Similar to how Justice Reddy shows that art. 16(1) could include reservations for the backward classes without art. 16(4), Justice Iacobucci in Lovelace below states that s. 15(1) could include the provision of ameliorative programs without s. 15(2). 125 lndra Sawhney 1992, para. 56. 126 lndra Sawhney 1992, para. 56. 127 lndra Sawhney 1992, Q. 2b, para. 57. 128 lndra Sawhney 1992, para. 57. 129 lndra Sawhney 1992, para. 60. 130 lndra Sawhney 1992, paras. 74-75. 131 lndra Sawhney 1992, paras. 74-75. 132 lndra Sawhney 1992, para. 68. 133 lndra Sawhney 1992, para. 74-80.
©Vanita Goela (2008) 23 their social backwardness.134 The word "class" within the term "backward classes" is used so as not to limit the class to those belonging to a caste and to apply across the country, and further, that class denotes a social class, and not one in Marxist terms. This is notable since a caste system takes its form even in non-Hindu religions, which has been judicially recognized by the
Supreme Court of India.136
As to how the "backward class of citizens" should be identified, Justice Reddy noted that there is no methodology prescribed to identify a backward class of citizens, but that it is up to the appropriate authorities to identify them. 7 So long as the approach and procedure is fair and adequate, the Court cannot interfere.138 The State may start with caste to identify the backward classes, however the approach may differ from State to State as the conditions will vary. If caste satisfies the criteria of backwardness, then it can be classified as backward for the purposes of art. 16(4), but the class must also be inadequately represented in the State.140 This is
"in the opinion of the State" and the Court must show deference to this decision if it is based on some material.141
The Court also debated the linguistic distinctions between articles 15(4) and 16(4).
Under art. 15(4), the State may make special provisions for the advancement of any "socially and educationally backward classes of citizens", whereas under art. 16(4), the State makes provisions for the reservation of appointments or posts in favour of any "backward class of citizens". The two articles cannot be interpreted in the same manner, as one encompasses a
' The Constituent Assembly was a group of elected representatives (Indians) who drafted the Indian Constitution: see Shiva Rao, The Framing of India's Constitution, Vol. I-V (New Delhi: The Indian Institute of Public Administration, 1968). 135 Indra Sawhney 1992, paras. 81-82. 136 Indra Sawhney 1992, para. 80. 137 Indra Sawhney 1992, Q. 3b, paras. 83-84. 138 Indra Sawhney 1992, Q. 3b, paras. 83-84. Chaudhury notes that the 1888 Reports on the Condition of the Lower Classes of the Population in India showed that in eastern Uttar Pradesh, brahmins, bhuminars and rajputs (high castes) were worse off than day labourers, were in debt, and suffered from insufficient food and clothing in normal times. 140 Indra Sawhney 1992, Q. 3b, paras. 83-84. 141 Indra Sawhney 1992, para. 89.
GVanita Goela (2008) 24 broader class of peoples.142 This manner of interpretation differs from Justice Venkataramiah's comments in Vasanth Kumar, where he stated that arts. 15(4) and 16(4) are equivalent.
Justice Reddy explained that art. 16(4) does not employ the expression SEBC, and neither does art. 340, which provides for the appointment of a Commission to investigate the conditions of backward classes. Those who may not qualify under art. 15(4) may then qualify under art. 16(4) as it is a broader class.144 The context of art. 16(4) was to include the socially backward classes, as social backwardness leads also to educational backwardness. 5 The emphasis in art. 16(4) is social backwardness and this is further supported by the fact that in the
Mandal report, social backwardness received precedence in terms of points.146 For further clarity, although the SC and ST are not included in art. 16(4) there is no reason to qualify or restrict the meaning of the expression backward class of citizens by saying that OBCs are similarly situated to the SC/ST.147 This definition of backward class of citizens also departs from the Court's statements in Vasanth Kumar where all of the judges, except Justice Reddy, agreed that the OBC should be comparable to the SC/ST.
With respect to the "means" test and "creamy layer" problem, the Court provided guidelines for differentiating between the forward sections of a backward class. The means test signifies an income limit for the purpose of excluding persons from the backward classes.
Justice Reddy asserted that economic criteria should not be the basis of exclusion from a backward class, unless the advancement is so high that it includes social advancement. He provided the example of a member of the carpenter caste who works in the Middle East and
142 Jndra Sawhney 1992, para. 89. 143 Indra Sawhney 1992, para. 85. 144 Indra Sawhney 1992, para. 85. 145 Indra Sawhney 1992, para. 85. 146 Indra Sawhney 1992, para. 92A. ,47 Indra Sawhney 1992, Q. 3c, para. 88. 148 Indra Sawhney 1992, Q. 3d, para. 86. Indra Sawhney 1992, para. 86. 150 Indra Sawhney 1992, para. 86.
©Vanita Goela (2008) 25 makes a high income compared to Indian standards. He asked whether the carpenter's children should be excluded from the backward class or from the application of art. 16(4) in India.151
According to Reddy, J's criteria, the exclusion should only apply if the carpenter's income rendered him socially advanced.152 A backward class cannot be identified by economic criteria alone, but may be identified without reference to caste.153
Reddy, J. further remarked that income may not count for much in larger cities or in the case of a rurual scenario, the extent of an agriculturist's holdings may be difficult to measure.154
As a result, only the socially advanced should be excluded from the purpose of art. 16(4), in order to define a truly backward class.155 Reddy, J. also emphasized that this exclusion only applies to OBCs and not to STs and SCs.156
Justice Reddy directed that the Government of India specify the basis of exclusion of the
"creamy layer" within four months.157 The excluded persons would cease to be members of the
OBC. He further directed that the impugned Office Memorandums of 1990 and 1991 be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes.158
The Court further considered stated that there is no legal bar to a State recognizing the backward classes as backward and more backward.159 How to draw the line is for the
151 Indra Sawhney 1992, para. 86. 152 Indra Sawhney 1992, para. 86. 153 Indra Sawhney 1992, paras. 90-91; A further example of why economic criteria may be misleading is given in a recent study which observed that in Bihar, 7% of the SC experience a high standard of living, whereas twice this percentage of high caste families are among the impoverished: Lance Brennan, John McDonald and Ralph Shlomowitz, (2006) "Caste, inequality and the nation-state: The impact of reservation policies in India, c. 1950- 2000," South Asia: Journal of South Asian Studies, 29:1, 117-162 at 146. 154 Indra Sawhney 1992, para. 86. 155 Indra Sawhney 1992, para. 86. 156 Indra Sawhney 1992, para. 86; Thakur 2008, paras. 161, 165. 157 Indra Sawhney 1992, para. 117. 158 Indra Sawhney 1992, para. 86; Subsequent to this decision and based on the "Report of the Expert Committee for specifying the criteria for identification of socially advanced persons among the socially and educationally backward classes", the Government of India issued a modified Office Memorandum on September 8, 1993, which outlined the creamy layer criteria for civil posts and services under the Government of India: Sekhar, Appendix- 6&7 at 278-310. 159 Indra Sawhney 1992, Q. 5.
GVanita Goela (2008) 26
Commission (of backward classes) and the State to decide so long as it is reasonably done.160
There may be many classes that receive high points on the backward scale, but they may not be equally backward.161 Justice Reddy gave the example of goldsmiths being far less backward than vaddes (stone cutters), but that they may both be grouped together as a backward class.162
Therefore, the Supreme Court of India confirmed that it is not impermissible to categorize the more backward, so long as the group is truly backward.163 As mentioned earlier, this test was not permitted by the Court in Balaji, but was refined and clarified by Justice Reddy so that the
State could consider subdividing the OBCs.
On the concept of merit, Justice Reddy confirmed that a cost must be paid of the constitutional promise of social justice is to be redeemed.164 He stated that reservations are not anti-meritarian as there is merit at the appointment stage and the small difference allowed at the recruitment stage would disappear over the course of time.165 Nevertheless, Justice Reddy referred to the 1990 Office Memorandum to show which civil posts are to be reserved and observed that posts such as within defence forces are not to be included in reservations. He further advised that certain positions such as technical posts in research and development, specialities and super-specialties in medicine, engineering, physical sciences and mathematics, defence services, posts at higher echelons such as professors in education, pilots at Indian
Airlines and Air India, scientists and technicians in nuclear and space application, should not be reserved.166 Since these positions are of "highest level of intelligence" a reservation for these posts may not be consistent with efficiency of administration contemplated by art. 335.
160 lndra Sawhney 1992, para. 92A. 161 lndra Sawhney 1992, para. 86. 162 lndra Sawhney 1992, para. 86. 163 lndra Sawhney 1992, para. 86. 164 lndra Sawhney 1992, Q. 8, para. 111. 165 lndra Sawhney 1992, paras. 111-112. 166 lndra Sawhney 1992, para. 112.
©Vanita Goela (2008) 27
Regarding Clause (i) of the 1991 Office Memorandum where it referred to the "poorer sections of the SEBC", Justice Reddy reiterated that social backwardness is the main factor to consider, but that income and property may also be assessed.167 According to Reddy, J. "poorer sections" means those who are socially and economically backward, so the clause is not unconstitutional. It is for the Government to notify those classes which are more backward and at that point the clause will become operational.169
On the other hand, Justice Reddy found Clause (ii) of the 1991 Office Memorandum to be unconstitutional, as it reserved 10% of the posts in favour of "other economically backward sections of the people who are not covered by any of the existing schemes of the reservations". Since the clause related to the income of extent or property held by the individual, Justice Reddy concluded that it is not permissible to "debar" a citizen from being considered for appointment solely on economic criteria.
Reddy, J. admited that there may be certain errors of over or under-inclusion in the identification of OBCs, however, "in an exercise of such magnitude and complexity" such errors are not uncommon and there can never be a perfect report. For these reasons, the Court did not express an opinion on the correctness or adequacy of the Mandal Commission.171
The main principle regarding the creamy layer which emerges from Justice Reddy's reasons is that exclusion from a backward class must be based on social advancement and not merely economic criteria. Economic factors may only be considered if the advancement is so high that it renders that person socially advanced.
It seems clear at this point in the jurisprudence that reservations are generally accepted and necessary as part of Indian society. One may implement an affirmative action program
167 lndra Sawhney 1992, Q. 10, para. 114. 168 lndra Sawhney 1992, para. 114. 169 lndra Sawhney 1992, para. 114. 170 lndra Sawhney 1992, Q. 11. 171 lndra Sawhney 1992, para. lndra Sawhney 1992, para. 120.
GVanita Goela (2008) 28 targeting the OBC, so long as the creamy layer is excluded from it. At this point in the OBC litigation history, the focus appears to be on the "Who" question and identification of the beneficiary, instead of the reservation scheme specifically. From the language of the bench in this case, India's debate on the existence of affirmative action is not whether it should exist, but rather the narrower question of who should benefit from it.
Ashoka Kumar Thakur vs. State of Bihar (1995)172
In this case the Supreme Court of India found that the States of Bihar and Uttar Pradesh had enacted legislation which did not realistically exclude the creamy layer from government jobs; the criteria for income levels were too high and other conditions, such as the spouse being a graduate or holding property in an urban area had no nexus with the object of excluding the creamy layer and were arbitrary.173 As a result, the two member bench174 struck down the impugned provisions. Justice Singh stated that the means test is necessary to skim off the affluent section of the backward class.175 It is noted that in this case, the Court placed an emphasis solely on a means test and not social forwardness as an indicator of being part of the creamy layer, despite Justice Reddy's statement in Indra Sawhney 1992 that social forwardness will render a person as part of the creamy layer.
Indira Sawhney vs. Union of India (1996)
After repeated hearings regarding non-compliance with the Supreme Court of India's order in the Indra Sawhney 1992 matter, Kerala had not yet enacted legislation to determine and exclude the creamy layer from reservations based on the Supreme Court of India's guidelines.
The two member panel of the Supreme Court of India appointed a Chairman of a High Level
Committee to identify the creamy layer and directed that a report be completed within 3 months.
172 [1995] Supp 3 SCR 269 [Thakur 1995]. 173 Thakur 199, paras. 14-17. 174 Justices Kuldip Singh and Saghi Ahmad. 175 Thakur 1995, para. 3. 176 [1996] INSC 1388 (4 November 1996) [Sawhney 1996].
©Vanita Goela (2008) 29
Indira Sawhney vs. Union of India and Ors. (1999) 177
In response to the Indra Sawhney 1992 decision and the Supreme Court of India's directions to identify a creamy layer, the State eventually enacted legislation which stated that reservations remain in effect but that there is no identifiable creamy layer in Kerala. The
Supreme Court of India found that these provisions were unconstitutional and contrary to the
Supreme Court of India's decision in Indra Sawhney 1992. The three member Supreme Court of India panel found that the report from the High Level Committee did in fact identify a creamy layer and directed that the report would come into effect until Kerala came up with alternative provisions to exclude the creamy layer.178 Despite the State's claim that there was no creamy layer in Kerala, the Court found a creamy layer in the evidence. This demonstrates the Court's commitment to the creamy layer concept and also its obstinacy in finding a creamy layer.
Nair Service Society vs. State of Kerala (2007)179
In Nair, The State of Kerala relied on a report from the Narendran Commission and on the basis of its conclusions issued a public notification identifying the creamy layer. Justice
Sinha set aside the report and the notification for the reason that there was no justification for the high income limit and the inadequate scientific data gathered by the Commission.180 After a review of pertinent cases which approved of and demanded a creamy layer distinction, Justice
Sinha confirmed that the Supreme Court of India had "categorically laid down the law that [sic] determination of creamy layer is a part of the constitutional scheme".181
India's 93r Constitutional amendment and the Thakur litigation
1 [1999]Supp5SCR229[Saw/z«ey/999]. 8 Sawhney 1999, paras. 88-96. 9 MANU/SC/1126/2007 [Nair]. Nair, paras. 31-32. 1 Nair, para. 38.
OVanita Goela (2008) 30
In January 2007, the Indian government enacted The Central Educational Institutions
(Reservation in Admission) Act, 2006 [CEI Act], pursuant to the 93r constitutional amendment allowing for reservations in certain educational institutions of higher education.
