New Delhi: The Narendra Modi government’s demand for a review of a 2018 Supreme Court verdict in Jarnail Singh vs Lachhmi Narain Gupta case has brought focus back on the exclusion of ‘creamy layer’ within the Scheduled Castes (SC) and Scheduled Tribes (ST) categories from reservation benefits.
Asserting that the creamy layer concept, which distinguishes between the affluent among disadvantaged sections, should not apply to SCs/STs, the central government has demanded that the matter be referred to a seven-judge bench.
But what does creamy layer mean?
The concept has its genesis in a 1992 Supreme Court judgment in the Indira Sawhney vs Union of India case. Since then, two other significant Supreme Court judgments — one in M. Nagaraj vs Union of India and another in the Jarnail Singh case — have laid down the law in this regard. ThePrint explains.
The Mandal Commission case
The Mandal Commission was set up in 1979 under Article 340 of the Constitution by the Janata Party government when Morarji Desai was prime minister with a mandate to “identify the socially or educationally backwards”. It laid down 11 indicators or criteria for determining social and economic backwardness.
In light of this report, the government provided 27 per cent reservation in central government jobs for Other Backward Classes (OBCs) in 1990.
This was challenged in the Supreme Court by several writ petitions.
A nine-judge bench in the Indira Sawhney case had upheld reservations for OBCs in 1992, but ruled that creamy layer among the backward class of citizens must be excluded “by fixation of proper income, property or status criteria” by the central government.
The court asserted that on these specifications, people falling in the creamy layer would not get the benefit of reservations. The Supreme Court also held that reservations in appointments — under Article 16(4) of the Constitution — do not apply to promotions.
Also read: 30 OBCs who cleared 2017 UPSC exam not given services for ‘hiding their high income’
The 1993 creamy layer norms
Following the SC judgment, the Department of Personnel and Training (DoPT) had laid down categories under the creamy layer in 1993.
According to the 1993 order, sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings etc. and armed forces fall within the creamy layer, and, therefore, they would not be entitled to reservation benefits.
The order also included within the creamy layer sons and daughters of people with a gross annual income of Rs 1 lakh above or possessing wealth above the exemption limit as prescribed under the Wealth Tax Act for a period of three consecutive years.
It, however, clarified that income from salaries and agricultural land will not be clubbed, and asserted that the income criteria in terms of rupee will be modified taking into account the change in its value every three years.
However, the ceiling has been revised only four times since 1993 — the last time it happened was in September 2017 when the cap was raised to Rs 8 lakh per annum.
Also read: OBC sub-categorisation is a rehash of BJP’s venomous anti-creamy layer game
The amendments that followed
Meanwhile, in order to change the effect of the judgment in the Indira Sawhney case, there were some amendments to enable the government to make laws regarding reservation in promotion for SCs and STs.
The first of these amendments was when the Parliament enacted the Constitution (77th Amendment) Act, 1995, inserting Article 16(4A), thereby enabling the government to make laws providing quota in promotion for SCs and STs.
Article 16(4B) was also inserted, providing that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. While the SC judgement in the Indira Sawhney case capped the reservation quota at 50 per cent, the government’s amendment ensured that the 50 per cent ceiling for these carried-forward unfilled posts does not apply to subsequent years.
Another instance was when Article 335 of the Constitution was amended during Atal Bihari Vajpayee’s government in 2001. While Article 335 specified that reservations have to be balanced with the “maintenance of efficiency”, the 2001 amendment stated that the Article will not apply to the government if it relaxes evaluation standards in matters of promotion.
‘Maintenance of efficiency’ is a constitutional limitation on the discretion of the government in making reservation in promotion for SCs and STs.
Creamy layer to SCs & STs
These amendments led to the 2006 Supreme Court judgment in M. Nagaraj vs Union of India, where a five-judge bench approved Parliament’s decision to extend reservations for SCs and STs to include promotions with three conditions.
It required the government to provide proof for the backwardness of the class benefitting from the reservation, for its inadequate representation in the position/service for which reservation in promotion is to be granted and to show how reservations in promotions would further administrative efficiency.
The judgment also held that the creamy layer concept was applicable to SCs and STs.
Creamy layer shouldn’t bag all coveted jobs: SC
The M. Nagaraj case judgment was challenged in the Jarnail Singh case via two reference orders, the latest one having been issued in November 2017, stating that it needed to be referred to a seven-judge bench.
The top court refused to refer it to a larger bench, asserting that even though it had not expressly chosen to apply the creamy layer principle to SCs and STs in its verdict in the Indira Sawhney case, the principle can still be applied in view of the principles of equality enshrined in Constitution.
The court also asserted that the SC and high courts would be well within their jurisdiction to exclude creamy layer from getting reservations, rejecting the central government’s submissions that only the Parliament can exclude or include people from SC/ST lists.
“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,” it observed.
Also read: Creamy layer cannot be applied to deny benefits of quota in promotions: Centre to SC