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THE CONCEPT OF CREAMY LAYER IN SCS/STS RESERVATION IN INDIA – AN APPEAL

History of Reservation in India

The Indian sub-continent has been full of people from different ethnicity, culture, caste, etc. Some of these communities have been privileged enough to gain all the socio-economic advantages, while certain other communities have had to undergo an impending struggle to enjoy their rights. After the British era in India, these backward communities were left more backward, and the concept of equality seemed a long struggle.

The very initial concept of reservation emerged when Sir William Hunter and Jyotirao Phule conceived the notion of caste-based reservation in 1882.[1] A formal Reservation was then instituted in 1908 for castes and communities under British Rule. Even the Government of India Acts, of 1909 and 1919 contained provisions of reservation as a core concept.

Dr. Bhimrao Ramji Ambedkar, also known as the father or chief propagator of reservation in free India remarked, “Equality may be a fiction, but nonetheless one must accept it as a governing principle”. Initially, there was only reservation for the SCs and STs. But after the implication of the Mandal Commission 1991[2], which gave the recommendations for reservations, it was also extended to OBCs. The 103rd Amendment[3] further included the economically weaker section as a part of the same. 

Legal Stance of India about Reservation

Article 14[4] of our Constitution talks about the concept of Equality. But rather than believing in the traditional notion of equality, it thrives on the concept of equality should be treated equally, which supports the concept of reservation for bringing the backward classes onto an equal pedestal as others. In the case of Neil Aureilo and Ors v. UOI and Ors[5], the concept of formal equality was changed to substantive equality. In furtherance of the same, Article 15(4)[6] advances special power to make reservations of socially/educationally backward classes or SCs/STs, in matters of public employment, education, legislature, etc. This clause was added to the Constitution by way of the case, State of Madras v. Champakam Dorairajan[7], 1951, wherein the Supreme upheld the action taken by the Madras Government saying their reservation policies were against article 15(1)[8] of the Constitution. Even Article 16(4)[9] carves out criteria for reservation in the job sector. To fulfil the same, the citizen must be of a backward class and not adequately represented in the services of the state.

The case of Indira Sawhney v. UOI[10], also known as the Mandal Commission, mandated certain criteria to be followed while implementing reservations. It said that the overall reservation ceiling is 50% maximum per year and that the creamy layer should be excluded from the purview of backward classes.

In the case of Devadarsan v. UOI,[11] the constitutional validity of the Government’s carry-forward rule was in question. The carry-forward rule was considered illegal per se by the SC but later was upheld with the condition of it falling within the ambit of the 50% criteria.

Even Article 243D[12] provides reservations for SC and STs, of Panchayat seats and 233T[13] in municipality seats. Article 335[14] upheld that to match the administrative effectiveness, the demands of SCs and STs are to be considered. Articles 330[15] and 332[16] provide for reservations of SCs and STs in Parliament and State Legislative Assemblies.

Creamy Layer and SCs/STs

Recently in the case of M. Nagaraj & Others v. UOI,[17] the centre sought the Supreme Court the question of, Whether the creamy layer concept should apply or not to the Scheduled Castes (SCs)/Scheduled Tribes (STs) while providing them reservation in promotions. Prior, in the case of Jarnail Singh v. Lachhmi Narain Gupta[18] 2018, it was stated that the Creamy Layer Ensures that only deserving the SCs/STs get the benefits of reservation. The same was contradicted in the case of M. Nagaraj Case[19] of 2006.

Let us first try to understand what this concept is. The concept of the creamy layer or means test was formulated in the case of Indra Sawhney v. Union of India[20], 1992. It was defined as “some members of a backward class who are socially, economically as well as educationally advanced as compared to the rest of the members of that community. They constitute the forward section of that particular backward class and eat up all the benefits of reservations meant for that class, without allowing benefits to reach the truly backward members.”