The reservation quota for the SCs and STs is 15% and 7.5% respectively.183 The reservation quota for OBCs is 27%. This reservation of seats in admissions was to take effect in the academic year of 2007. Central Institutions are required to increase their seats over a maximum period of 1-3 years. 86
The political motives of the Government were questioned with the passage of the CEI
Act. A private advocate, Ashoka Kumar Thakur and others launched a constitutional attack on the C£/A*.188
In Ashoka Kumar Thakur vs. Union of India and Ors., [Thakur 2007]m the
Petitioners/appellants brought a motion for a stay in the Supreme Court of India against the
Union of India. The Petitioners sought interim protection pending final disposal of the writ petitions on the basis that the application of the CEI Act which applied to the 27% reservation quota for OBCs was unconstitutional. The Petitioners further argued that the CEI Act would result in dividing the country on caste basis and have a destructive impact on the peaceful atmosphere of educational and other institutions.190
The Petitioners pointed out the inadequacy of evidence provided by the Union in arriving at the figure of 27% for the reservation and 52% as the proportion of OBCs in India.
152 No. 5 of 2007 (January 3, 2007). 153 CEI Act, ss. 3(i, ii). 1M CEI Act, s. 3(iii). 185 CEI Act, s. 7. 186 CEI Act, s. 5. 187Sharmaat 155. 188 In India, the rules regarding standing are relaxed. Individual may thus bring Public Interest or Social Action Litigation on behalf of the general public: Upendra Baxi, "Taking suffering seriously: social action litigation in the Supreme Court of India," 1985 Third World Legal Stud. 107, 1985. 189 (2007) 4SCC361 (29.03.2007). 190 Thakur2007, para. 2.
©Vanita Goela (2008) 31
Furthermore, there is apparently no widely accepted basis for determining who belongs to the
OBC, which is determined by the Government of India.
Since 1931, the federal government had not conducted a census enumerating caste.
Furthermore, although s. 11 of the NCBC Act, mandates a periodic revision of lists of who belongs to OBCs this had not been done. Since this revision has not be conducted, the
Petitioners argued that the figures surrounding OBCs is unacceptable and s. 11 of the NCBC Act would be rendered nugatory. The Petitioners further argued that the CEI Act is invalid as it does not exclude the "creamy layer".
Justice Pasayat delivered the two member bench judgement. Pasayat, J. reiterated that there is a need for periodic identification of backward classes. The concept of creamy layer is not irrelevant. He also commented that,
"Nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then [sic] to claim we are more backward than you."
The Supreme Court of India granted the stay, but specified that the CEI Act would be stayed only in relation to the OBC category because of the question of the creamy layer rule and whether it would apply to article 15(5) of the Indian Constitution. He further noted that it would be permissible for the Union to initiate, or continue the process of determining OBCs pending the disposition of the case. The matter was listed to be heard August 2007. The matter was heard over several days and the bench reserved judgment on November 1, 2007. The decision was released on April 10, 2008.193
Ashoka Kumar Thakur vs. Union of India (2008)
The Supreme Court of India bench of five judges delivered four sets of reasons in this case.195 All five judges confirmed that the creamy layer should be excluded from reservations
191 Thakur2007, para. 3. 192 Thakur2007, para. 21. 193 Thakur 2008. 194 Thakur 2008.
GVanita Goela (2008) 32 and that caste can be used to identify the OBCs, but it cannot be the sole criterion. What is interesting to note about the number of judges on a bench of the Supreme Court of India in the
Indian context is that a larger bench's decision will bind a bench of fewer judges.196 In the case at hand, the bench in Thakur 2008 was bound by the nine member panel in Indra Sawhney}91
The main challenge which the Petitioners brought forward was the constitutionality of the Constitution Amendment Act and Act 5 of 2007 (CEI Act). The arguments focussed on whether these Acts violated articles 14-16 of the Indian Constitution. Of note is that no educational institution challenged the Acts. The Petitioners argued that the creamy layer should be excluded from reservations in higher education, whereas the Respondent argued that the creamy layer concept applies only to art. 16(4) of the Indian Constitution and not to arts. 15(4) or 15(5).
As in the Indra Sawhney case, the Supreme Court of India framed a list of several legal questions, however, only the legal issues which relate to an equality analysis and the creamy layer will be mentioned. For a brief glance at the other equality issues, Krishnaswamy and
Khosla have compiled the main conclusions in a chart.198 On the issue of whether art. 15(5) of the Indian Constitution violated the basic structure doctrine, all of the judges agreed that the provision was valid.199 As to whether the creamy layer should apply to the SC/ST categories, the Chief Justice indicated that it did not, Pasayat, J, Thakker, J, and Raveendran, J. were silent on the issue, and Justice Bhadnari expressly left the question open.200 All of the judges stated
Chief Justice Balakrishnan, Justices Pasayat, Thakker, Bhandari and Raveendran. 196 Sudhir Krishnaswamy and Madhav Khosla, "Reading AK Thakur vs Unions of India: Legal Effect and Significance," Economic & Political Weekly, July 19, 2008, 53.[Krishnaswamy and Khosla]; Thakur 2008, para. 150. 197 Krishnaswamy and Khosla at 54; Thakur 2008, para. 150. 198 Krishnaswamy and Khosla at 55. 199 Krishnaswamy and Khosla at 55. 200 Krishnaswamy and Khosla at 55.
GVanita Goela (2008) 33 that the CEI Act should be reviewed periodically, whereas Justice Bhandari was silent on the
201 issue.
Chief Justice Balakrishnan examined whether art. 15(4) and (5) are contradictory. He stated that both are enabling provisions and that they operate in different areas; one does not
909 exclude the other. Further, he noted that it is a well settled principle of constitutional interpretation that while interpreting provision of the Constitution, effect shall be given to all the provisions of the Constitution and no provision shall be interpreted in a manner which would make any other provision inoperative.203 CJ Balakrishnan added that if Parliament had intended to exclude art. 15(4) it could have deleted it.204 Therefore, there was no contradiction between the provisions.
The Petitioners claimed that the CEI Act was invalid in view of the definition of backward class and the identification of the class based on caste. Balakrishnan, CJ found no constitutional violation since caste can be used as a starting point for identifying a backward class. However, he noted that within a caste group there is also inequality of status, opportunity and social standing.
C J Balakrishnan provided an example of Brahmins who may be servants of a lower caste or of other Brahmins.206 On this basis, he stated that within every caste is a group of classes made up of close knit social controls and religious rites.207 If the lists for determining backward classes take into account social and educational backwardness, aside from castes, then they do 908 90Q not violate art. 15(1). As a result, he found that there was no violation of the CEI Act.
201 Krishnaswamy and Khosla at 55. 202 Thakur 2008, paras. 43-45. 203 Thakur 2008, para. 100. 204 Thakur 2008, para. 100. 205 Thakur 2008, para. 134. 206 Thakur 2008, para. 134. 207 Thakur 2008, para. 136. 208 Thakur 2008, para. 141. 209 Thakur 2008, para. 142. eVanita Goela (2008) 34
The Supreme Court of India unanimously found that the creamy layer should be excluded from the SEBC. CJ Balakrishnan repeated the observations of Justice Reddy in Indra
Sawhney 1992 where it was determined that the affluent section of a backward class does not deserve reservations for further progress in society. He further explained the necessity of distinguishing a creamy layer and the rationale behind the concept in great detail:
"It is to be understood that [sic] "creamy layer" principle is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward. They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class...To fulfil the conditions and to find out truly what is socially and educationally backward class, the exclusion of "creamy layer" is essential. It may be noted that the "creamy layer" principle is applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class. One of the main criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of "creamy layer" is necessary. ...we are bound by the larger Bench decision of this Court in Indra Sawhney's case, and it cannot be said that the "creamy layer" principle cannot be applied for identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, social and economical levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination."211
The Chief Justice concluded by stating that this reasoning is applicable to art. 15(5) and that the creamy layer must be excluded to provide a complete identification of SEBCs. Justice
Raveendran added that when a caste is described as a SEBC, it becomes a SEBC only when the
919 creamy layer is shed.
CJ Balakrishnan noted though that the same principal for determining the creamy layer for government jobs need not be followed for the determination of the creamy layer in the case of an art. 15(5) reservation.213 It is for the Government to issue appropriate guidelines to
2,0 Thakur 2008, paras. 147-148. 211 Thakur 2008, panis. 149-150. 212 Thakur 2008, para. 12, Justice Raveendran. 213 Thakur 2008, para. 154.
©Partita Goela (2008) 35 identify the creamy layer that SEBCs are properly determined. If candidates are still not available, the State can implement guidelines to implement the reservation purposively.214
The definition of "backward class" in s. 2(g) of the CEI Act does not exclude the creamy layer, therefore, CJ Balakrishnan deemed the application of the principle of exclusion of the creamy layer. Bhandari, J. expressly noted that Parliament wished to include the creamy layer in the CEI Act as it had not mentioned the creamy layer in it.216 Despite the absence of the creamy layer language, he affirmed that the creamy layer should never be included in any affirmative action legislation. 7 Including the creamy layer would mean that unequals would be treated as equals, which in his opinion would violate equality.218
Bhandari, J. took judicial notice of the fact that people belonging to and not belonging to the creamy layer are unequal with respect to their schooling.219 He stated that the students from the creamy layer will have advantages to gaining admission to higher educational institutions such as, attending better schools, attending private tuitions and coaching centres, coming home to a family member, and seeking assistance on schoolwork from educated parents
- all resources which a student not part of the creamy layer would not have access to.220 Being socially advanced, one cannot be part of the SEBC; one who is socially forward is likely to also be educationally forward.221 If one factor is not met, one cannot be part of the SEBC.
Bhandari, J. also found support for the creamy layer exclusion in the text of arts. 15(4) and (5): the term creamy layer is synonymous with non-SEBC.222 He further stated that
Parliament ought to have known that based on Indra Sawhney 1992, the creamy layer would be
214 Thakur 2008, para. 154. 215 Thakur 2008, para. 155; CEI Act, s.2(g) "Other Backward Classes" means the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government. 216 Thakur 2008, para. 17, Justice Bhandari 2.7 Thakur 2008, para. 18, Justice Bhandari. 2.8 Thakur 2008, para. 20, Justice Bhandari. 219 Thakur 2008, paras. 26-27, Justice Bhandari. 220 Thakur 2008, paras. 26-27, Justice Bhandari. 221 Thakur 2008, para. 32, Justice Bhandari. 222 Thakur 2008, para. 33, Justice Bhandari.
QVanita Goela (2008) 36 excluded again by this Court and if Parliament wanted to include the creamy layer, they would have said it in the text of art. 15(5). As a result, Bhandari, J. severed the implied inclusion of the creamy layer in art. 15(5) and held that that inclusion of the creamy layer would violate equality.
Bhandari, J. further emphasized that unless the creamy layer is removed, OBCs cannot exercise their groups rights. He added that group rights and individual rights are not mutually exclusive:
"...The Union of India and other respondents argued that creamy layer exclusion is wrong because the text of the 93rd Amendment bestows a benefit on "classes", not individuals. While it is a group right, the group must contain only those individuals that belong to the group. I first take the entire lot of creamy and non creamy layer OBCs. I then remove the creamy layer on an individual basis based on their income, property holdings, occupation, etc. What is left is a group that meets constitutional muster. It is a group right that must also belong to individuals, if the right is to have any meaning. If one OBC candidate is denied special provisions that he should have received by law, it is not the group's responsibility to bring a claim. He would be the one to do so. He has a right of action to challenge the ruling that excluded him from the special provisions afforded to OBCs. In this sense, he has an individual right. Group and individual rights need not be mutually exclusive. In this case, it is not one or the other but both that apply to the impugned legislation."225
Of note is that Bhandari, J proposed that economic criteria (income, occupation and land holdings) could be used as the exclusive means of identifying the SEBC. However, he acknowledged that Indra Sawhney rejected the pure means test and advised that after a ten year
997 review of the CEIAct, reservation should be granted on the basis of economic criteria.
Bhandari, J. then raised a question which is instructive for comparative purposes: does the creamy layer exist outside of India?228 He concluded that it does and he presented the example of the USA where a study found that certain groups have a better chance of being
223 Thakur 2008, para. 52, Justice Bhandari. 224 Thakur 2008, paras. 30, 53, Justice Bhandari. 225 Thakur 2008, para. 46, Justice Bhandari. 226 Thakur 2008, paras. 228, 234, Justice Bhandari. 227 Thakur 2008, para. 248, Justice Bhandari. 228 Thakur 2008, para. 47, Justice Bhandari. eVanita Goela (2008) 37 admitted to college.229 The study concluded that Black, Latino and Native-American students who scored the same as Whites or Asian students on the SAT had a 28% better chance at gaining admission.230 Bhandari, J. stated that the failure to exclude the creamy layer excludes deserving students. It is unclear from this excerpt, however, if he perceives the Black, Latino and Native-American students to be part of that creamy layer. This question will be explored further below.
With respect to reservations in certain areas of higher education, Justice Pasayat, who also delivered an opinion on behalf of Justice Thakker, highlighted that regarding super- specialties such as neurosurgery and cardiology, there should be no reservations as this would serve the nation's interests.
As to whether the quantum of 27% reservation was valid, CJ Balakrishnan noted that the
Petitioners did not produce any documents to show that the backward class of citizens is less than 27% and that the Court should defer to Parliament's consideration of the relevant circumstances surrounding the reservations.233
In conclusion, CJ Balakrishnan and the bench found that the Constitutional Amendment
Act and the CEI Act were constitutional, except that the creamy layer should be excluded from
234 reservations.
This Court made it clear that even when a creamy layer exclusion is not drafted in legislation, it should and will be interpreted as being applicable whenever there is reference to the OBC/SEBC. Furthermore, the Court stressed the importance of properly identifying the
OBC/SEBC by excluding the creamy layer from the category.
Commentary 229 Thakur 2008, para. 47, Justice Bhandari. 230 Thakur 2008, para. 48, Justice Bhandari. 231 Thakur 2008, para. 49, Justice Bhandari. 232 Thakur 2008, para. 136, Justice Pasayat. 233 Thakur 2008, para. 193, CJ Balakrishnan. 234 Thakur 2008, paras. 163, 193, CJ Balakrishnan.
©Vanita Goela (2008) 38
In India, the judicial discourse is not focussed on whether affirmative action policies such as reservations should exist. Rather, the relevant questions are based on defining who should receive the benefits of reservations and the extent of preferential policies. It is fairly settled that the SC and ST are entitled to affirmative action programs. But with competing claims for reservations from the OBC for limited seats in employment and higher education, the importance of delineating the category clearly has become a pressing matter.
It has been argued that the Thakur 2008 case does not provide any radical departures from the Supreme Court of India's existing doctrine on reservation law and policy.235 The broad equality principles emanating from Indra Sawhney 1992 were echoed in Thakur 2008: identification of the OBCs should be conducted by examining various criteria, but caste cannot be the sole criterion; backwardness means social and educational backwardness, not poverty; the socially and educationally advanced members of the OBCs must be excluded from reservations as they are the creamy layer and; substantive equality demands that people be treated differently. These two cases are the definitive judicial guides to OBC reservations.
