7th December 2019 : The Hindu Editorials Notes : Mains Sure Shot
Question – What is meant by creamy layer? Should it be extended to the SCs/STs?
- Context – The plea by the centre to review the direction of the court to extend creamy layer to SCs/STs.
Why in news?
- The Supreme Court order that the creamy layer of SCs and STs be kept out from enjoying the benefits of the quotas on jobs and admissions was given 13 years ago, but the successive governments have yet to implement it. Instead, they have repeatedly urged the court to refer the matter to a bench of seven judges for reconsideration.
- The top court has since 2006 reaffirmed its decision at least nine times in various cases.
- The latest was in 2018, when it dismissed a plea by attorney general KK Venugopal to refer the issue to a bench of seven judges. He raised the demand again on Monday before Chief Justice SA Bobde, dubbing the issue as “sensitive”. The Chief Justice said he would take a call on the matter in two weeks.
What is the creamy layer concept?
- There are two concepts – the concept of ‘means-test’ and the concept of ‘creamy layer’.
- The ‘means test and creamy layer’ first finds expression in the Supreme Court’s landmark judgment in Indra Sawhney vs Union of India, delivered by a nine judge Bench on November 16, 1992. The judgment recorded lawyers describing the ‘creamy layer’ as “some members of a backward class who are highly advanced socially as well as economically and educationally… They constitute the forward section of that particular backward class — as forward as any other forward class member. They lap up all the benefits of reservations meant for that class, without allowing benefits to reach the truly backward members of that class”.
- The Indra Sawhney judgment had upheld the government’s move (the then governments move to give reservations to OBCs), based on the Mandal Commission report, to give 27% reservation to Other Backward Classes. But it held that the creamy layer (socially advanced persons) “can be and must be excluded from backward classes”. Also that reservation should not be more than 50% in promotions.
- The court said “economic criterion could be adopted as an indicium or measure of social advancement” in order to identify members of a creamy layer in a class or a group. The court asked the Central government to fix the norms for income, property and status for identifying the creamy layer.
- Accordingly, in 1993, the creamy layer ceiling was fixed at ₹1 lakh. It was subsequently increased to ₹2.5 lakh in 2004, ₹4.5 lakh in 2008, ₹6 lakh in 2013, and at ₹8 lakh since 2017.
How will the creamy layer be applied to SC/ST members in case of reservations?
- In case of reservation – The Indra Sawhney verdict had held there would be reservation only in initial appointments and not promotions.
- But the Centre refused to do that. It introduced Article 16(4A) through the Constitution (Seventy seventh Amendment) Act on May 31, 1995 to overcome the effect of this judgment and to continue with its policy of extending quotas for SCs and STs in promotions, reasoning that their representation in States’ services has not reached the required level.
- Article 16(4B) was also introduced in the Constitution to carry forward unfilled vacancies in subsequent years and not apply the 50% cap on reservation to these vacancies.
- The amendments were challenged in the Supreme Court and referred to a five judge Bench in the M. Nagaraj case.
- In 2006, the five judge Bench, in Nagaraj, laid down three conditions for promotion of SCs and STs in public employment. The court held that the government cannot introduce quota in promotion for its SC/ST employees unless it proves that the particular community was backward, inadequately represented and providing reservation in promotion would not affect the overall efficiency of public administration. And the opinion of the government should be based on quantifiable data.
- The judgment in Nagaraj also held that the creamy layer was applicable to SCs and STs in government promotions.
- In Jarnail Singh 2018, another five judge Bench led by the then Chief Justice of India Dipak Misra upheld the 2006 verdict’s reasoning that the creamy layer principle was based on the right to equality. The court held that quota benefits should go to the weakest of the weak and not be snatched away by members of the same class who were in the “top creamy layer”.
- Justice Rohinton F. Nariman, who wrote the September 26, 2018 judgment in the Jarnail Singh case, said the creamy layer concept ensured that only the genuinely deserving members of an SC/ST community get reservation benefits. So there should be creamy layer provision in case of reservation to SCs and STs.
- The conclusion or way forward can be drawn from what Justice Nariman had observed in his judgment for the court: “The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”
- Article 335 of the Constitution was amended in 2001 to allow relaxation in qualifying marks and lowering of standards in favour of SCs/STs.
- The benefits of these relaxations must go to the ones who need it the most.