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There are glaring flaws in SC judgment excluding SC/ST creamy layer from reservations

By applying the same equality principle to both OBCs and ST/SCs, the Supreme Court has been unfair to some of the most marginalised groups in India.

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The Narendra Modi government has rightly requested the Supreme Court to reconsider a Constitution bench decision on the issue of creamy layer within the scheduled castes and scheduled tribes, pronounced in the 2018 case of Jarnail Singh v. Lachhmi Narayan Gupta, by referring it to a larger bench. The Jarnail Singh judgment, authored by Justice Rohinton Nariman, had held that the creamy layer within SC/STs will be excluded from the benefits of reservation in promotion policies.

There were glaring flaws in the Jarnail judgment.

Also read: What creamy layer is & why Supreme Court kept affluent SC, ST members out of quota benefits

Conflating OBCs with SC/STs

The Jarnail Singh decision made an interpretation of earlier judgments. The problem is that these judgments had conflated the OBC issue with that of the SC/STs – the creamy layer principle that was invoked for the OBCs was applied to the question of SC/STs. This is the central fallacy that goes into the heart of the ongoing debate now.

The fact that the Constitution bench in the 2018 case did not even take this obvious flaw into account reflects poorly.

The Constitution bench in Jarnail Singh had been called upon to reconsider a previous decision in M. Nagaraj v. Union of India (2006). It was contended by the government’s attorney general before the Supreme Court in Jarnail Singh case that exclusion of creamy layer of SC/STs in promotions, as propounded in Nagaraj, is a clear misinterpretation of another judgment in 1992 in Indra Sawhney v. Union of India. The 1992 judgment had dealt only with the constitutionality of 27 per cent reservation granted to the Other Backward Classes (OBCs) and exclusion of creamy layer from the OBCs.

Specifically examining the 1992 Indra Sawhney judgment, the Jarnail Singh judgement of 2018 made two observations that are contradictory. On one hand, it noted that the discussion on the creamy layer concept is limited to backward classes in the Indra Sawhney, which had said clearly that “this discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes”. But, on the other hand, the Jarnail Singh judgment made the mistake of treating the Indra Sawhney judgement to be “a facet of the larger equality principle” (covering both OBCs as well as SC/STs). Both positions are mutually exclusive.

Here, the Supreme Court failed to understand the significant difference between OBCs and SC/STs.

In a number of judgments, including Indra Sawhney, it has been held that the members of the Scheduled Castes are most backward amongst the backward classes and that they are not required to fulfill any condition of social and educational backwardness. The standard of review for adjudicating the claims of SC/STs and OBCs cannot be the same.

India’s Constitution enshrines substantive equality (which recognises that affirmative steps can’t be one-size-fits-all), and a recent two-judge bench decision in B.K. Pavitra v. Union of India (2019) rightly said, it therefore requires “accounting for the structural conditions into which people are born”.

The judgment in Nagaraj, earlier, had made the same mistake. In dealing with the constitutional amendments that allowed reservation in promotions for SC/STs, the judgment had applied the test laid down in Indra Sawhney for OBCs to SC/STs as well. The Supreme Court had then held: “These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney”.

Also read: No, my lord: Indians are unequal and our laws can’t be caste neutral

Creamy layer not a principle of equality

In another Constitution bench judgment in the case of Ashoka Kumar Thakur v. Union of India (2008), the Supreme Court had reiterated the creamy layer test to be applied to OBCs in admissions to government universities as well as government-aided private universities. Then Chief Justice of India, K.G. Balakrishnan, had said emphatically that the creamy layer principle is inapplicable to scheduled castes and scheduled tribes because it is merely a principle of identification of the backward class and not applied as a principle of equality. The decision in Jarnail Singh noted that the Ashoka Kumar judgement was “not on Scheduled Castes and Scheduled Tribes but on OBCs”, and also disagreed with the view of Chief Justice Balakrishnan.

This again presents a contradiction: On one hand, it was disagreeing with Chief Justice Balakrishnan’s opinion on inclusion of SC/STs creamy layer because Ashoka Kumar decision was mainly related to OBC reservation, but on the other hand, it was approving Nagaraj’s exclusion of SC/STs creamy layer based on the reading of Indra Sawhney, which also was limited only to OBC reservation. Justice Nariman in Jarnail Singh fails to address this.

Furthermore, Justice Nariman relies upon some observations made in Justice Krishna Iyer’s concurring opinion in State of Kerala v. N.M. Thomas (1976) in support of creamy layer exclusion. This raises the concern that if the opinion of one judge (Justice Krishna Iyer) is important enough to be invoked for “constitutional courts … to exclude the creamy layer”, then the opinion of Chief Justice Balakrishnan on the inclusion of creamy layer is equally important. This concern ought to have been addressed.

Also read: Supreme Court just destroyed the ‘merit’ argument upper castes use to oppose reservations

The creamy layer argument

Opponents of reservations in India contend that decades of reservations for SCs and STs had created a ‘creamy layer’ and that the time has come to exclude their descendants from job quotas.

But that is a flawed argument. Centuries of discrimination and harmful stereotypes, and denial of opportunities do not go away if one buys a car or owns a city home.

In a detailed article in Harvard Civil Rights-Civil Liberties Law Review, professor Khiara M. Bridges documents the disadvantages that class-privileged people of colour experience in the United States. On the basis of these experience, Bridges strongly critiques and rejects the notion of ‘post-racial’ thinking — which opposes race-based affirmative action programmes on the ground that it just benefits class-privileged black people.

The discussion on ‘creamy layer’ in India is similar to post-racialism discourse in the US and needs to be similarly critiqued. It should begin with the Supreme Court reconsidering the condition of creamy layer as laid down in Nagaraj and Jarnail judgments.