The Supreme Court of India has confirmed that for the SEBC/OBC to be properly defined, it must exclude the creamy layer, otherwise the category is overinclusive. Put another way, CJ Balakrishnan also stated that the creamy layer exists only to identify the SEBC. Justice
Sinha in Nair highlighted that the creamy layer is part of the constitutional scheme. Judges have stated that inclusion of the creamy layer in the OBC category would violate equality.
However, it is unclear from certain statements from the Supreme Court of India as to whether creamy layer is a principle of equality, as it does not apply to the SC/ST categories or to reservations generally.238 Thus, it appears as though the test for equality and whether a
235 Krishnaswamy and Khosla. 236 Nair, para. 38. 237 Thakur 2008, paras. 30, 53, Justice Bhandari. 238 CJ Balakrishnan in Thakur 2008 at para. 160, stated that the creamy layer principle is not yet a principal of equality to apply to all affirmative action.
©Vanita Goela (2008) 39 reservation scheme meets constitutional muster differs when the constitutional provisions relate to the OBC/SEBC as opposed to the SC/ST categories.
Krishnaswamy and Khosla argue that the trend of equating arts. 15 with 16 prevents the
Court and executive to consider affirmative action in different fields in a disaggregated fashion.239 They suggest that there are textual reasons to consider arts. 15(3), (4), (5) and 16(4), to operate in different fields, since 15(3) and (4) allow the state to make special provisions in any field, and 15(5) and 16(4) are specifically focussed on higher education and public employment.240 Lumping social policy considerations of education and employment prevents the tailoring of appropriate policies to achieve their outcomes.241 They further argue that affirmative action measures may differ for the categories of OBC/SC/ST and as such, quotas may not be required in each program.242
These criticisms were touched upon by CJ Balakrishnan when he stated that a different principle for determining the creamy layer could be used in employment versus education.
However, that distinction is restricted to the creamy layer identification and not affirmative action generally.
Krishnaswamy and Khosla note that these equality provisions have different moral and policy justifications for affirmative action, as in some cases the goal might be equality of opportunity and in others the goals might be diversity or social inclusion.243 When the justification for affirmative action differs by sector, the beneficiaries may be distinct.244 Thus, based on Krishnasawmy and Khosla's arguments, the distinction between the goals of a policy is an important factor to examine when the question of creamy layer is posed. Since the object of carving out a creamy layer from a listed group is to ensure that the truly disadvantaged
239 Krishnaswamy and Khosla at 58. 240 Krishnaswamy and Khosla at 58. 241 Krishnaswamy and Khosla at 58. 242 Krishnaswamy and Khosla at 55. 243 Krishnaswamy and Khosla at 58. 244 Krishnaswamy and Khosla at 58.
©Vanita Goela (2008) 40 benefit from a government reservation, the goal of diversity may not demand a creamy layer consideration. On the other hand, equality of opportunity would.
The Supreme Court of India has shown that the creamy layer is judicially enforceable.
The example of Indra Sawhney 1992 and its follow up cases demonstrates the tension between the executive and the judiciary, but that the judiciary can influence policy. Even after the State of Kerala presented legislation to show that there was no creamy layer in that state, the Supreme
Court of India found the provisions to be unconstitutional and directed the state to identify a creamy layer. Likewise, the Supreme Court of India "read in" a creamy layer exclusion in the definition of OBC in the CEI Act. After years of litigation surrounding the concept of creamy layer, Parliament nevertheless did not use the phrase "creamy layer" in its legislation.
The Supreme Court of India also raised the question of affirmative action hierarchies.
Affirmative action should not be implemented in certain elite institutions. Various judges have emphasized that there should be no reservations in employment or education involving super- specialties, such as aviation and neurosurgery.245 The truly disadvantaged sections of society would then apply to such employment or educational establishments in a regular category. The
Supreme Court of India has thus precluded the state from enacting reservations in employment and education relating to super-specialties. In Canada, it would be unlikely for the Supreme
Court of Canada to definitively say in a decision that affirmative action should not apply to certain professions or educational institutions on the basis that these fields required the "highest level of intelligence". This would certainly tie the government's hands in choosing which policies to implement and would defeat the ameliorative purpose of s. 15(2) of the Canadian
Charter.
The Supreme Court of India cases show an attempt by the judiciary to provide guidelines to the government on how to avoid the problem of overinclusion. In a country where
245 See Justice Reddy in Indra Sawhney 1992 and Justices Pasayat and Thakker in Thakur 2008.
OVanita Goela (2008) 41 reservations affect millions of people and where poverty and social and educational disadvantage is more common than not, the question of who benefits from higher education or a government job is crucial. Defining beneficiaries is also essential in the quest for equality, where inequality has existed for so long. Further below, I will show that Canada's judiciary should similarly consider the problem of overinclusion in affirmative action initiatives in order to bring Canadian society closer to equality.
PART II The problem of classifying peoples
Over and underinclusiveness
The Supreme Court of India's creamy layer concept highlights the problems associated with identifying people though a group lens within the context of affirmative action.
Sometimes, either undeserving individuals are included as beneficiaries or deserving individuals are excluded. This tension regarding over and underinlcusion has been explored by authors in
India, Canada and the United States of America (USA). All of the authors cited below agree that group categorization is an inadequate method of identifying the truly disadvantaged.
Affirmative action programs are only of assistance if the intended beneficiaries are reached. The benefits of a social justice policy must go to the disadvantaged as contemplated by the policy.246 This is attained by maintaining boundaries for the legitimate claimants. In
India, the OBC category has been described as porous, since the Indian Constitution and the
Constituent Assembly debates offer limited assistance in defining the category.2 As a result, it has been argued that the boundaries of OBCs will evolve through deliberations and contestations.249 The creamy layer concept has been described as an assurance that the benefit
246 Suhas Palshikar, "Challenges before the Reservation Discourse", Economic & Political Weekly, April 26, 2008, 8 at 9 [Palshikar]. 247 Palshikar at 9. 248 Palshikar at 8. 249 Palshikar at 8. eVanita Goela (2008) 42 of reservations reaches the deserved section of the OBCs. But is has also been criticized as a political tool to "cool down" anti-reservationists.
Being listed as an OBC has raised problems of underinclusion and overinclusion, since inclusion in the OBC category depends on the political skills, leadership and political bargaining
OCT power of the groups seeking inclusion. Thus, the question of inclusion is raised in two arenas with the OBC if a group and individual within a group is seeking reservations: the first stage involves being included in the OBC list; the second stage involves being a part of the non- creamy layer.
Even those groups listed as OBC have sought to be de-listed and moved to the ST category. This has demonstrated that the OBC category is unable to accommodate the interests of some communities.254 But for those seeking SC/ST status, there is also the added advantage that the creamy layer concept does not apply to the SC/ST categories, and the SC/ST have reservations in the central and state legislatures, whereas the OBC do not. Hence, the mobilization of various communities may involve a certain level of strategy.
An additional phenomenon related to the question of inclusion in a reserved category is arguments for sub-classifications where some caste groups are asking for their own reservations, apart from the OBC or SC category.255 This is remarkable considering that India has already recognized "differential needs for affirmative action" in that the SC/ST and OBC all have their
250 Prasad at 146. 251 Prasad at 146; Chaudhury at 305, argues that the politics of caste identity founded on reservations helps to push the economic problems facing the poor away from centre stage; another author has referred to the promises of reservations for fellow caste members by politicians as causing "reservation inflation": Anonymous, "Leaders: Untouchables and unthinkable; Indian business", The Economist, Oct. 6, 2007, Vol. 385, Iss. 8549; 17. 252 Palshikar at 10; The Gujjars and Meenas were both considered to be criminal tribes during the British colonial period. The Indian government recognized the Meenas as ST, but not the Gujjars. The Gujjars sought to be downgraded in the social hierarchy and considered as a "backward class", as this would be a move "forward": Salil Tripathi, "India's creeping caste entitlements," Far Eastern Economic Review, Hong Kong, Vol. 170, Iss. 8; 49; A growing number of Indians are demanding to be declared officially 'backward': Jenkins 2001 at 32. 253 Palshikar at 10. 254 Palshikar at 10. 255 Palshikar; Frederic Bobin, "Au Rajasthan, conftit de castes autour des quotas," Le Monde, 25.01.08.
GVanita Goela (2008) 43 own separate quotas.256 This could be compared to the situation in the USA where in Louisiana
French Acadians sought and obtained minority status as Italians at City University New York did. In the Canadian context one could imagine that in a comparable ST category the Inuit might request separate constitutional protections from the Metis or Indians. Similarly, if racial groups generally could be compared to the OBC lists, one might conceive of the Black community asking for separate affirmative action programs from Asians, or to be constitutionally protected like the aboriginals. No matter the country, there may never be a perfect formula to guarantee that each person who is truly disadvantaged will be protected by the State.
Krishnaswamy and Khosla have argued that any method of identification which uses groups as the unit of identification will encompass problems of overinclusion and underinclusion. Thus, an individualized approach such as examining who belongs to the creamy layer is perhaps one mechanism for carving out deserving beneficiaries in India.
The creamy layer distinction is essentially an acknowledgement that affirmative action beneficiary categories can be overbroad. In a similar manner, using race as an identifying label in North America has presented shortcomings. If the ultimate goal in Canada is antidiscrimination, a representative population in the workforce, and harmonious relations amongst individuals, affirmative action programs based on race are possibly misguided. The following review of some academic commentators shows how the question of race as a group classification has been questioned in reaching the truly disadvantaged through affirmative action programs.
Clark D. Cunningham and N.R. Madhava Menon. "Race, class, caste ...? Rethinking affirmative action." Michigan Law Review. 97.5 (March 1999): 1296(1) [Cunningham and Menon]. 257 See Pager below. 258 Krishnaswamy and Khosla at 58. eVanita Goela (2008) 44
Anita Indira Anand questioned whether preferential policies in Canada are fair and effective in addressing racial disadvantage. ' Anand favours preferential policies for poor people generally and visible minorities specifically.260 Although, visible minorities warrant being targets of preferential policies to rectify past injustices and redistribute advantages to the poor, impoverished people generally should also be compensated in order to achieve the goal of substantive equality.
Anand argues that there is no moral justification to target visible minorities over others on the basis of socio-economic need.262 She states that preferential policies which seek a proportionate number of visible minorities in a profession are problematic and that they need to involve an understanding of over and underinclusiveness.263
Preferential policies can be over-inclusive in that they provide preferential treatment to groups which do not require them and underinclusive in that they fail to provide treatment to non-visible minorities who require preferential treatment.264 For example, Japanese and Korean
Canadians have high academic grades and financial resources, experience less unemployment than the average population and are more concentrated in the professional sector than the average Canadian workforce.
On the other hand, aboriginals have a high unemployment rate and few complete high school or a university degree.266 For these reasons, according to Anand, preferential policies should not target Japanese and Korean Canadians as they are not disadvantaged as the
259 Anita Indira Anand, "Visible Minorities in the multi-racial state: when are preferential policies justifiable?" (Spring 1998) 21 Dalhousie L.J. 92 [Anand]. 260 260 Anand at 95, 121-122. 261 Anand at 95, 121-122, 125-126. 262 Anand at 122. 263 Anand at 119-120. 264 Anand at 119-120. 265 Anand at 119-120. 266 Anand at 121.
©Vanita Goela (2008) 45 chronically poor.267 Preferential policies should thus target the poor without regard to skin colour and only target visible minorities if they are economically disadvantaged. Anand argues that the responsibility of compensation should be spread out throughout society and not only on white males, since a separate class perpetrated injustices in the past.
Thus, Anand's proposal to aim preferential policies at the economically disadvantaged, regardless of skin colour, may address questions of overinclusiveness based on race as a group classification, as privileged individuals within racial groups would not have access to such policies. This approach is solely means based and supposes a preferential policy based on economic backwardness according to a Supreme Court of India assessment. According to
Anand then, the creamy layer would include those who are not economically disadvantaged.
Sean A. Pager critiques the use of the "quadrangle" of race in the United States of
America (USA) as disentitling the deserved and entitling the undeserved from affirmative action
970 benefits. The quadrangle includes Blacks, Asians, Hispanics and Native Americans and is the quasi-official definition of minorities in the USA.271 Pager argues that the quadrangle is questionable for three reasons: (1) its boundaries are indeterminate; (2) the internal heterogeneity of these groupings is too extreme for them to serve as meaningful categories; and
(3) its categories were arbitrarily constituted and unfairly advantage certain groups over others.272
With respect to boundaries, Pager explains that various classifications vary and are contested across jurisdictions.273 For example, Hispanics may include different groups, such as
267 Anand at 122 268 Anand at 125. 269 Anand at 125. 270 Sean A. Pager, "Antisubordination of whom? What India's answer tells us about the meaning of equality in affirmative action," 41 U.C. Davis L. Rev. 289 (2007-2008) at 303 [Pager]. 271 Pager at 303. 272 Pager at 303-319. 273 Pager at 303.
GVanita Goela (2008) 46 the Spanish and even Portuguese who do not even speak Spanish.274 The Asian-Pacific classification does not include Indians or Lebanese in Ohio.275 Persians and Afghanis are considered to be white and ineligible for affirmative action. 7 African Americans may not include black immigrants.277
On the other hand, there are groups classified as white which sought minority status to be included in affirmative action and were recognized: Middle Eastern Americans in San
Francisco, French Acadians in Louisiana, and Italian Americans by the City University of New
York. But Pager opines that these classification decided by judicial pronouncements are based on little more that underlying intuitions.279 Courts have also used different evidentiary criteria to define beneficiaries, such as dictionaries, legislative history, ancestry, culture, history, community practice or physical appearance. As such, there does not appear to be any objective test utilized to determine who is a minority or how one should be classified.
With respect to heterogeneity, Pager talks about the "top performers" and internal
TO] variance in groups. For example, within the Asian category, he notes that Asian Indians,
Chinese and Japanese people earn bachelors degrees at almost double the USA average, occupy twice as many managerial or professional positions than the USA norm, and own homes valued at double the USA median.282 However, Cambodian, Laotian, Samoan and Tongan American statistics show reciprocal results.283 Pager warns that these internal variances within categories raise the problem of the non-disadvantaged usurping jobs or contracts at the expense of the
274 Pager at 304, 313. 275 Pager at 305. 276 Pager at 315. 277 Pager at 305. 278 Pager at 306. 279 Pager at 306. 280 Pager at 308. 281 Pager at 308. 282 Pager at 308-309. 283 Pager at 309.
