The “creamy layer” is the generally small section of people that occupies the top of a marginalised community’s socioeconomic hierarchy. It would include the children of Supreme Court judges, senior bureaucrats and military officers above the rank of colonel belonging to that community. The creamy layer test specifies that a candidate must be below a certain income ceiling in order to avail of reservation in government jobs and educational institutions.
Originally, reservation for Dalit’s, Adivasis and the Other Backwards Classes did not specify any income criteria. Neither were any such riders introduced by central or state legislation. The sole basis of reservation was caste. It was the Supreme Court which brought in the concept of the “creamy layer” in 1993 through its judgment in the Indira Sawhney case.
The court said Putting in the framework of the “creamy layer” was in keeping with the basic structure of the Constitution as it mapped to the principle of equality. “Exclusion of such socially advanced members,” it argued, “will make the ‘class’ a truly backward class.” The principle, however, only applied to the Other Backward Classes, not Dalits and Adivasis, who are acknowledged as the country’s most backward communities. This judgment by a five-judge bench led by Chief Justice Dipak Misra changes the equation, prescribing the “creamy layer” test for all caste-based reservation.
In its ruling, the bench argued that being a part of the “creamy layer” allows Dalit’s and Adivasis to “come out of untouchability or backwardness”. Mirroring earlier judgments, the apex court also argued that excluding the creamy layer will serve the cause of equality since they “bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were”.
For nearly 30 years, the Supreme Court has stood firmly by its principle that economic criterion alone cannot be the sole basis for identifying a Backward Class member as “creamy layer”. Other factors like social advancement, education, employment, too, matter. In 2016, Haryana State government had issued notifications under the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act of 2016.
The notification identified as “creamy layer” Backward Class members whose gross annual income exceeded ₹6 lakhs. It said Backward Class sections whose families earn less than ₹3 lakh would get priority over their counterparts who earn more than ₹3 lakh but less than ₹6 lakh. These notifications were challenged in the Supreme Court.
Supreme Court said that the basis of exclusion of creamy layer cannot be merely economic.SC struck down the notifications as a “flagrant violation” of the 2016 Act and said Section 5 (2) of the Act required the State to consider social, economic and other factors together to identify and exclude Backward Class members as “creamy layer”.
In Jarnail Singh versus Lachhmi Narain Gupta, 2018 case, Justice Nariman said unless creamy layer principle was applied those genuinely deserving reservation would not access it. He further observed that the creamy layer principle was based on the fundamental right to equality. Benefits, by and large, are snatched away by the top creamy layer of the ― backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.
Certain States like Kerala did not promptly implement the above SC directive (identifying Creamy layer & excluding them). This led to a sequel of the Indira Sawhney-II case, reported in 2000.Here, the court went to the extent of determining “creamy layer” among Backward Classes.
The judgment held that persons from the classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status, and therefore, were not entitled to be treated as backward. Such persons were to be treated as “creamy layer” without any further inquiry. Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and be treated as “outside the Backward Class”.
Other categories included persons with higher agricultural holdings or income from property, etc. Thus, a reading of the Indira Sawhney judgments shows that social advancement, including education and employment, and not just wealth, was key to identifying the “creamy layer”.
The identification has been a thorny issue. The basic question here is how rich or advanced should a Backward Class section be to invite exclusion from reservation. In other words, it is question of “how and where to draw the line” between the deserving and the creamy layer becomes challenging when economic criteria is the sole basis of identification.
Justice Reddy in the Indira Sawhney judgment highlighted the pitfalls of identifying creamy layer merely on economic basis. For example, a person who earns ₹36,000 a month may be economically well-off in rural India. However, the same salary in a metropolitan city may not count for much.
A member of Backward Class, say a member of the carpenter caste, goes to the Middle East and works there as a carpenter. If we take his annual income in Rupees, it would be fairly high from the Indian standard. There is a dilemma whether he is to be excluded from the Backward Class when an only economic criterion is considered. Justice Jeevan Reddy pointed out “The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement.”
Reservation is, by definition, a means to ending discrimination based on caste which has been a feature of the Indian society for thousands of years. It is not a remedy for economic backwardness. This is why there is no reservation for low-income members of the upper castes.
Reservation is meant to ensure that backward castes are fairly represented in public services, educational institutions and legislatures, and get a share in state power – something denied to them throughout Indian history. Many commentators have argued that mandating an economic ceiling for reservation misunderstands how caste works: Dalit’s and Adivasis face discrimination even if they are well-off or educated. In 2016, after Dalit scholar Rohith Vemula committed suicide at Hyderabad Central University, his friends and family blamed caste discrimination at the elite institution. In 2014, a temple in Bihar was reportedly cleaned and its idol washed after Dalit Chief Minister Jitan Ram Manjhi visited it.
This contention of the Supreme Court is disputed by many activists and experts. They point out that far from seats being corned by a small clique; Dalit’s and Adivasis are so disadvantaged it is difficult to even fill the seats reserved for them. In July 2018, for example, the highly sought-after Delhi University did not manage to fill its reserved category seats. This is true of government jobs as well.
Placing further curbs to exclude the creamy layer will serve no purpose other than that more valuable seats will go unfilled, the activists argue. Reservation is a hot button topic among Dalit politicians. So, the Supreme Court’s ruling is certain to spark a political reaction. In March 2018, the court diluted the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, triggering a sharp reaction from Dalit leaders and activists in the form of a nationwide shutdown on April 2 in 2018. Bowing to their pressure, the government rolled back the verdict by passing a statutory amendment in August. It can similarly overturn the latest decision.
(The views expressed are personal)