The author is an LLM from Harvard Law School and teaches a seminar course ‘Law, Politics, and Social Transformation’ at National Law University, Delhi. Views are personal.

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  1. basis of reservation was not economy it was the race in which one is born , Dr. BABA SAHEB BHIMRAO AMBEDKAR was so much educated , he was the most educated person from the SC & ST community and was also the most educated person in the parliament at that time , if he was discriminated in school , office , college , society & was not allowed to drink water in his school & office , he was not allowed to enter temple . I am giving this example because becoming rich or an IAS officer does not mean that upper caste people will not discriminate him / her , it’s in the mindset of people . Many SC /ST people are discriminated at offices , workplaces , school , college or society in matter of opportunities or treatment . Recently a tehsildar in UP who was an SC candidate was beaten by upper cast MLA & his supporters from his home to his office . No action has been taken by state or central government against the MLA or his supporters . Today also at many places in India people discriminate an SC / ST person no matter how much wealth he poses or highly qualified he is . Today also many people in our country & society think that social & religious possession or status is bigger than economic possessions or knowledge . Reservation gives legal right to depressed people in terms or opportunity & equality . Whereas question of rich or poor in SC / ST is considered , knowledge is not discriminated any person can possess it but opportunities can be discriminated , the fight is not for money & possessions , the fight is for respect , social equality . As far as the term CAST will remain in our society the fight will continue in one or the other way .

  2. Sir please
    Try to understand
    you have completed your LLM from USA
    And within that one year you have realised that
    In USA social status is all about Economic condition
    Let take the example of some of my relatives
    They belong to SC category
    They are on very good Government Posts
    Their wives are from Upper Caste
    But even after that their Kids are getting Reservation in Government Jobs and Education
    While even after born in upper caste my father
    Is a very poor farmer
    I will never able to afford what the kids of my relatives can afford
    Even we have to face Discrimination on the basis of Our Economic condition

    Being Poor is also a new form of Discrimination and crime

    • government has provided reservation in the economically weaker section for the poor general people . Now talking of SC & ST ‘s reservation , Indian society is based on religion & casts in India . No matter how much qualified , economically stable or rich & developed a backward class person is , when he goes into a society or office (government or private) people discriminate him / her when it comes to give opportunities or promotion in jobs or any other benefit . An SC / ST candidate will get opportunities if it is provided by law or strict orders otherwise . If it is in the hands of an upper caste person or people from other religion , they will give opportunities to their people . So getting economically developed doesn’t mean that a person will not be discriminated .
      My father was discriminated in his office for promotion , his boss was general candidate , he did not wrote good review about my fathers work making his promotion pending but when inquiry was done , the review was corrected by senior official & promotion was given to my father . One of my uncle was not given joining in primary school as a teacher , the principle their was an upper caste man & majority was of upper caste . So when uncle approached court then he was given joining in school .

  3. Mr Anurag Bhaskar
    Hope you understand the logic beside your LLM from Harvard
    The reservation was originally implemented only for 10 years and can be increased further conditionally and reservation was only meant for SC St but parliament did create a new category called OBC and OBC creamy layer
    So I don’t think there are any flaws in the supreme court decision on exclusion​ of creamy layer in SC St quota
    Because OBC is also a caste based reservation
    In my opinion Supreme Court is absolutely right
    Because every successive governments kept on increasing the reservation for backward caste
    Without having a proper survey about their economic status

  4. What Dr. Ambedkar worked all his life for, was the DESTRUCTION of Caste. Alas, the vested interests of some & the near total apathy of most of us has bogged us down to a system that results in the PERPETUATION of Caste.

  5. Reservation for SC/STs was originally for 10 years,presuming they will be brought to the main stream with in the period.Due to various reasons it was extended .The purpose was to give them protection from being ignored.
    Creamy layers from SC/St and OBC having achieved financial stability are able to enjoy status and equality with upper class and no longer needs “protection”..Moreover by including Creamy Layer for reservation we are further reducing the opportunity of real poor to get their due as “Creamy layer ” is better compete and grab positions reserved for SC/STs.

  6. Judge Rohinton Nariman writes in his judgement that groups or sub groups who have come out of untouchability on account of being in creamy layer are excluded.How to prove that one has come out of untouchability in this caste ridden society.SC says all SC ST are backward and there is no need to have quantifiable data to prove their backwardness. This means to say all SC ST are backward.So not possible to prove people have come out of untouchability or backwardness. Rohinton Nariman has given judgement with lot of glaring flaws as noted by the author.Review is required..Bad judgement

  7. Excluding creamy layer will make those same opportunities available to SC/ST people who need it more than the creamy layer. Taking your example if there is one seat left in SC/ST quota who do you think deserves it more. A person from SC/ST family whose father is an IAS officer, owns a car, house in city or another person from SC/ST family who spin yarn and live in a hut and are barely making do in their daily life.

    If creamy layer gets excluded then the seat will go to the second person and that I think was the purpose of reservation. The decision does not reduces the amount of reservation available to SC/STs it just channels it to poorer and less affluent divisions within those groups.

    Now can you explain why are you against that ?

  8. Yes. Excluding creamy layer is faulty, so is giving reservations beyond 70 years of independence, so is our Constitution which allowed amendmentsbti itself beyond its basic character, our SC and polity which allowed it, for allowing people like this author continue to subvert justice in this country.

  9. “But that is a flawed argument. Centuries of discrimination and harmful stereotypes, and denial of opportunities do not go away if one buys a car or owns a city home.”
    So? What do you want done? Centuries of counter discrimination and counter harmful stereotypes?
    Reservation itself is a flawed policy that has done very little to uplift SC/ST.

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