©Vanita Goela (2008) 47 disadvantaged. Likewise, the disadvantaged in a group which is too successful will be excluded, such as in higher education where Asians, for example, are no longer counted for representative purposes.
This problem has also been raised by Roy L. Brooks in his analysis of affirmative action based on race in higher education.286 Brooks remarks that the Asian racial category usually contains different experiences, cultures and identities not necessarily represented by the typical
• 987
Asian affirmative action beneficiary. He provides an example of the Vietnamese immigrant whose views on American military support for anti-communist groups would differ in comparison to the third-generation Japanese American, or the immigrant black versus the slave descendants who he claims have a more critical perspective on campus.288 These variations used in affirmative action undermine real diversity, argues Brooks, when race is used as a proxy for diversity of thought and experience. Pager states that despite "judicial floundering", there is no theory of the "Who Question" in the USA and that what is missing is a societal perspective grounded in empirical fact.
Identifying a group based on race is, therefore, an inaccurate indicator of disadvantage.
Pager has identified a creamy layer within the category of Asian Americans, for example.
However, it does not appear that further sub-classification of race would resolve the problem of over or underinclusion.
Saverio Cereste described the Rutgers Law School-Newark's program which recruited minorities since 2000, without an emphasis on race, but rather on economic and educational
284 Pager at 310. 285 Pager at 310; Barkman includes Filipino and Vietnamese Americans as the underrepresented within the Asian category: Joanne Barkman, "Alive and not well: affirmative action on campus", Dissent, Spring 2008, 55, 2, Research Library Core, 49 at 52 [Barkman]. 286 Roy L. Brooks, "Affirmative action in higher education: what Canada can take from the American experience", (2005) 23 Windsor Y.B. Access Just. 193 [Brooks]. 287 Brooks at 201 288 Brooks at 201-202. 289 Brooks at 202. 290 Pager at 319.
©Vanita Goela (2008) 48 hardships/1" This assessment is also available to all applicants/1" The Minority Student
Program (MSP) is based primarily on educational and employment experiences, personal and academic accomplishments, community service, socioeconomic background, extraordinary family circumstances and with less but significant emphasis, the LSAT (law school admissions test) and UPGA (undergraduate grade point average). 9 It is also available regardless of race or ethnic origin to disadvantaged applicants and race is no longer considered as an isolated factor.294
This policy of considering economic and educational disadvantage allows the Law
School to target applicants who have backgrounds which are usually associated with minorities, without using race a highlighted criterion.295 However, if this policy is a disguised method to admit racial minorities, it may be problematic. Brooks argues that racial preferences are demonstrably more effective than socio-economic preferences in admitting students to the leading universities in the USA, since poor white students tend to score higher than middle-class black students on the SAT (scholastic aptitude test).296 These findings are also supported by
Joanne Barkman who writes that class used a proxy for race does not work in affirmative action plans. However, the MSP does not exclude race as a consideration; it is merely no longer an isolated factor. This policy would therefore exclude a so-called creamy layer amongst racial groups.
Cereste argues that the new policy preserves the guarantee of equality by emphasizing individual accomplishments and achievements by examining obstacles which applicants
291 Saverio Cereste, "Minority Inclusion without Race-Based Affirmative Action: An Embodiment of Justice Powell's Vision", 18 N.Y.L. Sch. J. Hum. Rts. 577, 2001-2002,at 577, 594 [Cereste]. 292 292 Cereste at 577, 594 293' ,Cerest e at 577, note 3 and 597, 598, 600. 294 Cereste at 577, note 4 and 594. 597, 598, 600. 295 Cereste at 598, 600. 296 Brooks at 223. 297 Barkman at 49, 56-57.
GVanita Goela (2008) 49 overcome. It places all applicants who have excelled in disadvantaged environments on equal footing, regardless of race. This criteria, Cereste points out, provides the same diverse learning environment but not at the expense of other individuals.300
The University of Victoria Law School has similar admissions categories: the special access applicant and the aboriginal applicant. The special access applicant must show that his/her academic achievements were significantly delayed, interrupted or adversely affected by physical, cultural or economic factors or family or similar responsibilities or the need to maintain employment. Such students would be assessed based on their achievements in occupational endeavours, community, public service or cultural activities, in addition to academic performance and LSAT scores.302 Aboriginal applicants are considered on an individual basis based on employment history, reference letters, connection with the Aboriginal community, as well as academic performance and the LSAT. The MSP and Victoria policies encompass economic, social and educational disadvantage. This approach seems to mirror most closely the criteria outlined for the OBC by Justice Reddy in Indra Sawhney 1992.
Angela Onwuachi-Willig suggests that rather than treating black applicants for admission to elite colleges and universities as one monolithic group, in order to advance the true goals of affirmative action, admissions officers should consider the ancestral heritage of black applicants, as affirmative action programs are not reaching legacy blacks, the original targets of the policy.304
298 Cereste at 599. 299 Cereste at 600. 300 Cereste at 599. 301 http://www.law.uvic.ca/NEW-Law-site/special_access.php. 302 http://www. law.uvic.ca/NEW-Law-site/special_access.php. 303 http://www.law.uvic.ca/NEW-Law-site/aboriginal.php. 304 Angela Onwuachi-Willig, "The admission of legacy blacks," 60 Vand. L. Rev. 1141 (2007) at 1160, 1162, 1198 [Onwuachi-Willig].
OVanita Goela (2008) 50
Affirmative action in the USA was designed to assist people who had been severely disadvantaged because of race to overcome the devastating effects of slavery. Onwuachi-
Willig refers to legacy blacks as those who are descendants from slaves in the USA.306 She raises this historical distinction particularly because of the rising number of first and second generation black students (children of black immigrants) and mixed-race students at elite educational institutions. Because of educational, economic and cultural differences between legacy Blacks and non-legacy Blacks, considerations of racial diversity may not be sufficient to further affirmative action policies, and for these reasons ancestral heritage should be part of an educational institution's admissions policy in order to further affirmative action's aim of social justice.308
Nevertheless, Onwuachi-Willig argues that although there are fewer legacy blacks at the elite universities, this is not reason to exclude the first and second generation and mixed race students from affirmative action policies.309 All Blacks are significantly disadvantaged relative to whites in a number of areas including academic achievement, income, value of home and
O 1 A assets, and all suffer the effects of racism. Blacks are still severely underrepresented in colleges and universities, despite constituting 13% of the population in the USA.311 Being middle class also does not insulate blacks from disadvantage or racism in the USA.
Furthermore, Onwuachi-Willig notes that the disadvantage of being perceived as black in the
USA also applies to those who are mixed-race or of ancestry from another country.313 Finally,
Onwuachi-Willig at 1162, 1186; Boston and Nair-Reichert at 4. 306 Onwuachi-Willig at 1149. 307 Onwuachi-Willig at 1145. 308 Onwuachi-Willig at 1157, 1158, 1160, 1161, 1162, 1179. 309 Onwuachi-Willig at 1180, 1190. 3,0 Onwuachi-Willig at 1164, 1186, 1187, 1190, 1192, 1197. 311 Onwuachi-Willig at 1201. 312 Onwuachi-Willig at 1187. 313 Onwuachi-Willig at 1189.
©Vanita Goela (2008) 51 immigrant blacks suffer discrimination from whites as well as African-Americans because of accents, family dress and "foreign-ness".
For these reasons, Onwuachi-Willig argues that affirmative action policies based on race and a social justice rationale should still apply to first and second generation blacks and mixed race applicants. 5 Onwuachi-Willig further argues that racial preference programs must continue to apply to groups other than Blacks, as the most disadvantaged groups both economically and educationally would be included.316 Again, it is noted that a racial category is an inadequate measure of disadvantage.
Dalhousie Law School realized an admissions program which echoes Onuwuachi-
Willig's arguments regarding ancestral heritage. The Indigenous Blacks and Mi'kmaq Initiative
(IB&M) was implemented in 1989 to reduce "structural and systemic discrimination by increasing the representation of Indigenous Blacks and Mi'kmaq in the legal profession".317
According to Richard F. Devlin and A. Wayne MacKay, the motivation for establishing the program was to challenge the racism of Canadian legal culture, and legal education in particular.318
The primary focus of the IB&M Initiative is on students who are Indigenous Black Nova
Scotians, those who were born and raised in Nova Scotia or who have a substantial connection with a historically Black community in Nova Scotia, or those who were born and raised
Mi'kmaq or have a substantial connection with a Mi'kmaw community in Mi'maqi.
However, other Black and Aboriginal students across Canada are also eligible to apply. The
314 Onwuachi-Willig at 1202, 1203. 3,5 Onwuachi-Willig at 1192. 316 Onwuachi-Willig at 1205-1207. 317 http://ibandm.law.dal.ca. 318 Richard F. Devlin and A. Wayne MacKay, "An essay on institutional responsibility: The Indigenous Blacks and Micmac Programme at Dalhousie Law School," 14 Dalhousie L.J. 296, 1991-1992, at 304 [Devlin and MacKay]. 319 http://ibandm.law.dal.ca/admission.htm. 320 http://ibandm.law.dal.ca/admission.htm.
QVanita Goela (2008) 52
IB&M Initiative does have a quota system, based on percentages of the population.321 Each
799 year only 12 students are admitted to the program: 6 Black and 6 Mi'kmaq. Carol Aylward notes, though, that a true education equity programme would not be quota based but would admit as many qualified students as applied.323
A comparable program was the Akitsiraq Law School which was a partnered initiative with the University of Victoria Law School. This was a one-time program which commenced in
2001 and offered a Bachelor of Laws to Inuit students only, at the Nunavut Arctic College.324
The program was initiated as a response to the growing need for Inuit lawyers in the practice of law in Nunavut.
Dalhousie Law School appears to have made efforts to address the truly disadvantaged within Nova Scotia, based on the local context and history. Although other racial minorities apply and attend Dalhousie Law School, its decision to implement a program targeting local historically disadvantaged groups within Nova Scotia is one method in which to address the question of an individualized assessment. In addition to assessing an applicant's LSAT and academic record, admissions requires a personal statement, resume of work experience and community activities, references, and eventually, an interview. Nevertheless, Andrew
Koppelman and Donald Rebstock remark that "truly individualized consideration is impossible."
Regardless of whether the field is higher education or employment, race as a group identifier in North America presents problems of over and underinclusion as it is an inaccurate 321 Carol Aylward, "Adding colour - A critique of 'An Essay on Institutional Responsibility: The Indigenous Blacks and Micmac Programme at Dalhousie Law School'," 8 Can. J. Women & L. 470, 1995 at 472 [Aylward]. 322 Aylward at 472; email communication with Professor Michelle Williams, dated August 25, 2008. 323 Aylward at 472. 324 http://www.law.uvic.ca/akits.html. 325 http://www.law.uvic.ca/akits.html; see also Kelly Gallagher-Mackay, "Affirmative action and aboriginal government: the case for legal education in Nunavut," 14 Can J.L. & Soc. 21, 1999. 326 http://ibandm.law.dal.ca/apply.htm. 327 Andrew Koppelman and Donald Rebstock, "On affirmative action and 'truly individualized consideration,'" 101 "Nw. U. L. Rev. 1469, 2007 at 1469 [Koppelman and Rebstock].
GVanita Goela (2008) 53 indicator of disadvantage. For these reasons, an affirmative action plan based on alleviating disadvantage which targets a racial group should be closely examined to verify whether the group as a whole is truly disadvantaged or if only certain individuals are.
Caste and race
Before discussing the Supreme Court of Canada cases, it is instructive to examine whether there are any parallels between race and caste, in order to compare Canadian categories of race to the Indian classifications based on caste. Laura Dudley Jenkins claims that caste and race are both related to birth, involve notions of purity and can result in social and occupation segregation.328 She has compared the SC in India to the African-Americans in the USA, the ST to the Amercian-Indians because both are indigenous and a culturally distinct group with special rights, and Hispanics to the OBCs, as they vary by ethnicity, national origin and heritage, language, name, or racial appearance. Likewise, Sumit Sarkar argues that race-like situations and conflicts exist in South Asia if one defines race as widespread essentialization of an Other, its inferiorization, and the ascription of qualities to be inherent, ineluctably hereditary, or biological.330
There are also differences between caste and race which are not as easily linked. Race is an immutable characteristic. Caste, on the other hand, is not. A person is black and continues to be black regardless of status and wealth. However, given caste mobility, people
328 Jenkins 2004 at 752-753. 329 Jenkins 2004 at 753. 330 Sumit Sarakr, "The relevance of the language of race in South Asian Conflicts", in Racism in Metropolitan Areas, ed. Rik Pinxten & Ellen Precker, 2006, Berghahn Books, New York, Oxford. 331 Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, para. 13; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, para. 67 [Corbiere]. 332 Gupta 2006 at 63. 333 Gupta 2006 at 59, 63.
GVanita Goela (2008) 54 move from one job to another in their lifetime and over generations.334 As a result, some who
TIC were descendants of untouchables are no longer untouchables.
Dipankar Gupta notes that when a child has parents of different races, the child becomes half X-race and half X-race. 6 However, when a child of two different castes is born, the child becomes an impure outcast, not a member of both castes.337 Gupta further argues that although blacks were despised in Southern USA, they were not considered to be polluting, as they could be cooks or wet nurses in white homes.338 However, a high caste family would not have an untouchable as a cook in the home.339
Race is arranged along a spectrum of colours from white to black and being closer to white is superior. On the other hand, people of a caste would not agree on a social hierarchy as one caste would not accept itself as less pure than another, except that all would agree that
Brahmins are at the top.
Nevertheless, because caste has some parallels to race as a category, it is necessary to look to Supreme Court of India jurisprudence on the creamy layer concept and the importance of carving out the truly disadvantaged as beneficiaries of affirmative action programs.
However, a reminder that not only groups who belong to a Hindu caste are included within the
OBC category. Caste is only one consideration when determining who belongs to the
334 Gupta 2006 at 63-64; Galanter at 12. 335 Gupta 2006 at 63-64. 336 Gupta 2006 at 58. 337 Gupta 2006 at 58. The Ministry of Social Justice and Empowerment in Inida is considering the issue of whether a child whose mother is Dalit/SC and father is non-SC should be considered as part of the SC category. This raises questions about gender equality as well as reservations generally: Subodh Ghildiyal, Can [sic] child be Dalit if father is not?" The Times of India, March 31, 2008. 338 Gupta 2006 at 58. 339 Gupta 2006 at 58. 340 Gupta 2006 at 59-61. 341 Gupta 2006 at 61. 342 Sawhney 1992 and Thakur 2008.
GVanita Goela (2008) 55
OBC. Further, the OBC contain groups who are historically and currently disadvantaged in a similar manner in which certain racial groups have been and are disadvantaged in Canada.
