THE CREAMY LAYER: WHAT IS THE FUSS ABOUT?


“Equality may be a fiction but nonetheless one must accept it as a governing principle.”[1]

-Bihmrao Ramji Ambedkar


The author in this post analyses the concept of Reservations amongst the SCs and STs. The author also has delved into the concept of the creamy layer being extended to SCs and ST and the proportionality theory.


The concept of equality has been enunciated under Article 14, Article 15(1), and Article 16(1). But they also provide for reasonable classification which acts as the root for the concept of reservations. The concept gives a window to provide opportunities to those who do not have access to them due to the position in society based on their caste or gender. But this concept has always been a long-standing argument in India. As a mean that was used to control the historical caste-based discrimination, it became a ground for various arguments and debates which questioned its existence. It is interesting to note that the concept of reservation was sown in the political system back in the 1930s. The debate that started off with the Poona Pact has been going on till today.

The concept of reservation was brought in to provide opportunities to those who are being denied opportunities due to their cast. Over the years, this concept has evolved due to changing circumstances. But this change does not indicate that caste discrimination has been eradicated. The kinds of discrimination one faces in an urban city is different from that of discrimination in a rural area. Caste discrimination widely prevails in rural areas compared to urban areas. This is enough to establish the fact that a reservation system is necessary to provide opportunities to people who are being pushed backward based on their caste.


THE CONCEPT OF RESERVATION IN INDIA


Article 340 of the India Constitution has given the President the power to appoint a commission to investigate the conditions of “socially and economically backward communities”.[2] The Mandal Commission was set up in the year 1979 to determine who falls under the category for which reservations should be given. This was followed by the historic judgment of Indra Sawhney vs Union of India[3] where the cap for reservations was fixed at 50%. The current scenario of reservations has been closer to the cap given in this judgment. Most of the states have fixed reservations within 50%. However, there are few exceptions to this. During the last year, the concept of allocating 10% to Economically Weaker Section (EWS) was brought in. This being a recent development, has been challenged in the court.


CONCEPT OF CREAMY LAYER


It is important to note that the concept of creamy layer came up in the State of Kerala & Anr. Vs N.M. Thomas[4], wherein Justice Krishna Iyer held that the benefits are taken away by the creamy layer leaving the poor to be the poorest. The concept was then discussed in the Indra Sawhney vs Union of India[5] case wherein K.K. Venugopal argued that caste cannot be the main criterion to divide people into categories for reservations as the concept of caste does not exist in Christian, Muslims, and Sikhs. Accordingly, the majority judgment, in this case, stated that the concept of the Creamy layer must be applied, and they must be segregated from the backward classes. The 77th Amendment Act was introduced in the year 1995 wherein the Centre tried to nullify the judgment given in this case by extending the policy of reservations. Subsequently, Article 16(4B) was introduced and Article 335 was amended. Both amendments aimed at expanding the Centre’s policy to provide more reservations. This was challenged in the Supreme Court. Apart from this, till 2006, the concept of the creamy layer was applicable only to the other backward community (OBC’s). In M.Nagaraj vs Union of India[6], the court extended its application to SCs and STs. It held that the affluent amongst the backward classes should not avail the benefits of reservation as it “destroys the fabric of equality and opportunity”[7]. It also answered the validity of the amended articles by stating that quantifiable data was needed to prove the backwardness of a specific community for it to be eligible for quotas in promotions (pertaining to SC’s and ST’s).

The Government, in the month of December, asked the Supreme Court to review the concept of the creamy layer under the Schedule Caste and Schedule tribe category. The Law Minister, Mr. Ravi Shankar Prasad expressed the views of the Government wherein he stated that that the creamy layer concept must be excluded form SC’s and ST’s as the people falling within that community are still being discriminated and are not able to get opportunities. This reaction came as a result of the 2018 judgment in Jarnail Singh vs Lachhmi Narain Gupta.[8]. In this case, the court affirmed the application of creamy layer concept to the SC’s and ST’s and held that quantifiable data is not needed to prove backwardness. The Supreme Court had asked the

Government to implement this concept as it had been avoiding the Supreme Court’s judgment in M.Nagaraj[9] for 13 years.


SHOULD THE CONCEPT OF CREAMY LAYER BE APPLIED TO SCs AND STs?