An economic ceiling norm was fixed to decide whether a person falls under the ambit of the creamy layer or not. It was set at 6 lakhs per annum in the year of 2013, which was later changed to 8 lakhs per annum in 2017.[21] This concept of the creamy layer was made applicable through the prohibition of reservation in cases of promotion. This was embodied in the case of Indra Sawhney’s case[22], which was later amended by the 77th constitutional amendment[23] 1995 by adding the provision of reservation in matters of promotion for SCs and STs.

Later by means of the 81st constitutional amendment[24], Article 16(4B)[25] was added to the Constitution which case power to the “carry forward rule” for SCs and STs reservation. This was even given a pass to exceed the ceiling limit of 50% reservation. The 85th constitutional amendment[26], provided the SCs and STs with “consequential seniority” in promotion with retrospective effect from June 1995, for government jobs.

All these cases and current provisions when evaluated closely, do possess a loophole in the fair policy of the reservation system in India. Time and again the question of the creamy layer has been posed on SCs and STs and dodged in favor of them. In the case of M. Nagaraj[27], 2006, the stance of the Mandal Commission was altered, saying that the creamy layer concept is only for OBCs and SCs and STs are not to be judged on the basis of it.

This calls for a need of the introduction of the concept of a creamy layer even for the communities of SCs and STs. Even the SC in the case of M. Nagaraj[28], 2006, stated that the Quota benefits should go to the weakest of the weak and not be snatched away by the members of the class who are in the ‘top creamy layer.

Conclusion

The application of a creamy layer in the reservation policy of SCs and STs would enable more equitable distribution of the benefits in the community. It would reach the people who are actually in need and not the persons already in an established position. This approach is also discriminatory to the general public of India because of their deserving seats being taken by the already privileged people of the backward communities. It would again create another oppressing and oppressed class of individuals which would later manifest itself into a vicious cycle. Hence, by imposing the restriction of the creamy layer, a more responsive implication of the policy can be ensured.

Author(s) Name: Bandana Mishra (Symbiosis Law School, Pune)

Reference(s):

[1] Bhagwan Das, Moments in a History of Reservations, 35 ECO. & POL. WEEKLY, 3831–3834 (2000).

[2] National Commission for Backward Classes, http://www.ncbc.nic.in/Writereaddata/Mandal%20Commission%20Report%20of%20the%201st%20Part%20English635228715105764974.pdf, (last visited May 25, 2023).

[3] India Const., amended by The Constitution (One Hundred & Third Amendment) 2019.

[4] India Const. art. 14.

[5]. Neil Aureilo and Ors. v. Union of India and Ors., 2022 SCC OnLine SC 75.

[6] India Const. art 15 cl. (4).

[7] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.

[8] India Const. art. 15 cl. (1).

[9] India Const. art. 16 cl. (4)

[10] Indra Sawhney v. Union of India, AIR 1993 SC 477.

[11] Devadarsan v. Union of India, 1964 SC 179.

[12] India Const. art. 243D.

[13] India Const. art. 233T.

[14] India Const. art. 335.

[15] India Const. art. 330.

[16] India Const. art. 332.

[17] M. Nagaraj & Others v. Union of India, AIR 2007 SC 71.

[18] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.

[19] M. Nagaraj & Others v. Union of India, AIR 2007 SC 71.

[20] Indra Sawhney v. Union of India, AIR 1993 SC 477.

[21] Department of Personnel and Training, https://dopt.gov.in/sites/default/files/ewsf28fT.PDF, (last visited May 25, 2023).

[22] Indra Sawhney v. Union of India, AIR 1993 SC 477.

[23] India Const., amended by The Constitution (Seventy Seventh Amendment) 1995.

[24] India Const., amended by The Constitution (Eighty First Amendment) 2000.

[25] India Const. art. 16 cl. (4B).

[26] India Const., amended by The Constitution (Eighty Fifth Amendment) 2002.

[27] M. Nagaraj & Others v. Union of India, AIR 2007 SC 71.

[28] Id.