Finally, the Supreme Court of India has explained that caste is not equated with class in the Marxist sense; rather, backward classes denote a social class. In a similar manner, racial groups sometimes denote a disadvantaged class in multi-racial societies. For these reasons, I would argue that Supreme Court of India decisions regarding the creamy layer and OBCs are relevant to the affirmative action debate in Canada and future litigation concerning s. 15(2).
PART III Context in Canada
Canada and affirmative action
Unlike in India, in Canada specific groups are not guaranteed constitutional protection in employment, education or against discrimination in general. The only race based category regarding rights and freedoms is found in s. 25 of the Canadian Charter and s. 35 of
Constitution Act, 1982 which name "aboriginal peoples of Canada" and include Indians, Inuit, and Metis. Consequently, the two Supreme Court of Canada decisions on s. 15(2) discussed affirmative action policies which were implemented for the benefit of aboriginal people:
Lovelace v. Ontario, and R. v. Kapp.
In Canada the relevant constitutional provision regarding equality is s. 15 of the
Canadian Charter and has been in force since 1985. Section 15(2) is Canada's affirmative action provision.
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
343 Sawhney 1992 and Thakur 2008. 344 It should be noted that the Indian Act specifies that it does not apply to the Inuit. Section 4(1) states: A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit. 345 [2000] 1 S.C.R. 950 [Lovelace]. 346 SCC 2008 41 [Kapp].
(OVanita Goela (2008) 56
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
There is federal and provincial legislation which reflects the Canadian Charter's equality values. The federal Employment Equity Act, 1995, was designed to achieve equality in the workplace.347 In particular, the objects of the EEA are that,
"no person shall be denied employment opportunities or benefits for reasons unrelated to ability, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measure and the accommodation of differences."348
The EEA applies to private sector employers who employ 100 or more employees in connection with federal work and various portions of the federal public administration set out in its Schedules I-V.349
The EEA requires federal employers to implement employment equity by identifying and eliminating employment barriers against designated groups stemming from systems, policies and practices not authorized by law, and by instituting positive policies and practices and reasonable accommodations to ensure that persons from designated groups achieve a degree of representation in the employer's workforce which reflects their representation in the
Canadian workforce or segments of the Canadian workforce identifiable by qualification, eligibility or geography from which the employer may reasonably be expected to draw employees.350 The employer is excused from taking these measures if they would cause undue hardship to the employer, if the person does not meet essential qualifications or merit, or cause the employer to create new positions.
347 S.C., 1995, c. 44; EEA, s. 2. 348 EEA, s. 2; s. 3 defines these groups as designated. EEA, s. 4. Some exceptions are listed under this provision, such as applicability in the territories. 350 EEA, s. 5. 351 EEA, s. 6.
©Vanita Goela (2008) 57
With respect to aboriginal peoples, the EEA provides that when a private sector employer is engaged primarily in promoting or serving the interests of aboriginal peoples, the employer may give preference in employment to aboriginal peoples, unless it constitutes a discriminatory practice under the Canadian Human Rights Act [CHRA].352
Employment equity is only implemented towards person who self-identity as belonging to a designated group. In terms of numerical goals, nothing is prescribed by the EEA. An employer prepares an employment equity plan and if under-representation has been identified by the employer, it is required to establish short term and long term numerical goals.354 However, no minimum or maximum percentages are prescribed in the EEA and none are enforced. In terms of compliance, an employer is required to prepare and reasonably implement employment equity plans, review and revise the plan, consult its employees and maintain employment equity records. However, the Canadian Human Rights Commission or Employment Equity Review
Tribunal may not give direction or an order which will inter alia cause the employer undue hardship, require the employer to hire a person who does not meet merit requirements, or
if/ impose a quota. Thus, under the EEA regime, an employer cannot be obligated to implement a quota system.
The CHRA's purpose is to give effect to the principle that all individuals should have an equal opportunity to make for themselves the lives they are able and wish to have and to have their needs accommodated without being hindered by discriminatory practices based on race, national or ethnic origin, colour, religion, age sex, sexual orientation, marital status, family status, disability or conviction of an offence for which a pardon has been granted.357 The CHRA
352 R.S.C., 1985, c. H-6; EEA, s. 7. 353 EEA, s. 9(2). 354 EEA, s. 10. 355 EEA, ss. 25, 26. 356 EEA, ss. 25,26, 33. 357 CHRA s, 2. It should be noted that the CHRA is not applicable in matters respecting the Yukon Government, Government of the Northwest Territories of Nunavut; CHRA, s. 66.
GVanita Goela (2008) 58 prohibits discrimination in a broad range of areas, such as provision of goods, services, facilities, accommodation, employment, employee organizations, wages, hate messages, harassment, sexual harassment and retaliation. The CHRA permits affirmative action in the form of special programs as contemplated by s. 15(2) of the Canadian Charter:
"It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group."359
The Ontario Human Rights Code (OHRC)360 provides similar protections from discrimination as the CHRA. The OHRC states that every person has a right to equal treatment regarding services, goods and facilities, occupancy of accommodation, employment, vocational associations, and freedom from harassment, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. The OHRC also permits special programs which are aimed at affirmative action:
"A right under Part 1 is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I."362
The Public Service Commission of Canada (PSC) indicates that its employment equity objectives are "to ensure that the public service reflects and respects our diverse society".
The Ontario Public Service (OPS) states that they are an equal opportunity employer and that
358 CHRA, ss. 5-14.1. 359 CHRA, s. 16. 360R.S.O., 1990, H-19. 361 OHRC, ss. 1,2,5,6. 362 OHRC, s. 14. 363 PSC website, Employment equity in the appointment process, http://www.psc-cfp.gc.ca/plcy-pltq/frame- cadre/policy-politique/equity-equite-eng.htm.
GVanita Goela (2008) 59 they accommodate people on the basis of the OHRC.3 They also state that they hire based on merit and recruit people to serve the public interest and uphold the public's trust.
The objectives of the EEA, OHRC and CHRA are all tied to allowing individuals to live freely by seeking employment, shelter, and services without discrimination. There is a mix of economic and social goals of equality, however there is no particular emphasis on the advancement of any particular equity group and there are no quota requirements except for certain preferential hiring practices for aboriginals under the EEA. The aims of the various laws are anti-discrimination or representation, except for the specific provisions which enable the government to implement special programs.
Canadian s. 15(2) jurisprudence
The seminal case on s. 15(2): Lovelace v. Ontario (2000)
Until recently, there was only one case from the Supreme Court of Canada regarding
Canada's constitutional provision on affirmative action. Lovelace v. Ontario, was the Supreme
Court of Canada's first pronouncement on and interpretation of s. 15(2) of the Canadian
Charter.
The facts
In Lovelace the appellants were members of various First Nation communities who sought access to the proceeds (First Nations Fund) of Ontario's first reserve-based casino. In the 1990s, various First Nations bands approached the Ontario government for the right to control reserve-based gaming activities and use the proceeds towards strengthening band
http://www.gojobs.gov.on.ca/OurRecraitment.asp. 365 http://www.gojobs.gov.on.ca/OurRecruitment.asp. 366 Under the Indian Act, "reserve" (a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and (b) except in subsection 18(2), sections 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 58 to 60 and the regulations made under any of those provisions, includes designated lands.
GVanita Goela (2008) 60 economic, social and cultural development.367 The Ontario government informed the appellants in 1996 that only Ontario First Nations communities registered as bands under the Indian Act could receive the casino's proceeds. Since the appellant communities were not registered as bands, were non-status and did not have reserve lands, they were not entitled to proceeds from the First Nations Fund.
The appellants argued that Ontario's refusal to include them in the First Nations Fund negotiations violated their equality rights under s. 15(1) and that s. 15(2) could not be invoked as a defence. The Attorney General of Ontario (AGO) argued that s. 15(2) did act as a defence to any claim of a violation of s. 15(1). However, the Court decided that s. 15(2) did not in fact act as a defence. Rather, the impugned government program should be evaluated in terms of the s. 15(1) analysis articulated in law.368
After reviewing the case's judicial history and the lower courts' decisions, the Supreme
Court of Canada stated the three legal issues for consideration in the appeal: 1) Whether the exclusion of the appellant aboriginal groups from the First Nations Fund and negotiations on the grounds that they are not registered as Indian Act bands violate s. 15 of the Canadian Charter,
2) If the answer is yes, is the violation justified under s. 1 of the Canadian Charter, and 3) is the exclusion ultra vires the power of the province under the Constitution Act, 18671
A "band" is defined under the Indian Act as a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act. An "Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian. 368 Lovelace, para.s 91, 96-97, 105, 108. 369 Section 1 states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. See the test for a s. 1 justification in R. v. Oakes, [1986] 1 S.C.R. 103: (Is the limit prescribed by law, is the object of the law pressing and substantia], is the measure rationally connected to the objective and the impairment minimal, is the limit reasonable and justifiable in a free and democratic society).
©Vanita Goela (2008) 61
Justice lacobucci delivered the unanimous 7 judge decision. For the purposes of this paper issue #3 will not be discussed, except that the Supreme Court of Canada found that First
Nations Fund to be intra vires the province's constitutional jurisdiction.370
The analysis
lacobucci, J. began the analysis with a synthesis of equality jurisprudence and basic principles of s. 15(1), then engaged in the relationship between s. 15(2) and (1). The synthesized approach outlined by lacobucci, J, requires that the determination of discrimination be grounded in three questions: 1) does the law, program or activity imposes differential treatment between the claimant and others; 2) is this differential treatment based on one or more enumerated or analogous grounds; and 3) does the impugned law, program or activity has a purpose or effect that is substantively discriminatory.371
This inquiry must be interpreted in a purposive and contextual manner to realize s.
15(l)'s remedial purpose. The main focus of the inquiry is to establish whether a conflict exists between the purpose and effect of an impugned law and the purpose of s. 15(1). The central goal of the provision is to protect against the violation of essential human dignity, as
'in A described in Law v. Canada, the authoritative case on s. 15(1).
The inquiry into discrimination must involve the application of contextual factors and a comparative analysis which considers the context of the claim and the claimant.375 The appropriate comparator and the contextual factors must be evaluated from the reasonable perspective of the claimant.376 Furthermore, s. 15(1) is not limited to distinctions in legislation
370 Lovelace, paras. 109-111. 371 Lovelace, paras. 53-55. 372 Lovelace, para. 55. 373 Lovelace, paras. 53-55. 374 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law]. 375 Lovelace, para. 55. 376 Lovelace, para. 55. eVanita Goela (2008) 62 but also includes ameliorative programs.377 As a result, the AGO's First Nations Fund initiative is open to Charter scrutiny.
The Supreme Court of Canada rejected the relative disadvantage approach which would assess the claimant in relation to a comparator group.379 The Court cited Law in support of this conclusion, where the Supreme Court of Canada stated that there should not be a strict dichotomy between the advantaged and disadvantaged.380 But, the approach would be inappropriate in Lovelace, since the claimants and the comparator groups are both historically disadvantaged.381 Assessing relative disadvantage would also be inconsistent with the substantive quality analysis and would pit one disadvantaged group against another.382
Although distinctions may be discriminatory, substantive equality may require such distinctions to take into account the actual circumstance of an individual with social, political and economic situations. As a result, s. 15(1) is to prevent discrimination but also to ameliorate conditions for disadvantaged persons.384 Iacobucci, J. further noted that the concept of underinclusiveness within the context of equality to this point in jurisprudence has only dealt with benefit schemes, but that under-inclusiveness may violate equality.385
(a) Comparator group
The Lovelace appellants claimed that the comparator groups should be registered bands and rural non-registered aboriginal communities. The Be-Wab-Bon appellants claimed that the comparator groups should be status Indians and non-status Indians and Metis. Because of the
377 Lovelace, para. 56. Lovelace, para. 56. Lovelace, para. 59. Lovelace, para. 58. 381 Lovelace, para. 59. 382 Lovelace, para. 59. 83 Lovelace, para. 60. 384 Lovelace, para. 60. Lovelace, para. 60.
GVanita Goela (2008) 63 diversity in living conditions for the parties, Iacobucci, J. concluded that the appropriate comparator groups would be band and non-band aboriginal communities.
(b) Differential treatment and grounds
The Ba-Wab-Bon appellants claimed that they were excluded on the basis of race and ethnicity. The Lovelace party claimed that non-registration under the Indian Act is tied to a longstanding cultural, community and personal identity of a group of individuals constituting a discrete and insular minority within the larger aboriginal population. They further argued that their exclusion is constructively immutable given the onerous nature of federal policies relating to band registration. Iacobucci, J. did not engage in a determination of the grounds of discrimination as he found that there was no discrimination. However, he did conclude that there was differential treatment since the province of Ontario confirmed on May 2, 1996, that the appellants were excluded from a share in the First Nations Fund and any related negotiation process.
(c) Contextual analysis of discrimination
At the third stage of the inquiry, Iacobucci listed the four contextual factors which must be examined in the discrimination analysis: i) pre-existing disadvantage, stereotyping, prejudice, or vulnerability, (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity.386 On the basis of these contextual factors, Iacobucci, J.
TOT concluded that no discrimination exists through the operation of the casino program.
Pre-existing disadvantage, stereotyping, prejudice, or vulnerability
386 Lovelace, para. 68. 387 Lovelace, para. 68.
GVanita Goela (2008) 64
(i) With respect to the first contextual factor, Iacobucci recalled that this is not a race to the bottom and that the claimants are not required to show that they are more disadvantaged than the comparator group.388 All aboriginal people suffer from stereotyping, prejudice, high rates of unemployment and poverty, and disadvantage in relation to education, health and housing.389
However, the two appellant groups face unique disadvantages from being excluded from the
Indian Act: (a) a vulnerability to cultural assimilation, (b) a compromised ability to protect their relationship with traditional homelands; (c) a lack of access to culturally-specific health, educational, and social service programs, and (d) a chronic pattern of being ignored by both federal and provincial governments.390
The appellants further added that these disadvantages were exacerbated by the stereotype that they are "less aboriginal" and less worthy of recognition than other aboriginal peoples.
Iacobucci, J. accepted that the appellants were stereotyped but that the appellants failed to establish that the First Nations Fund stereotyped against them. The distinction corresponded to the situation of the individuals it affected and the exclusion did not undermine the ameliorative purpose of the program. The First Nations Fund did not conflict with s. 15(1).392
Correspondence, or lack thereof, between the ground(s) on which the claim is
based and the actual need, capacity, or circumstances of the claimant or others
(ii) With respect to the second contextual factor, Iacobucci, J. stated that it is necessary to recognize how the First Nations Fund is embedded in the overall casino project.39 The province did not unilaterally allocate the First Nations Fund from its consolidated revenue pool; it was a partnered initiative. The program was designed to address several issues: (i) to reconcile the differing positions of the province and First Nations bands with respect to the need
388 Lovelace, para. 69. Lovelace, para. 69. 390 Lovelace, para. 70. 391 Lovelace, paras. 71-73. 392 Lovelace, para. 73. 393 Lovelace, para. 74.