The root of the creamy layer problem is whether economic conditions should also be taken as a parameter along with social conditions to determine the classification of an individual for reservation. The reservation system was brought in to protect those who are economically and socially backward and to provide them with opportunities that were otherwise denied to them. With the change in social and economic conditions, the system must also evolve. This implies that the reservation system which is only caste centric will deny opportunities to a lot of people. The Indira Sawhney[10] case held that backwardness need not be defined only by social or educational backwardness. Hence, it is important to consider all parameters such as economic factors that also play a critical part in determining the position of an individual in society.

This concept can be compared with Rawl’s theory which can clearly illustrate examples for justification.[11] The concept of reservation was brought in for every individual who was eventually classified as a community. The theory of “proportional equality”[12] also focuses on the issue that the reservation is focused on one individual. Now, just because an individual forms a part of a group of people who deserve reservation, it does not mean that he also has to be given that benefit despite having access to come out such a community through financial means. This clearly justifies why the creamy layer concept should exist. The second argument is that the creamy layer concept already exists in the OBC category. What can be the reasonable justification that can be given to avoid introducing this concept in the SC and ST categories? It, in fact, will create more opportunities for people within that category which was previously restricted by the creamy layer. This can be justified with the data provided in the study conducted by People’s research on Indian’s consumer economy wherein the data clearly proves that there are groups of people within the SC and ST community who earn much higher than those people not only belonging to the SC and ST community but other categories as well.[13] All the arguments are based on the fact that it is important to consider income as a crucial factor in determining reservations. Unlike the olden times, people belonging to the same community do not anymore earn in a similar ratio because they do not have a similar occupation. In this globalized world, people have started migrating within India for opportunities and income. It is important to note this process before considering parameters for reservations.

CONCLUSION


The concept of the creamy layer under the Other Backward Classes (OBC’s) is determined with the help of various parameters. The problem lies with the fact that these parameters are not being reviewed on a regular basis. Similar kinds of problems will exist when the creamy layer is introduced into the SC and ST category. Article 335 is often quoted to justify the exclusion of the applicability of the creamy layer concept. But the system does not work according to this article as the Government does not take into consideration the policy in adherence to “efficiency in administration.” It is important to read Article 14,15 and 16 into the applicability of the creamy layer concept to justify its application. The applicability of the creamy layer concept is going to ensure equality in providing opportunities to people belonging to the SC and ST category as it will ensure that everyone shares the "cake". The power to make reservations for appointments as well as promotions constitutionally lies with the Government.[14] It is imperative for the Government to regularly review the economic and social conditions before putting the power to use to ensure equality and growth of the backward community.


References:

[1] Famous quote of DR. BR Ambedkar in “Annihilation of caste”. [2] Appointment of a Commission to investigate the conditions of backward classes [3] INDRA SAWHNEY VS UNION OF INDIA AIR 1993 SC 477 [4] STATE OF KERALA VS N.M THOMAS 1976 AIR 490 [5] Supra 2 [6] M.NAGARAJ VS UNION OF INDIA (2006) 8 SCC 212. [7] Sameer Pandit, M. NAGRAJ V. UNION OF INDIA: LEGAL AND THEORETICAL REFLECTIONS, 49 JOURNAL OF THE INDIAN LAW INSTITUTE 249–259 (2007). [8] JARNAIL SINGH VS LACHMMI NARAIN GUPTA 2018 OnLine SC 1641 [9] Supra 5 [10] Supra 2 [11] Supra 6 [12] This theory was developed in various forms including the Jacksion concept of equality Sheela Rai, Social and Conceptual Background to the Policy of Reservation, 37 ECONOMIC AND POLITICAL WEEKLY 4309–4318 (2002). [13] SC/ST creamy layer must not get benefits, , THE FINANCIAL EXPRESS (2018), https://www.financialexpress.com/opinion/scst-creamy-layer-must-not-get-benefits/1117977/ (last visited Jan 18, 2020). [14] Affirmative Action and the Marginalized Population: A Study on the Creamy Layer and its Relevance Today | Christ University Law Journal, http://webcache.googleusercontent.com/search?q=cache:f6XRkbZeLKIJ:journals.christuniversity.in/index.php/c ulj/article/view/998+&cd=1&hl=en&ct=clnk&gl=in (last visited Jan 19, 2020).

Submitted by:

Harinie.S,

Symbiosis Law School, Hyderabad


(Images used for representative purpose only)

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