GVanita Goela (2008) 65 to regulate reserve-based gambling activities, (ii) to support the development of a government- to-government relationship between First Nations bands and the provincial government, and (iii) to ameliorate the social, cultural and economic conditions of band communities.394
Iacobucci, J. acknowledged that the appellants also had similar needs to ameliorate the poor social, cultural and economic conditions in their communities. However, he distinguished this claim on the basis that correspondence consideration requires more than establishing a common need. If common need were the basis of the programs, government would be placed in the position of ranking populations without paying attention to the unique circumstances and capabilities of potential program beneficiaries.396 The appellants did not have a land base, due to cultural considerations and exclusion from the Indian Act regime.397 On the other had, the
Casino was designed to be located on a reserve due to limited economic opportunities on- reserve and constraints on land use under the Indian Act.39*
The Lovelace appellants had no evidence of involvement in gaming activities, whereas the program's focus was on resolving outstanding gambling issues with these aboriginal communities. The Be-Wab-Bon appellants also did not have any ongoing dispute regarding illegal gaming activities to be resolved.
From an assessment of the needs, capacities and circumstances in correspondence to the program, Iacobucci, J. found that the appellants had different relations to the land, government and gaming from those of the casino program.
Each aboriginal community undertook distinct self-government initiatives.400 The appellants, except for one nation, were seeking self-government outside of the Indian Act
394 Lovelace, para. 75. 395 Lovelace, para. 75. 396 Lovelace, para. 75. 397 Lovelace, paras. 75-76. 398 Lovelace, para. 76. 399 Lovelace, para. 77. 400 Lovelace, para. 81. eVanita Goela (2008) 66 framework. The Lovelace appellants had made individual assertions and proposals to the provincial government and the Metis had pursued negotiations with the province. But, the First
Nations bands had pursued an agreement with the province which became a central basis for the casino project.
Iacobucci, J. stressed that the casino project is a targeted ameliorative program but also a partnered program with representatives of the First Nations bands having significant decision making input; this is distinct from a benefits program. As such, there is a high degree of correspondence between the program and the actual needs, circumstances and capacities of the bands.401
The ameliorative purpose or effects of the impugned law, program or activity
upon a more disadvantaged person or group in society
(iii) With respect to the third contextual factor, Law outlined that when an ameliorative program accords with the purpose of s. 15(1), the exclusion will likely not violate the human dignity of the relatively more advantaged group. However, as this case dealt with the claimant and targeted group both being disadvantaged, Iacobucci, J. extended the ameliorative purpose analysis to include the excluded group in a situation of disadvantage. This ensured, he noted, that the analysis would remain focused on whether the exclusion conflicts with the purpose of s.
15(1) and directed on away from reducing the equality analysis to a balancing or measuring of relative disadvantage. In this case, the allegations were that the ameliorative program is underinclusive. As a result, exclusion from the program would be less likely to be associated with stereotyping or stigmatization or conveying the message that the excluded group is less worthy of recognition in the larger society.403
Lovelace, para. 82. 2 Lovelace, para. 85. 3 Lovelace, para. 86.
©Vanita Goela (2008) 67
Iacobucci, J. concluded that the ameliorative purpose of the casino program and the First
Nations Fund had been established: the First nations Fund would provide bands with fiscal resources to ameliorate social, health, cultural, education and economic disadvantages. This would also assist in supporting the bands in self-government and self-reliance and to remove historical disadvantage and enhance the dignity and recognition of bands in Canadian society.
Iacobucci, J. thus concluded that the First Nations Fund had a purpose consistent with s. 15(1) of the Canadian Charter and that the exclusion of the appellants did not undermine this purpose since it was not associated with a misconception as to their actual needs, capacities and
405 circumstances.
The nature and scope of the interest affected by the impugned government
activity
(iv) With respect to the last contextual factor, Iacobucci, J. stated that the program did not result in a lack of recognition of the appellants as self-governing communities. The First
Nations Fund did not demean the appellants' human dignity.406
The relationship between s. 15(1) and (2)
Justice Iacobucci stated that both the appellants' and respondent's concerns were addressed by the s. 15(1) analysis itself.407 The respondent submitted that s. 15(2) acts to protect ameliorative programs and that the Canadian Charter should be interpreted to support the amelioration of specific targeted groups. The respondents argued that s. 15(2) has an independent role to play within s. 15 in situations involving targeted ameliorative programs.
Iacobucci, J. stated that these arguments had been addressed by a consideration of the
Lovelace, para. 87. Lovelace, para. 87. Lovelace, paras. 88-90. Lovelace, para. 92.
©Vanita Goela (2008) 68 correspondence factor under s. 15(1). Nevertheless, he continued with a discussion of the relationship between s. 15(1) and (2).
Iacobucci, J. mentioned that the Supreme Court of Canada has not defined the scope or content of s. 15(2) substantively or independently of s. 15(1), but that s. 15(2) provides a basis that the equality right is to be understood in substantive rather than formalistic terms.
Iacobucci, J. explained that the court was to deal with two competing approaches to understand the application of s. 15(2): one where s. 15(2) is an interpretive aid to s. 15(1) and the other where s. 15(2) is an exemption or defence to the applicability of the s. 15(1) discrimination analysis.408 Another interpretation stems from the decision of Roberts from the
Ontario Court of Appeal (OCA) which dealt with s. 14(1) (the affirmative action provision) of the OHRC.409 The OCA stated that s. 14's purpose was (i) the exemption of affirmative action programs from review, and (ii) the promotion of substantive equality. However, given the need to promote substantive equality, s. 14(1) could only be invoked as an exemptive clause in situations where a rational connection exists between the prohibited ground of discrimination and the program.410
Iacobucci, J. noted that the "rational connection" test in Roberts "squarely matches" the approach in examining the "correspondence factor" in the contextual analysis. Roberts started with the premise that ameliorative programs are to be regarded as consistent with the s.
14(1) goal of promoting substantive equality. For this reason, Iacobucci, J. stated that this approach grounds an understanding of s. 15(2) as confirming the substantive equality approach of s. 15(1). He cautioned though, that future equality jurisprudence may find that s. 15(2) may be independently applicable to a case.412
408 Lovelace, para. 97. 409 Ontario Human Rights Commission v. Ontario, 19 O.R. (3d) 387 (Ont. C.A.) [Roberts]. 410 Lovelace, para. 99. 41' Lovelace, para. 100. 412 Lovelace, para. 100.
(QVanita Goela (2008) 69
In conclusion, Iacobucci, J. stated that the plain meaning of the language in these subsections is that s. 15(2) is confirmatory and supplementary to s. 15(1). The s. 15(2) phrase
"does not preclude" cannot be understood as language of defence or exemption, but that s. 15(1) includes a special program. Section 15(2) also acts as an interpretive aid to s. 15(1) to ensure internal coherence of the Canadian Charter,413 This also allows the possibility of a s. 1 review.
However, Iacobucci, J. reiterated that this matter may be reconsidered again in the future.414
R. v. Kapp (2008) and the revival ofs. 15(2)
The Supreme Court of Canada recently pronounced on the preferred approach of a s.
15(2) analysis in the decision of R. v. Kapp.415 This is only the second time s. 15(2) has been judicially considered by the Supreme Court of Canada. Kapp is a criminal matter in which the appellants claimed a violation of their equality rights. The Supreme Court of Canada's 9 judges were unanimous in upholding a government program which targeted aboriginal fishers in British
Columbia at the exclusion of non-aboriginals. Chief Justice McLachlin and Justice Abella delivered the majority reasons for judgement. Only Justice Bastarache delivered a minority judgement with respect to the application of s. 25 of the Canadian Charter, which will not be discussed for the purpose of this paper.
The facts
The respondent federal government [Crown] initiated a policy to give aboriginal people a share of the commercial fishery. The policy was called the Aboriginal Fisheries Strategy and included pilot sales programs which issued communal fishing licenses pursuant to the
Aboriginal Communal Fishing Licences Regulations416 [ACFLR]. The ACFLR grant communal licences to "aboriginal organizations" which are defined as including "an Indian band, an Indian
413 Lovelace, para. 106. 414 Lovelace, para. 108. 4,5 Kapp. 416 Kapp, para. 7.
GVanita Goela (2008) 70 band council, a tribal council and an organization that represents a territorially based aboriginal community". The licence permitted fishers designated by the bands to fish for sockeye salmon between 7h00 on August 19, 1998, and 7h00 August 20, 1998, and to use the fish caught for food, social and ceremonial purposes and for sale.418 Some of the fishers were also licensed commercial fishers entitled to fish at other openings for commercial fishers.419
The appellants were commercial fishers who were excluded from the fishery during the
24 hours allocated to the licensed aboriginal fishers.420 The appellants participated in a protest fishery during the prohibited and were charged with fishing during a prohibited time.421 The appellants argued that the ACFLR, related regulations and the Aboriginal Fisheries Strategy violated their s. 15 equality rights on the basis of race.422
The Crown asserted that the general purpose of the licensing program was to regulate the fishery and ameliorate the conditions of a disadvantaged group. The Supreme Court of Canada dismissed the appeal and upheld the constitutional validity of the licensing program.423
The s. 15(2) analysis
The Court emphasized that ss. 15(1) and (2) are a pair in promoting substantive equality. Section 15(1) is an anti-discriminatory provision. It aims to prevent discriminatory distinctions that impact adversely on the enumerated groups or the groups based on analogous grounds. An additional mechanism to combat discrimination is through s. 15(2)
Kapp, para. 7. 4'8 Kapp, para. 8. 419 Kapp, para. 8. 420 Kapp, para. 9. These commercial fishers were also licensed to fish in Area "E": Supreme Court of Canada, Factum of the Respondent, Her Majesty the Queen, in Kapp, para. 7. 421 Kapp, para. 9. 422 Kapp, para. 2. 423 Kapp, para. 3. 424 Kapp, para. 16. 425 Kapp, para. 16. 426 Kapp, para. 16.
©Vanita Goela (2008) 71 which enables the government to develop programs to help disadvantaged groups, without the fear of as. 15(1) challenge.427
The Court recalled the two part test to determine discrimination from the Andrews decision, the seminal Supreme Court of Canada case on s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?428 The Court viewed this test similar in substance to the test which was later outlined in Law: (1) pre-existing disadvantage, if any, of the claimant group; (2) degree of correspondence between the differential treatment and the claimant group's reality; (3) whether the law or program has an ameliorative purpose or effect; and (4) the nature of the interest affected.429 The Court suggested that the third factor relates to the meaning of s. 15(2).430
The Justices further elaborated on two concepts outlined in Andrews as having a discriminatory impact: (1) the perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds; and
(2) stereotyping on the basis of these grounds that results in a decision that does not correspond to a claimant's or group's actual circumstances and characteristics.431 On the other hand, Law defined discrimination as having an impact on the human dignity of members of a claimant group.432 The Court averred the difficulties of employing human dignity as a legal test, as it is abstract and subjective.433
As background to the s. 15(2) analysis, the Court reminded the reader that under
Andrews, s. 15 does not mean identical treatment, as identical treatment may produce
427 Kapp, paras. 16, 25. 428 Kapp, para. 17; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. 429 Kapp, para. 19. 430 Kapp, para. 23. 431 Kapp, para. 18. 432 Kapp, para. 19. m Kapp, paras. 21,22.
GVanita Goela (2008) 72 inequality.434 Differential treatment is not necessarily discriminatory, and likewise not every distinction is discriminatory.4 5 As such, programs designed to ameliorate disadvantaged groups will inevitably exclude individuals or other groups, but will not amount to "reverse discrimination".
The Court accepted the appellants' claim that they were treated differently on the basis of the enumerated ground of race.437 Next, the Court accepted that the communal fishing licence which was issued pursuant to the ACFLR qualified as a law, program or activity within the meaning of s. 15(2).438 The final question was whether the licence "has as its object the amelioration of conditions of disadvantaged individuals or groups".439 Thus, the Court launched straight into a s. 15(2) analysis, without examining the program under s. 15(1) first.
The Court reiterated that the purpose of s. 15(2) is remedial and enables state efforts to develop schemes which assist disadvantaged groups, especially given the phrase "does not preclude" in the provision.440
The Court revisited Lovelace and Iacobucci, J.'s analysis of the relationship between s.
15(1) and (2). Iacobucci, J. was reluctant to give s. 15(2) any independent force, but did not preclude its possibility in future litigation.441 As noted above and by the Court, Iacobucci, J. offered two possible approached to the interpretation of s. 15(2): either it is an interpretive aid to s. 15(1) or an exemption from the operation of s. 15(1).442 He favoured the first approach.
434 Kapp, para. 27. 435 Kapp, paras. 27-28. 436 Kapp, para. 28. 437 Kapp, para. 29. 438 Kapp, para. 30. 439 Kapp, para. 30. 440 Kapp, para. 33. 441 Kapp, para. 34 and Lovelace, para. 108. 442 Kapp, para. 35.
©Vanita Goela (2008) 73
The Kapp Court introduced a third approach which treats s. 15(2) as an independent provision. If the government can demonstrate that an impugned program meets the criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis at all.444 The Court recalled that since s. 15(1) prevents discrimination and s. 15(2) enables governments to pro-actively combat discrimination, the two provisions confirm each other and promote substantive equality.445
Most importantly, the Court stated that s. 15(2) "supports a full expression of equality, rather than derogating from it".446 The Justices, thus, endorsed an individual role for s. 15(2) within the context of the equality guarantee.
In order to appropriately interpret s. 15(2), the Court stated that s. 15(1) should be read in a manner that does not find an ameliorative program aimed at combating disadvantage to be discriminatory and a breach of s. 15. 7 The Court rejected the previous approach to s. 15(2) where a program would be found discriminatory before saving it as ameliorative.448 The Court reversed the steps in the analysis and stated that if a government fails to demonstrate that a program falls under s. 15(2), the program should then be scrutinized under s. 15(1) for discrimination.449
Therefore, the Court outlined the s. 15(2) test as follows:
"A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds."450 The Court qualified the test by stating that it is subject to future refinement, since s.
15(2) jurisprudence is still developing.45 1
443 Note that this was the government's position in Lovelace. 444 Kapp, para. 37. 445 Kapp, para. 37. 446 Kapp, para. 37. 447 Kapp, para. 38. 448 Kapp, para. 40. 449 Kapp, para. 40. 450 Kapp, para. 41. 451 Kapp, para. 41.
©Vanita Goela (2008) 74
Next, the majority provided an interpretation of three phrases/terms within the text of s.
15(2) as part of its analysis: has as its object; amelioration; and disadvantaged.
"Has as its object"
The Court inquired as to whether a court should look to the purpose or the effect of the impugned legislation and whether a program should have an ameliorative purpose as its sole object. With respect to the sole object question, the Court found no justification for requiring a program to have amelioration as it sole purpose, since several goals may be implemented in a scheme.452
The Court favoured a purpose based approach based on the language on the provision and goal of enabling governments to combat discrimination. The question to ask is "was the government's goal in creating that distinction to improve the conditions of a group that is disadvantaged?"453 The Court suggested that in order to determine this intention, it may be necessary to consider statements made by drafters of a program and "whether the legislature chose means rationally related to that ameliorative purpose, in the sense that it appears at least plausible that the program may indeed advance the stated goal of combatting disadvantage".454
In order to prevent the inquiry from becoming effect based, the Court suggested that the analysis should be framed as follows:
"Was it rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to that purpose? For the distinction to be rational, there must be a correlation between the program and the disadvantage suffered by the target group. Such a standard permits significant deference to the legislature but allows judicial review where a program nominally seeks to serve the disadvantaged but in practice serves other non-remedial objectives."455 "Amelioration "
Kapp, paras. 50-52. Kapp, para. 48. Kapp, para. 48. Kapp, para. 49.
(OVanita Goela (2008) 75
Based on different applications and perhaps misuse of the term amelioration by past courts, the Supreme Court of Canada advised that this term should be given careful attention in evaluating programs under s. 15(2).456 For guidance, they suggested that laws which are designed to restrict or punish behaviour would not qualify for s. 15(2) protection and that the focus should not be on the effect of a law.457 If a law has no plausible or predictable ameliorative effect, it may also not qualify for protection.458
"Disadvantaged"
The Court stated that the term disadvantaged encompasses vulnerability, prejudice and negative social characterization.459 They further distinguished the purpose of s. 15(2) from broad societal legislation: the first protects a specified and targeted disadvantaged group, whereas the latter may take the form of a social assistance program, for example.460 Finally, the
Court stated that not all members of the group need to be disadvantaged if the group as a whole has experienced discrimination.461
In applying the s. 15(2) analysis to the facts before them, the Court found that the fishing licence related to the goals of negotiating solutions to the aboriginal fishing rights claims, the provision of economic opportunities to native bands and supporting their self-sufficiency.462
These goals addressed the social and economic disadvantage of the native bands, which rooted in history, continues to exist.463 As such, the means chosen to achieve the purpose of the program were rationally connected and corresponded to the purpose. The Court reiterated that the fact that some individual members of the bands may not experience disadvantage does
456 Kapp, para. 54. 457 Kapp, para. 54. 458 Kapp, para. 54. 459 Kapp, para. 55. 460 Kapp, para. 55. 461 Kapp, para. 55. 462 Kapp, para. 58. ^ Kapp, paras. 58-61. 464 Kapp, paras. 58, 60.
GVanita Goela (2008) 76 not negate the group disadvantage suffered.465 As a result, the Court found the government program to be constitutional.
Commentary
In Canada, the concept of affirmative action is still contested and questioned. It is not assumed that a government program will be immune from judicial scrutiny merely on the claim that the plan is aimed at ameliorating the disadvantaged. The intentions are judicially examined.
Lovelace and Kapp provide two divergent approaches to interpreting s. 15(2) and examining the constitutional validity of an affirmative action program. Both cases involved aboriginal groups who were the beneficiaries of the government programs which aimed at economic amelioration.
However, the economic goals were related to the social and cultural advancement of aboriginal communities and not mere poverty alleviation.
Lovelace introduced the problem of competing group demands within the context of constitutionally sanctioned affirmative action. The case is particular in that the appellant and the beneficiary of the respondent's affirmative action program both belonged to a disadvantaged racial group which is constitutionally recognized; aboriginals. However, it was only the Kapp court which acknowledged that the comparator groups were differentiated on the basis of race.
According to Lovelace, an affirmative action program can be assessed without s. 15(2).
With respect to the text of s. 15(2), Iacobucci, J. never relied on its language. Rather, he negated its role in the assessment of the appellants' claim by completely restricting any analysis of the affirmative action program to s. 15(1). The Court rendered s. 15(2) almost redundant, however not completely, since Iacobucci, J. stated that s. 15(2) acts to interpret s. 15(1), is complementary to s. 15(1) and confirms the substantive equality approach in s. 15(1). But despite the complementary role of s. 15(2), throughout each stage of the analysis, the Lovelace
465 Kapp, para. 59. 466 Kapp, para. 61.
©Vanita Goela (2008) 77
Court did not refer to it. In fact, Iacobucci, J. declared that the respondent's s. 15(2) arguments had been fully addressed by the correspondence factor under s. 15(1).
The correspondence factor ("the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others") is similar to a rational connection test or an inquiry into the goals of the government program. Iacobucci, J. commented on the design of the government program and how it was established to ameliorate the social, cultural and economic conditions of band communities, which clearly related to the goals or object of the program. However, Iacobucci, J. still did not refer to the language of s. 15(2) where it states "has as its object".
This almost invisible role of s. 15(2) is further highlighted in the ameliorative purpose factor ("the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society"). This factor would appear to be the most relevant one for the Court to refer to as an analysis under s. 15(2) since the word "ameliorative" is also found in its text. Instead, Iacobucci, J. limited the analysis of ameliorative purpose to s.
15(1) to avoid measuring relative disadvantage between the competing disadvantaged groups.
He then concluded that the purpose of the government program was consistent with s. 15(1).
However, underlying the whole notion of whether the appellants in Lovelace were the truly disadvantaged based on a distinction within the aboriginal category is the fact that
Iacobucci, J. did not even determine the grounds of discrimination because he had already concluded that there was no discrimination. As a result, from Lovelace there is no guidance from the Supreme Court of Canada as to how race in particular as a ground of discrimination would be treated under s. 15(2).
Nevertheless, Iacobucci, J. provides some direction as to how aboriginal people as a race might be regarded in an affirmative action challenge based on equality. From the facts of the case, the casino program was not solely an economic initiative. Although it was to generate
©Fanita Goela (2008) 78 income for the aboriginal bands, the income was to uplift the social, cultural and economic conditions of the band members. Likewise, in the Indian context, reservations for the
OBC/SC/ST were not designed to alleviate poverty. They were implemented to social and educational backwardness, but which were linked to economic backwardness.
The Kapp court's approach to s. 15(2) differed greatly from Lovelace. The Supreme
Court of Canada attached relevance to s. 15(2) by giving it an independent role in the Canadian
Charter. The bench noted that the third factor from Law (whether the law or program has an ameliorative purpose or effect) relates to the meaning of s. 15(2), whereas, Iacobucci, J. stated that the second factor of correspondence under s. 15(1) related to any arguments which were raised by the AGO, such as s. 15(2) having an independent role to play in protecting ameliorative programs.
The Kapp court took an almost inverse approach to the position of the two provisions in s. 15. This court noted that if the government can demonstrate that an impugned program meets the s. 15(2) criteria, it may be unnecessary to conduct a s. 15(1) analysis. On the other hand,
Iacobucci, J. did not give any force or role to s. 15(2), restricting any analysis of an affirmative action program entirely to s. 15(1).
The Kapp test places the onus of proof on the government to show that the ameliorative program meets the s. 15(2) criteria. In Lovelace, the onus is on the applicants to show whether the government program violates s. 15. If there is a violation, it appears as though the justification would be contained in the correspondence factor as a rational connection test, under s. 15(1), however, Iacobucci, J. noted that this approach allows for a s. 1 review. Based on either legal test, it is unclear whether any s. 1 analysis would ever be required or if it is subsumed by the two part test within s. 15(2).
467 Kapp, para. 108.
GVanita Goela (2008) 79
Michael Peirce has suggested that because s. 15(2) does not guarantee a right or a freedom, s. 1 is not engaged. According to Peirce, if an ancillary feature of a government program is found to be underinclusive and reviewed by s. 15(1), that feature may be upheld by s.
1. The Kapp court explained that if a program fails under s. 15(2) that it can then receive s.
15(1) scrutiny, however, they did not discuss any further application of s. 1. At this point, it appears as though s. 15(2) contains an internal balancing which would not necessitate any s. 1 analysis.
With respect to how a government affirmative action program should be reviewed, it is unclear whether the Court would use a subjective or objective test. The Court in Kapp suggested that the intention of the drafters of the program should be examined in order to determine "whether the legislature chose means rationally related to that ameliorate purpose, in the sense that it appears at least plausible that the program may indeed advance the stated goal of combating disadvantage" (my emphasis).
The word "rationally" implies an objective test; what a reasonable person would find rational. However, the words "plausible" and "may" appear to import a subjective test into the question of whether the government program meets its objected goal. Inevitably, the Court is forced to examine in a hypothetical fashion whether the program's purpose would have the effect of combating disadvantage, despite the Court stressing that the focus should be solely purpose based. In this manner, s. 15(2) is a unique provision in that the court must look at some evidence which is based on the government's intent, but not at hard data on the effects of the affirmative action program in order to conclude whether it is constitutional. Normally, such a record would be considered to be incomplete.
468 Michael Peirce, "A progressive interpretation of subsection 15(2) of the Charter", (1993), 57 Sask. L. Rev. 263 at 313 [Peirce]. 469 Peirce at 313.
GVanita Goela (2008) 80
The Kapp court has breathed life into a constitutional provision which up until this decision was left motionless and underutilized by the Supreme Court of Canada. From a preliminary examination, the revival of s. 15(2) appears to be more applicant friendly than the legal test formulated in Lovelace. First, the burden of proof is now on the government to demonstrate that its affirmative action programs truly are aimed at combating disadvantage.
This eases some of the evidence gathering necessities off of an applicant. Second, the steps enunciated by the Kapp court in assessing whether a government program meets s. 15(2) requirements are clear. The components of the legal test reflect the actual text of s. 15(2). This renders the provision perhaps more intuitive and more easily interpreted by the reader. Third, based on the legal test for s. 15(2), it seems that although the Court will scrutinize a government program for constitutional validity, because the Court will look to the purpose and the intent of the program, they will be mindful of deferring to the government.
Based on these changes, it is apparent that every challenge to a government program under s. 15(2) will not necessarily be successful merely because it is underinclusive. This was also acknowledged by Iacobucci, J. when he stated that the exclusion of the appellants did not undermine the purpose of the casino project because it did not misconceive their actual needs, capacities and circumstances, although he was referring solely to s. 15(1). This allows the government the freedom and space to create ameliorative programs for selected groups, even though they may exclude others. Rather than having a chilling effect then, the Kapp decision might indirectly encourage governments to implement more affirmative action programs.
A Canadian creamy layer?
The Lovelace Court rejected the relative disadvantage approach for appropriate reasons; there should not be a race to the bottom between disadvantaged groups in order to become beneficiaries of government goods. This is indeed valid reasoning for a diverse society.
However, this language possibly forecloses the opportunity to examine whether a creamy layer
GVanita Goela (2008) 81 exists within the aboriginal category or any racial category, or whether one should even be delineated. But it is not clear that the Lovelace Court had closed the door to a creamy layer analysis.
Iacobucci, J. noted that an equality challenge must be assessed from the reasonable perspective of the claimant in conjunction with human dignity. The appellants in Lovelace argued that apart from disadvantages suffered by all aboriginals, their circumstances were exacerbated by the stereotype that they are "less aboriginal" and less worthy than other aboriginal peoples because they lived off-reserve and were not registered band communities or non-status Indians and Metis. They also argued that they were differentiated by the AGO on the basis of race and ethnicity, along with being non-registered Indians. They claimed that their exclusion was constructively immutable given the federal band registration regime.
The Lovelace Court did not discuss whether the appellant aboriginals had immutable characteristics, however this would have been an instructive inquiry as it may have placed certain aboriginal peoples in an "immutable" racial or ethnic category of their own within the s.
15(1) list, whereas race generally is an immutable characteristic and an enumerated ground of discrimination.470
Iacobucci, J. acknowledged that the casino program involved a question of underinclusiveness. The appellants wanted to be included in the program but were excluded due to their status and the nature of their outstanding issues with the government. But they were not excluded based on any constitutional definition of aboriginal. Section 35 of the Constitution
Act, 1982, states that aboriginals are Indians, Inuit, and Metis. The exclusion the appellants referred to was partially based on the requirements of the Indian Act. However, based on the facts of Lovelace, these distinctions do not appear to be permanent prejudicial characteristics.
Since the casino program was aimed at a certain type of aboriginal group and certain type of
470 See above discussion on caste and race.
(QVanita Goela (2008) 82 problem, such as gambling, it appears that there is no permanent hierarchy within the aboriginal category or a creamy layer.
Framed within the Indian context, the appellants perhaps had an argument that within the racial category of aboriginal, the status Indians, members of registered bands and on-reserve
Indians were the creamy layer of the aboriginals. However, what then would the criteria for the creamy layer be? Would the criteria merely be belonging to a band, living on-reserve and being
status Indian? These factors could be compared to the social, educational and economic criteria required for OBC identification. But based on Lovelace, should there even be a creamy layer
for aboriginals?
The rationale for excluding the creamy layer in India is to identify the true OBCs. It is
also necessary because there are limited goods and services which need to be preserved for the truly disadvantaged; seats for higher education and government employment. These scarce
resources are inevitably linked to perceived or real economic prosperity. In the case of
Lovelace, although the casino program was created to generate income, the resources required to
implement the program are not unlimited. The government could enter into other agreements
with the appellant aboriginal groups regarding economic activity or self-government, however,
they would be required to be selective. As noted by Iacobucci, J, the casino program was not just a targeted ameliorative program, it was also a partnered initiative and not a benefits
scheme.471
In Kapp, the fishing licenses related to a limited natural resource. The Minister of
Fisheries and Oceans manages the salmon fishery for the good of all Canadians and allocates
this scarce resource among different user groups - commercial fishers, aboriginal communities
and recreational fishers.472 To present a snapshot of the amount of salmon at issue, in 1998, the
471 Lovelace, para. 82. 472 Supreme Court of Canada, Factum of the Respondent, Her Majesty the Queen, in Kapp, para. 1.
QVanita Goela (2008) 83 estimated total Fraser River Sockeye run size and harvesting was 10,873,000. ,J The breakdown within the estimated numbers were: total commercial catch 1,278,000; total First
Nation catch 844,000; total sport catch 18,000; total Area "E" commercial gillnet catch 268,000; and the Pilot sales catch 57,892.474 The aboriginal designated fishers who could fish for 24 hours between August 19 and 20, 1998, caught 41,175 sockeye, and the commercial fishers harvested 136,000 sockeye during the commercial opening the following day.475
Furthermore, the aboriginal population in Canada is growing. Based on the 2006 census data, there were 1,172,709 aboriginals in Canada. Between 1996 and 2006, the Aboriginal population grew by 45%, compared with 8% for the non-Aboriginal population.476 However, they only make up about 3.7% of the Canadian population (31,612,897).477 With respect to visible minorities, the total population is 5,068,090 or 16% of Canada's population: 1,262,865
South Asians; 1,216,570 Chinese; 783,795 Blacks; 410,000 Filipinos; 304,245 Latin Americans and; 239,935 Southeast-Asians.478
In comparison, in India, the total population on the 2001 census is 1,028,610,328.
The SC population is 166,635,700480 and the ST population is 84,326,240.481 There is no data on the total OBC population. The ST comprise of about 8.1% of the Indian population.
There is perhaps a link between Canadian aboriginals to the ST in India, but not the
OBC. As noted above, Jenkins has compared the ST to American-Indians in the USA, because both are indigenous and a culturally distinct group with special rights. In Canada, aboriginal peoples are indigenous, have various distinct cultures and are afforded special rights under the
473 Supreme Court of Canada, Factum of the Respondent, Her Majesty the Queen, in Kapp, para. 34. 474 Supreme Court of Canada, Factum of the Respondent, Her Majesty the Queen, in Kapp, para. 34. 475 Supreme Court of Canada, Factum of the Respondent, Her Majesty the Queen, in Kapp, para. 33. 476 http://wwwl2.statcan.ca/english/census06/release/aboriginal.cfm (50, 485 Inuit; 389,785 Metis; 698,022 First Nations). 477http://wwwl2.statcan.ca/english/census06/data/popdwell/Table.cfm?T=101. 478http://wwwl2.statcan.ca/english/census06/data/highlights/ethnic/pages/Page.cfm?Lang=E&Geo=PR&Code=01 &Table=l &Data=Count&StartRec=l &Sort=2&Display=Page. 479 http://www.censusindia.gov.in/Census_Data_200l/Census_Data Online/Population/Total Population.aspx. 480 http://www.censusindia.gov.in/Census_Data 200 l/Census_Data_Online/Population/SC_Population.aspx. 481 http://www.censusindia.gov.in/Census_Data 2001/Census_Data_Online/Population/ST Population.aspx. eVanita Goela (2008) 84
Canadian Charter and the Constitution Act, 1982. However, they also have a historically distinct geography and unique relationship with the government.
The ST are not defined in the Indian Constitution, however there are generally accepted criteria published on the Ministry of Tribal Affairs' website for determining who will be added/removed from the ST State lists, based on definitions from previous committees and commissions. The ST are considered to be the most disadvantaged, along with the SC. For a community to be specified as ST, there must be indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness. There is no comparable definition of aboriginals under the Indian Act in
Canada, however, the link which can be drawn is that the ST and aboriginals in Canada may both be considered as indigenous groups which are not necessarily part of mainstream society, have been historically marginalized, and are discriminated against.486
On this basis, I would argue that there should not be a creamy layer distinction within the aboriginal category, similarly as there is not one in India for the ST. Due to historical circumstances, the aboriginal groups have been constitutionally provided with protection and this protection should not be interpreted in a manner which will eventually reduce or diminsh
482 See Corbiere and R. v. Van der Peet, [1996] 2 S.C.R. 507. 483 This criteria is based on definitions in the 1931 census, reports of the first Backward Classes Commission 1955, the Advisory Committee (Kalekar), on the revision of SC/ST lists (Lokur Committee) 1965, and the Joint Committee of Parliament in the Scheduled Castes and Scheduled Tribes orders (Amendment) Bill 1967 (Chanda Committee), 1969. No community has been specified as Scheduled Tribe in relation to the State of Haryana and Punjab and Union Territories of Chandigarh, Delhi and Pondicherry. A Scheduled Area is not defined in the Indian Constitution. The criteria followed for declaring an area as Scheduled Area are preponderance of tribal population; compactness and reasonable size of the area; under developed nature of the area; and marked disparity in economic standard of the people. These criteria embody principles followed in declaring 'Excluded' and "Partially-Excluded Areas' under the Government of India Act 1935, Schedule B' of recommendations of the Excluded and Partially Excluded Areas Sub Committee of Constituent Assembly and the Scheduled Areas and Scheduled Tribes Commission 1961; http://tribal.nic.in/indexl.html. There is also a presumption of backwardness based on residence in exclusive territorial communities: Paramanand Singh, "Some reflections on Indian experience with policy of reservation," Journal of the Indian Law Institute, Vol. 25:1, 1983, 46 at 47. 484 Cunningham and Menon. 485 http://tribal.nic.in/indexl .html. 486 See Corbiere and Lovelace.
©Vantta Goela (2008) 85 any type of ameliorative benefits or aboriginal rights. There is no time limit or expiration date in the Canadian Charter or Constitution Act, 1982, regarding aboriginal rights. In the event that one day aboriginal people will not require ameliorative programs, the government will respond accordingly since s. 15(2) is an enabling provision and does not place any positive obligation on government to implement affirmative action. As a result, if aboriginal communities are one day no longer disadvantaged, the government would not contemplate programs which target them.
But, aboriginal constitutional rights would nevertheless remain in force, regardless of disadvantage.
Although there was no discussion regarding a privileged class within the aboriginal groups in Lovelace, the appellants argued that they belonged to a disadvantaged group and they were being excluded from the government program. Iacobucci, J. clearly stated that there would be no assessment of relative disadvantage as this would encourage a "race to the bottom", and also because he noted that the appellants and the targeted group for the program were all disadvantaged. The "race to the bottom" has also been a recognized phenomenon in India by the Supreme Court of India, as mentioned above. This is a question which the Supreme Court of India engaged in when it directed that the state sever the more disadvantaged from a disadvantaged class within the OBC by identifying a creamy layer.
On the other hand, the creamy layer distinction should apply to the enumerated ground of race under s. 15 and race as a category generally. The OBCs are comparable to (visible) racial minorities in Canada, based on the great internal variances of language, culture, religion, ethnic origin, appearance and because of immigration.487 As aboriginals have been classified as a specified race in the Canadian constitutional framework, in India the SC/ST have been specifically classified by caste and tribe. Conversely, various other racial groups such as South
Asians, East Asians or Blacks have not been categorized individually in any Canadian
487 Here, I am using some of the indicators that Jenkins used to compare the OBCs to American Hispanics.
QVanita Goela (2008) 86 constitutional document by race. Similarly, the OBC have not been listed in the Indian
Constitution.
The Kapp Court noted that to define the disadvantaged, not all members of a group need to be disadvantaged as long as the group as a whole has experienced discrimination.488 They also stated that the fact that some individual band members may not experience personal disadvantage does not negate the group disadvantage suffered by band member.489 This language appears to preclude a creamy layer assessment within the aboriginal category, but at the same time acknowledges that there may be a section of the group which is not truly disadvantaged. This opens the door wider to a creamy layer analysis.
Using the Kapp Court's test for s. 15(2), it appears that a creamy layer test could be applied in Canada. The government would need to show that the affirmative action program had an ameliorative purpose, and in the second part of the test, show that the program targets a disadvantaged group identified by an enumerated or analogous ground. The Supreme Court of
India has stated that the OBC category is only defined as such once the creamy layer is removed. Using the same procedure in the case of race under a s. 15(2) assessment, the disadvantaged targeted racial group would need to have already shed its creamy layer members to be defined as a category.
If the creamy layer assessment is used, in practical terms, the government would need to assess which members of a racial group met the threshold of being disadvantaged. An assessment of social advancement which would include a social, educational and economic test would be required in the Canadian context in order to achieve similar results to the Indian evaluation of identifying the OBC; a Canadian version of the Mandal Report.
Kapp, para. 55. 489 Kapp, para. 59.
GVanita Goela (2008) 87
The Supreme Court of India emphasized that an economic test cannot be the sole criterion for defining the creamy layer, however, they also did not provide any specific criteria which should be used. In Canada, some criteria for who would belong to a creamy layer have been alluded to by some of the authors cited above: the economically advantaged (Anand); people within a racial category who have bachelor degrees, hold managerial or professional positions, or who own high valued homes (Pager); or those who have suffered disadvantage either economically or socially (Cereste). More specifically, borrowing from some of the creamy layer criteria outlined by the NCBC in India, children of the Prime Minister or any
Cabinet Minister, children of judges of any court, white collar professionals, children of university professors, children who come from families where the gross annual income is perhaps above $150,000, or children of business executives in the private sector could be excluded from preferential policies which target disadvantage.
As noted above, the only race based identification of a group in the Canadian
Constitutional documents is the aboriginal population. The terms visible minority or race, for example, are not defined. Likewise, under arts. 15(4), (5) and 16(4), the backward classes are not listed in the Indian Constitution, but are identified by the central and state governments.
There are no separate government lists of racial groups who can be legally identified as a racial minority in Canada. In India, the state decides who is an OBC. In Canada, people self-identify as belonging to a racial category.
For racial groups other than aboriginals, the creamy layer distinction should be considered, given the fact that there is great internal variance within racial groups, which leads to the problem of overinclusion.490 However, the creamy layer concept will only be relevant depending on the affirmative action program and its goals. If the goal of affirmative action in
Canada is to prevent inequality or disadvantage and to target the truly disadvantaged, then the
490 Please see discussion in Part II.
GVanita Goela (2008) 88 creamy layer concept should be applied. If representation or diversity is the main goal of an affirmative action program, then the creamy layer concept would be inapplicable and irrelevant, as this aim of the program would merely be visual and based on optics or numbers.
It seems inevitable that a "race to the bottom" will exist whenever specialized or attractive goods are available to a limited group of people, such as jobs or seats at university.
This will occur whether there is a quota or whether the job or seats are available to increase representation. Onwuachi-Willig and John Martinez explain the issue of ethnic/racial fraud during the admissions process at universities in the USA as one type of race to the "bottom".491
White students are trying to discover minority races in their ancestry through biological testing or in another example, a woman who checked off the "Hispanic" box in her law school application claimed in her interview that she did so because she had a child with her ex-husband who was Hispanic. Onwuachi-Willig notes that these students are trying to claim a biological race which does not match their social experience. There is no reason to doubt that forms of ethnic fraud occur or would occur while people in Canada apply for jobs which are slotted for or encourage racial minority applicants.
The creamy layer assessment would not be applicable in public sector employment, as the government's hiring goals appear to be focussed on diversity and representation of Canadian society. Although public sector employment is a limited resource, the aim of the public employer is not to alleviate disadvantage, but rather to present a civil service that reflects
Canada's diverse population.
Unlike the situation in India, in Canada government may not be involved in any affirmative action policies regarding university education.492 An affirmative action plan in universities may not face judicial constitutional scrutiny under s. 15(2) unless substantial
491 Onwuachi-Willig at 1215-1220; John Martinez, "Trivializing diversity: the problem of overinclusion in affirmative action programs," 12 Harv. Blackletter L.J. 49, 1995 at 49. 492 See McKinney v. University ofGuelph, [1990] 3 S.C.R. 229.
OVanita Goela (2008) 89 government control can be found. Thus, within the Canadian Charter context, the creamy layer examination could not be applied to universities. However, it may be considered by academic administrators when tailoring equity or affirmative action policies, since the creamy layer concept may be applicable to the federal and provincial human rights instruments.
As noted above, s. 14 of the OHRC is comparable to s. 15(2) of the Canadian Charter in that it allows for special programs to relieve disadvantage. In the case where a university may implement a special program to admit students who are racial minorities, a creamy layer analysis would certainly be appropriate. As noted in the examples above in Part II, using race as a category can be overinclusive and provide benefits to people of that category who are undeserving. Admissions committees would need to set parameters for who would belong to the creamy layer, based on whether the university was seeking to alleviate disadvantage and provide equal opportunity to racial groups, or whether it was simply seeking greater numbers of racial minorities to appear representative of the population. The creamy layer assessment would not be relevant though, if the university's goal was merely representation.
Examples of individualized assessments of student applicants may involve combinations of the methods used by the Rutgers Law School-Newark, the University of Victoria Law School and Dalhousie Law School's IB&M Initiative. These law schools examined applicants' socio economic backgrounds, any adversity the student might have overcome, indigenous roots, ancestral heritage, public or community service, and cultural or economic factors, in addition to academic performance and LSAT scores. And race is only one criterion, just as caste is only one consideration when defining the OBC. In assessing whether applicants belong to the creamy layer, admissions committees may look to the suggested criteria mentioned above, such as the parents' income or occupation, or whether the applicant is already a professional. These holistic evaluations would assist the law schools in selecting the most deserving students for admission.
©Vanita Goela (2008) 90
As stated at the outset, affirmative action, preferential policies and positive discrimination are all forms in which to correct the wrongs of discrimination. In order to achieve these goals, it is necessary to exclude the creamy layer from targeted beneficiaries in order to provide the most egalitarian opportunities possible to people who have been and who continue to be marginalized.
Conclusions
Disadvantage is not static. In the Indian context, there is caste mobility as well as economic and social mobility amongst and within generations. In Canada, although one's race may remain static, an individual's social, educational and economic status may change due to opportunity. The creamy layer is a dynamic determination with an evolving membership. The concept underlying the creamy layer is to identify advantaged individuals within a disadvantaged group, in order to alleviate disadvantage. For this reason, the creamy layer notion is relevant in any diverse society such as Canada which seeks equality. It is also an essential element of a "just society".493
The creamy layer concept from the Supreme Court of India ought to be imported, examined and considered by the Supreme Court of Canada in its future hearings on s. 15(2). It is suggested that when the Supreme Court of Canada assesses the ameliorative nature of the program that it examines whether a creamy layer exists within the targeted group and whether the government has appropriately tailored the program to suit only the disadvantaged. This will permit greater scrutiny of the program in question and reveal whether or not the targeted group is in fact truly disadvantaged or in need of the special program, in order to ensure that substantive equality is pursued.
493 Ed. Thomaz S. Axworthy and Pierre Elliott Trudeau, Towards a Just Society, The Trudeau Years, (Markham: Viking, Published by the Penguin Group, 1990) at 362.
©Vanita Goela (2008)